China’s environmental crackdown

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Una Jefferson: To start off, why has ClientEarth China decided to prioritize this initiative of helping to build up China’s environmental courts?

Dimitri: ClientEarth, is a fairly young organization. We’re about 10 years old now. It started in Europe. In Europe, unlike the United States, there were generally very few public interest lawyers working in Environment. It’s kind of the first organization that really prioritized, environmental public interest litigation, taking governments to court over their failure to achieve air quality objectives and other environmental objectives. ClientEarth, interestingly came to China, just about in 2015 and right at that time, China was about to open up public interest litigation. And so that really was an amazing opportunity.

Una Jefferson: A lot of the groundwork for public interest environmental litigation in China was laid by reforms that were made in 2013, 2014, 2015. How’s it going so far two years in, in terms of the number of cases brought, but also the quality of decisions that have been made so far?

Dimitri: Public interest litigation in China can be split into two main categories. One brought by NGOs and one brought by state prosecutors. NGOs can bring cases against polluters or companies, but not against government. The prosecutors can bring cases against both government and companies, but they tend to focus on government. The number of cases, from NGOs has been sort of steady at around 80 to 100 every year. The number of cases from prosecutors has been much larger, exceeding 10,000. That’s not to say that the NGO cases are not developing very well. In any jurisdiction, a hundred environmental public interest cases being brought by NGO is actually very impressive number. Europe doesn’t see that many cases.

Una Jefferson: Do you have a sense what the relative strengths and weaknesses of NGOs as opposed to government prosecutors for environmental public interest litigation have been in China?

Dimitri: The perception is that NGOs are more independent from government and therefore able to bring cases that might be more politically complicated, whereas prosecutors are a bit more restrained because they more closely affiliated with the courts.

The perception is also that courts and the judiciary in China are still quite closely affiliated with government. So, when the system for the public interest cases being brought by prosecutors was first launched, many legal experts were very critical, questioning the viability of that.

But what experience has shown is that the prosecutors do actually come and bring very exciting and interesting cases. That’s probably got to do with the fact that they have a fairly strong reporting system. So let’s say a higher level prosecutor will say, okay, something has to happen in this particular city or that there’s a problem here. And then the lower level prosecutor will take orders from their superior prosecutor, to go and bring that case, even though that might be still quite problematic for them at the local level, but they just have to do that.

NGOs in China, is still a growing space. It’s a much earlier phase of development than perhaps the United States or Europe. So there are not that many NGOs in China that have the skills and the resources to bring good public interest environmental cases. You need to have a fairly strong financial but also skills basis. And then of course there’s still political problems. If you bring a case against a very strong defendant then for a smaller NGO that might be too risky. So they’ll also think twice before they bring a complicated case.

Una Jefferson: Have you seen any cases so far where the decisions made by environmental courts in China have differed from the environmental policy line of the Central government?

Dimitri: The Central government’s line on environment has been generally very gung-ho. So going for strong environmental action. There are quite a lot of areas where the central government has a position, like climate change for example. The central government says climate change is a major priority and fully backs the Paris Agreement. But then within China, you don’t see any climate change related public interest cases yet.

In the West, NGOs get pretty creative and use corporate law or air pollution law or energy law, to try and bring cases that actually are climate cases. In China there’s one example of such a case, but it’s still pending. There’s an NGO that brought a case against the state grid in Gansu Province that failed to prioritize renewable energy against coal energy.

Una Jefferson: Why is there this difference in attitude towards environmental laws between between the central and local government in China?

Dimitri: At the central level, it’s the Ministry of Environment mandate to fix environmental problems. But on a local level, mayors need to consider all kinds of things like economic development or employment and other social issues. It’s easier for local government officials to be slightly captured by local industry because on a local level there are important players. And so they have a tendency to make decisions that may or may not favor the environment.

Una Jefferson: ClientEarth China has been helping the Supreme People’s Court of China to organize trainings for environmental judges. There were several trainings held last summer. Can you give me a sense of what the content of these trainings has been.

Dimitri: We focus on the topics that the Supreme court is interested in, but we’ve had public interest cases too as environmental judges receive all kinds of cases, not just those brought by NGOs or by prosecutors. So that’s one type of training that we’ve done. We’ve also looked at climate change cases, specifically looking at what kind of climate cases were brought in other jurisdictions. Interestingly for that training, China’s climate envoy, Xie Zhenhua, who was the main negotiator of the Paris Agreement was brought in who spoke to hundreds of environmental judges in China to explain to them that climate change is a threat to China and it’s not just something that China wants to act on because of international pressure.

Una Jefferson: So based on those types of conversations, do you think more climate change cases will be brought in China in the future?

Dimitri: Yeah, I expect that. It’s also possible that there will be a climate change law in China. Responsibility for climate action has moved from one government ministry to the Ministry of Environment. And the Ministry of Environment has a bit more of a legal focus on solving problems. So it’s very likely that we’ll see a climate change law and more generally information disclosure and public participation in climate action in China.

Una Jefferson: China has developed specialized environmental courts. There are several other countries in the world who do this. I know they have some in Australia and some American states and in India, but they’re fairly new. How does a specialized environmental court compare to trying environmental problems in general courts? Are there benefits and drawbacks to each approach or do you think specialized environmental courts are better?

Dimitri: It’s a good thing to have environmental courts because environmental disputes tend to be fairly technically complex, environmental knowledge is pretty complicated. It’s easy for let’s say a generalist judge to perhaps overlook a number of very important issues when trying a case that relates to the environment. And of course many countries, say they we don’t want to have specialized environmental judges because they want all of our judges to fully understand all of these issues. And I just don’t think that’s really a realistic goal. And what you’re seeing in countries that do have environmental courts is that those courts tend to make decisions which are much better for the environment.

If a country is very serious about protecting its environment, then it would do well to develop specialized environmental courts. China now has several hundreds environmental courts at all levels, including the Supreme court and they’re a very interesting force for pushing for further environmental protection, especially through legal means. For example, in China, they work on the interpretation of law. Very often laws in China are a little bit cryptic, they’re a bit more like a set of principles, but then when these actual cases come to court, a judge won’t know how to interpret those principles or rule on it. And so, the Supreme Court in China developed what are called judicial interpretations, which are legally binding documents that set out the procedures and the considerations that a local judges should take into account when trying certain cases. So they actually do have a very important role to play here.

Una Jefferson: Do you have any future involvement with these environmental courts planned? Any future projects?

Dimitri: Yes, many. So every year we do a large training. So the the national environmental judges training in China, we jointly organize. And then we take the supreme court judges and also the provincial level court judges overseas to expose them to best international practices. We’re drafting manuals like books that judges can use as reference materials. And interestingly later this year, we’re going to have a seminar with the Supreme Court on environmental adjudication for the belt and road initiative.

Una Jefferson: So how should environmental disputes in the belt and road projects be resolved?

Dimitri: Well, it’s early days. Environmental governance of the belt and road initiative needs to be strengthened. There are too many environmentally destructive projects in the belt and road or climate unfriendly project. So there’s too many coal fire power plants, for example. And it’s quite foreseeable that there will be a number of environment disputes related to new ports, highways, hydro dams, et cetera. Having some kind of a mechanism for international dispute resolution related to belt and road projects would be very useful. It might also help to focus investors and recipient countries on the need to take such issues into account from the outset.