TOP LAWYER USING YUNNAN ENVIRONMENTAL COURTS TO EXPAND

C O N F I D E N T I A L SECTION 01 OF 04 CHENGDU 000230

SIPDIS

BANGKOK FOR USAID

E.O. 12958: DECL: 10/16/2029
TAGS: SENV PGOV PHUM CH
SUBJECT: TOP LAWYER USING YUNNAN ENVIRONMENTAL COURTS TO EXPAND
PUBLIC INTEREST LITIGATION

REF: SHANGHAI 90

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CLASSIFIED BY: David E. Brown, Consul General, U.S. Consulate
General Chengdu.
REASON: 1.4 (b),(d)

1. (C) Summary: An open-minded chief judge and new guidance for
environmental courts make Yunnan Province the logical place to
pursue public interest environmental litigation, one of China's
top public interest lawyers said. Similar courts and early
cases in Guizhou and Jiangsu have set new precedents for who can
file cases, with Yunnan ready to take the next step by allowing
NGOs to bring suits. "Real" NGOs, however, are hard to come by
in China, most actually being registered as businesses. Other
options, such as cooperatives and not-for-profits may exist.
China's "perfect" constitution, which already enshrines
necessary rights, and an evolving set of laws redefining burden
of proof and other basic legal questions, provide tools for
public interest lawyers to work with, if they dare. An emerging
class of such lawyers provides hope, and the prospects for
environmental litigation in China look good, she said. The USG
could help by sending judges experienced in environmental cases
to help train Yunnan's judges. End Summary.


2. (C) PolEconOff met October 10 in Chengdu with Zhang Jingjing
(protect),Beijing-based China Deputy Country Director and
Environmental Lawyer with the American NGO Public Interest Law
Institute (PILI). Zhang is a former PILI fellow herself at
Columbia University Law School and former Director of Litigation
at the Center for Legal Assistance to Pollution Victims (CLAPV)
in Beijing, where she gained notoriety domestically and
internationally as one of the top public interest lawyers in
China. PolEconOff first met Zhang after a June 18 talk she gave
at the Wilson Center in Washington on whether environmental laws
and litigation could solve water crises in China, views from
which are included here, before seeing her again while she was
visiting her hometown of Chengdu.


3. (U) This report also summarizes information from several
detailed articles and blogs by expert lawyers and scholars who
follow closely the evolution of environmental law in China,
including www.chinaenvironmentallaw.com and www.greenlaw.org.cn,
whose views track closely with Zhang's.

The Challenges of Environmental Litigation in China
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4. (C) Zhang, who in her previous work with CLAPV gained
extensive experience trying environmental cases across China --
with a one-in-three success rate -- laments the challenges of
trying environmental cases at the current stage of China's
judicial development. China lacks an independent judiciary and
has failed to implement good laws, cases are slow and expensive
to pursue, environmental NGOs are undeveloped, and the people
have no trust in the country's legal system, she said. Most
importantly, there is virtually no public interest litigation in
China. However, the establishment of environmental courts in
several provinces, issuance of new Yunnan regulations, and a
proactive stance taken by Yunnan's Chief Judge, all offer hope.
(Note: Separate recent meetings by PolEconOffs with well-known
environmental activists Yu Xiaogang and Wu Dengming elicited
similar hopeful sentiments for the prospects of environmental
litigation, particularly in SW China. End Note.)

Wuxi Environmental Court Sets Precedent
--------------


5. (U) Although the first "environmental courts" (trial
divisions) in China were actually established in Guizhou
Province (see para 6),the first significant case with regard to
environmental public interest litigation actually occurred in
Wuxi, Jiangsu Province. In May 2008, the Wuxi People's Court
established a Trial Division of Environmental Protection
(reftel). An expert on Greenlaw wrote that while such courts
were initially viewed with skepticism as being established just
to show government action in the wake of environmental
accidents, they in fact are turning out to be much more
interesting. In July 2008, the new Wuxi division accepted a
filing for its first case, All-China Environmental Federation
(ACEF) vs. Jiangyin Port Container. The case set a precedent
for who could have standing in environmental lawsuits by
allowing an environmental group to file. The catch, however, is
that ACEF is not technically an NGO, but rather a
government-organized NGO (GONGO, also referred to as a
"quasi-official organization"),officially under the Ministry of
Environmental Protection, and therefore with government backing
that regular NGOs would not have.


6. (U) In November 2008, the court issued regulations on
environmental public interest litigation that, according to a
May 2009 Greenlaw article, introduced "an innovative system by

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which the Procuratorate urges relevant government bureaus to
fulfill their environmental responsibilities by bringing
lawsuits before the court," and which also allows pollution
victims to join environmental public interest litigation as
third parties. The court, however, has yet to hear any actual
litigation cases, but rather has focused on administrative
non-litigation cases -- which the author deemed as prudent
thinking.

Guizhou Goes Further, Allows GONGO to Sue Government
-------------- --------------


7. (U) Of greater significance was a case accepted by the Trial
Division of Environment Protection within the Guiyang
Intermediate People's Court in August 2009. (Guizhou
established the court in November 2007, followed shortly
thereafter by a second court in Qingzhen.) The case, which
gained international attention via an AP story picked up by the
New York Times, set a further precedent by allowing the ACEF to
sue an actual government body, the Guizhou Province Land and
Resources Administration. The Guiyang court, in the opinion of
the Greenlaw article's author, "can be considered to have made
the boldest judicial attempts in advancing public interest
litigation by the environmental courts."


8. (C) Zhang offered a cooler response, however, complaining
that this was not a particularly difficult case and that while
the ACEF would say they are being "strategic" by picking less
sensitive issues, as a GONGO they are not willing to take on the
tough cases. The ACEF speaks of itself as an NGO and wants to
be seen as a leader in civil society, she said, but the reality
remains that it is extremely difficult for a real NGO to file an
environmental case because they have yet to be given standing.
An expert on Greenlaw offered a similar view, arguing that the
real breakthrough will be when a non-government affiliated NGO
is allowed to file.

Sidebar: Zhang's Goal is Litigation, Not Mediation
-------------- --------------


9. (C) A significant aspect to the Guiyang case, according to
Zhang, is that it was settled through "mediation" by the judge.
There was no actual compensation and the defendant just had to
promise to "do better in the future." This concept of
"mediation" in China's courts, which differs from that used in
U.S. courts, she explained, was advanced by current Chief
Justice and President of the Supreme People's Court Wang
Shengjun, known for a recent speech reminding judges that their
first duty is to serve the interests of the Party and the state.
Chief Justice Wang, whom Zhang says has "no legal training
whatsoever," claims mediation is the best way to build a
harmonious society. In reality, this is just a political way to
"shoo away" cases, Zhang said. Judges are allowed to "mediate"
at several points in the course of a case, but in fact the judge
can use this mediation to convince plaintiffs to drop their
cases. Zhang emphasized that her goal, and that of others with
whom she finds common cause, is to advance the rule of law
through litigation, not alternative dispute resolution (ADR).

Enter Yunnan: New Regulations Say Any NGO Can File
-------------- --------------


10. (C) Yunnan Province, arguably the most important area for
environmental issues in China, established environmental
divisions within the Kunming Intermediate Court and Yuxi
Intermediate Court in December 2008, followed later by
additional environmental courts in Chengjiang and Tonghai.
According to Greenlaw, the province is also considering
establishing courts in Dali and three other locations. In
Zhang's view, Yunnan could be the key to advancing environmental
litigation as environmental protection is a real priority of the
provincial government, and the province's Chief Justice, former
Wuhan University professor Xu Qianfei, is open-minded. After
hearing some preliminary cases, provincial officials held a
discussion in May on promoting environmental courts throughout
the province and agreed that the minutes from the meeting would
stand as a guide for future activity.


11. (C) The Yunnan "judicial guide," as the minutes have come to
be known, raises several interesting points, according to
Greenlaw experts, including standing, types of cases to be
heard, burden of proof, and litigation fees. Perhaps the most
important issue, Zhang said, is who has standing to file. The
Yunnan Provincial Court "opened the door" in the guide by saying
all legally registered social organizations (shehui tuanti, the
legal term used for NGOs) can file public interest environmental

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cases with the Kunming Intermediate Court. This makes Yunnan
the first court to issue language affirming that environmental
protection organizations, including those without government
backing, can have standing as plaintiffs. (It does not,
however, allow individuals to have standing in cases other than
where they have been directly harmed, or explicitly allow for
class actions.)


12. (C) What Zhang hopes to do, she said, is make use of these
new regulations by finding NGOs willing to sue the government or
a specific polluter in a relevant case. Contrasting this with
previous cases she has handled representing over a thousand
individuals jointly suing as victims, she offered the example of
illegal logging as to why this is so important -- as state-owned
land, no individual can sue on behalf of the forest. Allowing
an NGO to file, however, opens up new possibilities.

But "Real" NGOs are Rare, Are There Other Options?
-------------- --------------


13. (C) There are few "real" NGOs in China, Zhang pointed out,
as many social organizations register instead as businesses or
business representative offices for convenience. Others are in
fact university institutes. This makes Zhang's goal of finding
qualified NGOs she can encourage to file relevant cases quite
difficult. One option, she said, might be agricultural
cooperatives (nongcun hezhuoshe),as they are actually
considered companies under Chinese law, and Zhang hopes to see
if a public interest law case filed by one of these "companies"
would be accepted. Just getting cases accepted by the courts is
a good start, even if they go nowhere, Zhang said.


14. (C) A third possibility might be nongovernmental,
noncommercial enterprises (minban feiqiye, or NGNCEs),which are
also governed by the 1998 regulations on social organizations.
These organizations tend to be service providers such as
schools, hospitals, or sports organizations which are allowed to
make a profit. The environmental courts might allow this type
of organization to have standing, Zhang said. One of the
current PILI fellows, she added, is working on drafting a
proposed regulation to allow legal-aid lawyers to register as
not-for-profits. Foundations (jijinhui),she notes, are
governed by a separate set of regulations issued in 2004 and so
would not be as appropriate for testing the courts' willingness
to allow NGOs to file.

China's "Perfect" Constitution; Slow Legal Evolution
-------------- --------------


15. (C) In the past 60 years, Zhang said, only one case in China
has ever cited constitutional law -- a case in Shandong Province
involving education rights in which the judge referenced the
right to education enshrined in China's constitution. No one
dared question the judge for citing the constitution to defend
such a basic right, she said. Zhang hopes other brave judges
will eventually make similar moves, utilizing the "perfect"
constitution China already has in place that enshrines all
manner of rights.


16. (C) At the same time, China continues to upgrade its laws in
ways that should make environmental public interest litigation
easier, Zhang said. On a basic level, the right to file an
environmental law suit is enshrined in the Environmental
Protection Law of 1989, Article 41, which is also held by
scholars to provide for no-fault liability (i.e. violation of
law is not required as a condition for liability). Article 87
of China's Water Pollution Control Law, as amended in 2008,
shifts burden of proof to the alleged polluter to prove reasons
for exemption of liability and to prove absence of a causal
relationship (confirmed in Article 4, Section 3 of the Supreme
People's Court Various Regulations Regarding Evidence for Civil
Suits). Article 88 of the water pollution law, meanwhile, opens
the door for class action cases and legal aid. Other new laws
may help, she added, including the Environmental Impact
Assessment Law of 2003, Solid Waste Pollution Control Law of
2005, the Property Law of 2007 (which could help individuals
file cases),and Government Information Disclosure Law of 2008.
Many lawyers, however, are not yet willing to reference these
laws in their legal briefs, she said.

PILI to Focus on Southwest China
--------------


17. (C) We could not achieve our goals in Beijing, she said,
because it is too sensitive in the capital, but Yunnan is far
from Beijing and has an open-minded chief judge. PILI is

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therefore organizing an October training in Yunnan bringing
together judges, lawyers, journalists, and community
representatives for training on environmental public interest
litigation. The seminar will include a discussion by two Yunnan
judges on why the environmental courts have been established, in
response to a statement by a National Supreme Court judge that
there are not yet enough cases to support these kinds of courts.

Zhang Positive on Prospects for Environmental Litigation
-------------- --------------


18. (C) Zhang is optimistic regarding the prospects for
environmental litigation as an avenue for increasing the rule of
law in China. Of important rights issues, the government is
most tolerant of environmental issues, as officials "breathe the
same air and drink the same water as everyone else." They
therefore cannot reasonably argue there is no pollution, because
it so obvious. Chinese officials also tend to think
environmental issues can be solved with technology, and so
environmental activism is tolerated because it may lead to China
acquiring new technologies, Zhang added. (Note: It is worth
noting in "The River Runs Black," a leading work on China's
environmental challenges, scholar Elizabeth Economy discusses
the importance of environmental movements and litigation as
often forming the vanguard in advancing rule of law, citing
examples in Eastern Europe, and that authoritarian governments
tend to be more tolerant of environmental agitation than other
rights issues. End Note.)


19. (C) An emerging class of public interest and rights
protection lawyers in China also provides hope, Zhang said, as
well as encouragement provided by new legislation and new
technologies for freedom of information that make it easier for
lawyers to collect evidence. She mentioned, for example, that
the freedom of information law has resulted in more government
data being posted online and she often uses this information
from official databases in cases against the government.

Request for USG Assistance with Judicial Training
-------------- --------------


20. (SBU) Zhang made a specific request for the USG to assist by
bringing experienced environmental lawyers to China to conduct
training for judges in the fledgling environmental courts. One
of the judges in Yunnan with whom Zhang has been working told
her, "We aren't professionals, we don't have any training or
real knowledge in this area." PolEconOff agreed to relay this
request to Beijing and Washington.
BROWN