China’s top court may lean on local govt to enforce environmental law

Mouthpiece for China’s highest court takes aim at Wuhan officials over controversial incinerators in wake of new environmental law

The official newspaper of China’s Supreme Court has castigated local officials in Wuhan for not doing more to protect the city’s residents from two-recently built waste incinerators, a rare move that could herald stronger action from the judiciary in environmental cases.

In a recent article, the People’s Court Daily berated the municipal government in Wuhan for turning a blind eye to environmental breaches at two plants that burn household and medical waste.

Critics say the incinerators, which were built in 2012 amid breakneck economic growth in the central Chinese city, are located near schools and water treatment facilities that are in breach of environmental laws.

This has forced many residents in Hubei’s largest city to move to a different neighbourhood, while those that have stayed behind claim the waste treatment plants have made them sick.    

“Dealing with such cases of environmental law-breaking must first target local government,” said the People's Court Daily.

A lack of enforcement by central government will lead to “blatant challenges to the new environmental protection law, damaging the credibility of the law,” the newspaper added.

Experts told chinadialogue that it is unprecedented for the newspaper to use such pointed language in criticism of local officials, and the censure could be interpreted as a message to officials that China’s legal system will target pollution more forcefully.

“The judiciary is positioning itself more clearly and increasing awareness of its independence, rather than dependence on the government,” said Cao Mingde, a professor at the China University of Politics and Law. Previously, courts would not risk holding local officials to account, making it difficult to enforce environmental laws.  

The journal is the official newspaper of the Supreme People’s Court, although it’s unclear at this stage whether the article is an editorial view or is also the official line of  the top tier of China’s legal system.

China’s courts have long been subordinate to the authority of the Communist Party but the central government, mindful of the political impact of environmental breaches, has approved a more independent track for the judiciary to prosecute wrongdoers.

The 18th Communist Party Congress last year advocated the widespread application of the rule of law, a view that was amplified earlier this month by China’s president Xi Jinping.  

But in the case of the Wuhan waste treatment plants, no legal hearing has been scheduled. That means that the responsibility of pursuing the Wuhan incinerator cases rests with local courts rather than the city government, said environmental lawyer Xia Jun.

The two facilities, located side-by-side, are close to two kindergartens, an elementary school and homes to 30,000 people.

Although the household waste plant was temporarily closed at the end of 2013 after the Hubei Environmental Protection Department found its operation illegal, it soon started operating again despite no approval having been given by environmental protection authorities, the Beijing News reported last month.  

China’s new environmental law, which came into effect on January 1, is intended to beef up protection for residents against breaches of environmental controls. But during its first month, activists have expressed worries about its implementation.

In particular, local governments have put pressure on courts to be lenient, or even ordered them not to accept cases. The Wuhan case has highlighted this problem.
Wuhan court 'buries' anti-pollution case
In August 2014 a court in Wuhan declined to hear a case brought by five residents living near the controversial waste treatment plants. One of the residents, a Ms Zhang, told chinadialogue that the victims had been told by a court employee that pollution cases would never be heard: the city government would not allow it. They were told to “try the government, the court can’t do anything.”

According to an investigation by Democracy and Legal System reporter Li Meng, both incinerators are illegally releasing harmful substances, but nobody is being held to account – while local residents protesting against the plants have been detained.

The residents’ lawyer, Wang Zhenyu, sees this case as a test to see what has changed under what has been touted as ‘the toughest ever’ environmental law.

Wang told chinadialogue that environmental cases are often complex. 

Government failings and misconduct are often the main reasons for pollution caused by companies.

Relocating the incinerators – built to deal with the increasing piles of waste as Wuhan balloons to megacity status – would be a huge headache for the local government, and so is claimed to have interfered with the court’s handling of the case.

According to a report from the Economic Information Daily last October, during the 11th Five Year Plan period there were over 300,000 complaints made to government about environmental matters, with 2,614 decisions reconsidered, but only 980 judicial reviews of government decisions. A mere 30 were pursued as criminal cases. Environmental problems are common, but judicial redress is largely unavailable.

 “Judicial capture” by local government          
At a recent seminar held by Greenpeace, Shen Jinzhong pointed out that successful implementation of the new environmental protection law will depend on local government.
He explained that solving China’s environmental problems requires balancing the needs of protecting the environment and fostering economic growth – and it is often local government that has to find that balance.

Liu Xiang, head of the litigation department at China University of Politics and Law’s Center for Legal Assistance to Pollution Victims, said that implementation of the new law will be extremely difficult, mainly because of the close links between business and local government.

“In many environmental cases I’ve acted in you find out in the end that it’s actually government causing the pollution. For example they attract investment by promising the investors that they won’t need to carry out environmental impact assessments, or that the company can approve the assessment. The government just wants tax income and economic growth.”