Special Report – GBA and the case for legal synchronization

Experts call for the “creation of a mechanism of legal cooperation in environmental governance” and  “collaborative environmental governance” in the Greater Bay Area

MB September 2021 Special Report | Green Macau

“On the other hand, the O3 pollution in this region has been worsening year by year, which is widely affecting the air quality and residents’ health in the Guangdong-Hong Kong-Macao Greater Bay Area”.  The assessment is included in the 2020 Report on the State of the Environment of Macau published by the  Environmental Protection Bureau (DPSA, the acronym in Portuguese).

In face of this, DSPA recommends that studies be carried out on the emission and regulation of volatile organic compounds (VOCs) and continues to insist on constant inspection of gasoline vapour recovery at filling stations, but Macau alone can solve nothing.

And Macau’s future direction will be shaped by the GBA development plan in all domains, the environment included.

The problem in this area, as in others, is how to reconcile three different legal systems, especially those in the Mainland and Macau with that of Hong Kong, all of them based on very different models.

“The coexistence of the three legal systems implies that the environmental protection laws of each region govern only the respective region, with no effect on the other regions,” according to the most complete study on the subject, published in Macau by Feng Zehua and Zhan Pengwei.

The two Chinese academics add, “Thus, regarding issues related to the governance of the land and hydrographic basins, joint governance of coastal and offshore territories and joint governance of the environmental atmosphere, due to the jurisdiction limits of the respective environmental protection laws it is not possible to efficiently achieve the expected objectives of joint governance.”

Feng and Zhan list several examples: firstly, “today the severe pollution of the waters surrounding Hong Kong and Macau have to do with daily industrial pollution from the nine cities in Guangdong that lie upstream, so the separate application of laws in these three regions undermines joint governance on environmental issues affecting the different cities.”

“The coexistence of three legal systems is a unique feature of the GBA, but it is also an obstacle that must be overcome in this type of cooperation, particularly with regard to environmental governance” – Feng Zehua and Zhan Pengwei

Second, the authors state that “differences regarding the enforcement of laws governing ecological and environmental issues is one of the indicators of the social responsibility assumed by the governments of Hong Kong and Macau towards their citizens,” but – they emphasize – “in the case of the nine cities of Guangdong, under the direction of the Central Government, the focus is always placed on the promotion of economic development, ignoring the importance of protecting the environment, which results in different environmental protection measures being adopted by the Public Administration.”

Furthermore, regarding differences in the legal sphere, according to Feng Zehua and Zhan Pengwei there are non-governmental organizations in Hong Kong and Macau that can bring legal action in the public interest in favour of environmental protection, while in the nine cities in Guangdong only prosecutors can bring lawsuits in the public administrative interest with regard to the environment, which affects the articulation between the laws of the three regions jointly governing the same issue.

“In short,” they conclude, “the coexistence of three legal systems is a unique feature of the GBA, but it is also an obstacle that must be overcome in this type of cooperation, particularly with regard to environmental governance.”

Both authors show concern over the problem “how it will be possible to resolve the differences resulting from the inequalities of the legal positions of the cities included in the GBA in the short term,” and therefore propose “the creation of a mechanism of legal cooperation in the environmental governance of the GBA.”

Another Mainland scholar proposes a solution with points of contact: “collaborative environmental governance” is the proposal of Ying Ren of the Green Development Law Research Centre, Guangdong University of Foreign Studies.

Mr Ren agrees with “the legal problems existing in the field of environmental supervision” and therefore “puts forward countermeasures and suggestions to further improve the supporting mechanism of environmental supervision in the Guangdong-Hong Kong-Macau Greater Bay Area under the environmental protection law.”

According to Ying Ren, “taking up environmental supervision” must be the starting point to “comprehensively improving the systematic guarantee of in-depth cooperation among Guangdong, Hong Kong and Macau.”

Its core issues include two aspects. One “is exploring the innovation of a collaborative governance system with environmental supervision as the starting point. The other is the dynamic balance between the right to development and the protection of environmental rights.”

Cooperation “has continued to be deepened”

The DSPA’s response to Macau Business‘s question on coordination mechanisms within the GBA is laconic, stating only that, based on the Outline Development Plan for the Guangdong-Hong Kong-Macau Greater Bay Area, “the cooperation in the field of ecological protection between Guangdong-Hong Kong-Macau has continued to be deepened, and exchanges and cooperation in various aspects have been strengthened, joint prevention and treatment has been promoted, and they are working with a commitment to improving environmental quality at the regional level.”

An example of this cooperation is the Guangdong-Hong Kong-Macau Pearl River Delta Regional Air Quality Monitoring Network, comprising 23 air monitoring stations located in Guangdong Province, Hong Kong and Macau designed to monitor six major air pollutants: SO2 (sulfur dioxide), NO2 (nitrogen dioxide), O3 (ozone), RSP (Respirable Suspended Particulates), FSP (Fine Suspended Particulates) and CO (carbon monoxide).

The network publishes annual reports on the monitoring results and on long-term pollution trends of the PRD as well as quarterly statistical monitoring results.

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