[author]MA Chao ,LUO Yu

[content]

How does the environmental court take effect?

an empirical analysis from the perspective of judicial activism

MA Chao

School of Law, University of International Business and Economics, Beijing 100029, China;

LUO Yufeng

Digital Economy Laboratory, University of International Business and Economics, Beijing 100029, China;

RUAN Qiang

Business School, University of International Business and Economics, Beijing 100029, China)

Abstract：In China, the status of the environmental court has evolved from a judicial policy to a national policy. However, an academic consensus regarding its ecological impact has yet to be reached, primarily due to the ambiguity surrounding the mechanisms through which it exerts its effects. To address the issue, this study attempts to provide insight into the underlying impact mechanisms contributing to the ecological impact of the environmental court. From the perspective of judicial activism, this study theoretically identified two potential impact paths: government-court collaboration and societal attention towards environmental issues. The first path can be more specifically delineated as‘ government′s environmental attention’ and‘ government′s regulatory efforts,’ while the second path can be further specified as‘ public attention’ and‘ media attention.’ Subsequently, a time-varying difference-in-differences model was utilized to empirically investigate the effects of establishing environmental courts in 135 cities between 2011 and 2020 on emissions of local industrial pollution. Additionally, a causal mediation model was employed to test the hypotheses concerning the impact paths. The empirical results showed that, cities with environmental courts had 11.9% lower industrial pollution emissions compared to cities without such courts, and‘ government′s regulatory efforts’ and‘ media attention’ played important mediating roles in this relationship. These results supported the opinion that the effectiveness of the government′s actions surpassed mere rhetoric and that the role of media discourse outweighed that of individual attention. Heterogeneity analysis further revealed that the amendment of the Environmental Protection Law in 2015 had enhanced the governance effectiveness of environmental courts, with their impact being more pronounced in economically underdeveloped regions. Regarding the impact paths,‘ government′s regulatory efforts’ demonstrated greater stability, while‘ media attention’ exhibited significant spatio-temporal heterogeneity. This study highlights the significance of judicial activism, urging scholars to direct greater attention towards the externality of environmental courts. The policy implication advocates for a moderately expanded territorial reach of environmental courts and an augmentation of public engagement within environmental judiciary.

On March 3, 2020, the General Office of the Central Committee of the Communist Party of China and the General Office of the State Council jointly issued the “Guiding Opinions on the Construction of a Modern Environmental Governance System”, which explicitly put forward, “in the Higher People's Court and the middle and lower level people's courts that have the conditions to adjust the establishment of a specialized environmental judiciary,” which marked the promotion of the environmental protection tribunal in accordance with the local conditions. The establishment of environmental protection court, from judicial policy is further upgraded to national policy. However, despite the support from the national level, the theoretical community has not yet reached a consensus on the actual effectiveness of environmental courts in environmental governance. Unlike administrative law enforcement, which has an immediate effect on governance, the judiciary is often considered to have a limited role in social governance due to its passive and neutral character. Although some literature confirms that the establishment of environmental tribunals has effectively improved pollution control in their jurisdictions, many scholars are still skeptical, believing that the effectiveness of environmental tribunals in resolving environmental disputes has fallen short of the desired expectations, and that the advantages of governance are not obvious. The important reason for this disagreement is that the existing literature on the environmental tribunals to influence the regional environment of the transmission mechanism is not enough research. This makes some scholars doubt the governance performance of environmental tribunals. In the context of environmental tribunals being recognized by the state as an important part of China's modern environmental governance system, it is urgent to clarify the mechanism of environmental tribunals. In view of this, this paper attempts to outline the mechanisms by which environmental tribunals influence the performance of regional environmental governance from the perspective of dynamic justice, which emphasizes the organic synergy between justice, government and society.

Compared with the existing studies, the marginal contribution of this paper may be as follows: ①Clearly organizing and integrating the mechanism of environmental protection court's influence on regional environmental governance, which is not detailed in the current research on environmental justice and still needs to be filled. ②Provide a new way of proving the effectiveness of environmental tribunals in regional environmental governance, bridge the cognitive gap between law and economics, and to a certain extent dissolve the debate on the effectiveness of environmental tribunals in China. ③ Through empirical methods, we verify the existence of the phenomenon of environmental justice dynamic synergy, and deepen the understanding of the important role of synergistic governance in China's modern environmental governance system.

1.Literature Review

Discussions about the governance performance of environmental courts are broadly divided into two points of view in the existing literature. Scholars from the fields of economics, management and other social sciences regard the establishment of environmental tribunals as a quasi-natural experiment, and use empirical research methods to confirm that environmental tribunals have achieved various results in local pollution management. Fan Ziying et al. found that environmental courts effectively reduced industrial pollutant emissions and promoted local environmental pollution control. Zhai and Huayun et al. confirm that environmental tribunals can effectively promote the environmental governance of listed enterprises in heavily polluted industries in their regions, and find regional heterogeneity in the effectiveness of environmental tribunals, with eastern and more market-oriented regions having more effective environmental tribunals in promoting corporate environmental governance. Wang Fengrong et al. focus on the relationship between environmental courts and corporate green growth, and find that the establishment of environmental courts in intermediate courts helps promote green M&A behavior of enterprises. Overall, although the number of empirical studies conducted by social science scholars on environmental tribunals is small, the methodology is rigorous, the conclusions are highly credible, and the establishment of environmental tribunals around the world is almost consistently confirmed to be an important driving force for the continuous progress of China's environmental governance in recent years.

The other group of views, represented by legal scholars and based mainly on empirical observation and institutional analysis, is supportive of the strengthening of environmental justice, but generally less optimistic about the current achievements of environmental tribunals. Because of the large amount of such literature, I will only cite some representative ones. Based on his observation, Zhang Shijun pointed out that since the establishment of environmental protection courts in many places, they have been in the embarrassing situation of having no cases to try and “waiting for the rice to fall into the pot”, and he thinks that the main reason is that the scope of environmental protection courts is too narrow and there is a lack of uniformity in the norms. Yuran compares the environmental protection court with the environmental administrative regulation, and points out that the reason why the environmental justice has no cases to be tried is that the system has high operation cost, but the incentive effect is insufficient, so the relative governance advantage is not obvious, and lacks attraction. The above scholars may have exaggerated the claim that there are no cases to be tried, but there is also a general consensus among observers that environmental courts have “insufficient sources of cases”. The reality is that there are a lot of environmental disputes, but very few of them have entered the judicial process. It is worth mentioning that the Supreme People's Court in recent years in the “white paper on environmental resources trial” announced the scale of environmental cases, although it seems to have reached hundreds of thousands of quantum, but scholars have pointed out that, due to environmental protection tribunals to take the trial and enforcement of a single system, the lower courts of the environment in the statistics of the proportion of administrative non-prosecution cases is too large, and some courts accounted for nearly 80% of the cases.In other words, if we only count the trial cases, the scale of environmental cases is still quite limited. Generally speaking, although legal scholars are optimistic about the future development of environmental courts, they believe that their current effectiveness is limited, that their formal significance outweighs their substantive significance, and that there is a general concern that environmental courts are weighed down by the source of the cases, and that they are unable to fully utilize their potential for governance.

The differences between these two views, of course, are due to differences in understanding arising from different research paradigms, but the conflict of opinion on the effectiveness of environmental courts is still obvious. A perplexing “puzzle” is why environmental courts, which are widely observed by scholars to be “non-existent”, have produced actual environmental governance performance in their regions. If the existing empirical findings are to be believed, the above divergence suggests that the mechanism by which environmental courts influence local environmental governance is probably not limited to the judicial resolution of environmental disputes, but rather has other paths beyond the trial of cases. This is precisely what the existing literature has not yet explored in depth, and what this paper has to clarify.

2.the analytical framework and research design

2.1 Based on the construction of the analytical framework of dynamic justice

For a long time, justice has been regarded as a marginal and passive role in national governance. However, in recent years, the concept of “dynamic justice” put forward by the Chinese court system has been dedicated to exploring a path of judicial participation in governance that is different from that of the past. The original meaning of judicial activism is that courts apply the law to individual cases in a way that goes beyond the letter of the law and responds directly to the reality of social evolution. However, the concept of activist justice put forward by Chinese courts is different from this one, in that it emphasizes the need for courts to proactively participate in social management innovations, integrate into the national governance system through a series of practical strategies, and play a direct role in improving social governance. To a certain extent, the concept of active justice has changed the traditional role of the court, which requires the court itself is a dynamic subject of governance, and is willing to actively participate in the comprehensive management of society. The recent emergence of China's environmental justice is nurtured by the concept of dynamic justice, as its representative results of the environmental protection court from the creation to the implementation of the genes permeated with dynamic justice, is the product of judicial initiative to respond to the reality of environmental pollution. From a practical point of view, due to the environmental rights and environmental governance of public welfare attributes, and environmental law norms of the reserve is insufficient, waiting for the case to door is obviously not a good strategy, which makes the traditional justice compared to the environmental protection tribunal in the practice of governance must have a higher degree of initiative and enthusiasm, in order to fully respond to the reality of the lack of environmental governance. Observe the current specific practice of environmental justice, environmental protection court participation in environmental governance can be roughly divided into two main paths: government path and social path. The former is mainly through the environmental protection court actively cooperate with the local government to carry out joint environmental governance action, that is, “the government and the court linkage” and embodied, and the latter is mainly based on the establishment of the environmental protection court to play a role in the social impact. The latter is based on the social impact of the establishment of the Environmental Protection Courts.

First of all, the mechanism of “government-court linkage” is a neglected part of the existing research. The “government-court linkage”, i.e., the connection and interaction between the court and the government, has been actively advocated by the court system in recent years. In the current reality of environmental justice, there are traces of it in reality. On the one hand, in the judicial policy level, the supreme people's court in recent years in a number of environmental judicial documents continue to emphasize the strengthening of active justice, and promote the environmental professional judiciary “to do a good job of coordination and cooperation with the administrative organs”; on the other hand, in the level of judicial practice, the lower courts have been generally through the judicial-administrative joint meeting, judicial advice, On the other hand, at the level of judicial practice, the lower courts have generally established formal cooperation mechanisms with local environmental authorities through joint judicial-administrative meetings, judicial recommendations, information sharing, etc. Some local courts and governments have even jointly issued documents related to environmental governance. This shows that the courts have been extensively involved in regional environmental governance through the “government-court linkage” mechanism.

The local government is the key responsible party for environmental quality. There are two possible micro-mechanisms for the influence of environmental courts on governments - governmental environmental attention and governmental environmental regulatory action. The two represent the “words” and “deeds” of local governments, which are directly related to the performance of local environmental governance. In the existing studies, scholars mostly recognize that the central government's attention to environmental issues promotes the enhancement of local government's environmental attention, but the relationship between local environmental attention and environmental regulatory actions is still debated, and the relationship between the establishment of environmental protection tribunals and the relationship between the two is even more lacking in relevant verification. According to the theory of governmental attention, governmental attention drives governmental governance decisions, regulates governmental resource investment in specific policies, and is extremely important for the implementation results of governance decisions. Based on the analysis of the work reports of 30 provincial governments over time, Wang Yinhong et al. found that the attention of local governments to the ecological environment is driven by the central government, and that the intensity of local environmental attention has been increasing year by year, but its enhancement does not necessarily lead to corresponding environmental governance actions.Based on the panel data of prefecture-level cities, Zhang Kunxin points out that in local environmental governance, the central government's accountability forces the local government to allocate more attention to environmental issues, but the relationship between the government's attention to the environment and the implementation of policies shows an inverted U-shaped relationship, which is not a linear correlation. In terms of the relationship between the environmental court and the two, because the local courts rely mainly on local governments to provide human and material resources, the establishment of the local environmental court will inevitably need to be supported by the local government or acquiescence. In the process of communication, the local environmental protection court may remind the government of the seriousness of local environmental pollution control from the judicial perspective, thus touching the local government to strengthen the attention to the ecological environment issues. At the same time, the establishment of environmental protection tribunals for the court advocated the environmental governance “government and the court linkage” provides the organizational foundation, strengthened its linkage to the local environmental departments of the organization of the hand, which is conducive to the establishment and strengthening of the formal communication mechanism between the court and the government, this is from the enforcement of administrative penalties for environmental protection tribunals have become more and more the main business of the court Can be seen from the environmental administrative penalty enforcement application has become the main business of the environmental protection court.

Secondly, the social transmission mechanism of environmental protection court on environmental governance has not been fully studied. In social governance, social supervision is another important form of supervision in addition to governmental supervision and judicial supervision, constituting an informal institutional environment in the eyes of institutional economics. Public opinion monitoring is the main way of social monitoring. The establishment of environmental protection court not only means the optimization of local environmental governance system, but also has the potential to stimulate the social level of environmental public opinion supervision. Mass communication science divides social opinion field into “media opinion field” and “civil opinion field”. For the former, the establishment of an environmental court, as a local public news event, is bound to attract the attention and coverage of the local public media, thus indirectly increasing the share of environmental issues in the public news agenda. For the latter, the establishment of environmental courts to solve local environmental pollution problems potentially enhances the ecological well-being of the local people, and thus may bring more social attention to environmental issues.

Most of the existing research on public opinion monitoring and environmental governance focuses on how public attention to environmental issues affects local environmental governance. Early studies in this literature found that complaints from residents in a jurisdiction significantly affected the environmental governance preferences of the local government. More recent studies provide a more nuanced picture of the transmission mechanism of public environmental concern in improving urban environmental pollution and the public's preference for different types of pollution. In addition, a few studies have noted the relationship between media attention and environmental protection, confirming that media attention, especially negative media coverage of corporate pollution, significantly increases corporate environmental investment and plays a role in corporate governance. It should be noted that in agenda setting theory, although McCombs et al. point out that the media can influence public attention through issue setting, some scholars have found that the two are not always the same in the Chinese context, and there is also a divergence between media attention and public attention in some events. Therefore, the impact of environmental courts on public and media attention cannot be generalized, and there may be differences in the transmission mechanisms between the two.

In conclusion, the government and society are traditionally the main participants in local environmental governance, but in recent years, under the guidance of the concept of dynamic justice, it is an indisputable fact that environmental justice actively participates in the practice of local environmental governance. As representatives of environmental justice, environmental courts not only actively promote the government to strengthen environmental governance in terms of “words” and “deeds”, but also potentially shape the public's awareness of environmental protection and the media's agenda setting, thus ensuring that the court system continues to play a positive impact on local environmental improvement (Figure 1). (Figure 1). In summary, the article proposes the following hypotheses:

H1a: The establishment of environmental courts can enhance the environmental attention of local governments, thus positively affecting local environmental governance performance.

H1b: The establishment of environmental tribunals can increase the environmental regulation of local governments, thus positively affecting local environmental governance performance.

H2a: The establishment of environmental tribunals can increase local people's attention to environmental issues, thus positively affecting local environmental governance performance.

H2b: The establishment of environmental tribunals can enhance the local media's attention to environmental issues, thus positively affecting the performance of local environmental governance.