Courting a Blue Sky? Understanding the Constrained Judicialization of Environmental Governance in China

This paper studies the constrained judicialization of environmental governance in China. It starts by quantitatively describing the judicialization of environmental protection in China over the past decade, including both its progresses and the suppressions that it faced, and shows that environmental courts have had virtually no tangible impact on reducing pollution levels. It then attempts to rationalize the observed patterns by answering two questions. First, why does the government choose to empower the courts when it possesses a rich set of other regulatory tools in environmental protection? This choice can be attributed to both the central government's needs to curb local protectionism, as well as the local governments' incentives to promote legitimacy. Second, to the extent that courts can contribute to environmental governance, why does the government impose tight controls over environmental litigation? This can be explained by the government's deep-rooted wariness of class lawsuits and other collective actions, as well as the judiciary's inherent conflicts with the flexibility required by a regulatory regime. In addition, the judiciary's limited capacity also impedes the judicialization of environmental governance.