Challenges with environmental laws in China

NI hao.  NRDC has a China office in Beijing that has within it an environmental law program, headed by a very talented lawyer, my friend Yan Wang.  I'm on my third visit to China to work with her and her team. 

Today I attended a meeting with the program's Fellows, Chinese attorneys who work with local NGOs on environmental issues.  The Fellows described the cases they are working on, their strategies, their successes and failures.

One thing that struck me is how similar the fact patterns of their cases are to cases we see in the U.S.  Here is a short list: 

  • Hazardous waste dumped by a river by a now-closed factory. 
  • Heavy metal pollution in the soil.
  • Risk to the habitat of a rare bird due to a proposed powerplant.
  • Invalid public environmental review process.
  • Noise pollution near a primary school. 
  • Danger to a fishery from invasive species.
  • Groundwater pollution from a fertilizer plant.
  • Noxious odors from an industrial facility.
  • "Cancer villages" along a river that ran black in the 1980s due to discharges by industry.
  • A proposal to eliminate NGO standing to bring public interest environmental cases. 

In the U.S., bringing litigation to address issues like these (except for the standing issue; see below) would be relatively straightforward.  But not so for our Chinese environmental law program Fellows who do not have the benefit of working in a system based on the rule of law in the U.S. sense, or one with an independent judiciary.  Instead, they have to create a sophisticated game plan based on sometimes-overlapping government agency jurisdictions where the agencies may have different (or inconsistent) interests in the case at hand, and where the local-level environmental regulators may be in cahoots with local development interests.  It's not a system where you can just walk into the courthouse and file a complaint asking a judge to rule against the government or powerful local economic interests.  Their jobs are way harder than mine.

Another area where this is so is the Chinese analogy to our NEPA (National Environmental Policy Act) or, in California, CEQA (California Environmental Quality Act).  In China, environmental review is done by what's called an EIA, or environmental impact assessment.  The EIA process is unrecognizable to someone who litigates NEPA and CEQA cases, as I do.  There is no public process, no disclosure of a draft EIA prior to its approval, no method for judicial review, no way to stop a project that has commenced construction or operation without going through the EIA process -- which is what happens about half the time.  Sometimes the public doesn't even know that an EIA  has been completed on a big project commencing construction in their neighborhood.

Even so, there is a proposal now under discussion at the highest levels of government to eliminate NGO standing to litigate EIA cases.  This reminds me of the perennial proposal by the far-right wing of the California development community to restrict standing to bring CEQA cases to the California Attorney General.  That proposal has never gotten much traction in Sacramento, and I hope that the same occurs to the Chinese proposal.

People here are trying to find the best way to continue China's economic growth and protect public health and the environment.  Our environmental law program Fellows are part of that effort and I feel honored to be able to work with them.