Rachel E. Stern

China's environmental prosecutors may be busier suing small-time rule-breakers than assembling major cases against polluters, suggests a new analysis

China today boasts a collection of 95 environmental courts, all of which were set up over the past six years. It is a trend that promises to re-shape Chinese environmental law.   But simply trumpeting this initiative is no guarantee the environmental courts will live up to their name by making pro-environment decisions. Indeed, initial evidence from Guiyang city in south-west China suggests that ordinary people are pursued by the courts far more often than major polluters are held to task.   With more than a half a decade behind them, it is a good time to take stock of these new institutions. What have they accomplished to date? Can they be an effective tool in China’s fight against pollution? And what does their track record suggest about everyday justice?   Two very different types of court case can help to enforce the law, raise environmental consciousness and scare polluters straight. The first is high-profile litigation that takes on major polluters, for example the lawsuits over mercury and cadmium poisoning that rocked 1960s Japan. In this regard, Chinese environmental advocates have been disappointed by the new courts’ caution. Despite occasional moments of bravery, such as the decision to accept the first lawsuit brought by a government-backed environmental group in 2009, judges are often reluctant to accept cases against big taxpayers, let alone rule against them.   The alternative is the steady trudge of everyday justice; the flow of small decisions that slowly enhance accountability. Often, the barrier to this second route of influence is volume. Most of China’s environmental courts are struggling to find enough cases to justify their existence, especially because environmental lawsuits are fairly rare and the new courts not necessarily well known. Still, a handful of green courts – notably in Wuxi, Guiyang and Chongqing – have broken the hundred-case-per-year barrier.  

Everyday justice

In Guiyang, criminal cases have been a large part of the caseload since environmental courts opened there in 2007. To better understand this aspect of the court’s work, I examined 103 publicly available decisions from the Qingzhen District environmental court’s 2010 criminal docket, roughly 80% of the criminal cases that year.   Ninety-two percent of crimes were either accidental fire setting or illegal logging. Reading between the lines, most law-breaking stemmed from poverty, a mistake (fires set by smokers who fell asleep, for example) or bad luck, as seen in a collection of cases in which wind turned an incense-burning ritual at a gravesite into a forest fire.

For the complete article, please see Chinadialogue.

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