海角大神

China climate: Environmentalists wield new legal tool against despoilers

'Citizen suits' similar to class action suits offer a new way to hold companies accountable for environmental damage in China, the world's biggest emitter of greenhouse gases. 

As Beijing choked on 鈥渞ed alert鈥� air pollution this week, Chinese delegates pledged to curb emissions at global climate change talks in Paris. A final accord was reached on Saturday among nearly 200 nations seeking to avert future environmental disaster.聽

Away from the limelight in Paris, a provincial high court in China this week heard an appeal in a landmark environmental lawsuit, one that activists say could signal a new, more hopeful era for the country鈥檚 poisoned air, soil and water.

The lawsuit is the first to be brought under new rules allowing 鈥渃itizen suits鈥� in environmental cases. Chinese courts are now getting a taste of the sort of public interest litigation that has long fueled social reform in the United States. But how far will the Chinese authorities let things go?

The rules usher in 鈥渁 new day and age for environmental law enforcement,鈥� says Karl Bourdeau, a China specialist with Beveridge and Diamond, a prominent Washington-based environmental law firm. 鈥淏ut how far, how fast and how effectively鈥� they will be used 鈥渞emains highly uncertain.鈥�

The highest court in eastern Fujian Province this week heard an appeal by owners of an illegal mine against a lower court ruling last October that ordered them to pay for the damage they had done to a forest.

That judgment, in favor of the nongovernmental organization Friends of Nature, marked the first victory for a civil society group using a year-old law designed to make it easier for such groups to go to court.聽Supreme Court guidelines clarifying the law were 鈥渁 powerful sword,鈥� Justice Zheng Xuelin said at their release, 鈥渢o cut through the dirty stream and clean the grey smoggy air.鈥�

Environmental activists hailed the verdict. 鈥淚 hope this will be a model for the future, and I think there is a good chance that we will win more cases,鈥� says Ge Feng, head of public interest litigation at Friends of Nature, China鈥檚 oldest independent environmental NGO.

Picking a test case

But the case was not typical, acknowledges Lin Yanmei, a professor at Vermont Law School who worked closely with Ms. Ge in choosing which case to prosecute. 鈥淲e picked it because we wanted to showcase that public interest litigation works, so we must win,鈥� says Professor Lin.

The facts of the case had been established by a criminal trial last year at which the four defendants had been found guilty of illegal mining on a forested mountaintop, and the environmental court was 鈥渧ery supportive鈥� says Ms. Ge.

鈥淭hat court worked overtime to create a success with symbolic meaning,鈥� opening specially on a public holiday, January 1st聽this year, to accept the case, says Ma Yong, head of legal affairs at the government-linked Biodiversity Conservation and Green Development Foundation, another environmental lobbying group that has filed suits under the new law.

Most importantly, perhaps, Friends of Nature 鈥� the oldest independent environmental NGO in China聽鈥� had the experience, the legal staff, and the funds to bring the case: an unusual combination.聽

The Fujian case shows that 鈥渨hen you have stable, experienced NGOs with the resources to bring these lawsuits, they can win,鈥� says Barbara Finamore, Asia director for the Natural Resources Defense Council in New York.

The problem, she adds, is that 鈥渢here are not enough of them鈥� in China yet.

Around 700 NGOs are legally qualified to bring environmental lawsuits now, according to the Ministry of Civil Affairs. But only a handful has done so, filing some 40 cases between them, because so few grassroots groups have the necessary legal staff or the funds, experts say.

鈥淚t鈥檚 challenging for technical, legal, financial, and political reasons鈥� to bring an environmental lawsuit in China, says Alex Wang, who teaches law at the University of California, Los Angeles. 鈥淚t takes someone pretty skilled and daring.鈥�

Daring, because it is never clear in China just where the shifting 鈥渞ed lines鈥� defining politically acceptable behavior are drawn.

China鈥檚 top leaders, aware of just how upset their citizens are about pollution, do seem genuinely anxious to clear up at least its most visible manifestations. After years of ignoring or denying the scale of the problem, Beijing is taking steps to clean the capital鈥檚 air and promote more environmentally responsible economic development.

And the authorities know that they cannot fight this battle alone.

鈥淭he government understands that it can鈥檛 do what it wants without NGOs,鈥� says Karla Simon, author of 鈥淐ivil Society in China.鈥� 鈥淭he government does not spend the time and money they need to find out what鈥檚 going on and they need NGOs to help.鈥�

Local courts, local interests

Local governments, on the other hand, are rarely keen to see local firms 鈥� valued as employers and taxpayers 鈥� hauled before a judge, and generally do what they can to protect them from scrutiny. Earlier this month, for example, police in Ningde, a city in Fujian, detained two young volunteer activists investigating a pollution case and accused them of prostitution because they were sharing a hotel room.

And in many parts of China, local authorities control the local courts. 鈥淭he courts are not independent, and that is a constraint on the potential鈥� of public interest litigation, worries Professor Wang. 鈥淚f the courts are too influenced by local governments, the instrument won鈥檛 play out as it should.鈥�

In some of the 22 cases he has filed this year, says Ma Yong, 鈥渢he local authorities were on the phone trying to pull strings and block our suits even before I鈥檇 got back to Beijing.鈥�

鈥淚t鈥檚 only when the local government, the local environmental protection agency, and the court wants to do something that you鈥檒l get a happy ending,鈥� Mr. Ma warns. 鈥淎nd there are very few cases like that.鈥�

Transparency and truth

Ms. Ge, who runs Friends of Nature鈥檚 nascent litigation campaign, acknowledges the problem, but is more hopeful. 鈥淚f a local government does not support a case it will be a very difficult obstacle, but I wouldn鈥檛 say that makes it impossible to win,鈥� she says.

With corruption rife, local governments will inevitably find ways to block public interest lawsuits, predicts Professor Lin, but she does not think they will be able to get away with it forever. 鈥淓veryone will see them doing it, and they will lose the hearts of the people,鈥� she believes.

The 鈥渟word鈥� of public interest litigation 鈥渃an cut through the haze鈥� that surrounds much of China鈥檚 opaque judicial system. 鈥淚t can bring light to darkness,鈥� she says, in a system where prosecutors, police, and judges are often in cahoots. When the standards are clear and independent groups are bringing suits, 鈥渢ransparency can bring up truth, and truth can lead to good solutions.鈥�

Other observers are more restrained. 鈥淎ll this is brand new,鈥� points out Mr. Bourdeau. 鈥淲e鈥檝e had one case. What other courts will be prepared to do is an open question. How powerful a force will public interest litigation be in China in remedying environmental damage? The jury is still out.鈥�