Interview with Alexander Stark: “Environmental courts can act as catalysts for legal development in China”

30 November 2017, by Internetredaktion

The Chinese government wants to fight environmental damage. More than 450 environmental courts were set up in Beijing and in different parts of the country trying air, water and soil pollution cases. But can environmental courts solve these issues? An interview with legal scholar Alexander Stark.

Thick, yellow-brown smog often dominates pictures from China’s metropolises. Is the Chinese environmental law not good enough?

Environmental legislation in China is, as so-called law in the books, quite impressive. It has developed into a pioneering discipline of Chinese law in the past years. This legislation is differentiated and in comparative terms accurate. In addition to the Environmental Protection Law, there is the Water Law, the Air Pollution Control Law and the Water and Soil Conservation Law. This may come as a surprise – and fascinated me because, as is generally known, the environmental situation is rather weak. China is known as the world’s biggest emitter of carbon dioxide and sulphur dioxide. The country is facing severe forest dieback, water and ground water pollution and enormous desertification. The smog of course, in particular, draws the attention and it is discussed at every meal and every taxi ride.

Can environmental courts accelerate China’s environmental protection?

Environmental courts are an important element of Beijing’s comprehensive reform efforts in this area. In Wuhan, capital of the Hubei province, local authorities already made a first attempt to set up an environmental tribunal in 1989. At that time, this was prevented by the Chinese People’s Supreme Court, arguing that there was no legal foundation for such a court. Little by little, around the year 2007 – without legal foundation and without support by the Chinese government – dozens of environmental courts were set up all over the country. In 2014, there were already an estimated 450. Every Chinese citizen, every city, every enterprise and also public prosecution can file a suit at such an environmental court. Since 2014, there is an environmental tribunal at the People’s Supreme Court in Beijing. That is a sensation because this is an environmental court legitimated from the very top.

At some point within the Chinese government the assessment of environmental issues changed: Environmental protection is now in line with Chinese policy. Ecological criteria for the first time played an important role in the 11th five-year plan in 2005, right after social welfare and economic growth, which still are the most important arguments for legitimacy of the Chinese government. For almost a decade now, China has considered itself an ecological civilization. When Xi Jinping now puts the environment on top of the political agenda, this opens doors for changes, for instance when environment and innovation criteria are introduced to China's new cadre selection and promotion system. Many mayors also set up environmental courts to improve their reputation.

What exactly can environmental courts achieve?

Environmental courts can act as catalysts for legal development in China. Different cases prove the assumption that they will further increase the quality of legal decisions. In China, there are many judges who were not trained for several years at a university. They often write judgements without or with only brief legal reasoning. Environmental judges, however, in many cities get specific training. They have the depth of the environmental expertise required. They argue more juristically, which means that they refer to the relevant legal provisions, apply the correct legal terms and legal techniques such as the reversal of the burden of proof. Reversal of the burden of proof means that not the person affected has to causally prove the damage, but the other way around. For all these reasons, it becomes more predictable how a court will rule. More predictability means more legal safety.

In fact, environmental courts will also help to raise the profile of courts in Chinese society. In 2016, for the first time, a Chinese authority that had too carelessly granted environmental authorizations was sentenced. This judgement signalized that it is not pointless to sue a governmental institution. Environmental judges also increasingly improve the implementation of environmental law. Many environmental judges consider themselves as advocates for nature.

What major disincentives do Chinese environmental judges face?

Environmental courts in general still work too unregulated. They have no own procedural code at their command. So, if a citizen sues an industrial plant, the environmental court will follow the normal code of civil procedure. There are no specific terms for environmental cases. It is complicated to foresee whether a case will be accepted by a court in the first place. Moreover, there is a lack of coordination. Only few judgements are open to the public, in some cities there are dozens of environmental courts, but most have no court proceedings. It would be better to steer this top-down, reduce the number of courts, and regulate activities and local responsibilities. I would also pledge that the Chinese government raises the rank of the environmental courts to a court of special jurisdiction. These courts have their own legal basis and a high reputation. They could achieve an even more sustainable impact on the environmental awareness.

Does setting up environmental courts also have an impact on European entrepreneurs who are operating in China?

Just like Chinese entrepreneurs, Europeans should be more sensitive towards what environmental regulations exist in China. Today, there are lawsuits filed against firms that would not have been filed 10 to 15 years ago. You cannot buy yourself free from obligations so easily any more either; you really have to adjust your production processes. Environmental issues receive increasing media attention which builds up pressure on the enterprises as well.

Alexander Stark, 29, is pursuing a PhD in law at Universität Hamburg. Previously, he studied law and philosophy in Augsburg and Hamburg and Chinese in Wuhan. In 2017, he was honoured for excellent teaching with the teaching award by the Senate of the Free and Hanseatic City of Hamburg. With his book "Environmental Courts in China" (published in German) he presented one of the first German research papers on environmental law in China. For this, he carried out research for three months in Beijing with a China-EU School of Law PhD Short Stay Scholarship.