Green Courts: a new case for the environment
It is recognised that the enforcement of environmental laws is one of the greatest obstacles in reducing water pollution in China. While the nation’s environment agency, the Ministry of Environmental Protection (MEP)1, has over the past decade become a stronger regulatory body, the enforcement of environmental standards remains limited by inconsistent, overlapping and fragmented regulatory requirements and complex jurisdictional authority. Moreover, much of the burden of enforcing anti-pollution laws falls to local environmental protection bureaus (EPBs) that are hampered by insufficient resources, understaffing, lack of training, political pressures favouring local development and conflicts of interest. Recent judicial intervention relevant to water protection and the test cases brought by government agencies, local Procuratorates and environmental NGOs show that civil enforcement of laws through litigation has the potential to begin to address some of these legislative and regulatory weaknesses.
According to a 2009 Asian Development Bank study, since 1998, there has been an average yearly increase of 25% in the number of environmental lawsuits filed in China. In 2005, this number reached a record of nearly 700,000.2
Birth of the “Green” Courts
In response to serious water pollution that continues to threaten local supplies of drinking water3, several specialised environmental courts (herein after refer to as ECs) have been established. They are located in:
- Guiyang4(Guizhou Province, established on November 20, 2007);
- Wuxi (Jiangsu Province, established on May 6, 2008); and
- Kunming and Yuxi (Yunnan Province, established in November, 2008).
These ECs have legal jurisdiction over civil, administrative and criminal cases related to environmental issues and have the power to enforce decisions. The Guizhou Provincial High Court and Yunnan Provincial High Court indicate that they are willing to designate expanded jurisdiction for the ECs in cases that involve environmental harm (in particular water pollution) that extend beyond their administrative boundaries. The ECs have enacted rules that enable the procuratorate, EPBs, other relevant government agencies and environmental NGOs to bring civil cases on behalf of the public interest.
In addition to the local ECs, the Supreme People’s Court (SPC) convened two, high-level conferences on “Judicial Intervention to Water Pollution” in 2008 and 2009, in which SPC called for its maritime courts to begin accepting and adjudicating water pollution cases brought on behalf of public interests.
Highlighted Environmental Public Interest Cases in 2009
Before this new opening in the court system, the vast majority of environmental litigation cases in China were “pollution compensation cases,” in which plaintiffs seek compensation for losses caused to property or health as a result of environmental pollution. With the birth of the environmental courts, more parties can hold polluters accountable through civil litigation at an earlier stage before the pollution causes actual harm to the public’s property and health. The table below provides a list of test cases known as environmental public interest litigation, in which the plaintiff doesn’t have a direct interest in the case, but seeks injunctive relief or compensation for public goods.
|2007/12/27||Guiyang Two Lakes and One Reservoir Management Bureau sued
Guizhou Tianfeng Chemical Ltd.5
|Qingzhen Environmental Court|
|2008/12/9||Procuratorate of Guangzhou Haizhu Districts sued Chen Zhongmin (Xinzhongxing Rinse Factory)6||Guangzhou Maritime Court|
|2009/3/31||Procuratorate of Guangzhou Panyu District sued Panqu Dongtai Leather Manufacture Company7||Guangzhou Maritime Court|
|2009/4/27||Foshan Danzhao Township Government sued ZhongshanTianyi
Company, Su Guohua, Guo Youyong and Jiang Jianfeng
Procuratorate of Foshan Nanhai District sent a Supporting Litigation
|Foshan Nanhai District Court|
|2009/7/6||Zhu Zhengmao and All China Environmental Federation (ACEF) sued
Jiangyin Port Container Ltd.9
|Wuxi Environmental Court|
|2009/7/28||ACEF sued Qingzhen Land and Resources Management Bureau10||Qingzhen Environmental Court|
|2009/8/20||Chongqin Green Volunteers Association sued Yunnan Huadian Ludila Hydropower Ltd. And Huaneng Longkaikou Hydropower Ltd.11||Filed to the Wuhan Maritime Court, but yet to be accepted.|
From these high profile cases, we see the following trends:
1) More plaintiffs can hold water polluters accountable through civil litigation.
In the Guiyang Two Lakes and One Reservoir Management Bureau versus Guizhou Tianfeng Chemical Ltd case, the court ruled that as the trustee of two lakes and one reservoir responsible for water quality, the Management Bureau has the right to seek injunctive orders to prevent harm posed by Tienfeng Chemical’s Phosphorus gypsum waste. Guangzhou Maritime Court supported the procuratorates’ decision to prosecute on the grounds of environmental non-compliance, by reasoning that the procuratorate is the legal supervision authority that monitors administrative enforcement actions and if the government agencies do not take action, including civil litigation to protect the public’s interest, the procuratorate can step in and bring litigation on its own.
In the two cases brought by the environmental NGO ACEF (ACEF vs Jiangyin Port Container Ltd. and ACEF vs Qingzhen Land and Resources Management Bureau), the courts accepted both cases. In supporting its decision, the Wuxi environmental court ruled that since one of the key missions of ACEF is to provide legal assistance to pollution victims and solve environmental disputes, it has the right to sue against pollution.
2) Pollution victims can intervene at an earlier stage (preventive action)
Water pollution can be complex; often it will take a long time to see and/or prove the actual harm to human health and individual property. In the past, in order to access the courts, pollution victims needed to show prime facie that they suffered damages, such as fish killed, crops dying or other ailments. In the Guiyang, Guangzhou and Wuxi cases listed above, the courts accepted the cases on the basis that the polluting acts of the defendants did adversely impact the water quality, such that the amount of the phosphorus emitted by Tienfeng exceeds the permissible standard.
3) Judicial intervention improves environmental enforcement
In the Guizhou Tianfeng Chemical Ltd. case, previous to taking action in court, Guizhou Provincial EPB issued orders to Tienfeng to take measures to prevent the Phosphorus gypsum waste leaking to the Hongfeng Lake, but Tien Feng didn’t comply. After the court issued its verdict supporting the plaintiff’s claims, it held an enforcement hearing with the two parties and enacted an enforcement plan, whereby Tienfeng agreed to put in place the necessary mitigation to stop the polluting discharges. Tienfeng also agreed to stop its production line of Phosphorus gypsum. As part of the enforcement process, the Qingzhen EC supervised implementation of the above.
4) Applying the “polluter pays principle”
Besides injunctive orders, Guangzhou’s two district procuratorates also sought damages to the water itself. The court calculated the damages based on the avoided cost of compliance. The court’s rulings were very similar to pursuing polluters’ economic benefits of non-compliance, which is akin to the polluter pays principle. In the Foshan Danzhao Township Government versus ZhongshanTianyi Company, Su Guohua, Guo Youyong and Jiang Jianfeng case, the Nanhai People’s Court supported the Danzhao Township government to recover its clean-up cost from the polluters. In its verdict, the court also suggested that the plaintiff claim for the restoration costs once the restoration is complete.
For more analysis on China’s green courts, read China Water Risk’s interview with American Bar Association’s Rule of Law Initiative.