Stanley Lubman: Failures in Enforcing China’s Green Legislation

For the Wall Street Journal’s China Real TIme blog, Chinese law expert Stanley Lubman writes about why anti-pollution laws which are on the books are so difficult to enforce in China:

There are numerous reasons why effective enforcement both by the EPBs [Environmental Protection Bureaus] and civil suits is greatly hampered. Local EPBs are only “nominally responsible” to the ministry-level Environmental Protection Administration in Beijing, as Elizabeth Economy notes in her 2004 book “The River Runs Black,” and rely on local governments for “virtually all their support.” Local government officials also benefit from higher levels of output in their region, as Gregory Chow has observed, noting that “they receive credits for economic development and sometimes bribes from polluting producers.” Local governments, the courts and the EPBs give protection to key local enterprises.

A recent study in the academic journal “China Quarterly” on the efforts of local EBPs in Hubei Province to sue polluters who had failed to pay fines provides an example of these dynamics:
In Hubei, the study reports, any discharger of wastewater must register and report on their discharges, and the reports provide the basis on which the EPBs determine any pollution levies that must be paid. If the polluters fail to comply, they may be sued both for the unpaid amount and an administrative penalty.

In 1990, the National People’s Congress adopted the Administrative Litigation Law (“ALL”), which authorized not only civil suits against government agencies for alleged illegalities, but also suits by government agencies for judicial assistance when regulated parties fail to comply with agency decisions. In the early 1990s, when the ALL was still novel, citizens were reluctant to file cases against government agencies–a problem for the administrative law divisions of some courts that faced elimination because of small caseloads. In three areas in Hubei the courts approached local EPBs and cooperated with them in enforcing levies and administrative fines.

The arrangement has been a win-win, but only in one sense. The agencies file more cases, helping the courts increase their caseloads and generate litigation fees. The enforcement cases also generate revenues for the EPBs, which use the funds to supplement their underfunded budgets. As a result, the EPBs seek fines rather than ordering polluters to take measures to reduce pollution.