Asia

China wants more climate court cases, but only the right ones

BEIJING (BLOOMBERG) – The Green Peafowl is so rare in China that wild sightings of the birds, with their golden-green plumage and sweeping tail feathers, can make national headlines. The photogenic creatures had social media users riveted last year when environmentalists went to court to stop 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 running the project to halt construction. But it wasn’t just a case of activists triumphing over powerful corporate interests. The court challenge itself was, to some extent, state sanctioned – a part of President Xi Jinping’s grand environmental strategy.

Friends of Nature, the non-government organisation that filed the lawsuit, was only able to do so because China passed a law in 2015 that allowed local NGOs to initiate so-called Environmental Public Interest Litigation (Epil). The reforms, which also include encouraging prosecutors to bring such cases, have helped draw attention to environmental issues and empowered local courts to push back against destructive industrial practices.

“The court rulings are only one part of the impact,” said Zhang Na, who oversees the legal department at China Biodiversity Conservation and Green Development Foundation, an NGO that’s filed multiple Epil cases. “There are also impacts that are unquantifiable, such as people’s environmental awareness and faith in the law.”

In that sense, the legal challenges are a useful tool. More than 3,500 petitions were heard by judges last year, compared with just 49 lawsuits filed in 2015. The government likes to stress how the cases give the public a stronger voice.

“China’s courts will better protect people’s environmental rights through the public interest litigation,” Zhou Qiang, Chief Justice of the Supreme People’s Court, said about 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 which issues come to light.

Unlike the wave of court cases that have swept across Europe, forcing the German government to set stronger climate policies and mandating that Royal Dutch Shell accelerate its emission cuts, China doesn’t allow the public at large to bring climate cases. Only Chinese organisations that are registered with the Ministry of Civil Affairs and have worked on environmental protection for at least five consecutive years qualify. And they’re not allowed to sue the government, only prosecutors can.

The strict rules and lack of a robust civil society mean that lawsuits are overwhelmingly raised 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 managed 179 lawsuits, compared with 2,309 from public lawyers. Researchers at the Chinese University of Hong Kong found that only three well-established groups were responsible for nearly half the 115 cases by NGOs filed from 2015 to mid-2017.

While it’s also challenging for prosecutors to take on such cases, they do get support from the authorities. The country’s legal agencies work with ClientEarth, a European NGO, to train judges and lawyers on climate litigation. Since 2016, more than 1,200 of them have been through some type of programme, including overseas visits.

“They are within the political system and a part of their job is to prosecute government violations, so they would be less worried about offending government officials or leaders of state-owned companies, compared to NGOs,” said Dimitri de Boer, who heads ClientEarth’s office in Beijing. “On the other hand, NGOs are more independent and know more about environmental problems.”

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ClientEarth is trying to encourage Chinese prosecutors to take on more cases aimed at cutting emissions. That’s partly because most cases so far have focused on reducing pollution and conserving nature, which tend to speak more directly to on-the-ground concerns and avoid directly challenging companies likely to mount a strong defence.

China’s legal agencies and government experts have said they hope to see more climate-related cases in the future to help the country reach net-zero emissions. The approach reflects a common dilemma for Chinese officials. The government wants to encourage grassroots action to hold local officials accountable when it comes to cleaning up pollution and protecting nature, but it doesn’t want to incite so much unhappiness that it leads to unrest or criticism of the top leadership.

“A core question is who should protect the public interests?” said He Xiangbai, a researcher on environmental law at Zhejiang University. “The administrative body is not enough, so China needs the supplementary efforts from social organisations.”

Yet the message is clear to NGOs that step out of line. Last September, Li Genshan, a well-known wildlife conservation activist, was detained by local police in the northwestern Ningxia region. Other environmentalists suspected the arrest was related to his attempts to expose pollution that was happening in the Tengger Desert, home to an important nature reserve. Li’s advocacy had pushed the central government to send a team to investigate, resulting in some local officials being punished.

The incident left the local government wary of further climate action. The director of an NGO based near the Tengger Desert, who declined to be named because he feared retribution, said his organisation had become an “obvious target” after helping on a biodiversity-protection court case.

Local police harassed him to the point that he decided to stop pursuing lawsuits.

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“We have received too many warnings and have been slandered,” said Zhang from China Biodiversity Conservation and Green Development Foundation. “We met huge obstacles in most cases we filed because so many people are involved,” she said. “There are so many interests.”

Environmental activism in China has shrunk significantly under Xi, who has cracked down on critics and the media in recent years. The government has paid closer attention to green groups after several street protests against pollution drew national attention, causing many of the organisations to self-censor or shut down.

“The strategy is basically to get rid of any NGOs that are too critical of the central government, and work with the ones that want to work with the central government,” said Benoit Mayer, an associate professor at the Faculty of Law of the Chinese University of Hong Kong, “China allows the public-interest litigation but only to serve the purpose of the Party.”

China is keen to tout its legal reform. In May, attendees of the World Judicial Conference on Environment in Yunnan, including several United Nations officials, were shown a video of the Green Peafowl case. The outcome, one of the subtitles read, was an example of how China had learned to “sacrifice for the sake of protecting this beautiful bird.”

Despite the celebration of its court victory, Friends of Nature still struggles to raise funds to keep going. “There are more cases that are as important or more so, but have received much less attention,” said He Miao, a campaigner with the group.

“I hope in the future there will be some support from the legal system to help groups like us.”

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