One of the most eye-opening elements of my fall semester at Duke Kunshan University was the opportunity to take a course called Environmental Law. I took a U.S. environmental law class back in Durham during my first semester of graduate school; that class focused mostly on American laws and institutions, and we discussed the centuries of legislation, case rulings and British common law precedent that has shaped the U.S. legal system and its outcomes. The iMEP law course in Kunshan, however, was focused mostly on Chinese law and governance, and was a radically different experience from the Durham course by the same name.
Chinese law is fascinating to study in part because it is evolving so quickly; more than one of the major laws and regulations we discussed had already been overhauled or amended by the end of the semester, so a lot of our focus was on identifying the broad trends and trajectories along which new rules and changes appear to be moving.
More importantly, the class gave me a chance to see beyond many of my unconscious (and almost exclusively Western) conceptions of what law is, and is for. A number of my Western acquaintances raised their eyebrows when they heard I was taking a class on Chinese law, as their understanding of governance in China has only come by way of information run through the distorting prisms of Cold War geopolitics, dark stories from the Cultural Revolution, and U.S. media that by and large understands China mostly as a black box more or less following commands from its President. The truth, as always, is infinitely more complicated. New legal and regulatory institutions are being developed and implemented in some cases at an astonishing rate, especially as environmental issues like air pollution and climate change become more important to the Chinese public. Some of these rapid changes have had better success than others, and all of these new initiatives are strained by the conflicting needs and incentives of people and administrators at local, provincial and national levels. I feel very lucky to have had the chance to spend a whole semester building a set of lenses through which to understand a system so totally different from the one I have grown up immersed in – and to start to see the commonalities that might one day help two major world powers work together more effectively toward environmental goals.
Late in the fall, our class visited the Environmental Court of Jiangsu Province – one of these relatively new institutions, and one that has already begun to shift the expectations of the public and of environmental advocates in their pursuit of environmental protection, justice and remediation. Our class had the chance to listen to and ask direct questions of several of the Court’s senior judges. The following day, we visited a forested area that had been damaged by activities related a local contractor’s waxberry tending business. Waxberry is a common translation of the stippled round fruit known as yangmei (杨梅), also called Chinese bayberry. We walked through parts of the waxberry grove to see the site and to find out what had happened once the case went to trial.
Symbols of old and new China, with the scales of Justice.
The goals of this trip were to understand in more detail the inner workings of the environmental court system in China, and the challenges and opportunities faced by this evolving institution. We hoped to gain insight into the path along which this relatively new set of institutions is growing and changing, and what the major influences and drivers of these changes might be. We also hoped to understand in more detail how a few specific cases have played out, and what these can tell us about how the court systems implement law. We spent the first day in Nanjing at the Court itself, with an an hour or two to look around before heading to Wuxi for an overnight stay.
In speaking with the judges at the court offices (located in a repurposed hotel while the new building is constructed nearby), we heard about the history of Chinese environmental courts more generally, and then specifically about the experiences of the judges in Jiangsu. As an English speaker with limited Mandarin comprehension, my participation in this conversation was filtered through translation of varying thoroughness (though my classmates did an admirable job summarizing on the fly, and I picked a handful of legal vocabulary words over the course of the weekend). I know that I missed some of the direct and implied content, but the main themes included the immediate and deeper reasons for the development of environment-specific judicial bodies, and the special kinds of difficulties faced by judges who deal with environmental cases.
The first Chinese environmental court was established only in 2007 in Guizhou province, with Jiangsu’s following closely behind in 2008. Issues related to pollution and water were a major reason for this court’s establishment (especially Lake Tai [taihu, 太湖], the large freshwater lake about an hour away from Kunshan, by the major city of Suzhou). The judges noted that environmental cases are unusual in that they cross many administrative boundaries, complicating the application of laws and regulations specific to each of the affected regions. Moreover, environmental cases may cross the boundaries of many types of law – criminal, civil, administrative, etc. – and may require a broad foundation of scientific knowledge to allow a judge to correctly apply these laws as intended.
For this reason, environmental judges need a strong familiarity with many types of law and knowledge. Judges must also gain enough environmental science competency to be able to confidently distinguish between true factual relevancy and spurious claims of what environmental data matters, when deciding their cases. The judges consciously seek to expand their knowledge across disciplines as a matter of professional necessity, and special trainings and seminars are held within the court system to facilitate this critical learning process.
The judges we spoke with noted that the philosophy behind Chinese environmental adjudication tries to center the interests of the environment (as opposed to, say, centering criminal punishment outcomes, or other possible goals). This leads to many judgments that focus on repairing or remediating damage done, as well as sending strong signals to discourage future environmentally adverse actions by others, whether they are villagers or major companies. The judges told us they seek to find creative ways to accomplish these goals, drawing inspiration from (for example) U.S. remediation practices, or from the unique details of the specific context of a given case. For example, in situations where fines are required as a matter of following the law, the judges might rule that money spent on the purchase of equipment to stop further pollution could be counted as part of the fulfillment of those financial obligations, rather than insisting the money be paid to the government itself.
The guesthouse where we stayed overnight in Wuxi.
Guesthouse courtyard in the morning.
The next day, we visited a site near Tai Lake where forested land had been illegally cleared by a local contractor. The defendant had cut down trees to expand his planting of waxberries, which the area is famous for. (In fact, that morning before leaving our guest house, a couple of us got to sample a few drops of the owner’s waxberry-infused baijiu, poured from a spigot on a big jar packed to the brim with the fruits and left on display in the main entrance).
The defendant in this case was a man contracted by the local village to manage and harvest the waxberries growing on land they had a right to farm; his agreement with them was such that his compensation was dependent upon the amount of waxberries he was able to harvest. This incentivized him to illegally clear extra forested land to plant additional waxberry bushes. The clearing was discovered, however, and he was prosecuted.
A sign marks the remediation site.
Court officials speak to DKU students.
New trees are wrapped in rope, while cut stumps stick up on the right.
The area we walked through bore the marks of both the damage and the remediation: tree stumps from the clearing were now interspersed with new saplings of a variety of native tree species. The judges also told us about the other outcomes of the case – a hefty fine, and potential jail time on the horizon for the contractor who cut the forest. In some sense, this seemed like a fairly dramatic demonstration of heavy punishment for a relatively low-impact ecological damage. This was a small amount of deforestation, in the big picture.
Ironically, the site was directly juxtaposed with a golf course, visible right across the valley from where we stood on the hillside remediation site:
Tai Lake International Golf Club and Hotel?
The construction of that golf course has almost certainly done more ecological damage to the region than the illegal waxberry clearing. While the judges have a clear vision of their own role as a piece of a larger social picture that sends signals for cultural change, there was an irony in this pairing of punished forest clearing and likely encouraged golf development. It is true that the small actions of many individuals add up, particularly in the more populous regions of eastern China. It is also true that we did not learn about what sort of mitigation might have been required for the company responsible to replace that much previously forested area with a monoculture of grass, and to compensate for the chemical and energy footprint that must go into maintaining it for the Lake Tai tourists. But is it fair, or even effective in the end, to focus heavy-handed justice on the actions of individual small farmers, while next door supporting projects that impact the environment much more negatively than anything a lone berry farmer could do?
New trees on the right, dark green waxberry bush on the left.
I was rather taken with this fungus, a brilliant orange amid the browns and greys of late autumn.
After several weeks of classes spent discussing the challenges of law enforcement and difficulty of access to the court system from the perspective of those seeking justice for environmental damage and public interest harms, I found it interesting to see how judges view their own role in facilitating and mediating these complex conflicts. I was also struck by the judge’s clear awareness of the fact that they are building a human institution that has impact beyond the execution of the mechanics of law itself. There is a humility needed to recognize that the position of judge requires continued learning and skill-building, and I was impressed that tools to address this need have been incorporated into the fabric of the court division, through ongoing training and special development.
It reflected broader themes of the semester: in a setting like China where rule of law is still being established by some standards, and where young legal institutions are less rigid and mature, the role of human choices in shaping such institutions shines through more clearly. The chance to learn more about the ongoing development of a young legal system strengthened my conception of law as a growing, living web of agreements, actions, and value judgements – all made by real people, not just some static force that exists in the universe on its own. U.S. rhetoric often elevates Law as something separate from people. This is perhaps because true rule of law demands that no person be above or exempt from these rules. But this framing also divorces law from society in the mind of those interested in changing either – for example, those interested in strict Constitutionalism may begin to forget that US laws and legislative systems are designed to be radically altered when the need arises. Those seeking to use the law to obtain environmental protection or justice may, in turn, forget to consider the other pathways toward those goals, beyond going to trial.
Speaking to judges who have helped to develop this very new institution in China felt like an important reminder that legal institutions – like all institutions – are created and maintained through deliberate and hard work. They also, at least ideally, reflect the values that governed people hold. For me, the waxberry case and the questions it raises about where law is best targeted underscore a growing global need for a more sophisticated understanding of development and its environmental consequences. It is good to see that legal tools are becoming more available to focus attention and resources toward environmental protection and remediation in China, but the impact of this is still ultimately limited by a government’s conception of what an unacceptable impact looks like. If we crack down on the waxberry farmers of the world, but continue to give large-impact developments a pass on the basis of their purported economic importance, we may be missing the bigger picture of human-environment interactions, and leaving the bigger targets for environmental progress on the table.
The written word of the law itself, we learned by the end of the semester, is only one part of the picture of environmental governance, playing a role along with enforcement, regulation, implementation, judicial interpretation, media, public participation, civil society organizations, and others. With respect to that idea, this trip, along with many other topics we discussed during my time at DKU, gave me a new set of lenses through which to view the ongoing development of law in China, at home in the U.S., around the world, and across borders. People in extremely different international legal contexts may approach the toolkit of law with very different underlying assumptions about the meaning and efficacy of their actions, in terms of how those actions will influence the outcome of a particular situation, or how they might change the behavior of other actors. Ultimately, no body of law can be isolated from its broader governmental and social contexts, and anyone hoping to use law to achieve environmental goals must understand the unique details of how these factors play out, wherever they may be.
In case it wasn’t clear, I am back in Durham now for my final semester of the Nicholas School’s MEM program. I miss DKU, and hope to find my way back to China sooner rather than later; I’ll still be writing some future posts about some of the amazing things I got to do and see while there. For now I’ll end with a few photos from the road.
The 88m-high Buddha at Lingshan Scenic Spot. The dharmic wheel layout of the surrounding complex is worth a glance from space.
We had an hour or two to check out the islands of Xuanwuhu Park in downtown Nanjing.
This appears to be the Buddhist goddess Kwan-Yin. That’s either the Nanjing Exposition Center or the Maglev station in the background.
At a long-distance rest stop.