Assisted Parties: Xie Yongkang and his legal representative
Parties Being Sued: Tianying Saite Environmentally Friendly Energy Co., Ltd. of Jiangsu
Xie Yongkang was born on May 12, 2008, the day of the Sichuan earthquake. Four months later, Mr. and Mrs. Xie Yong (Xie Yongkang＊s parents) realized that Xie Yongkang＊s eyes could not follow moving objects and his face had no expression. Soon after, an examination by Nantong city＊s Ruici Children＊s Hospital revealed that Xie Yongkang suffered from ※delayed psychological development and poor brain development.§
On February 23, 2009, Shanghai＊s Xinhua Hospital definitively diagnosed Xie Yongkang with poor brain development (commonly known as cerebral palsy) and abnormal discharge of electrical signals in the brain (commonly known as epilepsy). Due to severe neural damage, Xie Yongkang＊s whole body was paralyzed, he could not speak, his hearing was deficient, he could not see, and he could only eat liquid food. Later, the Disabled Persons Federation of Nantong city evaluated Xie Yongkang as having level one limb disability.
On November 2, 2009, a notice of demolition and relocation of residents made Xie Yong realize that the cause of his son＊s illness may be the garbage incinerator plant located just over 100 meters from his house. The demolition and relocation notice was issued to villagers around the incinerator by the Demolition and Relocation working group of Huji town industrial park, Hai＊an county. Part of the notice stated, ※[Demolition and relocation] will allow your elderly to pass their later years peacefully, will allow you to live in peace and work happily, and will allow your children to grow up healthily.§ Further, while Xie Yongkang was being examined at the Xinhua Hospital, the doctor said, ※There may be problems with the environment in which the child＊s mother is living.§
The Hai＊an incinerator began test operating in June, 2006, and at the time it was the only incinerator in the vicinity of Nantong city. A total of $4,360,000 was invested in the project, which incinerated over 100 tons of garbage per day. It was owned by Saite Environmental Protection Enterprises Co., Ltd. of Hai＊an county (later Tianying Saite Environmentally Friendly Energy Group of Jiangsu province).
Xie Yong calculated roughly that at all times during his wife＊s pregnancy, the incinerator was in operation and at a distance of only 190 meters. He read many books related to both medicine and the environment and spoke with experts, and learned that the pollutants that can be generated by a garbage incinerator, especially carcinogenic dioxin, lead to pediatric illnesses with symptoms extremely similar to those of Xie Yongkang.
Thereafter, Xie Yong brought Xie Yongkang back to the Shanghai Xinhua Hospital. The hospital issued a report concluding that Xie Yongkang＊s hereditary factors were normal, which meant that his illness was caused by non-hereditary factors.
At this point, Xie Yong believed that his son＊s illness was caused by the incinerator, and believed that legal action was his only choice. He spoke with many local attorneys, but none would agree to take his case. In August, 2010, Xie Yong learned of the Center for Legal Assistance to Pollution Victims (※CLAPV§). After studying the matter, CLAPV determined that though this case only had one plaintiff, it possessed a kind of typicality, and therefore CLAPV agreed to provide legal aid.
In October, 2010, Xie Yongkang (through his father Xie Yong) sued the Tianying Saite Environmentally Friendly Energy Group Co., Ltd. in the Hai＊an County People＊s Court for environmental pollution injuries. He demanded the defendant compensate him for healthcare costs and emotional injuries sustained as a result of the cerebral palsy caused by the defendant＊s pollution. On the afternoon of November 9, 2010, the trial court scheduled the plaintiff and defendant to exchange evidence, and on the morning of November 10, this case was tried. The court found for the defendant. On April 14, 2011, Xie Yongkang filed an appeal.
On December 8, 2011, the intermediate court of Nantong city heard the appeal. At 1:30pm on December 8, 2011, Xie Yongkang＊s atmospheric pollution case was heard by the First Courtroom of the Nantong City Intermediate People＊s Court, and for the first time this matter was heard in open court (however, beginning May 25, 2011, this matter was being discussed in court, Judge Li Shaofei presiding). Collegiate bench members Jin Wei, Luo Yong, and Li Shaofei tried the matter. Though originally scheduled for 1:30pm, this case was delayed until after 2:00pm due to factors including a scheduling conflict and judges not being able to arrive on time. Court remained in session until 6:00pm.
The hearing primarily revolved around the offering and cross-examination of supplemental evidence submitted by both sides; the plaintiff＊s application to have expert witnesses testify; and the two sides＊ briefs regarding the issue of causation and who bears the burden to prove it 每 an issue that was not raised during the previous discussion.
First, the appellee explained its supplemental evidence. The first group of evidence was a report published by the People＊s Daily regarding two experts＊ views on dioxin. That report stated that currently, there is no report widely accepted by scholars that proves the connection between dioxin and cerebral palsy. The second group of evidence purports to prove that dioxin and cerebral palsy possess no relationship. The third group related to the emission standard for dioxin. It explained that the reason the defendant company did not obtain approval was because the surrounding residents did not relocate, and therefore the company did not have to go through environmental procedures. The fourth group of evidence was a blueprint and explanation of production design. The appellee also offered a brief challenging the appellant＊s Supplementary Evidence No. 2 through No. 7, including the appellant＊s citation of the Stockholm Convention on Persistent Organic Pollutants (the ※Stockholm Convention§). The appellee believes that this evidence cannot prove the existence of any connection between dioxin and cerebral palsy and does not achieve with any effectiveness the goal of proving the appellant＊s position. Regarding Evidence No. 8 through Evidence No. 10, the appellee demands examination of the original documents; for Evidence No. 8, Xie Yongkang＊s medical records, the appellee questions their authenticity, legitimacy, and relevance. It believes that the time on the June 13, 2011 record of diagnosis was hand-written by the doctor, and does not have the doctor＊s seal. On the other hand, on the medical record of July 1, 2011, one piece of paper has only one seal affixed, while on the diagnosis page of that day there are two seals. Regarding the medical records of Ma Hongmei, Xie Yongkang＊s mother, the appellee accepts the form and the legitimacy of the documents, but believes they have no relevance to the appellant＊s case. If Ma Hongmei had a physical illness, common sense states that it would not take until October 11, 2011 for the illness to become apparent; from 2006-2009 there would be symptoms. Therefore, the appellee believes that that Evidence, and the illness described in it, bears no relevance. The appellee further questions Evidence No. 11 and 12; regarding Evidence Nos. 13-40, the appellee accepts their form and legitimacy, but questions their relevance. Because the causes of cerebral palsy in newborns are numerous, the cause of the disease is difficult to ascertain in many children. In addition, the appellee does not accept Evidence No. 15, and believes it to be untrue. Regarding Evidence No. 16 and 17, the appellee objects, and asserts that at the trial court level it already offered evidence of the mother and son＊s healthcare, proving the infant＊s health. The appellee accepts Evidence No. 18 as to form, but argues that the date and time at which the photo was taken cannot be ascertained, nor can the place at which it was taken be ascertained; therefore, it cannot support the appellant＊s assertions. The appellee objects to Evidence No. 19. The appellee accepts Evidence No. 20, but asserts that the substance is merely a theoretical exploration. As for Evidence No. 21, the appellee has no objections as to form, but does not accept its probative value; just because Ma Hongmei was not living in Dunbei village does not lead to the conclusion that she was necessarily living in Xiehe village.
With respect to appellant＊s Evidence No. 21, appellant＊s counsel explained that that evidence was submitted in response to a point the lower court made regarding Ma Hongmei＊s testimony, and was submitted primarily to prove she was not living at Dunbei village. In addition, with regard to a survey map submitted by the appellee, appellant＊s counsel asserted that this map was forged. Counsel argued that appellee had claimed that this building distribution map was drawn up long ago by the village committee; however, the official seal on the map was the seal of Mei＊an town, and Mei＊an town was founded only in the current year. Therefore, not only was the map a forgery, but the appellee＊s explanation of the map was also fraudulent.
After the two sides offered and cross-examined each other＊s evidence, the collegiate bench ordered both parties to submit briefs within three days.
The appellant had previously petitioned the court to permit two expert witnesses to testify in court, but the collegiate bench explained that China＊s legal system does not allow for expert witness testimony; therefore, according to ※Certain Regulations Related to Civil Evidence,§ the expert witnesses＊ appearance in court would be treated as testimony by ※expert assessors.§ The appellee did not request for any expert witnesses to testify in court.
First, Pan Xiaochuan testified. He stated for the court his professional qualifications, including his academic experience, the direction of his individual research, and his academic title. The bench asked the appellee whether it had any objections to this expert witness＊ capacity to testify. The appellee responded that it was not familiar with this witness, but that it appeared Professor Pan was a well-known advocate against incinerators. Professor Pan responded that he would state his views in a fair, complete, and truthful manner. At this time, the bench requested the appellant to clarify what harmful substance was implicated in this case. The appellant confirmed that it was dioxin-category persistent organic pollutants.
The court asked Professor Pan whether he had studied this class of pollutants, and whether there were any relevant written publications.
Professor Pan answered that in 2009, at a Sino-American exchange conference on the environment, a report was published; he said that if the court required it, he could submit a copy of it after the hearing.
Court: An investigation indicates that the occurrence rate of newborn cerebral palsy is 1.6% - 6%; is there any clear regional distribution pattern to the occurrence rate?
Pan: It＊s related to a place＊s environmental condition.
Court: Is it true it is related to the atmospheric conditions?
Pan: It primarily has to do with atmospheric conditions; it also has to do with water.
Court: Is there data?
Pan: I am not familiar with any data. The health department has defective birth statistics.
Court: Does the environment have a connection to occurrence of illness?
Pan: There is no specialized study.
Court: Has there ever been an example of any certain area seeing a clear increase in brain disease after a large air pollution incident?
Pan: There has not; it＊s not that clear-cut.
Court: There have been a couple well-known dioxin incidents?
Pan: There are records of incidents both domestic and international. There are records involving harm to the growth and development of the brain. Impeded brain development is a kind of syndrome.
Court: Is there a clear standard for diagnosing cerebral palsy?
Pan: There is a clear diagnosis standard. First, the central nervous system is affected; there are a series of injuries to the brain manifested in ways such as epilepsy. Second is the development aspect. Children cannot develop normally; fetuses cannot develop normally. The duration of pregnancy and the effects of factors during pregnancy are very important. Third is its non-progressiveness. Human brain development has a definite time limit. Before the age of one year old, the brain has finalized its formation. Therefore, the pregnancy stage, and the fetal stage, are extremely important development periods.
Court: Have there been any instances of lawsuits resulting from atmospheric pollution-caused brain damage?
Court: Is that consistent with the written opinion you previously submitted to the court?
Dai Renhui (for Appellant): Can you talk about the pollutants produced by garbage incineration?
Pan: Japan was the first to produce a study showing that garbage incineration produces dioxin-like compounds and polychlorinated biphenyl (PCB), both endocrine-interfering substances, and Stockholm Convention-prohibited persistent organic pollutants (POPs), which are prohibited from discharge, production, and use.
Dai: And the effect on human health of POPs?
Pan: First, they are highly carcinogenic. Second, they cause abnormalities in the nervous system and central nervous development, including brain defects. Third, they affect sex hormones; they inhibit male hormones, meaning that female hormones increase. This would interfere with a population＊s male-female sex ratio. Fourth, they can enter the fetus through the placenta. This has an effect on every aspect of the human body, and affects the whole of human growth and development. In certain windows of time, the effect on the nervous system is even more obvious, and at such times they will damage nerve cells.
Dai: Regarding the purpose of the health protection zone, what types of effects are there on sensitive things within the health protection zone?
Pan: Factories and companies are required to set up health protection zones, which are the distance within which pollutants will drift and a distance within which there would be a clear harm to human health. People should not live or come in contact with the health protection zone, and if anyone is living in the zone they should move away. The standard is set with average people in mind, in other words, would average people be harmed outside the health protection zone.
Dai: From a professional perspective, does an umbilical cord around the fetus＊ neck necessarily lead to cerebral palsy?
Pan: It wouldn＊t necessarily lead to it. In general, if the umbilical cord is around the neck for more than three weeks, it leads to a fairly high possibility of fetal distress in the womb and oxygen deprivation. The key is looking at whether the umbilical cord around the neck led to oxygen deprivation and distress.
Dai: When a mother and baby have had contact with dioxin, can a connection between dioxin and cerebral palsy be excluded?
Pan: No. There is a possible connection.
After the court and appellant＊s counsel completed their questioning of the expert, appellee＊s counsel questioned the expert.
Appellee: Dioxin can produce effects via the embryo? How was this conclusion arrived at?
Pan: Through Chinese and international written work. There have been very few experiments.
Appellee: Are the effects of dioxin different on different individuals?
Pan: That is not clear.
Appellee: In what ways do you believe the dioxin effects on the nervous system are manifested?
Pan: Primarily in the fetus＊ development and in the development of the nerve cells.
Appellee: Poor development of the nervous system can be equated with cerebral palsy, right?
Pan: According to the definition of cerebral palsy.
Appellee: Previously, you stated that there are many types of abnormalities the nervous system can have.
Pan: The cerebral palsy that the appellant has is only one kind of nervous system abnormality; any situation involving non-normal development is abnormal.
Appellee: The appellant＊s umbilical cord was wrapped around his neck for two weeks, and the birth records do not show any distress in the womb. Is it possible that prior to going into labor, the womb was in a state of distress?
Pan: It is possible.
Court: Looking at the current articles in sum, are there any articles that note a case involving a connection between dioxin and cerebral palsy?
Pan: There are cases of each separately; there are not many examples; there aren＊t many samples. There aren＊t many cases involving both dioxin and cerebral palsy.
Court: What is the distance between not being able to exclude a causal relationship to being absolutely sure in your heart that a causal relationship exists?
Pan: From the standpoint of science, there is no way to be completely certain about a hypothesis; you can only deny a hypothesis.
Court: There would be an obvious change in a person＊s bodily concentration and content of dioxin, right? Couldn＊t you be certain through testing this?
Pan: It can help with the certainty.
Court: What concentration level do you think it would take to be certain?
Pan: The level of dioxin in the human body has no threshold value; if there is even one unit, it will cause cancer. China doesn＊t have a basic value standard for the amount of dioxin in the human body. However, dioxin sampling is very expensive; examining one sample costs over 10,000 RMB. So you can test blood, but the cost is very high, and if it＊s just one sample, you might not be willing to accept the unit of detection.
Court: On the topic of garbage incineration, what is the primary difference of opinion and the controversy in China?
Pan: There is no controversy on the technology. However, confining ourselves to incinerators that do not meet design demands when in operation, the way to eliminate dioxin is to maintain a temperature above 800 degrees Celsius. When this temperature is achieved, the smoke and dust emitted can decrease. But it is very difficult to avoid running an incinerator at 400-800 degrees Celsius, because it is very expensive to push the temperature higher.
Court: Does China have many incinerators that are running normally?
Pan: No. Beijing has two; the number of ones actually operating is even less. There aren＊t many in other areas either; there is a lot of controversy over them.
Court: Regarding the health protection zone 每 the concentration of pollutants is greatest on the ground the emitted waste gas falls on, and according to what you said, the area most harmful to human health is the area on which most of the waste gas has fallen. What is the relationship between 500 meters and the area on which most of the waste gas has fallen? Your formula calculates the area on which most of the waste gas has fallen to be a few kilometers, not a few hundred meters. Does this mean that under standard atmospheric conditions, a standard incinerator chimney height, and standard operating conditions, you are using non-standard factors to demarcate the health protection zone?
Liu Jinmei (for appellant): What is the basis for not being able to exclude the connection between dioxin and cerebral palsy?
Pan: First, is the exposure, or contact with dioxin; there was a clear exposure to it. Second, written studies have verified dioxin＊s effects on brain development. Third, in the present case, cerebral palsy was definitively diagnosed. This is the way risk is evaluated.
Court: Environmental health studies is the study of factors in the environment that will affect health, right? What is the difference between ※causal relationship§ in that field and the legal concept of ※causal relationship§?
Pan: Medicine cannot arrive at a conclusion with a certainty of 100%; even though it can arrive at a 50%-60% conclusion, it cannot rule out the existence of a causal relationship.
After Pan Xiaochuan finished providing testimony, Mao Da provided testimony.
Mao Da introduced his professional background.
The court asked the appellee whether it had any objections to Mao Da＊s professional background.
The appellee stated that it was not sure.
The court asked Mao Da whether the opinion he was about to provide was consistent with the written opinion previously submitted to the court, and he stated that there was some additional information he wanted to offer.
Mao: China has relevant legislation and policies providing for the standard for dioxin. However, this standard is not China＊s own; rather, China has referenced Japan＊s standard of 0.6 pgm/PEQNm3. Most countries have an emission standard for dioxin, and among them, Japan＊s is the most relaxed. The standards of every Canadian province are all stricter than Japan＊s standard. The implication of Japan＊s standard is to protect the lowest baseline of citizens＊ health.
Court: What is the meaning of ※toxicity equivalent§?
Mao: Dioxin has over one hundred types of related isomers and compounds. To calculate the toxicity of mixed compounds, one uses the ※equivalent§ index. The standard utilizes the dioxin compounds with the highest ability to combine with aromatic hydrocarbon receptors in the human body.
Court: Dalian Materialization Research did testing one day; does that testing constitute a representative sample?
Mao: That day＊s testing can only represent that day. That testing was done for a new project＊s Environmental Impact Assessment; it was meant to guide future forecasting. Dioxin testing is very expensive, but the testing methods used in that report are accepted.
Court: The amount that was tested that day, was it done under relatively stable conditions?
Mao: Strictly speaking, that day only represents that day.
Court: Please discuss the data in this report and its relationship with harmfulness.
Mao: Atmosphere, water, and soil are environmental media. Japan provides a human body limit that the value of dioxin in a given media, for example in the surrounding air, should be less than 4 picograms per kilogram. Stated simply, exceeding the standard is harmful. If China had its own standard, we could consider that. But instead, the documents use a reference standard, which in reality means China approves of Japan＊s standard.
Dai: Please explain the significance of the 0.0074 pg/Nm3 value of greatest effect in the appellee＊s report.
Mao: Environmental impact assessments are required to include the value of greatest effect.
Court: Please discuss the difference between these effects in the report and dioxin＊s effects.
Mao: It＊s the same thing. It＊s included.
Dai: Please talk a bit about dioxin＊s effects on human health.
Mao: It＊s divided into carcinogenic and non-carcinogenic. Dioxin is toxic to all the human body＊s systems. Summarizing the literature, after dioxin enters the body, it will bind with aromatic hydrocarbon receptors.
Liu: What about the effects of the pollutants emitted by garbage incinerators on the environment and on the health of nearby residents?
Mao: All of China＊s incinerators can produce dioxin. There has been no study of the effects on nearby residents＊ health.
Court: Have there been any epidemiology data or statistics?
Mao: Because statistical work is not available, there is no data. It＊s up to the Center for Disease Control to collect statistics.
The appellee raised questions.
Appellee: The notice published by the Ministry of Environmental Protection on September 4, 2008, Main Points on Biomass Electricity Generation Technology, has reference value, right?
Mao: It＊s not clear.
Appellee: Are the extent of the effects of emitting dioxin the same on soil versus air?
Mao: It＊s incomparable. In concentration and quantity it can＊t be compared. Japan＊s soil limit is 1,000, because air is directly inhaled into the body, whereas soil has a comparatively indirect effect; through soil, it is only when the dioxin is ingested through the food chain that it enters the body.
Appellee: Have you yourself conducted experiments regarding the harmful effects of dioxin, or have you studied literature?
Mao: Studied literature.
After the questioning of the expert, the court requested both sides to submit briefs discussing the main points of the dispute.
Regarding the causal connection between pollution and injury, the appellee＊s brief stated that it is not denying the Supreme People＊s Court＊s view on the burden of proof; however, it must first be confirmed that the appellant＊s injuries were caused by pollution, that is, does the pollution and the injury possess a connection. If there is a connection, the burden is on the offender; if there is no connection, the burden should not be on the offender. In this case, there is no scientific conclusion whether there is a connection. If science could prove a connection between dioxin and cerebral palsy, and if all other reasons for the appellant＊s cerebral palsy 每 every single other reason 每 could be excluded, then the burden should be placed on the offender; but in this case, they could not be excluded. When Ma Hongmei went to the hospital, a lack of blood or a lack of oxygen were not excluded as causes; if a lack of blood or oxygen could be shown during the pregnancy, that would indicate that the appellant＊s cerebral palsy was related to that condition. The emission standard for dioxin does not apply to ※technical points§ or ※notices and technical points.§ The results of the appellee＊s testing were soil norms of 0.81ng, far below Japan＊s standard.
The plaintiff＊s representative submitted an opinion stating that, in environmental cases, if there is pollution, there will be injury. It is because pollution necessarily brings harm that we are concerned about the existence and occurrence of pollution. If pollution did not cause harm, people would not be concerned about it. Therefore, when pollution brings along harm, the harm does not need to be proven, because the harm certainly and necessarily exists. In this case, the appellant has already refuted the appellee＊s evidence regarding the umbilical cord around the fetus＊ neck. If the appellee continues to insist on this point, then it is only denying science and fact and telling a bare-faced lie. The appellee has offered no evidence to prove that there is no connection between its emitted pollutants and the appellant＊s cerebral palsy; that is, there is no proof that the cerebral palsy was not caused by the appellee, and there is no evidence to prove 100% that dioxin does not cause cerebral palsy. The appellee has not even provided any evidence to deny what the plaintiff has already proven, namely, the fact that dioxin can lead to cerebral palsy. Tort law clearly provides that in pollution injury compensation cases, it is the offender＊s responsibility to offer evidence that there is no connection between his/her behavior and the harm suffered by the injured party. Because in such situations, wherein a weaker pollution victim faces a stronger polluting company, the law has already made a value judgment. If it were insistently demanded that the appellant offer evidence to prove that dioxin will necessarily cause cerebral palsy, in effect this is violating the law. It is taking the burden of proof that is clearly imposed on the appellee and forcing it on the appellant. It is unfair and unjust. If the plaintiff could prove that dioxin necessarily leads to cerebral palsy, the law would not need the burden shift principle. However, in fact, the appellant has already proven the large possibility that dioxin could lead to cerebral palsy, and yet the appellee has not denied the possibility. In other words, the appellant has satisfied his burden of proof, whereas the appellee has not satisfied its own. Therefore, the appellee should not prevail.
Finally, the court reminded both parties to submit briefs regarding which party bears the burden of proof 每 should the entirety of the burden of proof be shifted to the appellee, or should the burden be shifted only after the plaintiff offers a certain amount of evidence. The court announced that it would set a date for judgment.
On December 23, 2011, the intermediate court of Nantong city held that Xie Yongkang did not prevail based on a failure to prove that dioxin and cerebral palsy possess a connection.
The plaintiff＊s family expressed their desire to continue appealing, and CLAPV will continue supporting the appeal.
Significance and Effectiveness of Aid Provided:
The media has dubbed this case ※China＊s first incineration case.§ In recent years, garbage incineration has triggered repeated disputes, and opinions differ even in the scientific community. However, few citizens have truly looked at protecting their rights through legal tactics.
In the course of trying this case, many experts from Peking University and the Chinese Academy of Sciences appeared in court to provide strong evidence that dioxin is dangerous to the human body. They expressed the scientific community＊s conscience, as well as the close attention the scientific community is paying to the public health harms caused by environmental pollution. From the perspective of the judicial sphere, this case has prompted close investigation regarding how to avoid resistance or obstacles caused by local protectionism, how to truly implement the shift in the burden to prove causation, and how to bring justice and fairness to distressed pollution victims. The intent behind Xie Yongkang＊s lawsuit was to promote the public＊s use of legal tactics to proactively participate in public affairs, and to encourage more people to use legal means to fight against pollution and protect their rights and interests.
The shift in the burden to prove causation is a great highlight of China＊s environmental legal system, and has been seen as a reflection of environmental law＊s protecting vulnerable pollution victims. However, the instances in which the judicial branch really applies this rule to decide a case are very few. In trying the present case, the plaintiff repeatedly emphasized this provision, yet two courts still did not consider it, both finally deciding against the plaintiff on the basis that ※the plaintiff did not offer evidence to prove that the dioxin emitted by the defendant caused the plaintiff＊s cerebral palsy.§ This case possesses great value for the ongoing process of drafting the Tort Liability Law Judicial Explanation. The plaintiff＊s loss in this case also compels legislators to consider how to realize better judicial implementation of the burden shift contained in Section 66 of the Tort Liability Law and allow that provision to arrive at the goal of protecting pollution victims.