China’s key environmental law has ‘a blind spot’, according to a number of NGOs and legal figures who continue to campaign for it to be amended.
They argue that the third draft of the 1989 Environmental Protection Law, submitted in late October, prevents public interest litigation from being brought by anyone except the All-China Environmental Federation (ACEF), some of whose corporate members have dubious environmental records themselves.
Although the third draft of the Law does not specify that only ACEF can being public interest lawsuits, the wording of the draft leads to the same conclusion, according to Zhang Boju, secretary-general of Friends of Nature (FoN). The part on public interest litigation specifies that only "national organisations, registered with the Ministry of Civil Affairs, of good repute, and engaged in protecting the environment for five years or more have the right to bring litigation in cases of pollution, environmental damage and harm to the public interest".
"But who meets those conditions," asks Zhang Boju, "apart from bodies like ACEF which are overseen by the Ministry of Environmental Protection?”
The Beijing lawyer Hu Shaobao says the Law as it stands has already allowed a Beijing court to put off hearing the first such case to be brought in the capital, in which an environmental organisation was suing the Shenhua Group for pollution in Inner Mongolia.
FoN has looked at 25 of the more active Chinese green NGOs in the light of the Law’s requirements, finding that only the ACEF itself qualified as having been operating for over five years and registered with the Ministry of Civil Affairs. As for the requirement to be ‘of good repute’, it was impossible to make any judgement as there is no standard or mechanism to determine which groups are of good repute.
“There are long-standing problems with NGOs registering. The rules mean that Chinese environmental NGOs must register twice, both with the civil affairs authorities, and the authority for their activities – and now that difficulty is being used as a barrier,” said Zhang Boju.
According to Zhang Boju, if the third draft is passed then FoN, which has been litigating over the pollution case in Qujing (Yunnan province), would no longer be able to do so.
Cao Mingde, a law professor at the China University of Politics and Law said that a strict implementation of the third draft would leave only a few national organisations able to bring litigation: the Chinese Society for Environmental Sciences, ACEF, the China Association of the Environmental Protection Industry and the China Ecological Civilization Research and Promotion Association. The number of qualified organisations willing to bring litigation would be even fewer.
“The threshold for who can bring litigation is still too high,” said Xiao Jianhua, a professor of civil procedure law at China University of Politics and Law. “All legal social groups should have the right to bring environmental litigation … The legal stance should be one of freedom, not prescription.”
Legislative blind spots
Professor Cao Mingde is currently working on a judicial interpretation of the third draft rules on who can bring environmental litigation for the Supreme People’s Court. He thinks those qualified should meet four conditions: being legally established and registered; with a fixed office and structure; constitutional documents specifying the aim of environmental protection; and a certain number of professional lawyers.
But Xiao Jianhua says that the right should be given to any legal registered social body or organisation. The 15th Article of the Tort Law rules that litigation may be used for eight causes, including “cessation of infringement; removal of obstruction; elimination of danger; restoration to the original status; and elimination of consequences and restoration of reputation.” Although two of these, the return of property and compensation for losses, may not be suitable for social bodies bringing public interest litigation, the others could all be used.
Rather than leading to indiscriminate litigation, argues Xiao Jianhua, it will encourage public participation in protecting China’s worsening environment and help solve the environmental problems caused by weak government oversight.