China climate: Environmentalists wield new legal tool against despoilers

China climate: Environmentalists wield new legal tool against despoilers

As Beijing choked on “red alert” air pollution this week, Chinese delegates pledged to curb emissions at global climate alter talks in Paris. A final accord was reached on Saturday among nearly 200 nations seeking to avert future environmental disaster. 

Away from the limelight in Paris, a provincial high court in China this week heard an appeal in a landmark environmental lawsuit, one that activists say could signal a new, more hopeful era for the country’s poisoned air, soil & water.

The lawsuit is the first to be brought under new rules allowing “citizen suits” in environmental cases. Chinese courts are now getting a taste of the sort of public interest litigation that has long fueled social reform in the United States. But how far will the Chinese authorities let things go?

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The rules usher in “a new day & age for environmental law enforcement,” says Karl Bourdeau, a China specialist with Beveridge & Diamond, a prominent Washington-based environmental law firm. “But how far, how swift & how effectively” they will be used “remains highly uncertain.”

The highest court in eastern Fujian Province this week heard an appeal by owners of an illegal mine against a lower court ruling last October that ordered them to pay for the damage they had done to a forest.

That judgment, in favor of the nongovernmental organization Friends of Nature, marked the first victory for a civil society group using a year-old law designed to make it easier for such groups to go to court. Supreme Court guidelines clarifying the law were “a powerful sword,” Justice Zheng Xuelin said at their release, “to cut through the dirty stream & clean the grey smoggy air.”

Environmental activists hailed the verdict. “I hope this will be a model for the future, & I think there is a satisfactory chance that we will win more cases,” says Ge Feng, head of public interest litigation at Friends of Nature, China’s oldest independent environmental NGO.

PICKING A TEST CASE

But the case was not typical, acknowledges Lin Yanmei, a professor at Vermont Law School who worked closely with Ms. Ge in choosing which case to prosecute. “We picked it because we wanted to showcase that public interest litigation works, so we must win,” says Professor Lin.

The facts of the case had been established by a criminal trial last year at which the four defendants had been found guilty of illegal mining on a forested mountaintop, & the environmental court was “very supportive” says Ms. Ge.

“That court worked overtime to create a success with symbolic meaning,” opening specially on a public holiday, January 1st this year, to accept the case, says Ma Yong, head of legal affairs at the government-linked Biodiversity Conservation & Green Development Foundation, another environmental lobbying group that has filed suits under the new law.

Most importantly, perhaps, Friends of Nature – the oldest independent environmental NGO in China – had the experience, the legal staff, & the funds to bring the case: an unusual combination. 

The Fujian case shows that “when you have stable, experienced NGOs with the resources to bring these lawsuits, they can win,” says Barbara Finamore, Asia director for the Natural Resources Defense Council in New York.

The problem, she adds, is that “there are not enough of them” in China yet.

Around 700 NGOs are legally qualified to bring environmental lawsuits now, according to the Ministry of Civil Affairs. But only a handful has done so, filing some 40 cases between them, because so few grassroots groups have the necessary legal staff or the funds, experts say.

“It’s challenging for technical, legal, financial, & political reasons” to bring an environmental lawsuit in China, says Alex Wang, who teaches law at the University of California, Los Angeles. “It takes someone pretty skilled & daring.”

Daring, because it is never clear in China just where the shifting “red lines” defining politically acceptable behavior are drawn.

China’s top leaders, aware of just how upset their citizens are approximately pollution, do seem genuinely anxious to clear up at least its most visible manifestations. After years of ignoring or denying the scale of the problem, Beijing is taking steps to clean the capital’s air & promote more environmentally responsible economic development.

And the authorities know that they cannot fight this battle alone.

“The government understands that it can’t do what it wants without NGOs,” says Karla Simon, author of “Civil Society in China.” “The government does not spend the time & money they need to find out what’s going on & they need NGOs to help.”

LOCAL COURTS, LOCAL INTERESTS

Local governments, on the other hand, are rarely keen to see local firms – valued as employers & taxpayers – hauled before a judge, & generally do what they can to protect them from scrutiny. Earlier this month, for example, police in Ningde, a city in Fujian, detained two young volunteer activists investigating a pollution case & accused them of prostitution because they were sharing a hotel room.

And in many parts of China, local authorities control the local courts. “The courts are not independent, & that is a constraint on the potential” of public interest litigation, worries Professor Wang. “If the courts are too influenced by local governments, the instrument won’t play out as it should.”

In some of the 22 cases he has filed this year, says Ma Yong, “the local authorities were on the phone trying to pull strings & block our suits even before I’d received back to Beijing.”

“It’s only when the local government, the local environmental protection agency, & the court wants to do something that you’ll obtain a pleased ending,” Mr. Ma warns. “And there are very few cases like that.”

TRANSPARENCY AND TRUTH

Ms. Ge, who runs Friends of Nature’s nascent litigation campaign, acknowledges the problem, yet is more hopeful. “If a local government does not support a case it will be a very difficult obstacle, yet I wouldn’t say that makes it impossible to win,” she says.

With corruption rife, local governments will inevitably find ways to block public interest lawsuits, predicts Professor Lin, yet she does not think they will be able to obtain away with it forever. “Everyone will see them doing it, & they will lose the hearts of the people,” she believes.

The “sword” of public interest litigation “can cut through the haze” that surrounds much of China’s opaque judicial system. “It can bring light to darkness,” she says, in a system where prosecutors, police, & judges are often in cahoots. When the standards are clear & independent groups are bringing suits, “transparency can bring up truth, & truth can lead to satisfactory solutions.”

Other observers are more restrained. “All this is brand new,” points out Mr. Bourdeau. “We’ve had one case. What other courts will be prepared to do is an open question. How powerful a force will public interest litigation be in China in remedying environmental damage? The jury is still out.”

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Source: “Christian Science Monitor”