China wants more climate lawsuits, only the good ones |
The green peacock is so rare in China that wild sightings of the birds, with their golden-green plumage and wide tail feathers, can make national headlines. The photogenic creatures fascinated social media users last year when environmentalists went to court to stop the construction of a dam that threatened their last remaining habitat.
They won. A district judge in Yunnan, the southwestern province where the creatures reside, ordered the state-owned company that manages the project to stop construction. But it was not just about activists triumphing over powerful business interests. The court challenge itself was, to some extent, state sanctioned – part of President Xi Jinping’s grand environmental strategy.
Friends of Nature, the non-governmental organization that filed the complaint, was only able to do so because China passed a law in 2015 allowing local NGOs to initiate what is known as environmental public interest litigation. , or EPIL. The reforms, which also include encouraging prosecutors to bring such cases, have helped bring attention to environmental issues and empowered local courts to tackle destructive industrial practices.
“Court rulings are only part of the impact,” said Zhang Na, who oversees the legal department of the China Biodiversity Conservation and Green Development Foundation, an NGO that has filed several EPIL cases. “There are also impacts that cannot be quantified, such as people’s awareness of the environment and their faith in the law. “
In this sense, legal challenges are a useful tool. More than 3,500 applications were heard by judges last year, compared to just 49 lawsuits filed in 2015. The government likes to emphasize how cases give the public a stronger voice. “Chinese courts will better protect people’s environmental rights through public interest litigation,” Supreme People’s Court chief justice Zhou Qiang said of the new law. The government hoped to “encourage the public to participate in environmental protection,” he said.
But the state also maintains tight control over the issues that come to light. Unlike the wave of court cases that swept across Europe, forcing the German government to put in place tougher climate policies and forcing Royal Dutch Shell Plc to step up emissions reductions, China is not allowing the big public to carry climate affairs. Only Chinese organizations registered with the Ministry of Civil Affairs and having worked on environmental protection for at least five consecutive years are eligible. And they are not allowed to sue the government, only prosecutors can.
Strict rules and the absence of a strong civil society mean that prosecutions are largely brought by government prosecutors, rather than NGOs. Although hundreds of groups technically meet the requirements, they lack the resources and professional knowledge to file cases. In 2019, they handled 179 trials, compared to 2,309 public lawyers. Researchers at the Chinese University of Hong Kong found that only three well-established groups were responsible for almost half of the 115 cases filed by NGOs from 2015 to mid-2017.
While it is also difficult for prosecutors to take charge of such cases, they do gain the support of the authorities. The country’s legal agencies are working with ClientEarth, a European NGO, to train judges and lawyers in climate litigation. Since 2016, more than 1,200 of them have completed some type of program, including visits abroad.
“They are part of the political system and part of their job is to prosecute government violations, so they would be less worried about offending government officials or heads of state-owned enterprises, compared to NGOs,” Dimitri said. de Boer, who runs ClientEarth. office in Beijing. “On the other hand, NGOs are more independent and know better about environmental issues. “
ClientEarth is trying to encourage Chinese prosecutors to take on more cases aimed at reducing emissions. This is partly because most cases so far have focused on pollution reduction and nature conservation, which tend to speak more directly to concerns on the ground and avoid directly challenging business. likely to mount a solid defense. Chinese legal agencies and government experts have said they hope to see more climate-related cases in the future to help the country achieve net zero emissions.
The approach reflects a common dilemma for Chinese officials. The government wants to encourage grassroots action to hold local officials accountable for eliminating pollution and protecting nature, but it does not want to incite discontent to the point of causing unrest or criticism of the environment. against senior leaders.
“A central question is who should protect the public interests? Said He Xiangbai, environmental law researcher at Zhejiang University. “The administrative body is not enough, so China needs the extra efforts of social organizations.”
Yet the message is clear for NGOs that think outside the box. Last September, Li Genshan, a well-known wildlife conservation activist, was arrested by local police in the northwestern region of Ningxia. Other environmentalists suspected the arrest was linked to his attempts to expose the pollution that was occurring in the Tengger Desert, which is home to a major nature reserve. Li’s plea prompted the central government to send a team to investigate, which resulted in the sanctioning of some local officials.
The incident left the local government suspicious of new climate measures. The director of an NGO based near the Tengger Desert, who declined to be named because he feared reprisals, said his organization had become an “obvious target” after assisting in a court case to protect the biodiversity. The local police harassed him to the point that he decided to stop the prosecution.
“We have received too many warnings and have been slandered,” said Zhang of the China Foundation for Biodiversity Conservation and Green Development. “We have encountered huge obstacles in most of the cases that we have filed because so many people are involved,” she said. “There are so many interests.”
Environmental activism in China has declined dramatically under Xi, who has clamped down on critics and the media in recent years. The government paid more attention to environmental groups after several street protests against pollution gained national attention, which prompted many organizations to self-censor or shut down.
“The strategy is basically to get rid of all the NGOs that are too critical of the central government and work with those that want to work with the central government,” said Benoit Mayer, associate professor at the Law School of China. Hong Kong University, “China Allows Public Interest Litigation But Only To Advance Party Objectives.”
China is keen to praise its legal reform. In May, participants at the World Judicial Conference on the Environment in Yunnan, including several United Nations officials, saw a video of the Green Peafowl case. The result, according to one of the captions, was an example of how China had learned to “sacrifice to protect this beautiful bird.”
Despite celebrating their legal victory, Friends of Nature still struggles to raise funds to keep going. “There are more cases that are as important or more important, but have received much less attention,” said He Miao, an activist for the group. “I hope that in the future there will be some support from the legal system to help groups like us.”
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