PublicParticipat_省略_terestLitigation_Wan

PublicParticipat_省略_terestLitigation_Wan

PublicParticipat_省略_terestLitigation_Wan

Public Participation in China’s Environmental Protection:

A Reflection on the Establishment of Environmental Public Interest Litigation

Wanbin Zhang, Yanying Fei

Faculty of Humanities and Social Sciences, Dalian University of Technology, Dalian, China

Abstract: China is in the midst of an environmental crisis. If we are to strengthen environmental protection and build up an ecological civilization, we must create a new environmental protection mechanism. This paper discusses public participation in environmental protection in China, and proposes for the establishment and development of environmental public interest litigation.

Keywords: public participation; environmental right; environmental public interest litigation

1. Introduction

2. China’s Environmental Legal System Fails to Adequately Protect the Environment

Over the past two decades China has experienced unprecedented economic growth; unfortunately, this torrid growth has also been accompanied by unprecedented environmental degradation. Unlike previous nations that caused environmental damage at a more modest rate on their marches toward economic strength, China has incurred

severe environmental costs well before the maturation of its 2.1. China’s Environmental Laws are, for the Most

Part, Complete and Comprehensive, But Lack economic development. As such, China is essentially a

teenage smoker with emphysema. of Effective Implementation and Enforcement Much of China’s explosive economic growth over the

China’s environmental legal framework consists past few decades emerged from the country’s adoption of

the “pollute first, control later” model of economic primarily of four levels: 1) China’s Constitution; 2) laws development. This model of development has been enacted by the National People’s Congress (“NPC”) and the followed in the past by other countries such as the United Standing Committee; 3) binding regulations, orders, States (“U.S.”), Japan, and the United Kingdom (“UK”). decisions, and other documents promulgated by the State However, China’s situation is unique in that the nation faces Council (here, through the Ministry of Environmental the consequences of severe environmental degradation well Protection); and 4) regulations, decisions, and orders before economic maturation and as it continues to strive for promulgated by provinces, autonomous regions, and

municipalities directly under the central government. maximum economic growth.

China’s environmental legal framework is relatively China’s legal system is still relatively young and

underdeveloped. Additionally, the decentralized structure of complete, broad in coverage, and comprehensive. Some of China’s environmental regulatory system serves to impede the environmental laws, however, may suffer from certain the country’s environmental protection efforts. Thus, China weaknesses. For example, certain laws contain vague faces serious economic, legal, and administrative barriers to language and are often more similar to policy statements effective environmental protection. In light of these than authoritative mandates. These provisions “encourage” formidable barriers, approaches based on public rather than require compliance, and frequently contain very participation and public interest litigation in environmental weak enforcement provisions. Still, such statutory protection efforts may provide the most viable methods for weaknesses are relatively minor when compared to China’s

serious problems with implementation and enforcement of enhancing Chinese environmental protection overall.

environmental laws and present a far less formidable barrier

to effective environmental protection.

China has created a comprehensive and complete body of environmental laws over the past three decades. Although shortcomings in some legislation have hindered environmental protection to an extent, these shortcomings are relatively minor compared to the major weakness in Chinese environmental law: lax implementation and enforcement of environmental laws.

2.2. The Prioritization of Economic Growth and

Livelihood over Environmental Protection

343 978-0-98535-401-5 © 2012 SEP.

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