China Environmental Law

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ACEF v. Jiangyin Port Container: First Case with Enviro Group as Plaintiff?

July 10th, 2009 · No Comments

The China Business News reported on Wednesday about a case which it billed as the “first full operation in China of a public lawsuit with an environmental organization [the All-China Environmental Federation (ACEF)] as the main plaintiff.”  The case is pending before the Jiangsu Provincial Intermediate People’s Court.

ACEF is

a non-profit civil society organization (CSO) in the field of the environment, and is supported by the government. Its members include CSOs and individuals who are enthusiastic about environmental protection and willing to work for it. The aim of the federation is to serve as a bridge between the government and the public in implementing a sustainable development strategy, achieving national objectives in environmental development, and protecting the environmental rights of the public.

In other words it’s a classic Chinese environmental GONGO–which stands for that Orwellian construction “the government-operated non-governmental organization.”

ACEF has accused the Jiangyin Port Container Co. Ltd., of Wuxi City of having “violated the laws related to environmental impact assessment, and the prevention and control of air, water and noise pollution.”  It has apparently filed suit in its own name; it is unclear if local residents effected by the allegedly illegal acts of the defendant have also been named as plaintiffs in the action.

I don’t have anyway of confirming the claim that this is the first such case pursued in the name of an environmental group.  It may, however, be a little premature to designate this case as a successful filing. The case was reportedly only submitted to the Jiangsu court on July 6.  There is no word on whether the court has actually accepted the case for adjudication.

It is possible that there could be problems with the ACEF acting as a plaintiff in this suit.  The Water Pollution Control Law in its recent amendments added a provision that provides (Article 88) that “[i]n the event of a large number of interested parties harmed by water pollution, the interested parties may select a representative to participate in the joint action.”  It is unclear whether the “representative” needs to be a member of the effected group of plaintiffs or could be a third-party such as an environmental advocacy groups  It is clear, however, that such groups can “support” the interested parties harmed by water pollution in bringing an action before the people’s court, but this provisions seems to contemplate providing legal services and investigatory help.

None of the other environmental laws which ACEF claims were violated have similar provisions, and I am not aware of any provisions in the Civil Procedure Law or other Chinese laws which would grant standing to the ACEF in this type of case.

It does not appear that ACEF is seeking damages from the defendant.  Its claim seeks an injunction against “polluting activities” and prospective conformance with the law by the defendant (”ensure the surrounding air quality conformed to the state standard, to take effective measures in iron ore wastewater treatment, and to remove a hidden peril for the drinking water sources”).  Given these claims, the action seems similar to a “citizen suit” whereby a private entity seeks to enforce the public law.

Article 6 of the Environmental Protection Law provides that

All units and individuals shall have the obligation to protect the environment and shall have the right to report on or file charges against units or individuals that cause pollution or damage to the environment.

This provision has always seemed broad enough to me to support the filing of claims similar to citizen suits, at least where there has been actual damage to the environment (as opposed to a suit which simply seeks to penalize a company for operating without an approved Environmental Impact Assessment, for instance), but I have never heard of it being used in that manner, and would be surprised if a court found it alone a sufficient basis to sustain a citizen-type suit.

In any event, I wish the ACEF the best of luck and will be watching the progress of this case with great interest.

Tags: GONGO · citizen suit · class action

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