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China climate: Environmentalists wield new legal tool against despoilers

'Citizen suits' similar to class action suits offer a new way to hold companies accountable for environmental damage in China, the world's biggest emitter of greenhouse gases. 

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    A Chinese flag moves in the breeze as a loader moves coal at a coal mine near Ordos in northern China's Inner Mongolia Autonomous Region on Nov. 4, 2015.
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As Beijing choked on “red alert” air pollution this week, Chinese delegates pledged to curb emissions at global climate change 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 and 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?

The rules usher in “a new day and age for environmental law enforcement,” says Karl Bourdeau, a China specialist with Beveridge and Diamond, a prominent Washington-based environmental law firm. “But how far, how fast and 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 and clean the grey smoggy air.”

Environmental activists hailed the verdict. “I hope this will be a model for the future, and I think there is a good 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, and 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 and 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, and 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, and 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 and 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 about 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 and 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 and money they need to find out what’s going on and 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 and taxpayers – hauled before a judge, and 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 and 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, and 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 and block our suits even before I’d got back to Beijing.”

“It’s only when the local government, the local environmental protection agency, and the court wants to do something that you’ll get a happy 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, but is more hopeful. “If a local government does not support a case it will be a very difficult obstacle, but 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, but she does not think they will be able to get away with it forever. “Everyone will see them doing it, and 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, and judges are often in cahoots. When the standards are clear and independent groups are bringing suits, “transparency can bring up truth, and truth can lead to good 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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