Stanley Lubman, a long-time specialist on Chinese law, teaches at the University of California, Berkeley, School of Law and is the author of “Bird in a Cage: Legal Reform in China After Mao,” (Stanford University Press, 1999).
China, the world’s largest polluter, has been adopting laws to control and reduce pollution since 1979, and there are frequent reports in the press emphasizing efforts to control pollution. But regardless of how many new environmental laws are adopted, enforcement remains a critical problem.
This is true in the case of regulation by local Environmental Protection Bureaus (EPBs), and also when citizens try to sue polluters in the courts. Both enforcement mechanisms are marked by the ongoing challenge of balancing environmental protection against the promotion of economic growth and by the tensions between central and local governments. Both also highlight broader systemic problems in Chinese governance.
There are numerous reasons why effective enforcement both by the EPBs and civil suits is greatly hampered. Local EPBs are only “nominally responsible” to the ministry-level Environmental Protection Administration in Beijing, as Elizabeth Economy notes in her 2004 book “The River Runs Black,” and rely on local governments for “virtually all their support.” Local government officials also benefit from higher levels of output in their region, as Gregory Chow has observed, noting that “they receive credits for economic development and sometimes bribes from polluting producers.” Local governments, the courts and the EPBs give protection to key local enterprises.
A recent study in the academic journal “China Quarterly” on the efforts of local EBPs in Hubei Province to sue polluters who had failed to pay fines provides an example of these dynamics:
In Hubei, the study reports, any discharger of wastewater must register and report on their discharges, and the reports provide the basis on which the EPBs determine any pollution levies that must be paid. If the polluters fail to comply, they may be sued both for the unpaid amount and an administrative penalty.
In 1990, the National People’s Congress adopted the Administrative Litigation Law (“ALL”), which authorized not only civil suits against government agencies for alleged illegalities, but also suits by government agencies for judicial assistance when regulated parties fail to comply with agency decisions. In the early 1990s, when the ALL was still novel, citizens were reluctant to file cases against government agencies–a problem for the administrative law divisions of some courts that faced elimination because of small caseloads. In three areas in Hubei the courts approached local EPBs and cooperated with them in enforcing levies and administrative fines.
The arrangement has been a win-win, but only in one sense. The agencies file more cases, helping the courts increase their caseloads and generate litigation fees. The enforcement cases also generate revenues for the EPBs, which use the funds to supplement their underfunded budgets. As a result, the EPBs seek fines rather than ordering polluters to take measures to reduce pollution.
Looking at other aspects of enforcement in Hubei, the authors conclude that the EPBs focus mostly on small businesses and have significantly deterred pollution by some of them. However, the EPBs have refrained from suing the largest businesses because of their economic significance. Also, even though court involvement in enforcement grew as described above, the increase in cases did not affect the arbitrary exercise of discretion by the EPBs or intervention by local officials to waive or lower fees.
In the case of citizen activism, Benjamin van Rooij has noted that citizens sometimes initiate civil suits both against polluters and against the EPBs for failure to sue. If litigation fails, collective action such as public protest may be attempted, like an attack in August 2009 on a lead smelter by enraged parents of children who had been poisoned by lead pollution. Occasionally, citizens benefit from advice of experts or environmental NGOs (although these are very few) or from leaders who may emerge spontaneously or may be elected by affected citizens. Activists are hampered in their efforts both by the control that local governments exercise over local EPBs and by the importance of enterprises for revenue and jobs. Protestors are often regarded as radicals who should be harshly treated.
Van Rooij concludes that “many citizens…have had trouble finding legitimate ways to deal with claims against illegal pollution, and in many cases they ended with having to opt for acceptance or direct opposition, sometimes including violence instead of ‘rightful resistance.’” Citizens, he predicts, will continue to take political action because of the difficulty of successfully asserting legal claims that they are being injured by pollution.
A recent study (pdf) by van Rooij and Carlos Wing-hung Lo concludes that in some places in China, a number of forces have converged to make enforcement “more punitive and formal” over the past decade. They cite increased stringency in national policy, reinforced by “increased community pressure, greater local government commitment, stronger EPB organizational capacity, the diminishing influence of regulated enterprises, and better performance and improved structure of the local economy.” Nonetheless, and consistent with the situation described in the Hubei study, the authors conclude that stricter enforcement by imposing fines does not necessarily lead to decreased pollution, because the “numbers and punishment become more important than decreasing pollution.” Indeed, the average fine per case is less than the RMB equivalent of $1,500.
A broad critique has been voiced by Professor Wang Jin of Beijing University, who argues that “China’s green laws are useless.” As an example, he, like the study cited above, notes that companies fined by the EPBs for exceeding pollution limits are allowed to continue doing so as long as they pay the fines to the EPBs. He points to a number of ways in which local governments limit the activities of EPBs, such as requiring approval before they can even check for pollution. Professor Wang also faults the courts, which often refuse to handle environmental cases, supposedly in the interest of maintaining social stability; only rarely do they impose criminal liability for pollution
Two basic issues discussed here are systemic and extend beyond environmental regulation: one is the power of local governments to vary or evade national laws and policies; the other is the courts’ functioning as part of the same governmental apparatus as administrative agencies, rather than acting independently.
The principal issue underlying efforts to reduce pollution is what Elizabeth Economy has called “the central tension inherent in China’s environmental protection efforts,” i.e., balancing economic development with environmental protection, while at the same time limiting central government involvement. Comparable issues are not unknown in the West, but the tension in China runs deeper, because a slowdown in economic growth could lead to social unrest, which would threaten the control exerted by the Chinese party-state over Chinese society.