Judicial Review of Environmental Administrative Decisions: Has It Changed the Behavior of Government Agencies?
Zhang, Xuehua, Ortolano, Leonard, The China Journal
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The promulgation of the Administrative Litigation Law (ALL) in 1989 was widely hailed as an historical milestone in China's legal development.1 The law's primary intent is to empower citizens to curb administrative misconduct by government. This is consistent with enhancing the rule of law, the essence of which is described by Randall Peerenboom as placing meaningful constraints on government agencies and individual officials.2
In the late 1980s, early drafts of the ALL faced substantial bureaucratic opposition.3 Agencies were so concerned about the possibility that their decisions would be challenged by ordinary citizens and reviewed by courts that the central government delayed the ALL' s implementation date so that top officials could build support for the law among agencies and give them time to prepare.4 A senior judge on the Hubei Provincial Court said, "Many agency leaders were so afraid of being sued in court that they could not even get to sleep at night". After nearly 20 years of implementation, we ask whether and how the ALL has achieved its goal of restraining administrative behavior.
Empirical studies of the ALL have focused on the processes and outcomes of administrative litigation cases (ALCs) filed by citizens and organizations. These studies identify the tactics employed by litigants and comment on the significance of the ALL in the broader context of state-society relations.5 Among the studies that have considered its overall effects, some conclude that the ALL has made administrative organs more careful about exercising their powers according to the law.6 Others, however, characterize the ALL as a "frail weapon" that has not significantly reduced the arbitrary nature of administrative behavior.7
Abigail Jahiel's work is one of the few environmentally-related studies touching on empirical investigations of the specific effects of ALCs on bureaucratic behavior. Jahiel argues: "... the fact that the EPB [Environmental Protection Bureau] has been put on the offensive ... is responsible for the institutionalization of environmental law enforcement ... In Wuhan, challenges brought against EPB rulings have led to greater efforts on the part of EPB officials to abide strictly by the law."8
Most research on the impact of ALCs on bureaucratic behavior has relied either on survey questionnaires9 or interviews with administrative officials or judges.10 Our study examines comprehensive court case files and uses in-depth interviews with all parties involved in ALCs. " This method enables us to identify variations in the effects of individual ALCs on administrative behavior, and to isolate the factors that might explain such variations. We address these unexamined issues in the context of environmental protection.
We analyze 14 ALCs filed in two counties in Hubei Province to explore the effects of individual ALCs on EPBs and to identify the factors explaining differences in those effects. Given the relatively small number of lawsuits investigated in this paper, the findings cannot be considered as representative; rather, they illustrate the spectrum of specific effects of individual ALCs and provide a basis for hypotheses that can be tested with a larger sample in future research.
Our analysis shows that half of the 14 ALCs led to changes in EPB behavior and procedures. The changes occurred only in cases in which (i) the officials in charge of adrriinistrative enforcement had knowledge of legal issues, and (ii) those officials agreed with the courts' judgements regarding legal deficiencies in EPB practices. In cases where these two conditions were not met, either ALCs had no effect on EPB practices or the ALC outcomes caused the EPBs to modify their enforcement strategies to avoid future litigation without correcting legal errors identified during litigation.
In examining whether and how ALCs placed achninistrative behavior under the supervision of the courts and citizens, we found the record to be mixed. …