Posted on June 27, 2018 by Leslie Carothers
ACOEL blog readers sorry to see the U.S. retreat from international leadership on the environment may be encouraged to learn that, on the other side of the world, the government of China is determined to copy some signature U.S. strategies to accelerate pollution control in their country. Specifically, the National People’s Congress enacted comprehensive revisions to its Environmental Protection Law in 2015, including provisions to increase public reporting of pollution releases to accompany many existing regulatory laws. The revisions, along with other recent legislation, also empowered public interest plaintiffs from non-governmental organizations (NGOs) registered with the government, as well as prosecutors to engage in aggressive public interest litigation, to enforce anti-pollution and clean up requirements.
Many countries have strong environmental laws, but most struggle to build and maintain effective programs to implement and enforce them. For many years, China has stressed the overriding importance of economic and employment growth. Provincial governments with major responsibility for enforcement have been measured on economic indicators and not by success in abating pollution. But the growing level of public protest over worsening pollution and waste disposal practices has compelled the national government to add environmental performance to the priorities of provincial and local governments and to experiment with new legal tools to improve it.
The Environmental Law Institute is playing an important role with a Chinese partner, the China Environmental Protection Foundation (CEPF), in providing training to environmental lawyers and others from NGOs, as well as prosecutors and judges, to help educate them on the new Chinese laws and to share the U.S. experience with public interest litigation and statutory citizen suit provisions in environmental cases. The impact of NGO and other citizen plaintiffs on implementing U.S. environmental law has been immense. During the 1970s and 1980s, suits against companies where government had not acted against permit violations and suits against government for failure to meet statutory deadlines for other requirements channeled strong public pressure and achieved significant results. The most notable recent example is the petition by environmental NGOs, renewable energy firms, and states to require the U.S. EPA to make a finding that motor vehicle emissions of greenhouse gases could be “reasonably anticipated to endanger public health and welfare” under Title II of the Clean Air Act. This lawsuit produced the Supreme Court decision in Massachusetts v. EPA, Massachusetts v. EPA, 549 U.S. 497 (2007), requiring EPA to make a finding whether or not an endangerment was presented. The evidence, most people would agree, supported only one answer. The endangerment finding was made, upheld by the D.C. Circuit, Coalition for Responsible Regulation, Inc. v. EPA, 684 F. 3d 102 (D.C. Cir. 2012), and left standing by the Supreme Court, which declined to review the finding.
The five workshops on public interest lawsuits organized by Tianjin University Law School, CEPF, and ELI have each assembled around 50 NGO staff, prosecutors, judges and other lawyers for three days of teaching on Chinese law by Chinese experts and officials and one day by ELI lawyers, including volunteers like me, and ELI’s Chinese- and U.S.-trained lawyer, Zhuoshi Liu, who also coordinates the planning. Language challenges notwithstanding, I can attest that the Chinese participants show keen interest in the presentations and ask many thoughtful questions of the speakers. It is too soon to know whether this new initiative to take more problems to court will succeed. Certainly, the Chinese plaintiffs do not yet have the body of public reports disclosing violations that made U.S. cases easier to develop, and they and China’s well-educated judges need greater access to scientific and technical support to find violations and order appropriate relief. The NGOs could also use the help of private law firm lawyers in China willing to undertake cases pro bono as some do in the U.S. In any case, it is exciting and encouraging to be able to work with dedicated Chinese lawyers and other professionals in the early stages of a serious drive in China to rank environmental protection much higher on the nation’s agenda and to gain clearer skies and cleaner land and water for its people.