November 13, 2005 witnessed one of the biggest environmental disasters in China’s modern history. An explosion occurred at a PetroChina chemical plant in the northwestern province of Jilin, pouring one hundred tons of Benzene into the Songhua River and creating a toxic slick stretching over 80 kilometers into the Amur River in Russia. On behalf of the endangered species and the polluted river, a group of Chinese lawyers filed a lawsuit against the subsidiary of PetroChina responsible for the spill, inaugurating a new era in Chinese environmental activism: seeking legal recourse for environmental harm. Though the Songhua River Case was dismissed by the court on the basis of animals and ecosystems not possessing legal standing as plaintiffs, it began a legal and policy discussion about how such cases could become a valuable new tool to strengthen China’s poor enforcement of pollution control laws and regulations. And this fall, Article 55 of China’s Civil Procedure Law was amended, creating effective space for environmental public interest litigation that might have even allowed for the Songhua River case to recieve standing.
On November 27th, the Wilson Center’s China Environment Forum invited three legal experts to give insight and analysis on recent public interest law cases in China and what this growing trend means for the future of environmental public interest litigation in China.
Hot but Challenging Form of Litigation
Jingjing Liu (Vermont Law School) discussed various governance challenges faced in public interest litigation. Most challenging is that environmental statues have been drafted without implementation in mind and creating a significant shortcoming in enforcement. Two of her case examples highlighted how the All-China Environment Federation has been a major driver behind successful public interest law cases. In one striking case, ACEF brought a case against the Guizhou EPB for failing to disclose the information of a polluter. In an opposite example, Kunming EPB brought a case against factory farm companies for contaminating the city’s major river. This case produced the largest award of civil compensation in a public interest law case in China. The cases Professor Liu discussed while successful only involved smaller, low-profile firms and it would be difficult to see a public interest case succeeding against a large state-owned enterprise.
China’s First Grassroots NGO Leads the Charge
Jessica Scott (EPA Office of General Counsel) examined in detail the background and progress on the first public interest lawsuit brought by China’s first legally registered independent environmental NGO Friends of Nature and a Yunnan based green two grassroots Chinese NGOs. According to Scott, the court likely accepted the case for three reasons:
- the existence of a local provincial law which allowed for NGOs to have legal standing (something that was only recently written into national law, but will not go into effect until January 2013);
- The NGOs’ partnership with the local environmental protection bureau, which greatly facilitated the compiling of evidence; and,
- The NGO’s success in catalyzing considerable news media reporting on the case.
Despite the excitement surrounding the case, the court is moving very slowly to reach a decision, as it is difficult to find accredited organizations willing and able to conduct the required environmental evaluations. The pressure to go to mediation also threatens the potential for a favorable decision.
Mind the Gaps
Robert Percival (University of Maryland Carey School of Law) explained that while China amended Article 55 of its Civil Procedure Law to allow for public interest suits, many questions still remain, particularly regarding precisely who can serve as a public interest plaintiff. Ultimately, the major challenge faced by those wishing to raise public interest suits is the courts’ unwillingness to accept such cases, especially if the comapny in question serves as a major source of local tax revenue. This issue is highly politicized and represents a major hurdle for environmental governance. Percival argues that until China can make a successful transition to the rule of law with an independent judiciary, it will be difficult to encourage courts to take on larger, higher profile cases. Additionally, Chinese NGOs are beginning to take non-litigation approaches to environmental issues by pressing corporations to carry out independent environmental audits of their pollution.