Dammed If They Don’t

Brought under changes in the Environmental Protection Law which took effect in 2015 that allows NGOs to pursue civil interest litigation against polluters to prevent environmental damage, rather than polluters paying fines to clean up their mess after the fact, Kunming Intermediate People’s Court released its ruling on March 20, halting construction on the project.

 

According to the landmark judgment, the defendant Hydro China Xinping Development Company should immediately cease construction of the Jiasajiang Level 1 Power Station, and is not allowed to block the natural flow of the river or cut down trees in the area that is earmarked to be flooded by the dam’s reservoir. 　

Zhang Boju, secretary-general of Beijing-based environmental NGO Friends of Nature, told NewsChina that the court’s ruling could only be described as having pressed pause on the project, and a resumption of the dam remains possible. 　

Jiasajiang Level 1 Power Station is a key hydropower project in Yuxi, in the upper-middle reaches of the Red River in Yunnan Province. Launched in March 2016, the total cost of the project is estimated at 3.9 billion yuan (US$550 million). 　

Yet field investigations by environmental NGOs and biologists since 2016 discovered that if the dam were to be completed, it would completely inundate the primary habitat for the highly endangered green peafowl, as well as many other rare species such as Cycas chenii, a species of cycad plant that was first discovered in 2015 and which is endemic only to the Red River valley.　

In September 2017, Friends of Nature filed a lawsuit against the companies responsible for developing Jiasajiang, including Xinping which was contracted to build the dam and Kunming Engineering, an offshoot of the Power Construction Corporation of China which had carried out the project’s environmental impact assessment. In August 2018, the court held a hearing. 　

The green peafowl is categorized as a first class national protected wild bird in China. In the 1990s, there were an estimated 1,000 green peafowls in China. The number dwindled significantly and according to a survey conducted by the Kunming Institute of Zoology in 2013 and 2014 in areas where there were historical records of the species, there were fewer than 50 birds, all in Yunnan Province. Cycas chenii is also a first class protected wild plant in China, categorized as critically endangered species on the provincial red list. 　

He told the reporter that when he arrived in the field, villagers mentioned they had spotted a green peafowl in the neighborhood and showed him some feathers. Gu was curious. 　

“The green peafowl is as precious as a giant panda, and it was thought to be already extinct in China,” Gu said.　

As the biggest member of the pheasant family, the green peafowl is listed as endangered on the international IUCN Red List and categorized in Appendix II to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Appendix II lists species that are not necessarily now threatened with extinction but that may become so unless trade is closely controlled.　

The green peafowl is similar to the Indian peafowl. The adult male has brilliant glossy green and black plumage with a long train which can be over one meter long. There is a long upright blue-black crest on its head. The adult female is similar with shorter legs and duller colors. 　

Wang Jian, an associate professor at the Life Science and Technology School at Honghe University, in Mengzi, Yunnan, told NewsChina that the green peafowl is distributed in Southeast Asia with dwindling numbers. In China, the species is now confined to a limited area in Yunnan. In May 2017, Yunnan Provincial Environmental Protection Department released the Yunnan Province Biological Species Red List (2017), which categorized the green peafowl as critically endangered. 　

In the past, the species was also distributed in China in Hubei, Hunan, and Guangdong provinces, and the regions of Guangxi and Tibet. By the 1990s, there were around 800 to 1,000 birds in Yunnan, the Xinhua News Agency reported in May 2018.　

Kong Dejun, an associate professor at the Life Science and Technology Department at Kunming University told Xinhua that they had recorded 183 to 240 green peafowl. “Considering uninvestigated regions where the species might appear, we estimate that the total population of green peafowl is less than 500. At the same time, the number of individuals in one flock has declined from 8 to 15 birds down to 3 to 5,” Kong said. Major threats for the species include habitat loss, hunting, poisoning and dam building. 　

In 2013, Gu Bojian spent 20 days doing field research but failed to spot any green peafowl. At the same time, he learned that a planned hydropower station in the lower reaches of the Red River would ruin one of China’s last unspoiled tropical forests, home to many tropical plants and animals, including the green peafowl. 　

Construction on Jiasajiang Level 1 Power Station called for the river flow to be blocked in November 2017 with the aim of generating power by August 2020. The project’s launch ceremony was held on March 29, 2016. It was listed as a key project by the Yunnan provincial government in 2015. According to the plan, the dam would be 175 meters high and the installed power generation capacity would be 270,000 kilowatts.　

That section of the river valley is the main breeding ground for the green peafowl. Every March and April, during the mating season, they can be spotted frequently. In March 2017, Gu visited the Red River and heard the call of the peafowl. “It was late afternoon when I heard the green peafowl from the deep valley. It was so exciting when the echoing sound of the peafowl was so clear amid the background noise of crickets and insects,” Gu told NewsChina. 　

In order to protect the green peafowl’s habitat, Gu Bojian sought help from Xi Zhinong, founder of Wild China Film and a well-known wildlife photographer and conservationist. 　

On March 15, 2017, Xi and his team went to Xinping to visit the dam construction site. The trip allowed him to spot and film around eight green peafowls, including a peafowl drinking water by the riverside. Wild China Film released an online article headlined “Who Kills the Green Peafowl? China’s Last Complete Resort for the Green Peafowl is Disappearing,” which gained public and media attention. In April 2018, Gu Bojian, for the first time, spotted a green peafowl in the forests in the area. 　

On June 29, Yunnan government released an official document on the “Yunnan Provincial Ecological Preservation Redline,” which listed habitat regions for 26 endangered species, including the green peafowl, to ensure the protection of such areas. Most of the area earmarked for flooding by the reservoir of Jiasajiang dam was within protected areas. 　

On May 8, 2017, the Environmental Impact Assessment Department under the MEP invited the three NGOs, local government officials and the construction company to a meeting in Beijing to share their perspectives on the impact of the hydro station on the green peafowl. 　

At the meeting, the local government and the company said they would conduct investigations into the impact of the dam, but neither said the project would be halted.　

Friends of Nature decided to file a civil suit against both Xinping and Kunming Engineering, requesting an order for both companies to stop making further threats to the survival of the green peafowl, immediately halt construction of the hydropower station, stop blocking the river and flooding the area, and stop cutting trees in the region. 　

On July 21, 2017, the MEP sent an official letter requesting Xinping to stop backing water up behind the dam before it had completed a post-environmental impact assessment and said it should take effective measures to reverse the impact. 　

NewsChina learned that in August 2017, Xinping stopped construction. Xinping responded to NewsChina that because the company realized the impact of the project might lead to an indefinite suspension, it did not conduct its post environmental impact evaluation as required by the MEP.　

The same month, Chuxiong Intermediary People’s Court accepted the lawsuit. He Yini, director for Law and Policy Advocacy at Friends of Nature told NewsChina the evidence gathering process afterward had two main strategies. One was accessing the documents which gave administrative approval for the dam from the local government and the other was on-site evidence from the project area. “The former was much easier to acquire than the latter,” He said. 　

Almost 80 percent of the area to be flooded by the reservoir is uninhabited with no roads. He said a team of 30 experts including biologists, photographers and environmentalists rafted along the river to gain access. “We stayed in that uninhabited area for a few days, camping in the mountains.” On the riverbank, scientists found footprints and feathers left by green peafowls and they captured video of the bird as well. Zhang Boju said they used camera traps and long lenses to capture images of the bird and record its activities. 　

The hearing was held at Kunming Intermediary Court on August 28, 2018. Xi Zhinong and Wang Jian appeared as expert witnesses, telling the court of their experiences seeing the green peafowl in its habitat and presenting their photographic and video evidence. 　

The defendant alleged the habitat of the green peafowl was mainly located in Konglong River Nature Reserve which covers an area of some 10,000 hectares in Chuxiong, while the area that would be flooded is not inside the nature reserve. Friends of Nature presented evidence, including a report on the Konglong River Nature Reserve Readjustment, showing the reserve shrunk by 7.8 percent after its boundaries were adjusted three times since it was set up. According to Friends of Nature, one of the reasons why the nature reserve was made smaller was to make way for the construction of the Jiasajiang hydropower station, since the area that was excluded from the original plan matched exactly the earmarked inundation area of the dam. 　

It was unlikely it would be objective in completing the report, thus it was probable it would downplay the project’s ecological damage in its environmental impact assessment.　

NewsChina found information on Tianyancha, an enterprise information provider, showing that the shareholders in Xinping are Hydro China with 80 percent and Kunming Engineering with 20 percent. 　

According to He Yini, current laws do not prohibit stakeholders in related projects to conduct environmental impact assessments, even if the assessment is vital for preventing ecological damage. 　

“For projects which will potentially cause environmental pollution, a biased environmental impact assessment report might result in pollution during the production process, while the administrative organizations can still control the pollution through supervision and punishment,” He Yini said. “If the environmental impact assessment failed to fulfill a scientific evaluation of wildlife distribution within the area and the potential ecological impact toward species, then these projects will lead to irreversible ecological damage.”　

The lawyer acting on behalf of the plaintiffs told the court that apart from the green peafowl and Cycas chenii, there were a number of national second-class protected plants including some orchid species, as well as second-class protected birds including brown fish owls, black necked pheasants and green bee-eaters distributed in the earmarked reservoir area. Furthermore, the environmental impact assessment did not mention anything about the impact of the project on the rainforest. 　

Zhang Boju told NewsChina the judgment could be interpreted as the court only having paused the project and no one knows if it will resume. “Our main goal is to stop the project permanently, otherwise it will cause damage to these endangered species and their habitats. But now, this is actually not what we expected,” he said. They hoped the court case would put a stop to the dam for good, he said. 　

On March 25, four environmental NGOs, including Friends of Nature, Shan Shui Conservation Center, Wild China Film and the Society of Entrepreneurs and Ecology (SEE) Foundation sent a letter to the Ministry of Ecology and Environment (the new iteration of the MEP), suggesting it withdraw the environmental impact assessment report for Jiasajiang Level 1 Hydro Power Station and order a permanent halt to the construction. 　

Li Chunguang, executive director of Yunnan Lingyun Law Firm told NewsChina that theoretically, if authorities accepted the post-environmental impact assessment in the future, construction on the hydropower project could resume. “But I perceive that after the Covid-19 pandemic, general public awareness toward environmental protection has gained unprecedented strength, thus leading to improved attention from administrative departments to address such issues. I hope environmental authorities will listen to the experts’ suggestions and make a wise decision on this issue. Therefore, I believe the resumption of work would be prolonged and the possibility for the resumption of the construction might be low.”　

Sources told NewsChina that the Jiasajiang hydro project, which had pulled in investment of more than 1 billion yuan (US$141.3m), has already been suspended for some time. After the judgment, a staffer from Xinping said the company had yet to make a decision as to how to proceed - whether to appeal the ruling or follow it and conduct a new environmental assessment. 　

On March 26, Li Shuangjun, who represented Xinping and Kunming Engineering at the hearing told NewsChina: “We haven’t decided yet whether to appeal the court ruling.” 　

Even if there is an appeal, which may anyway uphold the ruling of the first hearing, “any decision on whether construction of the dam will be halted for good will need to come from the government,” said Li Chunguang.