China Water Risk interviews Hyeon-Ju Rho and Lin Yanmei of the ABA Rule of Law Initiative on the promise that China’s new green courts hold for environmental justice.
China established specialised environmental courts (also referred to as “green” courts) in late 2007, in Guizhou Province. Jiangsu Province followed suit in May 2008 and Yunnan Province in November the same year. Prior to their creation, the bulk of environmental litigation involved plaintiffs seeking compensation for damage caused to property and health by environmental pollution. The government’s motive for developing the green courts was to address the severe water pollution problems. Guizhou, Jiangsu and Yunnan are home to some of the country’s most contaminated water resources, including Lake Tai (Jiangsu) and Lake Dianchi (Yunnan).
The Article 24 of Organic Law of the People’s Court of the PRC: “Each intermediate people’s court shall set up a criminal division, a civil division, an economic division, and such other divisions as are deemed necessary.”
Important provisions of the environmental courts
- NGOs can hold water polluters accountable through civil litigation
- Pollution victims can now take preventative action
- Application of the “polluter pays principle”
- Judicial intervention strengthens environmental enforcement
While Article 24 of the Organic Law of the People’s Court establishes the legal basis for environmental courts, it does not specifically provide for their creation, or set forth procedural rules for hearing environmental cases. Consequently, each court must develop its own set of rules and procedures, often on an experimental basis. Despite this, environmental cases can now be handled more efficiently, as these can be fast-tracked into the green courts, where there is a specialised staff to deal with them.
Environmental courts have jurisdiction over civil, administrative and criminal cases related to environmental matters. Under court rules, the Supreme People’s Procuratorate (the highest agency at the national level responsible for both prosecution and investigation), Environmental Protection Bureaus, other related government agencies and environmental NGOs can all bring civil cases on the behalf of public interest.
Public interest litigation is new to China and it is significant that environmental courts have been explicit about accepting such cases. Article 88 of the 2008 revised Water Pollution law provides legal backing for class action suits as well as legal aid and NGO assistance to water pollution victims. But until recently there was no legal precedent for accepting NGO-led public interest cases.
This changed in August 2009, when the Wuxi environmental court accepted a case filed against Qingzhen Municipal Land Resources Bureau by All China Environmental Federation (ACEF), a government organised non-governmental organization (GONGO). This is the first time a lawsuit filed by an environmental group against the government was accepted by a Chinese court. The government bureau did not wait for the court to respond and instead resolved the issue with an administrative order, satisfying the plaintiff’s complaint. The significance of this case is that it was accepted at all and that ACEF was successful in attaining a satisfactory settlement.
CWR: How critical are the green courts to advancing environmental protection in China?
Yanmei: The green courts have the potential to play an important role in solving environmental problems for several reasons.
Firstly, these green courts have designated certain judges as responsible for all environmental cases in their jurisdictions. These judges will now have an opportunity to build relevant substantive expertise in this complicated and often technical area. This could lead to more just and efficient adjudication of environmental cases.
Secondly, the green courts seek to supplement the gap left by the administrative enforcement of laws and are a forum for experimentation within the legal system to identify innovative approaches to difficult problems. For example, the green courts in Kunming and Guiyang have been granted jurisdiction to hear transboundary pollution claims, which the local environmental protection bureaus have not been able to address effectively.
In theory, this could not only enable the more efficient resolution of cross-boundary harms, but also mitigate the effects of local protectionism. In the Two Lakes and One Reservoir Management Bureau vs. Tianfeng Chemical case, adjudicated by Guiyang Municipality’s Qingzhen green court in November 2007, the defendant was a polluter located outside of Guiyang Municipality’s administrative boundary, but its discharges flowed into Guiyang’s Hongfeng Lake. Although the Guizhou Provincial Environmental Protection Bureau imposed fines and had ordered the company to restructure, Tianfeng didn’t comply with the order because the Anshun municipality was inactive to enforce these orders. After the case was brought to court, the court issued a judgment that Tianfeng should immediately stop the polluting behaviour. The green court went further to monitor compliance with the order. In the end, Tienfeng took serious action to clean up the pollution and stop one of its production lines.
Thirdly, green courts have enacted rules that broaden standing to enable NGOs and the procuratorate, EPBs and other relevant government agencies to bring civil and administrative cases on behalf of the public interest. Broadening standing to sue for environmental matters will increase access to the courts as an avenue for resolving environmental disputes.
Fourthly, this expanded standing not only brings the courts more into the mainstream of environmental protection efforts, but also opens up an additional channel for NGOs, lawyers, and governmental entities such as the procuratorate to play a more active role in advancing environmental protection in China.
CWR: Are green courts prone to act with caution and leniency, in the absence of a procedural framework?
Hyeon-Ju: These courts are still local experiments. China’s intermediate-level courts have the authority to establish specialised panels of judges as needed and in this way there is legal authority to create “green courts.” Thus these are actually panels of judges within the court designated to hear environmental cases. However, there is currently no legal basis under Chinese law for one of the key innovations of the environmental courts–to accept cases brought by environmental NGOs and local prosecutor’s offices in which they do not have a direct interest in the case, but rather are representing a more generalised public interest. Still, as long as what the environmental courts are doing is perceived to be useful, I think there will be continued interest on the part of local and central governments to see whether this new approach can improve environmental enforcement. But it’s also true that if what they are doing is seen by the government not to be useful, or counter productive they could quickly be discontinued. In order for this to take root, and to have a long-term impact on the court system, there needs to be an explicit legal basis for the expanded standing rules and a stronger official commitment to the environmental courts’ continued development. In the meantime, I think the environmental courts will act cautiously. But this kind of incremental reform, often starting with local experimentation, is consistent with legal development in other areas and has proven more effective in many cases than efforts that seek to transform huge swaths of the system at once.
CWR: What are major obstacles to the success of environmental courts?
Yanmei: One obstacle is that the environmental litigation system in China is still at a nascent stage. Many key problems have not yet been resolved. One example is the lack of information available to potential plaintiffs. In order to file a case in court, plaintiffs need to have threshold evidence to provide an initial showing that their claims are legitimate. But it is difficult for the average citizen or even government prosecutors to access environmental information such as emission data, polluting sources, inspection reports, etc. In addition, China’s courts are still struggling with how to deal with the kind of highly technical information that is common in environmental cases. For example, there is no forensic identification system to deal with questions of environmental causation and environmental damages. Currently, there are no certified entities to provide reliable pollution assessments. These are challenges that affect all courts in China, not just the green courts. But they remain a real barrier to the green courts being able to adjudicate the environmental cases before them efficiently and in a credible manner. One encouraging development is that the green courts are taking the lead to try to develop solutions to some of these practical challenges. For example, in the absence of certified forensic assessment agencies, they are experimenting with different approaches to “expert testimony.” In addition, the Ministry of Environment is developing a technical guideline on assessing environmental damages.
Hyeon-Ju: Another challenge is that NGOs, the procuratorate and other entities that can now bring cases on behalf of the public interest need to catch up to this new opening in the courts. Using legal, and in particular litigation, strategies, is still a new concept for China’s environmental NGOs. And because China’s procuratorate technically only has standing to bring criminal prosecutions, it does not have effective internal mechanisms to play an active role in bringing administrative and civil actions. It also lacks substantive expertise on environmental issues. It will take time for these potential public interest plaintiffs to build this kind of internal capacity. But in the meantime, there is a risk that the current lack of cases being brought in the green courts will be interpreted as a lack of demand or need for these specialised tribunals.
CWR: The lack of educated and well-trained judges familiar with environmental laws has been cited as a stumbling block to the success of green courts. Is this a real problem?
Yanmei: This is actually one of the key advantages of the green courts—that over time, judges assigned to these courts can build up the kind of expertise about environmental law and environmental issues that will ultimately improve the quality of environmental litigation in China.
Hyeon-Ju: These kinds of tribunals are a way for court systems to be more targeted in building capacity in specialised and technical fields and to ensure that these complicated cases are being handled by judges who have the appropriate expertise.
CWR: What role can NGOs play in the development of the environmental courts?
Yanmei: The NGOs should work side by side with the legal community to make use of this opening. They should bring forward cases and propose concrete plans for courts to consider. They should join the courts in building the system and not just limit their role to awareness-raising.
Hyeon-Ju: NGOs can and must play a critical role in identifying environmental problems and in initiating cases. But NGOs also need to be strategic when thinking of how best to use this new avenue. It may not be the best strategy to bring a case just for the sake of bringing a case. At this stage in the development of the green courts, each new case will make a contribution to developing and determining the contours of this new system. NGOs must consider the impact of any given case on the development of the system over the long term.
CWR: How likely do you think it is that non-government related NGOs will be allowed to file a case in China?
Yanmei: I don’t think that whether the plaintiff is a government-sponsored NGO or a truly non-government NGO is the most important factor in whether the courts will accept a case. In various conferences and other forums, judges from the green courts have stated that they would welcome cases brought by non-government NGOs. I think the more important factor will be whether the case is within the jurisdiction of the courts and whether it presents a problem that the judges see as one that can be addressed productively by the court system.