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Jiabao Du

Experts, Activists Call Proposed Amendment to China’s Environment Law ‘Monopolization’ of Litigation

(via Flickr/@A China)
(via Flickr/@A China)

One new provision in the second draft of China’s Amendment of Environmental Law has caught the public’s attention. According to the draft, an organization with deep government ties called the All-China Environment Federation (ACEF) will henceforth be the only organization allowed to file public interest lawsuits in cases of environmental pollution. Many in the environmental advocacy community have interpreted this provision of the law as an attempt to severely limit environmental public interest litigation in China.

Under the existing laws, any natural person, legal entity or social organization, regardless of whether they were personally affected, technically could engage in environmental public interest litigation by filing a lawsuit against an alleged polluter. In reality, NGOs that try to initiate such lawsuits often face challenges to their standing. They were pinning hopes on a favorable change to Civil Procedural Law that took effect in 2012, which appeared to clear the roadblocks over the standing issue.

The predicted “spring of the environmental public interest litigation,” however, would be short-lived if the amendment to the Environmental Law were to be adopted into law, as all but the ACEF would be allowed to file such suits.

The ACEF is a self-proclaimed “nationwide non-profit civil society organization (CSO) that works on environmental issues, and is supported by the government. It is composed of CSOs and individuals who are enthusiastic about and support environmental protection and are willing to work for it.”

Investigative reporting by China’s domestic media, however, has cast doubts on its true nature. The Ministry of Environmental Protection funds the organization, and it also collects membership fees from longtime polluters.

Time Weekly, a publication that covers politics and the economy, wrote on July 11 that the ACEF has tremendous government resources due to the fact that many of its members are senior officials. The Southern Metropolis Daily, a prominent liberal paper, found that the ACEF runs for-profit businesses and concluded that it was a complex marriage between government and business disguised as a non-profit organization.

Attorney Li Gang commented in an interview: “Essentially, the ACEF is a government organization, not a real NGO, because it is governed and financed by the Ministry of the Environment. Neither its personnel nor assets are independent中环联不是一个真正的NGO, 实质上就是一个官方机构, 因为环保部不仅仅是它的业务主管单位, 还给了财政资金支持, 它的人财物都没有独立。.”

The ACEF also runs a membership program. 255 enterprises, including quite a few notorious polluters, such as power plants, chemicals factories and mining companies, are dues-paying members. The leaders of Sinopec, a giant oil company, and Da Tang Power, an electric power company, are its vice presidents.

The Southern Metropolis Daily estimated that the ACEF earns approximately USD$1,697,000 each quarter from its members. Between 2006 and 2009, the Ministry of the Environment also provided the ACEF with about USD$2,753,000 in financing.

A closer look

The dubious background of the ACEF has been one of the main reasons its designation as the sole entity in charge of environmental litigation has aroused great public concern. Yong Rong, the director of government and public affairs for Green Peace China, expressed his concern: “These members pay membership fees. This is cause for reflection: if these companies get in trouble down the line, will the ACEF take their rightful place as a third party in the prosecutor’s chair?这些会员是要交会员费的。这就让人想到, 今后这些企业出事后, 中环联会不会以公正的第三方形象出现在公诉席。

Zhou Xiaoyun, a citizen journalist known for reporting on significant charity scandals, wrote:

On the one hand, the ACEF promotes itself as an environmental protection organization that will sue the polluting companies on behalf of the public. On the other hand, it enrolls them as members and gets paid. The two identities are contradictory. The former is an NGO defending the public interest while the latter defends the enterprises’ interests. The two roles cannot be assumed by a single organization. The ACEF is unusual!一方面宣传自己是个环保公益组织, 代表公众向污染企业提起公益诉讼;另一方面, 又收取会费接受大量污染企业入会, 这两者的定位是矛盾的。前者是代表公众利益的N G O, 后者是代表企业利益, 这两者是无法统一到一个机构身上的。但中华环保联合会就这么做了, 完全就是奇葩啊。

A survey released on July 9 by the China Youth Daily revealed that 54.8% of the 4,714 respondents believed that it was unreasonable to delegate environmental public interest litigation to a single organization. 78.4% expressed concerned that this would result in a monopoly, extortion, and corruption. Of those surveyed, 56.4% thought that a more diverse group of people and organizations should be allowed to undertake environmental public interest litigation.

Xu Xin, a well-respected professor of law, opposed the regulation from the perspective of jurisprudence. He stated that the rule represented serious backsliding:

It goes against the initial purpose of the Civil Procedural Law, which declares that the litigators may be any institution or organization authorized by the law. The litigators should not be restricted to a single organization. Placing all environmental public interest litigation under the authority of the ACEF also contravenes the principle that everyone is equal before the law该条款对《民事诉讼法》规定的公益诉讼条款进行极其狭窄的限制解释, 违背了该法的立法原意, 侵犯了其他诉讼主体的诉之利益。该法第55条“法律规定的机关和有关组织”, 决不可限制性地解释为“中华环保联合会”将提起公益诉讼的“有关组织”仅限于中华环保联合会一家, 明显违背法理。单独赋予某一组织诉权的“特权条款”, 违反了法律面前人人平等原则。.

Why people distrust the ACEF

Many Internet users distrust the ACEF because they view any organization that has a government background with suspicion. One microblog user named @好学的琪敏 tweeted: “Nothing should be run by government officials because they mess up everything什么事, 千万别官办, 因为官办的一定做不好.”

Such distrust reflects a crisis of credibility for government-backed non-profit organizations. The Technology Daily wrote:

Since the Red Cross scandals broke out, public belief in government associations has hit rock-bottom. Thus, any trivial defects will be magnified infinitely. The ACEF has been attacked acrimoniously for charging its members, including some polluting companies. Its contributions to safeguarding environmental rights are taunted as ‘swatting flies’ [targeting only small opponents]. Such criticism is unjust because it takes arduous work to realize small achievements when it comes to battling against giant companies从红会事件始, 人们对官方背景的社团组织的信任度已降到最低点, 任何瑕疵都会被无限放大。据了解, 中环联的企业会员须付费, 其中不乏曾经的污染企业。这一点遭到了尖锐的攻击, 而其在环境维权方面的工作, 则被讽之为“打苍蝇”。这并不客观, 民间组织的环境维权异常艰辛曲折, 以绵力面对各地税收大户, 即便想取得很小的成绩, 都需要付出相当大的努力。.

The incident that plunged the Red Cross into scandal took place in June of 2011, when a 20-year-old woman named Guo Meimei, who claimed to work for the Red Cross, showed off her Maserati, luxury handbags and villa through her microblog account. Although she, the Red Cross and the Sina Microblog later clarified that she was not in any way connected with the Red Cross, mounting skepticism of the organization and its lack of transparency could not be reversed.

Today, the Red Cross is still reeling from the crisis. After an earthquake struck Ya’an City in Sichuan Province on April 20, 2013, the Red Cross posted a statement on Weibo calling on people to offer their support for the disaster area. The tweet was inundated with more than 140,000 comments telling the Red Cross to “f*ck off.” The organization raised only about $22,000 dollars, while the One Foundation, a non-governmental charity organization founded by the famous actor Jet Li in 2007, raised more than $1,629, 000 dollars during the same day.

The Red Cross scandal has affected other charities and NGOs with government backgrounds. As the lawyer Li Gang stated: “The ACEF must dispel confusion and cease its commercial activities. Only then can it avoid becoming the next Red Cross中环联自身确实存在那么多问题, 难以取得公信力。从现在开始向应公众说清楚问题, 把该剥离的商业行为剥离, 这样它还有机会避免成为红会第二。.”

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Jiabao Du

Jiabao Du is a junior majoring in journalism at Sun Yat-sen University in Guangzhou City, China. She is interning at a magazine called the Southern People Weekly at present.