Environmental Law in China
NRDC litigators Mitch Bernard, Michael Wall and Alex Wang report from a training conference for judges and lawyers in China.
With rapid economic growth stressing China's resources and ecology, and in the wake of internationally publicized environmental disasters, the Chinese national leadership is promoting harmony within Chinese society, including harmony between human beings and nature. This is one of the country's top national priorities.
The challenge is daunting, and NRDC is working in China to help find solutions. In November 2006, NRDC co-sponsored the Sixth Annual Environmental Law and Practice Training Conference for Chinese lawyers and judges in Beijing, China. Other co-sponsors of the event included the National Judges College, the All-China Lawyers Association, and the Center for Legal Assistance to Pollution Victims (CLAPV). Alex Wang, who leads NRDC's project in Beijing on environmental law and enforcement, was one of the speakers in the opening session. NRDC litigation director Mitch Bernard environmental tort expert Anthony Roisman presented during the fourth day of the conference. Senior attorney Michael Wall also attended, and traveled with Alex to present at a second forum in Wuhan, the largest city in central China.
According to national government officials speaking at the conference, 70 percent of China's energy comes from burning coal. In 2020, China will require 3.6 billion tons of coal per year to support its economy, up from the current rate of 2.1 billion tons per year. Of the world's 10 most polluted cities, seven are in China. Chinese industries discharge 22 billion metric tons of wastewater a year with 1.4 billion going directly into the sea.
Chinese national government officials speaking at the conference expressed concern over public unrest due to severe environmental pollution. A director of the National People's Congress committee on environment and natural resources stated that if these problems are not solved, injured parties may "exaggerate and cause conflicts between the Party and people." He noted that in the past six years as China's economic growth and associated pollution soared, "instability activities" have increased 25 percent and that the government had tracked 50,000 cases of unrest resulting from environmental problems in 2005 alone.
He told the story of how he recently returned to his home town, where he recalled a beautiful and unforgettable childhood playing by the river; now the river has disappeared, after being "reclaimed" for industrial use. "Our current natural resources consumption borrows from future generations," the official said. "Everyone here cherishes their sons and daughters very much, but now we are destroying the natural resources of our future generations." He explained that achieving harmony between man and nature will require a new emphasis on transparency, environmental accountability and environmental justice. He identified several obstacles to achieving environmental harmony, including not only the rapid pace of economic growth, but lack of awareness among leaders at all levels of government, lack of enforcement and local government's prioritization of economic growth over environmental protection.
An official from the Chinese State EPA (SEPA) addressed the conference. He was straightforward in describing some of China's difficulties in environmental enforcement, noting lack of accountability for polluters and uneven implementation of laws, regulations and standards. Penalties tend to be too light to coax compliance. Many laws are written in such general and vague terms that they are difficult to enforce. There are limits in local government's willingness to force local industries to comply, since doing so might affect local revenue. Further, local governments fail to prevent pollution from crossing the border of their own jurisdiction. Different government ministries with overlapping jurisdiction sometimes have trouble coordinating their efforts. China is contemplating an overhaul of its environmental protection laws to address some or all of these problems.
One extraordinary aspect of this environmental official's description is how similar the problems are in the United States. Here, too, polluters are often unaccountable for the harm they cause to human health and the environment. Sometimes paying a fine is simply a cost (and a low cost at that) of doing business. Local governments often shy away from strict enforcement against influential businesses that build the local tax base and employ a large number of people. We, too, have difficulty managing the effects of cross-border pollution, as the effects of Midwest power plant emissions on downwind states demonstrate. And our enforcement agencies, at both the state and federal levels, often fail to coordinate their efforts to serve the public.
One major distinction between China and the United States is that China is, as one prominent law professor put it, "in a state of transition from a society ruled by people to a society ruled by law." Basic precepts of the American legal system -- such as the notion that judges must enforce the positive law and cannot allow the use of illegal means to achieve political benefits, or economic gain or high moral benefit -- seemed novel to many of the Chinese lawyers participating in the conference. Several told us that, in past decades, law schools did not teach these principles, but instead taught Party doctrine.
Another difficulty in China is that for the most part it lacks an effective public interest litigation system, a mechanism for aggrieved citizens to enforce applicable laws through the courts. In the United States we have a well-developed body of law permitting citizens to sue polluters directly when the government fails to enforce the law. A number of Chinese officials and professors want to create a more vibrant citizen suit system in China. During the Wuhan forum, a number of participants seemed intrigued in pushing forward with concepts that would be legally adventurous in the United States system, such as the concept articulated by Justice Douglas in Morton that animals and even inanimate objects -- a river, an island -- should have standing to sue.
The push for enhanced citizen participation and public interest litigation may well succeed. The national government is concerned about a large and growing number of protests against polluting facilities. In many instances such protests have taken a violent turn, sowing or reflecting disorder. The root cause of citizen discontent appears to be a sense that pollution victims have no viable recourse, no effective means to air their legitimate grievances. Providing a real opportunity to litigate may be a useful response.
At this point litigation is far from easy. Professor Wang Canfa of the China University of Political Science and Law, who is CLAPV's founder and guiding voice, addressed the conference and described a litany of problems for citizen litigants. They have trouble collecting evidence. Pollution victims tend to be poor; they lack the equipment and expertise to monitor the effects of pollution. Courts might not accept the evidence citizens are able to provide. And if a polluter is important to a locality, it may be hard for pollution victims to obtain assistance from the local environmental bureau. While each of these problems exists in the United States, pollution victims in America can and often do rely successfully on the courts to redress their grievances. At the moment China lacks an effective, reliable mechanism to resolve environmental disputes. As a result, inadequate regulation of polluters results in unremediated harm to human health and ecosystems.
Professor Wang is an extraordinary figure who we dare say might one day be nominated for the Nobel Prize. A diminutive man, he speaks with passion and authority about the need for pollution victims to stand up for their dignity and rights. He recommends that victims direct their complaints against offending facilities, not against people who work in the polluting factories. He sends a lucid, inspiring message of hope. And perhaps because of that message he commands obvious respect from senior officials at the highest levels of the national government.
China is struggling to make its environmental impact review process meaningful, both as a guide to decisionmakers and as a spur to public participation. Chinese experts at the conference said that environmental impact documents are often manipulated, and that local environmental officials may help industry do this, or at least sit quietly by. Professor Wang suggested that local officials often tip off a facility when monitoring will occur. The facility doesn't operate at full capacity during the monitoring period, thus reducing its recorded emissions. It may discharge hazardous waste at night, beyond the view of government officials and the affected public. But as Professor Wang aptly stated, "local residents are affected whether the discharges are during the day or during the night."
Some people say it's futile to work on China's environment because the problems are so vast. Given the sheer number of people, the enormous energy needs and the government's commitment to expanding the economy, how can environmental values gain a foothold? To us this seems backwards. Given the scale of what is happening in China, how can we not work there? To be sure, any impact will be small on a relative basis, but then again, even small gains can yield enormous benefits. And while China has traditionally been a closed society, Professor Wang's comment, referring to NRDC, that "not all foreigners are bad," drew a hearty laugh from the assembled judges and lawyers.
The obstacles to genuine and effective public participation are substantial. In terms of litigation, there are too few judges to handle a surge in environmental suits, and too little judicial independence to assure impartial rulings. In one case CLAPV litigated successfully, a doctor who testified for a class of plaintiffs was stripped of his license.
Despite this, and perhaps because of it, NRDC's partnership with CLAPV aims in precisely the right direction: to increase -- and increase the effectiveness of -- public participation in environmental matters.
last revised 12/19/2006
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