Explaining the variations in legal mobilization of environmental nongovernmental organizations in authoritarian China: A fuzzy set qualitative comparative analysis

• Published date: 01 April 2023
• Author: Huina Xiao,Chunyan Ding
• Date: 01 April 2023
• DOI: http://doi.org/10.1111/lapo.12208

ORIGINAL ARTICLE

Explaining the variations in legal mobilization of

environmental nongovernmental organizations in

authoritarian China: A fuzzy set qualitative

comparative analysis

Huina Xiao

1

| Chunyan Ding

2

1

Faculty of Law, Macau University of Science

and Technology, Macau, China

2

School of Law, City University of Hong

Kong, Kowloon Tong, Hong Kong

Correspondence

Chunyan Ding, School of Law, City

University of Hong Kong, Kowloon Tong,

Hong Kong.

Email: chunding@cityu.edu.hk

Funding information

Two Tales of Legal Mobilization: NGO-led

and Procuratorate-led Environmental Public

Interest Litigation in China, Grant/Award

Number: Project No. CityU 11608820

Abstract

Despite the growing literature on legal mobilization

under authoritarianism, the variations of legal mobili-

zation in authoritarian regimes have been less studied.

Drawing on a fuzzy set qualitative comparative analy-

sis of 175 environmental public interest litigations from

2009 to 2019, as well as in-depth interviews with envi-

ronmental nongovernmental organizations (NGOs)

representatives, this is the first article to present how

organizational, political, legal, and social forces (which

are demonstrated by six conditions: capacity, political

embeddedness, political endorsement, access, legal

stock, and alliance) combine to explain the variations

of NGOs’environmental legal mobilization through

the use of strategic and nonstrategic litigation in

authoritarian China. Although the state’s policy to plu-

ralize regulatory actors to improve environmental gov-

ernance has set up a relatively friendly institutional

backdrop for environmental legal mobilization, this

study finds that political forces such as the relationship

between NGOs and the state and the ambivalent atti-

tudes towards environmental protection between cen-

tral and local government have significantly influenced

the behavioral patterns of NGOs’legal mobilization.

Moreover, this study uncovers four types of legal mobi-

lization of Chinese environmental NGOs: allied mobili-

zation, progressive mobilization, steered mobilization,

and symbolic mobilization. This study enriches the

DOI: 10.1111/lapo.12208

This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which permits

use and distribution in any medium, provided the original work is properly cited, the use is non-commercial and no modifications or

adaptations are made.

©2023 The Authors. Law & Policy published by University of Denver and Wiley Periodicals LLC.

Law & Policy. 2023;45:181–210. wileyonlinelibrary.com/journal/lapo 181

understanding of the behavioral patterns of nonstate

actors in legal mobilization in authoritarian regimes

and beyond.

1|INTRODUCTION

In November 2005, a chemical plant of the Jilin Petrochemical Corporation, after explosions

resulting from its grossly negligent operation, dumped approximately 100 tons of toxic waste

into the nearby Songhua River in China (Lague, 2005). The water pollution caused a severe

and wide-reaching environmental and ecological crisis as the spill migrated downstream

through multiple population centers and towards the Amur River in Russia (BBC News, 2005).

One month after the toxic spill, three law professors and three graduate students of Peking Uni-

versity filed an environmental lawsuit on behalf of the Songhua River, its sturgeons, and the

Sun Island in the river against the Jilin Petrochemical Corporation in the High Court of Hei-

longjiang Province (Sina, 2005). Unsurprisingly, the court refused to hear the case because the

plaintiffs had no direct interest in the case and therefore lacked the standing to sue (Sina, 2005).

Since then, Chinese environmental nongovernmental organizations (ENGOs) have made many

efforts to file lawsuits in the courts in order to enforce or expand environmental law. In 2009,

All-China Environmental Federation (ACEF), a nationwide ENGO, brought the first environ-

mental public interest litigation in China against a port container company in Jiangyin, Jiangsu

Province (ACEF, 2009; Wang & Su, 2010). Three years later, the ENGO’s standing as plaintiff

in environmental public interest litigation was formally established (Article 55, Civil Procedure

Law), marking a new era in Chinese ENGO legal mobilization for environmental protection.

Legal mobilization is “the process by which legal norms are invoked to regulate behaviour”

(Lempert, 1976)or“to defend or develop legal rights”(Epp, 1998, p. 18). It is also “aformof

political activity by which the citizenry uses public authority on its own behalf”(Zemans, 1983,

p. 690). Along with the proliferation of legal mobilization research in the past four decades, a

body of work on legal mobilization under authoritarianism, which can be characterized as a state

with repressive or ambivalent political conditions (Chua, 2015), has also expanded. Some have

demonstrated nonformal, quasi-formal, and formal coping tactics and strategies used to challenge

authoritarianism (Chua, 2019a), such as pragmatic resistance deployed to mobilize gay rights in

Singapore (Chua, 2012,2014), “translation”of LGBT human rights into vernacular in Myanmar

(Chua, 2015), adaptation of strategies to the repression that Russian lawyers are facing (Van der

Vet, 2018), threats of suicide, kidnapping, murder of managers (Gallagher, 2018, p. 213), or pre-

senting legal cases on the streets by Chinese labors (Su & He, 2010). These highlight the signifi-

cant impact of ambivalent state power on shaping legal mobilization practices. The second

contribution by scholars researching legal mobilization under authoritarianism is that they eluci-

date the features and restrictions of legal mobilization under authoritarianism. Many studies have

revealed that legal mobilization occurs in a setting that has been deployed to legitimize and con-

solidate authoritarian states while subverting the dispersal of power that is inherent in plural

democracies (e.g., Gallagher, 2018; Peerenboom, 2002;Rajah,2012). Tam (2013)showedthat

both the structure (legal complex and critical juncture) (see also Moustafa, 2007) and agency

(consisting of causelawyers and rights advocacy organizations) contributed to post-colonial Hong

Kong’s successful legal mobilization of human rights. However, mobilization through labor col-

lective actions in China has been forced to turn to either individual complaints or labor NGO-led

lawsuits, and rights-defense lawyers are constrained due to the Party’s fear of its power being

eroded (Gallagher, 2018,p.5).

Given the ambivalent political environment set out above, this study investigates a less-

studied research question: What are the variations of legal mobilization led by nonstate actors

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