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Agency Empowerment through the Administrative Litigation Law: Court Enforcement of Pollution Levies in Hubei Province*

Published online by Cambridge University Press:  18 June 2010

Xuehua Zhang ,
Leonard Ortolano  and
Zhongmei Lü
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Abstract

The existing literature on China's 1989 Administrative Litigation Law (ALL) has rarely discussed a minor provision that permits administrative agencies to enlist court assistance in enforcing administrative decisions. Focusing on court enforcement of pollution levies, this study examines how and why ALL has been employed so extensively by administrative agencies, environmental protection bureaus (EPBs) in this context. The study is based on interviews with judges, EPB officials and polluters involved in court actions as well as court statistical data from 1992 to 2005 for Hubei province. EPBs' heavy reliance on court enforcement for collecting pollution levies and fines resulted from incentives that encouraged the formation of mutually beneficial relationships between courts and EPBs in the 1990s. Court involvement has enhanced EPBs' enforcement powers, but the courts' engagement in enforcement has neither curtailed EPBs' arbitrary exercise of discretionary power nor induced polluters to reduce waste discharges.

Type
Articles
Information
The China Quarterly , Volume 202 , June 2010 , pp. 307 - 326
Copyright
Copyright © The China Quarterly 2010

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References

1 Hanbin, Wang, “Guanyu zhonghua remin gongheguo xingzheng susongfa (caoan) de shuoming” (“Explanations of the (draft) Administrative Litigation Law of the PRC”), Chinese Law and Government, Vol. 24, No. 3 (1989), pp. 35–43CrossRefGoogle Scholar.

2 See Finder, Susan, “Like throwing an egg against a stone? Administrative litigation in the People's Republic of China,” Journal of Chinese Law, Vol. 3, No. 1 (1989), pp. 1–28Google Scholar; Potter, Pitman, “The Administrative Litigation Law of the PRC: judicial review and bureaucratic reform,” in Potter, Pitman, Domestic Law Reforms in Post-Mao China (New York: M.E. Sharpe, 1994), pp. 270–304Google Scholar; Pei, Minxin, “Citizens v. mandarins: administrative litigation in China,” The China Quarterly, No. 152 (1997), pp. 832–62CrossRefGoogle Scholar; Peerenboom, Randall, China's Long March Toward Rule of Law (Cambridge: Cambridge University Press, 2002)CrossRefGoogle Scholar; Robyn Marshall, “Administrative law in the People's Republic of China: a process of justice,” PhD dissertation, Australian National University, 2003; Gechlik, Mei Ying, “Judicial reform in China: lessons from Shanghai,” Columbia Journal of Asian Law, No. 97 (2005), pp. 97–137Google Scholar; Ruixiang, Gong, Fazhi de lixiang yu xianshi (The Ideal and Reality of the Rule of Law) (Beijing: Zhongguo zhengfa daxue chubanshe, 1993)Google Scholar; Mingan, Jiang, Zhongguo xingzheng fazhi fazhan jincheng diaocha baogao (An Investigation Report of the Development of China's Administratiion According to Law) (Beijing: Falü chubanshe, 1998)Google Scholar; Songnian, Ying and Shuhong, Yuan, Zouxiang fazhi zhengfu: yifa xingzheng lilun yanjiu yu shizheng diaocha (Toward the Government by Law: Theoretical Research and Empirical Investigation of Administration According to Law) (Beijing: Falü chubanshe, 2001)Google Scholar.

3 The absence of NAECs in ALL-related literature might be partly explained by the way Chinese court statistics are presented. In the annual China Law Yearbook (Zhongguo falü nianjian), NAEC statistics have consistently appeared in tables related to court execution cases, not in tables containing litigation lawsuits such as ALCs. This could lead scholars to consider NAECs as just another type of court execution case with no link to ALL.

4 Examples are Guoqiang, Wu, “Lun feisusong xingzheng zhixing” (“Discussion on non-litigation administrative execution”), Xingzheng faxue yanjiu (Studies in Administrative Law), No. 3 (1999)Google Scholar; Li Qing, “Woguo feisusong xingzheng zhixing zhidu yanjiu” (“Research on China's non-litigation administrative execution system”), Master's thesis, Law School of Sichuan University, 2004.

5 Examples are Sinkule, Barbara and Ortolano, Leonard, Implementing Environmental Policy in China (Westport, CN: Praeger/Greenwood, 1995)Google Scholar; Ma, Xiaoying and Ortolano, Leonard, Environmental Regulation in China: Institutions, Enforcement, and Compliance (Lanham, MD: Rowman & Littlefield, 2000)Google Scholar; Tilt, Bryan, “The political ecology of pollution enforcement in China: a case of Sichuan's rural industrial sector,” The China Quarterly, No. 192 (2007), pp. 915–33Google Scholar.

6 Tang, Shui-Yan, Lo, Carlos W.H. and Fryxell, Gerald, “Enforcement styles, organizational commitment, and enforcement effectiveness: an empirical study of local environmental protection officials in urban China,” Environment and Planning, Vol. 35 (2003), pp. 75–94CrossRefGoogle Scholar.

7 Lo, Carlos W.H. and Tang, Shui-Yan, “Institutional reform, economic changes and local environmental management,” Environmental Politics,Vol. 15, No. 2 (2006), pp. 190–210Google Scholar.

8 Abigail Jahiel, “Policy implementation through organizational learning: the case of water pollution control in China's reforming socialist system,” PhD dissertation, University of Michigan, 1994, p. 416.

9 van Rooij, Benjamin, Regulating Land and Pollution in China, Lawmaking, Compliance, and Enforcement; Theory and Cases (Leiden: Leiden University Press, 2006), pp. 302–03Google Scholar. Van Rooij used data reported by the State Environmental Protection Administration (SEPA) to illustrate that the number of ALCs are few and EPBs nearly always win them. Contrary results were found in the Hubei province fieldwork conducted by Xuehua Zhang, “Enforcing environmental regulations in Hubei province, China: agencies, courts, citizens,” PhD dissertation, Stanford University, 2008. Zhang found that the number of ALCs reported by SEPA was significantly lower than the corresponding number reported by the Supreme People's Court. This discrepancy resulted primarily because county/urban district EPBs have frequently reported to SEPA only those ALCs in which they won. Using extensive court records and interviews with judges, EPBs, lawyers and plaintiffs, Zhang showed that EPBs in Hubei frequently lost in court. She also found that many ALCs had notable effects on the procedures and behaviours of sued EPBs.

10 For details on research design and data collection, see Xuehua Zhang, “Enforcing environmental regulations in Hubei province,” pp. 238–46.

11 Zhang, Shuyi, “Xingzheng susong fa (caoan) ruogan zhenglun wenti zai sikao” (“Examination of several controversial issues in the (draft) Administrative Litigation Law”), Chinese Law and Government, Vol. 24, No. 3 (1991)Google Scholar; Potter, “The Administrative Litigation Law of the PRC.”

12 “Administrative Litigation Law of the PRC,” translation in Chinese Law and Government, Vol. 24, No. 3 (1991), p. 22 (no author given).

13 NAECs are classified as “court execution cases” because the court is executing an order. However, they differ significantly from typical court execution cases, in which the order results from litigation cases heard by courts. In those instances, if the parties do not comply with court rulings, the courts execute their own decisions; there is no need to review the cases prior to execution.

14 The first procedural guidance pertaining to NAECs was in the “Supreme People's Court Opinion on Some Issues Relating to the Implementation of the Administrative Litigation Law” adopted in 1991; recent and extensive guidance is in the 2000 “Supreme People's Court Interpretation on Some Issues Relating to the Implementation of the Administrative Litigation Law.”

15 For an overview of the levy system, see Chinese Research Academy of Environmental Sciences (CRAES), A Report on the Study of Design and Implementation of China's Pollution Levy System (Beijing, 1997)Google Scholar.

16 “Public service units” in China generally refers to subsidiaries of governmental agencies that perform social or public functions, partly or fully on a self-financing basis. Examples are schools, hospitals and state-owned hotels. In 2003, the State Council issued the “Management Regulation of Collection and Utilization of Pollution Levies” to expand the scope of the levy system to all units, including individual industrial and commercial businesses.

17 For more on the regulation, see http://law.lawtime.cn/d504167509261.html/pos=1, accessed 8 April 2008.

18 AE0605311, AE0605291, BE0511181, BE0511281, CE0510313, CE0506301. To protect the confidentiality of interviewees, they are identified only by reference letters and numbers. The first letter indicates the study location (A, B or C). If an interviewee is not from one of the three study locations the first letter is omitted. The second and third letters indicate the type of interviewee: E = EPB official, J = judge, PS = polluting source, and N = other. The first six digits of the number indicate the date of the interview (year-month-date) and the last digit distinguishes multiple interviews in one day.

19 Such discretionary power exercised by EPB inspectors and leaders has also been observed by others; see Sinkule and Ortolano, Implementing Environmental Policy; Hills, Peter and Man, Chan S., “Environmental regulation and the industrial sector in China: the role of informal relationships in policy implementation,” Business Strategy and the Environment, Vol. 7, No. 2 (1998), pp. 53–703.0.CO;2-D>CrossRefGoogle Scholar; Van Rooij, Benjamin, “Organization and procedure in environmental law enforcement: Sichuan in comparative perspective,” China Information, Vol. 17, No. 2 (2003), pp. 36–64CrossRefGoogle Scholar.

20 AE0605311, AE0606052, AE0606051, AE0606121, BE0511281, BE0511243, CE0511031.

21 AE0606121. Van Rooij, “Organization and procedure,” also found that EPB leaders in Sichuan province played a central role in deciding penalties and had wide discretionary powers.

22 State Environmental Protection Agency (SEPA), Zhongguo huanjing baohu fagui quanshu (2002–2003) (Full Collection of China's Environmental Protection Laws and Regulations in 2002–2003) (Beijing: Huaxue gongye chubanshe, 2003), pp. 235–36Google Scholar.

23 CRAES, A Report on China's Pollution Levy System; Ma and Ortolano, Environmental Regulation in China.

24 An interview with Lu Xinyuan, the director of SEPA's Environmental Supervision Bureau on 5 November 2007, identified those two factors as the main causes of the failure to collect levies fully. China Environmental News: http://www.mep.gov.cn/law/hjxzxk/200711/t20071105_112544.htm, accessed 26 March 2008.

25 This problem is well documented by Jahiel, Abigail, “The contradictory impact of reform on environmental protection in China,” The China Quarterly, No. 149 (1997), pp. 81–103CrossRefGoogle Scholar; CRAES, A Report on China's Pollution Levy System; Ma and Ortolano, Environmental Regulation in China.

26 Jahiel, “The contradictory impact of reform,” p. 96.

27 BE0511181, CE0511031.

28 AE0605291, BE0511243, BE0511281, BE0507051, CE0510171, CECE0511042. A similar EPB internal “contractual responsibility system” that evaluated the successful implementation of the pollution levy system in monetary terms was also observed in Wuhan by Jahiel, “The contradictory impact of reform”; and in other parts of China by Economy, Elizabeth, The Case Study of China: Reforms and Resources: the Implications for State Capacity in the PRC (Committee on International Security Studies, American Academy of Arts and Sciences, 1997)Google Scholar.

29 BE0511252, CPS0511066. In addition, strong personal relationships between courts and EPBs also contributed to the large number of EPB-initiated NAECs in District A and County C.

30 AE0605261, AE0606121, BE0607101, CE0510171, CE0511051, CE0511031, AJ0606071, BJ0511231, J0606151.

31 AE0606121, AE0605261, CE0511023, CE0511051, CE0511042, AJ0606071, BJ0511241, CJ0511092.

32 BE0511281.

33 Pressure on local courts to increase ALL caseloads has been widely reported. Jiang Mingan, An Investigation Report; Wu Guoqiang, “Discussion on non-litigation”; Li Qing, “Research on China's non-litigation”; Supreme People's Court's Administrative Division (SPCAD), Zhongguo xingzheng shenpan yantao: 99 nian quanguo fayuan xingzheng shenpan gongzuo huiyi cailiao huibian (Discussion on China's Administrative Adjudication: Material Compilation of the 1999 National Court Conference on Administrative Adjudication Work) (Beijing: Remin fayuan chubanshe, 2000)Google Scholar.

34 J0606133, J0606151, J0606051, AJ0606071, AJ0605221, AJ0606133, BJ0511231, CJ0510211.

35 Longstanding unwillingness of individuals in Chinese society to challenge official power in the 1990s has been mentioned by many scholars and Chinese judges. Jiang Mingan, An Investigation Report; Peerenboom, China's Long March; Marshall, Administrative Law in the PRC; Huang, “On the Administrative Litigation Law.”

36 J0606051. A legal scholar, in reporting on the scarcity of ALCs at a county court, observed that many activities other than case trials were created to legitimize the existence of the administrative division. See Sida, Liu, “Beyond global convergence: conflicts of legitimacy in a Chinese lower court,” Law & Social Inquiry, Vol. 31, No. 1 (2006), pp. 75–106Google Scholar.

37 J0606151.

38 In the mid-1990s, SPC ordered circuit courts to disband.

39 AJ0606071, AJ0605221, AJ0606133, J0606051, J0606151, CE0605291.

40 BE0607101.

41 Based on the authors' review of China Environmental News.

42 This rule is applicable to all government agencies including courts. For the history of this rule, see Lo and Tang, “Institutional reform.” In contrast to our findings, Lo and Tang found that the new rule had helped to “reduce the incentives for EPB officials to focus their efforts predominately on collecting pollution fees and fines” in Guangdong (p. 198), a relatively wealthy province. They acknowledged that the implementation of the new rule may be different in less economically developed regions. We found the new rule led to little change in the incentives for EPBs to collect levies as a revenue source.

43 AE0605261, BE0511181, BE0507051, BE0607101, BE0511252, BE0607131, CE0510181, CE0511073, CE0511031, AJ0606071, AJ0605221, BJ0511231, CJ0511092, CJ0510262, CJ0510211, CN0511081.

44 BJ0511231, BJ0511251. This was also observed by others. See Li Qing, “Research on China's non-litigation.” In recent years, a number of Chinese legal scholars have proposed that central government funding be provided for all local courts in order to make them less susceptible to local governmental pressure. In November 2008, the proposal was finally put on China's national court reform agenda. See Huan Chen, “Jiceng fayuan jinfei huojiang naru zhongyang yusuan” (“Expenditure of local courts will be incorporated into the central budget fund”), Sina Finance, 5 December 2008: http://finance.sina.com.cn/roll/20081205/03145593270.shtml, accessed 1 June 2009. Many questions remain regarding whether and how this centralized funding mechanism will be implemented, and thus it is difficult to predict its likely impacts.

45 BJ0511251.

46 BJ0511231.

47 See article 2, item 5 of the “Methods of Litigation Fee Collection of People's Courts” (issued by SPC in 1989 and expired in 2006): http://www.lawon.cn/law/detail.dox?id=4015042. The case acceptance fee for an ALC is now 50 yuan per “Payment Methods of Litigation Fees” issued by the State Council in 2006. http://www.zzwlawyer.com/view_newsinfo.asp?NewsID=1200&op=1, accessed 5 December 2007.

48 SPCAD, Discussion on China's Administrative Adjudication.

49 AJ0606071, AE0605291, AE0606051, BE0511252, CE0511031, CE0511051, CE0511023.

50 BE0511252, CE0511031, CE0511051.

51 AJ0605221, CJ0511021, CJ0511091, AE0511073, AE0605291, BE0511252, BE0511181.

52 CE0511051.

53 AJ0605221, BJ0507041, CJ0511092, CJ0511021.

54 CPS0511062.

55 Authors' calculation based on court statistical data collected from three localities.

56 AE0606121, AE0605311, BE0511181, BE0511182, CE0510181, AJ0606071, BJ0507041.

57 BE0511181, BE0511182.

58 CJ0511092.

59 AJ0606071.

60 AE0605261, AE0606131, AE0605291, AJ0606071, AJ0605221.

61 AJ0606133, AE0605291, J0606051.

62 AJ0605231, AJ0606132, AE0605301. Jining Municipal Court of Shandong province was an early user of informal hearings in handling NAECs. SPCAD, Discussion on China's Administrative Adjudication.

63 AE0605301, AE0605311.

64 AE0605291, AE0605301.

65 AE0605261, AE0606131, AE0605291, AJ0606071, AJ0605221. The court president who had supported EPB enforcement requests retired in 2000. Two other key judges who were instrumental in initiating and continuing NAECs left the court's administrative division in 2000. The new court president and administrative division chief placed more emphasis on ALCs and were not interested in accepting and handling NAECs.

66 AE0605261, BE0511281, CE0605311, CJ0510211, CJ0605221.

67 AJ0606071, AJ0605221, AJ0606132, BJ0511171, CJ0511092.

68 CE0506301, CE0510272, CJ0511092.

69 AE0606121, CE0511023, AJ0605221, AJ0606132, CJ0511092.

70 AJ0606132, CE0511023, CE0510272.

71 CJ0510211.

72 Courts' difficulties in executing their own judgments has been a major weaknesses of the Chinese court system. Clarke, Donald C., “The execution of civil judgments in China,” The China Quarterly, No. 141 (1995), pp. 65–81CrossRefGoogle Scholar.

73 AE0605291, AE0606121, AE0605311, AE0605261, BE0511181, BE0511182, BE0511252, CE0506301, CE0506302, CE0511023, CE0510272, CE0510181, AJ0606071, AJ0605221, AJ0605231, BJ0607142, BJ0511241, CJ0511092, CJ0510241, CJ0511091, CJ0510211.

74 This discussion is based on court records from District A and County B where relevant information is available.

75 AE0606052, BE0511281, BE0511252, AJ0606071, BJ0511231, BJ0511171, BJ0607142, BJ0607151, CJ0511092, CJ0510211, CJ0511091, CJ0510262. In some instances, intervention even occurred when EPBs proposed cases involving owners of restaurants and hotels having routine business interactions with local leaders.

76 AE0606051, BE0511281, AJ0606071, CJ0511092, CN0511076. Lo and Tang, “Institutional reform,” found that inclusion of environmental quality as a factor in evaluating the performance of local leaders “has had positive impacts by heightening local leaders' concern for environmental protection” in Guangdong province (p. 204). It is difficult to evaluate whether this would yield strict environmental enforcement because, as Lo and Tang point out, environmental quality is “only one of the many criteria for evaluating a local leader” (p. 204). The director of the County C government's legal office (CN0511081) indicated that environmental quality counts for a very small fraction of the overall evaluation (approximately 1%), and it had little influence in his county.

77 AJ0605231, BJ0507041, CJ0511091, CJ0510211, AE0605291, AE0605261, BE0511243, CE0511092, CE0511023, CE0511073, CE0511072, CE0511042, CPS0511063.

78 The pervasiveness and impacts of guanxi and renqing on Chinese courts and judges have long been recognized; Jiang, An Investigation Report; Ying and Yuan, Toward the Government by Law; Peerenboom, China's Long March; Li, Su, Songfa xiaxiang: Zhongguo jiceng sifa zhidu yanjiu (Bring Law to Countryside: Research on the Grassroots Judicial System of China) (Beijing: Zhongguo zhengfa daxue chubanshe, 2000)Google Scholar.

79 CE0510272.

80 AE0605291, BE0511243, CJ0511092.

81 AE0605291, BE0511181, CE0511031, CJ0511092. In most instances, decisions to decrease levies and penalties lie with EPBs. However, if judges detect that polluters lack the ability to comply, they can either reduce the payment size or excuse the payment altogether without EPB consent.

82 AE0605291, AE0606121, AE0605311, AE0606051, AE0605261, BE0607101, BE0511243, BE0511281, CE0511073, CE0511041, CE0510181, AJ0606071, AJ0605221, AJ0605231, BJ0607151, BJ0511241, BJ0507041, CJ0511092, CJ0510211.

83 J0606051, J0605101.

84 BE0511252, CE0511031, CE0511023.

85 This was found by earlier studies in other parts of China; Hills and Man, “Environmental regulation and the industrial sector;” Ma and Ortolano, Environmental Regulation in China.

86 BE0511183, BE0607133, CE0511031, CE0511051.

87 AE0606052, AE0605311, BE0511183, BE0511281, BE0511252, CE0511023, CE0510272, CE0511031.

88 CN0511076.

89 CJ0510262.

90 CE0511073, CJ0510211, CJ0510262, CPS0511061.

91 AJ0606071, AJ0606133, AJ0605231, BJ0511241, BJ0507041, BJ0511231, CJ0511092, CJ0510262, CJ0511101, CJ0510211, BE0511243, CE0511073, CPS0511075, CPS0511066, CPS0511063, CN0511081.

92 Sinkule and Ortolano, Implementing Environmental Policy; Jahiel, “The contradictory impact of reform”; Ma and Ortolano, Environmental Regulation in China; Economy, The Case Study of China.

93 AJ0606071, AJ0605231, CJ0511092, APS0606021, APS0606082, APS0606091, BPS0607162, CPS0511032, CPS0511063, CPS0511067.

94 AJ0606071, AJ0606133, AJ0510262, BJ0511231, CJ0511092.

95 Available District A Court statistical data on NAECs show that these (together with EPBs) are the top four agencies in terms of number of NAECs filed between 1991 and 2005.

96 According to District A Court statistical data, the total number of ALCs involving all agencies rose sharply from 27 in 1999 to 277 in 2000 and remained above 98 in 2001–05. The numbers were below 60 before 1999.