On the Frontlines: Making Decisions in Chinese Civil Environmental Lawsuits

Abstract

This article looks at forty-two decisions in civil pollution cases in China as a window onto judges' political logic and the accompanying implications for environmental enforcement. The starting point is a typology of judicial decision making in one-party states based on two dimensions of decisions: the degree of legal formality (e.g., how closely judges adhere to the letter of the law) and individual autonomy (e.g., judges' power to make decisions in individual cases). Mapping pollution decisions onto this typology highlights shifting judicial strategy. While Chinese judges typically comply with instructions when the political pressure is dialed up, a combination of shifting incentives, uncertainty about the law, and political ambiguity can also allow de facto discretion in low-profile, run-of-the-mill cases. Everyday cases tend to cluster under the rubric of "rough justice" in which judges weigh competing political priorities and aim for a livable compromise that dents but upholds the status quo. This sample of cases also shows judges occasionally innovating at the margins by offering new legal interpretations or validating new types of claims. Although Chinese courts remain weak tools for environmental protection, limited innovation suggests that they can help nudge along local incremental social change.

China's Responsiveness to Internet Opinion: A Double-Edged Sword

“…Nonetheless, for most day-to-day cases, judges have increasing latitude in adjudicating according to the merits of a case. Judges are even able to rule on potentially sensitive environmental cases with a degree of judicial professionalism, though this autonomy often depends on the local situation (Stern 2010). As Zhu Suli, the former head of the Peking University Law School, puts it, the party's influence is "ubiquitous at every level and in every aspect of contemporary Chinese society", but […] its influence on the judiciary is "general and diffuse" (Hou and Keith 2012: 63, quoting Zu Suli).…”

Reorienting Regulation: Pollution Enforcement in Industrializing Countries

“…In her article in this issue, Rachel Stern (2010) examines the decisions of local Chinese courts in pollution compensation cases to discern the factors that influence judges. She views judicial decision making in a one‐party state as varying along two axes: the degree of legal formality, reflecting how closely the judges adhere to the letter of the law; and the degree of individual autonomy, reflecting how much power judges have to decide individual cases without interference from the political party.…”

Law and Courts in Authoritarian Regimes

“…According to Barros (2002), the 1980 Chilean constitution and the Tribunal Constitucional were designed to arbitrate among the four branches of the military. 4 Similarly, Skidmore (1988) andStepan (1971) explain that the junta ruling Brazil from 1964 to 1985 had institutionalized a rotation of power and codified concrete limits on presidential powers in order to prevent the regime from slipping into a personalistic form of authoritarian rule. Albertus & Menaldo's (2012) large-N study suggests a more general pattern.…”