Books: scaling legal barriers

Wang Jin and Zhang Yan delve into a volume in which Chinese and American scholars explore the intricacies of environmental public-interest litigation in their countries. What route can China take?

Environmental Public-Interest Litigation: A China-US Comparison
Lu Zhongmei and Alex Wang (editors)
Law Press, 2009

Traditionally, only those directly affected by a situation could bring environmental litigation in China. However, the law clearly allows for “any person” to bring a case in the public interest, making this one of the key means for people to participate in the enforcement of environmental law.

Environmental Public-interest Litigation: A China-US Comparison examines the issues surrounding this topic. The book is the result of a partnership between the Environmental Resources Law Institute at Zhongnan University of Economics and Law and the China project of the Natural Resources Defense Council (NRDC) in the United States. Edited by professor Lu Zhongmei and Alex Wang, director of the NRDC’s China Environmental Law Project, the book gathers 19 articles, seven by Chinese academics and 12 by American scholars.

The Chinese-written articles start with the theoretical core of the environmental public-interest litigation system, exploring its nature, function and value, along with legal issues of competence, objects and process.

Lu reviews existing Chinese research on the nature, plaintiffs and objects of environmental public-interest litigation, while Cheng Hongbo looks at the function of litigation, an issue on which research is relatively weak, as part of a targeted analysis of the system. Song Xiaodan introduces and evaluates the two current views of improvement and reform. Huang Zhongxian avoids the more frequently researched fields to analyse and discuss the motives for environmental public-interest legislation.

Zhao Lixin, Liu Chao and Rao Zhongxiang examine actual research issues, including ideas for assistance for public plaintiffs, identifying the competences of prosecutorial authorities and the practicalities of the litigation process.

Meanwhile, the American-written pieces are more focused on competences, with case studies used to demonstrate how environmental public-interest litigation has developed and now operates in the United States. The papers introduce and explore four decades of experience of environmental litigation and its role in protecting the environment and public health. As Wang Lide points out, the federal Clean Air Act of 1970 provided for litigation by the public. Subsequently, similar provisions featured in most major federal environmental legislation. In the United States, the courts often are relied upon to be the final executor of the law – hence the American writers’ focus on case studies.

The significant case studies presented demonstrate the design, development and future trends of the system. Some articles use them to discuss key issues, citing the cases Ailor vs Maynardville, Bennett vs Spear, National Wildlife Federation vs Cleveland Cliffs Iron Company and theAnimal Legal Defense Fund Inc. vs Glickman. Consideration of these cases explains some of the key principles of public litigation. Meanwhile, court decisions — including majority and opposing views — answer some of the long-standing questions about public litigation and even the public’s participation in environmental law enforcement.

As noted in the book’s preface, there is still a chronic lack of enforcement of laws and regulations. This is not just the case in China; other nations, including the United States, suffer from the same problem. Lawyer Michael E Waller writes that, in part, the existence of public litigation shows that the United States will never have the resources to monitor every single source of pollution, and that the residents living near those sources often are the most economic and effective enforcers of the law. So, public litigation has played in immeasurable role in improving enforcement. The study and application of US experience in legislation, theory and practice will assist China solving its own problems in environmental law enforcement.

The most notable feature of the book is its focus on practice, and the consideration of the gap between theory and practice in environmental jurisprudence. Almost all contributors point out that a road forward for environmental public-interest litigation will be found only through practice. Clearly, the academics are aware of the pressing lack of research in this area and are working to combat this. These are efforts that deserve acknowledgement.

The dialogue between China and the United States described in the book reflects differences in points of view and research methods, and also raises issues of adoption and localisation of legal systems. Can the environmental litigation arising from the American system of public litigation be transplanted to China and help the country reach its current environmental goals?

In the mid-1980s, an environmental court was established in the Qiaokou district of Wuhan to strengthen enforcement of environmental laws. More local courts are now following this example in order to allow public litigation. Recently, courts in Guiyang and Wuxi have accepted cases brought by the environmental NGO All-China Environmental Federation – a breakthrough in competences in environmental public-interest litigation.

Overall, though, even if environmental interest disputes can be handled within existing law, they may not be handled appropriately. It is not just a question of legislation; there also are issues of a lack of judicial independence and the ability and specialisation of judges. Without actual procedural regulations, judges have huge leeway. How they use that leeway may well be based on the aims of local officials and the background and influence of those involved in the case at hand, rather than justice.

In late 2005, six teachers and students from Peking University attempted to bring a case against PetroChina over its pollution of the Songhua River. They failed, with the court refusing to hear the case. This loss was not due to the legal system itself, but to the political inertia of the courts. When a court does not dare to accept a case, or to clearly state a cause for refusal, no amount of reason or debate will help.

Existing laws and legislation do not specifically allow for environmental public-interest cases – so how to break through the limitations of China’s legal system and avoid the obstacles caused by a lack of fundamental rights? With a lack of judicial independence, judicial capacity, awareness of citizens’ rights and specialised knowledge, what route can we take to build an environmental public-interest litigation system? Much exploration is still necessary, and perhaps the answer is hidden in the academic conversation contained in this book.

Wang Jin is a professor at Peking University School of Law.
Zhang Yan is a PhD student at the law school.