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Source: China Lawyers Network. Abstract: On the morning of December 26, the Supreme People’s Court and the Supreme People’s Procuratorate issued judicial interpretations regarding the handling of criminal cases related to environmental pollution. Taking into account the characteristics of current environmental pollution crimes as well as the issues identified in judicial practice, these interpretations provide comprehensive and systematic guidelines on matters such as the specific criteria for determining guilt and sentencing in such crimes. In light of recent developments... On the morning of December 26, the Supreme People’s Court and the Supreme People’s Procuratorate issued judicial interpretations regarding the handling of criminal cases related to environmental pollution. These interpretations address, in a comprehensive and systematic manner, issues such as the specific criteria for determining guilt and sentencing in such crimes, taking into account the characteristics of current environmental pollution crimes as well as the problems identified in judicial practice. (EHS.CN) In response to some new trends and issues that have emerged in environmental pollution crimes in recent years, such as the industrialization trend of crimes related to hazardous waste, the difficulties in collecting evidence for air pollution crimes, and controversies surrounding criminal regulations regarding the alteration or falsification of automatic monitoring data and the disruption of environmental quality monitoring systems, the explanations clarify the standards for convicting and sentencing related crimes. Refining the criteria for criminalizing environmental pollution caused by heavy metals The “Interpretation” specifies the exact standards for convicting and sentencing those guilty of environmental pollution crimes, thereby refining the criteria for holding such acts criminal when heavy metals cause environmental pollution. Given the significant differences in the degree of toxicity among various heavy metals, and after comprehensive consideration from environmental and environmental medical perspectives, the Interpretation stipulates that “discharging, dumping, or disposing of pollutants containing lead, mercury, cadmium, chromium, arsenic, thallium, or antimony in quantities exceeding three times the national or local pollutant discharge standards,” or “discharging, dumping, or disposing of pollutants containing nickel, copper, zinc, silver, vanadium, manganese, or cobalt in quantities exceeding ten times the national or local pollutant discharge standards” shall be deemed as “seriously polluting the environment.” The “Interpretation” adds “reducing the expenditures on operating pollution prevention facilities in violation of the law by more than 1 million yuan” and “illicit gains of more than 300,000 yuan” as circumstances constituting “severe environmental pollution”. A relevant official from the Supreme People’s Court stated that the entities and individuals who commit environmental pollution crimes do so in order to gain illegal benefits. By introducing these two additional provisions, such actions will result in losses for the perpetrators, thereby enabling more targeted punishment and prevention of such crimes. Factors causing ecological and environmental damage are taken into consideration. The Interpretation also includes factors of ecological and environmental damage in its considerations, and improves the criteria for determining \"especially serious consequences\" as an aggravating factor in the crime of environmental pollution. Clarify the issue of criminal liability for fraud in environmental impact assessment. Environmental impact assessment plays a crucial role in preventing adverse environmental effects resulting from the implementation of planning and construction projects, as well as in promoting coordinated development of the economy, society, and the environment. However, in practice, instances of falsification or gross inaccuracy in environmental impact assessments occur from time to time. To effectively prevent crimes related to environmental pollution at the source, the judicial interpretation clarifies the issue of holding individuals criminally liable for falsifying environmental impact assessments. The Interpretation stipulates that environmental impact assessment agencies or their staff who intentionally provide false environmental impact assessment documents, if the circumstances are serious, or who, due to gross negligence, issue environmental impact assessment documents containing significant inaccuracies that result in serious consequences, shall be convicted and punished for the crime of providing false certification documents or the crime of issuing certification documents with significant inaccuracies. Clearly define the qualitative aspects of environmental quality monitoring systems. Environmental monitoring data serves as an important foundation for environmental decision-making. In some cases, the environmental quality monitoring systems are damaged, which affects their proper operation, deceives the public, undermines their credibility, and even leads to erroneous environmental decisions, resulting in serious consequences. The \"Interpretation\" stipulates that those who, in violation of relevant regulations, carry out the following actions against environmental quality monitoring systems, or force, instruct, or urge others to carry out such actions, shall be convicted of the crime of destroying computer information systems: (1) altering parameters or monitoring data; (2) interfering with sampling, resulting in severe distortion of the monitoring data; (3) other actions that damage environmental quality monitoring systems. Emphasis on punishing fraud in automatic monitoring data The “Interpretation” also places emphasis on punishing acts of fraud involving automatic monitoring data. Yan Maokun, Director of the Research Office of the Supreme People’s Court: The Interpretation stipulates that if key polluting enterprises alter or fabricate automatic monitoring data, or interfere with such monitoring facilities, thereby emitting pollutants such as chemical oxygen demand, ammonia nitrogen, sulfur dioxide, and nitrogen oxides, it shall be deemed as \"severe environmental pollution\". This new regulation is of great significance for effectively preventing and punishing crimes related to air pollution, a persistent problem that receives significant attention from all sectors of society. It specifies the circumstances under which heavier penalties shall be imposed for environmental pollution crimes. In addition, the Interpretation also outlines several such circumstances. The Interpretation stipulates that in cases of environmental pollution crimes, heavier penalties shall be imposed if any of the following circumstances exist: (1) Obstructing environmental supervision and inspection or investigations into sudden environmental incidents, without it constituting crimes such as obstruction of official duties; (2) Discharging, dumping, or disposing of radioactive waste, waste containing pathogens of infectious diseases, toxic substances, or other harmful substances in or near densely populated areas such as hospitals, schools, and residential communities, in violation of relevant regulations; (3) Discharging, dumping, or disposing of radioactive waste, waste containing pathogens of infectious diseases, toxic substances, or other harmful substances during periods of heavy pollution warnings, while dealing with sudden environmental incidents, or while under orders to make corrections within a specified time frame, in violation of relevant regulations; (4) Enterprises holding permits for handling hazardous waste discharging, dumping, or disposing of radioactive waste, waste containing pathogens of infectious diseases, toxic substances, or other harmful substances, in violation of relevant regulations. Yan Maokun, Director of the Research Office of the Supreme People’s Court: To fully leverage the deterrent and educational functions of criminal law and encourage those who cause environmental pollution to take timely measures to reduce and compensate for the damage caused, Article 5 of the Interpretation stipulates that those who commit environmental pollution crimes but take prompt action to prevent further damage, eliminate the pollution, fully compensate for the losses, and actively restore the ecological environment may be given a more lenient treatment. The Interpretation also specifies the exact criteria for sentencing in cases of illegally disposing of imported solid waste, illegally importing solid waste, and negligence in environmental supervision, and clarifies the issues related to crimes involving \"toxic substances\" and their identification. Yan Maokun, Director of the Research Office of the Supreme People’s Court, provided an update on the \"Interpretations of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases Involving Environmental Pollution\" (hereinafter referred to as the \"Interpretations\"). I. Background for the formulation of the “Interpretation” Protecting the environment is a fundamental national policy of our country and an important component of the sustainable development strategy. Since the Party’s * era, **** has repeatedly emphasized that \"lucid waters and lush mountains are invaluable assets\" and that the ecological environment should be protected as carefully as our eyes, and treated with the same care as human life. A series of important statements have been put forward, providing guidance for addressing environmental issues in the coming period. The Fifth Plenary Session of the 18th Central Committee of the Party put forward the new development philosophy of innovation, coordination, green development, openness, and sharing. The 13th Five-Year Plan, approved at the Fourth Plenary Session of the 12th Central Committee, is guided by the concept of green development, setting as a goal the overall improvement of environmental quality. Following the strictest systems for farmland protection and water resource protection, implementing the strictest environmental protection system has been proposed and has become a social consensus. The judiciary is an important means of protecting the environment, playing an irreplaceable role in advancing the modernization of the environmental governance system. In order to punish crimes related to environmental pollution in accordance with the law, in June 2013, the Supreme People’s Court and the Supreme People’s Procuratorate jointly issued the \"Interpretations on Several Issues Concerning the Application of Law in Handling Criminal Cases of Environmental Pollution\" (Legal Interpretation [2013] No. 15, hereinafter referred to as the \"2013 Interpretations\"), which clarified issues such as the criteria for convicting and sentencing those guilty of environmental pollution crimes. Since the implementation of the 2013 Interpretation, public security, procuratorial, judicial authorities at all levels, as well as environmental protection departments, have investigated and prosecuted environmental pollution crimes in accordance with the law, intensified penalties, and achieved good results. From July 2013 to October 2016, courts across the country accepted 4,636 new criminal cases involving environmental pollution, illegal disposal of imported solid waste, and dereliction of duty in environmental supervision. Of these, 4,250 cases were concluded, with 6,439 individuals receiving final judgments. On average, over 1,400 cases were accepted each year, resulting in final judgments for more than 1,900 individuals. Compared to the average of twenty to thirty cases per year in the past, the number of criminal cases related to environmental pollution has increased significantly. This has played a very important role in strengthening environmental judicial protection and advancing the construction of an ecological civilization. Meanwhile, in recent years, new situations and problems have emerged in environmental pollution crimes. For example, crimes related to hazardous waste show signs of becoming more industrialized; it is difficult to collect evidence for air pollution crimes; there are disputes regarding criminal regulations concerning the alteration or falsification of automatic monitoring data and the destruction of environmental quality monitoring systems, and so on. In light of this, in order to effectively address practical issues and further strengthen judicial protection of the ecological environment, the Supreme People’s Court, in conjunction with the Supreme People’s Procuratorate, and with the strong support of relevant departments such as the Ministry of Public Security and the Ministry of Environmental Protection, has formulated new \"Interpretations on Several Issues Concerning the Application of Law in Handling Criminal Cases of Environmental Pollution\" following thorough investigations and research as well as extensive solicitation of opinions, thereby making comprehensive revisions and improvements to the \"2013 Interpretations\". This is the third time that the highest judicial authority has issued specific judicial interpretations regarding environmental pollution crimes since the implementation of the Criminal Law in 1997, and it comes just about three and a half years after the issuance of the 2013 Interpretation, which fully reflects the high level of emphasis placed by the highest judicial authority on environmental protection. We believe that the issuance of the new Interpretations on Several Issues Concerning the Application of Law in Handling Criminal Cases of Environmental Pollution will play an important role in further enhancing the effectiveness of punishing environmental pollution crimes in accordance with the law, strengthening judicial protection for the environment, effectively safeguarding the ecological environment, and advancing the construction of a Beautiful China. II. Main Contents of the “Interpretation” The “Interpretation” takes into account the characteristics of current environmental pollution crimes as well as the issues arising from judicial practice. In accordance with the relevant provisions of the Criminal Law and the Criminal Procedure Law, it provides comprehensive and systematic regulations through 18 articles on matters such as the specific criteria for convicting and sentencing related crimes. It mainly includes the following 10 aspects: (1) Specific criteria for convicting and sentencing crimes of environmental pollution have been established. The crime of polluting the environment is the fundamental offense under environmental pollution crimes, with the element constituting the offense being \"severe pollution of the environment\". The 2013 Interpretation specifies fourteen specific circumstances for determining \"severe environmental pollution\". Article 1 of the “Interpretation” is incorporated and improved in light of judicial practice: first, the criteria for criminalizing environmental pollution caused by heavy metals are refined. Given the significant differences in the degree of toxicity among various heavy metals, and after comprehensive consideration from environmental and environmental medical perspectives, the Interpretation stipulates that “discharging, dumping, or disposing of pollutants containing lead, mercury, cadmium, chromium, arsenic, thallium, or antimony in quantities exceeding three times the national or local pollutant discharge standards,” or “discharging, dumping, or disposing of pollutants containing nickel, copper, zinc, silver, vanadium, manganese, or cobalt in quantities exceeding ten times the national or local pollutant discharge standards” shall be deemed as “seriously polluting the environment.” Second, it emphasizes the punishment of fraud in automatic monitoring data. The Interpretation stipulates that if key polluting enterprises alter or fabricate automatic monitoring data, or interfere with such monitoring facilities, thereby emitting pollutants such as chemical oxygen demand, ammonia nitrogen, sulfur dioxide, and nitrogen oxides, it shall be deemed as \"severe environmental pollution\". This new regulation is of great significance for effectively preventing and punishing crimes related to air pollution, a persistent problem that receives significant attention from all sectors of society. Third, the situations of “reducing expenditures on the operation of pollution prevention and control facilities by more than 1 million yuan in violation of the law” and “illicit gains of more than 300,000 yuan” have been added as cases of “severe environmental pollution”. Most entities and individuals that commit environmental pollution crimes do so in order to gain illegal benefits. By introducing these two additional provisions, such actions will result in losses for the perpetrators, thereby enabling more targeted punishment and prevention of crime. Fourth, take ecological and environmental damage factors into consideration. **The \"Overall Plan for Reforming the Ecological Civilization System\" issued by the Central Committee and the State Council states: \"Strictly implement the system for compensation for ecological and environmental damage.\" Strengthen the legal responsibilities of producers regarding environmental protection and significantly increase the costs of violations. ”“For those who cause damage to the ecological environment, the amount of compensation shall be determined in accordance with the law based on factors such as the extent of the damage; those who cause serious consequences shall be held criminally liable in accordance with the law. ”In accordance with this requirement, the Interpretation explicitly specifies that “causing serious damage to the ecological environment” is one of the circumstances constituting “serious environmental pollution”. On this basis, Article 3 of the Interpretation also made corresponding improvements to the criteria for determining the aggravating consequence of “particularly serious consequences” in the crime of environmental pollution. Additional provisions state that if hazardous waste is illegally discharged, dumped, or disposed of in quantities of 100 tons or more, or if it causes particularly severe damage to the ecological environment, it shall be deemed to constitute \"particularly serious consequences\", and the offender shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, along with a fine. (II) It clarifies the specific criteria for conviction and sentencing regarding the crimes of illegally disposing of imported solid waste, illegally importing solid waste, and dereliction of duty in environmental supervision. In addition to the crime of polluting the environment, environmental pollution crimes also include offenses such as the illegal disposal of imported solid waste, the unauthorized import of solid waste, and dereliction of duty in environmental supervision. To unify the application of the law, Articles 2 and 3 of the Interpretation clarify the criteria for conviction and sentencing related to the aforementioned offenses, such as \"causing significant losses to public or private property or seriously endangering human health,\" \"causing significant losses to public or private property or resulting in serious consequences of injury or death,\" and \"especially serious consequences.\" Compared to the 2013 Interpretation, the relevant standards are more explicit and specific, and thus more operational; they reflect the spirit of strictly punishing crimes involving environmental pollution. (III) It clarifies the specific application of the criminal policy of combining leniency with severity. Article 4 of the Interpretation stipulates that in cases of environmental pollution crimes, heavier penalties shall be imposed if any of the following circumstances exist: (1) Obstructing environmental supervision and inspection or investigations into sudden environmental incidents, without it constituting crimes such as obstruction of official duties; (2) Discharging, dumping, or disposing of radioactive waste, waste containing pathogens of infectious diseases, toxic substances, or other harmful substances in or near densely populated areas such as hospitals, schools, and residential communities, in violation of relevant regulations; (3) Discharging, dumping, or disposing of radioactive waste, waste containing pathogens of infectious diseases, toxic substances, or other harmful substances during periods of heavy pollution warnings, while dealing with sudden environmental incidents, or while under orders to make corrections within a specified time frame, in violation of relevant regulations; (4) Enterprises holding permits for handling hazardous waste discharging, dumping, or disposing of radioactive waste, waste containing pathogens of infectious diseases, toxic substances, or other harmful substances, in violation of relevant regulations. To fully leverage the deterrent and educational functions of criminal law and encourage those who cause environmental pollution to take timely measures to reduce and remedy the damage, Article 5 of the Interpretation stipulates that those who commit environmental pollution crimes but take prompt action to prevent further damage, eliminate pollution, fully compensate for the losses, and actively restore the ecological environment may be given a more lenient treatment. (IV) Clarified the rules for handling joint crimes of environmental pollution. In practice, some entities and individuals illegally discharge, dump, or dispose of hazardous waste in order to reduce production costs and gain illegal profits. Moreover, the perpetrators have a clear division of labor and cooperate with each other, showing distinct signs of industrialization; they have even established a “one-stop” operation. For such crimes, it is necessary not only to punish those who directly pollute the environment in accordance with the law, but also to address the root causes and those behind such actions, and to hold the providers of hazardous waste accountable under the law. To this end, Article 7 of the Interpretation reiterates the rules for dealing with joint crimes related to environmental pollution crimes, stipulating that if one knowingly provides hazardous waste to another person who does not possess a license to handle such waste, or entrusts that person with the collection, storage, utilization, or disposal of hazardous waste, thereby causing serious environmental pollution, it shall be treated as a joint crime. (5) Clarified the principles for handling concurrent environmental pollution crimes. Environmental pollution crimes may violate multiple offenses at the same time. For example, engaging in activities such as collecting, storing, utilizing, or disposing of hazardous waste without a business license, and causing serious environmental pollution, may constitute both the crime of environmental pollution and the crime of illegal business operations. Discharging, dumping, or disposing of pollutants containing toxic, radioactive, or infectious agents in violation of regulations may result in charges for both environmental pollution and the crime of releasing hazardous substances. To further strengthen the punishment for crimes related to environmental pollution, Articles 6 and 8 of the Interpretation explicitly stipulate the \"principle of imposing the heavier penalty\", which means that when a person commits both the crime of environmental pollution and related crimes such as the crime of illegal business operations or the crime of releasing hazardous substances, they shall be convicted and punished in accordance with the provisions for the heavier penalty. (VI) It clarifies the issue of criminal liability for fraud in environmental impact assessment. Environmental impact assessment plays a crucial role in preventing adverse environmental effects resulting from the implementation of planning and construction projects, and in promoting coordinated development of the economy, society, and the environment. However, in practice, fraud or serious inaccuracies in environmental impact assessments occur from time to time. In order to effectively prevent environmental pollution crimes at the source, Article 9 of the Interpretation stipulates that if an environmental impact assessment agency or its personnel intentionally provide false environmental impact assessment documents, and the circumstances are serious; or if they act with gross negligence and the environmental impact assessment documents they produce contain significant inaccuracies that lead to serious consequences, they shall be convicted and punished for the crime of providing false certification documents or for the crime of issuing certification documents with significant inaccuracies. (7) Clarified the characterization of acts that undermine the environmental quality monitoring system and related issues. Environmental monitoring data is an important basis for environmental decision-making. In some cases, the environmental quality monitoring systems are damaged, which affects their proper operation, deceives the public, undermines their credibility, and even leads to erroneous environmental decisions, resulting in serious consequences. In light of this, Article 10 of the **Interpretation** stipulates that those who violate relevant provisions by carrying out the following acts against environmental quality monitoring systems, or by forcing, instigating, or ordering others to carry out such acts, shall be convicted of the crime of destroying computer information systems: (1) altering parameters or monitoring data; (2) interfering with sampling, thereby causing serious distortion of the monitoring data; (3) other acts that damage environmental quality monitoring systems. Those who are responsible for the maintenance and operation of environmental monitoring facilities and commit or participate in acts such as altering or fabricating automatic monitoring data, interfering with such monitoring facilities, or damaging environmental quality monitoring systems shall be given a heavier punishment. (8) It clarifies the criteria for conviction and sentencing regarding crimes related to environmental pollution committed by entities. When entities commit crimes related to environmental pollution, they often cause greater harm to society, and should be punished more severely. Article 11 of the Interpretation clearly stipulates that for crimes related to environmental pollution committed by entities, the same conviction and sentencing standards as those applicable to individual crimes shall be applied. (IX) Clarified the scope and determination of “toxic substances”. Article 15 of the Interpretation explicitly includes hazardous waste, persistent organic pollutants, pollutants containing heavy metals, and other toxic substances that may pollute the environment under the category of “toxic substances”. To facilitate the accurate identification of hazardous waste and its quantity in judicial practice, Article 13 of the Interpretation stipulates that for the wastes listed in the **Hazardous Waste Catalogue**, such identification can be made based on evidence such as the origin of the substances involved, the processes by which they were generated, the defendant’s statements, witness testimony, and environmental impact assessment documents that have been approved or filed. Written opinions issued by environmental protection authorities and public security agencies can also be taken into account. As for the quantity of hazardous waste, it can be determined by considering factors such as the defendant’s statements, the production processes and material/energy consumption patterns of the enterprise involved, as well as the environmental impact assessment documents that have been approved or filed. (10) Clarified the admissibility of monitoring data as evidence. To strengthen the effective connection between administrative law enforcement in environmental protection and criminal justice and to align the understanding of relevant departments, Article 12 of the Interpretation stipulates, in accordance with the relevant provisions of the Criminal Procedure Law, that the monitoring data collected by environmental protection authorities and their affiliated monitoring agencies during administrative law enforcement processes can be used as evidence in criminal proceedings. The data obtained from testing pollutant samples, carried out by public security agencies either on their own or in conjunction with environmental protection authorities, can also be used as evidence in criminal proceedings.