The Real Significance of China’s First Environmental Group-Led Lawsuit Against the Government
Posted August 10, 2009
Last week, Henry Sanderson of Associated Press wrote a nice (and accurate) article about the first environmental lawsuit by an environmental group against the government to be accepted in China. But somewhere along the way a copy editor (or whoever is responsible for these sorts of things) appended a dramatic headline that also turns out to be just plain wrong. Google "environmental lawsuit against government China" and you'll find that dozens of media outlets picked up the AP story with the headline:
"China Accepts First Environmental Lawsuit Against the Government" (or similar)
This, to be clear, is not accurate. Chinese courts have accepted many environmental lawsuits against the government in the past. These cases are typically against the environmental protection bureaus (EPBs) for failure to enforce against an alleged violation of China's environmental laws. In practice, these kinds of cases have had an impact in many situations mainly because they have alerted higher level authorities to particularly egregious enforcement failures by lower level governments. This should be familiar to those who understand how the Chinese courts work.
Giving Environmental Groups Access to the Courts
The significance of this case (and an earlier case by ACEF against a private entity in the Wuxi environmental court) is a breakthrough in who can have access to the courts to sue to protect the environment. The case discussed in the AP article - brought by the All-China Environment Federation (ACEF) - was indeed the first lawsuit filed by an environmental group against the government to be accepted by a Chinese court.1 .
This is a remarkable development, and it does make this truly a landmark case. [The New York Times' headline correction - to the rather drab "China Accepts Environment Lawsuit Against Govt" - actually underplays the importance of the case.]
Chinese thought leaders - including Liang Congjie of Friends of Nature and leading environmental law scholars like Lü Zhongmei - have pushed for NGO-led environmental public interest lawsuits for years. The day the case was accepted (July 28th), we were holding a workshop to announce the publication of a book on environmental public interest litigation in which we and a number of Chinese scholars propose giving NGOs standing to sue to protect the environment. I was sitting next to a senior official from ACEF when he received news of the acceptance of the case. A judge from the Guiyang Environmental Court, who was attending our workshop, publicly announced the acceptance of the case for the first time to our workshop. One seldom gets such immediate gratification for technical assistance efforts.
Why should we care about this?
I am quoted in the AP article saying the following:
If this leads to more NGOs (non-governmental organizations) bringing public interest litigation I think this is a very important breakthrough. It means China is going to open the door to more public involvement in environmental enforcement...
Let me expand on this a bit. We all know that China's environmental laws suffer from a serious implementation gap. As we have found in the U.S., NGO-led lawsuits in China can add an important supplement to government environmental enforcement and can push governments to carry out legally required duties where they have not done so. In many situations, locals may feel too intimidated or lack the capacity to bring their own lawsuits. NGOs can accumulate the skills and resources necessary to bring often complex environmental lawsuits, and, coming from another jurisdiction, they may be less subject or susceptible to the pressures that local plaintiffs can face. I won't bore you with the details here; you can read more about this in an article written by my colleague Michael Wall and me for World Environmentmagazine.
But is this breakthrough durable?
Many people have been asking whether this case is really as much a landmark as it is said to be. It's a fair question, and there are a number of factors that could make this breakthrough less durable than it might seem at first.
- To GONGO or Not To GONGO
The first issue is that the plaintiff in this Guiyang case is the ACEF, a so-called government-organized non-governmental organization (GONGO) [Caijing's formulation "quasi-official organization" is less of an oxymoron]. It is officially under the Ministry of Environmental Protection and so has ties and backing from the government that no other environmental NGO will have. So the true test will be whether the courts accept NGO cases from a "true" environmental NGO. Ma Yong of ACEF notes in Caijing that: "ACEF is overseen by the Ministry of Environmental Protection. Other social organizations who want to make this sort of breakthrough may meet with more difficulties."
Cases by non-government affiliated NGOs need to be accepted as well if this breakthrough is to have any real meaning.
- Environmental Courts are the Question
The recent establishment of environmental courts in Wuxi, Guiyang and Yunnan has created an important opportunity for public interest litigation. The two ACEF environmental public interest litigation cases were brought in the Wuxi and Guiyang environmental courts. Look to see cases led by environmental groups in the Yunnan environmental courts in the future, as Yunnan has announced its willingness to accept cases from NGOs anywhere within China. These courts looked at first to be paper tigers, set up in the wake of environmental accidents (e.g., the Tai Lake algal bloom near Wuxi; the Yangzonghai arsenic spill in Yunnan) to create the impression of concrete action being taken.
These courts are shaping up to be much more interesting than we expected. Judges from the Guiyang and Yunnan environmental courts attended our workshop to discuss the rules they are developing for their courts, and we found these judges to be serious people who are carefully considering ambitious innovations in their respective courts.
The trouble now is that the rules within these environmental courts (and the Maritime Courts and various courts that have accepted procuratorate-led environmental public interest litigation) are all over the map, and there is no official high-level legal support from NPC legislation or Supreme People's Court (SPC) judicial interpretations to guide the way. This experimentation is a good thing and a typical way that the Chinese system works to identify new ideas. But until firmer legal foundation is laid, the risk is that the window could close on these innovations at any time (as it did with a previous environmental court experiment in the 90s). SPC Vice-Director Wan Exiang's remarks have opened the door to this experimentation at the local level, but more solid grounding in the near future is a must.
We are already seeing that these environmental court experiments are beginning to have a positive impact on environmental protection. Once the kinks have been worked out of the system, there is no reason not to formally make these innovations part of the broader judicial system. This will send a clear signal to NGOs that they have an important role to play in environmental enforcement in China, and China's environmental protection will be the better for it.
Caijing (the most comprehensive coverage of the case - Chinese only): 全国首例环境公益行政诉讼获立案 (Nation's First Environmental Public Interest Administrative Lawsuit is Accepted)
China Environmental Law blog: ACEF v. Jiangyin Port Container: First Case with Enviro Group as Plaintiff?;Who's on First?
1 Chinese law requires plaintiffs to have a direct interest in the dispute (直接利害关系) or in administrative suits a concrete administrative action must have violated plaintiff's legal rights (原告必须是被具体行政行为侵犯其合法权益的公民或者组织).
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