LexisNexis

China's war on pollution

China’s new environmental protection law, in force for just over a year, is helping in the country’s fight against pollution. It also highlights problems in environmental law elsewhere in the world, and how they may be resolved.

Polly Botsford

Last year, Under the Dome,a documentary broadcast in China, exposed the rampant pollution there and how little is being done about it. Produced by a female journalist, Chai Jing, the exposé had 100 million viewers online in its first 48 hours. Chai interweaves the story of her baby daughter’s tumour, which she puts down to air pollution in Beijing, with revelatory interviews and irrefutable statistics, as well as her own filmed investigations of polluting factories and truckers being allowed to drive with counterfeit emissions documents. Chai published it to maximum effect a week before China’s annual parliamentary session convened – and within four days the documentary had been blocked by the authorities.

Despite the apparent clampdown on Chai’s film, there remains the possibility that the Chinese Communist Party secretly endorsed it. As China faces slower economic growth, a new message is emerging: China should actually embrace the slowdown because it is more sustainable, more environmentally friendly. Seen in this light, tacitly allowing the broadcast its four-day window may have been a politically deliberate move.

The theory would fit with the Chinese leadership’s current agenda, which is giving more airtime to the environment in the face of social unrest and of a problem of such magnitude. The estimates are, for instance, that half a million Chinese people die from air pollution every year. A couple of months before the documentary came out, a new law in China, the Environmental Protection Law, was brought in, which aims to increase liabilities for polluters, increase transparency of data on pollution and gives standing to registered non-government organisations to bring cases. In addition, structural reforms to local government have coincided with this new law, which should make it easier to implement and enforce.

Thenew law has already had one very public success, when the first case brought under it found four defendants liable for environmental losses to wooded land which they had mined illegally. The case was started by a Beijing-based non-governmental organisation, Friends of Nature, one of the oldest independent NGOs in China, together with a newer provincial NGO, Fujian Green Home, in the Nanping Intermediate People’s Court in Fujian Province. The individuals were ordered to pay 1.2m yuan ($180,000) for environmental losses and to undertake restoration work of the site with an additional fine of 1.1m yuan ($170,000) if they failed to do so. To date, there is anecdotal evidence of three other cases resolved through mediation as well as 48 similar public interest cases already accepted into the Chinese courts.

The fact that a robust law is finally in force in a place that is among the biggestpolluters in the world is self-evidently a step in the right direction. But perhaps equally important is that these reforms are a wake-up call for lawmakers elsewhere in the world because of progressive cost rules and the broad scope of standing for public interest litigation: one legal expert has called China a ‘laboratory’ for the deployment of environmental cases.

Focus on the local

Environmental lawyers are optimistic about the new law because of the increased chances of it being enforced. And enforcement is the only game in town, according to James Thornton, CEO of Client Earth, a UK-headquartered public interest environmental litigation organisation. ‘If you do nothing to enforce [your laws] then you… authorise the conduct you sought to prohibit,’ he says.

In order to realise this enforcement theme, the reforms embrace a carrot as well as a stick approach. Using both tools is, argues Paul Davies, partner at Latham & Watkins in London which has one of the largest environmental law practices globally ‘one of the most effective ways to design environmental laws’. For instance, not only does the Environmental Protection Law come down hard on those found liable for pollution, but it also creates incentives for local officials to meet environmental protection targets and pushes forward on transparency of data on pollution (evidence being the hardest
nut to crack).

Reforms are focusing in on where the power of enforcement really lies in China. Surprisingly for a one-party centralised state, the power is not in the centre, according to Tseming Yang, Professor of Law at Santa Clara University Law School in California who has written extensively on China and its environmental laws. ‘The premise is that China is a centrally controlled government,’ she says. ‘And so you think that is what is being carried out. The reality is the opposite. The localities are just as important. Local leaders, local officials have huge discretion and power in China.’

Added to which, the local judiciary is submerged in that power structure and is, in effect, controlled by the local government. Barbara Finamore is Senior Attorney and Asia Director of the China Program at the United States National Resources Defence Council. ‘They are more like town clerks than anything else, with little independence,’ she says. No wonder then that environmental lawyers find that cases ‘simply don’t get accepted’ by local courts. The reforms deal with this head on.

Local courts are to be put under provincial administration; at the moment, a local court’s budget and personnel are controlled by the local government so courts cannot choose who to hire nor how much to pay them, let alone who they should promote or dismiss. It is proposed to hand over to provincial-level judges the power to nominate staff and set budgets which should go some way towards breaking local bureaucratic cartels.

Environmental protection ‘bureaux’ exist in the localities and act as the government agency to implement and enforce environmental rules and regulations at a local level. However, they are too closely connected to local government. The new Five-Year Plan, agreed in March, includes a provision to put these bureaux under provincial administration to combat local protectionism.

"If you do nothing to enforce [your laws] then you… authorise the conduct you sought to prohibit

James Thornton
CEO, Client Earth

As already mentioned, local government officials and bureaucrats have been given greater environmental responsibilities in relation to reducing pollution and creating energy efficiencies, and, at the same time, their performance will be evaluated based on their capacity to execute those responsibilities  properly. One academic has commented that this raises environmental targets to the same level as other key Party mandates such as economic growth and social stability.

Caroline Berube, managing partner at HJM Asia Law & Co and Co-Chair of the IBA Asia-Pacific Regional Forum, argues there is a real desire at the centre to take control of the localities. ‘The central government including the environmental ministry itself are constantly monitoring the supervision of the local bureaux,’ she says.

Last but not least, the Supreme People’s Court announced the creation of an environmental ‘division’ that is designed to ‘better implement the… law’, according to the Court. Neither the UK nor the US have an environmental division in their respective supreme courts, which demonstrates just how radical this is.

Pinghu Tadpoles: an all-too-brief history of environmental cases in China

China’s environmental laws have not been completely fallow over the years and a handful of cases have given signs of hope in recent times. According to China Dialogue, journalist Isabel Hilton’s authoritative website (www.chinadialogue.net), it all started with the Pinghu Tadpoles case (Pinghu Normal Farm of Zhejiang Province v Five Corporations of Buyun Dye Chemicals), which was brought in 1995 but took fourteen years to resolve. A frog farmer, Yu Mingda, found that suddenly his 2.7 million tadpoles had died. The farmer sued five factories upstream from his farm on the local river. By 2009, the case had got as far as the Supreme People’s Court, which ordered the plants to pay the equivalent of $75,000 in compensation plus interest. During the passage of the Pinghu Tadpoles litigation, another river was the focus of attention in a case from 2002 when 97 families who bred fish in the Shilianghe River Reservoir sued a paper mill and chemical plant upstream for polluting the water and suffocating the fish. They asked for an injunction as well as damages, both of which they got. But the defendants did not honour the judgments and the plaintiffs had to go back to court to get them enforced. That did appear to do the trick and pollution of the reservoir has, apparently, eased.

The very first public interest litigation cases actually happened before the new Environmental Protection Law came into effect. One was brought by the All-China Environment Federation in 2009 against a company which unloads iron ore, the Jiangyin Port Container Company, and which, it was found was polluting the neighbourhood. The case was resolved through mediation but the Federation has since brought further successful actions in other regions.

Another public interest case had, however, already been brought by a procuratorate (the local government agency tasked with undertaking prosecutions in China) the previous year in 2008 in Haizhu in the Guangdong province against a textile-treatment plant, which had, according to the case, discharged 40 tonnes of toxic waste each day.

These examples, though few in number, show how the new Environmental Protection Law reflects the direction of travel for Chinese environmental law over the past decade or so. It is a ‘milestone’ rather than a break with the past, argues Tseming Yang, Professor of Law at Santa Clara University Law School in California. ‘it is the stamp of approval on what was being tried out in environmental cases,’ he says.

 

Greatest engine of enforcement

Perhaps the greatest engine of enforcement is the political will to see it happen. This is driven by continued social unrest because, despite President Xi’s declared war on pollution in 2014, skirmishes between protestors and the authorities have continued. There is a telling passage in a news release relating to environmental law reforms from the Supreme People’s Court. It reads: ‘courts are considered a more rational away for people to express their concerns without triggering chaos and violence.’

Even behind the scenes, experts say this is not a PR stunt. ‘What is said behind closed doors by senior officials, judges, and so on, is consistent with public statements made. They are not just saying this stuff,’ Thornton says. ‘Chinese leaders take a longer-term view than we do here in the West and they know that these reforms are genuinely in China’s interests.’ A flood of reforms are being introduced to water and soil pollution legislation and last year the Air Pollution Law was modified. There does appear to be a desire now to follow through on environmental prosecutions by the Chinese authorities. The central Ministry of Environmental Protection and its local bureaux have been very busy according to its published statistics. They showed that for the six months from January to July 2015 there were over 1,500 cases where operations have been restricted or suspended a result of environmental violations, as well as over 900 detentions. The law contains a new liability of ‘daily fines’ and the Ministry says that it has already dealt with 405 of these cases. ‘This is a new system of punishment which will make a big difference,’ says Wu Qing, a partner at King & Wood Mallesons in Guangzhou. ‘If an enterprise has violated the law the court chooses a certain period for the enterprise to pay the fine, but if they delay, they are punished on a daily basis.’

Following an explosion at a chemicals warehouse in Tianjin last year, which killed almost 200 people, the Ministry recently announced that 123 officials would be prosecuted for ‘dereliction of duty’ over the accident. Taking such action is a real statement of intent, suggests Davies: ‘it sends a message, it sets a precedent.’

Of course, priorities can change. Politically mandated arrests and prosecutions are not the same thing as well-established rule of law with public confidence in a system that keeps a watch over abuse of power and where lawbreakers are held to account.

Environmental lawyers say that the reforms are important and the political will is welcomed, but there is still a long road to travel. Cases are still vanishing into a ‘black hole’, as Finamore calls it. The Chinese already have a number of ‘environmental courts’ established as long ago as 2007. There are now over 350 of them, but there isn’t the personnel to make them properly effective, particularly given the scale of the pollution problem (it’s an epidemic) and the sheer size of the country (it’s the fourth largest in the world). One academic calls the courts ‘constrained actors’ in environmental law enforcement where the authorities tackle easy targets, which ‘fail to boost judicial authority’. There is a capacity gap in terms of quantity and quality. There aren’t enough well-funded, properly staffed NGOs, there aren’t enough judges and those there are don’t have the requisite skills and technical knowledge.

Despite these reservations, experts agree that the Environmental Protection Law is a milestone and worthy of celebrating (though not with fireworks as these have been banned in many Chinese cities in a bid to reduce pollution).

A progressive law

The new law has other uses too because it has leapfrogged European environmental protections. The key word again here is ‘enforcement’. The new law gives locus standito (certain registered) environmental NGOs so that they can bring cases on behalf of the public, on behalf of the ‘citizen’. The critical role of NGOs in enforcing laws to protect the environment has been highlighted by the NRDC. In a research paper from 2010 it analysed the US model where so-called ‘citizen suits’ are a tried and tested feature of the legal framework. The paper found that ‘citizen suits are integral to the effective implementation of environmental laws. Citizens both increase the number and quality of enforcement actions, and hold government agencies accountable for carrying out their responsibilities.’

The Chinese law does, however, put a high bar on which NGOs have such standing and indicates there are limits as to how far the authorities are prepared to go. The NGOs, for example, have to have been operating in China for at least five years. The Ministry of Civil Affairs says there are around 700 that fulfil the criteria, but this does prevent foreign NGOs from coming into China and directly bringing cases – though nothing stops such NGOs from supporting Chinese NGOs who do have the necessary registration. The Chinese courts have also piloted giving local procuratorates (the local prosecutor agencies in China) the power to bring public interest litigation cases themselves. Again this suggests that the authorities are nervous of the impact of public interest litigation and want to keep it ‘in-house’. But the very fact that standing has been proffered at all is more than is currently the case within the EU.

"[China’s] central government including the environmental ministry itself are constantly monitoring the supervision of the local bureaux

Caroline Berube
Managing partner, HJM Asia Law & Co;
IBA Asia Pacific Regional Forum Co-Chair

At an EU level, where, in the words of Thornton ‘there has been a history of scoffing at laws’, a citizen of the EU, an NGO in the EU, cannot bring a case directly against the EU if there is a violation of its laws (for instance, where the EU fails to enforce its own laws on environmental protection). The European Commission argues that the proper place for a citizen to do so is in the national courts but, as Thornton points out, citizens then have to rely on the national court to refer such a matter to the EU courts which they are unlikely to do. He sees this lack of standing as a ‘complete disregard for democracy and the rule of law by consistently failing to respect the right of people to bring its [the EU’s] institutions’ decisions to court.’ In the UK, for example, locus standican sometimes be given but only in criminal and private law cases.

Linked to this ability to actually bring a case in the first place, is the small matter of costs. The Interpretation of the Supreme People’s Court specifically ensures that if a defendant is found to have caused pollution, then the claimant can be awarded all its costs. In the first case decided in Nanping since the Interpretation was published, the court there awarded the NGOs’ its legal fees, expert witness fees and travel costs alongside the compensation losses for the pollution. This costs system is not practised in the UK: currently a claimant NGO cannot recover all its costs if it wins a case against a polluter or a government agency. Moreover, if the NGO loses against a company or other private party (rather than the state), then it may be liable for all the costs of the defendant. As Thornton says, the Chinese have now ‘overtaken’ the UK whose ‘costs system is by far the most punitive of any country in the EU’.

Giving standing to citizens to bring cases and the cost protection to do so are just two methods to improve the enforcement of environmental laws. These are also key themes in climate justice. For instance, the IBA Task Force on Climate Change Justice and Human Rights is currently drafting a Model Statute on Legal Remedies for Climate Change, which, it is hoped, will be used as a benchmark for legal standards relating to climate change justice. The statute will inter aliadeal with issues of standing and costs alongside common problems such as causation and remedies. The IBA’s work in this area is intended to be fully global in nature and scope and so will draw on solutions from around the world, including China. ‘In advancing the IBA’s work,’ Roger Martella, Vice-Chair of the Task Force, argues, ‘we draw upon experts from every continent and lawyers who are familiar with regimes everywhere. These resources enable the IBA uniquely to be able to address legal challenges and solutions in a manner that takes into account the variety of legal regimes and politics around the world as opposed to a single-minded approach that would only fit one region or country.’

Baring teeth

In Under the Dome, Chai’s interviews reveal that, in the past, environmental enforcement agencies have been powerless in the face of local protectionism and lack of political engagement. She interrogates a director at the central Ministry of Environmental Protection about the poor enforcement record in China, saying it is ‘toothless’. The director does not try to defend himself or his Ministry. Instead, he concedes, ‘I don’t even open my mouth these days for fear people will see I don’t have any teeth left.’ There is cautious optimism that this will change and that the new law will bare teeth. 

Polly Botsfordis a legal and current affairs journalist and can be contacted at polly@pollybotsford.com