The plight of the public (1)

How easy is it for Chinese citizens to challenge government decisions that affect the environment? Opening a two-part article, lawyer Zhang Jingjing reviews four key cases.

Five or six years ago, “public participation” became a buzzword in environmental circles: the attempt to allow citizens and green groups a role in public decision-making was symbolised by the first ever state-level public environmental hearing on the laying of an impermeable membrane in the Old Summer Palace lake, organised by the State Environmental Protection Agency (SEPA).

Half a decade later, however, the buzz has faded. Now, “public interest litigation” is the hot topic – not just in the environmental field, but in defending the rights of consumers, women and migrant workers. These lawsuits reflect a China in an era of transformation, with social conflicts presenting a challenge for the traditional litigation system.

These buzzwords represent an emerging awareness of public participation in social management and government policy-making. And the two are intimately linked. Without public participation and representation of social groups, public-interest litigation will struggle to correct government errors or address illegal administrative actions and thus meet its objective of protecting the public interest. And, without public-interest litigation, public participation lacks any means of legal redress – and risks becoming mere window-dressing.

However, when we examine actual environmental incidents and lawsuits, we often find that “the public” has only a token role, while the “public interest” may not really mean the interests of the public at all. Prosecutors, the government and government departments all rush to represent the “public interest”, but citizens and environmental groups are not allowed to bring litigation on behalf of the public or the environment.

Looking back at cases of public participation in the environmental field over the last few years will help us reach a clearer understanding of how the public participates in the Chinese environmental movement. Here are four important examples:

1. Hearing on electromagnetic pollution from Beijing Electric Power Company’s Xishangliu high-voltage transmission line, 2004

This hearing, held by the Beijing Environmental Protection Bureau (EPB) may not have been had as big an impact on the public consciousness as the Old Summer Palace case, but it was the first hearing on environmental impact assessments (EIAs) after the “Administrative License Law and Temporary Method for Environmental Protection Administrative Licensing Hearings” came into effect on July 1, 2004. The approval of EIA reports for construction projects is a type of administrative licensing, and falls under the scope of this law.

After the hearing, members of the public in attendance brought a lawsuit contesting Beijing Environmental Bureau’s approval of the project. In terms of breakthroughs in public participation, and breadth of methods of participation, this case is of no less significance than the Old Summer Palace hearing.

Construction of the high-voltage power line in question was started illegally by Beijing Electric Power Company before an EIA had been carried out. Not only did the line interfere with views of the nearby Summer Palace – a World Heritage site – but more than 10 residential communities and educational institutions along its route were in range of electromagnetic radiation.

On August 13, 2004, the Beijing EPB held a hearing on an environmental impact assessment, completed retrospectively by the power company, on the question of whether or not the power line would create electromagnetic pollution. The bureau approved the report – carried out by an environmental assessment agency chosen and paid for by Beijing Electric Power Company – which expressed complete confidence that the line would not create electromagnetic pollution: “The effect on the surrounding public is small, and public safety is assured. The project is viable,” it said.

Six home-owners from the neighbourhood of Baiwang filed a formal request with the State Environmental Protection Agency that the decision on this rushed and obviously flawed report be reconsidered. That request was denied. In April 2005, they brought a lawsuit in Haidian district court, demanding that Beijing EPB’s approval of the report be rescinded. The case lasted four years, until a second appeal was rejected by Beijing First Intermediate Peoples’ Court on December 15, 2009. By that time, the illegally-built Xishangliu high-voltage power line had been up and running for four years.

2. Hearing on the Old Summer Palace lake, 2005.

On March 22, 2005, academic Zhang Zhengchun found while visiting the Old Summer Palace that workers were laying an impermeable plastic lining in the lake. He published an article on People.com.cn describing this as a “devastating ecological disaster”, prompting a media flurry and widespread public concern. On April 1, the State Environmental Protection Agency (now the Ministry of Environmental Protection) ordered the Old Summer Palace management office to halt work and commission an environmental impact assessment – and specifically said that a hearing would be held on the report. In fact, the hearing was held shortly after this announcement, on April 13, before the environmental impact assessment had been completed.

Like the Xishanglu high-voltage line, this project was started illegally, before any environmental impact assessment had been carried out. But in neither case were the project owners – the Old Summer Palace Management Office and Beijing Electric Power Company – punished or held legally responsible in any way. Article 31 of the law on environmental impact assessments states only that, in such cases, an assessment must be carried out when the problem is identified. That kind of “soft” regulation allows these cases to multiply and destroys the value of an EIA system – which lies in prevention. This article must be revised, or there is no point in having the assessment system at all.

This was the first hearing called by the State Environmental Protection Agency, and the most influential. In the six years since, no public hearing has had as big an impact. Deputy director of SEPA at the time, Pan Yue, said: “Environmental affairs are closely tied to the interests of all social groups, and so a public consensus is easy to reach. Widespread public participation in environmental policy decision-making is the social foundation of environmental protection, and an important symbol of the progress of the socialist democratic legal system.”

What happened next? The public presented their opinions at the hearing, and the government “heard” them. And the story appeared to have a reasonably happy ending: Tsinghua University was commissioned to produce an environmental impact assessment and, on July 5 that year, SEPA accepted the report and ordered the Old Summer Palace management to make changes accordingly.

This case was a primer for Chinese public participation in environmental protection. Although the way in which the hearing was convened and held, and the subsequent handling of the case by SEPA, were not perfect, the outcome was better than could have been expected: the highest environmental protection authority in the land had held a public hearing.

In February 2006, the year after that hearing, SEPA released its “Temporary Measures for Public Participation in Environmental Impact Assessments”.

3. Protest against Xiamen PX petrochemical project, 2007

Xiamen Haicang PX
(paraxylene) plant, planned by the Xiamen government and Taiwanese investors, was meant to be Xiamen’s biggest ever industrial project. But during the Liang Hui – China’s annual parliamentary session – in March 2007, Chinese People’s Political Consultative Conference (CPPCC) member and Xiamen University professor Zhao Yufang put forward a motion, signed by 105 other CPPCC members, that the project was too close to residential areas and that a leak or explosion at the site would put one million local lives in danger.

Far from taking any notice of this, the Xiamen government actually accelerated construction work. The case became a central issue at the Liang Hui and attracted intense media and public attention, peaking in late May. On June 1, tens of thousands of angry Xiamen citizens attended a “walking” protest – organised online and via text messages – to show their discontent. On June 7, Xiamen government announced that the fate of the project would be decided in line with a regional environmental planning assessment. The same day, SEPA announced it would carry out that assessment itself and that heavy chemical projects such as the PX plant would be reconsidered in its light. 

In December 2007, Xiamen completed its environmental impact assessment, and confirmed that the area was not suitable for a large chemical plant. The Xiamen government organised a hearing on the environmental impact assessment. On December 17, the provincial and city governments jointly announced that the project would be relocated.

This was described as a “victory for public opinion” in the media, but it is almost impossible that we will see that type of “walking” protest again in environmental cases, particularly today when the Party places social stability above all else. The Xiamen government was forced to accept public participation under unique circumstances – and did so by a unique method. This type of participation was not included in SEPA’s regulations on public participation, and the processes and methods that are provided for in the document have met challenges on the ground.

4. Opposition to the Liulitun waste-incineration project, 2007

4. Another incident worth noting is the 2007 request by residents of Liulitun that SEPA re-examine and revoke Beijing Environmental Protection Bureau’s approval of the environmental impact assessment for a waste-incineration plant near their homes, on the basis that the location was unsuitable and the amount and scope of public participation inadequate.

SEPA reached a decision in June 2007: “The project should be delayed for further discussion, and that process should be entirely open and opinions sought from a wider population. The findings of that process should be submitted to Beijing Environmental Protection Agency for approval and made public, then submitted to SEPA. Construction must not start before this has been completed.

Zhang Jingjing is
deputy country director for China at PILnet: The Global Network for Public Interest Law.

NEXT: The ongoing battle

Homepage image from Danion shows the 2007 protest against the Xiamen PX petrochemical project.