China’s prosecutors are litigating government agencies for being soft on pollution

On New Year’s Day, the government of Yushu Tibetan Autonomous Prefecture, in north-west China’s Qinghai province, issued an official notice banning the release of non-native fish species in the waters of the Sanjiangyuan, the source of the Yangtze, Mekong and Yellow rivers.

The ban came about because the local authorities were accused of failing to stop non-native animals being released into the aquatic ecosystem and causing harm. Acting in the public interest, the provincial procuratorate – a body of public prosecutors – ordered the authorities to improve protections for the indigenous species.

The case highlights the important role played by China’s prosecutors in public interest litigation.

55% of public lawsuits between January and November 2018 related to the environment

In June 2017, procuratorates were empowered to launch such legal actions by the Civil Procedure Law and the Administrative Procedure Law. This followed a successful two-year pilot programme, started in July 2015, when procuratorates in 13 provincial areas were authorised to initiate public interest legal actions. During the pilot, they launched over 1,000 legal challenges in areas such as ecosystem and environment protection, natural resource conservation, food and drug safety, and assignment of the right to use state-owned land.

In July 2018, President Xi Jinping endorsed the establishment of specialised procuratorate departments to handle public interest litigations. This move will likely result in a sustained volume of cases in the coming years.

Between January and November 2018, the public interest litigation handled by Chinese procurators numbered over 89,000, among which about 55% were environmental lawsuits. This marks an important step towards law-based environmental governance.

Data source: The Supreme People’s Procuratorate

In defence of nature

China’s Environmental Protection Law of 2015 specifically empowers non-governmental organisations (NGOs) to launch environmental public interest lawsuits.

Around 700 NGOs (among over five million believed to be registered in China) meet the legal qualification requirement for bringing such suits. However, less than 40 have the financial and human resources to launch legal actions. Only nine NGOs brought cases in 2015, and about 13 in 2016.

Besides the limited capacity of Chinese NGOs to launch legal action, the law does not allow them to target environmental violations by government departments.

In 2017, a lawsuit brought by Friends of Nature, a Beijing-based NGO, against a local environmental protection bureau in Yunnan province was dismissed by the court on the grounds that it had no standing to bring administrative public interest litigations. That right is reserved for the People’s procuratorates, according to Article 25 of China’s modified Administrative Procedure Law.

A new legal armoury

As political support for protecting the environment and addressing pollution grows, China is experimenting with new tools to stop local governments promoting revenue-generating industries that harm the environment.

Central government has dispatched high-profile special inspection squads to check on local governments and prosecutors have been brought in to beef up supervision of government departments through legal means.

The pilot programme

During the two-year pilot period, 74% of 9,866 public interest cases handled by procuratorates were targeted at eight types of government agencies. Of these, 8,712 were in or resolved by the pre-litigation proceedings, and the remaining 1,154 cases went to court. Among these, nearly all concluded in favour of the prosecutors.

Data source: The Supreme People’s Procuratorate

Procedurally, before a procuratorate can file a public interest case in court, they must first send a “warning notice” (pre-litigation recommendation) to the government agency, reminding it to fulfil its legal obligations and rectify the situation. Two months is usually given to make corrections, or 15 days for urgent cases. During the pilot programme, over 75% of government agencies took action following warnings. For instance, in Asake, Gansu province, 17 industrial plants responsible for asbestos pollution over 60 years were shut down by the local environment agency as soon as the procuratorates became involved.

In the period of January to November 2018, over 95% of cases were handled through pre-litigation proceedings with a success rate of 94.42%, up 17.3 percentage points from the pilot period. This testifies to the value of such proceedings, according to a report from the Supreme People’s Procuratorate.

Data source: The Supreme People’s Procuratorate

Ninety percent of cases were brought against government agencies, with the remainder against companies. This points to the unique role of the procuratorate in holding government agencies to account compared to NGOs.

Typical cases

In 2018, the Supreme People’s Procuratorate provided a glimpse of how cases work when it released a set of ten typical public interest litigations initiated by prosecutors around the country.

In the case of Lanshan county, Hunan province, the local environmental protection bureau had ignored the failure of a mineral processing company to comply with an administrative order. The company had left behind environmental waste after it dismantled a facility.

The local procurator issued a pre-litigation warning to the environmental bureau that led to an immediate correction of the wrongdoing. In parallel, the local anti-dereliction body took action against agency staff members for failure to carry out their duties. The case was resolved before going to trial.

Not all legal actions brought by prosecutors were against government agencies. For instance, a case was filed in September 2018 against Nanjing Shengke Water Company by the procuratorate of Gulou district, Nanjing, Jiangsu province.

The company accepted the transfer of high concentration wastewater from other companies but discharged it directly into the Yangtze River through concealed and unauthorised pipelines. A criminal and a civil case were filed, claiming over 380 million yuan (US$56 million) from Shengke for environmental damage. If successful, it will be the highest payout awarded for environmental damage in a case brought by prosecutors.

Challenges

Despite the rapid progress and impressive results, public interest litigation is still rather new to the procuratorates and to the government departments receiving legal warnings. Although many prosecutors have enhanced their expertise in the past three years, raising the overall professional capability remains a priority.

Certain precedents and judicial clarifications are still needed, and there is some concern that not all of the country’s 3,500 procuratorial bodies may be ready to file lawsuits against peer government agencies, especially when their financial resources are dependent on local governments. The same concern applies to local courts that decide on cases.

What to expect

The two-year pilot programme and resulting reforms have initiated an important new role for procuratorates in China.

Even though the challenges confronting prosecutors can be formidable, with high-level political support from both the central government and top judicial bodies, we can expect prosecutors to bring a growing number of influential public interest lawsuits.

Source: The Supreme People’s Procuratorate

Specialised public interest litigation departments will be established in procuratorates around China, including at the national level (the Supreme People’s Procuratorate) at the beginning of 2019.

This is important because prosecutors in the civil and administrative branches were previously responsible for handling cases, despite the work differing from their normal workload.

The establishment of specialised departments will allow entire teams to focus exclusively on public interest cases and develop staff with expertise to pursue complex environmental cases.