China: Will environmental public interest litigation begin to take root?

At first glance, there does not appear to be anything remarkable about Qingyun County in Shandong Province on the east coast of China. Nor, in fact, does there appear to be anything particularly remarkable at second glance; but look a little harder, and you’ll find that this seemingly nondescript county – famous for seedless red dates and large-leafed coriander – is the setting for China’s tentative first steps towards public interest litigation.

China does not have a common law system, where lawyers are expected to take a role in law-making, and instead relies on judiciary bodies to interpret laws and pass judgements on cases. This can be open to abuse, and suffers from a lack of oversight, particularly at the county level, where lawmakers are able to enact seemingly arbitrary judgements, and party members can act with impunity, often against public interest and in ways that Westerners would not see as being just or reasonable. Chinese law has long been opaque, and seemingly weighted in the favour of the rich and powerful at the expense of the public; there is now a recognition, perhaps, that this does not contribute to an harmonious society (和谐社会) as much as taking the interests of the public into account does. Certain social issues that might upset the balance of the harmonious society, but have been long neglected – such as the rights of migrant workers, women and children – have been challenged by small but committed groups of lawyers, who have successfully brought public interest litigation cases against workplace sexual harassment judgements, amongst others. But what is remarkable about public interest litigation is that lawsuits can be filed against governmental agencies and bodies, which is quite a concession for a state as controlling as China.

Of course, with the potential number of civil litigation cases brought by Chinese individuals being astronomical, that concession only goes so far. Public interest litigation cases need to be raised by social organisations that meet certain criteria – of size, registration, and of time operating – and details of case outcomes are not always released. The first environmental public interest litigation lawsuit, for example, filed in Fujian province in early 2016, was brought against a local quarry company by a group of NGOs and not individuals, and the criteria of who can bring lawsuits may be limited further to only include Government Organised Non-Governmental Organisations (GONGOs). What differentiates the case in Qingyun County from that in Fujian, however, is that it was successfully brought against the local Environmental Protection Department – an organ of government – which perhaps points, at least for now, to a more rigorous enforcing of the ‘war on pollution’ that forms part of China’s ecological civilisation (生态文明).

Background of case.

On 1st January 2015, China’s revised Environmental Protection Law (中华人民共和国环境保护法) went into force, with the stated purpose of “protecting and improving [the] environment, preventing and controlling pollution and other public hazards, safeguarding public health, promoting ecological civilisation improvement and facilitating economic and social sustainable development” (EU-China Environmental Governance Programme translation). It was at the end of September 2014, however, that the Supreme People’s Court issued a draft judicial interpretation of the bill titled “Interpretation Regarding Certain Issues Related to Application of the Law in Environmental Civil Public Interest Litigation”, which allowed social organisations to raise public interest litigation against governmental Environmental Protection Departments (EPDs). This was inserted as Article 58 of the Environmental Protection Law, which stipulates the conditions those social organisations must meet in order to file litigation:

Article 58 – For activities that cause environmental pollution, ecological damage and public interest harm, social organisations that meet the following conditions may file litigation to the people’s court:

  1. Have their registration at the civil affairs departments of people’s governments at or above municipal level with sub-districts in accordance with the law;
  2. Specialise in environmental protection public interest activities for five consecutive years or more, and have no law violation records.

China is affected by severe levels of pollution – including air pollution, water pollution and soil eutrophication, and has seen numerous food safety scandals – and public interest in controlling pollution and punishing the polluters is high; Article 58 gives social organisations the ability to do so. In the case of Qingyun County, where litigation was brought against the local EPD for not adequately punishing a polluting firm, Qingshun Chemical Technology Company, that produced a dye without appropriate environmental safeguards, it was Article 57 that allowed the local EPD to be sued. This article states that:

Article 57 – (…) In the event the local people’s government and its environmental protection administrations or any relevant departments fail to fulfil their responsibilities in accordance with the law, any citizen, legal person or other organisations have the right to report it to the competent higher level governments or the supervisory department according to the law.

The original ruling against Qingshun Chemical Technology Company allowed the firm to continue operations, and as the penalties meted out by the Qingyun County EPB were merely administrative, the EPB could be judged to have ‘failed to fulfil their responsibilities’. According to the US Congressional-Executive Commission on China (CECC), a court is able to intercede ‘if it determines that the contents of a settlement or mediation agreement between the defendant and plaintiff harm the national or public interest, or the rights of individuals’, and Article 57 reflects that interpretation. Thus, once the lawsuit was filed against the Qingyun County EPB, they were found to be in breach of Articles 57 and 58; and it was announced that the court had sided with the Supreme People’s Procuratorate, the prosecuting agency in the case, which celebrated the decision as China’s first ‘administrative public interest litigation’ case. The announcement did not, as the New York Times notes, indicate how the Qingyun County EPB was to be punished, only that the EPB had carried out “corrective measures” during the litigation period.

Interpretation.

The case brought against Qingyun County was the first public interest litigation case to be filed – and filed successfully – against a government organisation. This much is true. Yet it is also true that the case was brought against a relatively lowly County-level agency, in an area that is highly contentious and well within the current public sphere of interest. The details of the punishment of the case were not released at the time of the announcement, making it difficult to fully asses the efficacy of the process and the fairness of the ruling, making an interpretation based on these factors somewhat difficult. Alex Wang, law professor at the University of California, Los Angeles, is quoted in the New York Times as saying, “We can’t be sure that this newfound supervisory power will become an effective regulatory tool in the long term. We have too many past examples of local authorities clamouring to be the first example of this or that new innovation only to never see a second case.” It is important, he said, for internal expertise to be built up; this would entail further cases being considered, and the creation of specialist environment divisions.

Whether the ruling becomes “an effective regulatory tool in the long term” remains to be seen, though Qingyun County is not the only part of China where the ruling has been used: in January, local prosecutors filed litigation against a county EPB in Guizhou Province over a lack of oversight that allowed seven companies to discharge untreated wastewater into rivers. The court found in favour of the prosecutors, ordering the EPB to “carry out its supervisory duties”. At the moment, then, it seems that more cases will be brought forward, helping to contribute to the internal expertise that Mark Wang believes to be necessary, and raising awareness of the ability to file public interest litigation. Indeed, Article 53 states that citizens, legal persons and other organisations should be facilitated “to participate in, and supervise, environmental protection work”, which should encourage citizens and others to be more watchful, and be more willing to hold companies and EPBs to account.

Though the rulings above were successful, the opacity of the Chinese courts and legal system still remains. Details of the punishments handed out to the EPBs were not given in the announcements, and it is not clear whether these punishments are enough to act as deterrents. Furthermore, the targets of the litigation are at county level: do prosecutors dare to file litigation against EPBs above the county level? Rachel Stern, law professor at the University of California, Berkeley, says the cases show prosecutors “tiptoeing into more sensitive territory by suing the local government”, and that “the lowest rungs of government are always the easiest to criticise”. Holding higher-level officials accountable would indeed be noteworthy, as Ms Stern believes, and perhaps environmental public interest litigation is part of the given-and-take nature of China: it gives the public the ability to push back against the government, but in a way that is narrow enough to keep higher-level officials insulated from criticism. The public are empowered to deal with issues that are of importance to them, but in a way that is currently too limited to effect real change. This will need to change over time, and public interest litigation become more entrenched and wider-spread, or that initial empowerment will have been only illusory.

***

Sources:

Shandong Prosecutors Win Historic Suit Against Environment Watchdog, Law of China

Chinese Court Says Environmental Agency Gave Polluter Lax Punishment, New York Times

Supreme Court Draft Interpretation Clarifies Environmental Public Interest Litigation, Congresssional-Executive Commission on China

China Punishes Officials Over Sewage in First Environmental Case of its Kind, The Guardian

 

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