Lack of environmental public interest litigation in no one's best interest

If authorities want courts to resolve social conflict, environmental cases are a good start

PUBLISHED : Thursday, 08 November, 2012, 12:00am
UPDATED : Friday, 09 November, 2012, 5:16pm

The absence from the latest draft amendments to the Environmental Protection Law (EPL) of a clause allowing public interest litigation has troubled many.

Just this August, the Civil Procedure Law (CPL) was amended to include a new public interest litigation clause which allows "government departments and concerned organisations as designated by law" to bring lawsuits in relation to "behaviours which harm public interest like environmental pollution or infringement of consumers' rights".

The final wording was watered down, but it still got many people excited. For the first time, it gave formal recognition to public interest litigation, as China struggles to cope with growing social problems.

Given that amendment, the logical next step would have been to include a similar clause in the EPL, which is going through its first revision in 23 years. The first draft was taken up by the National People's Congress Standing Committee in August.

The Ministry of Environmental Protection has twice called for the inclusion of such a clause, in the draft amendments it proposed in August last year and again in its comments released last week on the version finally tabled by the Standing Committee.

So why was it not included? According to a ministry official in the Legal Daily last month, there is one point of contention: who can sue. But this same issue was debated and resolved in a hard-fought, if unsatisfactory, compromise over the CPL amendment.

First, individuals have been ruled out as potential public-interest claimants, ostensibly to avoid swamping the courts with frivolous claims. They can bring claims for harm that directly affects them, but cannot sue on behalf of a class.

Second, government departments are listed as the first category of claimants, despite questions about potential conflicts of interest.

Third, many environmental rights advocates consider the classification of "social organisations" too narrow, as a majority of NGOs are not registered as such due to stringent requirements. But it was seen as an improvement over earlier drafts' restriction to the "social groups" set up by government departments.

Environmental rights advocates fear the government lacks the determination required to resolve environmental disputes. However, another factor might be at work: propensity for control and fear of social instability.

The government set up 77 special courts to handle environmental issues as part of a pilot scheme launched in 2007. But it has still played a big role - either as litigant or mediator - in the 17 cases estimated by a government-organised NGO to have been allowed to proceed through them.

Meanwhile, social unrest related to environmental concerns has grown 29 per cent annually since 1996, according to government data.

The ministry has handled some 927 environmental complaints since 2005, with 72 classified as serious. And while there were over 300,000 environment-related petitions received between 2006 to 2010, fewer than 1 per cent were resolved through the courts.

One ministry official reckons it is because the public thinks that getting an environmental lawsuit accepted by a court is too difficult compared with petitioning or securing an administrative review. Any pay-off is uncertain, as the rules for compensation are unclear.

Local governments can also pull the plug on a project if public anger gets too great, as shown by the successful campaign against a proposed refinery and petrochemical plant expansion in Ningbo in Zhejiang province.

However, rather than feeding a vicious cycle which encourages public protest, why not strengthen an alternative forum where they can rationally express displeasure and have their disputes resolved?

Environmental grievances usually involve health concerns and are emotional. They are quickly becoming the "common denominator" unifying social grievances, as environmental activist Li Bo put it.

If authorities want to make a breakthrough in using the courts to resolve social conflicts, they should start with environmental cases.

If they can't show their resolve in even this one field, the future of public interest litigation on the whole looks bleak.

Ng Tze-wei is a former South China Morning Post reporter