Faculty of Law, Universitas Lampung, Bandar Lampung, Indonesia.
http://jurnal.fh.unila.ac.id/index.php/aelr P-ISSN: 2723-2484
E-ISSN: 2745-9330
Control Air Pollution to The Sustainable Development Goals Vietnam Perspective
Le Thi Thao 1, Phan Vinh Tuan Anh 2
1University of Law, Hue University, Vietnam E-mail: [email protected] or [email protected]
2 University of Law, Hue University, Vietnam E-mail: [email protected]
Article’s Information Abstract
keywords:
Air Pollution, Control, Sustainable Development, Vietnam.
DOI :
https://doi.org/10.25041/aelr.v4i1.2860
The trend of globalization has brought great opportunities, creating favorable conditions for all countries in the world to promote and successfully implement the socio-economic growth goals set out.
However, it also poses many challenges in protecting and preserving the natural living environment, which naturally plays the role of external conditions to create and maintain the life and development of humans and creatures. The process of industrialization and modernization has been strongly promoted, leading to a severe decline in the function and usefulness of environmental components in cities around the world and Vietnam. Many countries have taken systematic regulatory actions against air pollution. The method used in this research is the normative juridical method. The normative juridical method is a method using secondary data such as the law and regulations in force in Vietnam, especially those related to air pollution and suitable developments. The authors clarify the point of view on the current state of Vietnamese legislation on air pollution control.
Existing issues in the polluted-air controlling policy are clarified. The study's results so that improving the law on control, management, technical regulations on air pollution control, responsibilities of relevant agencies and sanctions for polluting acts proposed Submitted: Jan 11, 2023; Reviewed: Feb 16, 2023; Accepted: Mar 03, 2023
air pollution in order to prevent and limit “barriers”
towards the goal of sustainable development.
A. Introduction
Air pollution not only takes years from people’s lives, but it also greatly affects the quality of life while they’re still living.1 The process of industrialization and modernization has been strongly promoted, resulting in a severe decline in the function and usefulness of environmental components, of which the quality of the atmosphere is one of the current problems in the cities in the world and Vietnam. From smog hanging over cities to smoke inside the home, air pollution poses a major threat to health across the globe. Almost all of the global population (99%) are exposed to air pollution levels that put them at increased risk for diseases, including heart disease, stroke, chronic obstructive pulmonary disease, cancer and pneumonia. World Health Organization (WHO) monitors the exposure levels and health impacts (i.e., deaths, DALYs-Disability Adjusted Life Year) of air pollution at the national, regional and global levels from ambient (outdoor) and household air pollution. Such estimates are used for official reporting like the world health statistics and the Sustainable Development Goals (SDG).2
The heart of sustainable development lies in the health and well-being of people and our planet, which means air pollution, the deaths and disabilities it causes and its close links to climate change are a huge threat to delivering on the vision of a better world. Air pollution is also related to medical expenses (SDG1), energy (SDG7), and cities (SDG11). Additionally, the pathway to achieving other Sustainable Development Goals (SDGs), such as sustainable production and consumption (SDG12), also contributes to air pollution-related targets. The integrated nature of the 2030 agenda for the 17 SDGs calls for a systematic analysis of the trade-offs and synergies between air pollution and many other goals and targets. The topics of this Special Issue include but are not limited to the following:
1. Is the world on track to achieve the air pollution-related SDGs and targets?
2. What are the roles of different policies in the future development of air pollution?
3. What are the trade-offs and synergies between air pollution-related SDG targets and other SDGs?
4. What is the best way to achieve multiple SDGs in developing countries?3
According to data from the Ministry of Natural Resources and Environment, the quality of the air environment components in Vietnam in the period 2016-2020 is assessed to be suffering from negative impacts. The level of air pollution tends to increase in the Northern region during 2017-2019 (peaking in 2019) and tends to slightly decrease in 2020 due to the reduction or cessation of air pollution in industrial production, construction, and traffic activities in some areas due to the heavy impact of the Covid-19 pandemic. Dust pollution, especially PM10
(Particulate Matter) and PM2.5 in big cities or industrial zones, continues to be a dilemma and poses many challenges in air quality control. The annual average value of dust parameters PM10
and PM2.5 at all automatic and continuous air environment monitoring stations in Hanoi in the
1 Hannah Ritchie and Max Roser, Air pollution, https://ourworldindata.org/air-pollution
2 World Health Organization, The Global health observatory, explore a world of health data, Air pollution data portal, https://www.who.int/data/gho/data/themes/air-pollution
3Dr. Jing Meng, Prof. Jiashuo Li, Special Issue, Air Pollution as a Threat to Sustainable Development, https://www.mdpi.com/journal/sustainability/special_issues/aptsd_ma
period of 2018-2020 exceeded the threshold of QCVN4 05:2013/BTNMT from 1.1~2.2 times, the highest recorded in 2019.5
The detrimental effects of air pollution on health have been recognized for most of the last century. Effective legislation has led to a change in the nature of the air pollutants in outdoor air in developed countries. At the same time, the combustion of raw fuels in the indoor environment remains a major health hazard in developing countries. The mechanisms of how these pollutants exert their effects are likely to differ. Still, there is emerging evidence that the toxic effects of new photochemical pollutants, such as NO2 (nitrogen dioxide), are likely to be related to infection. This review discusses the relationship between air pollution and infection and will explore some of the mechanisms of how both could act synergistically to cause respiratory illnesses, especially in exacerbating symptoms in individuals with pre-existing respiratory conditions such as asthma and chronic obstructive pulmonary disease.6
Faced with challenges in enhancing the effectiveness of air pollution management and ensuring the realization of people's rights, a legal framework has been developed. The amended Law on Environmental Protection in 2020 was introduced to replace the Law on Environmental Protection 2014, which is considered a great step forward in improving environmental management policies. The revised law is expected to realize the goal of solving the challenges of managing and controlling the quality of environmental components, including the air environment in urban areas and densely populated areas, especially in Hanoi and Ho Chi Minh city.7 According to the Law on Environmental Protection 2020, organizations, households and individuals engaged in production, business, and service activities that emit dust and emissions that have adverse impacts on the environment must be responsible for minimizing and treating them in accordance with the law (Article 12).
The management of air environment quality has been re-defined in the direction of concretizing responsibilities for agencies, including the Ministry of Natural Resources and Environment and the Provincial People's Committee (Article 14), based on closely following the contents of the air quality management plan (including the National Plan for Air Quality Management and the Provincial Air Quality Management Plan) which is prepared by specialized state management agencies (Article 13). On January 18th, 2021, the Prime Minister issued Directive No. 03/Ct-TTg on strengthening the control of air pollution, with the main content being the concretization of state management responsibilities on air quality such as the Ministry of Natural Resources and Environment, the Ministry of Transport, the Ministry of Industry and Trade, the Ministry of Construction, the Ministry of Science and Technology, the Ministry of Health, the Ministry of Finance, the Ministry of Public Security, People's Committees at all levels and relevant agencies in order to promote the realization of the overall goal identified in Decision 1973/QD-TTg approving the National Plan on Air Environment Quality Management in the period 2021-2025: “Strengthening the management of air environment quality through control of emission sources, monitoring of ambient air quality, warning and forecasting of air quality in order to improve air quality and ensure public health”.
In addition to the goal for the period 2021-2025 on strengthening air quality control, the long- term goal of environmental quality management in Vietnam has also been clearly defined
4QCVN is an acronym for "National Technical Regulation". QCVN is issued by a competent state agency to stipulate the limits of technical characteristics and require enterprises to apply in production and business activities or other socio- economic activities.
5 Ministry of Natural Resources and Environment, Report on the State of the National Environment: 2016-2020 period, Dan Tri Publishing House, 2021, p.84-92.
6 Chauhan, Anoop J.; Johnston, Sebastian L. (2003). "Air Pollution and Infection in Respiratory Illness". British Medical Bulletin. 68: 95–112. doi:10.1093/bmb/ldg022. PMID 14757711
7 Department of Legal Dissemination and Education (Ministry of Justice) – Legal Department (Ministry of Natural Resources and Environment), Introductory document of the Law on Environmental Protection 2020, May 2021, p.2-3.
through Decision No. 450/QD-TTg on Approval of the National Environmental Protection Strategy to 2030, with a vision to 2050.
Accordingly, by 2030 Vietnam will be able to prevent the situation of increasing pollution and environmental degradation; solve urgent environmental problems; step by step improve and restore environmental quality; prevent the loss of biodiversity; contribute to improving capacity to respond to climate change actively; ensure environmental security, build and develop models of circular economy, green economy, low carbon as well as achieve the country's 2030 sustainable development goals. By 2050, Vietnam's environment will be of good quality, ensuring the people's right to live in a clean and safe environment;8 biodiversity is preserved, and ecological balance is ensured; proactively respond to climate change. A society in harmony with nature, a circular economy, and a green, low-carbon economy were formed and developed toward carbon neutrality (Article 1).
Efforts to perfect and organize the implementation of legal policies on air pollution reduction are assessed as having prepared theoretical and practical foundations to solve air pollution on a large scale like inter-provincial, inter-regional, and cross-border areas; assess, monitor, and publicize information on air quality, implement remedial measures in case air quality is polluted causing impacts on community's health or promote the formulation and implementation of several feasible programs and projects to enhance the effectiveness of air environment management.9 However, besides the achieved results, the regulations on air quality management still have certain shortcomings and limitations. Specifically, the system of technical regulations on the air environment has not been fully developed and lacks specificity;
regulations on total emissions as an important criterion to evaluate emissions standards have not yet been properly legalized or unreasonable in the prosecution of legal liability for acts causing environmental pollution.
In addition, the current air pollution situation in some large cities continues occurring;
resources like organizational apparatus, human resources, and funding for implementing air quality management activities, monitoring, and publishing information on air quality are assessed as not meeting practical needs requirements. Operation and investment funds of the State for the construction, installation and maintenance of continuous automatic air monitoring stations are still inadequate, not responding to the socio-economic development speed and demand. In practice, the responsibility for managing waste sources causing air pollution in large urban areas and densely populated areas has not been clearly demarcated. Besides, the awareness of people and businesses about environmental protection is not high or the situation that development activities (construction works, traffic works) do not meet environmental requirements still occurs, which are considered as “barriers” affecting the effectiveness of controlling environmental pollution.
The novelty of the research with the practical issues described, the authors focus on clarifying the legal issues that exist in air quality control in Vietnam. On this basis, the author proposes a solution to improve the law and increase the effectiveness of applicable law in controlling air pollution in Vietnam in order to realize the requirements of the principle of sustainable development. Regulations governing the effectiveness of environmental management are also to meet sustainable development needs which are determined by social
8 The right to live in a healthy environment in Vietnam, which is enshrined in the 2013 Constitution, is essentially an expansion and concretization of people's right to life when participating in environmental legal relations according to the Universal Declaration of Human Rights: "Everyone has the right to life, liberty and the security of person." (Article 3, the Universal Declaration of Human Rights, 1948).
9 Le Hoai Nam, Strengthening control of air pollution, promoting socio-economic sustainable development, Environmental Journal No. 2/2021, p.17.
awareness or infrastructure conditions. The state must also have an investment policy in infrastructure and modern engineering to manage and protect the environment.
B. Discussion
1. Air Pollution Control and Mechanisms Affecting The Requirements of Sustainable Development
The definition of air pollution does not have its own concept but is based on a general approach to environmental pollution. Accordingly, air pollution is a legal term that refers to an inappropriate physical and chemical change of air environment components compared with environmental technical regulations and environmental standards, which cause adverse effects on human life and living things.10 Control means monitoring, checking and supervising in order to understand how things are going, predict where things are going, and whether they are going in the right direction to prevent, stop, handle, correct, put in order, do it right, well and be more effective.11 Air pollution control is an activity of state management agencies, organizations and individuals, waste source owners and other subjects in prevention and forecasting; monitor, check, monitor and detect impacts on the air environment, the current state of the air environment, the change of the air environment compared with the technical regulations on the air environment; prevent; air pollution treatment, ensuring the air environment is fresh, clean and beautiful.12 WHO data show that almost all of the global population (99%) breathe air that exceeds WHO guideline limits and contains high levels of pollutants, with low- and middle- income countries suffering from the highest exposures.13
Sustainable development is the development of the present generation without affecting the development of future generations based on a close, reasonable, and harmonious combination between economic development and society stabilization and environmental protection. The air environment is a constitutive pillar of sustainable development. Therefore, sustainable development can only be achieved when air pollution control is effective and at the same time, it will promote social development. Because for sustainable development, it is necessary to include environmental factors in the development process to ensure that the economic development process will not cause environmental pollution and degradation, including the air environment. In contrast, sustainable development also contributes to the process of environmental protection, including air pollution control. Besides being interested in proactive environmental protection, sustainable development also creates resources to promote sustainable environmental development. Therefore, controlling environmental pollution in general and the air environment in particular should be based on the principle of ensuring sustainable development.14
According to recent reports, air quality has reached “very dangerous to health” and
“dangerous to health” levels in many cities in Vietnam. Yale University has listed Vietnam in the list of 09 countries with the most polluted air in the world.15 According to a recent report by the Center for Green Innovation Development (GreenID), Hanoi had only 38 days of clean air in 2017.16 Air pollution in Vietnam is getting worse and worse, causing 50,000 deaths per
10 Nguyen Thi Thuc, Policy to manage air pollution in Vietnam, Environmental Journal 2022: Air Environment, p.27.
11 Bui Duc Hien, Law on air pollution control in Vietnam, PhD Thesis, Hanoi 2016, p.34.
12 Bui Duc Hien, Ibid, p.43
13World Health Organization, The Global health observatory, explore a world of health data, Air pollution data portal, https://www.who.int/health-topics/air-pollution#tab=tab_1
14 Bui Duc Hien, Ibid, p.47.
15 Air Quality Index, Environmental Performance, Yale University, 2014, <http://archive.epi.yale.edu/epi/issue-ranking/air- quality>, accessed on February 20th, 2023.
16 Ministry of Natural Resources and Environment, Report on the State of the National Environment, Theme: Urban Environment, Hanoi, 2016, p.52.
year.17 Besides, according to the Vietnam Business Forum (VBF), it is estimated that by 2030, the dependence on coal in the current energy development plan can affect the environment and health by up to 15 billion VND. US dollars per year.18
According to Assoc. Prof. Dr. Dinh Duc Truong - Dean of the Faculty of Environment, Climate Change and Urbanization at National Economics University - said that the main reason causes environmental pollution is the structure of the economy of Vietnam. Vietnam's economy has developed based on resource-intensive and dependent on Foreign Direct Investment (FDI) for many years. Although the use of resources for economic growth is not bad, for a long time, it was considered as a support for growth that has led to unsustainable development, not creating motivation for technological innovation and transformation to a stage of higher quality growth.
Besides, the attraction of FDI capital for economic development tends to be associated with a very high pollution level. Because the standards for environmental treatment in Vietnam are not high and strict, many foreign enterprises have moved their production and business activities to Vietnam to reduce environmental costs. Therefore, FDI projects cause a significant increase in the number of pollutants and energy consumption in Vietnam. An estimated 1%
increase in FDI will increase wastewater discharge by 1.6%, CO2 (carbon dioxide) by 2.26%, and energy consumption by 2.51%.19
According to the survey results of the National Economics University research team, air pollution is due to the current structure of Vietnam's economic growth model, which is still based on economic growth resource use and foreign direct investment (FDI). In the process of exploiting resources, our economy brings low added value and limited energy efficiency, leading to inevitable pollution.20 From an economic perspective, experts say that the causes of air pollution in Vietnam are mainly due to production and business activities such as cement production, thermal power, chemicals, mining and minerals. In addition, the development of urban areas also emits large amounts of emissions into the environment.21
According to Assoc. Pham Hong Chuong - Rector of National Economics University, commented: “The current institutional system on the air environment has not met the requirements when it lacks specific regulations, the system of standards and regulations has not met the requirements. It is actually required; the effectiveness and efficiency of policy and law enforcement are not high and lack cohesion. Despite being aware of the seriousness and proposing a number of solutions to control air pollution, the air pollution management is still inadequate and has not been solved thoroughly”.22 Assoc. Prof. Dr. Nguyen The Chinh, Director of the Institute of Strategy and Policy on Natural Resources and Environment (Ministry of Natural Resources and Environment), said that the law on air pollution control is still “vacant”. At the same time, in many countries, this country already exists this document.
In the future, Vietnam must also build a legal framework to protect the environment more specifically and effectively.23
17 Nguyen The Chinh, Emission management policy to reduce air pollution in Vietnam, Environmental Journal No. 6/2022, p.21.
18 Vietnam Business Forum, 2016, Plan for Energy Made in Vietnam, https://asiafoundation.org/wp- content/uploads/2020/02/Made-in-Vietnam-Energy-Plan-2.0_VN. pdf , p.3.
19 Nguyen The Chinh, Ibid.
20 Vo Van Loi, Air pollution - A major threat to health and the global economy, Environmental Journal No. 8, 2020, p.61.
21 Thanh Hoa, Limiting economic damage from air pollution, <https://thoibaotinhdoanh.vn/viet-nam/han-che-ton-hai-king-te- tu-o-nhiem-khong-khi-1064693 .html>, last accessed on February 19, 2023.
22 Thanh Hoa, Ibid.
23 Do Nam Thang, Needing drastic solutions to deal with air pollution in some urban areas in Vietnam, Environmental Journal No. 5/2020, p.39.
2. Current Status of Vietnam's Law on Air Pollution Control
Facing the current situation of air pollution with negative developments, Vietnamese law has built a relatively solid legal foundation for controlling air pollution in order to maintain a sustainable state of the ecological environment, protection of human rights, and further towards the effective implementation of requirements on sustainable development that Vietnam has committed to implement, that is:
Firstly, regulations on authority and responsibility in air pollution control. As a basic Law document that defines the basic principles of ecological and environmental protection and management, the Law on Environmental Protection 2020 has created a unified mechanism to approach pollution control, including air pollution control. According to the law, pollution control is the process of preventing, detecting, preventing and treating pollution.24 With this approach, the problem of pollution control in general and environmental pollution control in particular is not simple. It is a unified process chain carried out on the basis of the principle of attaching importance to prevention, preventing negative impacts on the biological environment in the early stage. When environmental pollution occurs, a request to quickly, promptly isolate, and prevent pollution sources is carried out to limit losses to public and private interests in the environmental field.
With this definition, the issue of environmental pollution control mainly belongs to the management agencies empowered by the state. These agencies use the state power conferred in the management and protection of the ecological environment to apply appropriate measures to the subjects who commit violations, affecting the function and usefulness of the environment component as well as the rights of the community to protect the environment effectively.
Pollution control activities, in general and air pollution control in particular, will not be effective if they completely negate the responsibility of individuals and organizations in the community, especially at the stage when pollution is detected. Organizations, households and individuals engaged in production, business, and service activities that emit dust and gases that negatively impact the environment must be responsible for minimizing and handling them per the law. On the other hand, air environment quality must be monitored and monitored regularly and continuously and announced according to the provisions of the law. Air pollution must be notified and warned about in a timely manner in order to minimize the impact on public health and the sources of dust and gas emissions must be monitored, evaluated, and controlled according to the provisions of the law.25
In order to increase the effectiveness of responding to environmental pollution, the law requires the rapid implementation of these. measures. Suspending or changing the operating time of the factory that causes air pollution; b) Limiting and channeling activities of road transport means; c) Suspending or adjusting the working time of agencies, organizations, and schools; d) Temporarily suspending activities of gathering people outdoors. Suppose the air quality is seriously polluted on an inter-regional, inter-provincial, and cross-border scale. In that case, the Ministry of Natural Resources and Environment shall report to the Prime Minister to directly implement the above-mentioned urgent measures. In case the air quality is seriously polluted within the province, the People's Committee of the province shall organize the implementation of urgent measures as required.26
24 Clause 22, Article 3 of the Law on Environmental Protection 2020.
25 Article 13 of the Law on Environmental Protection 2020.
26 Article 10 of Decree No.08/2022/ND-CP dated January 10th, 2022 Details some Articles of Law on Environmental Protection.
When air pollution occurs, it will simultaneously affect two mechanisms. There are i) the function and usefulness of the composition of the air environment in maintaining the equilibrium of the environment and ii) the legal rights and interests of the community are protected by law. Based on the degree of infringement, appropriate sanctions to violators, such as administrative27 or criminal sanctions (for acts violating the state management order on environmental protection)28 or civil remedies for damages (for mental and physical losses to subjects affected by air pollution), could be applied.29
Solve the problem of pollution. Second, regulations on management and responsibility for ambient air quality. Ambient air quality management is a key task that determines the effectiveness of air pollution control. The law assigns responsibility to state management agencies in charge of environmental protection to monitor and evaluate the quality of the surrounding air environment and publicly disclose information; In case the surrounding air environment is polluted, it must be warned and handled promptly. This regulation creates a unified mechanism for accessing and effectively implementing the contents of state management of environmental protection for authorized state agencies. These agencies must perform the task of environmental protection in general and air environment protection in particular effectively, regularly monitoring and evaluating air quality in order to offer timely and effective solutions to prevent and control air pollution. In addition, the information mechanism on air quality must be implemented per the law to ensure the population's participation in environmental protection activities effectively.30
Concretizing the air pollution control mechanism, Decree No. 40/2019/ND-CP (dated May 13th, 2019) amends and supplements several articles of the Decree detailing and guiding the implementation of the Law on Environmental protection regulations. Urban areas of class II or higher, concentrated residential areas, areas with industrial parks, craft villages, and areas with many emission sources and large emission sources must be assessed the current status and evolution of the ambient air quality on the basis of parameters specified in the national technical regulation on air quality. The assessment of the impact of emission sources on the quality of the surrounding air environment, in addition to the above factors, must also be based on the nature of the emission sources in the area with other characteristic parameters for accurate assessment. Based on the assessment results, polluted surrounding air areas must be warned, the causes identified and measures taken to treat pollution and improve environmental quality.
The primary responsibility in treating, improving, and restoring environmental quality belongs to the organizations and individuals that cause pollution and degradation of the surrounding air environment. With the way of recognizing the responsibility mechanism of individuals and organizations in the management of ambient air quality, the legislator has created a specific and clear separation mechanism about the responsibilities of each subject to perform. On that basis, through actual law enforcement activities, evaluate the effectiveness and quality of assigned tasks. Therefore, the violations arising in this process make it easy to have a separate mechanism to investigate the legal liability of each violator, aiming to ensure efficiency in air environment protection.
27 The main administrative measures are fines for subjects who commit acts of violating the law on environmental protection, which are applied according to the principles and methods of sanctioning as prescribed in Decree No. 45/ 2022/ND-CP on sanctioning of administrative violations in the field of environmental protection.
28 When the violation of the law fully meets the conditions to constitute a crime in the chapter "Environmental crime" under the 2015 Ciminal Code, the penalty system of this Code will be considered and applied in accordance with the law.
29 Article 1, Decree No. 03/2015/ND-CP (dated January 6th, 2015) stipulating the determination of damage to the environment.
Provincial-level People's Committees are responsible for assessing the level of air pollution in the surrounding air,31 serving as a basis for determining the extent of damage caused by air pollution and at the same time applying sanctions to the subject of the violation. The mechanism for assigning responsibility and authority in the state management of environmental protection in order to minimize the overlap in functions and tasks of authorized agencies, to help ensure full responsibility in the performance of tasks, and create an easy mechanism for determining the responsibility mechanism for each specific agency when environmental pollution problems occur.
Provincial-level People's Committees are responsible for assessing the level of air pollution in the surrounding air, serving as a basis for determining the extent of damage caused by air pollution and at the same time applying sanctions suitable to the subject of the act violated. The mechanism for assigning responsibility and authority in the state management of environmental protection in order to minimize the overlap in functions and tasks of authorized agencies, to help ensure full responsibility in the performance of tasks, and create an easy mechanism for determining the responsibility mechanism for each specific agency when environmental pollution problems occur.
Whereas, the current Vietnamese law on air pollution control still has certain limitations, as follows:
Firstly, no separate mechanism exists to adjust to the air pollution problem.
As mentioned, the issue of air pollution control is being carried out with the same mechanism as environmental pollution control because the air environment is a component part of the ecological environment (contained in natural material elements). However, unlike other environmental components such as soil environment, water environment, etc., the atmospheric component has special diffusing properties. From this nature, managing and controlling air pollution is always an extremely difficult problem. The current environmental protection mechanism in Vietnam is operated on the basis of the general principles of the basic Law (Law on Environmental Protection 2020) that define the standards of behavior of entities when participating in the environmental field, at the same time, apply specific mechanisms to regulate each environmental component such as the Law on Water Resources, the Law on Land, the Law on Minerals, etc. to manage and protect the environment. However, because no legal document explicitly regulates air pollution, these environmental management mechanisms can only be operated through the Law on Environmental Protection. It is easy to see that this is a significant legal limitation when it is difficult to solve basic theoretical issues such as the concept of air pollution control, the way to understand the load capacity of the environment or monitoring activities, or how the air environment impact assessment needs to be conducted.
The lack of a separate legal framework for the air environment makes it impossible to determine damage to the air environment, similar to damage to other environmental components when environmental pollution arises. Obviously, the level of impact on the environment needs to be calculated in more detail and detail to ensure the reasonableness of damage to the interests of the community and the interests of each individual in environmental pollution.
Secondly, the lack of feasibility of the national technical regulation on air pollution control and the problem of lacking regulation on the method of assessing the carrying capacity of the air environment.
Environmental technical regulation is the limit level of the parameters on the quality of the surrounding environment, the content of pollutants in the waste, and the technical and management requirements approved by the competent state agency to protect the environment.
31 Article 14 of Law on Environmental Protecion 2020.
The control of air pollution requires quantitative specifications that are scientifically and reasonably calculated in order to specifically determine the allowable limit for the behavior of emissions into the atmosphere. It serves as a basis for determining the level of damage to the air environment and applying sanctions to violators. However, the reality shows that the limits of the technical regulation on the air environment as prescribed by the current law are not uniform and lack practical feasibility. Specifically, according to QCVN 05:2013/BTNMT, the basic value of PM2,5 dust in the average ambient air in 24 hours is not allowed to exceed 50μg/m3, and the annual average is not allowed to exceed 25μg/m3.
Compared with the technical specifications on the impact levels of PM2,5 dust released by the World Health Organization (WHO), determining the impact of PM2,5 dust on human health is not possible when basic values in the air range from 0-12μg/m3. With an impact level of 35.5-55.4μg/m3, WHO defines this as the level of air pollution that is “Unhealthy for Sensitive Groups”, increasing the likelihood of symptoms like respiratory disease in susceptible individuals, worsening of heart or lung disease and premature death in persons with cardiopulmonary disease and the elderly.32 Thus, the technical regulation of the air environment for PM2,5 dust parameters according to the provisions of Vietnamese law is practically meaningless when the impacts on health have taken place. With parameters nearly five times higher than WHO standards, the issuance of technical regulations on the air environment needs to be adjusted to be in line with international practices.
From the nature of being the basic criterion for assessing and controlling air quality, the concept of air carrying capacity has long been approached from different points of view. For example, Thomas Malthus's view from 1987 has suggested that environmental carrying capacity allows for determining the optimal population that can be supported in a given area with suitable infrastructure for development that's not harmful to the environment.33 Or as defined by the National Institute of Urban Affairs in New Delhi, India, the concept of “carrying capacity” is understood as the limited or limited capacity of the natural environment, in which the natural environment plays the role of both a container and a source of supporting resources for human consumption (supportive capacity), and at the same time a place to store and assimilate waste types (assimilative capacity).34 Although certain differences exist in terms of definitions, there is a consensus that the carrying capacity of the environment refers to a certain limit to which the environment can accept negative factors without significant consequences.
Based on this point of view, the Law on Environmental Protection of Vietnam in 2020 clearly stipulates: “The carrying capacity of the environment is the limit of the environment's tolerance for influencing factors so that the environment can self-heal back.”35
Thirdly, the management decentralization of air environmental protection is still scattered, lack of consistency in the way of adjustment.
Although recognizing the clear and specific mechanism, the current decentralization of management on environmental pollution control is scattered and scattered in many different documents, making it difficult to apply. The situation of “fragmentation” of the regulatory mechanism on state management in air pollution control causes legal “gaps”. Specifically, in the spirit of Decision No. 249/2005/QD-TTg, the responsibility for monitoring and reporting the current state of the air environment is assigned to the Ministry of Natural Resources and Environment. The Ministry of Science and Technology takes responsibility for researching and promulgating the standard level of industrial emission fuels and at the same time gives the responsibility for the management of emissions from vehicles in urban areas to the Ministry of
32 Air Pollution, https://www.who.int/health-topics/air-pollution#tab=tab_3
33 Indian Institute of Technology Guwahati, Urban Carrying Capacity-concept and calculation, 2012, p.3-4.
34 National Institute of Urban Affairs, New Delhi, Carrying capacity based regional planning, 1997, p.7.
35
Transport.
This regulation is quite specific in the form of listing the responsibilities of ministries and ministerial-level agencies in managing and controlling emissions into the atmosphere.
However, for other tasks such as emissions inventory, database building, emission control, fuel quality control, etc., which agency will be responsible? Decision No. 249/2005/QD-TTg has been leaving this adjustment mechanism open. On the other hand, contradictions and lack of consistency in air pollution control and management mechanism still take place. The adjustment method of the Law on Environmental Protection in 2020 shows that the Ministry of Natural Resources and Environment is responsible for state management of the environment (including the air environment), but the task of urban environmental pollution control and urban air quality improvement belongs to the Ministry of Transport. The problem is even more difficult to enforce the law on air pollution control in practice when the mechanism for coordination and information sharing on pollution control between ministries, branches, central and local agencies has not been implemented yet. These regulations cause certain difficulties in the process of a unified approach to the roles and tasks of the empowered state agencies. In some cases, stemming from the lack of clarity and inconsistency, the mechanism of “pushing”
responsibility between these agencies takes place, resulting in inefficiencies way in controlling and treating air pollution.
Fourthly, the sanctions for handling air pollution are not enough deterrents, and compensation for damage has not been determined.
Decree No.45/2022/ND-CP Regulations on sanctioning of administrative violations in the field of environmental protection establishing the maximum fine levels for violations of the law on environmental protection in general at 1 billion VND (for individual violators) and 2 billion VND (for violations committed by organizations).36 According to the law, violations can only be fined once a year and fined according to the behavior. “With the form of fines according to the behavior, if there is a fine of up to 2 billion VND, it is still much less than having to invest in an exhaust gas treatment system. An exhaust gas treatment system can be up to several tens of millions of USD, while the fine is only 2 billion VND, nearly 100,000 USD, the producer is willing to pay the fine but is determined not to invest in an environmental treatment system”.37
The law on administrative handling of air quality management still lacks provisions of preventive obligations from the initial stage of development activities such as a lack of adjustment to the behavior of making air environment impact assessment reports.38 There are no specific regulations on violations of the obligation to make plans for air environment protection, so many environmental impact assessment reports have not yet fully assessed the impact of investment projects on the environment but the license to invest has been approved.39 3. Solutions to Improve The Law on Air Pollution Control to Meet The Goal of
Sustainable Development
Along with the commitments made on action goals, striving to achieve the goals of development and economic growth by 2030 on the basis of effectively preserving the value of environmental components in order to create solid guarantees for social justice and employment
36 Clause 1, Article 4 of Decree No.45/2022/ND-CP.
37 Ministry of Natural Resources and Environment, Preliminary Report on implementation of Decree No.155/2016/ND-CP of the Government Provision on Administrative Violations in Environmental Protection, November 2019,p.7.
38 Le Thi Hang, Law for handling administrative violations on air quality management and environmental protection planning, Environment Magazine, April 2019, p.7.
39 Pham Hong Quang (2011), Administrative sanctions in Vietnam and the experience of the Law on Handling Administrative Violations of the People's Democratic Republic of China, Journal of Jurisprudence No.10, p.88.
so that no one is left behind,40 the law of Vietnam needs fundamental changes and adjustments on the basis of centralization. There are four factors that need to be improved: resolve the remaining legal limitations, and provide a solid legal corridor to unify and ensure effective air pollution control.
Firstly, issue a separate Law document to regulate issues related to the air environment.
In parallel with documents regulating other existing environmental components such as the Law on Water Resources, the Law on Land, the Law on Minerals, etc., on the basis of compliance with the unified adjustment mechanism of the 20 Law on Environmental Protection, promulgated “Clean Air Laws” such as the United Kingdom’s Clean Air Act, passed in 1956, regulate industrial smoke and create “smoke control zones” in towns and municipalities where only airless fuels are available produces smoke to be burned; The Clean Air Conservation Act (CAA) was passed by the US Congress in 1970, then revised in 1977 and 1990, marking a total change with goals to improve human health and public welfare, and reduce the potential for harm to people and impacts on ecosystems. Or like Korea, the foundation for the air protection policy is the Law on Clean Air Protection (issued in 2007, revised and supplemented in 2016).41
Thus, it can be seen that developed countries in the world have all prepared “ready”
scenarios to “deal” with the serious deterioration in air quality, mitigating to a minimum the risks of air pollution that impact environmental values as well as the health and life benefits of the population. In terms of structure, the Clean Air Law needs to focus on adjusting specific contents, including: i) A unified system of principles in air environment protection (built on the basis of a combination of principles in environmental protection in general); ii) Regulations on air pollution control including concept, content, and form of air pollution control; iii) Regulations on air quality management such as concepts and specific parameters on the load capacity of the air environment; ambient air quality management mechanisms on the basis of prioritizing prevention principles with regulations on air environmental impact assessment of investment projects before project implementation, production activities, business; iv) State management responsibility for air pollution control; v) Sanctions for violations against the state management order on air pollution control. With this adjustment mechanism, the issue of control and environmental protection of the air is carried out easier, more conveniently, and more unified with specific adjustment mechanisms. The appearance of this Air Law, in addition to its role in a unified regulatory mechanism for managing and controlling air pollution, is also significant in making “compact” the legal system on this regulation, which is located in the air.
Scattered and inconsistent in current Law documents and sub-law documents.
Secondly, it is necessary to focus on completing regulations on environmental technical regulations for PM2.5 dust parameters and at the same time specifying methods for determining the load capacity of the air environment in legal documents.
Promulgating a separate Law on Air Pollution Control is necessary, but this is a “long- term” problem that cannot be solved soon. In the immediate future, in order to solve the negative changes in air quality from dust, emissions, toxic substances during the use of fossil fuels or the problem of noise pollution. It is necessary to focus on resolving conflicts in the legal mechanism for air pollution control. Accordingly, it is necessary to focus on adjusting the air environment technical regulation system on dust emissions to match the recommended WHO indicators on the level of impact on human health, specifically setting emission limits. PM2,5
dust at the threshold does not exceed 12 μg/m3 average level in 24 hours. This change is an
40The United Nations, About the Sustainable Development Goals, https://www.un.org/sustainabledevelopment/sustainable- development-goals/
41 Nguyen Thi Ngoc Anh, Luu Thi Huong, Nguyen Hai Yen, Experiences of some countries in the world on emission pollution control, Environmental Journal, No.3/2019, p.25.
important step that helps control emissions into the air more effectively, raising awareness of individuals and organizations about the consequences of emission behavior, but also clearly shows Vietnam's goodwill when joining this global “playground”.
Along with the re-adjustment of environmental technical regulations on PM2,5 dust parameters in accordance with the WTO's approach, the study of methods to assess the carrying capacity of the air environment in accordance with the conditions of the practical environmental conditions in Vietnam is necessary. On the basis of international studies, the use of the pollutant diffusion model in assessing the carrying capacity of the air environment is evaluated as a feasible method for the application process in Vietnam. This conclusion is made based on the simultaneous response of 4 factors, including i) Legal regulations; ii) Having a scientific basis based on data and modern research methods that are reliable and up-to-date; iii) Must take into account the geographical and environmental, socio-economic conditions of the region and surrounding area and iv) Take into account the time factor as required. Based on the operation of the pollutant diffusion model, the socio-economic development scenarios of the region will also be developed to estimate the pollutant emission level as input to calculate the pollutant spread, estimate the load capacity of the area (when there is still the possibility of receiving more pollutants) or the emission level that needs to be reduced to ensure that the air quality reaches the Vietnamese standard level.42
Thirdly, it is necessary to focus on improving the efficiency of state management of the air environment.
Accordingly, basically maintains the current organization and decentralization of state air quality management. However, it is necessary to establish a more specific and clear regulatory mechanism to define state agencies' authority clearly. Accordingly, focus on enhancing the role of the Ministry of Transport in controlling air quality by reducing emissions from traffic activities in urban areas. The Ministry of Natural Resources and Environment is not directly involved in this process, but is responsible for the overall management, receiving, and promptly responding to reports of the Ministry of Transport to ensure the establishment of an effective cooperative relationship.
In addition, it is necessary to study the method of determining damage to the air environment separately from other damages such as damage to water resources, land resources, etc., when environmental pollution arises to ensure its suitability with diffusing properties and the wide influence of the air environment. On the basis of comparing emission limits as prescribed by law, conducting air environment monitoring to draw conclusions about pollution levels serves as a basis for pursuing legal liability for those who have performed the behavior.
The establishment of air quality monitoring stations not only controls the air regularly but also ensures effective air pollution control and contributes to quickly solving the emerging air pollution problem.
Fourthly, strengthen the effectiveness of sanctions violations and enhance the use of economic tools to protect the air environment.
There should be a mechanism to raise the level of penalties for administrative violations for administrative violations in terms of failure to ensure and not have a system to treat emissions into the environment in business activities of enterprises, ensuring efficiency. Handle violations of the law, causing air pollution, and at the same time effectively deter and prevent similar acts from recurring. It is necessary to research a method of cumulative and aggravating penalties to ensure effective deterrence and prevent the recurrence of violations in order to limit
42 Duong Thi Phuong Anh, Nguyen Trung Thang, Hoang Thi Hien, Hoang Xuan Co, The approach in assessing the carrying capacity of the air environment and its application to Vietnam, Environmental Magazine No. 2/2021, p.31.
restrictions related to low administrative sanctions. This method is an effective model, with a certain reference value for legislators in making clear impacts on the interests, especially the material interests of the subjects. there are violations so that the subjects can choose their own treatment methods in accordance with the legal regulations in environmental protection in general as set by the law. In addition, it is necessary to add to the law the examination of administrative responsibility for acts that are likely to have negative impacts on the air environment at the initial stage such as the responsibility to make an environmental impact assessment report before putting the project into operation. The binding right from the initial stage when the idea of carrying out economic activities is formed shows conformity with the precautionary principle, the basic principle in the legal relationship on the environment.
Imposing taxes on coal power plants, cement plants, and other major pollution sources based on economic, social, and health impacts. This activity is essentially the use of economic tools in environmental protection.43 With this method, businesses have a role in environmental protection, using environmentally friendly raw materials and materials; having a system of equipment in environmental protection will enjoy preferential tax rates, thereby increasing the competitiveness of goods and products in the market. In terms of the opposite impact, the enterprises operating the works that are capable of causing serious deaths to the ecological environment and the air environment will be subject to a higher tax rate to limit the acts of mining extraction and introduction into the atmosphere of pollutants causing changes in the composition of the environment. In order to compete, businesses must perform their own roles in environmental protection, invest in equipment in environmental protection to have the opportunity to enjoy tax incentives, and create favorable conditions for competition. Compete with other companies in the market. In addition, in order to effectively protect the air environment, it is necessary to continue to promote monitoring and inventory of emissions sources, to require the installation of snow monitoring systems, to connect data to the department, and to publicize monitoring information with the public. Four thermal power industries running coal, iron and steel, cement, chemicals, etc., to meet the requirements of solving arising problems quickly, reasonably, scientifically, and effectively.44
C. Conclusion
Protecting and preserving the environment in the process of conducting economic activities, in fact, is always a big challenge for countries, especially areas under pressure from economic development. Through the process of formation and development, the Law on Environmental Protection in Vietnam has created a relatively solid legal foundation to solve environmental problems that are increasing with the development of economic activities.
However, the fact that the air quality degrades is clear evidence that the legal framework for managing and protecting the air environment still has limitations. With the immediate economic development orientations, the law on air environment protection in Vietnam needs to be researched and perfected according to the following four important directions:
Firstly, studying and promulgating a separate Law document regulating the composition of the air environment in order to ensure the expertise in regulations as well as the consistency in the entire legal system on environmental protection.
Secondly, re-adjusting regulations on environmental technical regulations on PM2.5 dust parameters in a direction that is more consistent with WHO's recommendations on limiting the
43 Nguyen Cong Thanh, Le Thu Hoa, Nguyen Dieu Hang, The effectiveness of some solutions to reduce urban air pollution in the world, Environmental Journal, Vietnamese Special Issue III 2018, p.12.
44 Nguyen Minh Phong, Nguyen Tran Minh Tri, Strengthening the social responsibility of FDI enterprises in protecting the environment and employees, Environmental Magazine No. 7/2018, p.41.
impact of dust emissions on quality and human health. Along with this issue, it is necessary to study, more specifically the method of determining the carrying capacity of the air environment by diffusion model to meet the feasibility when developing an air environment management plan.
Thirdly, amending the law to re-decentralize the state management model of the air environment. In this relationship, the Ministry of Natural Resources and Environment must still act as the central actor responsible for the management of natural resources. The relevant agencies, especially the Ministry of Transport, are responsible for managing the impact of vehicle emissions on the environment. Damage to the atmosphere must necessarily be studied separately from damage to other environmental components. It must be conducted on the basis of actual damages obtained from the environmental investigation process.
Finally, adding violations of the law are subject to consideration for administrative liability when causing environmental pollution, concentrating at the early stage when environmental pollution has not occurred in order to fulfill obligations from early on the responsibility to protect the environment for business owners. In addition, the model of increasing administrative penalties for violators is also considered feasible when causing significant damage to the material interests of the violators. The application of economic tools to environmental management and protection is also an option that should be studied and applied to promote corporate social responsibility in the business process.
In addition to perfecting legal regulations, the effectiveness of ecological environment management to meet the requirements of sustainable development is also determined by social awareness or infrastructure conditions. Accordingly, it is necessary to focus on developing policies to strengthen legal propaganda and education for people to improve their understanding of environmental protection responsibilities. At the same time, the state needs to have investment policies in infrastructure and modern techniques to manage and protect the environment. Participating in the air environment management process is not only meant to show the role of enterprises in environmental protection but also helps to realize more easily the requirements of infrastructure conditions to operate the facilities to solve the problem of the air environment.
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