Chinese people are coming to an ever-graver understanding of the dual changes of economic development and environmental degradation. In some heavily polluted towns and villages, citizens who had only just started to enjoy an improved standard of living have found themselves fighting a lonely battle against death and disease.
With both government action and moral indignation proving ineffective, judicial redress has become the last option for dealing with environmental disputes. But the path to enshrining environmental rights in law is proving thorny and the judicial system is experiencing bumps along the way.
According to the Chinese saying, it takes 10 years to forge a sword. So, what progress has the past decade seen when it comes to using the judicial process to resolve environmental problems? And what challenges remain? Here, with the help of leading academics and lawyers, we have chosen eight representative and influential cases of the period. We hope this retrospective will help improve understanding of the current state of Chinese environmental law.
We would like to express our gratitude for their contributions and advice to: Zhang Jingjing of the Global Network for Public Interest Law; Liu Xiang of the Center for Legal Assistance to Pollution Victims; Alex Wang, formerly of the US Natural Resources Defense Council and now based at the University of California, Berkeley School of Law; Wang Jin, professor at Peking University School of Law; Zhu Xiao, professor at Renmin University School of Law; and Qin Tianbao of Wuhan University School of Law.
1. The Pinghu Tadpoles
Yu Mingda of Pinghu in Zhejiang versus five factories, including Buyun Dyes and Buyun Chemicals.
This case took 14 years to play out and involved: four levels of courts, appeals from three levels of procurators, and four occasions on which representatives from the National People’s Congress exercised supervisory duties over the Supreme Court – lawyers say it “exhausted all means of judicial redress” and reflects China’s struggle between environmental protection and local business interests.
Starting in 1989, Yu Mingda of Pinghu in Zhejiang province, east China, leased land from Pinghu Normal College, where he farmed American river frogs. But over a period from late 1993 to early 1994, his stock of 2.7 million tadpoles all died.
Yu contacted Pinghu Environmental Bureau, which confirmed that the water near the farm had been polluted and told him the pollution had come from five factories, including Buyun Dyes Factory and Buyun Chemicals, located further upstream. These were village enterprises run by Buyun village, which neighboured Yu’s farm. The environmental authorities found that the five plants were dumping untreated effluents directly into the river. But the factories denied any link with the dead tadpoles. In December 1995, Yu sued them, demanding 483,000 yuan (US$75,000) in compensation.
In response to a request by the Pinghu Court, the Ministry of Justice’s Institute of Forensic Science carried out an assessment and found that the death of the tadpoles was directly and undeniably linked to water pollution from Buyun Dyes. But the court did not accept the finding. On July 27, 1997, one and a half years after accepting the case, Pinghu Court dismissed Yu’s claim.
When asked about the decision during an interview with a Zhejiang reporter, the deputy head of Pinghu Intermediate Court said: “Maybe the pollution was caused by the factories, but that year virtually all the fish and frogs around here died. If we had found in favour of the plaintiff, then many others would have asked for compensation too. Who’s going to pay for all those losses?”
In 1998, Shaoxing Intermediate Court upheld the original decision and, in 2001, Zhejiang Higher People’s Court did the same. In 2006, the Supreme People’s Court accepted the case for review and eventually overturned these decisions in 2009, ordering the five plants to pay Yu 483,000 yuan (US$75,000) in compensation – plus 100,000 yuan (US$15,500) in interest.
More information about this case is available here.
2. Shandong reservoir pollution
Ninety-seven farmers from Lianyungang versus Jinyimeng Paper and Linshu Chemical Plant.
This case resulted in a huge compensation payout for losses caused by water pollution. The court that handled it was not in the plaintiffs’ hometown, and did not consider the financial conditions of the companies in question when setting the compensation level. As a result, the amount received by the plaintiffs was equivalent to their estimated losses.
In this case, the government paid compensation in advance and then asked for reimbursement from the companies, not only demonstrating its obligation to protect the environment, but also giving a boost to the lawsuit. Whether or not this practice will be followed by other local governments depends on their willingness.
In the year between June 1999 and June 2000, fish in the Shiliang River Reservoir – at the intersection of the counties of Donghai and Ganyu in Jiangsu province and Linshu county in Shandong province, eastern China – were killed off by major pollution incidents, resulting in severe losses for 97 fish-farming families. The reservoir is the biggest artificial reservoir in Jiangsu and a reserve source of water for the city of Lianyungang.
After each case, the farmers complained to the Shandong provincial government and the State Environmental Protection Agency (now the Ministry of Environmental Protection) as well as visiting Linshu county government to demand compensation – but no solution was offered. In 2007, the 97 affected families brought a lawsuit against the two defendants, requesting that they be ordered to pay 5.6 million yuan (US$866,000) in compensation for loss of fish, and 480,000 yuan (US$74,000) in other costs, including those for investigations, and to prevent further occurrences.
The defendants denied any pollution or causal link, but evidence found during the court’s investigation showed that the first defendant was releasing 10,000 tonnes or more of polluted water daily, while the second was releasing about 1,000 tonnes – and that water was flowing into the Shiliang River Reservoir. Lianyungang Intermediate People’s Court found that the defendants had been releasing pollution and that this was the cause of the plaintiff’s losses, and ordered compensation to be paid. An appeal by the defendants to Jiangsu Higher People’s Court was rejected. At the end of 2003, the farmers received 5.6 million yuan in compensation.
More Information on this case is available here.
3. The Tasman Sea spill
Tianjin Oceanic Bureau versus Infinity Shipping and the London Protection and Indemnity Club.
This was China’s first international marine ecology civil compensation case. Although the damages awarded were less than hoped for, it was still a landmark case: it made the maritime authorities aware of the possibilities of claiming damages through the courts, laid a foundation for judicial and administrative bodies to better handle these cases, and provided essential experience for public interest environmental compensation lawsuits.
At 4am on November 23, 2002, the Maltese-registered tanker Tasman Sea collided with the Chinese Shunkai No. 1, 23 nautical miles east of the Tianjin Dagu Anchorage, triggering an oil spill. Investigations by the North China Sea Monitoring Centre found that 359.6 square kilometres of ocean were affected, with oil content in sediment, reaching 8.1 times normal values. The spill badly damaged the ecology of the Bohai Gulf, an important spawning and feeding ground for ocean fisheries.
After the incident, various parties brought claims in the Tianjin Maritime Court against Infinity Shipping, the tanker’s owner, and the London Protection and Indemnity Club (a mutual insurer in the shipping industry). The State Oceanic Administration authorised its Tianjin branch to sue for marine ecological damages of over 98.3 million yuan (US$15 million) on behalf of the state; Tianjin Fisheries and Harbours Office sued for losses to the fishing industry of 18.3 million yuan (US$2.8 million); while Tianjin Tanggu District Dagu Fishing Association, Hebei Luannan County Fishing Association, Tianjin Tanggu District Beitang Fishing Association and Dagu Fishing Association sued for 62.28 million yuan (US$9.6 million) in fishing and fish-farming losses to thousands of fishermen and fish farmers.
On December 24, 2004, decisions were made on the eight separate cases brought against the two defendants in Tianjin Maritime Court. Damages of more than 17 million yuan (US$2.6 million) were awarded to 1,490 fishermen and fish farmers in Luannan, Hangu, Beitang and Dagu for to the impact on catches and equipment. On December 30, the court awarded around 10 million yuan (US$1.5 million) in compensation to Tianjin Oceanic Bureau for losses to marine environmental capacity and costs incurred in investigation and assessment; and 15 million yuan (US$2.3 million) to Tianjin Fisheries and Harbours Office for loss of fishery resources and investigation costs.
This case involved 10 different legal parties, affected more than 1,500 people, and included requests for compensation of 170 million yuan (US$26.3 million). This was also the first time China had sued an overseas shipping insurer for losses under the terms of the 1992 International Convention on Civil Liability for Oil Pollution Damage since becoming party to the convention.
More information about this case is available here.
4. The Panjiayuan animal-testing laboratory
Residents of Buildings 4 and 6 at Panjiayuan Nanli, Beijing versus the Beijing Planning Commission.
In this case – one of very few successful challenges to the Beijing Planning Commission – one reason given by the court for cancelling the project’s planning permission was that an environmental impact assessment should have been carried out but was not, rendering the decision unsound.
Lawsuits over impacts of urban planning on people’s lives are actually not uncommon; this particular case is significant because the court accepted it, and the challenge was ultimately successful. Attempts to take planning commissions to court in China frequently collapse because residents fail to secure recognition as valid plaintiffs. In this case, having considered the public interest, the court decided to accept the Panjiayuan residents as plaintiffs. Their success was mainly because the project design violated certain rules set by the state, while media attention was also a contributing factor.
Residents of Panjiayuan Nanli in Beijing say that, in 1984, an animal-testing laboratory was built across the road from their homes and, although measures were taken to reduce the odours from the facility, bad smells have affected their quality of life since. In May 2002, the residents learned that another, even bigger animal laboratory in the same location had received planning permission.
The residents believed the approval process for the facility was illegal and requested that Beijing Planning Commission re-examine its decision – but the commission maintained that its actions were above board. Finally, 182 residents took the commission to court, requesting that the planning permission certificate awarded to the new project be withdrawn.
Wang Canfa, director of the Center for Legal Assistance to Pollution Victims and professor at China University of Political Science and Law, represented the residents. He found that the design of the project fell short of national standards: the laboratories were only 19.6 metres away from residential buildings – well below the required distance of 50 metres – and there was no 20 metre isolation zone, as required by health regulations. Wang also believed the laboratories would affect the local environment – and that, therefore, an environmental impact assessment was needed.
In June 2003, Beijing Xicheng District People’s Court issued the first judgement on the case, ordering the Beijing Planning Commission to cancel approval of the new laboratory. The commission did so, but also appealed against the judgement. Finally, the initial judgement was upheld and the Planning Commission dropped the appeal. This case was included in the 2003 Bulletin of the Supreme People’s Court.
More information on this case is available here.
5. The Xiping chemical plant
More than 1,700 villagers from Pingnan in Fujian versus Fujian Rongping Chemicals.
This case involved more plaintiffs than any other reported in the Chinese media to date and is representative of group lawsuits in China. While the main factor determining the outcome of a case is not the number of plaintiffs but the evidence, when a lawsuit involves so many claimants, the judge may be more careful in making the final decision, on the basis that an unfair judgment could bring adverse impacts to society.
In 1992, the south-east coastal province of Fujian implemented a “Mountain-Coast Cooperation” policy, with the aim that richer coastal regions would help boost the development of poor mountainous areas. In March that year, Asia’s biggest chlorate producer, Rongping United Chemicals – now Fujian (Pingnan) Rongping Chemicals – started construction of a plant in the village of Xiping.
The Rongping factory grew to account for one third of county government income, but along with economic development came environmental degradation and rising cancer rates. In the nine years from 1995 (the second year the plant was in operation) to 2004, not a single Xiping youth who signed up for military service passed the medical inspection.
In 1995, the factory owners made a one-off payment for loss of crops. But no further compensation was awarded. Then, in 1998, the second phase of the facility went into operation, further damaging local vegetation.
On November 7, 2002, a civil suit was brought against the factory at Ningde Intermediate People’s Court, by the residents of Xiping, Houlong and Xiadi villages, led by Zhang Changjian. The villagers asked that the company be ordered to close its facility, clean up the site and nearby mountainside, and pay compensation of 13.5 million yuan (US$2.1 million) for damages to crops and emotional health. The number of villagers participating in the lawsuit reached a new record – 1,721.
The court found that the company had caused losses through environmental pollution and ordered it immediately to stop infringing the plaintiffs’ rights, to pay compensation of 250,000 yuan (US$39,000) for damage to timber, fruit trees, bamboo and fields and to clean up industrial waste on site and nearby. Both parties appealed against this judgement. In 2005 the Higher Court’s final judgement rejected the defendant’s appeal, and ordered the factory to pay compensation of about 680,000 yuan (US$105,000).
The plaintiffs’ lawyer described this decision as the court’s “balancing trick”: “More than ten million yuan would have been considered a heavy fine, while tens of thousands would have been light. The court didn’t verify the actual losses sustained, and just gave the villagers a token amount.”
More information on this case is available here.
6. Pollution of the Shiliugang River
Guangzhou Haizhu District Procuratorate versus Xinzhongxing textile treatment plant.
This was the first example of a procuratorate bringing an environmental public interest case in China and established a significant model for the rest of the province: in its wake, further instances have occurred in Guangdong, though a similar case is yet to be seen elsewhere in the country.
The Shiliugang River in Guangdong province, south China, once ran clear, but after September 2007, its clean waters turned dark and foul – to the distress of local residents. As a result of complaints, Haizhu Environmental Bureau inspected local companies and found that the Xinzhongxing textile-treatment plant was in severe breach of pollution regulations. Washing powder, enzymes and oxalic acid, mixed up with dyes from clothes, were being dumped untreated into the river. In the eight months after the facility opened, it discharged an average of 40 tonnes of waste each day – a total of 9,600 tonnes over the period.
In July 2008, Haizhu Procuratorate sued factory boss Chen Zhongming at Guangzhou Maritime Court for causing water pollution and demanded compensation for losses and costs. In November, the court formed a panel of judges to hear the case and, in December, ruled that Chen was liable for the environmental losses caused by the pollution. Chen was ordered to pay 117,289.20 yuan (US$18,200) in compensation.
This was the first environmental public interest case brought by a Chinese procuratorate. Haizhu People’s Court found that, in accordance with Article 3 of the Water Law, and the Article 73 of the General Principles of Civil Law, Shiliugang River is a national resource, and as the state’s organ of legal supervision, the procuratorate had the right to sue over losses caused within its jurisdiction.
More information on this case is available here.
7. Public interests in Jiangyin
The All-China Environment Federation versus Jiangyin Port Container Company.
This was China’s first environmental public interest case brought by a mass organisation and came to determine the conditions that need to be met to bring a claim of this sort. The All-China Environment Federation has gone on to file several public-interest lawsuits in local environmental courts in Yunnan, Guizhou and other regions. However, it has not resulted in any visible impact on other community organisations. Regional environmental groups are not eligible to bring lawsuits in other parts of the country.
In May 2009, the All-China Environment Federation received a complaint from residents of Jiangyin in Jiangsu, on China’s east coast, that Jiangyin Port Container Company was creating air, water and noise pollution during the process of unloading, washing and transporting iron ore, severely impacting their quality of life. After on-site investigations and evidence-gathering, the federation brought an environmental public interest case in Wuxi Intermediate People’s Court, requesting that the company be ordered to stop encroaching on public environmental interests, and remove the risks to sources of drinking water for Jiangyin and Wuxi cities. The court accepted the case.
On September 22, 2009, the case was resolved through mediation and the defendant was required to correct its environmental violations.
More information on this case is available here.
8. The Dingpa paper mill
The All-China Environment Federation and Guiyang Public Environmental Education Centre versus Dingpa paper mill.
This was the first public interest case where a non-profit foundation helped to cover litigation costs. This financial support had a remarkable effect, as it allows us to rethink the role of foundations in environmental protection.
But there are two problems: first, as mentioned above, there are regional restrictions when it comes to green NGOs acting as plaintiffs. Second, it is up to the foundation in question to decide whether or not to support lawsuits financially.
The All-China Environment Federation and the Guiyang Public Environmental Education Centre sued the Dingpa paper mill in Wudang district, Guiyang, over the discharge of effluent into the Nanming River and Wu River, an important Yangtze tributary. In 2010, Qingzhen Environmental Court held a public hearing in Wudang district and ordered the Dingpa facility to stop the release of effluent, remove any risks to the Nanming River, and pay reasonable costs to the plaintiffs to cover evidence-gathering, analysis and litigation.
The case was heard by Guiyang Qingzhen People’s Environmental Court – the court’s fourth public interest case since it was established. The defendant was ordered to halt pollution immediately and take prompt measures to reduce environmental risks.
With the permission of the court, the plaintiffs applied to the “Two Lakes and A Reservoir” protection fund – an organisation that campaigns for the conservation of water resources in Guiyang, funded by the Guiyang government – to pay the costs of preparing the case.
The case also used expert testimony. The experts stated that the defendant’s factory included effluent storage and settling ponds and, without comprehensive water treatment, it would be unable to avoid pollution. The only way to enforce the court’s order that the defendant immediately halt pollution would be to close the plant, they said. This expert testimony became court evidence, and will be an important basis for enforcement of the judgement.
More information on this case is available here.
Homepage image from 352300.net shows a demonstration against the Fujian Rongping Chemicals plant in Xiping village.
