Can civil society use the Chinese legal system to enforce environmental law against polluters?

The first Environmental Protection Act dated 1989 legally granted the right to a healthy environment to any citizen in China. Through this law, it became a duty of the State to ensure that the environment is clean, and that polluters are prevented from harming the environment. Since then, the enforcement of environmental law has mostly been a State prerogative.

But the Chinese court system has evolved quite significantly since 1989. For example, since 2007, many administrative districts in China have set up a special court to judge environmental cases, and most local Procuratorate Bureaus have established special investigation units.

Besides, since the 2012 amendment of the Chinese Civil Procedure Law, which led to the landmark Taizhou Case, public interest civil environmental lawsuits have been opened to private organizations[1]. Prior to this case, public interest lawsuits could only be initiated by government authorities or, since a first case in 2009, by semi-official entities, but not by purely private grassroots initiatives (NGOs, foundations…).

Finally, amplifying a nascent legal trend, amendments to the Chinese Environmental Protection Act that came into effect on the 1st of January 2015, as well as their interpretation by the Supreme People’s Court, further opened up the scope of public interest lawsuits initiated by non-profit organizations against polluters.

These evolutions show how much the environmental lawsuit framework evolved over the past 25 years. This paper we will attempt to assess the recent development of public interest lawsuits in China, and see what effects the newly amended Environmental Protection Act might have on these procedures.

The Taizhou Case

Yin Youwen reports the details of the Taizhou City Case for Xiandai Kuaibao. The Taizhou case represents a turning point in environmental lawsuits in that it was one of the first initiated by a non-governmental “public interest organization” (益性社会组织, gongxing shehui zhuzhi) against six local chemical industries, and ended with a unprecedented award of RMB 160 million in damages for discharging waste acids into waterways from January 2012 to February 2013.

As reported by the journalist, the Taizhou case and decision were made possible by an amendment of the Civil Procedure Law in 2012, which had extended the possibility to raise legal actions from “relevant civil body” (有关社会团体, youguan shehui tuanti) to the larger notion of “relevant organizations” (有关组织, youguan zhuzhi). As such, purely private initiatives gained a wider access to the courtrooms.

Yin Youwen quotes Qiu Lufeng, a legal scholar at Nanjing University, who states that this lawsuit is a landmark and a big step forward. Before the 2012 amendment in the Civil Procedure Act, most environmental claims were brought to court by the public Procuratorate and were criminal infringement charges rather than civil liability claims. Criminal prosecutions in the opinion of Qiu Lufeng do suffer from major shortcomings: they create an attitude within the polluting companies deeming that once the fine is paid, the litigious facts are no longer illegal, whereas civil litigations can result on a award much more important. On top of that, they are hindered by strong local protectionism due to the importance of polluting enterprises’ contribution to local finances through taxes.

Qiu Lifeng highlights that offering new legal tools to redress such wrongs enhances the cost of polluting, adding potential damages to the criminal law sanctions (fines, imprisonment), and deeply changes the economics of polluting industries, creating incentives to invest in waste management facilities.

The 2015 Amendment of the Environmental Protection Act

In the opinion of Lu Zhongmei, the amended version of Environmental Protection Act without being perfect, offers substantial improvements with regards to the former law by further opening the courtrooms to new actors. By doing so, it establishes a key transformation in the legal mindset. Indeed, the environmental system prior to the reform was mostly top-down, and authoritatively run by local governments. In contrast, in the new system, NGOs have acquired three major rights: the “right to access information” (知情权, zhiqing quan), the “right to participate” (参与权, canyu quan) and the “right to monitor” (监督权, jianju quan). This, according to Lu Zhongmei, changes the structure of the governance of environmental issues in China. Contrary to the precedent system, which was mostly vertical with a supervising State, the new system is more horizontal: civil society is now empowered to monitor polluting activities.

In addition, Lu Zhongmei notes that the fact that the new law clearly links environmental protection to personal health is a major step forward. In her opinion, this can have major legal effects. She quotes the example of several “children blood lead contamination cases” (儿童血铅事件, ertong xueqian shijian) in which most polluting companies were complying with the emission standards, and could thus not be held accountable for their pollution, despite terrible effects on health. With the integration of health into the legal framework, a new system of standards can emerge, which focuses on health and not just on material damages.

One question remains in Lu Zhongmei’s mind, however. If civil litigation is opened up to new actors allowing legal actions from Chinese civil society, are Chinese civil courts really up to the task? For Lu Zhongmei, it is urgent to discuss the opening of special courts for environmental trials, as it is already the case for intellectual property law.

The Supreme Court Interpretation

The 2015 Amendment of the Environmental Protection Act followed by the publication of the “People Supreme Court’s interpretations on diverse issues regarding public interest civil environmental lawsuits” (最高人民法院关于审理环境民事公益诉讼案件适用法律若干问题的解释, Zui gao Renming Fayuan guanyu shenli huanjing mingshi gongyi susong anjian shiyong falv ruogan wenti de jieshi), which came into force on 7 January 2015, says Xu Juan.

According to the journalist, the main focus of these “Interpretations” is the “complainant qualifications” (原告资格, yuangao zige) that a public interest association needs to meet to be allowed to initiate legal proceedings. As expressed by the “Interpretations”, only three categories of legal entities are currently entitled to bring a civil interest lawsuit: registered NGOs to the civil administration in China (民政府民政部门登记的社会团体, minzhengfuminzheng bumen dengji shehui juanti), non-profit foundations (基金会, jijinhui) and non-commercial civil units (民办非企业单位, minban feiqiye danwei). The journalist reports that the Supreme Court’s spokesperson, Sun Jungong, stated that NGOs are not restricted to initiating actions within their registration district, and can act on a national level.

Xu Juan notes that three additional conditions have been introduced by the above mentions new regulations: the above mentioned entities (i) shall have as their purpose provision, in their article of incorporation, the protection of environment, (ii) shall have been in activity for more than five years, (iii) and shall not have committed any crimes. Xu Juan adds that Sun Jungong stated that the conviction of a former legal representative of the association is not in itself enough to disqualify the association.

Yin Youwen notes that in the Taizhou City Case the public interest organization did not meet the requirement of 5 years of existence. Nonetheless, the Tribunal did not apply this rule since the amended version of the environmental law was not yet enacted.

Reflections on the first lawsuit initiated under the New Act

The first lawsuit to take place under the new Environment Protection Act was initiated early this year by the NGO Friends of Nature (自然之友, zizan zhiyou) before the Intermediate People Court of the city of Nanping in Fujian province. The lawsuit was initiated on the grounds of a new provision of the law: “ecological destruction” (生态破坏, shengtai pohuai).

Zhao Zhengnan reports that the court hearing held on May 15th was remarkable in the fact that numerous universities sent support teams to assist the NGO during the legal proceedings, to tackle the most technical issues of the case.

In his article, Zhao Zhengnan interviews Liu Liang, head of the support team from the Chinese University of Political Sciences and Law in Beijing, who reports that this case shows that many difficulties still need to be overcome, such as the absence of clear legal provisions to solve many legal issues, the costs of litigation, etc.

Nonetheless, in the opinion of Liu Liang, this case remains of great significance since the claims do not only concern financial damages, but seek complete ecological restoration of the polluted site.

Wang Canfa, head of the environmental law research center of the Chinese University of Political Sciences and Law in Beijing, casts a new light on the reality of civil interest lawsuits in China. According to him, while this case was encouraging, there still are some hinders to legal actions initiated by NGOs. First, not many NGOs meet the newly set legal requirements (a mere 700). Second, NGOs tend to have limited resources, and thus can find it difficult and costly to gather information and evidence. Third, the general climate for NGOs is not that sound in China.[2] Fourth, he points out that many NGOs are still controlled by the Central government or local governments, who appoint their top management.

In addition to that, environment related lawsuits tend to be highly technical and complex, making legal fees unaffordable to most grassroots initiatives. NGOs tend not to possess any in-house legal team and cannot afford long lawsuits. Moreover, NGOs are mostly small grassroots structures with very limited fund-raising capacities.

Wang Canfa regrets also that it is still almost impossible to initiate a public interest lawsuit against the administration on the grounds that it did not comply with its duty to monitor economic entities. This is a significant loophole since, in most cases, the local government may have some level of responsibility for not properly supervising illegal behavior within its jurisdiction.

Conclusion

These recent changes in the legal landscape may have a deep impact on the enforcement of environmental laws. Depending on the capacity of the environmental NGOs to raise funds and mobilize the law, the costs of polluting may dramatically change in China. Commentators still point out needed improvements in the legal system but show optimism with regard to the potential impact of the new Act.

[1] A civil lawsuit is a litigation between private parties to seek for money damages rather than criminal sanctions. As a rule, only an aggrieved party can seek damages to compensate its loss. By exception, in a public interest lawsuit, the litigation is initiated by a non aggrieved party that is an entity legally entitled to represent public interest. [2] For instance, a new law restricting foreign NGOs’ rights in China is currently under discussion in China.

[1] A civil lawsuit is a litigation between private parties to seek for money damages rather than criminal sanctions. As a rule, only an aggrieved party can seek damages to compensate its loss. By exception, in a public interest lawsuit, the litigation is initiated by a non aggrieved party that is an entity legally entitled to represent public interest. [2] For instance, a new law restricting foreign NGOs’ rights in China is currently under discussion in China.