China Environmental Law

The impact of this blog on environmental policy in China is truly astounding. The ink was barely dry on “. . . and throw away the key” when word reached us that three men were sent to prison in Foshan, Guangdong Province for the illegal disposal of hazardous wastes. The People’s court of the Nanhai district imposed the sentences on March 20 in what was billed as an “historic” ruling.

The court issued a verdict imposing prison terms of one to three years and fines on the defendants convicted of illegally dumping toxic waste from Zhongshan into Danzao Town in Guangdong Province. This is the first major environmental pollution incident in Foshan that has required a judicial settlement. In the past, pollution incidents were dealt with by environmental protection authorities through administrative procedures.

Here are the details of the crime:

Early on the morning of April 18, 2007, students and faculty members at Xinnong Primary School in Danzao began to experience adverse effects from an offensive smell in the air. Two students experienced chest pain and began vomiting after inhaling the noxious air. The school closed the day following the incident.

Officials who were sent to the site to investigate found that someone had discharged a dark liquid waste from a nearby village.

Records show that three men surnamed Su, Jiang, and Guo had illegally dumped an oil dreg containing hydroxybenzene inside Danzao six times from January to April 2007. The waste has caused grave pollution in Danzao which has resulted in direct economic losses of about 1.1 million yuan [approx. $155,000].

Su, lacking a permit to dispose toxic waste, reached an oral agreement with Ti[an] Yi Company in Dongfeng Town to dispose of the company’s waste by November 2006. He later employed Jiang and Guo as his drivers, and they later joined him in dumping the waste.

If the facts are as stated, then the three defendants deserved their fate; indeed, the sentences seem to be on the light side.  Given the stated losses, this would be a case with “especially serious” consequences requiring imposition of sentences of “not less than three years” (Article 338 of China’s Criminal Code).

One is left to speculate as to why Tian Yi officials were not also criminally charged.  The three defendants lacked a permit to dispose of toxic wastes and the contract between them and Tian Yi was an oral one.  If I were a prosecutor I think I could have made a fairly convincing case for liability on the part of Tian Yi.

The defendants were also fined and another article notes that “the court has  suggested the victims sue the three defendants and the company they represented for compensation.” Establishing civil liability on the part of Tian Yi should be a slam dunk. Article 86 of the Solid Waste Law (see sidebar to right) places a heavy proof burden upon civil defendants:

The defendant of a lawsuit for damage compensation due to environmental pollution caused by solid waste shall bear the burden of proof on identification as prescribed by law and no cause between the defendant’s acts and the consequence of damage.

Although SEPA’s translation is a little rough, what this provision provides is that Tian Yi, as defendant, if it wishes to escape liability has the initial burden of proving that the wastes in question were not its wastes and that those wastes did not cause the damage claimed by the plaintiff.