Monday, 7 December 2009

Courting Change - China

Environmental groups in China now have the ability to sue polluters. But will they?
China's courts have opened a new front in the country's long-running battle against polluters.
The Journal Report
In late July, two of the country's provincial environmental courts agreed to proceed with cases brought by a Beijing-based group known as the All-China Environmental Federation, or ACEF. Previously, only individual citizens could sue polluters.
It's a potentially big step for the environmental movement in China. Very few citizens actually bring suits against polluters, because of the cost, difficulty and potential for retaliation by local authorities or companies. "Often, in a small or rural county, the locals won't know anything about law, and they won't necessarily be able or willing to use the courts for the case," says Alex Wang, the Beijing-based director of the Natural Resources Defense Council's China Environmental Law Project.
But advocacy groups like the ACEF don't face those pressures. Now that the groups are allowed to sue, they may start to take a larger role on the front lines of environmental defense. Advocates hope that the increased threat of lawsuits might put more teeth into regulations targeting companies that foul the country's air, land and water.
Whether those hopes pan out is another matter. Some legal observers aren't sure that change will come fast enough to keep pace with the torrid rate of China's industrial growth. "My sense is that things are getting better in China. They're just getting better at a fairly slow pace," says Charles R. McElwee, the Shanghai-based counsel of law firm Squire, Sanders & Dempsey LLP. "And we're unlikely to see any dramatic changes. Things will continue to get better, but at the same pace."
Make Haste
China began offering legal remedies against polluters two years ago, when it established environmental courts in the provinces of Guizhou, Jiangsu, Yunnan and Shandong. The main motivation: pollution in lakes and reservoirs, according to a 2008 report from the Woodrow Wilson Center in Washington, D.C. The two courts in Jiangsu are near Lake Tai, considered one of the three most polluted lakes in China; in 2007, it saw a toxic-algae bloom that made headlines around the world.
The courts were intended as a bulwark against polluters, since government enforcement of laws on the books remains difficult. Unlike the U.S. Environmental Protection Agency, China's Ministry of Environmental Protection doesn't have enough authority or resources to intervene in local enforcement actions. So, the ministry depends on local environmental bureaus to enforce legislation—and those bureaus are beholden to local governments. In many instances, local bureaus are loath to shut down or penalize the manufacturers and industrial plants that are often a large source of revenue for a region.

Thus, lawsuits are often the only way to challenge polluters. But so far, the environmental courts have seen mixed results. They've been aggressive about accepting cases, but citizens haven't been aggressive about bringing cases. And when they do, the cases often don't tackle big environmental problems. For instance, the courts have yet to take on a significant water-pollution case; most of the litigation they see involves minor disputes over forestland, according to a presentation by Li Zhiping, a law professor at Sun Yat-Sen University in Guangzhou.
The result of all this isn't just unchecked pollution; it's civil unrest. Because it's so troublesome for individuals to bring lawsuits, environmental disputes are often settled in the streets instead of courtrooms.
Consider a recent incident in Liuyang City, in central China's Hunan Province. In late July, 1,000 people rioted to protest waste dumping at a local plant that sickened 509 people. According to Chinese state media, villagers said they had petitioned for a government investigation since 2007, to no avail. Only after the riots were three government officials prosecuted for their role in the scandal.
"The overall hope with environmental litigation is that we need a reliable way for these inevitable disputes to be resolved," says Mr. Wang of the China Environmental Law Project. "Otherwise there's the chance that it will spill out to protests or riots in the streets."
An Important Step
Though progress has been slow, environmental advocates see the courts as a positive step. "The specialized courts are useful and helpful in [developing] the environmental-protection legal system," says Wang Canfa, the head of the Center for Legal Assistance to Pollution Victims in Beijing and one of China's most celebrated environmental advocates. "I believe there will be more courts in the future."
And environmentalists and lawyers are heartened by the recent court decisions allowing the ACEF to pursue its pollution lawsuits against a local government and an industrial company.
"What is interesting and hopeful about these environmental-court experiments is that it's a big step forward for the courts and the role of lawyers in environmental disputes," says Mr. Wang of the Environmental Law Project. "It will save the country a lot of costs in the long run because they will start addressing [environmental] problems earlier."
Another potentially positive move: A new tort law, which was released in early November for comment by the National People's Government, includes an environmental section. Though the torts are mostly covered by existing statutes, the new law may help raise the profile of the environmental courts among the Chinese people, says Mr. McElwee of Squire, Sanders & Dempsey. And that may encourage them to take action against polluters.
Work Ahead
Environmentalists and lawyers acknowledge that significant work remains. China's legal system is still young, rebuilding itself in the past 30 years after decades of neglect during the Great Leap Forward and the Cultural Revolution. And the actions of the newly empowered advocacy groups like the ACEF can be quickly reversed. Though they act independently of government ministries, ultimately they operate under governmental supervision and use government funds. If Beijing decides that these experiments in advocacy aren't working, it can easily throw up a wall to head off reforms.
For now, though, the attention of the courts means that more work will be done, says Mr. Wang of the Center for Legal Assistance to Pollution Victims.
"It's good for the development of the law, because [the courts] and their employees are wholly focused on environmental issues," he says. "Also, when lawyers are sent to these newly established environmental courts, they need to find things to do to justify their job, which gives them an incentive to hear more pollution cases."— Mr. Shieber is a reporter for Dow Jones Clean Technology Insight in Shanghai. He can be reached at Lin Bai contributed to this article.