In February 2017, Gu Bojian, a researcher specializing in the subtropical rainforests of China’s Yunnan province, sent an urgent message to Xi Zhinong, a former state television photographer and the founder of Wild China, a nationally renowned nongovernmental organization (NGO) based in Yunnan. Gu had learned from locals that China Hydropower Consulting Group, a central-level, state-owned enterprise, was building a dam on a remote part of Yunnan’s Jiasa River. Gu knew that the Jiasa River valley was the largest remaining habitat of the endangered green peafowl in China, and he warned that the dam would soon flood that habitat.
This was startling news. In China, the green peafowl is traditionally considered a symbol of happiness and auspiciousness. Several decades of environmental degradation caused the green peafowl’s population in China to dwindle to less than 500, and its global population verged on extinction. The new dam project threatened to push the green peafowl over the edge.
Xi rushed down to photograph the dam construction site and the green peafowls in the part of the river valley that was accessible by road. Wild China posted the photos online, sounding the alarm for its vast audience on social media. An uproar ensued.
Friends of Nature Opens Its Legal Toolkit
Thousands of kilometers away in Beijing, Wild China’s posts came to the attention of Friends of Nature, one of China’s oldest environmental NGOs. In preceding years, Friends of Nature was learning to use a variety of legal tools to hold companies accountable for environmental harms. When Friends of Nature attorneys and staff heard about the dam, they immediately decided to use their growing legal advocacy capacity to help protect the green peafowl.
Friends of Nature’s legal toolkit included filing requests for Open Government Information (OGI)—a mechanism akin to a freedom of information act request that China’s State Council established in 2008—to gain access to official records, such as the results of government investigations into pollution levels. Under Article 57 of the Environmental Protection Law (EPL), Friends of Nature also regularly filed complaints with administrative enforcement agencies to bring attention to projects that violated the EPL. The organization also pursued litigation, such as suing government departments to compel satisfactory responses to OGI requests when they withheld disclosure.
In March 2017, Friends of Nature coordinated with other civil society advocates to file a complaint under Article 57 of the EPL against the dam project with the Ministry of Environmental Protection (MEP). If the MEP ignored the complaint, Friends of Nature would not have had any recourse under the EPL to make the MEP respond. However, the MEP had approved the dam’s Environmental Impact Assessment (EIA). The EIA claimed that the green peafowls that had been observed in the area were “merely stopping by” and that no other endangered species inhabited the flood zone in substantial numbers. Both findings would turn out to be untrue.
While working as an environmental lawyer in China, one of the authors commonly encountered inaccuracies in EIAs. One potential explanation for this phenomenon is that project developers hire EIA companies, and these companies often see their main mission as securing government approval for the project rather than conducting a diligent assessment. Another issue is insufficient public participation. Article 21 of the EIA Law states that citizens should have ample opportunity to participate in the EIA process so they can act as independent on-the-ground sources of information. However, in practice, companies often create barriers, such as only publishing a notice about a project on a website that few people will see. Also, the EIA Law does not specify what concrete steps the public participation process must include. For example, under Article 21, public hearings are merely optional. There is no indication that the dam project’s EIA included feedback from local residents or experts like Gu.
How aware the MEP was of the dam’s EIA’s problems at the time of approval remains unclear. Article 34 of the EPL states that MEP officials would have legal liability for approving an inaccurate EIA only if they were derelict in their duties, and proving such dereliction is very difficult. However, the MEP risked looking bad in the eyes of the country’s top leadership and the public if it came to light that it had signed off on an inaccurate EIA for a large ecologically damaging project. So, in May 2017, the MEP organized a closed-door meeting between the dam company, Friends of Nature, the local government whose jurisdiction contained the flood zone, and environmental experts from the Chinese Academy of Sciences’ Kunming Animal Research Institute. At the meeting, Friends of Nature explained that the project would likely lead to the extinction of the green peafowl, which was on the government’s list of endangered species.
In China, Friends of Nature had available to it a special kind of lawsuit called “Environmental Public Interest Litigation” (EPIL). That tool made protecting the green peafowl possible.
The dam company responded that it would conduct further research on the environmental impact of the project, but, in the meantime, it would continue construction. This response was troubling because the company was about to begin cutting down the forest of the river valley and irreparably harm the green peafowls’ habitat. The dam company may have concluded that because it had already obtained all the legally required government approvals, it faced little legal risk.
After the meeting, Friends of Nature decided that time was of the essence and it could not wait for the results of the dam company’s promised research to look into the matter further. Friends of Nature decided not only to sue the dam company for violating the EPL and the Wildlife Protection Law, but also the EIA company for not properly conducting the assessment and thus failing to record the amount of biodiversity in the flood zone in violation of Article 65 of the EPL.
In a U.S. court, Friends of Nature would have had a standing problem because it did not suffer any injury itself, nor was it hired by anyone who had been harmed, like the local residents or (obviously) the green peafowl. In China, however, Friends of Nature had available to it a special kind of lawsuit called “Environmental Public Interest Litigation” (EPIL). That tool made protecting the green peafowl possible.
An Innovative Tool: Environmental Public Interest Litigation
In the early decades of Reform and Opening, which started in the late 1970s, China was almost single-mindedly focused on growing its economy. This pursuit of growth had many costs, including severe environmental degradation. See Xu Wei et al., Assessment of Rural Ecological Environment Development in China’s Moderately Developed Areas: A Case Study of Xinxiang, Henan Province, 193 Env’l Monitoring & Assessment 801 (2021). Over time, public pressure mounted, especially around highly visible issues like air pollution in Beijing, eventually inducing the government to make substantial changes to the EPL in 2014, which had not been revised since it was first adopted in 1989. See Tyler Liu, China’s Revision to the Environmental Protection Law: Challenges to Public Interest Litigation and Solutions for Increasing Public Participation and Transparency, Geo. Wash. J. Energy & Env’t L. 60 (Spring 2015).
Plenty of environmental protection statutes and regulations were on the books before 2014, but enforcement of them was weak. Id. If citizens had been harmed by environmental degradation, they could sue polluters under Article 64 of the EPL, but these lawsuits were extremely difficult and costly and thus rarely happened. Instead, enforcement relied almost exclusively on administrative agencies, like the MEP, who could levy fines and halt or alter development projects. See EPL arts. 59–62. Any citizen could file complaints with environmental protection agencies against problematic projects under EPL Article 57. But citizens could not—and still cannot—legally compel administrative enforcement unless the pollution incident in question affected them.
Moreover, because of the emphasis on economic growth, local officials had little motivation to pursue enforcement of environmental laws. Economic performance largely determined local leaders’ promotion prospects, so local leaders tended to look the other way if businesses that contributed to economic growth were violating environmental protection laws. In addition, the power of these local leaders was far greater than that of the bureaucrats who staffed the environmental protection agencies. As a result, environmental violations ran rampant. See Liangliang Jiang et al., The Determinants of Pollution Levels: Firm-Level Evidence from Chinese Manufacturing, 42 J. Compar. Econ. 118, 119–20 (2014).
The central government eventually came to understand this problem and began considering alternative approaches. Friends of Nature and other civil society organizations saw an opportunity and looked to U.S. citizen suits as a model to suggest to decision-makers in China. With help from legal experts, they wrote research reports and held meetings with policymakers to convince them that giving NGOs standing to sue violators, even if the NGOs had not suffered any harm themselves, would be an effective tool in curbing pollution. This proposition was extremely controversial among government officials. See Liu, supra, at 63–65. Some policy makers thought that NGOs would abuse this power. They worried that NGOs would bring too many meritless suits and overwhelm the court system. On the other hand, certain decision-makers reasoned that if local governments could not reliably enforce the law, then NGOs were the best possibility.
Ultimately, policy makers reached a compromise in the fourth round of draft amendments to the EPL and added Article 58, which stated that NGOs could bring lawsuits against “acts polluting the environment or causing ecological damage in violation of the public interest.” However, only certain NGOs that met stringent criteria could bring these EPIL suits. Article 58 stipulated that the NGOs had to (1) be registered at the municipal level or above, (2) have five years of continuous work on environmental protection, and (3) have no record of illegal behavior. Out of the thousands of environmental NGOs in China, only a few hundred were eligible, mostly because many NGOs could not (and still cannot) meet the first criterion. Friends of Nature, however, met these conditions, and after the new EPL went into effect in 2015, Friends of Nature started to bring many EPIL cases. Because Article 58 is very vague, the only way for Friends of Nature to test EPIL’s use in practice was by bringing pioneering litigation, including to save the green peafowl.
To Court and Beyond
In June 2017, Friends of Nature held a meeting with wildlife, forestry, and ecology experts from universities and research institutes in Yunnan. The experts shared that the flood zone was rich in biodiversity, including green peafowls and other endangered species. They advised that to prevent an ecological disaster, the dam construction must pause at once. They then signed the meeting minutes that summarized their conclusions. Openly disagreeing with the assessment of the MEP and calling for the halting of a large project of a central-level, state-owned enterprise took bravery.
Armed with the experts’ opinions, Friends of Nature then filed a lawsuit against the dam company and the EIA company in July 2017, but it was unsure the court would accept the case. According to Article 126 of the Civil Procedure Law, the court had the right to refuse to hear the case if it believed Friends of Nature had not stated a proper cause of action. Although the EPL said NGOs could bring EPIL for acts “causing ecological damage in violation of the public interest,” and a judicial interpretation by the Supreme People’s Court held that EPIL suits could demand injunctive relief, courts had never heard such an EPIL case before about preventing harm to endangered species. To garner more public support, Friends of Nature posted about the lawsuit on social media. It hoped more public attention and discussion would encourage the court to take the case. After a short delay, the court accepted the case.
The key question in the case against the dam company was whether the dam’s flood zone contained an important habitat for green peafowls. At the time, Friends of Nature lacked enough evidence to effectively counter the dam company’s claim that the green peafowls were “merely stopping by for drinking.” The area’s extreme remoteness meant only a few people had seen green peafowls in their habitat there.
To gather enough evidence to convince the court, Friends of Nature organized several days-long expeditions into the river valley. The road that Xi Zhinong took reached only a small part of the habitat. Friends of Nature would have to go deeper into the valley, so after driving as far as possible, Friends of Nature’s expedition teams took rafts down the river. The journeys were arduous, and even getting to the riverside was difficult. At one point, the road was severely damaged, possibly intentionally, because it had a wide and neatly cut gash that was several feet deep. The expedition team had to fill the trench with stones and fallen branches so the cars could cross.
When the Friends of Nature teams arrived further down the river valley, they documented all the biodiversity they found, including plants, animals, and, of course, the green peafowl.
When the Friends of Nature teams arrived further down the river valley, they documented all the biodiversity they found, including plants, animals, and, of course, the green peafowl. The teams took pictures and videos of the green peafowls eating, drinking, mating, and caring for their young. The evidence showed that the area around the dam was indeed an important green peafowl habitat.
Friends of Nature submitted the evidence it gathered to the court. See Beijing Chaoyang Dist. Friends of Nature Env’t Rsch. Inst. v. Sinohydro Consulting Grp., et al. (2020) Yunnan Province Civil Lawsuit Final Judgment No. 842. Widespread media coverage of the case ensued and stirred discussion. The public sympathized with Friends of Nature, and given the symbolic meaning of green peafowls, citizens reacted strongly in favor of protection when they heard that the treasured birds were in danger.
Then, in July 2017, the MEP sent a letter to the dam company ordering it to assess the project’s ecological impact and submit a report to the MEP before flooding the valley. The MEP, though, did not order the company to stop cutting the forest or constructing the dam. The next month, for reasons never publicly revealed, the company announced it had temporarily stopped the dam project altogether.
Also in August 2017, the Yunnan government announced it would start accepting public comments on how to draw the boundaries of an ecological protection zone in Yunnan province. Friends of Nature submitted its biodiversity research report, arguing that the dam’s planned flood zone should be in the protected area. In June 2018, the Yunnan government formally set up the ecological protection zone in Yunnan province. As Friends of Nature advocated, it included most of the area originally intended to be the dam’s flood zone. See id.
In August 2018, about a year after Friends of Nature had filed the case, the trial began. In court, when the dam company argued that the flood zone was not a green peafowl habitat, its only evidence was the project’s EIA, and the EIA did not explain its claim that green peafowls in the flood zone were only passing through.
To build more momentum for reform, environmental NGOs in China should keep bringing EPIL cases, and environmentalists should advocate for changes in the legal system that will allow civil society to play a bigger role in protecting the environment.
In contrast, Friends of Nature presented its copious and recently collected evidence demonstrating that the green peafowl (and other endangered species) did indeed inhabit the area. Additionally, at Friends of Nature’s request, the court retrieved a report from the Yunnan Department of Forestry, which had launched an investigation after Friends of Nature filed its complaint with the MEP the year before. Although the Department of Forestry had not previously announced this fact publicly, its report had also concluded that the area was home to the green peafowl. The judge also confirmed with the Yunnan Department of Environmental Protection, which was responsible for drawing the boundaries of the ecological protection zone, that the dam was now indeed in the protected area.
The fact that two government bodies were now on the same side as Friends of Nature was very convincing to the court. In March 2020, the court’s judgment ordered that the construction of the dam completely stop immediately. See id. As noted, the dam company had already temporarily ceased the project, but at any time it could have restarted. The court’s judgment put an end to that possibility. The court ruled that the construction could continue only if the company conducted another assessment and then filed the assessment with the Ministry of Ecology and Environment (which was the renamed and reorganized MEP). In the end, the company did not perform the assessment, and the company’s leadership decided to abandon the project in 2020.
As for the EIA company, the court ruled that Friends of Nature had not proved that the company had violated the law, even though it had missed the fact that the area was an important habitat of the green peafowl. The court’s judgment did not expound on its conclusion. However, on appeal, when the High Court of Yunnan upheld the first instance ruling, it explained that Friends of Nature had failed to prove that the EIA company had acted fraudulently, reflecting language in Article 65 of the EPL that seems to require this standard.
It’s a Jungle Out There: The Future of EPIL
This case demonstrates how EPIL is a powerful tool and constitutes a big step forward in improving enforcement of environmental protection laws in China. Acknowledging the exemplary nature of this case, the Supreme People’s Court of China recognized it as a “Guiding Case,” meaning that all Chinese courts should refer to it when judging similar matters of law and fact. See Guiding Case No. 173 (Dec. 3, 2021).
EPIL’s value lies in allowing NGOs to step in when government regulators cannot or will not enforce China’s environmental laws, whether because of lack of capacity or lack of motivation. EPIL also differs qualitatively from top-down government enforcement. NGOs that pursue EPIL often simultaneously engage the public, raising awareness about environmental protection and the rule of law. EPIL is thus a key vehicle for bringing important issues to the Chinese public’s attention that would otherwise go unnoticed and for encouraging Chinese civil society to take a more proactive role in environmental protection.
Nevertheless, EPIL has major limitations. Only a small fraction of China’s many environmental NGOs are eligible to bring EPIL, and the number of EPIL cases that NGOs have brought remain limited. According to the Supreme People’s Court, courts received only 179 EPIL cases brought by NGOs in 2019. See China Env’t & Nat. Res. Trial White Paper 2019 (May 8, 2020). Although that is more than the 58 cases in 2017, it is still quite few. See China Env’t & Nat. Res. Trial White Paper 2017–2018 (Mar. 2, 2019). Unfortunately, after 2019, the Supreme People’s Court ceased publishing these statistics. The number of NGOs that can bring EPIL to address the violations of environmental law that occur all over China needs to expand, including, as in the green peafowl case, in very remote regions.
EPIL should also be expanded to allow NGOs to sue the government if it fails to perform its duties to enforce environmental laws. Compared with NGOs, the government has a much more powerful toolkit for dealing with companies and others who harm the environment. Although Friends of Nature did catalyze government action through advocacy in the green peafowl case, it would be more efficient if NGOs had a legal channel for pushing government action forward.
Other limitations on EPIL reflect broader issues affecting public interest law in China. For example, NGOs in China are quite weak and lack resources. NGOs need more allies and more room to grow if they are to move the needle in protecting China’s environment.
Finally, courts in China are just one set of decision-makers in a larger system with more important decision-makers. The government needs to reform the legal system further to diminish influence on courts from local officials who have various means to exert pressure on them, such as through adjusting court budgets and appointments. For example, there are an increasing number of cross-regional environmental courts in China that are more independent of local governments. The development of cross-regional environmental courts should be encouraged so that EPIL cases can be tried fairly and in accordance with law.
To build more momentum for reform, environmental NGOs in China should keep bringing EPIL cases, and environmentalists should advocate for changes in the legal system that will allow civil society to play a bigger role in protecting the environment. By broadening the capacity for enforcing environmental protection laws in this way, China will be much better able to address the daunting environmental challenges that confront it.