While some commentators have expressed relief about the stricter provisions spelled out in the new environmental law, others remain sceptical about their enforcement. But for China’s judges, the most pressing problem is how to try environmental cases in practice.
It’s something they need to get to grips with fast. Although environmental disputes in China are common – as early as 2003, the country was seeing more than 500,000 a year – environmental court cases are rare, as conciliation, mediation and various administrative means are used to settle most clashes. Once the new environmental law is in place, however, their numbers are likely to surge.
Using smog as an example, Li Jihe, vice president of the economics and law school at Northwest University of Politics and Law, illustrates the complex nature of environmental cases. First, there is a variety of contributing factors, like emissions, sandstorms and weather. Second, since everyone is a victim, "it would be challenging for the inexperienced courts even to figure out who is plaintiff and who the accused," says Li.
Li Junbo, of China University of Political Science and Law, highlights another example – river pollution. Imagine a polluted river contaminated by three sources, says Li. How can a court identify the parties responsible, isolate each party’s degree of responsibility and determine the appropriate compensation? And how can citizens get access to cheap but effective legal help? China’s judges hope to gain crucial insights from lawsuits and judicial procedures in Europe, which has been through the process of environmental pollution and clean-up, Li says.
Du Heng, director of the political division at the Guangxi Higher People’s Court, points to further complexities: "Environmental disputes involve three overlapping sides – administrative, civil and criminal. Some theoretical and concrete problems associated with litigation still need to be resolved, for example which type of cases should be accepted, which parties are eligible to file lawsuits, and what ought to be the scope of the investigation [once a case is accepted]. The answers to these questions are contested both in the theoretical and legal practitioner circles." The mushrooming of novel and complicated cases in a rapidly developing China has already increased demands on judges, adds Du.
In early April, tap water was found to contain levels of benzene 20 times above safe levels in Lanzhou, the capital of north-west China’s Gansu province. A leaking pipe owned by Lanzhou Petrochemical Company was found to have contaminated the drinking water of 3 million residents. Five residents filed a lawsuit against Veolia, the company in charge of the operations, but their case was rejected. Subsequently, five scholars from Northwest Nationalities University also went to court in a bid to get Veolia to accept responsibility, provide pollution information and publish its water-quality data from the previous year.
Speaking about the case to chinadialogue, a chief judge of Gansu’s High Court said compensation was necessary in principle, but under the existing law, individuals cannot file lawsuits, making the current appeal void. The implementation of the new environmental law, he said, would allow qualified NGOs to file lawsuits.