By Alex Wang, China Dialogue
Environmental litigation is difficult business in China. Even as the country enters its 12th Five-Year Plan period, with perhaps the most extensive set of top-down environmental and energy policies and targets it has ever announced, the space for bottom-up public supervision, particularly through the use of law and the courts, has in recent years been constrained.
There has been some progress in the development of tools that create greater transparency and accountability in environmental laws and policies. There have been modest, but important, improvements in government and corporate disclosure of environmental information in recent years. A small cadre of dedicated and increasingly sophisticated Chinese and international environmental groups and journalists continue to highlight China’s environmental problems and search for possible solutions.
But high hopes that lawyers and legal experts could harness the law to bring about positive environmental change have been tempered. As one leading environmental lawyer told me, “we must lower our expectations.”
This is unfortunate, because a public educated in the law, willing to vigorously press for enforcement of environmental law at the ground-level, can offer a powerful supplement to government environmental-enforcement efforts. It can force polluters to internalise the costs of environmental violations and drive greater compliance with the law. In China, local resistance to central dictates is well recognised: it is hard to avoid the sense that the government is leaving value on the table by not placing a greater emphasis on the role of the judiciary and public supervision in its quest to achieve its environmental and energy goals.
Aside from the potential benefits for the attainment of central government objectives, litigation is about resolving disputes. Many environmental disputes involve regular citizens facing the negative impacts of development and environmental degradation: farmers who have lost crops and livelihoods; villagers facing health problems from pollution; homeowners facing property damage; children poisoned by heavy metals. Fair and predictable judicial proceedings can help to remedy these injustices that have been, and continue to be, the by-products of rapid development.
Last year, the Center for Legal Assistance to Pollution Victims (CLAPV) – China’s first environmental legal aid center – celebrated its tenth anniversary. The All-China Environment Federation (ACEF) – a government-organized NGO under the environmental ministry – established an environmental legal aid centre in 2005. My organisation, the Natural Resources Defense Council (NRDC), has worked with these groups and others to develop an environmental bar in China (a group of lawyers specialising in environmental law) and build the capacity of lawyers, judges and the citizenry. Much has happened in the area of environmental law and litigation over the last decade and it is worth taking stock of where we stand today. I wrote an article for chinadialogue in 2007, expressing hope that environmental litigation could play a greater role in China’s environmental protection. In 2011 that hope, it must be said, has yet to be realised.
Benefits and challenges
Where it has worked, environmental litigation has served a number of important functions, such as providing some level of compensation to those who have been harmed by pollution. But in other critical respects, such as stopping ongoing pollution or forcing the remediation of past environmental harm, environmental litigation has fallen short.
An informal survey of environmental lawyers found that compensation for harms was typically the best that plaintiffs could hope for. One example of a successful “compensation for harm” case is a recent lawsuit brought by a group of mussel farmers in the Tianjin Maritime Court for harm caused by a coastal oil pipeline spill. The plaintiffs received 12 million yuan (US$1.9 million). This outcome is by no means typical though. Difficulties in causation and evidentiary burdens have made even compensatory relief difficult to obtain, particularly where harm to human health is a claim. In some cases where compensation is ordered, payment is nonetheless very difficult to obtain. This was the case in the Fujian Pingnan case against a chemical factory, which I described in detail in a 2007 article in the Vermont Environmental Law Journal.
Lawsuits can sometimes also put the spotlight on gaps in legislation and drive legal reform. The Tianjin mussel farmers’ case, which involved multiple defendants, was discussed in the course of amending China’s Tort Law. Some lawyers feel the case played a role in the establishment of the new Article 68 of that law, which provides for joint and several liability to third parties (expanding the potential parties from which plaintiffs may collect).
Litigation has in some cases also served as a channel for forcing an administrative response, by pressuring local governments to take action, or by alerting higher-level government officials to problems at the local level. A case supported by ACEF in Chengde, in northern China’s Hebei province, concerning an iron-steel plant affecting more than 1,000 people did not lead to a favourable court decision, but, after mediation, caused the local government to offer payment to harmed locals in an effort to offer some level of relief. Unfortunately, the company did not admit to any wrongdoing.
Generally speaking, though, public confidence in the courts is low. According to one experienced environmental lawyer, many plaintiffs actually have very little hope of winning, but use environmental lawsuits simply as a way to lodge a complaint and have their dissatisfaction formally recorded. All environmental lawyers I spoke with said that it is more difficult than in the past even to get cases accepted by the courts. They also said that it is virtually impossible to stop ongoing pollution or force remediation of historical pollution through the courts. A Chinese judge once told me (speaking of a housing dispute), “you cannot count on the courts to resolve the problem. Lawsuits can only serve as a tool to get the attention of the appropriate government officials.”
The lack of a reliable formal channel for addressing environmental disputes and holding agencies and polluters accountable can breed public resentment and prevent the resolution of injustices. Often it is the fear of social instability that has made courts reluctant or unwilling to handle sensitive issues or cases with large numbers of plaintiffs. However, the inability to obtain judicial relief has the tendency to push the public to take matters into its own hands as has happened in numerous incidents across China in recent years. The result in such cases is that neither plaintiffs, nor the government achieve their goals.
A direction forward
Environmental courts are a potentially positive development for environmental litigation. In recent years, various cities and provinces in China have established at least 39 specialized environmental courts, tribunals, panels, or circuit courts. Many of these courts have promulgated local rules allowing additional stakeholders, including local prosecutors, environmental agencies, NGOs and citizens, to bring “public interest” environmental suits (ones in which the parties might not traditionally have standing).
A greater diversity of channels for relief is in principle a good thing, but the verdict on these courts is still out. The most successful environmental court to date (in the city of Guiyang, south-west China) has shown a greater willingness to accept difficult cases and a greater degree of innovation in crafting solutions to environmental problems. ACEF has brought a number of demonstration cases in the environmental courts that provide a glimpse at the positive potential of environmental public interest litigation. These “public interest” cases are focused on stopping environmental problems, rather than individual compensation, and deserve much greater recognition and use. Critics have said that the environmental courts still do not fundamentally resolve problems of local protectionism and lack of independence that have made environmental enforcement so problematic in China.
Lawyers have also cited the Maritime Courts as a potential bright spot in environmental litigation. The Supreme People’s Court has been considering granting these cross-jurisdictional courts jurisdiction over regional water pollution cases. The higher quality of the judges, greater financial resources and relative independence from local influence make these courts an attractive venue for specialisation in environmental cases. China’s Intellectual Property Courts are a model for how such specialised courts can make improvements on current weaknesses in China’s court system.
Apart from these specialised courts, many experts in Chinese government, academia and civil society have been pressing for national legislation to establish environmental public interest litigation in China on the basic idea that additional channels of supervision and enforcement are needed to supplement resource-constrained government enforcement efforts. There has been robust discussion on this topic in relation to the upcoming amendments to China’s Civil Procedure Law and Environmental Protection Law, and these legislative amendments provide a once-in-a-decade (or two) opportunity to incorporate public interest litigation into the law.
China has a long history of taking successful local experiments to scale at the national level. The environmental courts have already served as an important forum for testing out environmental public interest litigation on a smaller scale, and have played a substantial role in forwarding the national discussion around public interest litigation. They have also provided empirical evidence that prior concerns about frivolous lawsuits and problems of coordination among the various stakeholders were overblown. China’s new environmental courts should continue to be given wide latitude to demonstrate the value of environmental litigation in furthering China’s environmental protection objectives and providing justice to Chinese citizens around the country. Legislators will hopefully take the opportunity to build public interest litigation into Chinese law in the coming year or two, so that the successful experiences in the environmental courts can be expanded nationwide.
Perhaps most importantly, China has a small, but dedicated, cadre of lawyers, citizens, and environmental groups willing to use legal tools for environmental protection and to promote the development of rule of law in China (one example can be seen in the documentary, The Warriors of Qiugang). In our work over the years in China, a remarkable number of lawyers have expressed a desire and willingness to use their skills to help the environment and prevent injustice. Much work can be done to help these lawyers play a bigger role in China’s environmental protection.
In China, there is often discussion of “Chinese characteristics”. In the environmental realm, China has forged its own unique path to addressing some of the most urgent environmental and energy problems the world has ever seen. As China has shown with its current and recent Five-Year Plans, its approach is characterised by the ability to move quickly when necessary; a strong sense of pragmatism; comfort with drawing experience from a wide range of domestic and international stakeholders; and most importantly a willingness to experiment and make decisive adjustments when problems are discovered. We have seen this in China’s adjustments to address inefficient allocations of environmental and energy targets, and in efforts to prevent the power outages that many local officials resorted to in 2010 to meet their energy intensity targets.
China’s current approach, for better or worse, also reflects a much greater comfort with top-down administrative measures. The government has already announced that this was an error of the 11th Five-Year Plan and that market measures will assume a greater role in the future. However, legal channels and greater public involvement and supervision are equally important and deserve much greater focus as well. China will only hamper itself if it takes these critical tools off the table.