I.
Introduction
In the past decades, calls for
environmental protection have emerged from different parts of society, from
civic action groups to members of the community. In the same regard, these
demands are indeed backed up by well-researched studies and well-documented
cases and accounts of the adverse implications of environmental abuses and
maltreatment. These are eventually heeded by legislative bodies in both local
and international scale. Nevertheless, ratification of such laws in pursuit of
protecting the environment may not be enough. At this point, enforcement of such
laws is as important as its existence and ratification. This task is given to
the state. The effective enforcement averts the possibility of these laws as
merely ceremonial at the most and be treated as mere suggestions for those who
appear to have encountered environmental dilemmas on their normal day-to-day
functions. As indicated, the international community has started decades ago to
create a standardised set of laws that could be implemented by nations all
around the world. Nevertheless, there are certain elements indicating whether
these laws are practicable in a universal sense. Certain states and nations may
not see it fit to implement certain provision of the law in their local
settings. This issue is well seen in the context of the Hong Kong Special
Administrative Region (HKSAR). To this end, the primary objective of this paper
is to provide a detailed examination of the existing laws in environmental
protection and the consequent enforcement of HKSAR on these legislations. The
secondary objective is to compare these legal initiatives as well as the
effectiveness of enforcement with the legal regime governing in other countries.
For the purposes of this thesis, the foreign countries to be regarded will
include Australia and the United Kingdom. Moreover, it is also deemed important
for this study to address another legal regime in Asia in its pursuit for
environmental viability. To this end, the study will also look into the case of
China.
II.
Background and Concept behind the Statement
Studies focusing on the
environment and its protection have constantly been regarded by lawmakers and
politicians in both international and local levels in determining the proper
rules and legislations needed in a particular state. For instance, studies have
mentioned several areas of concern which could be addressed by legislation.
These include the quality of the air, the quality of water, level of noise
pollution, waste disposal, and its consequent environmental impacts.
The need to determine the need to address these perceived elements involving the
environment intensifies almost in a daily basis. Particularly, with the
continuous and unrelenting drive of state towards development and urbanisation,
these stated elements will continue to deteriorate unless the state places a
firm stand on its protection and act on breaches on these laws.
Focus on the environmental regime
governing Asian countries has been rather scant as compared to the discussion
relating to the United States and European Union.
However, these types of discussions relating to these major countries tend to
provide a model for less developed ones in the enforcement of such laws. For
instance, the study of Babbitt, tried to justify the criminalisation of
the laws covering environmental protection to intensify the enforcement of the
laws and some level of protection because of the consequent deterrence it could
bestow as precedent cases are established.
In the context of China, it has
won it bid and anticipating the hosting of the 2008 Summer Olympics in Beijing.
Articles have noted that the city, as well as the entire country’s environmental
well-being was rather skint. Coal burning and emissions from automobile and the
industrial areas were not regulated.
The rivers were brimmed up with sewage and pollutants. In this regard, the state
has been up in arms in battling this deteriorating state of environment in
China. In the recent study of Schmidt,
he pointed out that hosting the summer Olympics should “serve as a catalyst for
environmental improvement and help to promote sustainable development" on the
part of China. Chepesiuk on the other hand indicated that this would be feasible
considering the fact that the “country's leadership can make tough big-ticket
decisions and implement them quickly."
A.
Statement of the Problem
The study intends to look into the
enforcement of environmental laws in Hong Kong. Specifically, the discussions
will provide a comparative analysis of the implementations in other states like
China, United Kingdom, and Australia. To keep the discussions coherent and
systematic, the dissertation will answer the following questions:
1. How does the Hong Kong Special
Administrative Region implement laws pertaining to:
a. Conditions of Air Quality
b. Noise Control
c. Wastes Management
d. Water Quality
e. Environmental Impact Assessment
2. How does the implementation of
laws in the Hong Kong Special Administrative Region fare up with China in terms
of
a. Conditions of Air Quality
b. Noise Control
c. Wastes Management
d. Water Quality
e. Environmental Impact Assessment
3. How does the implementation of
laws in the Hong Kong Special Administrative Region fare up with Australia in
terms of
a. Conditions of Air Quality
b. Noise Control
c. Wastes Management
d. Water Quality
e. Environmental Impact Assessment
4. How does the implementation of
laws in the Hong Kong Special Administrative Region fare up with United Kingdom
in terms of
a. Conditions of Air Quality
b. Noise Control
c. Wastes Management
d. Water Quality
e. Environmental Impact Assessment
5. How can Hong Kong implement
these existing environmental laws in the impending Beijing 2008 Summer Olympics?
B.
Significance of the Study
There appears to be a scarce
amount of studies and articles pertaining to the capabilities and competencies
of the special administrative region to implement its laws pertaining to the
protection of the environment. In the same regard, there has yet to be a study
that focuses on the regard of judicial bodies on “environmental crimes” in the
said region. This dissertation will be able to unlock the information on the
level of implementation and criminalisation of breaches of environmental
legislation. In the same regard, the assessment will also be based on the
presentation of the level of implementation and regard of courts on the
respondent countries. In doing so, not only does the dissertation provide the
readers an analysis of the legal conditions in Hong Kong, it also gives a
detailed description of the legal systems of enforcement implemented in
Australia and China.
C.
Scope and Coverage
The study will be discussing the
laws pertaining to air quality, noise, wastes, water quality, and environmental
impact assessment implemented in Hong Kong. In the same regard, research will be
made on such areas and its implementation in the respondent countries of China
and Australia. Along with the description of the actual laws implemented in the
said respondent countries, court decisions and some case laws relating to the
environment laws will be taken into account. Moreover, the study will also
consult past and existing academic and scholarly articles covering environmental
enforcement with the rest of the world.
III.
Literature Review
This part of the study seeks to
establish the theoretical frameworks of the dissertation by discussing the
claims and observations held by the existing literature. Specifically, the
discussions will be covering existing studies on international treaties on the
environment, the watchdogs that protect these treaties, trends towards
criminalisation, the implications of international events like the Olympics in
the environment, and observations regarding the legal regime of environment
protection in China and Australia.
A.
International Treaties
In the international arena, the
issues of environmental protection and polices are covered primarily of treaties
and signed agreements of particular participants of a certain international
assembly. One such treaty is The Rio Declaration on Environment and
Development. Basically, this treaty intends to point out certain issues of
the environment surrounding sustainable development.
The agreement establishes a
precautionary principle in environmental protection. This is displayed in the
passage in the signed treaty indicating that
“In order to protect the
environment, the precautionary approach shall be widely applied by States
according to their capabilities. Where there are threats of serious or
irreversible damage, lack of full scientific certainty shall not be used as a
reason for postponing cost-effective measures to prevent environmental
degradation."
Basically, this passage presents
the intention of the agreement to use policies to prevent any possible act that
may compromise the sustainable development of a particular nation. However,
issues related to economic and investment opportunities are linked to such
conditions of sustainable development. As Cowling indicated in his study,
noted in his study that multinational corporations tend to favour operations in
a developing country because of the possibility of making the most of its
natural resources. In recognising this reality, he further intimated that
developing nations are not in the position to protect its resources for purposes
of sustainable development given the motive of multinational corporations. The
Rio Declaration dismisses this apparently unequal situation for developing
nations. This is seen in Principle 11 of the declaration indicating that
"States shall enact effective
environmental legislation. Environmental standards, management objectives and
priorities should reflect the environmental and developmental context to which
they apply. Standards applied by some countries may be inappropriate and of
unwarranted economic and social cost to other countries, in particular
developing countries."
Other international agreements
have focused it attention to what was noted as “transfrontier pollution.”
Basically, this type of pollution affects not only a particular area in the
globe; it implicates a greater and wider range of adverse effects in the
environment. The Geneva Convention on Long-Range Transboundary Pollution
is the prevailing agreement that covers this issue. Created in 1979 in the first
world climate conference, the principle of the agreement is to take into
consideration the implications of sulphur emissions and its relation to acid
rain.
The possibility of the occurrence of greenhouse effects has been one of the
greatest issues at that period. The problem in that regard is that despite the
decrease in the sulphur emissions, the increase of nitrous oxide has been
apparent as the increase in road traffic in the rest of the world is becoming
commonplace.
This agreement is closely
connected to the subsequent high profile international conventions and
protocols. Basically, these said agreements focused entirely on the possibility
of climate change and how to prevent it. These include the United Nations
Framework Convention on Climate Change which spawned the Kyoto Protocol
on Global Warming. In the said protocol, the countries participating in the
said convention “agree to cuts in emissions of three of the most important
gases: carbon dioxide, methane, and nitrous oxide.”
Studies have mentioned the adverse implications of climate change to both the
environment and the public. For instance, the work of Ebi, Kovats, and Menne
intimated that population sheath may be compromised by drastic changes in the
levels of heat and consequent torrential rainfalls as a result of global
warming.
They also mentioned the possibility of intensification and even evolution of
infectious diseases present in the environment.
In the context of marine
protection, the Convention on the Prevention of Marine Pollution by Dumping
of Wastes and Other Matter was ratified in 1972. It is more commonly known
of the London Convention of 1972. Basically, the said convention covers the
intentional disposal of waste in the sea. Along with this is the list of
substances that have different levels of adverse effects once they are dumped in
water systems. Nevertheless, a clear shortcoming of this agreement is that it
doesn’t cover the discharges from land-based structures.
This agreement is succeeded by Protocol 1996 and successfully addressed this
previously mentioned shortcoming. In the said innovation, changes were made to
emphasise new concepts like “precautionary approach” and punishment of the
perpetrators of pollution.
In the same regard, Protocol 1996 has also changed the actual list from the
London Convention to a “reverse list.” This means that those that intend to dump
substances in the sea, these substances have to correspond to the listed
elements. If the dumped substances are not included in the list, then sanctions
will apply.
B.
International Watchdogs
As indicated in the earlier parts
of this dissertation, the performance and enforcement of environmental laws are
as important as its actual ratification. The following discussion will be
describing the organisations and international bodies that seek to carry out the
principles of the international agreements indicated above. For instance, the
United Nations Commission for Sustainable Development (UNCSD) is the sanctioned
authority by the UN to handle the implementation of the agreements ratified in
the Earth Summit in 1992. Specifically, the UNCSD is tasked to make sure
that the member countries have corresponding laws that honours the principles of
the Rio Declaration on sustainable development, which the United Nations coined
as Agenda 21.
On the other hand, the United
Nations Economic Commission for Europe (UN-ECE) also holds on the responsibility
of implementing protocols indicated in the Geneva Convention on Long-Range
Transboundary Pollution.
The UN-ECE specifically has to make sure that the eight protocols ratified in
the convention are properly followed and possess similar legislations in the
participant countries. Protocols on ground-level ozone, organic pollutants,
sulphur emissions, organic compounds, and nitrogen oxide are among those
included in the mandate of the commission.
In 1972, the United Nations
Environment Programme (UNEP) was created to help individual states to deal with
the concerns of sustainable development. According to the work of Molle, UNEP
has to carry out the following activities
“Assessment and protection of
atmosphere and terrestrial ecosystems; promotion of environmental science and
information; early warning of problems and emergency response capacity to deal
with environmental disasters and emergencies”
Moreover, it is also maintained
that countries who fail to comply with the self-enforcing requirements of the
company may be taken to the International Court of Justice. In any case, the
organisation could also act as a body that broker arrangements with countries
that are seen to closely breach the said agreement.
Aside from organisations
sanctioned by the United Nations, private organisations and civic groups tend to
heed the call and remind states and other private organisations of their
responsibilities as indicated in environmental law. One of the most noted and
well-renowned organisations are Greenpeace. According to their website,
the organisation is described as
“a global campaigning organisation
that acts to change attitudes and behaviour, to protect and conserve the
environment and to promote peace by catalysing an energy revolution to address
the number one threat facing our planet: climate change; defending our oceans by
challenging wasteful and destructive fishing, and creating a global network of
marine reserves; protecting the world’s remaining ancient forests and the
animal, plants and people that depend on them; working for disarmament and peace
by reducing dependence on finite resources and calling for the elimination of
all nuclear weapons; creating a toxic free future with safer alternatives to
hazardous chemicals in today's products and manufacturing; and porting
sustainable agriculture by encouraging socially and ecologically responsible
farming practices.”
Created in 1971, the organisation
has been fighting environmental breaches from global warming and genetic testing
to nuclear power and nature destruction. The quote above indicates that not only
does the organisation focus on abuses; it also tries its best to encourage
sustainable consumption of the natural resources. Over the years, the
organisation has acquired the favour of the public as accounts of their
extraordinary feats as well as the actual footages of “heroic” programmes
established them as the protector of nature and mother earth.
This organisation in fact has
spawned numerous other organisations operating in a much smaller scale,
specifically regional and local operations. In Hong Kong, there are three
existing environmental organisations: Friends of the Earth, Green Power, and
the Conservancy Association. These organisations tend to focus on
environmental education and discuss issues on conservation and policies of the
government.
C.
Criminalisation of Environmental Offences
A recent trend in the ratification
and enforcement of environmental laws is to “make the polluter pay.”
Basically, this is an element of the principle of environmental protection and
pollution control which is often misconstrued by legislators and states as they
implement these environmental laws. For instance, Adler pointed out that
“pollution control efforts should focus upon instances where an unwanted
emission causes actual harm and not on whether a company complies with a permit
or generates the right amount of waste.”
This is a classic example of the implications of misinterpretations and possible
skewed perception on how the law should be created. Pollution control should
therefore focus on the harm done instead of the compliance of those involved.
This is similarly inked with the
efforts to extensively criminalise the breach of environmental laws. In the
United States, scholars have indicated that the laws implemented in the land are
described as “over-criminalised.”
This merely points to the imposition of sanctions on the perpetrators of what
has been coined as “green collared crimes.” It has been noted in studies that
the main rationale of this criminalisation of environmental laws is to ensure
protection through deterrence.
However, the issue on imposing
such sanctions and presenting rather harsh repercussions for polluters still is
subject to debate. For instance, there have been claims as to whether deterrence
should be equated with the culpability of the offender.
Essentially, this claim covers the sentencing approaches held by courts hearing
environmental cases. The problem is that “the substantive law, however, does not
grade the offenses or otherwise make meaningful distinctions among offenders
based on culpability.”
This means that the process of sorting tends to encounter some discrepancies
depending on the level of culpability of the offenders.
In the context of the actual
sanctions, criminalising these environmental offences mentioned falls on
monetary and non-monetary sanctions.
The former includes those that involve fines and other fees for damages as seen
by the courts, the latter on the other hand includes those that involves
possible community service and even incarceration. This is rather complex on the
part of the individual states implementing these environmental laws since
“non-monetary sanctions are costly to impose.”
The issue on whether monetary sanctions will suffice as a means to actually
deter the future actions detrimental for the environment. As Babbitt and his
colleagues place it, “a harmful act will be more difficult to deter with
monetary sanctions alone when benefits to the violator are high, harm is
substantial, the probability of imposing sanctions is low, and/or the level of
violator assets is modest compared to harm done.”
D.
International Events and the Environment
International events tend to also
leave major implications on the environment. This reality has been apparent yet
has been tackled scarcely in literature. A recent article of Schmidt has
highlighted the environmental implications of major sporting events.
The article indicated that such events tend to place an immense “environmental
footprint” which essentially equates to the abuses both intentionally and
unintentionally imposed.
The study focused on events like
the Summer and Winter Olympics, Superbowl, and World Cup. He noted that the in
the 2006 Superbowl of the National Football League, the amount of carbon dioxide
emitted from transportation and use of facilities summed up to over 500 tons in
that day. The Athens Olympics in 2004 recorded 500,000 tons within its two weeks
of operations. On the other hand, the study mentioned that the World Cup
consumed three million kilowatt-hours worth of energy for every game it played
and not to mention the litter amounting to over ten tons.
Other major sporting events like
the NASCAR races in the United States have also been tackled and mentioned to
have considerably impressed a massive footprint in the environment of the US.
In this type of sport, environmental problems like noise pollution and emissions
from leaded gas are mentioned to contribute to that footprint.
However, international bodies like
the UNEP have been doing its share to deal with these issues. In the same
account, the administrative bodies that govern these events have also taken the
initiative to police their activities and minimise their impact to a particular
site. One such example is the initiative of the International Olympic Committee
(OIC) and the individual Olympic Organizing Committee (OOC) in the host
countries have maintained the principles indicated in Agenda 21 of the UN. Even
in countries like China where the 2008 Summer Olympics will be held, initiatives
towards minimising the adverse implications of pollution though information and
educational drives are implemented.
IV.Methods and Procedures
The dissertation will be using the
descriptive form of research. Basically, this form of study is based on observed
data.
(1996, 443) In this study, the assumptions and observations are to be based on
the empirical evidence regarding environmental laws and the specific actions
take in the special administrative region of Hong Kong as well as those in
Australia and China. However, there are some limitations on the use of the said
methodology. Basically, the study would not be able to make inferences on
causality.
Nevertheless, the findings will be able to create an impetus for further
research on the topic. Though there may not be any conclusive statement that
could be made on this study, the findings highlight the conditions surrounding
the existing legal regime in the management and protection of the environment in
Hong Kong. It is in these findings that the recommendations on certain
developments in the environmental laws in the region. On the other hand, the
study will primarily acquire qualitative data and analysis. This means that the
study will be employing inductive reasoning in its analysis and observation of
the data extracted from the primary sources of the study which include China and
HKSAR legislation, court decisions and case laws in Australia, and discussions
from academic and scholarly journals directly related to the topic.
V.
The Environmental Laws in Hong Kong (20)
This part of the study will be the
part where the comparison of the existing legislation on the respondents
countries of China and Australia. Basically a description of the Hong Kong
legislation will be made first and will consequently be compared to the legal
regime present in the said countries. Since the focus of this study is Hong
Kong, it is imperative to provide the governing legislation involving the
environment in the said administrative region. In the same manner, providing
such an account on this set of legislation will make research on similar laws
and case laws in the other respondent countries of China, Australia and the
United Kingdom. Specifically, the areas of concern to be covered include air
quality, noise, waste, water quality, and environmental impact assessment. To
provide a summary of the points of argument, a sub-conclusion will be given
after every end of a particular set of environmental legislation.
A.
Conditions of Air Quality in Hong Kong
The following discussions will
include the primary legislations that involve the protection of the air quality
of the special administrative region. The data below are to be based on the
actual manuscript of the legislations.
1.
Air Pollution Control Ordinance (Cap.311)
The primary legislation covering
the protection of the quality of air in Hong Kong is the Air Pollution
Control Ordinance
(Cap.311).
This law was originally enacted in 1983 to deal with emissions and other harmful
discharge in the air of HKSAR. This means that the law covers motor vehicles,
industrial and power plants, construction and the dangers of asbestos.
In the said ordinance, a set of
objectives called Air Quality Objectives (AQA) indicated in s7 and s8. The
elements of “sulphur dioxide, nitrogen dioxide, carbon monoxide, photochemical
oxidants, lead, total suspended particulates and respirable suspended
particulates” are included in the air pollutants noted as among those which the
administrative region has to deal with.
In the same regard, the ordinance
allows the authorities to bestow legal notices if they sense any breach on the
legislation. For instance, s10 of the ordinance indicates that the authorities
could give possible offenders Air Pollution Abatement Notice if any of the
stated air pollutants were detected on the “polluting activity.” On the other
hand, s30 of the ordinance provides the administrative region the authority to
give out notices to take certain actions if they find out that air pollution
results from any form of improper design or operation of their equipments.
Similarly, Asbestos Abatement Notices are also in order once the state
recognises any operation in poor from regarding asbestos removal activity as
indicated in s79 of the ordinance.
2.
Ozone Layer Protection Ordinance
In the context of ozone
protection, the special administrative region has enacted quite a few set of
laws that covers this area of environmental protection. The discussion here will
present the Ozone Layer Protection
Ordinance (Cap. 403) 1989 and Ozone Layer Protection (Controlled Refrigerants Regulation)
a)
Ozone Layer Protection
Ordinance (Cap.
403) 1989
This ordinance
makes the Vienna Convention of 1985 and
Montreal Protocol of 1987 effective under the regime of Hong Kong. This
means that Hong Kong has to comply with the obligations and responsibilities
provided by the said international treaties. Basically, this legislation
prohibits the manufacturing of any ozone depleting substances.
However, this is not an actual total ban on such items; the law also indicates
that these ozone-depleting substances are sanctioned if and only if they are to
be used primarily on academic purposes and if they are no more than 1 kilogram
in a 12-month period. In the same regard, the law also covers those who import
and export these types of substances. This means that the traffic of these
substances is also controlled by the state. In s5 of the ordinance, it calls for
the registration and the need to acquire a license to manufacture and import or
export (s4 and s6) these substances. It also indicates the monetary and
non-monetary sanctions imposed by the state. Failure to register is liable to
$25,000 fine while operating without a license or any breach of the conditions
of the license is liable to a $1,000,000 fine with a 2-year imprisonment.
In the same regard, the ordinance provides the
authorities power to enforce the said laws.
The said laws give the state authority to enter and search, and even to use
reasonable force on a person or a particular area suspected to have breached the
ordinance. In the same regard, the state is given the power to summon documents
from a person for examination and investigation as to whether it has breached
the ordinance or not. Similarly, the state is also given the power to seize
control of anything other an aircraft, vessel or vehicle. At any rate, the
ordinance gives the state the capacity to take whatever it requires to implement
these provisions within its jurisdiction.
b)
Ozone Layer Protection
(Controlled Refrigerants Regulation)
This piece of legislation is to
place a ban on the venting of “controlled refrigerants” from motor vehicles and
refrigeration equipments in the atmosphere. Basically, this law covers the
air-conditioning apparatus of motor vehicles in the region as well as
refrigeration equipment possessing over fifty kilogram of “controlled
refrigerant charge.”
Another central principle of this
legislation is to provide the region with equipment to “recover, recycle and
reclaim” these controlled refrigerants.
This also provides the Director of Environmental Protection (DEP) to decide on
which elements are to be classified as controlled refrigerants. Along with this,
another central principle of this piece of legislation is establishing a record
indicating the addition and movement of controlled refrigerants in HK.
In accordance to this, penalties and sanctions are noted in this legislation as
any form of non-compliance is detected by the government.
3.
Comparison with other countries
The following discussions will
cover similar areas of law which includes the protection of the ozone layer and
air pollution control in three countries.
a)
China
The environmental regime in
People’s Republic of China is covered by the Law on the Prevention and
Control of Air Pollution. It was ratified in September of 2000. The law
covers the demands on construction projects particularly on the emission of dust
particles and use of equipment in construction sites. In the same manner, the
laws indicate the implementation of a fee system depending on the types and
quantities of the pollutants that a particular organisation or any individual
liable for any project have produced. Along with the laws that control the
pollution from motor vehicle emission, waste gas and other offensive vapours in
the country, the state has also ratified a system that intends to eradicate any
obsolete equipment that appears to emit harmful elements in the atmosphere.
Same as with the context of Hong
Kong, the legal regime in China allows for monetary sanctions for offenders
which could amount to RMB 500,000. In the same manner, the case could also be
forwarded into criminal prosecution. This means that the legal regime in China
also allows for non-monetary sanctions in its enforcement of environmental laws.
Though there has been an incredible improvement in the sustainable management,
there have been reports indicating that a considerable backlog of cases is seen
in local governments of China.
Another impending concern in the
Chinese setting is the implementation of the 2008 Summer Olympics in Beijing. As
indicated in the literature review, such events leave a huge environmental
footprint in the host country. According to the reports of the environment
ministry in China, the state has allotted over RMB 45 billion to address the
ecological and environmental predicaments of the city and the rest of the
country. One such initiative is the attempt to increase the forested area in the
city which also includes the tree-belt that spans approximately a hundred and
twenty-five kilometres. This is to limit the number of dust storms that takes
place in the city.
b)
Australia
The legal regime implemented in
the Australian setting is covered by the
Environment Protection and Biodiversity
Conservation Act 1999.
Along with the other elements of
the environment, the said regime protects the air quality of the continent.
In this regard, this thrust has become the mandate of the
Department of the Environment and Water
Resources particularly to protect both air quality and the water resources of
the continent. In the context of the Australian implementation of protecting air
quality, their main goal is to basically protect the ozone by implementing
non-statutory initiatives like National Environment Protection Measure
which deals with quality of air as well as the standards required to meet for
fuel quality.
In the same account, the Department of the
Environment and Water Resources also covers the monitoring of air toxins that
could be add up to ozone depletion. Products that contain aerosol particulates
coming from consumer products and combustion engines are also monitored by the
department. Essentially, the enforcement of laws in the protecting the air of
Australia is based on the principles of
Montreal Protocol on Substances that
Deplete the Ozone Layer.
B.
Noise Control
The legal regime controlling the
noise of the special administrative region is divided into several distinct
laws. Essentially these laws cover traffic noise to civil aviation control
measures. Basically, these laws comprise of what is noted as statutory controls
over the environmental implications of noise in Hong Kong. The following
legislations include the Noise Control Ordinance, Civil Aviation (Aircraft
Noise) Ordinance, and Road Traffic Ordinance.
On the other hand, the Civil Aviation (Aircraft
Noise) Ordinance covers the certification of aircrafts to comply with a set of
standards.
1.
Noise Control Ordinance (Cap. 400)
The Noise Control Ordinance, which was
originally implemented in 1989, covers areas of constructions, motor vehicles
and even the operations of plants and factories in Hong Kong.
This ordinance could be deemed as the framework for all the noise control
management initiatives of the administrative region. For instance, the
provisions of this ordinance control the level of noise in the area of general
construction work.
Provision on the control of mechanical equipment as well as the manner of
carrying out construction works which creates a considerable amount of raucous.
The ordinance indicates that these rather loud construction practices are to be
carried out only within specified bounds of the stipulations.
Other construction-related activity that the
said ordinance covers is percussive piling. The ordinance states that pilling
should similarly be done within a specified time frame which is prohibited
between 7pm to 7am.
In other activities like those present in industrial and commercial
establishments, the ordinance also tries to manage such activities like
ventilation noise and other clatter coming from their operations. Failure to
comply allows the authorities to serve Noise Abatement Notices to offenders.
Other areas on which this
ordinance affects largely includes neighbourhood activities, noisy products, and
even intruder alarm systems.
In the context of neighbourhood activities, the noise control authority in this
area is the police force of the special administrative region. Basically, this
stipulation of the ordinance covers the control of noise between 11pm to 7am.
In the context of noisy products, the transfer of goods from manufacture,
importation and exportation of such materials such as percussive breakers and
air compressors are controlled by the ordinance.
The EPA and the police commissioner are the authorities who are the control
authorities of the said stipulation. In terms of the alarms system, the
ordinance limits the length of the alarm to no more than 15 minutes. In the same
regard, this applies with vehicle alarms which are expected not to sound unless
it is being tampered or in the process of being stolen.
This means the state expects the owners of the vehicle to set the alarm at the
prescribed setting by the ordinance. In the similar pattern, the length of the
alarm is expected not to last over five minutes.
2.
Civil Aviation (Aircraft Noise) Ordinance (Cap. 312)
This particularly applies to the aircrafts
intending to use the Hong Kong International Airport. The Civil Aviation
Ordinance on the other hand covers the prohibitions and rules relating to the
aircrafts coming and going in and off the special administrative region.
Particularly, the law tries to control the traffic of subsonic aircrafts or jet
planes within the air space of the region. The law particularly stipulates that
“narrow-bodied jet aircrafts” should satisfy the demands of the requirements and
noise standards of international noise control regime.
In the same regard, the ordinance only permits
such types of engine to operate within the airspace of Hong Kong to have certain
certification from the control body that manages the enforcement of these laws.
In this context, the control authority for the enforcement of this ordinance is
the Director General of the Civil Aviation in Hong Kong.
3.
Road Traffic Ordinance (Cap. 374) 1982
And lastly, Road Traffic Ordinance (Cap. 374)
1982 sanctions the police enforcement of the law relating to complaints on
noise and even traffic concerns.
This ordinance works hand-in-hand with the Noise Control Ordinance in its
demands on all vehicles in Hong Kong to register and satisfy a series of
standards geared towards the elimination of noise pollution in the region. The
control authority at this category is given to the Commissioner for Transport.
4.
Comparison with other countries
The following discussion will
present the legal regime regarding noise pollution in China and Australia.
a)
China
The Chinese legal regime on noise
pollution is covered by the Law of the People's Republic of China on
Prevention and Control of Pollution From Environmental Noise. Basically, the
law defines environmental noise as
“the sound that is emitted in the
course of industrial production, construction, transportation and social
activities and that impairs the living environment of the neighbourhood.”
The said law covers the
“supervision and administration” from industrial noise, construction noise,
traffic noise, and even noise from social activities. Industrial noise is
defined as “the sound that is emitted by the permanent equipment used in the
course of industrial production.”
This definition is closely intimated to the construction noise which is defined
as “the sound that is emitted by the permanent equipment used in the course of
industrial production.”
On the other hand traffic noise is defined as “of transport as motor vehicles,
locomotives, motor vessels and aircraft in motion.”
Noise of Social Activities tends to cover those “sound
that is emitted by man-conducted activities.”
In any case, these three types of noise as defined in the context of Chinese law
are classified as pollution provided that it “impairs the living environment of
the neighbourhood.”
As observed in the copy of the
Law of the People's Republic of China on Prevention and Control of Pollution
from Environmental Noise, it is apparent that the context of the law is more
on protection and deterrence on individuals or organisations in engaging in any
action that “impairs the living environment of the neighbourhood.”
However, unlike in the case of Hong Kong, the legal regime in China does not
have any legislation in place regarding Aircraft Noise or any that point to
civil aviation.
b)
Australia
In the context of noise pollution,
the legal regime in Australia is covered by the Environment Protection Act
1997. Like those in Hong Kong, the definition of noise pollution indicates a
possibility to cause environmental harm according to the Australian legislation.
Basically, the legal enforcement of the prevention of noise pollution in
Australia covers both residential and non-residential zones. The law indicates
certain maximum levels of noise as per zone.
The problem with the said
Australian legislation, it does not cover certain elements in the environment
that generates noise.
Such elements include trains, planes, motor vehicles, and even animals. Along
with these exceptions, the law also doesn’t protect the public from the noise
emitted by construction and maintenance of roads.
On the other hand, certain
elements that have been plainly stated to be prohibited to emit noise could do
otherwise and carry on provided that they procure a permit. Such elements or
events include concerts and motor racing. This implies that environmental
authorisations could also be procured to allow such leisure activities for a
fee.
Treatment of breaches and prosecution falls on the responsibility of the
Environment Protection Agency (EPA). However, for them to render any initiative
to consider the said breach, one must first file a complaint. Upon which, the
EPA is allowed to issue a notice with a consequent on-the-spot fine to the
offender.
C.
Wastes Management
1.
Waste Disposal Ordinance (Cap. 354)
The Waste Disposal Ordinance
(Cap. 354)
is the foundation of the waste
management regime in Hong Kong.
This was initially enacted in 1980 and was subjected to at least eight
amendments since. The amendments constitute simple control of livestock to more
complex compliance of international laws enacted in the Basel Convention.
Essentially, the Basel Convention
calls for the prohibition of importing or exporting hazardous wastes within
states. The ordinance thus makes the principles of the Basel Convention legally
binding in Hong Kong. Specifically, it prohibits the special administrative
region or any organisation that operates in its territory to carry out
transboundary shipment of hazardous wastes.
Basically, this is the basis of
all the rest of the waste management legislation in effect in the special
administrative region. The ordinance covers the approval of licences of those
who seek to collection and operation of disposal facilities of waste in the
special administrative region. Other areas covered by the ordinance are the
control of livestock keeping in the urban areas as well as the management and
disposal of their waste products.
In the same manner, the control of chemical waste along with the dumping of such
elements is also covered by the ordinance.
2.
Comparison with other countries
The following discussion will
present the legal regime regarding waste management in China and Australia.
a)
China
The that governs the legal regime
of waste management in China is Law
of the People's Republic of China on the Prevention and Control of Environmental
Pollution by Solid Waste.
In 1995, the country was able to ratify this piece of
legislation and gained control to the waste management of the country,
particularly with the management of hazardous wastes in the country. The law
places legal responsibility on the protection of the environment. Specifically,
it indicated that
“Any unit and individual shall have the
obligation to protect the environment and shall have the right to report or file
charges against units or individuals that cause environmental pollution by solid
waste.”
Unlike the legal regime in Hong
Kong, waste management in the context of China only focuses on solid wastes.
Basically, there is an absence of any provision pertaining to livestock or any
animal wastes. However, there are similar elements in which the legal regime in
Hong Kong and China do possess. Basically, the compliance on the international
agreement held in the Basel Convention is shared by the government in the
mainland and the special administrative region. There is a provision in the
Chinese legislation that prohibits the importation of hazardous solid wastes for
the purposes of serving as raw materials.
The problem arises when any prohibition against the export of such hazardous
solid waste is not seen in the legislation. This gives due anxiety with the rest
of the Chinese territory and even the rest of the world as the Chinese
government eliminates any legal responsibility on itself in dumping hazardous
solid wastes to the territories of other states.
b)
Australia
The context of waste management
protection in Australia is covered by the
Hazardous Waste (Regulation of Exports and
Imports) Act 1989. This piece of
legislation is also implemented by the
Department of the Environment and
Water Resources. Similar to the law implemented in Hong Kong, the Act is
ratified in order to give credence to the Basel Convention. Thus, the said act
is the governing legislation that regulates the import and export of hazardous
wastes in Australia. Unlike in China, the Australian setting allows for the use
of hazardous substances for raw materials used in manufacturing products in the
continent.
The original legislation that governs this area of environmental law (1989 Act)
covered only those that are considered wastes without value. The amended
legislation (1996 Act) however added those that could be recycled and
recovered.
D.
Water Quality
1.
Water Pollution Control Ordinance (Cap. 358)
Hong Kong is governed by the
Water Pollution Control Ordinance
(Cap. 358)
which was enacted in 1980. This is
the foundation of the regime protecting water control zones (WCZs) within the
boundaries of the administrative region.
This means that the law covers discharges on these WCZs, specifically of oil and
other hazardous substances from vessels. This law was amended twice, 1990 and
1993, which added provisions like the removal of exemptions as well as the
increase in regulation in water waste coming from commercial and industrial
sectors of Hong Kong.
The core principle of the
ordinance is that every sewage line in Hong Kong is required to have an effluent
discharge licence. In doing so, the authorities of Hong Kong allows some level
of management in the context of the physical, chemical, and microbial quality of
the discharges of a particular company. Basically, this helps eliminate the
possibility of harmful discharges to pollute the water systems of Hong Kong,
both inland and marine.
This is similarly true in the case
of sewage connections. To this end, the said ordinance intends to create a
primary sewer line that would centralise the individual sewers of the Hong Kong
dwellers. This also includes the intent of the state to ask the owners with
redundant and disused sewage treatment facilities and septic tanks to demolish
it and create a direct connection to the central sewage system.
2.
Comparison with other countries
The following discussion will
present the legal regime regarding water quality in China and Australia.
a)
China
The legal regime in China
protecting its water sources are separated by different pieces of legislation.
The legislation protecting the water zones is covered by the
Water Law of the People's Republic of China
which was ratified with a Presidential Decree in 1988. The said law focuses on
the protection of the water sources of the republic. Water resources are defined
as
“… surface water and groundwater.
This law must be observed in developing, utilizing, protecting and managing
water resources and in controlling water disasters within the territory of the
People's Republic of China.”
Essentially, this piece of
legislation tackles the “developing,
utilizing, protecting and managing sea water”
resources under the jurisdiction of the Chinese government.
On the other hand the legislation
protecting the water sources from pollution is seen in
Law of the People's Republic of China on
Prevention and Control of Water Pollution.
Basically, this piece of legislation intends to
“preventing and controlling water pollution,
protecting and improving the environment, safeguarding human health, ensuring
effective utilization of water resources and promoting progress of the socialist
modernization drive.”
In connection with the laws in
Hong Kong, the said legislation also covers the management of the sewage
systems. Specifically, the provision states that the sewage system should be
treated centrally to enable the state to monitor its discharge.
This is particularly seen implemented in urban sewages. In the same regard, any
construction of a facility or structure that discharges sewage are also require
the permission of the state. It specifically states that
“New construction projects and expansion or
reconstruction projects and other installations on water that directly or
indirectly discharge pollutants to water bodies shall be subject to relevant
State regulations governing environmental protection for such projects.”
This complements the Water
Pollution Control Ordinance
(Cap. 358)
enacted and implemented in the
HKSAR.
E.
Environmental Impact Assessment
1.
Environmental Impact Assessment Ordinance (Cap. 499)
In line with the purposes of
avoiding further adverse implications in the environment, Hong Kong has also
enacted a law requiring any project carried out in the administrative region to
go through an environmental impact assessment process (EIA) and acquire permits
before commencing. This is embodied in the Environmental Impact Assessment
Ordinance (Cap. 499).
This serves to protect the environment from any adverse effects of the project
in the future.
Related legislation on
environmental impact assessment includes the Environmental Impact Assessment
(Appeal Board) Regulation, and Environmental Impact Assessment (Fees)
Regulation. The Environmental Impact Assessment (Appeal Board) Regulation
establishes the body that would hear the appeals of those offenders described
under the ordinance. This also establishes the key requirement and processes
implemented in the Appeal Board. On the other hand, the Environmental Impact
Assessment (Fees) Regulation establishes the application of fees required in
the submissions made to comply with the prerequisites of the EIAO (Cap. 499)
2.
Comparison with other countries
a)
China
In the context of China, the State
Environmental Protection Administration (SEPA) is the authority of control in
the implementation of the Environmental Impact Assessment Law (EIA Law).
The imposition of the law intends to monitor the environmental implications of
any plan or construction project in the jurisdiction of China though analysis,
projection, and evaluation. Specifically, the law covers both construction plans
and development plans. In the context of development plans, the environmental
impact assessments on the use of land, the regional construction, as well as the
plan itself is required by the EIA law. On the part of Construction projects,
there are three levels on which they have to report to the State Environmental
Protection Administration (SEPA).
When the said authority finds flaws after the assessment of the project, the
authority is allowed to put an order to cease the construction project until it
satisfies the requirements of SEPA.
b)
Australia
c)
United Kingdom
