Greening the Courts: China's Legal Advocates Giving Voice to Pollution Victims and the Environment
The Center for Legal Assistance to Pollution Victims (CLAPV), founded by Wang Canfa in 1998, is a Chinese nongovernmental organization (NGO) based in Beijing, but actively assisting in class action cases in almost every province. CLAPV is the only environmental litigation NGO in China, and its legal advocacy has successfully empowered pollution victims, providing an important check on Chinese industries that pollute indiscriminately. Since opening a public hotline for pollution victims in 1999, CLAPV has provided legal aid for 98 cases, 35 of these involved damages to human health. CLAPV's deputy director Xu Kezhu explained that although CLAPV only won 12 of the cases that caused illnesses among the plaintiffs, many of the other cases induced the local governments and industries to improve the situation of the pollution victims. Besides covering CLAPV's activities, this China Environment Forum included a discussion of the trends in promoting public interest cases to protect the environment and human health in China led by Li Yanfang, an environmental law expert from Renmin University.
Need for "Green" Public Participation
Wang Canfa opened the discussion with a description of the obstacles to public participation in the environmental sphere in China. In principle, the Chinese public has the right to access environmental information and to influence environmental law decisions. For example, in 2006 a new regulation was passed that lays out requirements for public hearings for environmental impact assessments. Pollution victims also have a right to sue for damages to property and health, however, local control of courts can make it difficult for such cases to be heard. Moreover, the cost of hiring a lawyer can be prohibitively expensive. These difficulties underscore the value of CLAPV and a growing cohort of private environmental lawyers willing to work pro bono on pollution cases. (See China Environment Series Issue 7 and Issue 8 for more information on "green" legal advocates in China)
Weaknesses in Environmental Governance Causing Damage to Human Health
Before discussing some class action cases CLAPV has undertaken to win compensation for health damages, Xu Kezhu identified five major weaknesses in China's environmental governance system that produce such health-damaging pollution:
1) Lack of government prioritization of environmental impact in approving projects. The desire of local governments to accelerate development combined with superficial environmental impact assessments has meant that many factories and other construction projects in China are built along on vital water supplies or too close to human populations.
2) Lack of pollution control technologies. When new factories are built in China most do not install pollution-control technologies and those installed are seldom used. Thus, factories that are viewed essential to the local economy are permitted to pollute without any limitations. Sometimes factories simply opt to use very low-technology methods, such as diluting wastewater with fresh water.
3) Weak local environmental protection bureaus (EPBs). Most EPBs allow pollution to continue because they are not willing—or able, due to political pressure—to enforce regulations, assess sufficiently high fines, or conduct required inspections.
4) Uninformed public. A lack of knowledge of long-term health impacts of pollution among victims, as well as unawareness of their legal rights to protest, often prevents them from recognizing and reporting many cases of severe pollution.
5) Lack of compensation standards. China still lacks a legal system of compensation for environmental pollution damages, which means the courts lack any form of guidance on how to award damages in class action pollution cases.
How Litigation Helps People Participate
Central to many of the above shortcomings in China's environmental governance structure is the lack of accountability and transparency of local governments, which often own many of the polluting industries. The speakers emphasized that improving the legal system so citizens can successfully sue companies for pollution damages will be key to pressuring industries to comply with environmental laws. In addition, the public must be educated and engaged on issues of environmental health, so they can recognize potential threats. The three speakers highlighted several case studies to illustrate how litigation has had a positive effect on public health and the environment.
Case 1: Class Action in Pingnan County (2005)
Dr. Wang raised a pollution case in Pingnan County, Fujian, (discussed in more detail in the China Environment Series Issues 8) as one of the ten most effective litigations of 2005. With 1,721 plaintiffs, it is the largest environmental law case in China. The defendant, a wealthy potassium chlorate factory, caused severe air pollution that resulted in crop and forest die-offs, and was strongly suspected of causing serious human health impacts, including cancer. The plaintiffs were granted $85,000 in reparations for health and environmental damage. However, the company has yet to pay the money. After the case, the citizens started a new NGO called Pingnan Green Association, which continues to advocate greater voice to pollution victims and threatened ecosystems in Fujian.
Case 2: Administrative Litigation Surrounding the Baiwang Jiayuan Case (2004)
Professor Li used the case of Beijing's Baiwang Jiayuan to illustrate the current situation of administrative litigation in China. In this case, residents filed a suit against the Municipal Commission of Urban Planning for issuing a permit to build electricity transmission towers that would emit electromagnetic radiation, damaging the health and property of nearby communities. However, the residents were unable to prove to the court that electromagnetic radiation would harm their health or their properties, and the case was dismissed. This case illustrated that administrative agencies were exempt from judicial review, even when they potentially engendered damages to public health. Notably, within China's environmental legislation there are no protections for potential losses or aesthetic damage to property. While plaintiffs in China rarely, if ever, win administrative litigation cases, Professor Li noted that many of these cases do pressure the government into reconsidering their decisions. Moreover, in some cases that the administrative agency wins, factories have been shut down or moved.
Challenges for Public Participation
Challenges for those trying to protect environmental rights include lack of access to information about pollution, limited availability of pollution experts, and the difficulty of proving the causality of pollution damage. Traditionally, much of the pollution and health data in China is considered a state secret in order to reduce the potential for social unrest. One encouraging trend is that fifteen municipalities, including Shanghai and Guangzhou, have recently enacted freedom of information acts, but they do include restrictions to some forms of data that are considered sensitive. The State Council is only in the early stages of considering a draft of a national freedom of information law.
In terms of environmental data, under China's current pollution laws, factories are only required to report pollution if they are considered to be in a seriously polluting industry. Nowhere in China are air pollution emissions reported on a per factory basis. Data on water emissions is gathered, but often scattered among many government agencies and levels of government. There is a law requiring all factories to install water pollution monitors that automatically report water pollution to the local environmental protection bureau (EPB), and EPBs recommend similar devices for air pollution. The use of these monitors is not yet widespread and there exist concerns that if installed these devices will not be maintained, resulting in inaccurate data.
With regards to experts, Wang mentioned that many refuse to testify because of concerns about personal safety, or simply charge exorbitantly for their testimony, which makes them inaccessible to many poor pollution victims. In general, Wang has found cases in China are easiest to prosecute when: (1) the pollution is easy to trace (e.g., water rather than air pollution); (2) the judge has gone through specific environmental law training; (3) the case takes place in a relatively affluent area; and (4) the news media is permitted to cover the story.
Local government corruption and lack of transparency remain hurdles for environmental litigators. At the end of the presentation, several attendees raised concerns about the physical danger CLAPV staff and other legal advocates face in pursuing pollution cases. Dr. Xu admitted that one time she and another lawyer were locked in a factory while conducting an inspection. Only after contacting the local police were they released. She and the other speakers then stressed that it was the plaintiffs, not lawyers, who faced the greatest risks. For example, some pollution victims withdraw their claims because they are threatened by local industry or arrested for minor or past crimes.
Drafted by Linden Ellis.