Castles Made of Sand: Public-Interest Litigation and China’s New Environmental Protection Law

By Daniel Carpenter-Gold

It has long been a truism that China’s environmental legislation is plentiful and powerful, but only unevenly enforced. Given China’s reputation as an authoritarian state with immense capacity to regulate its citizens, this is counter-intuitive. To understand the latest environmental legislation in China, we must make sense of this seeming paradox. The lack of enforcement is a product of a governance structure that entrusts local governments with substantial power over the local environmental protection organs and local courts, incentivizing short-term economic development at the cost of environmental protection. Public-interest litigation can help to mitigate this problem because China’s new Environmental Protection Law encourages action by citizens, who are directly affected by pollution and therefore difficult to coopt. However, litigation cannot guarantee regulation without a stronger judiciary. This reality suggests that the national government might instead intend environmental suits to serve as a monitoring, rather than a regulatory, mechanism.

Cite as: Daniel Carpenter-Gold, Castles Made of Sand: Public-Interest Litigation and China’s New Environmental Protection Law, 39 Harv. Envtl. L. Rev. 241 (2015).

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