At the end of July, courts in Guizhou and Jiangsu provinces accepted the first cases brought by the All-China Environmental Federation (ACEF), a government-backed non-governmental organization (NGO) affiliated with the Ministry of Environmental Protection. The targets are a local government land bureau in Qingzhen city, Guizhou province, and a port container company in Wuxi, Jiangsu, which is accused of allowing pollution to seep into the surrounding environment.
Though not yet decided, the cases are seen as a major turning point for the environmental movement in China.
“I think the two cases by the ACEF have set a precedent for civil society to have the status to file the case,” said Sze Pang Cheung, Greenpeace China’s communications director. “You don’t have to be a direct victim of the pollution, and the court will hear your case.”
The cases come at a time of rising environmental awareness among both urban and rural Chinese citizens who are concerned about the threat polluting factories pose to their health, property values and economic livelihoods. One such recent example: the protests this week against a cadmium plant in Hunan that was closed after residents claimed the metal being discharged from the factory was killing local people.
The acceptance of the ACEF’s cases could be a sign that Beijing is listening to citizens’ concerns – and trying to placate them by offering a stable legal platform from which to voice these concerns.
“What they’re trying to let people know is that there are other ways of handling these things. There is a legal method for dealing with it and here’s how,” said Charles McElwee, an environmental lawyer and counsel for Squire, Sanders and Dempsey based in Shanghai.
Though how long Beijing – and therefore the local government – will make this a priority depends on the economy.
“The courts are still open to the party politics,” said Richard Brubaker, managing partner of China Strategic Development Partners, a business consultancy. “If the recession all of a sudden fades away and prosperity comes back tomorrow they may be likely to go after these guys. But if we go into a full scale depression maybe they won’t go after them because that’s 10,000 jobs you’re looking at.”
Public consultation is necessary and also legally required between companies and the public to solve many issues, according to Joan Hu, staff attorney at the China environmental law program of the Natural Resources Defense Council in Beijing. “If [companies] can show what environmental measures they will take and involve sufficient environmental public participation, I think [this] will mitigate some of the potential conflict,” she said.
However, companies that comply with China’s environmental laws could still face problems. Individuals could bring environmental tort cases – actions brought against companies for personal injury or property damage caused by pollutants discharged from their factories. And the burden of proof in a tort case is on the defendant, not the plaintiff.
“You can be operating within your permit limits in respect to the pollutants you discharge and someone says, ‘Hey, I live next to the facility, I drink the water the pollutants are in and that water gave me cancer’,” McElwee explained. “If you provide no proof that your substance does not cause them cancer, you’re liable.”
McElwee believes the best solution for companies is to keep accurate records about pollutants from factories, which provides proof that can be used in court. Proper siting of factories – for example, in an industrial park, which is both easy to set up in and generally free of inhabitants – is equally important.
Going the extra mile in equipment will also pay off. “If people would just invest in US-grade equipment or Japan-grade equipment and stop using local standards as their guidelines, you’d actually knock out a lot of this,” said Brubaker.