A legal victory in Fujian for a pair of NGOs may mark a turning point in a nationwide effort to take companies ruining the environment to court
english.caixin.com
Cui Zheng and Kong Lingyu
December 3, 2015
(Beijing) – Two environmental groups have become the first non-governmental organizations in China to win a lawsuit that champions nationwide battles against polluters on behalf of the public.
A court in Nanping, a city in the southeastern province of Fujian, ruled in favor of Green Home of Fujian and the Beijing-based Friends of Nature group in a lawsuit against four miners who run a quarry and destroyed a 1.9 hectare forest.
The ruling was significant, even though courts across the country have yet to process thousands of cases filed since a 2015 legal amendment paved the way for NGOs to pursue legal action against anyone who damages the environment.
The Fujian case was just one of more than 230,000 environment-related lawsuits filed in courts nationwide since early 2014, said Jiang Bixin, vice president of the Supreme People’s Court. These cases include about 40 filed by NGOs since January, according to NGO data.
Some progress has been made toward addressing these legal disputes. Courts in 13 provinces including Guizhou, Shandong, Jiangsu and Fujian have agreed to hear 36 environmental cases filed by NGOs as of early November, the top court said.
Unlike NGOs in other countries, the Chinese version includes groups officially supported and licensed by local governments, and those licensed as businesses that may operate as charities but are taxed like moneymaking companies.
Legal resources vary from one NGO to another, which means some battles against polluters have a better chance of winning than others. So while experts have praised the legal amendment as a foundation for a more robust climate of litigation, many NGOs that are pursuing lawsuits face major challenges, muting cheers for the Fujian victory.
Jiang said that although environmental suits filed by NGOs are being closely watched by the public, winning cases is still difficult.
Legal Progress
Litigation filed on behalf of the general public has been allowed in China only since 2012, when the government revised the Civil Procedure Law so that certain groups could file lawsuits and seek damages in cases involving harm to the environment, consumer rights violations and other issues. But the law spelled out plaintiff qualifications that effectively prevented NGOs from taking polluters to court.
Authorities drafted an amendment to the environmental law in 2013 that would have given a handful of government-backed green groups the rights to file suits as plaintiffs. But the proposal was widely criticized by the public for discriminating against a large number of NGOs and scuttled.
The amendment was then rewritten and implemented in January, marking a major shift in favor of NGO legal power. Furthermore, a supreme court interpretation of the amendment gave the nation’s estimated 700 city government-licensed NGOs the right to file lawsuits in any jurisdiction across the country.
Through the years, courts have hesitated to hear cases in which a plaintiff argues in favor of the public interest. In 2013, courts refused to consider any of the eight public-interest cases filed against polluters by the government-affiliated All-China Environment Federation.
On the other hand, a court in the southwestern province of Yunnan agreed to hear a suit filed by Friends of Nature against a chemical company that illegally tainted soil and a river by dumping chromium waste in 2012. The plaintiff wants the polluter to pay 10 million yuan to people in the area whose health was affected by the pollution, said Ge Feng, a manager for the NGO. A court ruling is pending.
Moreover, since the amendment took effect, Friends of Nature has filed eight cases, including the Nanping lawsuit.
One of the group’s lawyers, Liu Xiang, said the decision by the Nanping Intermediate People’s Court was remarkable because the judge accepted as evidence expert testimony on behalf of the plaintiff arguing that the defendants had damaged the environment. This testimony eased the plaintiff’s burden of proof and, Liu said, showed that the court was willing to follow a legal convention – that is, hearing expert testimony in environmental cases – commonly used in other countries.
The court also broke new ground by ordering the defendants to reimburse the plaintiff 165,000 yuan to cover its environmental assessment costs, legal fees and other expenses.
Ge said the Nanping decision will encourage other NGOs and lawyers to pursue cases on behalf of the public’s interest.
Rejections Abound
It’s unclear, however, whether the Nanping decision has marked the beginning of more effective battles against polluters. One reason for doubt is that the amount of post-amendment legal activity has failed to meet the expectations of many experts.
“The number of environment-related public lawsuits hasn’t surged as many expected,” said Wang Can, a professor at China University of Political Science and Law in Beijing.
According to Wang, only a few NGOs have stepped forward by filing legal cases since the amendment. These include the All-China Environment Federation, Friends of Nature, and the China Biodiversity Conservation and Green Development Foundation. The dozens of NGO-related environmental cases now in courts around the country “were filed by no more than 10 organizations,” Wang noted.
Overall, courts have rejected a lot more cases than they’ve accepted.
Of the 21 cases filed by the Green Development Foundation from January to November, six have been accepted and eight rejected, said the group’s deputy secretary, Ma Yong.
One rejection was made by a court in the city of Zhongwei, in the northwestern region of Ningxia. The local court refused to hear a case the foundation filed in August against eight mining companies that allegedly dumped industrial waste into the desert. The court rejected the case on grounds that the group cannot sue on behalf of the public.
Ma said the Zhongwei court had decided that the NGO’s arguments had nothing to do with the environmental protection law, since the lawsuit’s premise was that the companies’ activities have caused damage in local biodiversity.
Other judges have shared the Zhongwei court’s apparent lack of understanding about environmental issues, said Zhou. Such limited understanding, coupled with back-door intervention by local officials seeking to protect industries, are among the major challenges facing any group seeking to bring a polluter to court.
Financial challenges also confront NGOs. “Legal staff members usually require high salaries that NGOs cannot afford,” said Wang.
Ma agreed that NGOs often lack the personnel and capital needed to wage a successful court battle. “NGOs are already short of money and staff,” he said. “They can’t do it without outside support.”
The Nanping decision may have marked a watershed, however, not only because the defendants were ordered to pay the NGOs’ legal costs but also because a hefty fine was levied against the loser.
The court fined the defendants 1.27 million yuan, and said that figure would be increased by 1.1 million yuan if they fail to restore the forest. How proceeds of the fine will be distributed was not made public.
Wang said in previous cases filed on behalf of the public, fines were usually paid to government agencies while “almost none of the money was used to improve the environment or support environment-related litigation.”
The supreme court is now reviewing the compensation issue. On November 7, the court said it would look at creating special funds for managing compensation awarded through public litigation cases.
If such funds are indeed set up, Ge said that “the next major task will be how to use compensation money.” Unanswered questions revolve around who should be compensated if a case involves a large group of pollution victims, and how they should be paid.
Changes in payout rules also could help NGOs and their lawyers get the money they need to fight polluters. Ma said he favors a proposal to let winning NGO lawyers receive monetary rewards – an arrangement that could encourage legal professionals to defend environmental causes.
