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UPDATED: July 30, 2012 NO. 31 AUGUST 2, 2012
No Easy Justice
Legal barriers hinder class actions in environmental courts
By Wang Hairong

On April 24, the draft, having been revised further, was sent to the NPC Standing Committee for second deliberation. In this draft, the phrase "relevant government departments and social organizations" was changed to "legally stipulated government departments and social organizations".

Some legal experts and environmental activists thought that such a clause in the civil procedure law will open the door for NGOs to file class action suits, while some are not so optimistic.

"Actually, people can look beyond the Civil Procedure Law to understand the legal standing to file environmental lawsuits," said Wang Canfa, Executive Director of the Environment and Resources Law Society and Director of the Center for Legal Assistance to Pollution Victims of China University of Political Science and Law.

Wang said that according to Article 6 of the Environmental Protection Law, any organization or individual has the right to expose and accuse those damaging the environment. "If 'accuse' is interpreted as 'sue,' then any organization or individual would have the legal standing to file environmental cases," he said.

Costly litigations

"Environmental litigations can be very expensive. If an organization or individual claims for hundreds of millions of yuan in compensation, then the damage assessment cost will be at least a few million yuan, said Ma Yong, Director of the Department of Supervision and Litigation under the Environmental Legal Service Center of the All-China Environment Federation.

Many NGOs cannot afford to file such lawsuits due to limited financial capacities.

"To pursue the chromium pollution case in Qujing, we must have a clear idea of the size of the polluted area and the seriousness of the pollution, as well as the cost of ecological restoration," said Yang Yang, an attorney representing Friends of Nature.

Friends of Nature and Green Volunteer Union both have had a difficult time in finding a qualified and affordable agency to assess the damage and restoration cost.

Xia Jun, an attorney representing Green Volunteer Union, said that evaluating damage to the environment is a very challenging task, and the field is almost monopolized by research institutes affiliated with environmental protection authorities, but these research institutes are usually reluctant to get involved.

When they found a qualified appraisal agency in southeastern Fujian Province, the agency asked for 7 million yuan ($1.1 million) in fees, which the two agencies found unbearably high.

In Kunming, capital of Yunnan Province, a fund has been established to finance environment-related class action suits, with the money mainly coming from the government's fiscal allocations, public donations and income from administrative penalties. The fund pays for evidence collection, environmental appraisal, and other costs related to class action lawsuits, as well as environmental restoration and enforcement relief.

Tian Youcheng, Vice President of the Yunnan Higher People's Court, said that in environment-related class action suits, the court should allow plaintiffs to defer payment of litigation costs.

"If the plaintiff wins such a case, the defendant should cover all litigation cost, whereas if the plaintiff loses, a special fund can finance a reasonable amount of litigation cost," he said.

Not redundant

"Environmental courts and tribunals are still desirable although currently most pollution victims prefer to have disputes settled through administrative rather than legal means because administrative settlements save time and effort," Wang said.

According to him, environment-related cases are more likely to be accepted and adjudicated more professionally in environmental courts and tribunals than in regular ones.

Currently in China, some local governments are reportedly reluctant to punish major polluters for they are also major sources of tax revenue.

Considering this, legal experts believe that environmental courts and tribunals can better resist interference from local governments. The Chinese Constitution says that "the people's courts shall, in accordance with the law, exercise judicial power independently and are not subject to interference by administrative organs, public organizations or individuals."

Environmental courts and tribunals are also believed to boost public awareness of environmental laws and regulations.

"As the public becomes more conscious about the environment and their legitimate rights, they will file more and more environment-related cases, and environmental courts and tribunals will play a more and more important role in protecting the environment," Wang said.

He suggested that for environmental courts and tribunals to serve their proposed purposes, it is important to have a class action system for environmental problems and use the power of individuals, environmental NGOs and other social groups to protect public interest.

Email us at: wanghairong@bjreview.com

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