Giving the Courts Green Teeth

By Linden Ellis

Environmental enforcement issues are among the most critical questions affecting the successful implementation of China's environmental laws. The Chinese government has been pushing reforms to strengthen environmental laws, such as establishing regional environmental protection offices that are meant to bring more enforcement power to the local level. The government's promotion of the environmental protection watchdog to the ministerial level has aimed to give this previously weak agency stronger power and a vote in the State Council. "This is not insignificant progress," stated Yang Tseming (Vermont Law School), but "what is obvious also, is that enforcement remains a key challenge." While the challenges are many, progress is being made by reforming substantive law; training lawyers, judges, and officials; and creating specialized environmental courts in China. At this October 22, 2008 CEF meeting, speakers discussed the Vermont Law School-Sun Yat-sen University Partnership (hereafter the Partnership) as well as some of the recent trends in environmental law in China, including new environmental courts and the recently amended Water Pollution Control Act.

Speaker Tseming Yang provided an overview of the Partnership, especially some of the ongoing efforts to train environmental lawyers, judges, and government officials. The Partnership is a USAID-supported project that combines Vermont Law School's top-ranked environmental law program—from the only U.S. state with environmental law courts—with one of China's leading law schools. The Partnership's purpose is to strengthen China's rule of law in environmental protection, to promote law and regulatory reform, and to build capacity to solve environmental and energy law problems, including building the environmental bar.

According to Yang, the Partnership targets three components to facilitate enforcement: (1) capacity building of legal profession; (2) enhancing institutional structures; and (3) developing incentives for compliance.

BUILDING CAPACITY
Challenges to enhancing environmental enforcement in China include poor knowledge of environmental law and the lack of an environmental bar. Even within law schools, environmental law has only been introduced as a required course in the last few years. Increasing understanding is part of a set of conditions that must be met to enhance enforcement, which the Partnership targets by engaging law teachers and students in environmental education.

Another challenge to environmental enforcement in China is the legal constraints upon civil society and public participation. The Partnership is building civil society by supporting universities, thereby creating institutions that can fulfill the roles played by nongovernmental organizations in the United States, including perhaps bringing enforcement actions themselves and creating some sense of accountability for government officials and companies. The hope is to make Sun Yat-sen University a "center of excellence in South China," which attracts top environmental scholars.

The insufficiency of resources for environmental protection bureaus is another capacity-related challenge. The Partnership thus provides research support to environmental and non-environmental officials.

ENHANCING INSTITUTIONAL STRUCTURE: ENVIRONMENTAL COURTS
Other challenges to environmental enforcement include the lack of independence and underdeveloped role of legal institutions. In the last few years, two provinces have set up 5 environmental courts at the Intermediate People's Court level—three in Guizhou and two in Jiangsu—and a sixth such court is coming soon in Yunnan. "The creation of green benches is an innovative institution that is likely to have a significant impact on improving environmental enforcement," said speaker Li Zhiping.

The immediate reason for establishing these courts is the current environmental crisis in China, particularly around water. In Guizhou, the courts were established around 2 lakes and 2 reservoirs, which are important sources of drinking water. The two in Jiangsu are clearly positioned to influence Lake Tai, one of the 3 most polluted lakes in China and recently in the news for toxic blue-green algae blooms in 2007. The sixth new court is scheduled to open in Kunming near another of one of China's most polluted lakes, Dianchi.

Other reasons for the sudden push for environmental courts are what Li called "deep reasons," which include enhanced efficiency and capacity for enforcing environmental law and resolving increasing pollution disputes. Lastly, their establishment is also symbolic of a current political trend—all levels of government want to appear to be addressing environmental concerns, both in the eyes of the international and local communities.

Unlike most courts in China, these environmental courts treat criminal, administrative and civil cases. These courts also stand ready to hear environmental public interest cases, which are very new and to date rarely tried in China. While progressive nature, these courts are in a tenuous position due to the vague legal ground for their creation. The justification for creating them lies in Article 24 of the Organic Law of the People's Court of the PRC, which allows for the creation of the environmental courts, but does not explicitly support their work or establish procedures for dealing with environmental cases.

It is difficult to judge what the impact of these courts will be, as they have only been in existence for one-year. These courts do make environmental dispute resolution more efficient and expeditious, because the courts have specialist staff on hand and the cases do not have to wait in line with other types of cases. To some extent, the courts can resolve environmental disputes more effectively because they can operate across jurisdictions and can address public interest cases. However, these courts face many challenges.

1) Lack of procedural rules. Other courts have, for example, civil or administrative acts to determine due process. Even in Vermont, these courts have specialized rules on how to treat environmental cases, but currently these specialized courts in China lack rules determining the process.

2) Unclear standing for public interest cases. While it is a much-discussed legal and political topic, the standing issue of public interest cases in China has not yet been resolved. All of these environmental courts have declared that they will accept public interest cases, but there is no precedent to guide those cases. Cases brought by the government, intended to be public interest cases, are often against other governments rather than polluting enterprises. When this issue of standing for public interest cases is resolved, environmental courts could play a major role in environmental enforcement.

3) Lack of environmental cases. Currently, there are many environmental law cases, yet people are very hesitant to bring these cases to court. Many people in China lack basic knowledge of environmental law and have a historical mistrust for the legal system and thus, the courts must wait for cases to come to them. Until that time, the current case loads do not yet fully employ these courts.

4) Unfulfilled mandate. Although the courts were established to address local water problems, 85 percent of cases heard by these courts since 2007 were forestry related; only 5 percent dealt with water. Thus, the courts are not fulfilling their original intentions. These courts were also meant to be cross-jurisdictional to free cases from local control. Traditional courts in China struggle with local government protectionism and interference in cases. However, until these environmental courts receive clearer procedural rules, it is probably unrealistic to expect them to control local officials.

DEVELOPING INCENTIVES
Speaker Jingjing Liu used new features of the recently amended Water Pollution Control Act to discuss the third major component to facilitate environmental enforcement: developing incentives. In a recent government survey, ninety-seven percent of Chinese surveyed believe that water pollution is a major challenge for China, while 84 percent feel that the water they are drinking is unsafe. Citizen awareness of water pollution stems both from several highly publicized pollution accidents contaminating watersheds and increasing news reports of growing health problems stemming from drinking water.

The Water Pollution and Prevention Law was one of only four environmental laws promulgated between 1979 and 1984, indicating that water has long been a legislative priority for the government. The Water Pollution Law became the most frequently amended environmental legislation since then, undergoing major revisions in 1996 and in 2008. Some of the most notable additions in 1996 included:

• Using watersheds rather than political boundaries to address water pollution incidents; and,
• Mandating that urban sewage must be centrally treated by local governments.

The law was again amended in 2008, going into effect in June. For this round of revisions, the public was able to contribute comments to shape the new law. The new law has 30 articles more than the 1996 version including:

• Enhanced environmental responsibility for local governments;
• Provisions for public participation; and,
• Tougher fines and creative penalties for polluters.

Enhanced Responsibility for Local Governments
Local protectionism is a key challenge to water protection in China. Under the 2008 revision of the law, local officials must sign a commitment to reduce chemical oxygen demand (COD) of emissions by 10 percent by 2010. The State Council will use that progress during performance evaluations.

Public Participation
In the past, environmental protection bureaus (EPBs) released data, but it was not standardized. Now the Ministry of Environmental Protection is responsible for releasing standardized data to the public. The new law does not include litigation to bring public interest cases to court. During the revision process, citizens asked to introduce public participation into the law, but it was not accepted because some cases can be politically sensitive. However, EPBs and social groups may legally support the parties whose rights are damaged by water pollution if they bring a lawsuit. This is currently the most specific provision allowing civil society to actively get involved in litigation in China.

Fines and Penalties
The new draft of the water law lifted the $140,000 cap on fines for serious pollution incidents and stated instead that the fine should be based on the economic cost of the pollution incident. The law also allows for a "double penalty," meaning both the company and the person directly liable for the pollution can be fined, creating personal incentives to comply with the law.

Despite improvements, the law is full of compromises. Daily penalties for continuing violations, a key incentive to stop polluters, did not make it into law due to resistance from the business community and other government ministries. Also, public interest litigation rules and procedures were excluded, which could have played a key role in supporting China's nascent environmental courts.

How these improvements are enforced is yet to be seen. The law has only been in effect since June 1, 2008 and is not up to be revised for another 8 to 10 years. News reports show that the law is being enforced; one factory was charged a $200,000, double what the same penalty would have been the previous year.