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UPDATED: February 6, 2012 NO. 6 FEBRUARY 9, 2012
Thwarting Dirty Migration
Polluting companies forced out of economically advanced coastal areas take their pollution inland
By Wang Hairong

But bulk pharmaceutical chemical producers, with low added value and low profit margins, usually engage in intense cost competition, therefore they are reluctant to invest in environmentally friendly production.

Zhongrun in fact moved to Inner Mongolia after being rejected in Hebei for generating excessive pollution. But now the company is contaminating the environment of Rogtoh County.

"Actually, clean pharmaceutical production technologies are already available. If Zhongrun were to adopt new technologies, it would produce very little waste," said Xiao Wenwei, Deputy Director of the Rogtoh Industry Development Zone. But new technologies remain expensive.

In response, some pharmaceutical industry insiders have suggested, if bulk pharmaceutical chemical producers cease fierce cost competition, and all of them mark up their prices by 10 percent and spend the earnings on environmental protection, things would be very different.

"While encouraging companies from economically developed areas to invest in inland areas is important, local environmental protection departments should not relax their standards for these companies simply because they can boost development," said Tian Weizhao, Director of the Environmental Protection Department of Sichuan Province.

He suggested that environmental protection departments should be allowed to play a more active role in selecting investors, and should keep heavily polluting companies out, and strictly regulate those allowed in.

China's Environmental Impact Assessment Law, which became effective in 2003, requires an environmental impact assessment to be completed prior to the construction of a project.

The Environmental Impact Assessment Law encourages public participation, and a document released by the State Council, China's cabinet, in 2006 also requires construction projects that will have an environmental impact to undergo such procedures as public hearings. But in many cases, the public are not sufficiently well-informed to make decisions and they find themselves unable to veto potentially harmful projects.

Local protectionism

Quite a large number of polluting companies failing environment impact assessments have obtained business licenses and started operations any way.

Yang Sujuan, an associate professor at the China University of Political Science and Law, helped Yu Mingda, a pollution victim in Zhejiang's Pinghu City, win a case 15 years after it was filed. Yang said that local protectionism hampers hearings on pollution compensation claims.

In 1994, all the tadpoles in Yu's frog farm died after wastewater from five local chemical companies leaked into the area. Yu suffered huge economic losses and sued these companies in the local court. The court ruled that a causal relation between the wastewater discharge and the tadpoles' deaths could not be established.

Yang found that no environmental impact assessment had been done before the five chemical plants were set up, and no pollution treatment facilities were designed and built to serve the polluting firms as required by the government.

These findings eventually helped Yu get compensation from polluters.

In many regions, big polluters also tend to be big tax payers, and they are usually well-connected with local governments. "Even though these firms clearly violated environment laws, they could still operate freely because local governments pay more attention to tax revenue and economic development than the expense of the environment and local residents' quality of living," Yang said.

"When ordinary people bring environment-related cases to court, they are often rejected on the pretext of insufficient evidence. Even a lawsuit is filed, the plaintiff rarely wins because of local protectionism," said Peng Defu, an official at the Letters and Petitions Office of the Ministry of Environmental Protection.

Tian Youcheng, Vice President of the Higher People's Court of Yunnan Province, said that environment-related cases are often widely influential in society and difficult to judge. To avoid interference from local governments, he suggested a local court should submit such cases to a higher-level court in the first instance.

In addition, the draft amendment to the Civil Procedure Law submitted to the Standing Committee of the National People's Congress (NPC), China's top legislature, on October 24, 2011, included a provision allowing relevant government departments and social groups to file class-action lawsuits against pollution. On October 28, 2011, the Standing Committee of the NPC reviewed the draft amendment for the first time.

While under the current law, only government agencies and people directly affected by an incident are allowed to sue over environmental pollution.

"Class-action litigations filed by individuals or civic groups are seldom accepted by courts," said Ma Yong, head of the Legal Affairs Department of the All-China Environment Federation, a Beijing-based NGO. Ma said most of the class-action lawsuits filed by his organization were rejected by courts on the grounds of improper legal standing.

Many legal experts and environmentalists believe that if such a clause is introduced, the door for environment-related class-action litigations would open.

Email us at: wanghairong@bjreview.com

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