This paper (click the link above) is a good introduction to the legal framework that surrounds environmental protection, and why it doesn’t work as well as it might, in China. Perhaps one of the most telling observations in this piece is one Professor Ryan (http://law.lclark.edu/live/profiles/286-erin-ryan/) mentions as an aside at the beginning i.e. many of her sources have asked to remain anonymous.
The government is now addressing the so-called ‘second wave’ of environmental governance where exhortation must be replaced by implementation. The ongoing conflict of policy versus law, where the former usually prevails, is a persistent challenge but overall the Professor believes ‘..efforts [To date] warrant considerable praise’. She notes guidance from the Supreme Court in 2013 allowing for the death penalty for serious violators as an example of the seriousness with which the government now focus on these issues.
She concludes with two suggestions for improvement in the legal system which would help not only process with regard to environmental issues but also the judiciary in general. The first would be to allow guaranteed access to the courts for all legitimate claims. At present many environmental cases are turned away because courts are overloaded and environmental cases are seen as technical, time consuming and complex. The second change would be to allow ‘unfettered’ public viewing of trials. Presently even open trials require personal details of observers to be given up at the door which is a significant barrier to public participation.
An independent judiciary in China is a pipe-dream with no real chance of implementation unless proceeded by considerable political upheaval, which nobody wants. Gradualism in the right direction, the hallmark of all progress in China in recent years, is likely to characterize progress in this area and at the end of this piece Professor Ryan notes significant and encouraging changes to the original environmental laws put in place in 1989 (covered in this article in the Huffington Post http://www.huffingtonpost.com/erin-ryan/chinese-environmental-law_b_5234210.html headlined ‘The Paper Tiger Gets Teeth:..’).
The overall situation here then seems to be a metaphor for China in general. Not as good as it could be; but heading in the right direction.
Happy Sunday.
[*Ryan, Erin, The Elaborate Paper Tiger: Environmental Enforcement and the Rule of Law in China (2014). 24 Duke Environmental Law & Policy Forum 184 (2014); Lewis & Clark Law School Legal Studies Research Paper No. 2014-11. Available at SSRN: http://ssrn.com/abstract=2420677]