Did the Tiger Grow Fierce Teeth? An Examination of the Use of Criminal Sanctions for Environmental Pollution in China

ABSTRACT Despite an extensive body of environmental law and policy, China's environmental law has long been dubbed a “paper tiger” owning to persistent enforcement failures. Over the past decade, legislative and judicial reforms have substantially strengthened the criminal enforcement of pollution offenses, raising the question of whether Chinese environmental law has grown fierce teeth to generate sufficient deterrence. This study addresses this question by constructing and analyzing a database of 11,793 court judgments decided under Article 338 of the Criminal Law between 2012 and 2022, specifically focusing on the evolution of the criminal sanctioning system of environmental pollution in China. Assessed against the benchmark of the economic model of optimal deterrence, the findings reveal a pronounced gap between law and practice. While data show an increasing number of criminal cases brought for pollution violations and an increasing number of convictions in China, the prosecution rate remains strikingly low. Corporate defendants are prosecuted in only a negligible number of cases, while prosecution falls disproportionately on individual defendants, particularly on front‐line employees. Courts in China mostly impose a combination of fines and imprisonment for pollution crimes, but the level of sanctions remains relatively low for both individual and corporate defendants. Complementary sanctions (e.g., restitution orders) are increasingly used by the courts for the restoration of environmental damage. Taken together, the findings indicate that criminal law plays an increasingly important role in China's environmental law enforcement regime, but also falls short of yielding optimal deterrence constrained principally by a low probability of prosecution, modest sanction levels, and a systematic misallocation of criminal liability.