The Voice of the Polluted
With industrial pollution still on the increase nationwide, China’s environmental lawyers are uniting to provide free legal aid for its victims
Since April, environmental activists took to the Internet to urge the Zhongxiang City Court in Hubei Province to release two villagers arrested for blackmail.
Yu Dinghai and Wei Kaizu, two of a large number of local victims of environmental pollution caused by Dasheng Chemical, a local sulfuric acid production and phosphate mining factory in nearby Liuchong Village, were arrested in September 2012 and charged with blackmailing the company.
“We are not just fighting for an individual case – we volunteer to defend [Yu and Wei] for the sake of protecting any victims of pollution in China who may someday be framed by their polluters,” Zeng Xiangbin, a Wuhan-based environmental activist and Yu and Wei’s defense counsel, said in late June.
Zeng, a lawyer in his late forties, has made a career out of defending disadvantaged farmers whose land has been polluted, in their struggle against local industry and government officials.
In early April, before Wei and Yu’s trial opened at the local court, Zeng went to Liuchong village to examine the environmental damage caused by Dasheng Chemical. Local villagers blamed the chemical plant, which had been in operation for over a decade, for their withered crops, dying trees, polluted water and declining health. Each day, a crew of trucks leaves the factory to dump the industrial byproduct of phosphate fertilizer, which contains carcinogenic chemicals like arsenic and cadmium, onto a heap of ash in the nearby river valley.
Ever since 2010, farmers affected by the pollution have assembled to protest at the Dasheng factory gates, and have even made several trips to Beijing to petition the central authorities. Facing pressure from the provincial government, Dasheng Chemical finally agreed to compensate affected farmers. In August 2011, Wei and Yu became the first two farmers to be reimbursed for their lost livestock and crops due to the pollution. However, when other villagers failed to receive compensation from the factory as promised, the protests continued.
According to Yao Chengying, wife of Wei Kaizu, the local government was caught off guard and immediately arrested Wei and Yu, accusing them of blackmailing Dasheng Chemical – Yao believes this was meant to send a warning to the other protesting farmers. Yao and other villagers believe the two men are being framed by the local government, which owns a stake in Dasheng Chemical, in order to appease the company’s management.
When Zeng Xiangbin heard about the case, he realized that it could be a milestone in the world of legal environmental affairs nationwide. “If the two are not properly defended and do not win their freedom, it will be difficult to encourage pollution victims to speak up in future,” Zeng said.
Zeng soon enlisted the participation and support of more than twenty lawyers from seven different provinces, forming a pro bono legal counsel coalition to assist in the Zhongxiang case. “Polluters tend to be powerful and aggressive, which makes most lawyers unwilling to get involved in environmental lawsuits,” Zeng continued. “Although there are only a small number of experienced environmental lawyers in China, it is now necessary to combine their individual efforts and establish a network to protect civil rights.”
In Zeng’s opinion, in addition to the provision of mutual support, a national network would be better equipped to circumvent pressure from local governments or judiciary. “Since I am a local lawyer in Hubei, if the Hubei Provincial Department of Justice pressures me or prohibits me from taking part in a certain lawsuit, I could ask lawyer friends from other provinces to take the case.”
The Zhongxiang case, the first case taken on by the coalition, became the subject of a forum in Beijing held in April, where environmental NGOs and lawyers came together to discuss possible approaches to the issue.
Yu and Wei’s cases were opened in Zhongxiang City Court on April 26 and 27 respectively. Two months later, no verdict has yet been announced.
“We predict the Zhongxiang city court will find them guilty. Nevertheless, we will continue to appeal, and I firmly believe the final result will be ‘not guilty,’” said Zeng.
Pro Bono Crusaders
Zeng cooperates with the well-known domestic environmental NGO, Friends of Nature (FON – not affiliated with the Austrian NGO of the same name), and acts as its legal representative. The Zhongxiang case was not his first attempt at filing an environmental public interest lawsuit. In 2011, Zeng, representing FON, filed a lawsuit against Luliang Chemical Industry, a company accused of dumping more than 5000 metric tons of highly toxic chromium waste in three townships of Qujing, in southwest China’s Yunnan province. The case was regarded as a landmark suit, since according to the Civil Procedure Law at the time, social groups without government accreditation could not independently file environmental litigation in the public interest.
Three decades of rapid economic development in China has left much of the nation’s countryside – the source of China’s food supply – contaminated with toxic chemicals, and 80 percent more Chinese people suffer cancer than 30 years ago. Chemical emissions from factories are often blamed for particular cancers among residents in affected areas and “cancer villages” have become a widely reported phenomenon in recent years.
As environmental pollution incidents have become more numerous and complex over the past two decades, so have the environmental disputes dealt with by the legal system. This has also stimulated the emergence of professional legal aid organizations providing legal aid to people and communities injured by pollution across the country. In 1998, Wang Canfa, a professor at the China University of Political Science and Law, established the Beijing-based Center for Legal Assistance to Pollution Victims (CLAPV), the first of its kind. The center has handled more than 280 cases, and Wang was included in TIME magazine’s “Heroes of the Environment” list in 2007.
Aside from NGO-sponsored legal assistance, since mid-2000 there has been a continued acceleration in the implementation of government-sponsored legal aid programs for environmental lawsuits. The All China Environment Federation (ACEF), affiliated with the Ministry of the Environment, was set up in 2005 with financial support from the Chinese government and sporadic funding from international organizations such as the United Nations Environment Programme, ACEF provides legal aid to victims of pollution and offers training to volunteer environmental lawyers. Ma Yong, ACEF’s chief litigator, said : “A three-day training program for environmental lawyers has been held twice every year since 2006 in different parts of the country, and so far a total of 233 lawyers have undergone training.” According to Ma, lawyers from various different provinces in China have formed a large network with the necessary training to work pro bono on environment pollution lawsuits.
ACEF receives an average 200 complaints every year, and so far it has taken on 560 cases with 298 resolved either through mediation or lawsuits. Since Ma’s resources are limited, he gives priority to cases that have “caused severe damage to locals’ health, widespread pollution in the region or even mass unrest,” sending “suggestion letters” to local governments or environmental protection departments in less serious cases.
Zhao Jingwei, a lawyer with Yingke Law Firm in Beijing, seeks to cooperate with ACEF in providing pro bono services to victims of pollution. In late 2011, he represented 107 fishermen from Hebei Province who filed a lawsuit against ConocoPhillips, the US company involved in the devastating Bohai Bay oil spill.
According to Zhao Jingwei, after ACEF receives a complaint from pollution victims and decides to sue the polluter, the organization will ask for his help or the help of other volunteer lawyers. He then begins the lengthy process of evidence collection and accreditation, before filing the lawsuit. Zhao said that environmental lawsuits can take years to be resolved, sometimes being postponed indefinitely.
Zhou Ke, a professor at the Law School of Beijing’s Renmin University, pointed out that placing all hope of solving environmental problems in litigation highlights the failure of the government to address environmental problems with administrative measures.
But Zhao Jingwei remains optimistic: “The participation of lawyers in environmental public interest lawsuits has gained recognition from the political system, and since 2007, over 90 local environmental protection courts have been established in China.”
Environment lawyers who offer pro bono services often need to cooperate with environmental organizations, who provide them with funding for basic expenditure and personnel such as scientists, lab technicians, and PR staff.
Due to the scarcity of funds, environmental lawyers cannot make a living through environmental protection lawsuits. Zhang Jingjing, former deputy director of the China chapter of PILnet (a global public interest law network), said in early July that in the US, environment NGOs like NRDC and Earth Justice employ a large number of professional lawyers focusing on environmental lawsuits. “But in China, there are hardly any lawyers who work full-time for domestic NGOs. Overall, Chinese NGOs are weak in numbers and influence, and lack funds.”
Although more and more environmental lawyers are willing to join the nationwide campaign, few can expect to make a career out of their endeavors. “As far as I know, there are only a dozen [environmental] lawyers driven purely by personal idealism who are actively involved in environmental public interest affairs in China,” said Zhang Jingjing.
While more and more companies are polluting the environment, environmental lawyers complain that it is becoming even more difficult to win justice for their clients, or even file a lawsuit against a local polluter. For most lawyers, the biggest frustration is interference in the judicial process from local officials, in order to protect local industries.
“Environment public interest lawsuits cannot change the current situation of excessive pollution. Unfortunately, since victims of pollution are unable to file ‘private interest’ lawsuits, there are more and more of these kinds of lawsuits appearing,” said Zeng Xiangbin. “Anger over unchecked environmental destruction is one of the main sources of rural unrest in China, often causing environmental mass protests against the local government’s approval of constructing chemical plants. Ironically, the largest of these protests are often successful.”
As environment cases are increasing in the public eye, environment public interest lawsuits are also beginning to gain weight in China’s justice system.
Before 2012, by China’s Civil Procedure Law, the plaintiff must be someone whose personal or property rights have been directly damaged by “illegal behavior.” Thanks to many years of effort on the part of environmental lawyers, the Civil Procedure Law was revised and formally implemented on January 1, 2013, including rules for “public litigation”: in cases involving environmental pollution, violation of consumers’ legal rights and other behavior that damages social and public interests, legally stipulated bodies and related organizations can file litigation through China’s court system.
This official recognition of environmental public interest lawsuits was hailed as a dramatic step forward achieved through the joint efforts of environmental protection activists.
However, recent proposals for a new environmental protection law, still under discussion at press time, move to hand over the right to public litigation entirely to ACEF and its member associations at the provincial and municipal levels. Were this new proposal to pass, it would prevent other grassroots environmental organizations and individual citizens from suing polluters.
“To limit the rights for environment public interest lawsuits to a single organization is prejudicial towards other social groups, and I would not agree with it,” commented Wang Xi, director of the Environmental and Resources Law Institute at Shanghai Jiaotong University.
Xu Xin, law professor at Beijing Institute of Technology, has publicly claimed that legally registered environmental groups and all related public interest organizations should enjoy equal rights to file environmental lawsuits.
“Why is the government-backed ACEF allowed to represent the people, while NGOs like FON cannot?” said Zeng Xiangbin. “The revised content may have been drafted by the Ministry of Environment in order to endow its own agency with more power.”
After the issue became known, both the public interest lawyers’ coalition and FON immediately wrote open letters urging the Standing Committee of the National People’s Congress to reconsider the amendment to the Environment Protection Law. Zeng is now concentrating all his efforts on the Zhongxiang case, hoping that it will be the first of many successes, and that the public interest lawyer coalition will be able to encourage pollution management, as well as the transfer of certain responsibilities from the local government and environmental protection bureau to private organizations.
Since April, Zeng Xiangbin’s environmental public interests lawyer coalition has received more than ten requests from different parts of the country, seeking legal assistance in filing environmental public interest lawsuits.
“The current situation for environmental lawsuits is awkward – on one hand, most lawyers do not want to take environment case since they are hard to win, rarely lucrative, and in most circumstances, attract pressure from the local government. On the other hand, surging numbers of pollution victims are in urgent need of legal aid,” Zeng said. “The result of the Zhongxiang case will be a crucial one for the future of environmental pollution civil rights protection.”
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Sep 2011 | Submitted by Brian Snelson
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