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Legal Struggles for a Cleaner Environment

09-18 21:24 Caijing

An environmental group's success in court against a local government agency may lay the groundwork for legal progress.

By staff reporters Qin Xudong and Luo Jieqi

(Caijing Magazine) A court in southern China needed only 34 days to settle a 15-year-old environmental predicament at a nature reserve. But much more time may be needed to overcome obstacles to environmental law in China that surfaced during the recent fight to protect Baihua Lake in Guizhou Province.

The case dates to 1994 when an agreement was signed to develop a state-owned, 800-square-meter plot of land on the shores of Baihua, a 58-square-kilometer lake that boasts more than 170 islets, rich vegetation and karst landscape.

The lot's owner, the Qingzhen National Land Resources Bureau, leased land-use rights to a private company for 50 years. The parties agreed a cafeteria would be built within a year. If the company reneged, the bureau would retain the land rights and get anything on the lot, including buildings, for free.

But the deal hit a wall. The building went unfinished for 15 years, and local residents complained in May that the deserted complex posed a potential threat to the ecosystem. The complaint was filed with the All China Environment Federation (ACEF), a government-linked agency.

ACEF filed a public interest environmental lawsuit in July in Qingzhen Municipal Court, charging the land resources bureau with failing to fulfill its nondiscretionary duty. The case was accepted for a hearing the next day.

At the final hearing September 1, the bureau told the court it had fulfilled its legal duty by reclaiming land use rights and properties. ACEF then dropped the case, saying the purpose of its litigation had been served. The court agreed.

The Baihua Lake case has been hailed as China's first, public interest lawsuit lodged by an environmental group and accepted by a court. Observers say it has significant implications for the country's legal system.

How it Works

The most widely accepted interpretation of "public interest environmental litigation" among China's legal circle is that a citizen, enterprise, public institution, social group or government body -- in the interest of protecting the public -- to bring a lawsuit to court on their own when the environment is subject to ongoing or imminent danger.

Here "public interest" contrasts with "private interest." The law requires a plaintiff to establish a "standing" before qualifying to file a lawsuit. That means, under civil procedures law, that the filer has a direct, causal connection to injury or interest in the case or, under criminal procedures law, a plaintiff must prove being victimized by an infringement of legal rights through a concrete administrative action. If neither condition is met, a court would likely reject the case.

These rules have made it difficult for a third party to file environmental lawsuits in the public interest, except in a few cases involving a procuratorate.

ACEF's Inspiration

Technically, ACEF does not have a "standing" to act as a plaintiff. But the foundation is administered by the Ministry of Environment with approval from the State Council. Chairman Song Jian is a former deputy chairman of the National Political Consultative Conference, its deputy chairmen include incumbent and former environment ministers, and several honorary presidents are former government and party leaders.

And although the Qingzhen case was an exception rather than the rule, it apparently inspired other advocates of environmental litigation in China.

On August 20, for example, a non-profit environmental group in Sichuan Province filed a lawsuit against two hydropower companies for damage to the Jinsha River.

The Green Volunteer League of Chongqing, which has no government connections, sued Yunnan Huadian Ludila Hydropower Co. Ltd. and Huaneng Longkaikou Hydropower Co. Ltd. for the negative environmental effects from their hydropower construction projects on Jinsha's middle reaches.

Whether the lawsuit is accepted for review will be decided later by the Court of Maritime Law in Wuhan. But a positive indicator is that it was filed two months after the environment ministry ordered the companies to halt their projects for failing to conduct environmental impact assessments.

Zhang Jingjing, deputy director of Chinese environmental law for the U.S.-based environmental group Natural Resources Defense Council, called the Qingzhen case a "touchstone" for the effectiveness of China's public interest environmental litigation.

Zhou Ke, director of environmental resources law at Renmin University of China, said while environmental pollution incidents are characterized foremost by their damage to public interests, the "standing" requirement narrows qualifications for plaintiffs in public litigation.

On the other hand, under Chinese law, it is not easy for an individual to sue over an environmental pollution case with many victims harmed in varying ways. Moreover, an individual victim may not want to go to court if his or her damages are limited while the litigation costs are relatively high. 

Xia Jun, a Beijing lawyer for Green League, cited the example of a 2004 case of pollution in the Huai River after a rainstorm. Xuyi, a Jiansu Province community famous for a certain crayfish, was among the hardest hit. Xia offered legal assistance to locals who wanted to recoup losses. But none were willing to serve as a plaintiff.  And Xia himself was accused by the local officials as making trouble.

Without a firm system for litigation, environmental victims are unable to take to legal action. Meanwhile, experts say, pollution incidents and disputes that incite public protest have been increasing.

Bie Tao, the environment ministry's deputy director of policies and regulations, supports the use of environmental litigation on behalf of the public under certain circumstances. For example, he said, lawsuits should be used in cases involving victims that are not determined, uncertain ownership of environmentally damaged property, or when a large group of victims have no single representative or are unable to pursue litigation.

"The value of public welfare litigation lies not only in resolving individual cases but improving the legal system by creating a domino effect," Bie said.

Bie suggested three channels for establishing a workable system. First, establish basic procedures through a special legal interpretation by the Supreme People's Court. Second, add special litigation provisions to existing laws governing air and water pollution. And third, incorporate public welfare litigation procedures within the framework of existing civil and criminal procedure laws.

A 2005 directive from the State Council encouraged establishing a "civil and administrative public prosecution system for environmental issues." It also called for "a larger role by social organizations in reporting and exposing various illegal activities targeting the environment" and "promoting public welfare environment litigation."

Following that directive, special courts for environmental law opened in recent years in the cities of Wuxi in Jiangsu, Guiyang in Guizhou, and Kunming in Yunnan Province. They said environmental protection authorities, procuratorates and environmental protection organizations and groups would be qualified to serve as plaintiffs.

On the heels of its success in the Baihua Lake case, ACEF became the first plaintiff to file a case with the Wuxi environmental court. The filing July 6 came 14 months after the court opened for business. A hearing is pending. 

Ma Yong, ACEF litigation chief, told Caijing that by initiating environmental lawsuits, the agency hopes to "contribute to a better procedure" for China's legal system and build "a model" for the future.

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