View from China: the Yunnan arsenic spill criminal trial

It is not often one gets the chance to see a criminal trial in China, particularly one with national attention. We had that chance last week. Here is a bit about what we saw.

A little background first: Last June, Yangzonghai Lake, a drinking water source for about 26,000 people about an hour southeast of Kunming, was found to be heavily contaminated with arsenic. After investigation, the local government determined that the source of the contamination was Chengjiang Jinye Industry and Trade Co. ("Jinye"), a manufacturer of fertilizer. The company was ordered closed on September 17th. In October 2008, twelve local government officials - the most senior being the vice mayor of Yuxi Municipality (within which Chengjiang County, home of the accused enterprise, is situated) - were "removed from their posts due to dereliction of duty." The government commenced clean-up efforts, lowering the arsenic levels in the lake from 0.128 mg per liter to 0.111 mg per liter. This is more than 10 times China's drinking water standards (0.01 mg/L; see GB5749-2006) and more than twice China's Class I - III surface water standards (0.05 mg/L; see GB3838-2002). Qin Guangrong, Yunnan's provincial governor, estimated that it would take three years and 4 billion yuan (US$600 million) to bring arsenic levels in the lake down to 0.05 mg per liter.

Just last week, three executives from Chengjiang Jinye Industry and Trade Co. were brought to trial on criminal charges in the Chengjiang County Basic Level Court.

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I happened to be in Yunnan last week with a colleague when we learned about the trial. On Thursday, other business finished, we drove down to see the trial. An hour or so later we arrived at the courthouse, with only a short delay when the road was blocked by this old blue truck, crumpled and spent, after losing the battle with its payload of large rocks.

Chengjiang County for the most part looked like any other Chinese city, except for (or because of) an inexplicably luxurious sports stadium. The court itself was on the outskirts of town and looked out upon open fields just planted for the new season.

The case had drawn a crowd. The courtroom's 30-some observer seats were already full, so the nearly 200 other observers packed into a side courtroom to watch the trial on a large screen TV. People sat on the floor on newspapers. Many had come with small plastic stools and snacks.

For a sense of the scene at the courthouse, see this Xinhua video report.

A word on the law behind this case: The three company executives are being tried for what is known as a major environmental pollution accident crime. This is set forth in the Criminal Law of the People's Republic of China, under Part II, Chapter 6 ("Crimes of Disrupting the Order of Social Administration"), Section 6 ("Crimes of Undermining Protection of Environmental Resources"), Article 338:

Article 338. Whoever releases, dumps, or disposes of radioactive wastes, wastes containing pathogen of contagious diseases, and toxic materials or other dangerous wastes into land, water, and the atmosphere in violation of state stipulations, causing major environment pollution accidents, heavy losses to public and private property, or grave consequences of personal deaths and injuries shall be sentenced to not more than three years of fixed-term imprisonment or criminal detention, and may in addition or exclusively be sentenced to a fine; and in exceptionally serious consequences, not less than three years and not more than seven years of fixed-term imprisonment, and a fine.

It is a good thing that there will likely be consequences for the serious pollution caused by Jinye in this case. However, the focus primarily on heavy punishment for major accidents/incidents after-the-fact reflects a problematic, but typical, approach to environmental management. Meanwhile, the basic tools and resources for environmental enforcement and management that could prevent accidents in the first place are woefully weak. Here are just a few examples:

• Illegal Emissions. Penalties for exceeding emissions standards are well below the cost of compliance. This is such a well-known phenomenon in China that there is a catch phrase for it: weifachengben di, shoufachengben gao ("the cost of violations is low, the cost of compliance is high"). Charles McElwee has some nice commentary on how this played out in this Yangzonghai case.
• Falsifying Data. Accurate data about how much enterprises pollute is fundamental to a well-functioning environmental management system. Yet, the environmental laws have virtually invited lying to the government about environmental data by setting fines for such falsification at woefully insignificant levels. The penalty under China's water pollution law for falsifying data is capped at RMB100000 with no criminal penalties. Match these weak penalties for cheating with heavy criminal penalties at the back-end and the incentive to cover-up pollution and lie about environmental data becomes even stronger.
• EPB Resources and Authority. Even if more forceful penalty powers were granted by the law, the enforcement authorities would still face insufficient resources, and unclear authorities. We spoke with one local enforcement official in an understaffed county department who was required to inspect every factory in their jurisdiction once a quarter, but did not have regular access to a car to get to the factories. Even when EPBs issue fines it is often difficult to get payment. More serious enforcement actions such as shut-downs that could drive a response from enterprises must be referred to the government/mayor's office, rather than to an independent body such as a court. Other bureaus also have the ability to catch problems, but lack the authority to enforce any change in the companies causing the problem. For example, the health bureau has authority to monitor drinking water sources and monitored Yangzonghai. But if a problem is discovered only has the power to refer the issue to the local health bureau and government, which apparently happened in this case.

The accident focused system in place now is one that only responds forcefully once it is literally impossible to wait any longer. Only then do heavy penalties become available. But this approach to killing the chickens to scare the monkey is too weak and the consequences are too distant to really change enterprise behavior. The natural result has been a continuing cascade of environmental accidents around the country, like the recent Yancheng City accident. Not surprisingly, this sort of behavior is rampant throughout the country. We work with many in the environmental protection bureaus and are continually amazed at their diligence and creativity in the face of insufficient resources and power, but to really improve environmental protection the environmental authorities will need to be strengthened much, much more.

The other problem with relying on after-the-fact prosecutions is that they are not easy to bring. The afternoon we watched the Yangzonghai case, we watched the very capable lawyers for the company (8 of them, including a well-known criminal defense lawyer named Ma Jun) pick at the central piece of evidence in the prosecution's case: an appraisal report from local academics assessing whether arsenic discharges from Jinye caused the Yangzonghai Lake pollution. The defense lawyers were skilled and managed to agitate the scientists/engineers who had drafted the appraisal report. The crowd in our viewing room must have included many of the 387 workers who had now lost their jobs as a result of Jinye's shutdown, as they hooted and hollered in appreciation each time the defense lawyers scored a point or drew an awkward response from the scientists. But in the end it was not clear that the defense lawyers had really done any damage to the case.

We will very likely see a conviction in this case. But the Yunnan government will still be on the hook for US$600 million in clean-up costs, and the locals around Yangzonghai Lake and former workers at Jinye are still facing serious health risks from the dangerous levels of arsenic in the water. For those who still think it is a good idea to allow companies to pollute because it is too risky for the economy to make them clean up, this case is a good example of just how wrong that line of thought is. And it illustrates just how important it is to begin giving environmental authorities the authority, resources and independence they need to truly prevent the further destruction of China's environment.

Links:

English
Greenlaw news on the Yangzonghai accident (October 10, 2008)
Bids invited to counter water pollution (October 15, 2008) [N.B.: To our knowledge, no bid has yet been accepted.]
Officials claim ignorance of arsenic pollution in Yangzonghai Lake (September 22, 2008)
Yangzonghai Lake suffering from heavy arsenic pollution (September 18, 2008)

Chinese
Yunnan Net: Special Section on the Yangzonghai Lake Arsenic Pollution Accident 《阳宗海砷污染事件》专题
Xinhua Investigation: "Yangzonghai Lake Arsenic Pollution Accident" Follow-Up Investigation 新华调查："阳宗海砷污染事件"追踪调查 (October 27, 2008).

Visit Greenlaw!  See NRDC's bilingual blog dedicated to discussion of China's environmental law, policy and the power of the people at http://www.greenlaw.org.cn (Chinese) and http://www.greenlaw.org.cn/enblog (English). 

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