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Hundreds of campaign groups in China have been granted the unprecedented right to bring legal action over environmental damage
The number of NGOs in China concerned with environmental protection has grown significantly in the past decade. According to Liao Hong, vice-director of the Ministry of Civil Affairs, there are now 569,000 licensed NGOs in China, with about 7,000 registered as groups campaigning on environmental issues. This is a conservative estimate and does not include the plethora of unlicensed NGOs and ad hoc activist groups focusing on environmental issues at both the national and local level.
However, it’s long been debated what exactly environmental NGOs can actually do in China. Campaigns are possible, but often restricted; mass gatherings, protests and rallies are virtually always deemed illegal; and perhaps most importantly, the ability of an NGO – whether registered or not, international or domestic – to actually seek prosecution against a Chinese enterprise for breaching environmental regulations has been almost non-existent in China’s arcane and highly politicised legal system.
That has changed somewhat in 2015. In December 2014, the Ministry of Civil Affairs approved 700 NGOs as eligible to launch public interest litigation over violations of environmental law. This is the first time any NGOs have been granted the legal status necessary to take violators to court, rather than simply report violations to the authorities. Seven hundred may only be one-tenth of registered NGOs but, looking on the bright side, it is a start.
The Beijing-based Friends of Nature and Fujian province-based NGO Green Home tested the new legislation with a lawsuit, lodged on 1 January this year in Fujian’s Nanping Intermediate People’s Court, against four mine operators accused of carrying out illegal mining activities since 2008 in a mountainous area of natural beauty and environmental conservation. The case lasted a couple of days and resulted in what Zhang Boju, Friends of Nature’s secretary general, believed was a win for the NGOs: three of the mine operators received custodial sentences for infringing environmental damage laws. The NGOs are now pursuing the case, arguing that the accused mining companies should, now they have been found guilty, be forced to pay to restore the area to its previous uncontaminated condition.
Still, legal experts in China are not expecting a flood of lawsuits despite the many, many instances of environmental degradation by commercial enterprises across the country. Even with lawyers working pro bono, fighting cases – many of which are expected to last substantially longer than the case in Fujian – will still be costly, and some will stall if the accused have strong local and central government connections. While Friends of Nature is a relatively wealthy official NGO and has been able to put aside a 300,000 yuan (close to $50,000) “war chest” to fund five lawsuits, few of the other 700 NGOs have these sorts of resources. And there are other issues that will be problematic or remain unclear.
Among these are whether or not NGOs could use funds received from overseas. In the past, there have been issues with accusations of “illegal fundraising” leading to the closure of NGOs. Similarly, there are transparency issues around who oversees the allocation and accounting of funds awarded by the courts as compensation. At present, China lacks any independent agencies that specialise in damage evaluation costings. In addition to this, one Chinese environmentalist told me that it would be problematic to give the compensation payments to local authorities in China as they are all too often complicit in the environmental degradation in the first place. Yet, there is currently nobody in between to handle this process.
And as anyone who has spent any time in a Chinese court pursuing a claim for damages knows well, winning the decision and actually getting the money out of the defendant are two very different things. Additional costs are invariably incurred, and additional court time required, to chase recalcitrant defendants in a civil justice system where enforcement has long been a major Achilles’ heel.
Still, these are early days, and the new regulations are yet to be tested fully. In 2014, just before these new regulations came into force, Chinese premier Li Keqiang announced that China was “declaring war” against pollution. This year sees a new legal front opened in that war, with NGOs bringing lawsuits. As the cases come before the judges, we’ll see just how well the law works and whether these changes add a crucial weapon to an NGO’s armoury, or simply lead to more NGO-government clashes and shutdowns.Asia column China environmental briefing NGO investigations ngo news
May 2015, Singapore
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