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China: Notable Environmental Public Interest Lawsuit

(Oct. 17, 2014) The intermediate court of Taizhou, a city in China’s Jiangsu Province, recently ordered six local polluting enterprises to pay RMB160 million (about US$26 million) for environmental restoration in an environmental public interest lawsuit (the Taizhou Case). It is reportedly the largest amount of damages Chinese courts have ever awarded in a public interest lawsuit. (Gongyi Susong Xian Peifu Zuigao An: Toupai Qiye Beipan 1.6 Yi [Highest Damages Ordered in Public Interest Lawsuits: Polluting Enterprises Ordered to Pay RMB160 Million], FAZHI RIBAO [LEGAL DAILY] (Sept. 17, 2014); Yin Youwen, Gongyi Susong Xian Peifu Zuigao An: Toupai Qiye Bei Pan Pei 1.6 Yi Huanjing Xiufu Fei [A Public Interest Lawsuit with Highest Damages So Far: Polluting Enterprises Ordered to Pay RMB160 Million for Environmental Restoration], XIANDAI KUAIBAO [MODERN EXPRESS] (Sept. 12, 2014).)

In addition to the significantly large amount of damages the court ordered, the Taizhou Case is notable because of the willingness of the court to accept the standing of an environmental protection organization just founded this year to bring such a lawsuit in the public interest.

The Taizhou Case

According to news reports, the court found that from January 2012 to February 2013, the six enterprises provided nearly 26,000 metric tons of waste acid to individuals who were not qualified to handle hazardous waste. (Gongyi Susong Xian Peifu Zuigao An: Toupai Qiye Beipan 1.6 Yi, supra; Yin, supra.) The individuals dumped the waste acid directly into domestic rivers and caused serious pollution. The court therefore awarded damages of about RMB161,000 (about US$26,000) as the amount necessary for environmental restoration in that area. (Yin, supra.)

In August 2014, the individuals who dumped the waste acid into rivers were sentenced to fixed terms of imprisonment ranging from two years and three months to five years and nine months, and fines ranging from RMB160,000 to RMB410,000 (about US$26,000 to US$67,000). Prior to that, one of the six polluting enterprises was also fined RMB350,000 (about US$567,000) in 2012 for polluting the rivers, but they did not stop the polluting. It was believed that the fines for polluting in China had been too small to stop the illegal activities, and therefore the large amount of damages ordered in the Taizhou Case was hailed by commentators. (Id.)

It is not clear from the news reports, however, if the court decision is final, and if so, whether the polluting enterprises have complied with the decision to pay the environmental restoration fee.

Eligibility to Be a Plaintiff in Environmental Public Interest Lawsuits

Public interest organizations are specifically permitted to bring lawsuits against environmental pollution activities harming the public interest in the 2012 amendment to the Chinese Civil Procedure Law. This amendment added a new article to the Law to provide that “[r]elevant bodies and organizations prescribed by law may bring a suit to the people’s court against such acts as environmental pollution, harm to the consumers’ legitimate interests and rights, and other acts that undermine the social and public interest.” (Gongyi Susong Xieru Minshi Susong Fa [Public Interest Lawsuits Written into Civil Procedure Law], XINHUANET (Aug. 31, 2012).)

When the Law entered into effect in 2013, however, problems remained regarding which organizations would be eligible to bring such lawsuits, because there were no legal provisions on the qualifications of the eligible organizations. The All China Environment Federation, for example, is a nationwide non-profit environmental civil society organization. The organization brought eight environmental public interest lawsuits throughout China in the year 2013 and was rejected by all the courts as an unqualified plaintiff. (Yin, supra. All China Environment Federation website (last visited Sept. 25, 2014).)

In April 2014, the Environmental Protection Law was amended to clearly regulate the qualifications of the organizations that may bring environmental public interest lawsuits. That revised Law will enter into effect on January 1, 2015. According to its provisions, social organizations satisfying the following conditions may file lawsuits with the courts against acts that pollute the environment or cause ecological damage that harms the public interest:

(1) the groups must be registered with a government civil affairs department at or above the level of a city with districts; and

(2) the groups must have been engaged specifically in public service activities in environmental protection for five consecutive years without any record of violation of the law. (Laney Zhang, China: Environmental Protection Law Revised, GLOBAL LEGAL MONITOR (June 6, 2014).)

In the Taizhou Case, the plaintiff, the Taizhou Environment Federation, was founded in February 2014; it therefore does not satisfy the qualification requirement of the amended Environmental Protection Law that a group have been engaged in environmental protection activities for five consecutive years. (Yin, supra.) The court may have decided, because the amended Law has not entered into effect yet, that it did not apply to the Taizhou case and based its decision on the general provisions of the Civil Procedure Law.