Public Interest Litigations are Pushing Environmental Charities to Professionalise

中文 English

Editor’s Note

The author of this article, Liu Jinmei (liujinmei@fonchina.org), works as a General Counsel for Friends of Nature (自然之友), China’s oldest environmental non-profit. The views and opinions expressed in this article are those of the author alone. 

To provide some context, it has been possible for environmental organizations in China to initiate public interest litigations ever since the Environmental Protection Law was amended in 2015. There have been a few high-profile cases, such as the “Changzhou poisonous land case”, initiated among others by Friends of Nature, in which the plaintiffs have met with qualified success

 

In May 2019, the litigation initiated by Friends of Nature against Hyundai Motor over exhaust pollution, which was reviewed by the Beijing Fourth Intermediate People ’s Court and ended with an agreement to create a charitable trust, was chosen for the ninth edition of “China’s top ten public interest litigations (2019)”1. This case, like the other ones selected, is a public interest litigation that has had a broad impact on society and great legal significance.

The reason for its selection is that the payment, management and use of compensations for environmental damages, which is a component of environmental public interest litigations, has always been difficult to put in practice. Being able to really use the compensation money for environmental restoration, and making sure the funds are used for specific purposes only, is a very important part of making environmental public interest litigations effective. This particular case lasted for several years, and an agreement was finally reached through mediation. The parties concerned agreed to use a charitable trust to manage the compensation funds and effectively use them for environmental restoration, something that has an important value and significance for ensuring the effective use of the compensations and promoting the implementation of environmental public interest litigations.

Just one month ago, the public interest litigation brought about by the China Green Development Association against Taobao and the Shenzhen Sumei Corporation for selling equipment to help the owners of cars cheat on their annual inspections was selected for the fifteenth edition of “China’s top ten influential lawsuits (2019)”. The reason for its selection is that the case helped to further clarify the responsibility for air pollution in the Internet age and expand the scope of environmental public interest litigations. The second instance court of the case clearly pointed out that online stores should strengthen information management and establish an effective supervisory system. This will make it easier to urge online platforms to develop a due sense of responsibility about selling products that may be used for illegal purposes.

Prior to this, on March 20, the “Yunnan Green Peacock Case”, filed by Friends of Nature, also attracted attention as the first preventive public interest litigation for the protection of endangered wildlife in China. The first-instance judgment was delivered by the Kunming Intermediate People’s Court of Yunnan Province: it was determined that the defendant, China Hydropower Consulting Group Xinping Development Co., Ltd., should immediately stop the construction of the Cansa River First-Class Hydropower Station based on the existing environmental impact assessment. After the first-instance judgment was made, many media outlets including Xinhua News Agency and the People’s Daily published or reproduced relevant information about the case.

In July 2019, at the press conference for the fifth anniversary of the establishment of the Supreme People’s Court Environmental Resources Adjudication Division, it was revealed that according to the latest data, since the implementation of the revised Environmental Protection Law in January 2015, People ’s Courts at all levels have ensured that social organisations can raise environmental civil public interest litigations, 298 civil public interest litigations cases filed by social organisations have been accepted in accordance with the law, and 119 cases have reached a conclusion. These numbers are not huge compared with the nearly 4,000 cases filed by procuratorial organs at all levels.

However, as Wei Wenchao, Vice President of the Environmental Resources Adjudication Division, explained in an interview, since the implementation of the new environmental protection law the number of public interest litigation cases filed by social organisations may not have been large, but the cases have been relatively rich in scope, and they have had a lot of influence. The cases mentioned above, all of which attracted the public’s attention, had the media almost falling over each other to report on them, and were even selected in rankings of influential lawsuits, are the best evidence for this.

It is inevitable that there should only be a handful of social organisations that are capable and willing to file public interest litigations. Of course, there are also very few social organisations that choose public interest litigation as their main work strategy. Although there are no precise statistics, the available data suggests that about 30 social organisations have filed more than one public interest litigation in the past five years. As for why there are few social organisations willing to throw themselves into such cases, and the number of cases filed is relatively small, the reasons are quite complicated. They include not only the thresholds and obstacles brought about by the imperfections of the system itself, but also the resistance that the overall development and growth of social organisations encounter in the external environment, as well as the challenges brought about by the organisations’ own limited capabilities and lack of resources, when even the law is calling for public interest litigations to become part of the work method and strategy of social organisations.

As space is limited, this article will not discuss the first two “external” factors, and will mainly focus on what it means for the professional development of social organisations when they choose public interest litigations as one of their main advocacy strategies and professional practices, and what kinds of needs and challenges they may have.

When environmental protection organisations choose to become involved in public interest litigations, the first challenge they must face is the issue of professional competence. When they act as the plaintiff and file a lawsuit themselves, regardless of the final outcome of the case, they inevitably face many risks, including legal and even financial risks. This requires the decision-makers within the organisations to have the ability to identify, control and respond to these risks. At the case level, an external lawyer can be entrusted to follow up and handle the specific legal affairs. But at a few critical junctures, when key decisions need to be made, if the environmental organisation lacks sufficient internal experience and professionals who can analyse and judge the aforementioned risks, they may face many difficulties. A lawyer acting as a representative can make a careful and thorough analysis and state the pros and cons, but an environmental organisation acting as the plaintiff must still measure and control the case as a whole from all levels, and thus make a decision on how to maximise public interest but minimise risks to the organisation. This is often the part that a lawyer cannot handle alone.

Environmental protection organisations may face these challenges at various stages of a case, from case selection to the filing of a lawsuit until the final settlement. For example, a lawyer will analyse the facts of the case and the strength of the evidence from a professional perspective with regards to whether a case is suitable for litigation, but the cost of litigation will probably not be the primary consideration. However an environmental organisation acting as plaintiff has no choice but to consider the costs of litigation, the possible risk of losing the lawsuit and other issues.

When a lawsuit reaches the point of negotiation and mediation, the lawyer will make a recommendation from the perspective of the case itself and from the technical level as to whether a mediation agreement should be reached. But for charitable organisations, for which “credibility” is the most valuable intangible asset, when facing a mediation plan, they must still consider the degree of public acceptance and whether this type of plan can maximise the public interest. Sometimes it is even necessary to find the greatest balance between technical factors, practical constraints and the degree of public approval. Therefore, if an environmental organisation wants to use public interest litigation as one of its long-term strategies, it has no choice but to consider cultivating its own experts to establish its own professional competence. In this sense, public interest litigations will actually force environmental protection organisations to establish and improve their own professional competence.

In addition, environmental protection organisations with very limited resources also need to carefully consider the issue of resource allocation when designing an issue, selecting strategies and getting involved in a case. Unlike some other sectors, issues in the environmental sector are multiple and varied, with many being strongly scientific in nature. Therefore each time environmental organisations choose to become involved in a new sector, they may face completely new knowledge gaps. For example, organisations that have long been concerned with the issue of pollution may not be at all familiar with the issues surrounding biodiversity. Organisations that have always dealt with marine protection may not have any understanding of energy and climate issues. As an environmental organisation, the goal of filing a public interest lawsuit is not limited to pointing out specific problems and resolving a particular case. The wider goals are to send out a warning to a certain industrial sector, point out common problems and even promote the introduction and improvement of laws.

Therefore, whether choosing to file a series of cases of the same type to expose problems in a certain industry, to try cases of different types that are highly representative, or to use individual cases to awaken “dormant clauses” within a certain law, all of these require environmental organisations to conscientiously discuss and carefully evaluate these issues before filing a case. To be able to effectively complete the aforementioned discussion, the team needs to possess an understanding of the current environmental issues, a certain degree of foresight and a minimum understanding of the relevant sector.

In many cases, the capability and resources of environmental organisations themselves may be insufficient to overcome all of the aforementioned challenges. They need to request help from external sources, including experts and scholars from the relevant sectors, or to unite with their counterparts. They may even need to seek cooperation with procuratorial agencies and environmental protection departments. This will also require global organisations to have the power to attract and integrate external resources, while persevering to maintain their own independence at the same time, and also to be able to interact with all parties to achieve positive outcomes.

The challenges and the requirements mentioned above appear to make things extremely difficult. But this is emphatically not to say that environmental organisations must become specialists in every field in order to enter the field of public interest litigation work. A lot of knowledge and experience can be studied and accumulated gradually through a practical process. And the challenges, in their layers upon layers, that are brought up by public interest litigations can also push environmental organisations to mature and evolve, and gradually move in the direction of specialist development.

Looking at the policy documents issued at the highest level, we can see that public interest litigation systems have been mentioned several times as an important system for the modernisation of social governance, and this appears to crystallise their important position.

On 31 October 2019, the Fourth Plenary Session of the 19th CPC Central Committee adopted the “Decision relating to upholding and improving the system of Socialism with Chinese Characteristics and promoting the modernisation of China’s governance system and governance capability”, which proposes targets for supervising the strengthening of the law’s implementation, and defines requirements to expand the scope of public interest litigation cases. Moreover, in upholding and improving the system of ecological civilisation, and advancing the goals for harmony between humans and nature, it defines and proposes a strict system of job responsibility for environmental protection, and improves the concrete requirements for the system of public interest litigations for the protection of the natural environment.

Less than half a year ago, in March 2020, the General Office of the Central Committee of the CPC and the General Office of the State Council published the “Guiding Opinions on Building a Modern Environmental Governance System”. This document proposes that by 2025 the participation of market players and the public should be encouraged, and an environmental governance system with effective stimulation, diversified participants and sound interactions should be created. Furthermore, it defines a system for the whole public to take part in a sound environmental governance system, and intensifies targets for social supervision. The “Guiding Opinions” defines the requirements and increase the strength of litigations against acts that destroy the ecology and the environment, and it reinforces the work of the inspection organs in bringing about such litigations. At the same time, it requires qualified environmental organisations to be “guided” in accordance with the law, to carry out environmental public interest litigations. While they use the terms “increase” and “strengthen” for public interest litigations, in the case of the requirements for environmental organisations the terms “guidance” and “support” are used. This is probably significant and leaves food for thought.

With the opportunity afforded by these new policies, how should environmental organisations across China genuinely participate any way they can in the process of constructing a modern environmental governance system, and while upholding the precondition of their own independence, interact soundly with the other parties involved in environmental governance? Public interest litigations are of course not the only path. But while the other parties are unceasingly promoting their own governance capabilities, even if some environmental organisations do not choose public interest litigations as their strategy, does this signify that these organisations do not need to face the challenges of specialisation? Facing this proposition of constructing a modern environmental governance system, how will environmental organisations prove their own strategies’s effectiveness and social value? Perhaps it is worth it for environmental organisations to reflect upon and investigate these questions thoroughly.

Of course, all these challenges cannot be resolved by environmental organisations on their own, especially in the long-term. Impact litigations are an expensive strategy, and they can attract extensive public attention and have a remarkable social impact, to the extent that they can even promote far-reaching changes to policy and laws. But it is in the nature of this strategy that it is destined not to have as instant an effect as other kinds of work, or immediately produce results. Even if there are results, it is a strategy that needs long-term persistence and investment, so much so that it comes with risks. Therefore, it needs to be accompanied by the attention and patience of specialised and passionate funders, and requires the understanding and support of the public. Only with the firm support and cooperation of the funders can more environmental organisations persist in specialising and have the courage to continue exploring.

As discussed above, the external environment is indeed important, but the core factor that decides how far an environmental organisation can go down the road of public interest litigations is still the issue of specialisation. This means not merely the specialisation of organisations’ strategies and professional capabilities, but specialisation in the collection of resources, the creation of networks and the creation of human talent. It sounds like there are many difficulties, but if we hope that our eyes can see the stars and our feet can touch the sea, then we must use sharper minds to help teams and organisations see further into the future, and at the same time use specialist capabilities to guide teams and organisations to fight battle after battle, and finally grow to become social organisations that cherish their missions unswervingly but know how to make use of their advantages to gain respect from all sides.

 

[1] Jointly published by the Case Law Research Center of the China Legal Scholars Association, the Research College on Litigation Law of the China University of Political Sciences and Law, the Supreme People’s Court and Legal Weekly.

公益诉讼倒逼环保组织向专业化方向发展

 

2019年5月,北京四中院审理的自然之友诉现代汽车尾气污染达成公益信托协议案入选第九届(2019年度)十大公益诉讼,本案与入选的其他公益诉讼案件一样,都是在社会上产生广泛影响并具有重大法治意义的公益诉讼案件之一。

入选理由是在环境公益诉讼中,生态环境损害赔偿金的赔付、管理和使用一直是实践中的一个难题。如何将损害赔偿金真正用于环境修复,实现专款专用,这是实现环境公益诉讼成效的一个非常重要的环节。本案历时数年,最终通过调解达成协议,有关各方一致同意用公益信托的方式实现赔付资金管理,并切实运用到环境修复中,这对于确保损害赔偿金有效利用,推进环境公益诉讼落到实处具有重要的价值和意义。

就在一个月前,中国绿发会诉淘宝网、深圳速美公司等“年检神器”公益诉讼案入选第十五届(2019年度)中国十大影响性诉讼。入选理由为该案有助于在网络时代进一步拓清大气污染责任,扩展了环境公益诉讼的类型。案件审理二审法院明确指出网店应加强信息管理,建立行之有效的监管制度,有利于督促网络平台在销售可能用于违法目的之产品方面确立应有的责任意识。

而在此之前,3月20日,自然之友提起的“云南绿孔雀案”,也是引起社会高度关注的全国首例濒危野生动物保护预防性公益诉讼案,由云南省昆明市中级人民法院作出一审判决:被告中国水电顾问集团新平开发有限公司立即停止基于现有环境影响评价下的戛洒江一级水电站建设项目。一审判决做出后,包括新华社、人民日报在内的多家媒体发布或转载了案件报道的相关消息。

2019年7月,在最高人民法院环境资源审判庭成立五周年新闻发布会上,根据公布的最新数据,2015年1月修订后的环境保护法实施以来,各级人民法院保障社会组织依法提起环境民事公益诉讼,依法受理社会组织提起的民事公益诉讼案件298件,审结119件,这个数字与各级检察机关提起的近四千起案件相比显得有些单薄。

但是,正如最高人民法院环境资源审判庭副庭长魏文超在接受采访时介绍的,自新环保法实施以来社会组织提起的公益诉讼案件数量并不多,但案件类型比较丰富,社会关注度高,影响力很大。上述引起社会广泛关注和媒体争相报道,甚至入选影响性诉讼的案例即是最好的佐证。

不可回避的是,有能力且有意愿提起公益诉讼的社会组织依然屈指可数,更遑论,选择以公益诉讼作为主要工作策略的社会组织,至今更是寥寥无几。虽未经严格统计,但根据已有数据,在过去五年间,有提起过一起以上公益诉讼案件的社会组织应该在30家左右。至于要具体探究,为什么愿意投身其中的社会组织数量会如此稀少以及提起案件数量较少的原因,这背后的成因则颇为复杂。其中既有制度本身不完善带来的门槛与障碍,也有社会组织整体发育成长遇到的外部环境中的阻力,更有公益诉讼甚至是法律与政策倡导作为社会组织的工作手法与策略时对社会组织自身能力所带来的挑战与多重资源需求缺口。

篇幅有限,本文将撇开前两种外部因素不谈,主要针对当社会组织选择公益诉讼作为一种主要倡导策略和工作手法时,对社会组织的专业化发展意味着什么,又将提出何种需求和挑战等问题展开讨论。

当环保组织选择介入公益诉讼时,首先要面临的挑战就是专业能力的问题。因为当环保组织自身作为原告提起诉讼时,就意味着无论最终案件结局如何都必然面临重重风险,包括法律层面的风险,甚至经济层面的风险,而这就要求环保组织的决策层或者负责团队有能够识别、控制和应对这些风险的能力。在个案层面,具体的法律事务可以委托外部律师来全程跟进和处理,但是在一些关键节点上,需要做出关键性的决定时,如果环保组织内部缺乏足够有经验,足以分析和判断上述风险的专业人士,可能就会面临种种困难。因为律师作为代理人可以条分缕析,陈述利弊,但是环保组织作为案件当事人,依然要从各个层面对案件整体进行衡量和把控,从而做出能让公共利益最大化以及机构风险最小化的决策。而这往往是代理律师难以代劳的部分。

一起案件从选案阶段到提起诉讼再到最终结案,环保组织在各个阶段都可能会面临这些挑战。例如,一起案件是否适合提起诉讼,代理律师会从专业角度去分析一起案件的事实和证据是否扎实,但是诉讼成本也许并不是其优先考虑的问题。而作为原告的环保组织却不得不考虑诉讼成本和可能面临的败诉风险等问题。而当一起诉讼案件面临谈判调解时,代理律师会从案件本身的角度和技术层面给出是否应当达成调解协议的建议,但是对于将“公信力”作为最有价值无形资产的公益组织,面临调解方案还必须要考虑这样的方案是否能够实现公共利益的最大化,以及公众对其的接受程度。有时甚至需要在技术因素、现实制约和公众认可度之间寻求最大平衡。因此,如果一家环保组织要将公益诉讼作为自己的长远策略之一,就不得不考虑培养自己的专业人才,从而建立自己的专业能力。从这个意义上来说,公益诉讼其实是会倒逼环保组织建立和提升自己的专业能力。

除此之外,资源极为有限的环保组织,还需要在议题设计、策略选择和介入案件时慎重考虑资源分配的问题。不同于其他一些领域,环境领域议题繁多,且很多问题具有很强的科学性,因此环保组织每选择涉入一个新的领域都可能面临全新的知识空白。比如长期关注污染议题的组织,也许并不熟悉生物多样性的知识。而一直从事海洋保护的机构,也许并不了解能源与气候议题。而作为环保组织,提起公益诉讼的目标,不仅局限于指出问题、解决个案,更期待能够通过个案引起行业警示,或者指出共同问题,甚至推动法律的出台与完善。

因此,是选择通过提起一系列同类型案件从而暴露行业问题,还是尝试不同类型但是极具典型意义的案件,又或是通过个案来唤醒某部法律的“沉睡条款”,都是需要环保组织在提起案件之前就认真讨论和审慎评估的问题。而要想能够有效完成上述讨论,则需要团队具备有对当下环境问题的认知、一定的前瞻性和对相应领域的知识的初步了解。很多时候,环保组织自身的能力和资源也许不足以完成上述全部挑战,需要求助于外部资源,包括该领域的专家、学者,或者需要联合同行,甚至寻求和检察机关、环保部门的合作。这又要求环保组织具备吸引和整合外部资源的能力,在与外部网络合作的同时,努力做到保持自身独立性,又能与各个主体实现良性的互动。

上述种种挑战和能力要求,看似非常困难。但并不是说环保组织一定要成为了各个领域的专家才能够开始介入公益诉讼。很多的知识和经验都可以在实操的过程中逐渐学习和积累。而公益诉讼所带来的重重挑战,也会逼着环保组织快速成长和进化,并且逐渐走向专业化发展的方向。

从最高层面出台的政策文件来看,公益诉讼制度作为社会治理现代化的重要制度被数度提起,似乎彰显了其重要地位。

2019年10月31日,十九届四中全会通过《关于坚持和完善中国特色社会主义制度 推进国家治理体系和治理能力现代化若干重大问题的决定》,提出加强对法律实施的监督的目标,并明确要求拓展公益诉讼案件范围。而在坚持和完善生态文明制度体系,促进人与自然和谐共生目标之下,则明确提出了严明生态环境保护责任制度,完善生态环境公益诉讼制度的具体要求。

时隔不到半年,2020年3月,中共中央办公厅、国务院办公厅印发了《关于构建现代环境治理体系的指导意见》,提出到2025年,提高市场主体和公众参与的积极性,形成激励有效、多元参与、良性互动的环境治理体系。更是明确提出健全环境治理全民行动体系,强化社会监督的目标。意见明确要求,加大对破坏生态环境案件起诉力度,加强检察机关提起生态环境公益诉讼工作。同时要求,“引导”具备资格的环保组织依法开展生态环境公益诉讼等活动。相比检察机关的“加大”“加强”,对环保组织提出的具体要求为“引导”而非“支持”,似乎颇有深意,又耐人寻味。

面对新的政策机遇,各地环保组织要如何真正参与到构建现代环境治理体系的过程中来,在保持自身独立性的前提下,与其他治理主体实现良性互动?公益诉讼当然不是唯一的路径。但是当其他治理主体在不断提升自身治理能力的同时,即便不选择公益诉讼作为其行动策略,是否就意味着这部分环保组织可以从此远离专业化挑战?而面对构建现代环境治理体系这个命题,环保组织又将如何证明自身行动策略的有效性和社会价值,也许很值得环保组织深入思考和探讨。

当然,所有上述挑战,单凭环保组织定是无法完成,更无法走地长远。影响性诉讼是一种昂贵的行动策略,它可以引起广泛的社会关注,并形成显著的社会影响力,甚至推动政策和法律地深远变革。但是这一策略本身的特性就注定了它无法像其他工作手法那样立竿见影,当下产出成果,甚至控制结果,也注定了它需要长期持续地投入,甚至和风险相伴。因而,它尤其需要专业和长情的资助者们的长期关注和耐心陪伴,也需要广大公众们的理解和支持。唯有更多资助者的相伴而行与坚定支持,才能给更多环保组织坚持专业化方向发展和持续探索的勇气。

如前所述,外部环境诚然重要,但是决定环保组织在公益诉讼这条路上能够走多远的内核依然是专业化这一要素,这里不仅仅需要组织策略、业务能力的专业化,还同时需要有资源筹集、网络合作和人才队伍建设的专业化。听上去似乎很多也很困难,但是如果我们既希望自己目光触及星辰,又渴望脚下抵达大海,就注定要学会用更加敏锐的头脑帮助团队和机构看的更加长远,同时用专业的能力带领整个团队甚至机构打下一场又一场硬仗,最终成长成为心怀使命坚定不移却能用专业实力赢得各界尊重的社会组织。(供稿:自然之友总法律顾问刘金梅,邮箱:liujinmei@fonchina.org)

Translated by Serena Chang, Peta Heinrich and Feng Yuan

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