By Stanley Lubman, The Wall Street Journal
Days before the opening of this year’s annual meeting of the National
People’s Congress, a dramatic documentary about the profusion of
life-threatening environmental pollution in China went viral online. By
the time the documentary, “Under the Dome,” was pulled from video sites a
week later, it had been viewed over 100 million times.
More damning than its depiction of the seriousness of China’s
pollution problem was the film’s demonstration of the weakness of
China’s government in enforcing pollution limits – a weakness further
demonstrated by censors’ decision to take the film down.
A key tool for sidestepping weak government enforcement – if it is
allowed to function as intended – is the country’s recently amended
Environmental Protection Law, which makes is easier for environmental
nonprofit groups to bring public-interest lawsuits against polluters.
On Wednesday, a court in Dezhou, in eastern China’s Shandong province, accepted the first lawsuit filed under the amended law,
which went into effect on Jan. 1. In that suit, an environmental group
called the All-China Environment Federation is demanding 30 million yuan
($4.8 million) in compensation from a local glass factory that has been
repeatedly cited by environmental authorities for producing excessive
“Under the Dome,”
produced by former China Central Television anchor Chai Jing,
highlights why the amended law needs to be enforced. After detailing the
breathtaking extent of China’s pollution problem, she points to
precedents in Germany, England, the U.S. and Japan, where industrial
development created pollution dangers to which each nation responded by
creating government agencies to set standards and enforce them. She
then goes on to document how China’s Ministry of Environmental
protection has lacked similar ability to take action.
This is because, as the WSJ’s Andrew Browne noted in a recent column
on the film, “Chinese industry, much of it state-owned, disregards
regulations, sets its own standards, or manages to play off different
parts of the bureaucracy against one another.”
Lawsuits are one way for society to enforce regulations where
environmental authorities can’t or won’t. But as Chai notes in the film,
only 1% of major environmental disputes in China ever end up in court.
That’s because previously, only “relevant organizations” were allowed to
file such lawsuits.
The amended environmental protection law could change that. Liu
Jinmei, a young environmental lawyer at the China University of Politics
and Law Center’s for Legal Assistance to Pollution Victims, recently told the South China Morning Post
that she thinks “change is coming.” The revised law, she said, “is a
positive development that offers real hope to environmental lawyers and
China’s central authorities are still clearly concerned that anger
over pollution could pose a threat to social stability. This is evident
in the treatment of Chai’s film, which was censored despite having been
praised by China’s Minister of Environmental Protection. As Browne
explains, “it had become a social phenomenon that threatened to run out
Not long after “Under the Dome” was taken down, two activists in the city of Xian were reportedly detained after they had taken part in a small anti-smog protest.
If it is enforced, the revised environmental law could help improve
both air quality and social stability, in the latter case by funneling
street-level frustrations into the courtroom.
issued by the Supreme People’s Court soon after the amended law took
effect should be helpful with enforcement. It provides that
“prosecuting organs, departments responsible for supervision and
management of environmental protection, and other organs may support
social organizations in their civil public interest lawsuits, including
by assisting in investigation and collecting evidence.” The
interpretation also directs the people’s courts to “investigate and
collect evidence that it deems necessary for the trial of an
environment-related civil public interest lawsuit.”
One lingering question is which sorts of organizations will find
success in filing pollution lawsuits. It’s noteworthy that the plaintiff
in the first case, the All-China Environment Federation, is a group
with close ties to the government. Will more independent groups also be
able to sue polluters?
Ms. Chai has successfully called attention to the amended
environmental law. The tools for enforcement now exist, but there must
be a willingness to use and improve them. The environmental ministry’s
authority to support suits by NGOs against polluters needs to be
exercised vigorously. Given the danger of pollution to hundreds of
millions of Chinese, increases in manpower, funding and resources for
NGOs and citizens who want to sue polluters are urgently needed now.
Stanley Lubman, a long-time specialist on Chinese law, is a
Distinguished Lecturer in Residence at the University of California,
Berkeley, School of Law. He is the author of “Bird in a Cage: Legal Reform in China After Mao” (Stanford University Press, 1999) and editor of “The Evolution of Law Reform in China: An Uncertain Path” (Elgar, 2012).