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Legal Studies Research Paper Series No. 2014-26
The Authoritarian Logic of Regulatory Pluralism:
Understanding China's New Environmental Actors
Benjamin van Rooij
[email protected]
University of California, Irvine ~ School of Law
Rachel E. Stern
[email protected]
University of California, Berkeley ~ School of Law
Kathinka Fürst
[email protected]
University of Amsterdam ~ School of Law
The paper can be downloaded free of charge from SSRN at:
Electronic copy available at: http://ssrn.com/abstract=2413872
The Authoritarian Logic of Regulatory Pluralism:
Understanding China's New Environmental Actors
Benjamin van Rooij, Rachel E. Stern and Kathinka Fürst
Abstract
Over the last decade, Chinese citizens, NGOs, judges and prosecutors have started to
take action against industrial pollution, pluralizing the regulatory landscape originally
occupied by administrative agencies. Regulatory pluralism here has an authoritarian
logic, occurring without the retreat of party-state control. Under such logic, the partystate both needs and fears new actors for their positive and negative roles in controlling
risk and maintaining stability. Consequently, the regime’s relation to regulatory
pluralism is ambivalent, shifting between support and restriction. This prevents a
development of a regulatory society that could bypass the regulatory state.
Theoretically, this special edition argues for a subjective definition of regulation in a
context of pluralism. Moreover, it finds that regulatory pluralism need not coincide with
a decentring of regulation. Finally, it highlights how entry onto the regulatory
landscape affects the non-regulatory roles of new actors, creating unintended
consequences for regulatory pluralism.
Introduction: Painting the Regulatory Landscape
The contemporary regulatory landscape is comprised of multiple actors who interact
and engage in activities that, intended or not1, help prevent and control human-made
risk2. To start, this landscape3 is obviously inhabited by the members of the legislature
and bureaucracy traditionally associated with the regulatory tasks of gathering
information, setting standards, and changing behavior (Hood, Rothman, and Baldwin
2001: 22). At the same time, the landscape also contains actors whose core roles, goals,
1
Cf. Mitnick (1980:2-3)
Our definition of regulation is both focused and broad. It is focused as it sees regulation as those
activities that help prevent and control human induced risk rather than all forms of social control or
influence. In other words, we focus on the restrictive function of regulation, rather than its enabling or
facilitating function. At the same time the definition is broad as it does not define exactly what kind of
activities regulation includes, nor do we require explicit intention to reduce risk. (Cf. Baldwin and Cave
1999: 1-2; Morgan and Yeung 2007: 3-4; Hutter 2001 8-11; Selznick 1985, Mitnick 1980: 1-7; Baldwin,
Scott, and Hood 1998: 3-4)
3
We could also have called it a regulatory field or arena. We opt to call it a landscape, in part in
order to highlight some of its geographical characteristics and in part for stylistic purposes.
2
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and identities were not originally regulatory, and who have undergone a regulatory
transformation into a regulatory role. One can think for instance of citizens or citizen
groups, banks, courts, industry associations, and civic organizations (Gunningham,
Grabosky, and Sinclair 1998). Although many of these actors have probably always
been present on the regulatory landscape, their importance has only received attention
in the last decade or so (i.e.; Gunningham, Kagan, and Thorton 2006; Gunningham and
Sinclair 2002;Grabosky 2012; Hutter 2006; Grabosky 2005; Blackman 2010; Chng
2012). To date, most of the literature has either noted the importance and emergence of
new actors, or analyzed their impact on regulation. Different studies find that non-state
actors have a positive (World Bank 2000;Wang 2000; Zhang et al. 2008; Pargal et al.
1997, McAllister 2008;Blackman and Bannister 1998;Oberholzer-Gee and Mitsunari
2006; Gunningham, Phillipson, and Grabosky 1999; Chng 2012), mixed (Huq and
Wheeler 1993; O'Rourke 2004; Féres and Reynaud 2006;Liu 2009; Fürst 2008; Van
Rooij 2010b, 2012) or inadequate effect in terms of risk reduction (i.e. Rich, Conn, and
Owens 1993, Lee 2010; Van Rooij 2010a). So far, new actors have also largely (with
the exception of Black 2001) been viewed through the lens of traditional state
regulation and cast as quasi-administrative regulators. Hutter, for instance, adapts an
earlier framework developed to analyze state regulatory roles to look at the roles nonstate actors can play (Hutter 2006). Moreover, it is often implicitly and sometimes
explicitly (i.e. Black 2001) assumed (with the exception of Mitnick (1980: 2-3)) that
non-state actors intentionally became involved in regulation, and that they did so
uninfluenced by and without influence on their original non-regulatory roles, goals and
identities. Finally, many believe that the emergence of new non-state actors has made
the state is much less central to the core regulatory mission (Black 2002; Black 2001).
2 Electronic
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This special edition studies the pluralizing of China’s regulatory landscape by
analyzing the entry and effects of new actors whose regulatory roles now parallel the
work of the traditional administrative agencies. Doing so, it adds a unique case to the
literature on regulatory pluralism and non-state, third party and decentered or
polycentric forms of regulation, which has predominantly been developed by theories
about high-income liberal democracies (i.e. Black 2001;Gunningham, Grabosky, and
Sinclair 1998). It also adds an important case to the emerging work on the regulatory
state in the South (i.e. Dubash and Morgan 2012, Braithwaite 2006;Chng 2012) that has
not much focused (an exception is Hsueh 2011) on the role regulation plays and how it
operates and changes in authoritarian settings. China adds interesting questions to the
existing literature. Why and how would a regulatory space to new actors open up in an
authoritarian system? And how does the nature of authoritarianism influence the
pluralizing processes or new actors’ ability to reduce risk? And what does the fact that
regulatory pluralism can also occur in authoritarian settings mean for our existing ideas
about decentered regulation?
Over the past decade, the Chinese regulatory landscape has become increasingly
pluralized, with active involvement by citizens, civic organizations, financial
institutions, trade associations, judicial authorities, and prosecutorial organizations.
China, of course, is politically different from the liberal democracies featured in most
studies of regulation and governance. China has developed a particular regulatory state
with a bifurcated strategy of macro-liberalization and strong sectoral state regulation,
that is quite unlike other developmental states (Hsueh 2011). Most importantly, for our
analysis here, it is a one party state, with a remarkably resilient form of authoritarian
rule (cf. Nathan 2003). And recently China has shown a remarkable shift toward what
3 Electronic copy available at: http://ssrn.com/abstract=2413872
some call “responsive authoritarianism” (cf. Cai 2004, Weller 2008, He and Warren
2011; Reilly 2011). There is now space for societal input, including direct local
elections, public hearings, access to courts, social media, and even protest, which act as
feedback mechanisms and tools for party-state coordination (cf. Stockmann 2012;
Minzner 2005; Van Rooij 2012; Lorentzen 2010). Under responsive authoritarianism,
the Chinese government walks a fine line between tolerating (and sometimes even
encouraging) societal participation, expression, and agency on the one hand and
controlling society on the other (cf. Stockmann 2012).
The three papers in this special edition are all case studies of new actors emerging
on the Chinese regulatory landscape. The first paper by Johnson analyses how urban
citizens became involved in regulatory activity, taking action against planned waste
incinerator projects. The second paper by Zhang looks at the role that administrative
judges have started to play in the execution of regulatory fines issued by administrative
regulators. And the third paper studies how Chinese prosecutors have started to act as
plaintiffs in civil suits against polluters, comparing them to the successful rise of
prosecutorial civil action against pollution in Brazil. This introduction uses these three
papers as well as work by Lora-Wainwright and by Fürst, presented at the symposium
that produced this special edition but that are not included in this journal. This
introduction thus profiles four new actors on the environmental regulatory landscape in
China: citizens (both lower income rural and middle income urban), civic
organizations,4 prosecutors, and judges. These actors were chosen for their importance,
as well as for the depth of information available, both from the three papers in this
special edition as well as from the broader secondary literature. Of course, no single
4
This is a case study of China’s environmental NGOs (NGOs), some of which are embedded in the
state and thus not strictly non-governmental. Cf. Ho and Edmonds 2008
4 edition of a journal can provide a full overview of the actors involved in Chinese
environmental regulation. For example, various types of economic non-state actors,
such as banks, insurance companies, and business associations, are not covered in these
pages. These gaps provide rich ground for future research and, in coming years, we
certainly hope to see them filled by new work. For now, though, we see the following
three themes emerging from the studies presented here: conditions for transforming into
a regulatory role, the effect of new actors on regulatory capacity and autonomy, and the
unintended consequences of transforming into a regulatory role.
Conditions for Regulatory Transformation
So far, the existing regulatory literature has paid scant attention to the question of how
new actors transform towards playing a regulatory role. In many studies of new
regulators, it is implicitly described, hoped, predicted, or assumed that non-state or
other new actors become involved in regulatory activities at some point (e.g.
Gunningham, Grabosky, and Sinclair 1998, Hutter 2006, Ayres and Braithwaite 1992).
Few (a notable exception is McAllister 2005) have pondered the factors that propel (or
restrict) such transformation and instead pointed broadly to forces such as globalization,
liberalization, privatization, and governmental failure as reasons why new actors
become involved in regulation (i.e. Grabosky 2012;Peters et al. 2009). Some
scholarship has sought to understand how new and non-state forms of regulation and
regulatory institutions arise, stressing the importance of the local conditions as well as
the interaction between the state, social movements and regulated actors. (cf. Bartley
2003, 2007) Chng has detailed how regulatory mobilization by NGOs in Manilla could
occur within a context of a fragmented regulatory space, created by market
liberalization and privatization of state sectors, and a weak state regulation (2012). As
5 yet, however, we still lack a detailed account of why new actors transform into on the
regulatory roles. Of course, scholars of contentious politics have long been interested in
the question of why some citizens take action to protect their interests and others let
complaints slide (cf. Snow et al. 1998, Van Rooij 2010b,Holzner 2004, Blecher
2002,Michelson 2006). This literature may have crucial insights for those interested in
the emergence of non-state regulators, especially citizens and civic organizations.
However, most regulatory scholars (exceptions include O'Rourke 2004) have yet to
draw on this work to understand what motivates or discourages entry onto the
regulatory landscape. In fact, one theme that emerges from this special edition analyses
the endogenous and exogenous factors that stimulate or restrict regulatory
transformation of new actors.
To start, an overarching exogenous force is China’s extreme industrial pollution
(cf. World Bank and SEPA 2007, OECD 2007). Across all papers, a major reason for
the entry of new actors was increasing concern both inside the party-state and in society
about pollution and its effects on health, the economy, and social stability. In response,
the party state has certainly sought to strengthen the traditional administrative
authorities. For instance, the number of EPB staff increased from 70,000 to well over
170,000 between 1991 and 2007, during which time government spending on
environmental protection jumped from RMB 10 billion (US 1.6 million) to RMB 340
billion (US 54 million) (Mol 2009, 96). Moreover, in a context of potential political
risks emanating from the impact of pollution, the party-state created more space for new
actors to help curb environmental risks (cf. Van Rooij 2012), as detailed below through
legislative changes and changes in the system evaluating the performance of civil
servants and political leaders.
6 A second critical external force is regulatory failure of government agencies,
also discussed in Grabosky’s general overview of how regulatory pluralism develops
(Grabosky 2012). In the papers here this is the failure (both real and perceived) of
China’s main environmental agency, the Environmental Protection Bureau (EPB). As
has been documented elsewhere (i.e. Ma and Ortolano 2000, Tilt 2007, Van Rooij and
Lo 2010, Lo and Tang 2006), EPBs struggle to implement environmental law without
sufficient funding, staff, and autonomy. Over the last decade or so, the EPBs’
shortcomings have created the demand and the space for new actors to play a role. Most
of the papers speak to this theme. In her work on NGOs, Fürst shows how a shared
concern that the state was either incapable or unwilling to address environmental risk
motivated NGO founders as well as volunteers. Meanwhile, Johnson’s contribution
shows that citizens protested when EPBs failed to properly approve EIAs for major
waste incinerators near neighborhoods in Beijing and Guangzhou. Zhang’s paper,
finally, argues that EPB weakness was a key reason the agency turned to courts for help.
In sum, these papers illustrate how the combination of increasing environmental
concern and the regulatory failure of existing agencies set the stage for new actors to
enter the regulatory landscape.
Legislative changes further enabled entry. In the 2000s, new laws and
amendments sanctioning the participation of new actors in regulatory activities further
eased entry into the regulatory landscape (Van Rooij 2012). The judges involved in
non-litigation administrative execution cases, for example, could help the EPB collect
fines because Chinese administrative law vested them with the authority to do so. In
addition, complaints about lack of public participation could become a focal point for
activism because citizens were granted the right to a public hearing under the 2002 EIA
7 law. As Johnson points out, new rules can be a useful entry point for activism, even
when they are ignored. Much like the EIA law, Fürst’s work shows how the 2008 trial
measures on access to environmental information also created space for deeper NGO
involvement in environmental governance. Top-down political recognition that societal
actors can assist the central (and, at times, provincial) government in the push for
environmental protection opened opportunities for NGO activities.
Regulatory transformation is further shaped by bureaucratic evaluation standards
and incentive structures. For actors inside the Chinese bureaucracy, the civil service
evaluation system, called the kaohe system in Chinese,5 provides vital behind-thescenes guidance. Shi and Van Rooij argue that extra kaohe credit for innovation was the
main reason Chinese prosecutors got involved as plaintiffs in environmental public
interest cases. Ironically, prosecutors may now be slower to sue now that the 2012
amendments to the Civil Procedure Law may have legalized their right to initiate
environmental public interest litigation, as it is no longer innovative to do so. Zhang’s
work demonstrates how bureaucratic targets matter in another way as well: local courts
were incentivized to aid environmental regulators collect fines through non-litigation
administrative execution cases (NAECs) because it would also help them meet national
targets for administrative litigation caseloads. As detailed in Shi and Van Rooij’s
contribution, a broader implication is that what may appear to be innovative local
experiments, may actually be guided by national targets and incentives. In this way of
thinking, China is an example of experimentalist governance (cf. Sabel and Zeitlin
2008), but in an authoritarian setting. Local level discretion creates a space for
experimentation, although the experiments are nearly always oriented toward national
5
For more on the Chinese internal evaluation system see Edin 2003; Heimer 2006; Landry 2008;
Minzner 2009; Wang 2013
8 targets. In China, such “experiments under hierarchy” (Heilmann 2008b) reflect a
tradition of experimentation and comfort with variation that dates back to the
revolutionary mobilization of the 1930s and 1940s (Selden 1971) and Maoist guerilla
military style (Heilmann 2008b). China’s leaders have long seen policy-making as a
process of “continual improvisation and adjustment” that prioritizes flexibility and
accepts “pervasive uncertainty” (Heilmann and Perry 2011, 12, 22). Local officials are
given leeway to try new approaches and good ideas are sometimes rolled out into
nationwide policy (Heilmann 2008a). The cadre evaluation system then typically serves
as a “shadow of hierarchy” (Sabel and Zeitlin 2008) steering local discretionary
experiments towards national targets.
In contrast to the existing literature that predominantly casts the state in a
supporting role as regulatory pluralism develops (cf. Grabosky 2012; Bartley 2003,
2007) the articles presented here clearly show the restricting and obstructing role of the
state. Entry is both enabled and restricted by China’s party-state actors at different
levels of administration. In Lora-Wainwright’s research, citizen environmental activism
had little effect in preventing or controlling pollution because of the local party-state.
Citizens try to get the unresponsive local authorities to take action, but become
disillusioned. In one case, the local EPBs did little more than declaring local water
polluted, while in the other case, local authorities withheld information and pressured
local village and township leaders. In both case studies, villagers had limited trust in
state regulatory authorities, but were able to do little without state assistance. Although
Fürst’s contribution outlines developments within the state that have opened space for
NGOs (Simon 2009), restrictions on registration are still a major obstacle that create a
chilling environment responsible for the limited scale and range of NGO activities
9 (Ashley and He 2008). In the case of the prosecutors and the courts, it is ironic that the
same national evaluation system that rewards bureaucratic innovationdoes not reward
risk taking. For judges, existing incentive structures penalize courts with a high percent
of appeals, retrials or petitions or a low level of case completion, mediation, and
execution rates (Su and He 2010; Liebman 2011; Fu and Cullen 2007; Minzner 2011).
Courts lack incentives to accept environmental cases, especially politically sensitive
disputes in which polluters are large employers with a great deal of political clout.
Environmental cases are also not easily mediated or executed, as complainants are often
angry and radicalized by the time the case reaches court. For prosecutors, the most
important incentives revolve around crime reduction targets that do not touch on
environmental crime, let alone involvement in environmental public interest litigation.
Here an authoritarian logic is at play: the fear is that new environmental actors may
cause unrest, undermining the position of those in power.
Entry of new actors onto the regulatory landscape is equally shaped by their own
endogenous characteristics. Comparing Johnson’s paper of successful entry by urban
residents and Lora Wainwright’s paper of blocked or limited entry by their rural
counterparts, we see several factors that shape possibilities for activism aimed at
reducing risk. A first point of difference is the degree of cohesion within local
communities, with the urban communities opposing new waste incinerators by up to
97%, and the rural communities showing much more disagreement. A second difference
is the degree of organization, an essential component of mobilization, which was much
higher in the urban cases than in the rural ones. More surprisingly, we see that
environmental awareness does not stand out as a critical difference in the two papers
presented here. Both the successful urban entrants as well as the less successful rural
10 citizens well understood the potential danger of pollution (cf. Lora-Wainwright et al.
2012).
For NGOs, interest in regulation often starts with feeling of wanting to try to do
something to staunch the effect of industrial pollution. There is a distinction, however,
between NGOs focused on pollution regulation from the moment they were founded
and those that entered the regulatory landscape at a later stage. Latecomers’ entry is
often a result of a new person entering the organization with a new set of interests. For
now, at least, Fürst’s work suggests that the endogenous factors hindering entry far
outweigh the facilitating factors. Even among the NGOs already playing a quasiregulatory role, limited sources of funding, scant human resources, and restricted
scientific capacity impede them from being more effective. NGOs are also held back by
self-censorship. The stakeholders involved in pollution are often powerful and, given
their own uncertain position, some organizations choose restrict their activities. The
belief that efforts to regulate industrial pollution are too politically sensitive, or that
some industries or enterprises are untouchable, leads some members of the Chinese
NGO community to hold themselves back from the regulatory landscape. Of course this
clearly shows that endogenous influences are closely related to the broaderlimits on
freedom of association which makes civic actors into birds in a cage, living within the
confines of a space defined by the party-state.
Looking at the courts and at the prosecutors, we get a somewhat different set of
variables. Here,the preconditions for entry relate tobureaucratic strength and weakness.
In some of the cases studied by Shi and Van Rooij, prosecutors were asked to support
public interest litigation because their relatively powerful position might help much
11 weaker EPBs. To some extent, prosecutors also had the necessary knowledge and
capacity to initiate civil litigation, thanks to specialized civil affairs divisions developed
to oversee civil trials and aid weaker litigants. Zhang shows that administrative judges
were similarly asked to aid EPBs through the more extensive coercive power of the
courts.
Revenue is also important. Zhang’s work on collaboration between local courts
and environmental regulators shows that judicial incentives went beyond the need to
meet national targets for administrative litigation caseloads. The courts were also
enticed by the prospect of winning a share of the pollution discharge fees collected and,
over time, court budgets came to rely on revenue derived from fees collected in
administrative execution cases. Meanwhile, courts started to incentivize such work by
introducing internal bonus mechanisms that would spur judges to collect more fees. The
work for environmental regulators, Zhang argues, was especially profitable as part of
the fee collected could be retained, as well as the processing fees paid by EPBs.
Finally, a local-contextual and historical understanding of how new actors
emerge on the regulatory landscape is vital (Bartley 2003, 2007). For China, the
development of a more responsive form of authoritarianism (cf. Cai 2004; Weller 2008;
He and Warren 2011; Reilly 2011) goes a long way toward explaining what Stern terms
the party-state’s “political ambivalence” toward regulatory pluralism (Stern 2013). On
the one hand, many officials appreciate the value of new actors who can help collect
information, pressure polluters, and help enforce the law. At the same time, however,
there is always a danger environmental activism could spiral into broader political
complaint. This tension shapes the regulatory landscape. Although many new
12 environmental actors have been granted implicit (and sometimes explicit) permission to
enter the regulatory landscape, space for activism remains limited.
Capacity and Autonomy
What does entry of new actors on the regulatory landscape mean for regulation? Or, as
Grabosky puts it in his recent overview of the literature on regulatory pluralism: “can
independent private regulatory institutions fill a gap left by the state?” (Grabosky 2012:
12) The contributions to this special edition provide some initial insights, while also
pointing to future research questions. As has been clear for some time, China’s existing
administrative regulators face challenges implementing environmental regulations. This
implementation deficit can be attributed to two core issues: 1) a lack of financial,
organizational, technical, human, and political capacity and 2) a lack of autonomy vis-avis regulated enterprises (cf.van Rooij and McAllister 2014 (forthcoming)). How, then,
does the entry of new actors affect overall regulatory capacity and autonomy? One way
to start to answer this question is by looking at two core regulatory jobs: detecting
violations of the law and responding to them (cf. Van Rooij 2012).
In theory, citizens could play a vital role in identifying violations of the law
because they often have direct daily information concerning on-the-ground pollution.
The citizens in one of Lora-Wainwright’s cases, for example, were long aware of local
pollution and law-breaking (see also Van Rooij et al. 2012). And when a local
government broke its own EIA procedures, Johnson’s urban residents were able to
unearth relevant information. However, mere access to such information is not
automatically linked to the effective control and prevention of environmental risk. In
Lora Wainwright’s Yunnan case, citizens failed to share information about local
13 transgressions outside their own community. This reflects limited social and political
capital, including limited social cohesion, limited leadership and lack of trust in state
and media institutions (cf. Van Rooij et al. 2012). They other key factor in the Yunnan
case was lack of autonomy from local industry, as village leaders became co-opted by
local factories and villagers profited from polluting enterprises. In Lora Wainwright’s
Hunan case, by contrast, citizens succeeded in getting local authorities to measure
pollution, albeit it without much effect other than verifying the existence of pollution
and a preliminary reconsideration of local mining policies. In the second case, citizens
enjoyed both high social and political capacity (strong cohesion, organization, and
leadership, accompanied by some access to allies inside the government) and autonomy
(financial independence from local industry). Along similar lines, Johnson’s urban
activists were able to use their information about EIA transgressions to rally the local
community and pressure authorities. Here, as in Hunan, activists had strong leadership,
organization and social capital, along with trust in and proximity to the state as well as
full autonomy from the planned incinerators.
The growing capacity and autonomy of China’s NGOs’ suggests they could also
play a role in detecting environmental violations. These civic organizations have been
able to draw on organizational skills, ties (and trust) with the local community,
autonomy from enterprises,6 and links with government to mediate between state and
society and improve monitoring and information sharing. Some NGOs have also
adopted strategies to work through the EPBs to assist and encourage enforcement of
laws and regulations. By investigating polluting enterprises, NGOs can compile a
dossier for EPBs to use in their enforcement work. Most of the NGOs engaged in this
6
It should be noted, though, that some grassroots NGOs report attempts by polluting enterprises to
“buy them off.”
14 kind of activity also monitor follow-up activities undertaken by the EPB to see whether
the enterprise improves its behavior. Another strategy is to expose information through
the media to pressure EPBs to enforce the law. NGO’s lack of technical and scientific
capacity, however, can hinder these monitoring efforts. The limited number of NGOs
working on pollution-related issues, the small staff and resources available to each
group, and NGOs’ limited regional reach also ultimately limits their impact on detecting
violations and monitoring pollution.
Zhang’s research shows a breakthrough occurred in Hubei province when courts
started to help EPBs to execute sanction decisions. By combining the relative power and
capacity of the court with the environmental mission of the EPB, a stronger regulatory
authority emerged. The collaboration of courts and EPBs also lent environmental
regulators with legal expertise, which is likely beneficial to maintaining their autonomy
in enforcement work. Zhang’s findings echo Thiruvengadam and Joshi’s finding that
courts in the Global South can play a more important role aiding weak administrative
regulators than is typically possible in the Global North (Thiruvengadam and Joshi
2012). At the same time, however, Zhang’s study shows that EPBs continued to
routinely hand out large reductions in fines even though court involvement improved
levy payment compliance. In other words, the involvement of courts could not
overcome the structural problem of close relations between enterprises and the local
government, sometimes called local protectionism, and improve the autonomy of
regulators. Meanwhile, EPBs primarily fined weaker private sector firms with little
pollution, such that court involvement ultimately had only a limited effect on
controlling and preventing environmental risk.
15 The prosecutors have also been able to boost the capacity of EPBs to initiate
public interest litigation as a new enforcement mechanism. Shi and Van Rooij find that
involvement of prosecutors as plaintiffs or supporting plaintiffs in environmental cases
enhances the odds the court will hear a case. In the cases studied, the involvement of
prosecutors also improves chances of winning injunctions and compensation compared
to ordinary civil cases. However, prosecutors in all the cases studied depended on local
EPB support, as they lacked the technical and legal expertise to bring environmental
lawsuits themselves. Moreover, local government often played a major role and targeted
polluters mainly were smaller, politically weak private enterprises, as in Zhang’s piece.
Given that, it is not clear whether prosecutors can add much regulatory capacity without
strong support from EPBs and local governments.
Thus, the entry of new actors on the regulatory landscape need not improve
existing regulatory capacity or autonomy, or even necessarily significantly change
environmental outcomes. Here again, an authoritarian logic is at play. More than in nonauthoritarian settings (Grabosky 2012), many of China’s new environmental actors,
particularly citizens, NGOs and even courts and prosecutors, operate in a space
delineated by the party state. In such a confined space, citizens and NGOs have trouble
developing a more successful “regulatory repertoire,” as Lora-Wainwright following
Tarrow (1998) calls it. They are unable to move from the old NIMBY (not in my
backyard) responses to pollution to new cross-regional or even cross-national social
movement with true regulatory capacity and independence. Even more independent
actors, such as prosecutors, often decide that the best way to create change is by finding
common ground with the state environmental authorities and helping them do their job
better. EPBs clearly benefit from these alliances, too, especially when they can team up
16 with a more powerful part of the bureaucracy, such as the judiciary, the procuratorate,
or the police. Environmental politics are increasingly coalition politics and a winning
coalition nearly always requires significant support inside the party-state.
Multipolarity and the Role of the State
The contributions in this special edition also shed light on how different actors interact
in the regulatory landscape. One dominant idea in the literature on new regulatory actors
is that the entry of new actors coincides with a so-called decentering of regulation. Such
decentering involves a recognition that contemporary complexity and fragmentation of
knowledge and power necessitates a recognition of the autonomy of social actors.
Moreover the decentered perspective holds that no single actor can dominate the
regulatory process. And thus, under such perspective the resultant regulation consists of
complex interactions and interdependencies between social and governmental actors
(Black 2001: 107-9). The contributions here illustrate another possibility: even though
more actors inhabit in the regulatory landscape, the regulatory center of gravity remains
largely with the state. And as such we see an emergence of regulatory pluralism that is
not matched by a full-fletched form of decentered regulation. Throughout all five
articles, old administrative regulators—the EPBs—as well as the party-state continue to
play a pivotal role in the regulatory landscape.
In Zhang’s study, EPBs play a central role in detecting pollution violations and
setting fines, even after they come to rely on the courts for a crucial aspect of their
enforcement work. Along similar lines, Shi and Van Rooij’s study shows that many
prosecutors initiated public interest litigation at the invitation of an EPB that needed
their help to get the case accepted in the court.
17 The pieces on citizen activism present a more mixed picture. Although Johnson’s
study shows how strong leadership and organization help spread information among
activists, experts, and residents, the target of action remains the environmental
authorities and local government. It is clear that the administrative authorities remain at
the center of the regulatory landscape, albeit with a stronger oversight from citizens and
media. Lora Wainwright’s cases in Yunnan and Hunan illustrate activism that is not
nearly as state-focused, but in which state regulators could have played a major role if
they had been present or responsive enough to do so. In the Yunnan case, citizen
activism developed in a vacuum nearly devoid of state environmental regulators. There
was limited regulatory effect, as citizens were unable to press for pollution prevention
and control without support from state regulators. In Hunan, in contrast, the state was a
focal point of citizen action. However, the largely unresponsive state only closed down
polluting activities because a new policy of closing down illegal mines followed a major
mining accident elsewhere in the district. Although the mine shutdowns stopped new
pollution, citizens in Hunan were left to cope with existing pollution without plans for
clean up or compensation. In Hunan, too, the government (unresponsive though it was)
remained the only regulatory actor capable of forcing a change in firm behavior.
Fürst's research shows that the state, especially the EPB, continues to play a vital
role even in the presence of active NGOs. First, NGOs develop in response to stringent
rules governing where they can exist and what kinds of activities are permitted. In
addition, NGOs depend on the state for environmental information and draw on the
judicial and normative power of the state, framing their actions in terms of legal or
official discourses. But perhaps most important, the limited resources as well as
operational space allowed for NGOs severely restricts their overall impact on regulating
18 pollution. In the end, their impressive rise still falls far from replacing the important role
of relatively well-staffed administrative agencies that are present at all levels of
government.
In China, then, we see the locus of regulatory activities remains with the state,
particularly the EPBs and the local government. For all that China’s environmental
regulatory landscape is increasingly pluralistic, an alternative center of regulatory power
has yet to emerge outside the state. China remains a state-led system, such that few
question the conventional wisdom that the state must be at the center of any serious
environmental solution. Moreover, most new actors are embedded in or controlled by
the larger party-state. In other words, regulatory pluralism largely takes place under the
aegis of a party-state that will support regulatory pluralism as long as it enhances
stability and remains controllable. Also inside the state, though, there has been a notable
proliferation of agencies involved in environmental regulation. The local officials
accountable for new, binding environmental targets must coordinate (or compete) with
environmental court judges, prosecutors, and EPB staff. As such we could view China’s
regulatory pluralism also as a part of a larger pluralizing of the Chinese party-state.
How Entry Affects the New Environmental Actors
Most of the existing literature on new regulatory actors has not looked at the
consequences of becoming involved in regulation for new actors. The literature that
looks at how entry affects new actors on the regulatory landscape has largely focused on
their regulatory effects and perhaps more importantly their legitimacy and
accountability as regulators (Black 2008). However, entry onto the regulatory landscape
can be a life-altering event for actors whose core jobs, tasks and identities have not been
19 regulatory, and whose new regulatory activities can come to undermine the nonregulatory roles they continue to play. In his work on the 1964 Freedom Summer,
sociologist Doug McAdam offers the observation that activism can be life-changing, a
point in time that divides lives into ‘before’ and ‘after’ terms, an insight that we believe
can be applied to actors who change their role conception and identity by entering the
regulatory landscape (McAdam 1989, 758). This shift is particularly noticeable for
actors coming from a context that originally is not regulatory or, perhaps, not even
related to environmental activism.
Consider judges, for example. Judges’classic task is to act as impartial adjudicators
(Shapiro 1981). Zhang’s paper shows that when judges become involved in aiding EPBs
in the execution of their administrative decisions that this can undermine the court’s
overall administrative litigation work. Becoming co-regulators with the governmental
agencies can undermine their neutrality in judging governmental decisions.
Prosecutors are another good example of the how entry into the regulatory
landscape can affect government officials. Originally, prosecutors perform a key
function in overseeing the civil work of courts through the so-called kangsheng
procedure, through which parties can ask the civil law division of the procurate to
review questionable court decisions. In criminal law cases, too, prosecutors have
traditionally been seen as superior to courts and driving the criminal process. Once
prosecutors become involved in regulation by initiating public interest litigation as a
plaintiff, their relationship with the court changes. Prosecutors then become a normal
party in a civil procedure, subordinate to the judgment of the court and without direct
rights to oversee or steer the courts.
20 For citizens, anti-pollution activism can also have consequences for their nonregulatory roles. In the cases studied by Lora-Wainwright, citizens’ entry into the
regulatory landscape had two effects. The first is a “learned helplessness” (cf. LoraWainwright et al. 2012) that activism can only lead to compensation (and not
regulation), coupled with widespread pessimism (cf. Van Rooij et al. 2012). The second
is the unraveling of solidarity as leaders are co-opted and only some citizens get paid.
This splintering is exacerbated when activist citizens are locally portrayed as
opportunists and lose status in their community. Earlier studies have similarly found
that the state-controlled media and the state itself actively cast environmental activists
as unruly elements or mentally ill people (cf. Van Rooij 2010b).
Finally, involvement in NGOs can have both positive and negative non-regulatory
consequences for the organizations involved, especially for the founders7. Leaders of
some NGOs, especially at the grassroots level, have experienced hardship as result of
their activism, such as stigmatization and threats to personal security. Other founders of
NGOs describe a lack of support from family and friends and some even complain
about health problems caused by long hours and stress. This is also an issue for younger
staff. Some say their family is unsupportive and do not see working for a NGO as a
"real job". For this reason, some NGO staff hide the nature of their work from their
social circle. Others have even been forced by their parents to leave the NGO for other
work. At the same time, however, people involved in NGOs also experience positive
biographical consequences. Founders of some organizations have won international
recognition, visible in awards and prizes as well as domestic recognition and influence.
7
This paragraph is based on KathinkaFürst’s Phd fieldwork through interviews conducted with most
Chinese NGOs working on pollution issues. The fieldwork was conducted from 2011-2013. The findings
here are forthcoming in her PhD thesis which is to be finalized in 2014.
21 On a more personal level, NGO founders and staff say they find fulfillment and
meaning through their work and enjoy surrounding themselves with other idealists.
First reactions to a newfound regulatory role clearly vary, with rejection, conversion,
and burnout all as plausible possibilities. The rise of regulatory pluralism thus has
unintended consequences, some of which such as the break-down of social structures
and the undermining of judicial processes may have a significant long term impact.
These shifts should be understood partly as the result of setting in which many new
actors, especially citizens and NGOs, can only become involved in regulation by
engaging in activities the party state sees as social unrest and heavily restricts. Similarly,
in China’s authoritarian legal development, judicial and prosecutorial independence are
not well established and judges and prosecutors playing regulatory roles can undermine
their judicial roles as well as the broader development of rule of law.
Conclusion
The papers in this special edition have three important contributions to the study of
regulation and governance. A first implication is that a pluralizing of the regulatory
landscape can occur not just in Western liberal democracies with developed civil
societies and markets, but also in China, with its state-dominated economy (Halper
2010; Huang 2008; Bremmer 2010), authoritarian political system (Steinfeld 2010,
Nathan 2003; Pei 2006), and tightly controlled civil society (Ashley and He 2008). The
form regulatory pluralism takes in China is particular to this context. We see a form of
authoritarian regulatory pluralism which is best characterized by a continued party-state
dominance and an schizophrenic recognition that new actors are necessary. Due to
concerns about social stability and regime continuity, the party-state shifts between
supporting and restricting the goals, content and functioning of new regulatory actors.
22 China’s pluralizing regulatory landscape broadens our understanding of
regulatory pluralism. It can no longer be seen as a phenomenon of market-based liberal
democracies, and has its own logic in the authoritarian settings of China’s bifurcated
regulatory state that is at once liberalizing and regulating (Hsueh 2011). Under this
authoritarian logic, regulatory pluralism predominantly occurs within the confines of a
space controlled by the party-state. As such it should be seen as part of a broader
process of a pluralizing form of authoritarian governance (cf. Mertha 2009). Crucial
here is China’s turn towards a responsive form of authoritarianism (cf. Cai 2004, Weller
2008, He and Warren 2011; Reilly 2011), with a party-state responsive to both political
and societal concerns. Under such responsive authoritarianism, the Chinese party-state
has to balance a constant conflict between giving sufficient space to new actors to
prevent risk that can cause unrest, and controlling actors so that they do not cause unrest
themselves (cf. Van Rooij 2012). This explains the strange combination of state opening
and restriction of the regulatory landscape. In this context, the worst-case scenario is
that regulatory pluralism can only function as a form of “regulation by escalation.”(cf.
Van Rooij 2012) In this situation, societal regulation can be effective if it escalates to
the level of social unrest.
A second insight is a comparative contrast between China and the emerging
“southern” perspective on regulation. The special edition highlights some of the
similarities but also some of the differences between the Chinese cases studied here and
the overgeneralized conclusions of work seeking to understand the rise of regulation in
the global “South”. Much as the literature on the Global South suggests, China’s
development of regulatory pluralism occurred in a context of limited state capacity. (cf.
Braithwaite 2006; Dubash and Morgan 2012; Chng 2012). Also, strikingly, the papers
23 demonstrate the regulatory potential of judicial actors, similar to Thiruvengadam and
Joshi (2012)’s findings, while also detailing their inherent limits. However, compared to
the southern regulatory literature, our papers on China show little sign of international
influence and pressure (Braithwaite 2006, Dubash and Morgan 2012). Nor did we find
what Braithwaite hoped can happen in developmental contexts: the development of a
regulatory society that can bypass failing state regulatory institutions (Braithwaite 2006).
Rather the opposite, societal actors’ activities are shaped directly by the party-state. Nor
do we see regulatory pluralism emerging in a setting “where infrastructure services are
of extremely poor quality and often non-existent” (Dubash and Morgan 2012:142) or
“or deliver(ing) much needed services to urban poor communities” (Chng 2012). This
demonstrates the need for more careful comparison in more narrow sets of countries and
regulatory domains to better develop regulatory theory beyond the world’s Western,
Educated, Industrialized, Rich, and Democratic (WEIRD) countries. Regime type seems
to be one important variable for comparative cases selection, opening up possibilities to
develop and test assumptions about the relationship between the political system and the
development and functioning of regulation.
The third implication is theoretical. By conceptualizing regulation as a landscape
populated by a range of state and non-state actors, this special edition complicates the
understanding of new regulatory actors present in the literature. A first insight is that
actors may enter the regulatory landscape without intent to act in a regulatory manner,
but still help mitigate risk as an unintended by-product of their actions (cf. Mitnick
1980:2-3). This demonstrates that common aspects of a state based system of regulation,
such as the intent to regulate, can no longer be taken for granted in a context of
pluralism. A second related insight is the field needs to think about how to define
24 regulation in a context of regulatory pluralism. We cannot assume to capture regulation
simply by looking for new institutions and actors that assume functions similar to state
regulation (cf. Black 2001), as Hutter proposes (2006). Instead, the study of regulatory
pluralism should seek to take a truly decentered perspective. (Black 2001) However,
this is highly challenging. Even Black who has been a key supporter of this point is
unable to fully do so. She places intent at the heart of her definition (Black 2001:142),
which as we have seen is not present with some of the key actors in China, especially
citizens clearly seeking to prevent and control pollution-related risk. A truly decentered
perspective should (cf. Kottak 2009) define regulation based on what various actors on
the regulated landscape (including those that are regulated) themselves see as activities
that, intended or not, help prevent and control human-made risk8. Here, the field could
learn much from Tamanaha’s notion of a non-essentialist approach to law, detailing a
similar emic actor-based definition, developed to capture what is law under legal
pluralism (cf. Tamanaha 2000).A third insight is that when new actors enter the
regulatory landscape, the centre of regulatory gravity does not necessarily change and
become polycentric (Ostrom 2010), decentered or multipolar (cf. Black 2002), with no
actor dominating the process. Administrative agencies can continue to play a central
role by supporting or challenging new actors. New actors may operate at the “edge of
the regulatory state” as Chng has put it (2012). Our papers show this clearly for China,
which of course is not surprising given its political system. However, as even Black
concedes (2001:145), it may well be that centers of gravity and coordination remain
elsewhere as well, even in the form of traditional regulatory agencies whose demise
8
See note 2 above for an explanation about what influenced our definition here. We opt for a more
limited and broader definition of such activities than what Black proposes (2001:142), which includes all
forms of control, order and influence, but which requires intent and is based on the perspective of the
person analysing and defining, whereas our definition does not require intent and uses the perspective of
actors involved, yet limits it only to activities that such actors see as risk preventing and controlling.
25 may well have been overstated (cf. Crawford 2006: 455). The broader point is that
regulatory pluralism need not coincide with a decentering of regulation. As Crawford
has argued, there may at least by an “anchored pluralism” with the state continuing to
play an anchoring role on the regulatory landscape (Crawford 2006 following Loader
and Walker 2006).
Finally a fourth insight is that entry onto the regulatory landscape does not occur
in a vacuum. When citizens, civic organizations, financial institutions, or courts start to
play regulatory roles, their actions are influenced by their original social and
professional context. And as the papers in this special edition all sketch, perhaps more
importantly, vice versa: the entry of new actors onto the regulatory landscape may shift
their position, identity, and roles in their community or profession. This has direct
effects for the actors involved, possibly uprooting their lives and identities, but perhaps
more important may have unintended long-term consequences forthe rule of law, social
structures, and political legitimacy.
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