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R Stern Phd Diss 2009 Navigating the Boundaries of Political Tolerance: Environmental Litigation in China by Rachel E. Stern A dissertation submitted in partial satisfaction of the requirements for the degree of Doctor of Philosophy in Political Science in the Graduate Division of the University of California, Berkeley Committee in charge: Professor Kevin J. O’Brien, Chair Professor Robert Kagan Professor Katherine O’Neill Fall 2009 Navigating the Boundaries of Political Tolerance: Environmental Litigation in China © 2009 by Rachel E. Stern Abstract Navigating the Boundaries of Political Tolerance: Environmental Litigation in China by Rachel E. Stern Doctor of Philosophy in Political Science University of California, Berkeley Professor Kevin J. O’Brien, Chair This is a dissertation about lawyers, judges, international NGOs and legal action in an authoritarian state. The state is contemporary China. The type of legal action is civil environmental lawsuits, as when herdsmen from Inner Mongolia sue a local paper factory over poisoned groundwater and dead livestock or a Shandong villager demands compensation from a nearby factory for the noise that allegedly killed 26 foxes on his farm. Empirically, this is a close-to-the-ground account of everyday justice and the factors that shape it. Drawing on fifteen months of field research in China, along with in-depth exploration of four cases, legal documents, government reports, newspaper articles and blog archives, this dissertation unpacks how law as litigation works: how judges make decisions, why lawyers take cases and how international influence matters. Conceptually, civil environmental lawsuits illustrate one pathway between litigation and social change in China and, by implication, possibly other illiberal states. With the exception of the first chapter, each chapter introduces a new actor’s perspective on the interaction between state signals and legal professionals’ response. The key theme, which cuts across chapters on the state, judges, lawyers and international NGOs, is what I call political ambivalence: conflicting official (or quasi- official) signals regarding the desirability of certain types of citizen action. Simultaneous impulses to promote law but control courts, to protect the environment and yet pursue economic growth, generate a medley of statements, cases and regulations that do not necessarily concord. For legal professionals on the ground, these mixed messages translate into a degree of opportunity. Without official sanction or intent, conflicting signals crack open enough political space to allow limited judicial innovation (chapter 3), legal activism (chapter 4), sustained international encouragement (chapter 5) and policy promotion (chapter 6). Even on tough terrain, political ambivalence over law can provide a limited opportunity to probe new roles and, in so doing, gently push the limitations of political tolerance. 1 Table of Contents Table of Contents i List of Abbreviations ii Acknowledgments iii Introduction 1 Chapter One From Dispute to Decision 9 Chapter Two Harnessing the Law: the State 30 Chapter Three: On the Frontlines: the Judges 45 Chapter Four: Heroes or Troublemakers? The Lawyers 63 Chapter Five: Soft Support: The International NGOs 82 Chapter Six: Thinking About Outcomes 103 Bibliography 117 Appendix A 146 Appendix B 150 i List of Abbreviations ACLA: All China Lawyers Association ACEF: All China Environment Federation ALL: Administrative Litigation Law BPCs: Basic People’s Courts BLA: Beijing Law Association CASS: Chinese Academy of Social Sciences CLAPV: Center for Legal Assistance to Pollution Victims CPPCC: Chinese People's Political Consultative Conference EIA: Environmental Impact Assessment HRDF: Human Rights and Democracy Fund HPCs: High People’s Courts IPCs: Intermediate People’s Courts MEP: Ministry of Environmental Protection MoJ: Ministry of Justice NGO: Non-Governmental Organization NPC: National People’s Congress OCI: Open Constitution Initiative OSI: Open Society Institute SEPA: State Environmental Protection Agency ii Acknowledgements Although the work here is mine, I see traces on every page of the intellectual, financial and personal debt I owe to an array of individuals and institutions. First at Wellesley College and then at the University of California Berkeley, I am acutely grateful for the support of a tremendous team of mentors. As an undergraduate, Kathy Moon directed an independent study into what became my first article while Sally Merry taught me how to take proper research notes and gently nudged me towards academia. Later, when I turned to environment, law and China at Berkeley, I was lucky enough to encounter Kate O’Neill, Bob Kagan, and Kevin O’Brien. Kate’s outside perspective proved invaluable, especially at several critical junctures. Bob, a crystal clear thinker, helped me find my way out of more than one mashed up chapter and intellectual dead end. And hundreds of interactions with Kevin, over email, in person and sometimes on the hiking trails of Contra Costa county, sharpened my writing and my thoughts even as I came to rely on him for insightful advice. As I shared thoughts and papers around Berkeley, I also benefited greatly from comments by Jennifer Brass, Zongshi Chen, Jenny Chio, Mark Dallas, Jennifer Dixon, Eli Friedman, Tom Gold, Sam Handlin, Jonathan Hassid, Ron Hassner, Dann Nassemullah, Leslie Wang, Steve Weber, Susanne Wengle and Suowei Xiao. At the start of this project, I was fortunate enough to spend several months at the Center for Chinese Legal Studies at Columbia University Law School. Many thanks to Ben Liebman for his help during that period, as well as for his thoughtful comments on drafts later on. In China, I am grateful to Mingyuan Wang for arranging a home for me at Qinghua University Law School’s Center for Environmental, Natural Resources and Energy Law in 2006 and 2007. Research help from Wenyu Shi and, later, Rongbin Han helped compensate for some of the difficulties of doing research in a second language. And above all, many conversations during my fieldwork helped me make sense of what I was seeing. I am particularly thankful to Wei Cui, Chad Futrell, Patrick Deegan, Dan Guttman, Karrie Koesel, Hyeon-Ju Rho, Glenn Tiffert, Jeremy Wallace, Alex Wang, Jessica Weiss as well as many Chinese citizens—some listed in Appendix A—whose anonymity seems prudent to preserve. Finally, this project was made possible by financial support from a Fulbright- Hays Doctoral Dissertation Abroad Fellowship, a Doctoral Dissertation Improvement Grant and Graduate Research Fellowship from the National Science Foundation, the Pacific Rim Research Program and the Abigail Reynolds Hodgen Publication Fund as well as the Institute of International Studies, Institute of East Asian Studies and Center for Chinese Studies at the University of California Berkeley. I finished this dissertation in the fall of 2009 at the Society of Fellows at Harvard University and I remain deeply appreciative of the time and financial freedom provided by my fellowship there. iii Introduction This is a dissertation about lawyers, judges, international NGOs, and legal action in an authoritarian state. 1 The state is contemporary China. The type of legal action is civil environmental lawsuits,2 as when herdsmen from Inner Mongolia sue a local paper factory over poisoned groundwater and dead livestock or a Shandong villager demands compensation from a nearby power plant for the noise that allegedly killed 26 foxes on his farm. Empirically, this is a close-to-the-ground account of everyday justice and the factors that shape it. In a country known for tight political control and ineffectual courts, the pages that follow unpack how law as litigation works: how judges make decisions, why lawyers take cases and how international influence matters. Conceptually, civil environmental lawsuits illustrate how litigation can contribute to social change in China and, by implication, other illiberal states. Even in extraordinarily unlikely cases—places where we would not expect law to matter at all—litigation can provide a limited opportunity for judges, lawyers, academics and NGOs to probe new roles and, in so doing, gently push the limitations of political tolerance. My focus is on environmental litigation for two reasons. First, the environment is an area with high, real world stakes. By 2005, when I started this research, the severity of China’s environmental degradation was well known. Sources as diverse as marketing materials for Asian mutual funds and local radio talk show hosts concurred that China’s pollution was a worldwide environmental concern as well as a challenge to internal stability. The importance of a solution was evident, both to global environmentalists and domestic officials concerned with the future of the Chinese Communist Party (CCP). Given extraordinary pollution and historically weak courts, this project offers one way to assess whether litigation does (or could) halt degradation or spur environmentalism. As a student of politics, I find environmental lawsuits interesting for a second reason. One of the first insights of my fieldwork was that civil environmental lawsuits occupy a “safety belt” (anquan dai), as one lawyer put it, between cases that are unequivocally forbidden by the state (like defending Falun Gong) and cases that are relatively uncontroversial (like defending children’s rights). Falling in the middle of this spectrum, pollution cases enjoy a sliver of political opening that renders them less risky than other rights-related
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