Monday, January 26, 2015

Why the Supreme People’s Court is harnessing the NGO “genie” | Supreme People's Court Monitor

Why the Supreme People’s Court is harnessing the NGO “genie” | Supreme People's Court Monitor:
by Susan Finder
 "Many China observers were surprised to learn that in early January, 2015, the Supreme People’s Court (Court) issued an interpretation on enabling civil society organizations to sue polluters on behalf of the public, when most commentators take the view that those organizations are controlled more tightly than before.  The Court issued it after years of work, analysis, and low numbers of environmental lawsuits (highlighted in my earlier blogpost Tianjin's Environmental Crisis and the Courts), particularly public interest ones. 
 This blogpost explains: what the Interpretation does; what its background is; why the Court is enabling environmental NGOs to file suit; and An assessment of its implications. This blogpost should be read with NRDC Switchboard Barbara Finamore’s blogpost, How China’s Top Court is Encouraging More Lawsuits Against Polluters.

What the interpretation does

The interpretation, entitled “Interpretation on Several Issues Regarding the Application of Law in Public Interest Environmental Civil Litigation (Interpretation) (Chinese original found here and translated here). The Interpretation (like many other Court interpretations) combines court procedural rules with additional rules on liability and other legal standards to put in place a framework for Chinese environmental NGOs to file public interest environmental cases against polluters. It supplements Article 58 of the Environmental Protection Law (amended in 2014) and the 2012 Civil Procedure Law, because neither law had sufficient legal rules to guide local NGOs in bringing and local courts in accepting, hearing, and deciding these lawsuits.

See also: Notice on Implementing the System for Civil Environmental Public-Interest Litigation, January 6, 2015 (SPC, Ministry of civil Affairs, Ministry of Environmental Protection)

The highlights of the Interpretation:

* Broad definition of environmental NGOs that can file suit. At the press conference announcing the Interpretation, the Court spokesman said that a broad definition was adopted so that it would be flexible enough to accommodate additional types of approved non-profit groups. This may be have been done to accommodate contemplated reforms to non-profit institutions;
* Provisions permitting an NGO to seek a court within a provincial boundary but outside the locality of the polluter to hear the case. Because local courts are locally funded, they are often reluctant to hear or decide cases that cause result in judgments against companies that are often substantial contributors to local tax bases. An NGO is also allowed to sue polluters outside of its own locality. This was also highlighted in the same press conference.
* The Interpretation enables injured private parties to piggyback on the NGO’s case, also highlighted by the Court spokesman.
* Several provisions to require court oversight when NGO settles the lawsuit, to guard against intimidation by the polluter, which may be allied with local government.
* The damages the polluter pays are paid into a fund, which is used to compensate those harmed.
* If the defendant polluter refuses to provide information about pollution discharge, the court can presume that the plaintiff’s assertions have been established.
* Several provisions are designed to reduce the costs of litigation to the NGO.
The litigation must not be profit making for the NGO.

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