As a lawyer with a decade-long involvement in environmental rights, I still remember the sighs of my colleagues when I set out on this path: litigation is hard in China; environmental litigation doubly so.
More than a decade ago, in May 2001, Beijing Youth Daily published an article called “Why are pollution cases so hard to bring?" The report quoted Wang Canfa, an environmental law scholar and expert in environmental litigation. “At the moment, it is hard to resolve environmental disputes,” said Wang. “First, polluting firms often pay a lot of money in taxes, and so are protected by local governments. Second, it is difficult for victims to provide evidence. And, third, it is hard to bring a case to court.
"Environmental lawsuits are usually brought by members of the public against a company, presenting a dilemma for the courts. There is a limit to how many cases a judge can handle, and a tricky case can drag on and on. Naturally, they are reluctant to take those cases on.”
Has anything changed in the last 10 years? Given my own experiences and the cases I am familiar with, I have to conclude that it is still a difficult time for environmental tort cases in China.
This is true for every stage of the process: lodging a complaint, registering a case, assessing damages, winning the case and executing judgements. Each step is a battle, and no real solution has emerged. Perhaps most depressing is the refusal of courts to hear environmental or administrative lawsuits that are legally entitled to a hearing, often on the basis of flimsy reasoning, where a reason is given at all.
The value of environmental litigation lies not only in its ability to make amends for the victims’ losses, but also in its service to society more widely. Pollution sanctions and administrative fines are too low to deter breaches of environmental law, but compensation in civil suits – awarded according to harm incurred – is potentially unlimited. High compensation payouts in a number of lawsuits would cause other polluters to pay attention.
“Relying solely on the power of the environmental authorities to deal with large and powerful companies is inadequate,” said Wang Canfa. “Victims seeking redress through the law courts will reduce pressure on the environmental authorities, and that’s a form of public participation.” In other words, pollution victims protecting their private interests will help to achieve public environmental goals. Environmental litigation not only offers a solution to environmental problems, but also benefits the nation and its citizens.
Enforcement of existing environmental laws is poor, and there is huge room for improvement in both judicial independence and public oversight of the justice system.
A major problem is that most courts are prone to interference from local government, and impartial judgements in environmental disputes are hard to come by. Often, cases are not heard – or not heard fairly – because local government funds the court, as well as hiring and firing its staff.
Local governments’ love-affair with GDP growth, focus on short-term benefits and narrow view of what it means to maintain stability mean that environmental legislation lacks authority and administrative powers are misused. Against this background, it is hardly surprising that many environmental disputes fail even to make it to court.
To offer a brief illustration of this problem, in 2005 the Chengde Intermediate People’s Court accepted a joint case brought by more than 1,500 villagers against a steel company that had polluted local groundwater. It was subsequently criticised for doing so by the local Communist Party committee and local government. Then, in July 2010, fishermen from Dalian in north-east China tried to bring a case at Dalian Maritime Court over an oil leak. The judge said helplessly: “If we heard the fishermen’s case, we would lose our jobs.”
Low awareness of environmental legislation and failings in judicial ethics also combine to thwart the efforts of defenders of environmental rights. Some judges are unaware of the special nature of environmental cases, have no experience in handling these cases and lack the ethical standards necessary to work for the people and uphold the rule of law. As a result, it is common for cases that should be heard to be refused.
In 2010, for example, Beijing resident Yang Zi took the Beijing Environmental Protection Bureau to court in an attempt to obtain monitoring data on a medical-waste incinerator near his home. Haidian People’s Court found that as the plaintiff’s home was outside the area classed as being affected by the facility, he had no right to request the information and rejected the case.
Even more disappointing, environmental health cases – where compensation is sought for disease or deaths caused by pollution – are often refused, meaning grave damage goes ignored or is even covered up. In 2004, I represented the plaintiffs in a case against a mining company in Shaodong county, Hunan province. I tried for three years to get the case heard, ultimately in vain. The court was worried that the case would result in more claims being brought and so opted to ignore it.
Another reason for the refusal to hear certain environmental cases is the lack of adequate processes for assessing damages. China’s Tort Liability Law rules that the burden of proof in pollution cases lies with the polluter, who must prove that there is no causal relationship between the pollution and the harm suffered. But it is common practice for courts to rely on a report by a third-party specialist body to determine if there is a cause and effect relationship, and to set the value of the damage done. This means the judges themselves do not take the risk of making these decisions.
Tools are currently in place for evaluating pollution damage to fisheries, so when the fishing industry sues polluters it has access to credible technical back-up. But where other pollution cases are concerned, mechanisms for assessing harm are chaotic. It is often difficult to find an appropriate third-party assessor or assessment method and an authoritative assessment cannot be obtained. As a result, courts refuse to hear cases so as to avoid the risk of having to carry out that assessment themselves.
In certain respects, the judicial environment has been getting worse: some courts which previously welcomed environmental cases have started to refuse them. This prevents specialised courts from playing to their strengths, reduces the inclination of victims to try to bring cases, and undermines the proper handling of environmental disputes.
For example, maritime courts previously seemed happy to take on lawsuits where pollution at sea had been caused by land-based sources (even though the law is unclear as to which court has jurisdiction in such cases). Recently, however, some maritime courts have started to refuse these cases, instead referring plaintiffs to their local courts.
A range of worrying trends indicate China still has a long way to go to establish the rule of law in the environmental sector. Opening the road to judicial solutions to pollution is crucial for both environmental justice and the sustainable development of society. China must speed up judicial reform, strengthen the mechanisms that support green litigation and create an environment in which courts can issue fair verdicts in environmental disputes and the construction of an “ecological civilisation” can advance.
Xia Jun is a lawyer at Zhongzi Law Office.
Homepage image by Qiubo / Greenpeace