Environmental Law with Chinese Characteristics

William & Mary Bill of Rights Journal Volume 11 | Issue 2 Article 3 Environmental Law with Chinese Characteristics Eric W. Orts Repository Citation Eric W. Orts, Environmental Law with Chinese Characteristics, 11 Wm. & Mary Bill Rts. J. 545 (2003), https://scholarship.law.wm.edu/wmborj/vol11/iss2/3 Copyright c 2003 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj ENVIRONMENTAL LAW WITH CHINESE CHARACTERISTICS Eric W. Orts" Environmental degradation is an increasingly serious issue in China. Economic growth without regard to environmental consequences can no longer guide policy. Increasing appreciation of the health problems and other adverse social effects of environmental problems, combined with international pressure for improvement, has recently led the governing elite in China to understand that economic development must include environmental protection. The passage of a major air pollution statute in 2000, for example, resulted from a decision at the highest reaches of government that "curbing pollution would be a priority."' In part, the central government has been motivated by the realization that the gravity of environmental problems in China could lead to social and political instability.2 The financial measure of the government's political will is considerable. After spending $43.5 billion to address environmental problems from 1996 to 2000, the government pledged to double expenditures over the next five years to $84 billion.3 Its announced goal is to reduce air, water, and soil pollution by ten percent from 2000 benchmarks. 4 In preparation for the Olympics in 2008, Beijing alone expects to expend more than $30 billion on improvements to achieve an environmental transformation of the city. 5 Professor of Legal Studies and Management, The Wharton School, University of Pennsylvania; Eugene P. Beard Faculty Fellow, Center for Ethics and the Professions, Harvard University (2002-2003). For comments, I thank participants in the symposium on the Rule of Law inChina at William and Mary School of Law and students at Wharton who heard various early versions of some of the ideas presented here. In particular, I thank Andrew Finkelstein, Stefan Krasowski, David Ho, and Kin Yee Wong who were students in my environmental management course. I also thank participants in the World Resources Institute's Business, Environment, Learning and Leadership conference held at the Bren School of Environmental Science and Management, University of California, Santa Barbara, as well as attenders of a Wharton West conference on the Future of Chinese Management. * William P.Alford & Benjamin L. Liebman, Clean Air, Clean Processes? The Struggle Over Air Pollution Law in the People's Republic of China, 52 HASTINGS L.J. 703, 747 (2001). Id. at 748. ' Michael A. Lev, Clearing Skies Over China; Demonstrating Political Will, Beijing Tackles the Cleanup ofSome of Earth'sMost PollutedCities, CHI. TRiB., Feb. 2,2002, at I. 2 4 Id ' Alan Abrahamson, Rings, Ka-Ching in Beifing; Preparing for 2008 Games, a $30-Billion Facelift Shows China's Cultural Evolution... or Is That Revolution?, L.A. TIMES, July 13, 2002, at D1. Planned environmental improvements run from a modernized sewage treatment system to the planting of thousands of acres of trees.Id. At least, the government wants to avoid embarrassment on environmental as well as other grounds. See, e.g., Be Prepared,ECONOMIST, June 13, 2002, at 15 (predicting that China will be "nervous WILLIAM & MARY BILL OF RIGHTS JOURNAL . [Vol. 1]: 545 Given the political commitment at the top to address environmental issues in China, however, the practical problem of regulatory strategy remains. How can China and its legal system best increase levels of environmental protection? Given that economic growth remains the highest priority for China, how can the country protect its natural environment without compromising economic expectations? In this Article, Isuggest some answers to these questions by considering the type and magnitude of environmental problems in China as well as different methods of environmental regulation that might be adopted to combat them. In approaching this large problem of choice of environmental regulatory strategies in China, I begin with an assumption that any recommendations coming from an outside Western observer must be careful to take into account the unique legal, political, and cultural situation of Chinese society. Direct "transplants" of Western environmental laws are unlikely to take root very easily, if at all.6 In particular, cutting-edge regulatory technology - such as sophisticated marketbased permit trading programs - are unlikely to succeed in contemporary China. To borrow a metaphor, a Cadillac should not be recommended to a country that can afford only a Volkswagen.' Environmental solutions for China should focus instead on building the basic institutional infrastructure and capacities needed for an effective and efficient administrative legal system, as well as strategies for encouraging the recognition and enforcement of basic legal rights to property, contracts, and freedom from bodily harm. Close attention to the development of indigenous nongovernmental organizations (NGOs) and independent, free-standing business enterprises that have the power to contest important environmental issues with the government would also be likely to improve the prospects for environmental protection in China. It is not accidental that some of the largest environmental disasters in modern and introspective" in its role as Olympic host). Concerns about human rights in China played amajor role in Beijing's failure in 1993 to win a bid for the 2000 Olympics. Abrahamson, supra. 6 See, e.g., Jacques deLisle, Lex Americana?: UnitedStatesLegalAssistance,American Legal Models, and Legal Change in the Post-Communist World and Beyond, 20 U. PA. J. INT'L ECON. L. 179, 259 (1999) (noting that the transplanting of Western legal concepts to communist regimes poses "peculiar and especially problematic features"). ' I owe this metaphor to Dan Tarlock, though he bears no responsibility for the context in which I am using it. An automotive analogy for Chinese environmental problems may fit in more ways than one. "The automobile," one thoughtful observer has written, "may well be the ultimate symbol of the modern environmental crisis." MARK HERTSGAARD, EARTH ODYSSEY: AROUND THE WORLD INSEARCH OF OUR ENVIRONMENTAL FUTURE 90 (1998). Given the immense environmental problems that continued Chinese economic growth powered mostly by internal combustion engines would produce, hydrogen-powered Volkswagens or hybrid Hondas are likely to have a brighter future in China than gas-guzzling Cadillacs. 2003] ENVIRONMENTAL LAW WITH CHINESE CHARACTERISTICS times have occurred in communist countries such as the Soviet Union and China.' Authoritarian regi (...truncated)