Green NGOs Win China's First Environmental Public Interest Litigation: The Nanping Case

• Date: 01 December 2015

45 ELR 11102 ENVIRONMENTAL LAW REPORTER 12-2015

C O M M E N T U P D A T E

Green NGOs Win China’s First

Environmental Public Interest

Litigation: The Nanping Case

by Yanmei Lin and Jack Tuholske

Yanmei Lin is an Associate Professor of Law and Associate Director at U.S.-Asia Partnerships for

Environmental Law at Vermont Law School. Jack Tuholske is Director of the Vermont Law School

Water and Justice Program and a Technical Advisor to the Partnerships program.

The September 2015 issue of News & Analysis looked

at China’s new Environmental Protection L aw,

including the rst environmental public interest

litigation (EPIL) case heard under it, the “Nanping ca se.”1

On October 29, 2015, the court ruled in t he environmen-

talists’ favor.2 e decision sends a strong signal that Chi-

nese courts have jurisdiction to enforce environmental laws

beyond awarding money damages for pollution injuries. It

may also signal a more active role for Chinese courts and

nongovernmental organizations (NGOs) in protecting

natural resources.

The Ruling

e court held the four defendants liable for damaging

1.89 hectares of forestry land due to illegal mining opera-

tions. e court ordered t he defendants to remove min-

ing materials and waste rock from the damaged site, to

restore the site by planting new trees, and to ensure suc-

cessful reforestation for three years. If they fail to comply

with the court order, the defendants will have to pay 1.1

million yuan ($180,000) to a special account designated

by the court for site remediation. e court also held the

defendants liable for 1.27 million yuan ($200,000) in eco-

logical interim losses, to be paid into a remediation account

for other ecological restoration projects. Finally, the court

awarded the plaintis expert consultation fees for assessing

damages (6,000 yuan, $968), attorneys fees (121,461 yuan,

$19,590), and litigation costs (38,702 yuan, $6,450). ere

were ve key issues decided by the court relevant to NGOs.

Standing: Article 58 of the new Environmental Protection

Law provides that Chinese social organizations can bring

suits on behalf of the public interest in situations involving

1. Yanmei Lin & Jack Tuholske, Field Notes From the Far East: China’s New

Public Interest Environmental Protection Law in Action, 45 ELR 20855 (Sept.

2015).

2. Friends of Nature, Fujian Green Home v. Xie Zhijin et al., Nan Min Chu

Zi No. 38 (Nanping Intermediate People’s Ct. Oct. 29, 2015).

pollution or ecological damage if the organizations: (1)reg-

istered w ith the civil aairs departments at or above the

municipal level within the d istrict; a nd (2) specia lized in

environmental protection public interest activities for ve

or more consecutive years.

Even though plainti Friends of Nature (FON) had

not technically been registered for ve years when it rst

led the c ase on December 4, 2014, the court held it had

standing because FON had been engaged in environmen-

tal protection public interest activities prior to registering,

and it met the ve-year registration requirement during the

adjudication of this case.

Defendants’ Liability: e court held that the defendants’

mining activities constituted ecological destruction harm-

ing the public interest for which they should bear joint and

several tort liability. Although the defendants claimed they

received “verbal approval” from loca l ocials, they lacked

the proper permits to clear trees and start mining opera-

tions. e court found irrelevant the defendants’ two pieces

of evidence they claimed legitimized the unpermitted min-

ing: meeting notes and an investiment policy notice.

Remedies: e key issue with regard to remedies wa s

whether the Supreme People’s Court’s (SPC’s) judicial

interpretation on EPIL could be applied to this case.3

Although the SPC’s interpretation was not eective until

January 7, 2015, years after the mining sta rted, the court

held that the judicial interpretation applied because there

was no clear rule denying liability on this matter when

the defendants’ actions occurred. e new law, however,

only supports interim losses of service functions during

the recovery of ecological environment. As such, FON and

Fujian Green Home, the second plainti NGO in the case,

3. SPC, I R C I R  A-

   L  E C P I L

(Jan. 7, 2015). Article 21 provides: Where plainti requests defendant to

aord damage of interim losses of service functions during the recovery of

ecological environment, people’s courts should support it according to law.

Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.