China's climate litigation policy must change

With a crest of stiff, black feathers on top of a bluish-green-turquoise bod, the rare green peafowl is an endangered species under first-class protection in China’s southern Yunnan province. When their habitat was going to be imperiled in 2017 by the construction of a dam, a Beijing-based environmental group called Friends of Nature filed a lawsuit against the project. 

In March three years later, the green NGO had won, while the Jiasa River hydropower station along the upper-middle part of the Red River in the province was ordered to be suspended. It marked the first climate litigation case in China that seeks to protect wildlife by preventing potential damages of a development project. 

Some experts consider the lawsuit a landmark success in China’s short climate litigation history, after the nation implemented the Environmental Public Interest Litigation Law (EPIL) in January 2015, which allows NGOs in the country to sue companies or individuals for environmental havocs. 

From then on, EPIL cases have accounted for 60 percent of all public interest civil cases in China, with many having links to the atmosphere, water resources and soil pollution. The number of environmental lawsuits involving forests, grasslands, mudflats, wetlands, wildlife conservation, minerals and wood in the world’s largest carbon emitter is also surging, according to local media. 

The law is forward-looking in expanding the public’s access to climate justice, according to Dr Yanmei Lin, a senior research professor at Vermont Law School. 

“These developments [The law's implementation and lawsuits] have resulted in a sea-change in the first three years right after the law took effect for both the role of courts and civil society organisations (CSOs) in China,” the legal expert, who focuses on the rule of law development in China’s environmental governance, told FairPlanet. 

Friends of Nature also secured the first ever victory in China’s climate litigation history in October 2015. Four individuals defied the authorities’ order to use an excavator on a mountain in Fujian and were accused of damaging vegetation as well as sliding debris and stones down a mountain in Fujian due to illegal mining activities. The court found them guilty, and ordered them to pay the NGO's legal fees, as well as over a million yuen for recovery work in the forest. 

Unable to challenge the authorities

Yet, while local NGOs with at least five years of work experience in the environmental sector can bring state-owned companies to court, they are not legally able to challenge the government’s decision to approve projects or the guidelines for the approval system. Currently, the law only allow public prosecutors to sue the government.  

From 2017 to October 2020, public prosecutors initiated over 200,000 climate cases, and brought about 10,000 to court. 

Despite bagging the victory in the landmark green peafowl case, Friends of Nature said the ruling will not be enough to save the endangered species. 

“The judgement does not directly challenge the government’s decision to approve the project. Rather, it simply halts construction until the builder complies with the outstanding Ministry of Ecology and Environment request. And because the MEE doesn’t necessarily have to conduct an in-depth review of Xinping’s [the accused’s] ex-post environmental impact assessment before allowing construction to restart, there’s a chance little will change," Liu Jinmei, the NGO’s attorney, wrote to the local media outlet Sixth Tone. 

"In China, the question of whether a civil court is entitled to review administrative decisions remains thorny."

Liu added that most environmental lawsuits in China focus on remediating harm from illegal behaviour rather than preventing it. 

"There are also no legal provisions or precedents clarifying under what circumstances social organisations can file preventative environmental public interest lawsuits, nor are there guidelines on what evidence they should submit to support their argument," she wrote. 

Dr Lin of Vermont Law School echoed Liu’s comments, saying that there are still many loopholes in the law that need fixing. 

"There are still many loopholes in the EPIL system [that need to be fixed], such as the assessment of environmental damages, remedies that geared toward improving both the social and ecological systems, evidence rules for establishing liabilities, coordination with administrative enforcement actions, etc. One of the key loopholes is the CSOs are lack of standing to sue the government."

Risky confrontations

Local NGOs might also have to walk on eggshells to bring their cases to court, Dr Lin said. 

"CSOs who want to challenge government agencie's enforcement and development decisions, confronting in courts are pretty risky under China’s political climate the regulatory structure for CSOs. For example, CSOs have to have government unit as their supervision unit for registration and annual reviews," she explained.

"CSOs have been under pressures if they confronted big power, because those powers will find ways to lower the litigation impacts."

Individual environmental activists are in even greater danger. Residents in Wuhan, which is engulfed in smog, were reportedly harassed by local police officers for voicing their complaints against air pollution, even though they printed Premier Li Keqiang’s very words vowing to fight against that on a banner. 

Dr Lin urged more support to the NGOs in terms of funding and freedom of expression. 

"We need to give more space and support to the actors in this system in order for innovative rules and institutions to be emerged so that the EPIL system can be improved and play its due role. Outside of the EPIL system, [what is needed are steps] such as enhancing the independence of the judiciary, less control of the CSOs, including their crowd funding actions and promoting freedom of expression."

Image by Maud Beauregard via Unsplash