China Environmental Law

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Who’s on First?

August 4th, 2009 · No Comments

There have been two “firsts” recently reported in the  China environmental litigation arena.  It is easy to get the two cases confused because the plaintiff in both is the All-China Environmental Federation (ACEF).

The ACEF is listed on the Ministry of Environmental Protection’s website as an “affiliated social organization” It was established on April 22, 2005 and is described as

a non-profit nationwide social organization that consists of personages, enterprises and public institutions devoted to environmental protection cause on a voluntary basis. The Federation aims to implement the strategy of sustainable development, achieve the goal of environment and development as set out by the State, and to safeguard the environmental interests of the public and the society. The major tasks are to keep contacts with influential and high-profile senior personages, unite a variety of social groups, and play the role of solidarity and coherence; put forward proposals on government environmental decision-making; provide services on environmental laws for the public and the society; enable the public and the society to get access to environmental information, and conduct activities for environmental publicity and education; promote the sound development of China’s environmental NGOs and help them build and obtain their due position in international communities; and undertake other work as entrusted by the government and relevant organizations.

It is, therefore, a “government-operated non-governmental organization” or GONGO.

To help eliminate some of the confusion here’s a primer on each case.

1. ACEF v. Jiangyin Port Container

Plaintiff: ACEF

Defendant: Jiangyin Port Container Co. Ltd

Court: Wuxi (Jiangsu Province) Intermediate People’s Court (Trial Division of Environmental Protection, established May 8, 2008) (accepted for filing July 6).

Claim: ACEF has accused the Jiangyin Port Container Co. Ltd., of having “violated the laws related to environmental impact assessment, and the prevention and control of air, water and noise pollution.”  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”).

We previously reported on this case here.

Reports on this case may be found here, here , here (Chinese), and here (Chinese, h/t Alainna Wrigley).

2. ACEF v. Guizhou Province Land and Resources Administration

Plaintiff: ACEF

Defendant: Guizhou Province Land and Resources Administration

Court: Guiyang Intermediate People’s (Guizhou Province) (Trial Division of Environmental Protection, established November 20, 2007) (accepted for filing July 28)

Claim: The local branch of the Land and Resources Administration granted land use rights to a beverage company in 1994.  The company began construction of a facility but never completed it.  Construction materials remain on the site.  The suit contends that construction on the land would constitute a threat to two adjacent scenic lakes that serve as sources of drinking water for local residents.  The suit seeks to have the defendant recover the land use rights to the property.

Memorable Quote:

“We are established to safeguard public interest and hope to encourage other courts to step forward to handle similar cases,” Liu [Haiying, deputy head of the Environmental Protection divison of the court] said.

“No matter what the conclusion is, we hope it will serve as a warning to government departments such as environment, forestry and other agencies, that they should always fulfill their duty to protect the environment,” the judge said.

“They need to gradually realize that they are not only under the supervision of the Party and other administrative departments, but also under the watch of all citizens,” she said.

Reports on this case may be found here, here, and here (Chinese, h/t Alainna Wrigley).

***

In addition to a common plaintiff, both cases are pending before newly created special environmental divisions within China’s judicial system. 1 These courts have developed special standing rules as has been very thoroughly detailed in a very helpful post by Greenlaw.

Thus, according to Yong Ma, head of the Law Center of the ACEF, the Wuxi case

was not the first time that the Federation tried to resort to the court to stop pollution behaviors, but they had not been able to get it through because no court was ready to accept such cases.  The current trend that governments at different levels begin to set up environmental courts helped move the situation forward. Along with such courts being set up, the litigation procedure came to be defined, and environmental social organizations have been identified as an able entity for filing the case.

Hu Jing, an associate professor at the Chinese University of Politics and Law notes that

the two cases are significant in that social organizations are expected to play a supervisory role by bringing government departments and enterprises to court for their harmful actions.

“The two cases indicate that local judicial departments are starting to accept social organizations as plaintiffs in environmental public interest litigations,” Hu told Caijing Magazine.

We will continue to follow these cases, and keep you up to date.

  1. I’m aware of one other such court in the Kunming City Intermediate People’s Court (established December 11, 2008), but there may be others.

Tags: MEP · environmental enforcement · environmental policy · miscellany · water pollution

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