On May 10th, 2010, the Wujia people of Wuqiao village, Cangnan county, Wenzhou City, Zhejiang Province paid a visit to the Centre for Legal Assistance to Pollution Victims (CLAPV). They came to report the local Electric Power Bureau’s illegal construction of a high-voltage power station right next to their homes. They were concerned that electro-magnetic radiation from the power lines could potentially cause damage to their health. According to their investigations, this power station was constructed in violation of environmental laws, because the Environmental Impact Assessment (EIA)—which was required by law—was conducted only after construction had been completed, and the construction design plan had been altered without permission.
Between May and December of 2010, the citizens involved in the case met with Liu Xiang, the head of litigation for CLAPV (hereafter known as ‘The Centre’) along with other lawyers in the litigation department to establish the facts of the case. Together, they developed and refined the legal strategy and finally agreed to begin with an administrative lawsuit and then proceed with a civil lawsuit if the administrative suit failed. In January 2011, the Centre assisted the plaintiffs in drafting a bill of indictment to sue both the Environmental Protection Department of Zhejiang Province, along with the Wenzhou Environmental Protection Bureau (EPB) in an administrative lawsuit for violating the law. In March 2011, the plaintiffs informed the Centre that the People’s Court of Lucheng District, Wenzhou City had accepted the case. The court session and hearing would begin on April 15th, 2011. The Centre then appointed two lawyers, Dai Renhui and Liu Jinmei to represent these five plaintiffs at the hearing.
On the morning of April 15th, 2011, the judicial court hearing began in the 9th court of the People’s Court of Lucheng District, Wenzhou for the case of 5 Wujia citizens suing the Wenzhou EPB for illegal administrative licensing (with the Wenzhou Electric Power Bureau as the third party (第三人). The court’s public gallery was filled to the limit with staff from the Wenzhou EPB and Wenzhou Electric Power Bureau who had come to watch the hearing. The hearing began at 9 in the morning and continued until 1 in the afternoon. Throughout the morning both sides engaged in a fierce debate over the points of controversy, and the collegiate bench (合议庭) repeatedly questioned plaintiffs and their lawyers on the facts and legal foundations of this case. This created a highly tense atmosphere in the courts.
The detailed events of the judicial court hearing proceeded as follows: First, the court secretaries verified the identities of the plaintiffs and lawyers on both sides, and then read them their rights. The head judge then initiated a court inquiry into 1) The details of the administrative actions addressed in this case and 2) The details of the construction project. Following this, the plaintiff read out the bill of indictment and the court then requested the plaintiff to verify and clarify the details of the bill of indictment with especial attention to: 1) The specific administrative actions relating to the construction projects that were being contested; 2) The foundations for accusing the defendant and the third party of violating the law; 3) Whether the third party was the Wenzhou City Electric Power Bureau or the Zhejiang Electric Power Corporation; 4) How, specifically, did the defendant infringe on the health and safety rights of the plaintiff; 5) The legal foundations for a connecting the administrative actions addressed in the case and the harm committed; 6) Why the plaintiff believes the defendant committed a violation of the law, and 7) The specific manifestations of the defendant’s abuses of power and violations of the law.
The plaintiff’s legal representative then summarised the main points of the lawsuit as follows: 1) The Environmental Impact Assessment (EIA) provided by the third party did, in fact, violate the procedures stipulated in the law. 2) The actions of the defendant and the third party did violate the regulations as stipulated in the law. 3) The defendant had no legal foundations for approving the EIA documents submitted by the third party because this EIA was conducted after construction had been completed.
In response, the defendant made the following opposing statements, namely: 1) There is evidence that the administrative permit was approved according to the law. 2) Their authority to approve such documents is limited. 3) Even though the EIA process was conducted after the construction project was completed, that is, a ‘make-up’ EIA (补办环评手续) was conducted, there are legal foundations for such ‘make-up’ actions. The third party then submitted the following opposing statements: 1) The construction project specified in this case can be classified as a public good, because even the plaintiffs benefit from this project. 2) There are justifiable reasons for conducting the EIA after completing construction in this case. 3) Even if the third party could be accused of making a mistake in doing so, during construction, they made sure to implement a number of environmental protection measures.
After all three sides had presented their arguments, the court returned once again to the period of construction in this case, and inquired into the connection between the plaintiff and the construction process. At the same time, it allowed the plaintiff to counter the defendant and the third party’s statements. Finally, the collegiate bench summed up the key points of controversy as follows: 1) Was the content of EIA submitted by the third party and approved by the defendant correct or incorrect? 2) Were the defendant’s specific administrative actions illegal or in accordance with the law? 3) Are the administrative actions for which the defendant is being sued relevant to the law? All three parties agreed with this summary.
The defendant’s primary evidence included the suggestions they submitted to the third party after examining the EIA report and the legal foundations for citing this evidence. The plaintiff’s evidence concentrated on the ‘Public Consultation’ section of the third party’s EIA report, which contradicted the law. Specifically, the law stated that it was necessary to hold a consultation and hearing with the public before initiating a construction project, but the both EIA and public consultation had only occurred after the project was completed. The defendant refuted this point and stated that there were legal foundations for conducting an EIA post-construction, and the public consultation was therefore carried out in accordance with the law. Thus, even if the defendant did not know that the EIA had been conducted post-construction when they approved the permit, their actions ultimately did not violate the law. The plaintiff’s lawyer once again contested the legal foundations of the defendant’s claims, asserting that their arguments were based on a misapplication of environmental laws.
Both sides then engaged in a fierce debate over the 31st clause of the Law on Environmental Impact Assessments and the 24th clause of the Regulations for the Management of Environmental Protection Under Construction Projects as well as instructions and legal opinions from the State Council Legal System v. Henan Provincial Government case. The defendant believed that the above legal stipulations permitted an EIA to be conducted post-construction, while the plaintiff’s legal representative continued to insist that there were no legal foundations to support EIA procedures post-construction. The State Council Legal System’s response in the above case was therefore in violation of the original meaning of the law, and also violated the spirit of the rule of law. Finally, the evidence that the plaintiff had submitted against the defendant was cross-examined. The court announced that the court hearing had finished and a date would be fixed for announcing a verdict on this case.
The main issue at stake in this case, aside from the defendant and third party’s procedural violations of the law, was whether or not an EIA process could be conducted post-construction. If so, what were the legal foundations justifying such actions? The plaintiff’s legal representative argued that according to the rules of China’s Laws on Environmental Protection, Laws on Environmental Impact Assessments, Regulations for the Management of Environmental Protection under construction projects and Methods for the Regulation of Electro-Magnetic Radiation, there was not a single legal foundation permitting an EIA process to take place post-construction. According to the principles of “Legal Administrative Procedures” this action should be considered forbidden until the law rules otherwise.
On July 7th 2011, the Wenzhou City Lu District Court of First Instance decided against the plaintiff. On July 18th, the Wujia people filed an appeal.
On August 2nd, 2011 at 9am, the judicial court hearing began on the appeal filed by the Wujia people in their case against the Wenzhou City EPB for illegally approving administrative permits (with the Wenzhou City Electric Power Bureau as the third party). Both parties were tried in the number 8 court of the Wenzhou City Intermediate Court. This case was filed by 5 plaintiffs, but the hearing was attended by dozens of citizens because a large number of people from Wuqiao neighbouring villages could claim damages in this case. As a result, the courtroom had to be changed at the last minute to accommodate the large audience. The defendants had also organized a large group of workers to attend the hearing, but due to limited seating, many people could not gain access to the public gallery.
The judicial court hearing began with the appeal being read out to all parties concerned, to clarify the facts and requests submitted by the appellants in this case. The appellants requested the court to: 1) Repeal, in accordance with the law, point 42 of the judgement made on May 27th, 2011 on the Wenzhou Lu District Administrative Case at the Wenzhou City Lu District People’s Court. 2) Confirm that the permit approved for the construction of the Wenzhou district 220KV substation on the Long River and the subsidiary 110KV substation on the Feng River was illegal and should be revoked. 3) Rule that the plaintiffs should be compensated for their legal fees. These three requests were made on the basis that the judgment from the initial hearing was based on inaccurate evidence and therefore failed to uphold the law.
In response to the plaintiff’s statement, the Wenzhou City EPB presented their defence, primarily stating that the facts of the original hearing were clear and the judgement was therefore carried out in accordance with the law. Moreover, the argument presented by the plaintiff had diverged from the demands made in the original hearing. The final judgement of the original hearing stated that the construction project delivered significant public benefits to the plaintiffs and persons involved in this case. This project was included on the list of Zhejiang province’s priority project as it would improve the electrical network infrastructure of this district, which would help to fulfil local economic development needs and raise the overall standard of living for people in the area. Certification for this project included an EIA and a scientific assessment, which met the standard required for construction. The judgement from the original hearing was therefore wholly in accordance with the spirit of the original legislation.
The Wenzhou City Electric Power Bureau then presented their case, endorsing the EPB’s in their claim that the facts of the original judgement were correct and that, despite the plaintiff’s protestations, the original judgement could be upheld. Moreover, the conclusion in the original judgement that the construction project had not infringed on the health and safety of local residents was also correct. Following these statements from both sides, the collegiate bench summed up the main points of controversy as follows: 1) On the issue of conducting a make-up EIA after a construction process was completed, was such an action in contradiction of the law and was there a factual basis for such a claim? 2) Are the legal and factual foundations for the initial judgement made in the court of first instance correct?
Afterwards, the court proceeded to the cross-examination of evidence and debate. The defendants had no new evidence to produce and their arguments were more or less the same as in the first hearing. The plaintiffs however, had new evidence to present to the court including: 1) An Information Booklet on the Approval of Administrative Permits by the Zhejiang Province Environmental Protection Office in response to EIAs on Electro-Magnetic Radiation Construction Projects, 2) The Working Guide Book on the Electro Magnetic Radiation Construction Project Environmental Impact Assessment Document, 3) The Regulations For Approval Procedures on the Zhejiang Province EPB Construction Project EIA Document, 4) The 2007 Zhejiang Enviromental Protection Publication (no. 12), 5) The Zhejiang EPB Principles and Requirements for Evaluating EIAs on Construction Projects, 6) The Zhejiang Province EPB Principles and Requirements for Evaluating EIAs on Construction Projects Involving Radioactive Isotopes, 7) Expert Advice and Evaluations of the EIA Report submitted by Wenzhou district on the Baisha 220KV Transformer Engineering Project.
This new evidence was presented primarily to prove the legal foundations for examining the administrative permission granted based on the EIA. It was also submitted as documentation for the procedural regulations being questioned. According to the above documents outlining procedural requirements, when the EPB examined the EIA report they should have listened to the suggestions of the planning department and consulted with local citizens. But the Wenzhou EPB and Electric Power Bureau did not fulfil these required duties. Moreover, they applied the combined pressure of violence, threatening announcements and repression to force the local residents involved in this case to submit to the construction of the high-voltage power line. Finally, in the EIA report submitted by Wenzhou district on the Baisha 220KV Transformer Engineering Project, experts stated that “It is necessary to record the existing land, air and water quality in the project area, and then compare with data when the project is in operation.” Also, according to the Zhejiang EPB Principles and Requirements for Evaluating EIAs on Construction Projects, in the of the process of conducting an EIA, it is necessary to assess the risks posed by the geography and climate of the construction site. As such, the third party should have taken note of the fact that the construction site was located in a typhoon landing point, where the climate is humid and thunderstorms are frequent. The plaintiffs therefore argued that the defendants did not conduct an exhaustive investigation for the EIA, because they should have included the effects of radiation and noise under these distinct climate conditions. In fact, the EIA and the report submitted by the defendant were based on investigations during clear, calm weather conditions, which did not represent the norm. As such, its conclusions on the impact of radiation were not convincing.
In response to the evidence presented by the plaintiff, the Wenzhou EPB stated that their administrative actions were all in accordance with the requirements of the An Information Booklet on the Approval of Administrative Permits by the Zhejiang Province Environmental Protection Office in response to EIAs on Electro-Magnetic Radiation Construction Projects. On the issue of finding fault with their review of the EIA, the defendant argued that the legal statutes only require a hearing on the EIA report document (环境影响报告书), but the case was referring to the EIA report table (环境影响报告表), which was not relevant to the law. Moreover, their review of the EIA was conducted in accordance with the norms and standards in the document presented by the plaintiff. Finally, in the process of conducting this project’s EIA, full consideration was given to the local climate and operational conditions.
The Wenzhou City Electric Power Bureau then provided their opposing statement on the case, specifically: 1) The environmental impact of the construction project should be differentiated into two grades: The impact of the 220KV high-voltage power line was different from that of the 110KV power line. 2) The focus on scientific questions and differentiating between the EIA report document and report table was unnecessary because in both cases, the investigations were carried out by an experienced environmental assessment organization, so their conclusions should not be questioned by ordinary people who lack expert knowledge.
Following the opposing statements by the defendant and third party, the court proceeded to closing arguments from both sides. On behalf of the plaintiff, the representing lawyer Dai Renhui presented his final legal opinions as follows:
“First, the Court of First Instance’s ruling that “The make-up EIA can be conducted post-construction” represents an incorrect application of the law because: 1) Look at clause 31 of the Environmental Impact Assessment Law: “If the construction company does not follow the law in submitting the EIA document for approval, or if they do not, according to the stipulations of clause 24 in this law, resubmit the EIA document for approval (审批) or request an audit of the EIA document again before they begin construction work, then construction has begun without permission. As such, the department responsible for administrating this EIA has the right to order construction work to stop, and to set a time limit for a make-up EIA procedure; If the make-up EIA procedure is not conducted within the set time limit, the responsible staff in the construction company are liable for fines of between 50,000 RMB and 200,000 RMB, and should be disciplined in accordance with the law.”
Clearly, no further explanation is necessary here. The clause stipulates that the time limit for conducting a make-up EIA is during the construction period, which excludes any period after construction has been completed. “Ordering construction work to stop” is the prerequisite for legal make-up EIA process.
Second, turn again to the 24th clause of the Regulations for the Management of Environmental Protection Under Construction Projects: “Violations include the following: The administrative department responsible for approving EIA reports, tables and records is charged with setting a time limit on the make-up EIA process. If the make-up EIA is conducted beyond this set time limit, then the construction project has proceeded without permission, and the responsible department can issue an order for construction to cease, and fine the company up to 100,000 RMB.” Clearly then, the time limit for a make-up EIA procedure here also refers to the construction period, not post-construction. If, as the Court of First Instance assumed, the stipulations in this clause on the approved period for a make-up EIA included post-construction, then the stipulations should not state that “If the make-up EIA is conducted beyond this set time limit, then the construction project has proceeded without permission…” but instead, should read “If the make-up EIA is conducted beyond this set time limit, then the construction project has proceeded without permission, the responsible department can issue an order for construction to cease, or an order to tear down completed construction projects within a given time period.” Why was the clause not written this way? I can not believe that it is due to the lack of foresight or wisdom of our legislators, and I can only infer that it is because regulations on construction projects do not include completed projects. In other words, make-up EIA procedures do not extend to the period when construction has been completed.
The 25th clause of the Regulations for the Management of Environmental Protection Under Construction Projects stipulates: “If the report, tables and records of the EIA on the construction project have not yet been approved or the originally examined document has not yet been audited and agreed to, then the construction project has proceeded without permission. The administrative department responsible for supervising the reports, table and record of the EIA can therefore issue an order to stop construction and have the site returned to its original state within a set time period, and a 100,000 RMB fine can be collected.” Here too, the stipulation that the responsible department “can therefore issue an order to stop construction and have the site returned to its original state within a set time period” also indicates that the stipulated period for a make-up EIA does not extend to the period where construction has been completed.
According to section 1, clause 52 of the Law on Administrative Litigation, local statues come first as legal foundation for administrative cases in the people’s courts. As such, when it comes to applying the law in this case, the Environmental Impact Assessment Law is the law, and the Regulations For The Management Of Environmental Protection Under Construction Projects is the administrative statue. Moreover, the Environmental Impact Assessment Law was implemented on September 1st 2003, and the Regulations For The Management Of Environmental Protection Under Construction Projects was implemented in 1998, therefore the Environmental Impact Assessment Law should come first in applying the law. As such, ordering the stop to a construction project is the prerequisite for a make-up EIA.
Third, with regards to the spirit of the legislation of the Environmental Impact Assessment Law and the Regulations for the Management of Environmental Protection Under Construction Projects, the first clause of the Environmental Impact Assessment Law stipulates: “In order to implement the strategy of sustainable development, we should prevent urban planning and construction projects from having a harmful impact post-construction. This law was drawn up to promote harmonious development between economic, social and environmental development.” The second clause stipulates, “The environmental impact assessment named in this law is directed at predicting, analyzing and evaluating the potential impact of urban planning and construction projects, and to suggest preventative, alleviating countermeasures or implement a system of close monitoring in cases where a project will have a negative impact on the environment.” The first clause of Regulations for the Management of Environmental Protection Under Construction Projects stipulates: “These regulations were drawn up to prevent construction projects from producing more pollution and environmental damage.”
Based on the above stipulations, the goal of an EIA is “To take precautions and guard against potential environmental damage”. If we accept the reasoning of the Court of First Instance and the defendant, namely, that you can conduct a make-up EIA for a completed construction project, then these above stipulations should be corrected to state that “a make-up EIA should be conducted to curb the polluting impact of completed or nearly completed construction”, and the entire law and statutes should be changed to reflect this goal. Evidently, the reasoning of the Court of First Instance and the defendant contradicts the law and the spirit and goals of the legislation. This is because the goal of the Environmental Impact Assessment Law and Regulations for the Management of Environmental Protection Under Construction Projects is to prevent a potential environmental impact, therefore, the article stipulates that “construction should be ordered to stop, and a make-up EIA” conducted, namely, demanding a make-up EIA process in the middle of a construction project. These stipulations are intended to complement each other. If you conduct an EIA on an already completed construction project, you undermine the meaning and application of an EIA, because the only possible use for an EIA then is to submit the EIA for post hoc review. If the EIA isn’t submitted for review, then there is no way to address pollution problems. Therefore, if this ruling is upheld, it will encourage construction projects to adopt this trick of completing construction at full speed without an EIA and then providing an EIA after the project has been completed.
Here is the dilemma: If an EIA is conducted before construction begins, in accordance with the law, there is a chance that the project won’t be approved and construction will have to be stopped. However, if you go against the law and begin construction without conducting an EIA, and then provide an EIA after construction, you will almost inevitably get permission. Does the Court of First Instance truly believe that this is the spirit of the legislation? I submit that these practices should not continue, otherwise we condone distortions of the law, and in yielding to these practices, allow these blatant violations of the law to don the garb of legality. In other words, we allow our legal system to become corrupted by our implementation of the law. This will cause people to lose faith in the law, and in justice.
As to the statement repeatedly voiced by the defendant and included in the final judgement of the initial hearing that “this project makes a significant contribution to the public good”: On what basis does the defendant make this claim? In the plaintiff’s eyes, the defendant’s claim that the ‘project improved the standard of living in the plaintiff’s community’ is simply a pretext. Even before the project was constructed, people from the surrounding communities were using electricity, so the supposed ‘significant contribution to public good’ really only relates to improvements for the economy, which is not much of a benefit. The most important public good here is the health and safety of the plaintiffs and their fellow community members. Finally, at the most basic level, if this project was truly committed to the public good, the construction company should be even more committed to respecting and upholding the law, and should not turn ‘public good’ into nothing more than a pretext for violating the law.
In answer to this closing statement, the defendant (the Wenzhou Environmental Protection Bureau) simply stated that they hoped the court would uphold the judgement of the original hearing.
The third party (the Wenzhou Electric Power Bureau) then stated that the legal foundations for whether or not a the time period for a make-up EIA included completed construction projects could be found in State Council Legal System’s explanation. During this hearing, the plaintiff was not able to provide any direct evidence to refute the legality of the timing of the defendant’s EIA. Moreover, to prove that this case involved significant public good, the third party used a quote from the Zhejiang Development and Reform Commission. Specifically, “this project has improved the lives of the surrounding residents and was constructed to maintain economic development and meet the electricity needs of the province’s residents.
On August 17th, 2011, the Wenzhou Intermediate People’s Court ruled against the plaintiff to uphold the original judgment.