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On June 21, an environmental tribunal was set up in Haikou, capital of southern island province Hainan, bringing the number of specialized environmental courts and tribunals in China to nearly 80.
The tribunal’s head said the agency was set up so that environmental cases can be adjudicated more professionally.
In recent years, more and more specialized environmental courts and tribunals have been set up in the country to deal with salient environment problems.
Nonetheless, on June 5, national broadcaster CCTV’s News 1+1 program revealed that most of the courts and tribunals lacked cases to judge.
Running under capacity
As an old industrial base plagued with environmental problems, Liaoning Province in the northeast was one of the first provinces to set up environmental courts and tribunals in China and it once had more such tribunals than any other province. Its first environmental tribunal was established in 1996.
Yet over the years, these courts did little more than assist environmental protection authorities to enforce their administrative decisions, and by May 2011, most environmental tribunals in the province had been shut down except for two in Shenyang, the province’s capital, reported Xinhua News Agency.
Some environmental tribunals did slightly better. Since its establishment in 2008, the environmental tribunal of Wuxi City Intermediary People’s Court in eastern Jiangsu Province has handled two nonlitigious administrative enforcement cases and heard two civil lawsuits, including a class action suit filed by the All-China Environment Federation, a non-profit social organization supervised by the Ministry of Environmental Protection.
Recently, the environmental tribunal of the Intermediary People’s Court of Qujing in southwestern Yunnan Province has caught media attention as the first Chinese court to accept an environment-related class action suit filed by environmental NGOs without government backing.
The case was filed in September 2011 by two environmental NGOs, Friends of Nature based in Beijing and Green Volunteer Union based in southwest China’s Chongqing, against two companies that stockpiled huge amounts of toxic chromium slag close to drinking water sources and fields, causing livestock deaths and endangering local residents’ health. The case was accepted by the court in October 2011.
On May 23-25, plaintiffs and defendants exchanged evidence and expressed opinions. But when the case will be heard is still unknown.
Difficult proceedings
China’s economic development has taken a heavy toll on the environment.
Every year, the country sees more than 100,000 environmental disputes, yet less than 1 percent has been brought to court, according to incomplete statistics of the All-China Environment Federation.
Few individuals brought environmental disputes to court because it is difficult to prove the causal relation between environment pollution and one’s health, said Yang Sujuan, Deputy Director of the Environmental and Resource Law Research Center at China University of Political Science and Law.
“Without adequate evidence, a case cannot be heard by court,” she said. Of the environmental lawsuits handled by the Center for Legal Assistance to Pollution Victims in Yang’s university, more than 30 percent have been rejected by courts.
Yang said, “In some circumstances, pollution has not caused direct damage to individuals’ health or property, yet it has already damaged the environment. In such cases, individuals have little incentive to sue given the difficulty to collect evidence and the high costs of litigation.”
According to China’s current Civil Procedure Law, only those directly affected by environmental damage can sue for compensation.
Before the chromium pollution case in Qujing, no class action litigation filed by NGOs had been accepted by courts, according to Chang Cheng, Deputy Director of Friends of Nature.
The Civil Procedure Law is being amended. The draft, first deliberated by the Standing Committee of the National People’s Congress(NPC), the country’s top legislature, on October 24, 2011, added an article saying that relevant government departments and social organizations can sue against damage to public interest such as environmental pollution and infringements on consumers’ legitimate rights and interests.
On April 24, the draft, having been revised further, was sent to the NPC Standing Committee for second deliberation. In this draft, the phrase “relevant government departments and social organizations” was changed to “legally stipulated government departments and social organizations”.
Some legal experts and environmental activists thought that such a clause in the civil procedure law will open the door for NGOs to file class action suits, while some are not so optimistic.
“Actually, people can look beyond the Civil Procedure Law to understand the legal standing to file environmental lawsuits,”said Wang Canfa, Executive Director of the Environment and Resources Law Society and Director of the Center for Legal Assistance to Pollution Victims of China University of Political Science and Law.
Wang said that according to Article 6 of the Environmental Protection Law, any organization or individual has the right to expose and accuse those damaging the environment. “If ‘accuse’is interpreted as ‘sue,’ then any organization or individual would have the legal standing to file environmental cases,” he said.
Costly litigations
“Environmental litigations can be very expensive. If an organization or individual claims for hundreds of millions of yuan in compensation, then the damage assessment cost will be at least a few million yuan, said Ma Yong, Director of the Department of Supervision and Litigation under the Environmental Legal Service Center of the All-China Environment Federation.
Many NGOs cannot afford to file such lawsuits due to limited financial capacities.
“To pursue the chromium pollution case in Qujing, we must have a clear idea of the size of the polluted area and the seriousness of the pollution, as well as the cost of ecological restoration,” said Yang Yang, an attorney representing Friends of Nature.
Friends of Nature and Green Volunteer Union both have had a difficult time in finding a qualified and affordable agency to assess the damage and restoration cost.
Xia Jun, an attorney representing Green Volunteer Union, said that evaluating damage to the environment is a very challenging task, and the field is almost monopolized by research institutes affiliated with environmental protection authorities, but these research institutes are usually reluctant to get involved.
When they found a qualified appraisal agency in southeastern Fujian Province, the agency asked for 7 million yuan ($1.1 million) in fees, which the two agencies found unbearably high.
In Kunming, capital of Yunnan Province, a fund has been established to finance environment-related class action suits, with the money mainly coming from the government’s fiscal allocations, public donations and income from administrative penalties. The fund pays for evidence collection, environmental appraisal, and other costs related to class action lawsuits, as well as environmental restoration and enforcement relief.
Tian Youcheng, Vice President of the Yunnan Higher People’s Court, said that in environment-related class action suits, the court should allow plaintiffs to defer payment of litigation costs.
“If the plaintiff wins such a case, the defendant should cover all litigation cost, whereas if the plaintiff loses, a special fund can finance a reasonable amount of litigation cost,” he said.
Not redundant
“Environmental courts and tribunals are still desirable although currently most pollution victims prefer to have disputes settled through administrative rather than legal means because administrative settlements save time and effort,” Wang said.
According to him, environment-related cases are more likely to be accepted and adjudicated more professionally in environmental courts and tribunals than in regular ones.
Currently in China, some local governments are reportedly reluctant to punish major polluters for they are also major sources of tax revenue.
Considering this, legal experts believe that environmental courts and tribunals can better resist interference from local governments. The Chinese Constitution says that “the people’s courts shall, in accordance with the law, exercise judicial power independently and are not subject to interference by administrative organs, public organizations or individuals.”
Environmental courts and tribunals are also believed to boost public awareness of environmental laws and regulations.
“As the public becomes more conscious about the environment and their legitimate rights, they will file more and more environment-related cases, and environmental courts and tribunals will play a more and more important role in protecting the environment,” Wang said.
He suggested that for environmental courts and tribunals to serve their proposed purposes, it is important to have a class action system for environmental problems and use the power of individuals, environmental NGOs and other social groups to protect public interest.
The tribunal’s head said the agency was set up so that environmental cases can be adjudicated more professionally.
In recent years, more and more specialized environmental courts and tribunals have been set up in the country to deal with salient environment problems.
Nonetheless, on June 5, national broadcaster CCTV’s News 1+1 program revealed that most of the courts and tribunals lacked cases to judge.
Running under capacity
As an old industrial base plagued with environmental problems, Liaoning Province in the northeast was one of the first provinces to set up environmental courts and tribunals in China and it once had more such tribunals than any other province. Its first environmental tribunal was established in 1996.
Yet over the years, these courts did little more than assist environmental protection authorities to enforce their administrative decisions, and by May 2011, most environmental tribunals in the province had been shut down except for two in Shenyang, the province’s capital, reported Xinhua News Agency.
Some environmental tribunals did slightly better. Since its establishment in 2008, the environmental tribunal of Wuxi City Intermediary People’s Court in eastern Jiangsu Province has handled two nonlitigious administrative enforcement cases and heard two civil lawsuits, including a class action suit filed by the All-China Environment Federation, a non-profit social organization supervised by the Ministry of Environmental Protection.
Recently, the environmental tribunal of the Intermediary People’s Court of Qujing in southwestern Yunnan Province has caught media attention as the first Chinese court to accept an environment-related class action suit filed by environmental NGOs without government backing.
The case was filed in September 2011 by two environmental NGOs, Friends of Nature based in Beijing and Green Volunteer Union based in southwest China’s Chongqing, against two companies that stockpiled huge amounts of toxic chromium slag close to drinking water sources and fields, causing livestock deaths and endangering local residents’ health. The case was accepted by the court in October 2011.
On May 23-25, plaintiffs and defendants exchanged evidence and expressed opinions. But when the case will be heard is still unknown.
Difficult proceedings
China’s economic development has taken a heavy toll on the environment.
Every year, the country sees more than 100,000 environmental disputes, yet less than 1 percent has been brought to court, according to incomplete statistics of the All-China Environment Federation.
Few individuals brought environmental disputes to court because it is difficult to prove the causal relation between environment pollution and one’s health, said Yang Sujuan, Deputy Director of the Environmental and Resource Law Research Center at China University of Political Science and Law.
“Without adequate evidence, a case cannot be heard by court,” she said. Of the environmental lawsuits handled by the Center for Legal Assistance to Pollution Victims in Yang’s university, more than 30 percent have been rejected by courts.
Yang said, “In some circumstances, pollution has not caused direct damage to individuals’ health or property, yet it has already damaged the environment. In such cases, individuals have little incentive to sue given the difficulty to collect evidence and the high costs of litigation.”
According to China’s current Civil Procedure Law, only those directly affected by environmental damage can sue for compensation.
Before the chromium pollution case in Qujing, no class action litigation filed by NGOs had been accepted by courts, according to Chang Cheng, Deputy Director of Friends of Nature.
The Civil Procedure Law is being amended. The draft, first deliberated by the Standing Committee of the National People’s Congress(NPC), the country’s top legislature, on October 24, 2011, added an article saying that relevant government departments and social organizations can sue against damage to public interest such as environmental pollution and infringements on consumers’ legitimate rights and interests.
On April 24, the draft, having been revised further, was sent to the NPC Standing Committee for second deliberation. In this draft, the phrase “relevant government departments and social organizations” was changed to “legally stipulated government departments and social organizations”.
Some legal experts and environmental activists thought that such a clause in the civil procedure law will open the door for NGOs to file class action suits, while some are not so optimistic.
“Actually, people can look beyond the Civil Procedure Law to understand the legal standing to file environmental lawsuits,”said Wang Canfa, Executive Director of the Environment and Resources Law Society and Director of the Center for Legal Assistance to Pollution Victims of China University of Political Science and Law.
Wang said that according to Article 6 of the Environmental Protection Law, any organization or individual has the right to expose and accuse those damaging the environment. “If ‘accuse’is interpreted as ‘sue,’ then any organization or individual would have the legal standing to file environmental cases,” he said.
Costly litigations
“Environmental litigations can be very expensive. If an organization or individual claims for hundreds of millions of yuan in compensation, then the damage assessment cost will be at least a few million yuan, said Ma Yong, Director of the Department of Supervision and Litigation under the Environmental Legal Service Center of the All-China Environment Federation.
Many NGOs cannot afford to file such lawsuits due to limited financial capacities.
“To pursue the chromium pollution case in Qujing, we must have a clear idea of the size of the polluted area and the seriousness of the pollution, as well as the cost of ecological restoration,” said Yang Yang, an attorney representing Friends of Nature.
Friends of Nature and Green Volunteer Union both have had a difficult time in finding a qualified and affordable agency to assess the damage and restoration cost.
Xia Jun, an attorney representing Green Volunteer Union, said that evaluating damage to the environment is a very challenging task, and the field is almost monopolized by research institutes affiliated with environmental protection authorities, but these research institutes are usually reluctant to get involved.
When they found a qualified appraisal agency in southeastern Fujian Province, the agency asked for 7 million yuan ($1.1 million) in fees, which the two agencies found unbearably high.
In Kunming, capital of Yunnan Province, a fund has been established to finance environment-related class action suits, with the money mainly coming from the government’s fiscal allocations, public donations and income from administrative penalties. The fund pays for evidence collection, environmental appraisal, and other costs related to class action lawsuits, as well as environmental restoration and enforcement relief.
Tian Youcheng, Vice President of the Yunnan Higher People’s Court, said that in environment-related class action suits, the court should allow plaintiffs to defer payment of litigation costs.
“If the plaintiff wins such a case, the defendant should cover all litigation cost, whereas if the plaintiff loses, a special fund can finance a reasonable amount of litigation cost,” he said.
Not redundant
“Environmental courts and tribunals are still desirable although currently most pollution victims prefer to have disputes settled through administrative rather than legal means because administrative settlements save time and effort,” Wang said.
According to him, environment-related cases are more likely to be accepted and adjudicated more professionally in environmental courts and tribunals than in regular ones.
Currently in China, some local governments are reportedly reluctant to punish major polluters for they are also major sources of tax revenue.
Considering this, legal experts believe that environmental courts and tribunals can better resist interference from local governments. The Chinese Constitution says that “the people’s courts shall, in accordance with the law, exercise judicial power independently and are not subject to interference by administrative organs, public organizations or individuals.”
Environmental courts and tribunals are also believed to boost public awareness of environmental laws and regulations.
“As the public becomes more conscious about the environment and their legitimate rights, they will file more and more environment-related cases, and environmental courts and tribunals will play a more and more important role in protecting the environment,” Wang said.
He suggested that for environmental courts and tribunals to serve their proposed purposes, it is important to have a class action system for environmental problems and use the power of individuals, environmental NGOs and other social groups to protect public interest.