Bloomberg BNA Report 2015.10.30 By Michael Standaert
Victory Could Set Example for Further Actions
Key Development: A court in Nanping, Fujian province has decided in favor of two environmental groups in their public interest lawsuit regarding environmental damage done there by a small mining operation.
Potential Impact: The case sets precedents for a case specifically focusing on ecological damage as well as the court allowing an assessment of the damage by an environmental auditor as evidence in helping determine potential fines.
What’s Next: It is likely judicial authorities do not want major public interest environmental lawsuits to get too much traction, however, as is evident by how top procuratorial and judicial authorities are signaling they will get involved in major cases.
Oct. 29 - A court in southern China’s Fujian province has ruled in favor of two green groups in a public interest environmental lawsuit against four defendants who damaged a hillside by digging an unapproved quarry, five months and three hearings after the case was initially filed, one of the victors, Beijing-based Friends of Nature (FON), told Bloomberg BNA in a statement on the date of the ruling of Oct. 29.
The case was the first such suit concentrating on ecological damage in China, according to FON and the local non-governmental organization Fujian Green Home, and could set a precedent for encouraging other environmental organizations and lawyers representing public plaintiffs to file similar cases in the future.
“The court precedent could greatly enhance initiatives by NGOs to file environmental public interest lawsuits and more lawyers may be willing to represent these cases as well,” Ge Feng, coordinator of public participation for FON told Bloomberg BNA. “The court also exempted the litigation fees for the NGOs, which helps save costs since we are not rich. This is the first ecological damage public lawsuit, so the hearing, decision and final execution [of the court] will have real meaning.”
The court in the city of Nanping in the northwestern part of Fujian province found four defendants who ran a local mining operation - Xie Zhijin, Ni Mingxiang, Zheng Shijiang, and Li Mingshuo - responsible for severely damaging the ecology of 4.6 acres of forested mountainside after developing a quarry there starting in July 2008 without gaining prior approval from the local land and resources bureau, and continued their actions even though they were halted several times by the bureau. Photos provided by FON show the hillside was denuded of trees at the quarry site.
As a penalty, the court stated the four must remove any mining materials and waste rock from the site within five months and remediate the 28.33 mu (about 4.6 acres) by planting new trees and caring for the site for a term of three years.
If this is unsuccessful, the defendants will have to pay a fine of a little over 1 million yuan ($157,000), as well as a 1.27 million ($200,000) remediation fee for reforesting other areas nearby if the hillside cannot be repaired.
The defendants are also liable for a fee for the evaluation of the cost of the damage, and all legal and court fees of the plaintiffs totalling around 165,000 yuan ($26,000).
Liu Xiang, the lawyer representing the two groups from Beijing Huanzhu Law Firm said another important precedent was the the court accepted an environmental damage evaluation report from China Forestry Group Corp. as evidence in deciding how much possible fines and remediation fees will be if the defendants do not clean up the site in the time required.
“Although expert opinions are well accepted in foreign countries, China has rarely allowed the use of such expert opinions,” Liu said. “If the court can accept expert opinions as effective evidence, the court can make a more scientific decision in evaluating the cost, otherwise plaintiffs may have to take on more expensive costs themselves.”
FON set up a public interest lawsuit fund at the start of the year and has supported other local NGOs around China in filing 10 cases this year related to water, air, soil pollution and ecological damage, with six accepted by courts so far, and five of those cases still pending, the group stated.
Genie Only Partly Out of Bottle
While this case does set some precedents, it is rather minor in terms of monetary fines and the focus is on ecological damage and not damage to public health or property with major penalties for big companies at stake, as other more complicated cases can get into. It also remains to be seen whether China’s procuratorial authorities, which signaled they would take a lead role in public interest cases in July, will allow larger cases to be directed by green groups and their lawyers. [38 INER 890 7/15/2015]
For example, while a 30-year old NGO called China Biodiversity Conservation and Green Development Foundation filed a public interest case in mid-August against eight companies for contaminating an area of the Tengger Desert (Tenggeli in Chinese) in the Ningxia-Hui autonomous region, but the local court said they were not eligible to file and the group has appealed to the high court in the autonomous region.
In the meantime, the local procuratorial department has taken over the case and is in the process of investigating two local environmental protection officials for dereliction of duty related to the pollution, according to an Oct. 20 statement on the Supreme People’s Procuratorate (SPP) website.
The statement indicated that the SPP has directly stepped in to become involved in 33 environmental cases this year so far, and an unnamed official said the body would give local authorities specific periods of time to take action to remediate problems in such cases. The statement also indicated that the Supreme People’s Court will issue further guidance on the types of cases the SPP will be involved with in the future.
Recently, local procuratorial bodies have become directly involved in environmental cases that have been filed at courts in Guangdong province. Procuratorial bodies in the provinces of Shandong, Anhui, Yunnan, and Jilin, as well as the state-level municipality of Chongqing, have also released statements about how they will pilot their involvement in environmental cases in their jurisdictions, according to information gathered by Bloomberg BNA over the past several months.
By Michael Standaert
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#FMI Recent Supreme People’s Procuratorate statements on environmental cases are available at: https://tinyurl.com/nr8wau7