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China's top level environmental tribunal strengthens lower courts

The head of China's Supreme People's Court's new Environmental and Resources Tribunal explains its work to improve the handling of environmental cases by lower courts ahead of tougher laws in 2015

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China is overhauling environmental protection law, streamlining the court system and issuing implementation guidelines to give people affected by polluted air, soil and water better access to justice (Image by 绿色和平/林克

China has 365 environmental protection courts, collegiate panels and circuit courts – but the number of cases heard is low. For instance, in Jiangsu province, home to the Yangzte River Basin industrial belt, over 50,000 enviromental complaints and petitions were made, yet only 85 cases were resolved through the courts. At the 4th Environmental Justice Forum on September 18 to 19, almost all local courts complained of a lack of cases to hear.

To solve such problems, the Supreme People’s Court is fostering greater specialization in the administration of environmental justice. In June, it founded a Tribunal to deal with environmental cases, appointing Guo Xuelin to lead the Tribunal. 

Guo discussed the Tribunal's priorities in a recent interview with Southern Weekend newspaper.

SW: What has the tribunal done since being founded?

Guo Xuelin (Guo): First, on July 3 a document was published providing the Supreme People’s Court’s guidance on how to improve the handling of environmental cases, in order to provide judical backing for the construction of an ecologically-civilized society. Also, lower-level courts have been helped and encouraged to set up systems for hearing environmental cases. And third, we’ve published details of some carefully selected cases. We’ve also improved training, working with employees of the tribunal.

One of the most important parts of our work is focusing on a legal interpretation of environmental public interest cases. After that interpretation has been passed by the Supreme People’s Court’s Judicial Committee it will be published to be used as the basis for handling such cases. The new environmental law will come into effect on January 1, and we hope that interpretation will come into effect at the same time.

SW: What role will the interpretation have in promoting environmental public interest cases?

Guo: It’ll be very important. Because the Civil Procedure Law and Environmental Protection Law both have special rules on environmental public interest cases, a local court handling such a case for the first time might not know how to proceed as there’s no specific procedure or way of making judgment.

SW: Have many courts around the country have set up bodies to hear environmental and resources cases?

Guo: Not many, as yet. After the Supreme People’s Court set up the environmental tribunal, the provincial courts were required to set up their own environmental protection systems. Then their subordinate courts had do the same in accordance with the needs of the province and, where appropriate, establish jurisdictions across regional and local administrative boundaries, given that environmental and resource cases cross geographical boundaries.

SW: In cross-boundary environmental cases, is it possible that the intermediate courts will fail to pass environmental cases on to the environmental courts?

Guo: No. Once a provincial court has identified the environmental tribunal of an intermediate court as having cross-border jurisdiction over environmental cases, other courts have no right to handle those cases.

SW: How many environmental courts are to be set up at the grass-roots level, below the intermediate courts?

Guo: In principle, grass-roots courts won’t act as environmental courts. But it is possible in special circumstances – for example where there are a large number of cases, or where they’ve already been set up. For instance, the very first one in Qingzhen in Guizhou was very influential and achieved good results so it should be retained. In principle, environmental public interest cases will be heard in the first instance in intermediate-level courts.

SW: Will the Supreme People’s Court hear cases?

Guo: Perhaps, in the future -- for example where compensation amounts are very high, such as resource cases. Cases on the extraction or transfer of mineral resources might be heard at the provincial level in the first instance, then at the Supreme People’s Court in the second.

SW: There are a lot of complaints and petitions about environmental and resource issues, but few cases are heard. Why?

Guo: There are a lot of complaints and petitions which don’t reach the judicial system. There are a number of reasons for this. One is that it’s not easy to bring a case, the legal procedures aren’t clear, and a court that accepts a case might not know what to do with it. Also, in some places there is local interference – major polluters are often major taxpayers.

SW: Setting up bodies such as environmental courts is one aspect of the specialization of environmental justice. What other aspects are there?

Guo: The best designed system for environmental justice is to have a dedicated environmental court, such as in Australia and New Zealand, but circumstances in China do not permit that yet. The next option is a dedicated body to hear environmental cases, such as an environmental tribunal. In locations without many such cases, the third option is a dedicated collegiate panel. There also needs to be specialization of personnel: environmental public interest cases often involve criminal, civil and administrative law, creating overlaps and complexity, so you need specialized staff. A core part of this is to have criminal, civil and administrative environmental cases all heard by the environmental tribunal. But that unified, ‘3-in-1’ approach can only be achieved through a dedicated environmental court.

SW: What obstacles are there to the ‘3-in-1’ approach in practice?

Guo: Currently the environmental and resource tribunals at local courts use that approach. But the Supreme People’s Court hasn’t; it currently only handles the civil cases, as there’s still no legal basis for the ‘3-in-1’ method.

SW: Is that mismatch going to cause problems?

Guo: Although the Supreme People’s Court doesn’t take that approach, it does require its criminal and administrative tribunals to designate a collegiate bench to handle relevant environmental cases. That makes things such as communication a bit smoother. Before the tribunal was formed thought was given to naming it the 5th Civil Adjudication Division, but in the end it was named the Environmental and Resources Tribunal – leaving room for it to take that ‘3-in-1’ approach in the future.

SW: It has long been hard to get an environmental public interest case heard, hard to appraise damages, hard to handle such a case. How is this being dealt with?

Guo: Everyone’s doing their best to work it out. For example, the Ministry of Environmental Protection, the Ministry of Justice and Supreme People’s Court are all trying to set up an appraisal system for environmental damages as soon as possible. It’s very hard to assess some cases, as well as time-consuming and expensive. There isn’t much funding for public interest cases. So we’re considering using environmental experts as advisors or “expert witnesses” and using their opinion as the basis for assessment. The Supreme People’s Court is putting together a bank of experts that can be consulted when necessary, or even called as “expert witnesses.”

SW: Most environmental cases heard by local courts are resolved through mediation rather than judgment. That’s also a big issue.

Guo: It is a big issue. But that will change. In the new interpretation, we require courts to publish the content of mediated agreements before they are issued, as public interest cases are not just a matter of the interests of the two parties and cannot be decided between them – the court must examine the agreement. If the court regards the agreement as not in the public interest, it can refuse to accept it.

SW: Will this process of specialization help management of the environment?

Guo: The administration of justice and judicial verdicts play a certain guiding role. The design of bodies hearing environmental and resource cases will help compensate for a lack of environmental law enforcement. And if cross-jurisdictions do come to pass, it will play an even bigger role.
 
This article was originally published in Southern Weekend newspaper. 

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