By Alex Wang

Environmental litigation is difficult business in China. Even as the country enters its 12th Five-Year Plan (2011-15) period, with perhaps the most extensive set of top-down environmental and energy policies and targets it has ever announced, the space for bottom-up public supervision, particularly through the use of law and the courts, has in recent years been constrained.

There has been some progress in the development of tools that create greater transparency and accountability in environmental laws and policies. There have been modest, but important, improvements in government and corporate disclosure of environmental information in recent years. A small team of dedicated and increasingly sophisticated Chinese and international environmental groups and journalists continue to highlight China’s environmental problems and search for possible solutions.

But high hopes that lawyers and legal experts could harness the law to bring about positive environmental change have been tempered. As one leading environmental lawyer told me, “we must lower our expectations.”

This is unfortunate, because a public educated in the law, and willing to vigorously press for enforcement of environmental law on the ground, can offer a powerful supplement to government environmental-enforcement efforts. It can force polluters to internalize the costs of environmental violations and drive greater compliance with the law.

Aside from the potential benefits for the attainment of central government objectives, litigation is about resolving disputes. Many environmental disputes involve regular citizens facing the negative impact of development and environmental degradation. Fair and predictable judicial proceedings can help to remedy these injustices that have been, and continue to be, the by-products of rapid development.

Where it has worked, environmental litigation has served a number of important functions, such as providing some level of compensation to those who have been harmed by pollution. But in other critical respects, such as stopping ongoing pollution or forcing the remediation of past environmental harm, environmental litigation has fallen short.

An informal survey of environmental lawyers found that compensation for harm was typically the best that plaintiffs could hope for. One example of a successful “compensation for harm” case is a recent lawsuit brought by a group of mussel farmers in the Tianjin Maritime Court for harm caused by a coastal oil pipeline spill. The plaintiffs received 12 million yuan (US$1.9 million).

Environmental courts are a potentially positive development for environmental litigation. In recent years, various cities and provinces in China have established at least 39 specialized environmental courts, tribunals, panels, or circuit courts. Many of these courts have promulgated local rules allowing additional stakeholders, including local prosecutors, environmental agencies, NGOs and citizens, to bring “public interest” environmental suits.

China has a long history of taking successful local experiments to scale at the national level. The environmental courts have already served as an important forum for testing out environmental public interest litigation. They have also provided empirical evidence that prior concerns about frivolous lawsuits and coordination among the various stakeholders were overblown.

China’s new environmental courts should continue to be given wide latitude to demonstrate the value of environmental litigation in furthering China’s environmental protection objectives and providing justice to Chinese citizens around the country. Legislators will hopefully take the opportunity to build public interest litigation into Chinese law in the coming year or two, so that the successful experiences in the courts can be expanded nationwide.

Perhaps most importantly, China has a small, but dedicated, cadre of lawyers, citizens, and environmental groups willing to use legal tools for environmental protection and to promote the development of rule of law in China.

One example can be seen in the documentary, The Warriors of Qiugang. In our work over the years in China, a remarkable number of lawyers have expressed a desire and willingness to use their skills to help the environment and prevent injustice. Much work can be done to help these lawyers play a bigger role in China’s environmental protection.
Source: Global Times

http://www.globaltimes.cn/NEWS/tabid/99/ID/677512/Green-courts-serious-step-forward-for-cleaner-China.aspx

China Daily reported today that an ongoing redrafting of China’s 1989 Environmental Protection Law aims to increase the legal consequences of violating pollution limits and other environmental laws. The 1989 Environmental Protection Law is “law” (法律) as passed by the NPC or its standing committee, and it is the backbone of enforcement, therefore, changes to it can potentially increase the consequences of violating all of China’s environmental laws, which often rely on the 1989 EPL for fines and enforcement.

“Local governments at all levels are expected to face stronger obligations to protect the environment, and polluters will face much heavier fines, according to a draft proposal to amend China’s decades-old Environmental Protection Law.

The environmental and resources protection committee of the National People’s Congress (NPC) is currently soliciting advice on the draft proposal, which is expected to be reviewed by the standing committee of the NPC as early as December, said Bie Tao, a senior official from the Ministry of Environmental Protection.

One highlight of the draft is a proposal to strengthen local governments’ legal responsibilities in environmental protection, Bie, deputy director of the policy, law and regulation department, said on Sunday.

“Although local officials are obliged to meet targets on energy conservation and emission reduction, the legal obligations for local governments are still rather ambiguous,” he said.

Environmental experts say some local governments, in their blind pursuit of economic growth, have become the true culprits of the country’s rampant pollution problems.”

Revisions to laws often tend to take a longtime and it is not uncommon that some of the substance becomes watered-down before its final passage. Here is hoping that the revisions to the law get passed soon and with some teeth.

Source: China Environmental Governance
http://chinaenvironmentalgovernance.com/2011/10/10/framework-environmental-protection-law-may-get-serious/