Stanley Lubman posted the following article to the Wall St Times blog yesterday
He writes:
Strengthening Enforcement of China?s Environmental Protection Laws
Stanley Lubman, a long-time specialist on Chinese law, looks at the innovations and challenges presented by the enforcement of environmental laws in China. Mr. Lubman 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).
In the face of ongoing serious damage to China?s environment caused by 30 years of historic economic development and weak enforcement of China?s environmental protection laws, environmental litigation is growing and a small number of experimental environmental courts have been established. The growth of rights consciousness and citizen concern about the dangers of uncontrolled pollution has also stimulated suits against polluters brought both by citizens and public interest environmental NGOs.
The new courts represent a modest experiment, and although very few cases have been brought to them, several recently-decided cases illustrate their promise. But enforcement of anti-pollution laws remains hampered by familiar systemic problems in Chinese governance, including tension between growing acknowledgment about the extent of pollution and continuing emphasis on maintaining a high rate of economic growth.
After major environmental pollution incidents occurred, eleven specialized environmental courts were established between 2007 and 2009 in the provinces of Guizhou, Jiangsu and Yunnan, according to a recent blog post by Gao Jie, a staff attorney for the National Resources Defense Committee. Environmental nongovernmental organizations (NGOs) have been permitted to sue in the new environmental courts in Guiyang (Guizhou) and Wuxi (Jiangsu), as a matter of judicial discretion and in Kunming (Yunnan province), by explicit rule. To date, three cases filed by environmental NGOs have been resolved by these new courts, including the first case brought against a government agency for inaction. The role of NGOs as plaintiffs in public interest cases is also significant because they can obtain injunctive relief, unlike other plaintiffs in environmental cases.
In addition to the beginnings of litigation in the new environmental courts, the number of environment-related cases brought to the regular courts, which continue to have jurisdiction to entertain them, has risen. According to the blog by Gao Jie, cited above, from 1998 to 2008, the number of civil cases in this category rose from 96 to 1,509; criminal cases rose from 1912 to 10,075 only administrative cases did not increase. Although there has been no great demand for the specialized courts, the increase in environmental litigation generally may signal an increased caseload for them in the future.
Increased enforcement of anti-pollution laws by government agencies has risen, according to a recent article (available in PDF here) by two law professors, who report an overall increase in enforcement cases and higher fines because of an increase in central government commitment. They also note, however, problems such as wide regional variations and continuing contradiction between emphasis on reducing pollution and the promotion of growth targets. They add that the use of campaigns to step up antipollution activity may sometimes be effective, but their sporadic nature leads to policy inconsistency.
