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2020-04-22 11:53:46 Voices

On March 21, 2020, an intermediate people’s court in the southwestern Yunnan province ordered an immediate halt to land clearance and construction on a hydropower dam across the Jiasa River, which runs from Yunnan through northern Vietnam to the Gulf of Tonkin. The ruling represents a reprieve for the green peafowl, a beautiful but endangered bird species whose largest and most complete habitat in China is situated below the fill line of the dam’s reservoir.

Three years ago, the peafowl’s plight caught the attention of the Beijing-based nonprofit environmental organization where I work, Friends of Nature. We sued to block construction of the dam. In August 2017, the case became China’s first public interest civil lawsuit aimed at averting future environmental damage to wildlife to be heard in court since the Supreme People’s Court issued a judicial interpretation in 2015 allowing such cases to proceed.

In its March ruling, the court ordered the defendant — construction firm Xinping Development — to immediately suspend construction of the dam, not take in or store water, and stop felling plants in the hydropower station’s future reservoir. In accordance with a 2017 Ministry of Ecology and Environment (MEE) order, Xinping must complete an “ex-post” environmental impact assessment, which would require it to identify environmental costs unanticipated in the original environmental assessment and submit any proposed improvements.

Nevertheless, environmentalists are concerned that the ruling will not be enough to save the green peafowl, as the judgment does not directly challenge the government’s decision to approve the project. Rather, it simply halts construction until the builder complies with the outstanding MEE request. And because the MEE doesn’t necessarily have to conduct an in-depth review of Xinping’s ex-post environmental impact assessment before allowing construction to restart, there’s a chance little will change.

Even if the green peafowl has not yet been saved, however, our suit offers valuable lessons for China’s environmental movement, in part by helping fill a gap in China’s legal practice.

An undated photo of a green peafowl, Yunnan province. Courtesy of Xi Zhinong/Wild China Film

An undated photo of a green peafowl, Yunnan province. Courtesy of Xi Zhinong/Wild China Film

A 2015 Supreme People’s Court judicial interpretation gave social organizations such as ours the right to file lawsuits against projects that pose “a significant risk of environmental pollution and ecological destruction harmful to the social public interest.” Yet most environmental lawsuits in China continue to focus on remediating harm caused by illegal behavior, rather than preventing it. There are also no legal provisions or precedents clarifying under what circumstances social organizations can file preventative environmental public interest lawsuits, nor are there guidelines on what evidence they should submit to support their argument.

In addition to reaffirming and elaborating on the right of social organizations to initiate preventive proceedings against projects that may pose a significant risk to the environment, the court in our case tried to fill in some of these procedural gaps.

Traditionally, environmental lawsuits filed after the fact have required plaintiffs to show a causal relationship between the action in question and the environmental consequences. This is hard to do in preventive lawsuits. Recognizing the “uncertainty” involved, the court decreed that the plaintiffs first had to provide evidence that the action could result in “great” or “irreversible” damage. The defendants would then be given a chance to provide reasons why these fears are unfounded or prove the action would cause no such harm.

In doing so, the court followed a rising trend in Chinese judicial practice: taking a more proactive approach to interpreting the law, rather than waiting for a consensus to form. Its decision thus have implications not just for our case, but also for case law and the broader field of legal studies. 

Yet despite this growing boldness and the broader agreement in legal circles that courts should have the final say in most disputes, China’s judiciary remains skittish when it comes to challenging executive power. Our case was no exception.

Most environmental lawsuits in China continue to focus on remediating harm caused by illegal behavior, rather than preventing it.

The MEE has issued two decisions regarding the dam’s construction: one approving the environmental impact assessment submitted by the builders in 2014, and the other requesting an ex-post assessment in 2017. These two decisions loomed large in our suit, since in China the question of whether a civil court is entitled to review administrative decisions remains thorny.

Compounding the problem, social organizations do not have the right to file public interest lawsuits against administrative decisions. All we could do was file multiple petitions with the MEE to withdraw its initial environmental approval and ensuing ex-post environmental impact assessment request, which would have given the court greater latitude in its decision. We were unsuccessful, and the court ultimately based its ruling around the latter environmental impact assessment request.

In this sense, our experiences shone a spotlight on some of the hidden challenges to preventative public interest lawsuits in China. Still, the fact that we were able to get construction of a hydropower station halted for environmental reasons shows that the government’s “eco-civilization” sloganeering isn’t just a political pretense; it hints at a real change in social attitudes and economic decision-making, as well as the power of rational dialogue.

For decades, the potential environmental costs of hydropower were poorly understood, both within government and without, and the technology was pushed as a clean and safe source of power. Even as late as the 1990s, when the Three Gorges Dam was under construction, it remained difficult to challenge this consensus.

Public interest litigation offers an opportunity to open this sensitive topic for discussion. It gives plaintiffs the chance to present solid scientific evidence breaking down the actual environmental and ecological costs of hydropower and to show how the value of unique ecosystems far outweighs the economic benefits of a power plant.

Of course, it’s not just about lawyers: Scientists, the media, and other social forces also have a role to play. Take our case, for example. The threat to the green peafowl was first exposed by a young scientist conducting fieldwork. And because much of the land involved in the case is uninhabited, research data is scarce, so Friends of Nature organized specialists in zoology, botany, and ecology to conduct on-site investigations.

Later, these specialists took the stand as expert witnesses, helping convince the court that the loss of land posed a grave and irreversible risk to the green peafowl’s habitat. We even worked with artists to publicize the bird’s plight at a Beijing press conference.

Although the final outcome is still up in the air, our fight highlights not just a new opportunity for lawyers to push for greater environmental protections in China, but also what can be accomplished when the country’s social forces join together. In that sense, its social impact could prove just as great as its legal significance.

Translator: David Ball; editors: Cai Yineng and Kilian O’Donnell.

(Header image: Green peafowl strut through the Lancang River Basin, Yunnan province, April 24, 2018. Courtesy of Zhuang Xiaosong/Wild China Film)