Greening China's Bar: Chinese Lawyers at the Frontline of Pollution and Energy Law
•The Chinese government has no internal legal counsel and must rely on outside consultants
•In green court cases, capacity is a primary factor in the lack of enforcement
China's environmental laws as legal counsel to corporations, legal advisers to government agencies, legal representatives of pollution victims, and expert consultants to policymakers. Established in 2001, the All China Lawyers Association Environmental and Resources Law Committee (ERLC) is comprised of China's top environmental lawyers and is a national voice for China's environmental bar. As part of ERLC's ongoing cooperation with the American Bar Association Section on Environmental, Energy, and Resources (ABA SEER) and the ABA Rule of Law Initiative (ABA ROLI), the first ever ERLC delegation traveled to the United States this March and three representatives—Wang Jin of Peking University Law School, Wang Jihongof V&T Law Firm, and HU Yulai of Concerto Law Firm—gave presentations at this March 22nd CEF meeting on the development of China's environmental law sphere.
When it comes to environmental enforcement in China, the laws themselves are not the main issue. In fact Wang Jin of Peking University Law School made the point that China may even have too many laws on the books. China's environmental law problems lie in inadequate implementation and enforcement. There is a great need for a stronger enforcement throughout the system, and there needs to be official accountability for any failure to enforce . Professor Wang explained that from the 6th to the 10th five year plans (1981-2005), China's environmental enforcement targets were not met; as a result, the 11th FYP is currently a bending target to account for the lack of results.
One of the main reasons for these gaps between written law and enforcement is inadequate capacity. A common comparison is that China's MEP employs 2,400 employees compared with U.S. EPA's 18,000. However Wang made the point that even if capacity issues were solved, there is still a lack of political will to address environmental issues. Social stability is the first priority in local courts and environmental issues tend to take a backseat. To overcome these obstacles, Wang Jin made some concrete recommendations:
o Establish a Superfund-type program to restore heavily polluted land.
o Draft a basic energy conservation law.
o Amend the current air pollution law.
o Finally, set up more environmental tribunals in local courts.
WANG Jihong made further recommendations towards increasing compliance with current environmental laws. First, and most critically, she stressed that environmental impact assessment issues need to be resolved. Currently, EIAs can be made ex post facto; Ms. Wang stressed that this make-up option should be banned as it defeats the true environmental purpose of EIAs. Second, punishments against environmental violators should be made more severe in order to deter future violations; the focus should be on prevention, not after-the-fact compensation. On this same note, Ms. Wang emphasized that when compensation for victims of environmental violations is given out, it needs to be given in larger amounts and with focus on the victim's well being, not solely on environmental clean-up. Ms. Wang said that many of her recommendations were based on lessons she took from her work with foreign law firms and that both the U.S. and China could benefit from increased cooperation in the environmental law sphere.
HU Yulai spoke last, on the obstacles and solutions in public interest litigation. From 1980 to 1998 100,000 public interest cases were filed annually on average. But since 1998, the number of cases has increased dramatically; in 2003 alone there were over 500,000. While not all public interest cases dealt with environmental issues in those years, the percentage of cases that do is increasing. This has been a good sign for environmental law: As more and more cases are brought to court, there is a greater demand for lawyers trained in environmental governance. Additionally, the nature of the public litigation cases has been changing as well; some recent developments include the first times where social organizations and government agencies have acted as plaintiffs in environmental cases.
To conclude, a theme stressed throughout these presentations was that although many obstacles to dealing with environmental issues in China still remain, the overall trend is towards greater integration and capacity for green litigation in China.