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Environmental Public Interest Litigation Could Be Instrumental in Protecting China’s National Parks

Wednesday, March 11, 2020
Zhuoshi Liu

Zhuoshi Liu

Staff Attorney; Director, China Program

With its vast land and sea territory spanning 9.6 million square kilometers (3.7 million square miles), China is one of 17 mega-biodiversity countries in the world. It is home to nearly 10% of all plant species and 14% of all animals on earth. Protecting China’s uniquely rich biodiversity is therefore paramount to the country itself and to the entire world. Over the past 70 years, China’s central and provincial governments have established 11,800 nature reserves that total 18% of the country’s territory—the same size as France, Germany, Norway, and Sweden combined. The full potential of China’s nature reserves, however, has yet to be realized.

PandaOne major challenge China faces is the lack of effective coordination between the multiple national agencies and other jurisdictions concerned with environmental protection, natural resources, economic planning, law enforcement, agriculture, and tourism. Quite often, the division of labor and resources among the national, provincial, and local governments is beset with conflict and confusion. China’s nature reserves face increased threats from unlawful hunting, logging, mining, industrial development, and tourism as a result.

In 2017, China’s government issued an ambitious plan to restructure its nature reserves program into a streamlined national parks system in hopes of better protecting the country’s rich biodiversity. A key feature of the new system was transferring the various regulatory authorities that had belonged to at least 13 separate agencies into one. In 2018, the National Park Administration (NPA) was established within the Ministry of Natural Resources (MNR) to assume the role of a unified regulator. By July 2019, NPA reorganized several nature reserves into 10 pilot national parks. Combined, the parks comprise 85,000 square miles, which is equivalent to the total area of the 62 national parks in the United States. These pilots include:

  • Sanjiangyuan National Park, which protects a vast area of 47,530 square miles on the Tibetan Plateau in Qinghai province located at the headwaters of Asia’s three largest rivers (Yangtze River, Mekong River, and Yellow River);
  • Giant Panda National Park, which aims to connect the fragmented habitats of giant pandas and other endangered specifies in three Chinese provinces; and
  • Northeastern Tigers and Leopards National Park, which is located near the China-Russia border and provides safe haven to the highly endangered Siberian Tiger and Amur Leopard.

As with many conservation and environmental protection programs, enforcement will be key to the park system’s success. Environmental public interest litigation (EPIL), which China’s legislature authorized a few years ago, could be a powerful enforcement tool to protect China’s national parks from illegal hunting and other threats.

tigerChina’s new Environmental Protection Law, which went into effect in 2015, authorizes Chinese NGOs to file civil EPIL. In 2017, China prosecutors—public attorneys headed by the Supreme People’s Procuratorate (SPP) and independent from any administrative agency—were given the authority to file civil EPIL cases against private violators and administrative EPIL cases against government officials or agencies. Between January 2015 and December 2019, Chinese courts heard 330 EPIL cases filed by NGOs. And according to SPP President Zhang Jun’s testimony at a hearing organized by the Standing Committee of the National People’s Congress, prosecutors opened more than 100,000 EPIL cases between July 2017 and September 2019. Though only 5%—roughly 5,000—of the prosecutors’ cases went on to trial, most of the government defendants corrected their violations per the request of the prosecutors before a trial even began.

A notable feature of EPIL is the preference that NGOs, as opposed to prosecutors, file the case. Under a regulation issued by SPP and China’s Supreme Court in March 2018, prosecutors must publish a notice of intent before filing a public interest case to determine whether any NGOs are interested in filing suit to address the same violation. If no NGO files a case before the 30-day notice period expires, the prosecutors may proceed. This is the reverse of what often occurs in the United States, where potential citizen plaintiffs must provide notice to the relevant U.S. agency in advance of filing a lawsuit. The Procuratorate for Qilian Mountain National Forest in western China, whose jurisdiction covers part of the Qilian Mountain National Park, recently published an online notice of intent to file a civil EPIL case against poachers in early January 2020. It is currently unclear if the procuratorate or any NGO filed a case before the notice period ended due to the area being under lockdown following the coronavirus outbreak. But in several EPIL cases on illegal wildlife trade, the prosecutors chose to litigate when no NGOs expressed interest by the end of the notice period.

Another feature of EPIL in China is that prosecutors will often bring civil EPIL claims into criminal cases if the criminal and civil claims arise out of the same violation. In an April 2019 case in Chengbu Ethnic Miao Autonomous County, Hunan Province, prosecutors filed civil public interest claims along with criminal charges against defendants who allegedly killed silver pheasant (a Level II-protected species in China) and other protected animals in the Nanshan Mountain National Park. The court sentenced the three defendants to 6-8 months jail time and ordered them to pay RMB 10,000 (USD $1,400) in criminal fines. The court also imposed RMB 7,150 (USD $1,000) in civil damages for the loss of ecological services.

Environmental rule of law and effective enforcement will have vital roles to play as China continues to develop its national park system. Traditional enforcement mechanisms within the environmental sphere include administrative action by the Ministry of Ecology and Environment and its local counterparts, environmental torts litigation, criminal actions, civil cases filed by governments, and special actions taken by the Supervision Committee on Environmental Protection under the CCP Central Committee for environmental violations committed by government agencies or officials. But because of its potential to empower local citizens and prosecutors to use environmental law to combat ecological degradation or environmental pollution, EPIL is becoming an important supplement to these other enforcement mechanisms.

Fortunately, it appears that national park administrators are beginning to realize the value of EPIL. In August 2019, a public interest litigation coordination office was established at Sanjiangyuan National Park to assist the park’s management office, the provincial Department of Forestry and Grasslands, the provincial procuratorate, and other enforcement agencies to join their efforts in using EPIL to protect the park. As the government and civil society continue to experiment with EPIL, it could prove to be highly impactful in protecting China’s national parks and other protected areas.

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