Environmental protection in China: the role of law

China’s growing rule of law and public environmental awareness show promising initial signs of success. But will it be too little, too late? Alex Wang investigates.

In a rural village, set on the edges of a narrow mountain valley, a group of farmers go to court seeking relief from industrial pollution that has threatened their health and destroyed the crops that are the basis of their livelihoods. The defendants are two local factories that use a primitive industrial process to reduce copper ore. The process generates massive amounts of smoke and stench that decimate much of the surrounding forests and crops and cause local residents chronic headaches and coughing. The farmers ask for compensation and a court order halting the pollution. The court refuses to order a stop to the polluting activities because such an order would “blot out two great mining and manufacturing enterprises, destroy half of the taxable values of a county … and deprive thousands of working people of their homes and livelihood.”

This is a story that is all too familiar in China, reflecting the persistent distance between environmental degradation and a legal system struggling to keep up with a rapidly changing economy. This particular story, however, does not come from China at all. Rather, it is the 1904 US case of Madison v. Ducktown Sulphur from the state of Tennessee. As in China today, the industrial revolution in the United States brought with it increasing harm to the public from pollution and greater environmental conflict. In the early part of the 20th century, the US legal system was not up to the task and the country muddled through decades of inadequate environmental regulation and often unsatisfactory court decisions. It was not until the 1970s that the US passed a series of robust environmental laws and opened the door to a generation of environmental advocates who would use law and the courts to improve the environment.

There is some comfort in knowing that developed countries like the US, Japan and England were able to reverse decades of environmental degradation. The difficulty is that China’s environmental problems are moving faster and on a larger scale than anything the world has ever seen before.

How can China remedy its environmental problems given the pace and scale of change? Are there lessons to be learned from the international community? Growing rule of law and public environmental awareness are showing promising initial signs of success. However, if China follows the example of the US in taking decades to mobilize its legal system against its environmental challenges, it will likely be too little, too late.

The US context

China is just beginning to experiment with many of the legal tools that helped to improve the environment in the US. The modern era of environmental protection and law in the United States began with such seminal cases as Scenic Hudson Preservation Conference v. Federal Power Commission (1965) and Sierra Club v. Morton (1972), which broadened the ability of the public to use the courts to protect environmental interests and clarified the ability of environmental groups to sue on behalf of their members to protect the environment.

Commencing in 1970 with the passage of the National Environmental Policy Act, the US Congress passed a robust series of environmental laws designed to address a wide range of environmental problems affecting air, water, waste, endangered species, etc. These laws also strengthened public enforcement through the inclusion of citizen suit provisions. Citizen suit provisions allowed the public (including environmental groups like NRDC, Sierra Club and Environmental Defense) to sue as “private attorneys general” to enforce against violations of the law by polluters and failure by government agencies to carry out required duties under the law.

Citizens could now use lawsuits to seek injunctions and fines against polluters and force government to act. These new legal tools played a major role in improving the environment in the US.

The Chinese context

In China, more than three decades of rapid industrialization have created enormous environmental challenges. The problems are, by now, well known. Seventeen of the 25 most polluted cities in the world can be found in China. Three-hundred million people, a population larger than that of the entire United States, do not have access to safe drinking water. China’s carbon dioxide emissions may surpass US levels as early as 2009. An estimated 300,000 people die prematurely each year because of China’s air pollution beyond legal standards. The government’s own estimate puts the initial cost of environmental clean-up at a minimum of US$135 billion.

As a result, environmental disputes are on the rise. In 2005, there were some 51,000 disputes over environmental pollution, according to State Environmental Protection Administration (SEPA) minister Zhou Shengxian. From 2001 to 2005, Chinese environmental authorities received more than 2.53 million letters and 430,000 visits by 597,000 petitioners seeking environmental redress. Officials have expressed concern that China’s environmental problems are a leading threat to social stability.

For China, the challenges of using the law for environmental protection are formidable. Unlike the US with its long history and culture of using law and the courts, China essentially began in 1979 to rebuild anew a legal system that had been entirely dismantled in the previous few decades. China’s court system remains weak, with poorly trained judges and regular intervention in cases by local governments that often have a financial interest in polluting enterprises. Moreover, Chinese environmental laws are often lacking in effective enforcement provisions.

Environmental law in China

Since the passage of the draft Environmental Protection Law in 1979, China’s environmental law framework has grown to include more than 20 major statutes and countless State Council regulations, standards and other legal-norm-creating documents. The major laws include the Air Pollution Prevention and Control Law, the Water Pollution Prevention and Control Law and the Environmental Impact Assessment Law.

Laws now cover forestry, fisheries, wildlife protection, marine areas, desertification prevention, clean production, solid waste and numerous other areas. The amount of work put into developing a legal framework for environmental protection has been impressive. It is now received wisdom that China’s environmental laws are relatively complete and that enforcement is now the real problem. This is true in part. However, like early US environmental laws, China’s environmental laws, though broad in coverage, still suffer from weaknesses that limit their effectiveness. Provisions are often vague and more akin to policy statements. They frequently “encourage” rather than “require.” Perhaps most importantly, enforcement provisions are often extremely weak.

The Environmental Impact Assessment Law (EIA Law) offers a good example of this. The EIA Law requires an environmental impact assessment to be completed prior to project construction. However, if a developer completely ignores this requirement and builds a project without submitting an environmental impact statement, the only penalty is that the environmental protection bureau (EPB) may require the developer to do a make-up environmental assessment. If the developer does not complete this make-up assessment within the designated time, only then is the EPB authorized to fine the developer. Even so, the possible fine is capped at a maximum of about US$25,000, a fraction of the overall cost of most major projects. The lack of more stringent enforcement mechanisms has resulted in a significant percentage of projects not completing legally required environmental impact assessments prior to construction.

The allowance for “make-up” environmental assessments creates a loophole around the fundamental raison d’etre for environmental impact assessment (i.e., to build environmental considerations into the development of projects and plans before they are completed). Chinese environmental officials and scholars are well-aware of these weaknesses in the law and openly acknowledge that they are the result of compromises in the legislative process and concerns about limiting economic growth.

Despite these problems, there are signs that law and public advocacy will begin to play a larger role in China. China’s leaders increasingly speak of “ruling the country according to law,” enshrining the principle in the Constitution in 1999 and, as Randall Peerenboom has noted, “there is considerable direct and indirect evidence that China is in the midst of a transition toward some version of rule of law.” Moreover, as environmental consciousness increases, people in China are beginning to turn to the courts and the law in general to advocate for their rights. Cases handled or supported by non-governmental organizations, GONGOs (government-organized NGOs) and “public interest” lawyers are an influential, though still limited, aspect of this phenomenon.

The Center for Legal Assistance to Pollution Victims (CLAPV), a Beijing-based environmental law NGO, is perhaps the best-known of a new generation of environmental legal advocates. The Center recently helped a group of nearly 2,000 farmers in Fujian Province win a judgment against Asia’s largest potassium chlorate plant. Since its inception in 1999, it has handled over 70 cases and obtained favourable results in nearly half of them. The government-sponsored All-China Environment Federation (ACEF) has taken on 23 environmental matters covering over 3,000 people since its founding in 2005, according to media reports. In Yunnan Province, an environmentalist named Li Bo has established a centre for rights-based environmental conservation advocacy in the wake of a successful campaign to protect indigenous land rights against illegal tourism development in the Tibetan village of Jisha. Professor Wang Jin and several other professors and students at Peking University Law School brought a novel suit on behalf of the Songhua River, a species of fish, and an island in an ultimately unsuccessful attempt to press for relief with respect to the Songhua River benzene spill in 2005.

Some of these disparate efforts have shown promising initial success. However, public interest litigation of this sort requires the expertise and funding that only comes from the creation of more established, well-funded organizations dedicated to the work. To make public interest litigation more effective, laws and policies will need to be instituted to encourage the development of environmental public interest law organizations, such as CLAPV.

Another promising trend is the advent of informal local community coalitions turning to legal advocacy to protect their interests. The White Swan Residential Development in Guangzhou opposed the construction of high-voltage transmission towers only a short distance from residents’ homes and discovered clear violation of the EIA Law’s requirement to conduct an environmental impact assessment prior to construction. The residents, who feared the health and property value impacts of the transmission towers, filed suit and used the attention garnered by the lawsuit to lobby various levels of government and ultimately obtain an agreement by the power company to bury the offending power lines.

Similar cases have arisen in Beijing, Hangzhou and elsewhere and the communities have informally provided each other with strategic advice. The Bai Wang Jia Yuan Residential Development case in Beijing involved transmission towers built in anticipation of the 2008 Beijing Olympics and, while ultimately unsuccessful, led to the first public hearing on environmental impact assessment pursuant to the new Administrative Licensing Law. In another case, a residential community in Shenzhen opposed the construction of an underground traffic tunnel between Hong Kong and Shenzhen because the exhaust outlets were located too near to their homes. Several residents examined the environmental impact statement for the project and, suspecting errors, conducted their own environmental impact assessment. The new assessment found grave inaccuracies in the original report and dangerous levels of pollution in violation of relevant environmental standards.

As in other jurisdictions, even where Chinese court cases are ultimately unsuccessful, litigation has often served as a catalyst to negotiated solutions or government enforcement. An example of this was an administrative lawsuit against an environmental protection bureau in Hebei Province for approval of a highly-polluting plant that refined silver from film sludge. The case ultimately resulted in two court rejections on lack of standing grounds. Nonetheless, the plaintiffs’ advocates used the court case to highlight gross errors in the approved environmental impact statement (EIS) and caused SEPA to suspend the firm that authored the EIS and render the EIS invalid. Without a valid EIS, the factory was ordered to cease operation and remains shuttered.

Public interest litigation in China

The Chinese government has recognised the value of environmental litigation and sectors of the government are exploring the possibility of establishing some form of public interest litigation. The State Council last year issued a decision on environmental protection that specified “public interest litigation” as a favoured tool for environmental protection. It is unclear what form such litigation will take. One proposal is to make the procuratorate (now authorized to bring and supervise criminal cases) a permissible plaintiff in public interest litigation. Some officials in SEPA have considered a public interest litigation framework that expands individual and NGO standing to bring suit in the public interest, particularly in cases for which there might be no other plaintiffs (such as harm to endangered species or damage to national forests). A system that allows both government and public litigation to protect the environment would, however, be optimal. The sheer magnitude of China’s environmental challenges requires a broader system that includes government litigation and wider support for public citizen enforcement. The US long ago recognised that citizen litigation could provide an indispensable supplement to scarce government enforcement resources and serve to supervise recalcitrant government agencies as well. SEPA, with some 300 employees at the national level, suffers from an even greater lack of resources and could benefit even more from enforcement assistance from the public.

Environmental law and public involvement in enforcement have played a constructive, and indispensable, role in environmental protection in the US and other countries. The environmental challenges in China today are immense, but so are the opportunities for environmental improvement if the legal tools and involvement of the public, so effective elsewhere, can be harnessed in the name of environmental protection.

Alex Wang is an attorney and director of the China Environmental Law Project at the Natural Resources Defense Council.

Homepage photo by Mosquito Photography