- Environmental Litigation in China: A Study in Political Ambivalence by Rachel E. Stern
It is well known that China has both an authoritarian government and a tremendous environmental challenge. Less widely recognized, at least outside the community of Asian Studies scholars, is that over the last three decades the Chinese central government has pushed, albeit with varying degrees of enthusiasm, to establish a stronger and more comprehensive legal system. Rachel Stern’s important new book examines the relationship among these three elements: authoritarianism, pollution, and the legal system. Seeking to tease out how the three influence one another, Stern offers a succinct, insightful analysis of the role of environmental litigation in China. Based on extensive field research in China involving more than 170 interviews and the review of dozens of environmental legal cases, Stern’s work is a highly engaging portrayal of the legal system in action that simultaneously addresses questions of fundamental importance to Chinese politics and environmental protection. While scholars and graduate students are the book’s main audience, the cogent prose and deft use of examples make this book accessible to a far wider range of readers than the typical academic study. Upper-level undergraduate students and those with a general interest in China or law and society will find this book a valuable read.
Stern’s book starts with an important observation: China is a country of contradictions and conflicting aspirations. It is, for example, a communist country instituting capitalist reforms and a one-party political system in which there are nominally democratic experiments such village elections. Most relevant to Stern’s work, China’s leaders are seeking to gain the economic and social benefits of a strong legal system while simultaneously maintaining the Communist Party’s monopoly on political power. The central government is also aiming to protect the environment and avoid the social instability that widespread pollution causes, without sacrificing its primary mission of promoting economic growth. As Stern documents admirably, these contradictions lead to ambiguity and mixed signals from the political leadership about the value of public litigation. This ambiguity means that lawyers, judges, citizens, and activists have to tread lightly when considering environmental legal cases, but it also opens up space for innovation and experimentation in using the court system as a tool for environmental protection. This potential for innovation raises three vital questions, which are the focus of Stern’s book. To what extent does the legal system offer a viable option for [End Page 145] addressing China’s significant and growing pollution challenge? How useful is the law to Chinese citizens seeking to resolve environmental disputes? To what extent is the development of environmental litigation, and, more broadly, public interest law, changing the Chinese political system?
Her answers to each of these questions, which she addresses in seven empirical chapters, tend toward the pessimistic end of the spectrum. Despite the rapid expansion of China’s environmental law, and its legal system more broadly, the law is a tool with only a limited ability to protect citizens or the environment. In fact, Stern’s book leaves the impression that it is a minor miracle that any environmental dispute is ever resolved within the Chinese court system. In impressive detail, she analyzes a seemingly endless set of barriers that prevent Chinese citizens and activists from using the courts to address grievances and promote environmental protection. For instance, would-be plaintiffs have only three years from the initial discovery of a pollution-related loss to file a claim. The time they spend petitioning the local government or seeking administrative solutions, which is inevitably their first choice, counts toward the three-year limit. Moreover, there are few lawyers who specialize in environmental cases. Most lawyers that take a pollution compensation case are “occasional dabblers” (p. 176). Lawyers will often be reluctant to take cases that are unprofitable, challenge local power holders, are politically sensitive, or involve significant legwork. Both lawyers and plaintiffs often are subject to intimidation tactics by local officials or factory owners. These tactics range from the more mundane, such as...