China’s environmental problems are well propagated. In 2019, the most dangerous air pollutants in Beijing were at concentration levels four times higher than the World Health Organizations deems safe for human tolerance; at least 60 percent of the country’s groundwater has been declared of “bad” or “very bad” quality since 2013; and two thirds of the Chinese population experience excessive light pollution during nighttime hours. While the figures are worrying, China has made efforts in recent years to tackle this problem and the Environmental Protection Law is at the center of the country’s stick-without-carrot approach.
A War on Pollution
In January 2015, a newly revised version of the Environmental Protection Law of the People’s Republic of China came into effect. The revision took place at the National People’s Congress in March 2014, against the backdrop of premier Li Keqiang’s speech to the same body declaring a “war on pollution.” Much of the urgency felt by Chinese leaders and legislators can arguably be attributed to the economic and health costs associated with pollution. Researchers at the Chinese University of Hong Kong estimated in 2018 that air pollution kills more than 1 million people in China and costs its economy 38 billion USD per year. Such realities have made broad swathes of society associate government success in handling pollution with very real effects on their livelihoods, which legitimizes their level of action and control.
The original Environmental Protection Law had been in effect since 1979, but the March 2014 revision at the NPC brought in new tools to deal with polluting companies and local governments. Some overarching changes are worth mentioning, such as giving environmental protection the status of basic national policy and requiring that economic development should be coordinated with environmental protection. Some of the more specific changes were making it more costly to harm the environment by, for example, placing senior management in companies as personally responsible for violations for each day of the offending act as opposed to the previous rules where they were fined per occasion. Additionally, and also perhaps most consequentially, through the revised version, NGOs in China now have the permission to bring public interest lawsuits against polluters, where they were previously only allowed to seek damages for personal injury to individuals.
Legal Steps Forward, but Questions Marks Remain
How has China’s legal efforts against pollution – and specifically the efforts of NGOs to bring cases against polluters – then fared since the alteration of the law in 2014 and its coming into effect in 2015? One Chinese law firm recently described China’s new environmental policies as “robustly enforced,” citing the so called Taizhou Case and Nanping Case in 2014 and 2015 respectively, where polluting enterprises were fined and individuals sentenced to prison in public interest lawsuits filed by environmental groups.
NGO leaders and environmental law experts were encouraged by the ruling in the Nanping Case, which was handed down after the change to the Environmental Protection Law, but at the same time underlined that it is easier in some areas of China than others to get a case heard. In central and western China, a representative of the China Biodiversity Conservation and Green Development Foundation said, courts sometimes worry about causing trouble for the local government, while prospects are better in Beijing and other economically developed areas.
This issue highlights the question observers like Zhang Chun at China Dialogue asked when the law was revised: what would happen when an NGO filed a lawsuit against a government entity? In 2017, the prominent Beijing NGO Friends of Nature failed in its two cases against a local Environmental Protection Bureau in Yunnan, as its right to bring a suit citing infringement on public interest was not recognized by the court. A stipulation in the law that can cause problems for NGOs states that they must have a continuous registration with the government for a minimum of five years in order to initiate a public interest litigation. Many fail that qualification simply due to the prevalence of re-naming or management change.
Furthermore, legal scholars like Stanley Lubman at the Berkeley Law School, University of California have pointed out that public litigation in China can only achieve so much as the Communist Party of China wants it to achieve. This makes it clear that the fundamental limitation is political, rather than legal, on what is possible to do in order to keep pollution at low levels in China. At present, there is much attention both from the Chinese public and the government on the issue of pollution, and as such it is precisely now that room exists for legal developments that empower NGOs in the environmental sphere. That might change when political priorities change.
Dividing the Labor
Given both the technical and systemic realities, environmental public interest litigation against government agencies in China may continue to be a unique competency of the government itself. Another legal trend in recent years points in this direction: in 2017, China’s Civil Procedural Law was amended to reaffirm that state procuratorates, under the Supreme People’s Procuratorate, can initiate public interest litigation. Between January and November 2018, 89,000 cases were handled by prosecutors, out of which 90 percent of the cases were brought against government agencies.
Therefore, what appears to be developing is an environmental public interest litigation system where government prosecutors go after government entities, and non-governmental organizations handle infringements on the public interest by companies. The government’s “war on pollution” could be a temporary measure until pollution levels are measurably lower, but the effects on how the legal system and actors within it function – like NGOs – might not be. NGOs are learning by doing, gaining new knowledge of how to carry out public interest litigation, not least through collaboration with prosecutors on certain cases. This boosts a system based on synergies between the state and civil society – and a civil society dependent on the state. However, it arguably also functions as a capacity building exercise for civil society, through which organizations learn how to advance environmental public interest litigation in a bureaucracy with “Chinese characteristics.”