Earthjustice attorney Patti Goldman reports from China
Earthjustice will be working with Chinese lawyers and the American Bar Association’s Asia Law Institute to increase Chinese public interest environmental litigation and public participation in environmental decision-making. This is an exciting partnership that may help transfer U.S. environmental litigation skills to our Chinese colleagues to help them grapple with some of the planet’s most pressing environmental problems.
Patti Goldman, Managing Attorney for Earthjustice's Seattle office, has attended several training conferences in China through the ABA's Asia Law Institute. Here are her reports:
(Click on images below to see larger photos)
Environmental Law Workshops -- October 2005:
Public Participation in Environmental Decision-making -- February 2006
The environment is a high-profile issue in China. While my first day here was beautiful with clear skies and lovely fall foliage enriching my trek to the Great Wall, no one could comment about the good weather without comparing it to the last three smog-plagued days or the air pollution in Taipei, where surgical masks are commonplace. Getting to the hotel from the airport and to and from the Great Wall introduced me to Beijing's traffic jams with motor vehicles of every shape, size, and vintage spewing out fumes. And the taxi rides gave witness to China's pervasive economic development, giving meaning to the claim that the crane (of the construction variety) is Beijing's leading bird species.
At the same time, the environment is a high-profile issue. Today's issue of China Daily had two environmental pieces. The first reported on the arrest of several mine owners for violating provincial government orders to suspend coal production in the wake of the coal mine flooding tragedy in August. Mine workers had been forced to work at night to evade detection for violating the suspension order. While many, including the mine owners, acknowledge the validity of the government's goal, they assert that mine owners and workers should be compensated for complying.
In the second, a columnist bemoans the deforestation spurred by the growing use of disposable chopsticks throughout China. Zou Hanru recounts that China uses 45 billion pairs of disposable chopsticks each year and exports 15 billion pairs of throwaway chopsticks. Unless people are willing to switch to reusable chopsticks, he endorses returning to hand-to-mouth feeding. "Let us respect Nature for what it has given us. And can there be a better way of doing that than using our hands to eat?"
Tomorrow the first workshop begins. I look forward to seeing the efforts of lawyers in this country who are seeking to remedy the daunting environmental challenges that lay ahead.
The Environmental Litigation and Public Interest Law Practice Workshop opened in Jinan today with much pride and hope. The workshop was co-sponsored by the All China Lawyers’ Association, the National Judges College, the ABA’s Asia Law Initiative, and China University of Politics and Law’s Center for Legal Assistance to Pollution Victims. While it is the fifth such workshop to be held in China, it is the first one to take place outside Beijing with more to follow. After opening remarks from the sponsors and luminaries, all participants posed for a photo to memorialize the occasion.
Sun Youhai, the Director of the Environmental and Resource Committee of the People's Congress provided an overview of the development of China's environmental law, moving from an early period of little regulation to framework laws and then progressive amendments and enactment of new laws to cover various modes of pollution and natural resource issues. He candidly identified the key weaknesses in the current scheme as: (1) lack of enforcement because local governments are so closely tied to and economically dependent (through their tax revenues) on the polluting industries; and (2) the lack of specific standards and implementing systems in the current laws. However, he expressed optimism that China could attain a stronger legal environmental protection regime due to greater public attention to the environment, a growing focus on public participation in environmental decisionmaking, and current government policies that favor building a harmonious society that integrates economic development, sustainability, human health and environmental protection.
What was striking to this American observer was the strength of the pro-environment rhetoric coming from a Chinese official. Sun Youhai admitted that economic development is a strong force that often trumps environmental protection, but he then identified the need to have mechanisms in place to curb that impulse. He also gave credence to embodying into Chinese law such concepts as the precautionary principle, corporate social responsibility, and the polluter pays principle. And he touted the benefits of public participation as anti-environmental forces in the United States are poised to weaken the U.S. National Environmental Policy Act.
The afternoon turned to China's 2003 Environmental Impact Assessment law with Wang Canfa, Professor at China University of Politics and Law and founder and director of the Center for Legal Assistance to Pollution Victims. He walked through the law's provisions with criticisms that echo those experienced under the U.S. National Environmental Policy Act. For example, a power plant divided its project into two components, neither of which warranted a full environmental impact assessment alone when such an assessment would be required by the project as a whole. He also lamented the fact that an environmental impact assessment does not compel the government to make the most environmentally sound decision and recounted an example where the government's analysis of an appeal supported canceling construction of a high-voltage electric line but it allowed the project to proceed in the end.
While many of the issues resemble those still experienced in the U.S., China's law suffers from its early stage where implementation mechanisms are still not fully developed. When the law was adopted, a provision that would have allowed citizens to enforce the law's mandates was rejected. As a result, advocates like Professor Wang are struggling to create effective mechanisms for administrative and judicial review. The law's principal enforcement mechanism is currently in the hands of the government, which recently responded to criticism of its lack of enforcement by ordering approximately 30 projects to stop because they had proceeded without an environmental impact assessment. While the stop work orders may seem bold on the surface, they merely delayed most of the projects by a few weeks while additional paperwork was filed. The decision to proceed with the projects received little or no scrutiny in light of the tardy assessments.
At the same time, the law has had successes. Professor Wang recounted one involving a coal-fired heating plant. The environmental impact assessment led to significant changes, including dust control technology, creation of a bicycle storage area, and a coal storage area so that the coal would not be exposed to winds that produced extensive dust.
It is heartening to see such able, ingenuous advocates working to enforce Chinese environmental laws, to train more lawyers and judges to take on this work, and to work toward enactment of stronger standards and enforcement mechanisms. The challenges are huge. Only with such heroic efforts can the lofty goals in China's current laws have any hope of becoming reality.
Zheng Chengliang, dean of the law school at Shanghai's Jiao Tong University, gave a provocative speech endorsing the rule of law compared to what is often called the rule of men. He contrasted procedural rights that abide by the law with outcome-determinative decisions that reach a result for political, economic, or moral reasons. He drew from the U.S. movie, "Star Chamber," as an illustration of result-oriented judging, which could give rise to Bushmen type justice (not referring to the current U.S. President). Among the implementing principles for judges, he stressed basing decisions on the obligations and rights of the parties, on a written justification rather than a stated goal or conclusion, and the law versus moral, political, or economic rationales.
The task is complicated by the background and experience of many Chinese judges. The dominant view after the 1949 revolution was that the law had oppressed the masses. Judges were dismissed in favor of petty officials with party affiliations. Workers assumed the role of judges in people's courts. As a result, many judges, particularly in rural areas, lack formal legal training, although this has changed in urban areas. And it is anathema to historic practice for judges to reach their decisions based on the evidence and law and to articulate rationales for decisions. Lawyers generally have more training with most lawyers having a bachelor's degree in law.
In contrast to the relative infancy of administrative law standards and practice, the Chinese lawyers are actively engaged in cases to obtain compensation for victims of various types of pollution. A heated discussions broke out in an afternoon session in which a judge recounted her award of compensation for emotional damage suffered by apartment residents from extreme noise pollution from a water pump. The lawyers debated whether it should have properly been presented as a tort, contract, or product liability claim.
Professor Wang Canfa gave a tutorial on resolution of environmental disputes in China. Most of the environmental litigation in China seeks compensation for noise, air, and water pollution. In contrast to U.S. law, China is a civil code country so claims for compensation are based on statutes not a body of common law. A law allows victims of pollution to sue for compensation.The burden of proof is shifted in such cases so that the plaintiff need prove only the existence of the polluting activities and the damages suffered. There is no need to prove fault or intentional conduct. The burden then shifts to the defendant to prove lack of causation.
During the course of the conference, I met an attorney from Sichuan who was representing farmers who lost their orchard due to mining pollution. The liability was clear but he was stymied in obtaining a fair assessment of the damages. The courts require an assessment by a certified appraisal body, but those bodies are affiliated with the local environmental agencies, which depend on local industries for their tax base and may be unwilling to render an appraisal that will give rise to large compensation awards.
I gave a 3-1/2 hour presentation to the conference today. It focused on two case studies: (1) the Northwest Forest litigation campaign with a focus on environmental impact statements, forest planning, and court remedies; and (2) an appeal of a paper mill's water discharge permit with a focus on administrative law, standing, citizen suits, and expert witnesses. The students asked insightful, probing questions for over an hour; they were so engaged and the exchange so dynamic (even with the sequential translation of both questions and answers) that the session was extended.
Their questions highlighted more restrictive Chinese law on the injuries giving rise to standing, the lack of organizational standing, an inability to challenge policies and regulations under Chinese administrative law, restrictions on the use of independent experts, the lack of fee-shifting statutes, and fewer available remedies. The students could not fathom why an industry would want to intervene as a defendant. Their incredulity makes sense given that they are accustomed to the practice of criminal law and suits for compensation, and no one in their right mind would seek to intervene as a defendant in these types of cases. They were fascinated by the use of independent expert witnesses given that one expert will advise the court on the amount of compensation due in environmental litigation in China.
While environmental litigation in China differs greatly from the many avenues for successful litigation in the United States, many of the concepts and obstacles the Chinese lawyers face had analogues in U.S. law. As I heard the students' questions both in the session and over meals, I learned as much about their system and challenges as they did about the U.S. system.
Today the students worked their way through case studies, each playing assigned roles (plaintiffs' counsel, defense, or judge). They plugged in doggedly and applied much of what they had learned throughout the conference.
The conference ended with a spirited banquet with congratulatory toasts all around. All expressed their gratitude for the opportunity to have such a meaningful exchange about one of China's most pressing problems. The tremendous good will and energy to face the enormous tasks that lie ahead are a tribute to the inspiring example set by Professor Wang, the ABA's networking and guiding hand as the evolution of the rule of law unfolds in China, and the hard work of all the conference organizers.
Today marked the opening of a conference on Public Interest Environmental Litigation and the Roles of Lawyers sponsored by the All China Lawyers' Association's Environmental & Resources Law Professional Committee, the ABA Asia Law Institute, and the Bar Association of Sichuan Provincial, with support from several Sichuan law firms. The opening speeches expressed the need for changes to facilitate public interest in environmental litigation because the current system is poorly equipped to deal with numerous and serious environmental problems throughout China. The conference began by reviewing legal responses to three recent environmental disasters as a vehicle for exploring legal reform options.
Case Study #1 -- Water Pollution Accident on Sichuan's Tuojiang River
In late February-early March 2004, the Sichuan Chemicals Group discharged ammonia and nitrogen into the Tuojiang River, a Yangtze River tributary, at levels seriously exceeding governing standards. The company was engaged in unauthorized testing of new water treatment when the equipment malfunctioned causing the untreated releases and the plant had turned off environmental control equipment, exacerbating the damage. By the end of March, the dead fish exceeded 500,000 kg, resulting in direct economic losses of over 100 million RMB (approximately $12 million). The spill turned city residential water black and rancid, forcing the suspension of drinking water supplies to 1 million people for 26 days and the closure of Ten industries and 1,000 restaurants, tea houses, and entertainment businesses. It is estimated that it will take five years for the ecosystem to recover. The provincial Environmental Protection Bureau (EPB) conducted an investigation and found the company's illegal discharge to be the cause of the damage.
In April 2004, the provincial EPB levied a 1 million RMB ($120,000) fine on the company, a fee of over 4 million RMB ($480,000) for exceeding water discharge standards, 11 million RMB ($1.3 million) in compensation to nearly 1500 fishermen, and 3.5 million RMB ($420,000) in clean-up and fish recovery costs.
Two criminal trials followed, excerpts of which have been shown on TV news programs. First, the company president, vice president in charge of environmental protection, and an environmental department head were held responsible and subject to 3-7 year sentences. They remain incarcerated pending resolution of their second trial proceeding.
In another criminal trial, three EPB officials were convicted of misconduct for failing to conduct an adequate investigation and respond in a timely manner to the pollution. They have received a 3-year sentence, but are awaiting another trial proceeding.
In this case, administrative authorities pursued penalties against the company, and prosecutors brought criminal trials against company and EPB officials. Under Chinese law, private lawyers can represent pollution victims (like the Tuojiang fishermen) seeking compensation for the damage caused by pollution. It is an open question whether the prosecutor (called the procuratorate) can bring civil suits on behalf of victims or the public interest. The Chinese lawyers debated whether such a role is appropriate.
The focus then shifted to who else should be able to sue in the public interest. The American experts (of which I was one) gave a tutorial on U.S. standing and in particular on non-governmental organizations' ability to sue on behalf of their members to curtail or remedy pollution. The discussion highlighted the role of the public plays in stepping in to enforce environmental laws when the government lacks the resources or will to do so. I explained that such cases typically seek to stop or remedy the pollution, not to obtain criminal punishment or compensation for private harm to individual interests.
Case Study #2 -- Paper Corporation vs. Zhejiang Province Hotel Association Defamation Case
The Asia Pulp & Paper Company (APP), a major southeast Asia logging corporation, has rights to log a large area in Yunnan province at miniscule cost. It has deforested huge tracts and planted eucalyptus, which depletes scarce water supplies, and suppresses native vegetation. Greenpeace China published a report documenting the abuses, the harm to biodiversity and local communities, and violations of China's forest protection law.
In response, a provincial hotel association announced a green purchasing boycott of APP paper products, which some Chinese environmental officials and a nongovernmental organization comprised of formal officials supported. APP then sued the hotel association for defamation. While APP eventually withdrew its defamation case once it received public criticism from a variety of sources, the case study allowed the lawyers to address the inability of non-governmental groups like Greenpeace to bring litigation challenging illegal deforestation directly, leaving them media spotlighting strategies that can expose them to retribution and peril. The discussion opened with the question: If the government has not or will not act, who can? In this case, the local residents (who may have direct injuries) are not powerful enough to take on the litigation.
I answered the question from the U.S. perspective, laying out remedies beyond criminal prosecutions and common law actions for compensation to those directly injured. Citizen and organizational standing to seek redress for environmental harm enables U.S. administrative litigation to hold government agencies accountable to their legal obligations and citizen suits to enforce environmental laws against polluters. The Chinese lawyers explored who could bring each type of case, what interests suffice, how those interests are proved, and what remedies can be obtained.
Aside: Ironically, the South China Morning Daily had a full-page ad by APP touting its environmental record in a glossy flowing piece of greenwashing.
Case Study #4 -- U.S. Public Interest Environmental Litigation
The day began with my presentation on public interest environmental litigation in the U.S. Since we had already discussed citizen suits in depth, I used the Northwest Forest litigation to examine violations of environmental impact statements and forest planning law, as well as administrative law generally, and the role of the courts in holding the government accountable to the law and crafting injunctive relief.
The questions again explored standing, attorneys' fees, and the role of the courts. Confusion arose over how U.S. judges integrate the national interest into their decisionmaking. Some of the Chinese lawyers could not fathom a judicial system where the judges' view of the national interest would not be permitted to temper the requirements of the law.
Draft Proposal Regarding Public Interest Environmental Litigation
The conference culminated with a lively discussion of a draft proposal to the People's Congress. The draft has two principal goals: (1) to expand standing to bring public interest environmental litigation to include potentially the prosecutor, other governmental organizations and non-governmental organizations, and class actions; and (2) to define public interest environmental litigation as, for example, litigation to hold entities accountable for harm to health, the environment, quality of life, culture, and consumer rights. Much like that embodied in U.S. citizen suits, the draft proposes a requirement first to ask the prosecutor to bring the action and to sue only if the prosecutor does not. It also proposes that public interest litigation be allowed to seek a broad array of remedies for environmental harm. Both the draft and the ensuing discussion drew extensively from the discussions of the U.S. experience in public interest environmental litigation.
Even though most of the attorneys were partners in private law firms, no one assumed the role of protecting polluting industries from litigation to hold them accountable for violating the law or causing environmental harm. Instead, the lawyers embraced a shared goal of fostering public interest environmental litigation and explored various strategies to achieve that goal. For example, should public interest litigation be initially limited to rights shared by the public at large in, e.g., the environment, or should it encompass rights of segments of the public, such as women and people of color. The exchanges were thoughtful, lively, and probing, reminiscent of the Federalist Papers or the development of the core U.S. environmental laws in the 1960s and 1970s. I gained tremendous admiration for these pioneers as they seek to devise a public interest litigation model that will fit within China's legal system and culture in a way that will increase the tools for effectively confronting China's environmental threats.
The environment is front and center in China. The problems loom large, and change is afoot to address them. It is heartening that so much attention is being paid to instituting the rule of law in a way that will strengthen environmental laws, public participation rights, and public interest environmental litigation.
I want to acknowledge some wonderful people who helped me in China.
Wuanjing is the ABA's amazing translator and translated my Powerpoint presentation into Chinese. Jenny Jiangheng is an attorney who works for the Ministry of Commerce, who translated many aspects of the Chinese legal system for me, as well as the language. These amazing women enabled me to be privy to sophistocated and thought-provoking discussions about the future of Chinese environmental law and the role of public interest environmental litigation in shaping that future. And through them, I was able to share insights from U.S. law and experience that the Chinese scholars and leaders could draw from in moving forward.
And as to Allison Moore -- Allison Moore has been directing the Chinese ABA office for four years. Through her amazing energy, insightful mind, and ability to link American experts with their Chinese counterparts, she is helping to catalyze U.S. input into China's transition to a rule of law.
Public Participation in Environmental Decision-making -- February 2006
In late February, I served as a foreign expert in a workshop on public participation in environmental decision-making in Kunming, China, co-sponsored by the ABA’s Asia Law Initiative. I gave a presentation on U.S. Environmental Public Interest Litigation: From History to Frontier. My paper will be published in China’s largest environmental journal, which is devoting its spring issue to public interest environmental litigation. Chinese lawyers lamented the fact that Chinese law limits standing to those with direct injuries and has no attorneys’ fees provisions like those in U.S. law. After presentations on public participation and environmental impact assessment laws in both the U.S. and China, the conference featured a mock hearing modeled after a recent public hearing in Beijing. The case involved construction of transmission towers that obstructed views from the Summer Palace, a World Heritage site, and would expose a nearby kindergarten, hospital, and residential area to electro-magnetic radiation. The project was designed to meet demands for energy in connection with the 2008 Olympics. Construction had begun without an environmental impact assessment, and the project was stopped for preparation of such an assessment and a public hearing. The mock hearing exercise produced both reasoned and passionate testimony, legal debate concerning the reach of China’s new environmental impact assessment law, and instruction on the mechanics, conduct, import, and potential outcomes of public hearings.
Another highlight of the conference was a presentation by Bie Tao of the State Environmental Protection Administration on the Songhua River accident and spill last November. He showed news footage and photos of the horrific explosions and fires at a Jilin chemical plant as well as the injuries and evacuations that ensued. Not only did the explosion discharge some 90,000 tons of benzene into the river, but it precipitated inter-provincial and international crises. Diplomats debated various strategies to prevent migration of the pollution into Russia, giving rise to disputes over which country would build containment structures and whether damming the river to block the pollution flow would inundate Russian land. The diplomatic entanglements raised the stakes concerning China’s pollution threats. The scandal over SEPA’s delay in warning the public about the hazard from the spill forced the head of SEPA to resign. This high-profile resignation has triggered a new era of reporting, with about 45 reported incidents in the past three months.
The environment is a high-profile issue with the China Daily publishing an environment supplement every Monday, the State Council announcing an environmental legislative agenda, and SEPA recently issuing guidelines on public participation in environmental impact assessments. There is also much talk about establishing greater avenues for public interest environmental litigation to aid in enforcing China’s environmental laws. Broadening access to the courts and remedies for China’s pollution would be a productive step forward.