Yunnan Court’s Ruling May Not Stop Damaging Dam, Activists Warn
After a court in southwestern China’s Yunnan province ruled last week that construction on a local hydropower station should be suspended immediately to protect an endangered bird species, the plaintiffs, an environmental nonprofit group, were far from relieved.
The case, filed in 2017 by the Beijing-based environmental organization Friends of Nature and first heard by a court in 2018, is China’s first preventive public interest civil lawsuit aiming to protect endangered wildlife before environmental damage occurs.
On March 20, an intermediate court in Kunming, Yunnan’s provincial capital, ruled that the companies behind the Jiasa River hydropower station along an upper-middle part of the Red River in Yunnan province must halt construction based on the project’s current environmental impact assessment (EIA) report.
The court determined that construction of the hydropower station poses “a significant risk” to the green peafowl, which are active in the area that would become the dam’s reservoir. The current construction plan does not include protective measures for mitigating the environmental impact on the wild birds or the protected plant Cycas chenii, the court said.
However, the verdict said that whether the construction can be resumed will depend on the government’s decision after the dam builders conduct a post-assessment of environmental impact, as stipulated by the Ministry of Ecology and Environment, and adopt the necessary precautions.
“According to our understanding, (the ruling) is a temporary suspension rather than a permanent halt,” said Zhang Boju, the director of Friends of Nature. He told Sixth Tone that the organization has been studying the ruling carefully since receiving it on March 21.
Post-assessments of environmental impact are typically little more than formalities conducted during the construction process, or even after a project is complete.
“It’s a patch to the existing EIA, and it’s nonbinding,” Zhang said, explaining that, unlike the EIA, the post-assessment will not need approval from the local authorities before construction can be resumed. “The so-called post-assessment clause leaves a back door for many projects that fail their environmental impact assessments,” Zhang said.
Following the ruling, four environmental organizations petitioned the Ministry of Ecology and Environment on Wednesday, requesting that the ministry withdraw the hydropower station’s approved environmental impact assessment and retract the order to conduct a post-assessment.
By taking these measures, the organizations hope to stall the construction project indefinitely. “The fight to protect green peafowl has not yet achieved a final victory,” Friends of Nature said in a statement.
Zhang hopes that a permanent halt on construction of the Jiasa River hydropower station will serve as a deterrent to those who would seek short-term profits at the cost of China’s ecological resources and public interest.
Green peafowl are currently listed as “endangered” by the International Union for Conservation of Nature. A recent study found that habitat destruction had fragmented the green peafowl population in China and led to a precipitous decline in numbers: The researchers estimated that there were between 235 and 280 green peafowl roaming the country in 2017, down from 800 to 1,100 two decades before.
When China’s new environmental protection law came into force in 2015, it allowed NGOs to litigate on behalf of the public interest. A judicial interpretation on environmental public interest litigation issued in the same year by the Supreme People’s Court left room for lawsuits aimed at preventing future environmental or ecological damage doing significant harm to the public interest.
The green peafowl case was intended to be a precedent for China’s environmental public interest litigation system to nip ecological damage in the bud rather than seeking remediation, compensation, and recovery afterward, said Zhang.
“After the damage occurs in nature reserves and protected areas with primitive ecosystems, it’s irreversible,” he said. “Even if you win the lawsuit, and the compensation is billions of yuan, it will never bring back the habitat of the green peafowl or the ecosystem that dozens of endangered plants and wildlife called home.”
Filing the case and obtaining evidence remain the biggest challenges in preventive public interest litigation, according to Zhang. “Unlike cases in which environmental damage has already occurred, plaintiffs in preventive cases have to deduce and find supporting evidence to prove the (potential for) environmental risks,” he said, adding that scientific research papers and expert testimony can serve as crucial evidence in preventive litigation.
In the green peafowl case, the environmentalists had to raft to the planned reservoir area and collect evidence. In a similar case in Yunnan’s verdant Xishuangbanna prefecture, security personnel prevented a group of environmentalists from entering the premises to collect evidence, Zhang said.
Zhang hopes future legal policies will shift the burden of proof onto the defendant, as is the case for many civil disputes.
“The defendant should prove that there is no problem,” he said. “If they can’t prove it, then there is a problem — especially when the situation concerns the public and national interest.”
Editor: David Paulk.
(Header image: Green peafowl inhabit the Lancang River Basin in Yunnan province, 2018. Courtesy of Xi Zhinong/Wild China Film)