The Elaborate Paper Tiger: Environmental Enforcement and the Rule of Law in China
Lewis & Clark Law School
24 Duke Environmental Law & Policy Forum 184 (2014)
Lewis & Clark Law School Legal Studies Research Paper No. 2014-11
In recent decades, the eyes of the world have been trained on China’s remarkable feats of rapid economic development. Yet the enormous environmental toll associated with China’s growth has also drawn global attention, as Chinese air and water quality plummet to historic lows. Epic levels of environmental degradation have fueled a growing domestic consensus that China must do better at reconciling these competing goals. This article reviews the contemporary challenges facing the second wave of environmental governance in China (with an addendum addressing important environmental law amendments enacted as it went to press).
In the first wave of environmental governance, the government promulgated a series of environmental statutes that seem comprehensive — at least on paper. Nevertheless, it has become an article of faith among observers that they are superficially designed and too often unrealized for lack of meaningful implementation. Many environmental law and policy directives are crafted in aspirational form, and even those that do contain enforceable provisions are too often obstructed, for reasons both political and economic. When political patronage and economic interests take precedence over the faithful implementation of these laws, environmental protection suffers alongside other fundamental goals of good governance.
For Chinese environmental law to succeed at its increasingly urgent objectives, it must become more than an elaborate paper tiger, moving from the present era of exhortation toward a more mature era of consistent implementation and enforcement. However change unfolds, China will have to wrestle with three basic challenges that continue to obstruct enforcement efforts: (1) effective pollution source management, (2) faithful local implementation of national environmental policies, and (3) reliable judicial access by the victims of environmental harm. This article considers these three distinct hurdles and their implications for the relationship between environmental governance and broader rule-of-law challenges in China.
Part I reviews environmental enforcement lapses against polluters and the resulting groundswell of public frustration over health and safety. Part II explores the frequently broken link in the enforcement chain that occurs between central policymaking and local implementation. Part III reviews routine failures by the judicial system to provide redress for the victims of environmental harm and deterrence against future wrongdoing. Part IV considers environmental enforcement problems as a subcategory of more generalized failures of the rule of law in China. Part V concludes with a modest but concrete suggestion for advancing rule-of-law objectives through judicial reform that would materially benefit environmental governance. The proposal would facilitate greater judicial access and accountability, without imposing a fully Westernized model or triggering the massive political upheaval that most Chinese fear.
Number of Pages in PDF File: 57Accepted Paper Series
Date posted: April 6, 2014 ; Last revised: May 14, 2014
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