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Experts discuss compensation for victims
By Yan Shuang Source:Global Times Published: 2012-7-4 22:40:03
Fishermen clear dead fish in Tancheng, Shandong Province on May 8. The fishermen suspect that 300 cages of fish died due to industrial pollution. Photo: CFP
With tales of pollution recently dominating headlines worldwide, such as the ConocoPhillips oil spill and the subsequent lawsuits, China's top environmental officials and scholars gathered on Tuesday and Wednesday to discuss a compensation system for victims of pollution.
After failing to receive compensation for the damage caused by the ConocoPhillips oil spill in the Bohai Bay, some 500 fishermen from Shandong Province filed a lawsuit against the US energy giant for their losses on Monday. A court in Houston, Texas, has accepted their appeal.
The fishermen, who are excluded from the company's billion-yuan compensation deal reached in January, are faced with the same situation that confronts many other pollution victims in China, say experts who attended the two-day forum hosted by the Ministry of Environmental Protection and Japan International Cooperation Agency in Beijing.
A one-sided system
"Victims always lose in pollution damage lawsuits, due to their inability to collect evidence, and the discreet rulings made by judges who might face pressure from local government to 'sustain social stability,'" said Wang Jin, an environmental law professor with Peking University.
"There are no specific laws outlining whether it should be the plaintiff or the defendant who should prove or rule out a connection between the alleged pollution source and the effects," said Wang, adding that there are no scientific standards to evaluate the damage done to human health.
A resident in Haian, Jiangsu Province sued a local garbage incineration plant in 2010, after his son was diagnosed with cerebral palsy. Several other villagers had died of cancer since the plant was launched in 2006. Residents believed it was the dioxin from garbage incinerations that led to the diseases and deaths, but a local court ruled against the resident, saying he did not have enough proof of a connection between the disease and the pollution.
Pollution victims in China received a total of 20 million yuan ($3.15 million) worth of compensation in lawsuits filed nationwide on pollution damage disputes in 2010, according to an official with the Ministry of Environmental Protection who spoke at the forum but declined to be named.
"The victims should have been compensated with much more money, given the number and scale of the pollution damage cases," he said.
Victims will have to learn how to collect and keep evidence in their favor, while NGOs should appeal for public lawsuits, the official said.
Holes in the legislation
An obstacle for these victims is the fact that China does not have comprehensive legislation on pollution compensation, said ministry officials.
Although there are stipulations regarding pollution damage, the officials said those responsible find ways to avoid punishments because the existing stipulations are insufficient.
The first mentions of pollution payouts in Chinese law came as part of the General Principles of the Civil Law, which was passed in 1986. It said that whoever breaches national environmental protection regulations and causes damage to others through pollution should be held liable.
A 1989 environmental protection law stipulates that those who cause pollution damage should be responsible for mitigation and compensation. Other laws, including the Marine Environment Protection Law and the Tort Law, also include environmental tort and compensation articles.
"But the current stipulations do not ensure that pollution damage appeals will be filed at court, and even if courts do accept the cases it's difficult for victims to win or receive reasonable compensation," said Wang Jiansheng, an official with the Policy Research Center for Environment and Economy under the ministry.
Governments have been treating economic development rather than environmental protection as their priority, he added. He also noted that there are no organizations that assess pollution damage to human health, and no environmental liability insurance policies or funds are in place to ensure compensation is fully paid and on time.
With tales of pollution recently dominating headlines worldwide, such as the ConocoPhillips oil spill and the subsequent lawsuits, China's top environmental officials and scholars gathered on Tuesday and Wednesday to discuss a compensation system for victims of pollution.
After failing to receive compensation for the damage caused by the ConocoPhillips oil spill in the Bohai Bay, some 500 fishermen from Shandong Province filed a lawsuit against the US energy giant for their losses on Monday. A court in Houston, Texas, has accepted their appeal.
The fishermen, who are excluded from the company's billion-yuan compensation deal reached in January, are faced with the same situation that confronts many other pollution victims in China, say experts who attended the two-day forum hosted by the Ministry of Environmental Protection and Japan International Cooperation Agency in Beijing.
A one-sided system
"Victims always lose in pollution damage lawsuits, due to their inability to collect evidence, and the discreet rulings made by judges who might face pressure from local government to 'sustain social stability,'" said Wang Jin, an environmental law professor with Peking University.
"There are no specific laws outlining whether it should be the plaintiff or the defendant who should prove or rule out a connection between the alleged pollution source and the effects," said Wang, adding that there are no scientific standards to evaluate the damage done to human health.
A resident in Haian, Jiangsu Province sued a local garbage incineration plant in 2010, after his son was diagnosed with cerebral palsy. Several other villagers had died of cancer since the plant was launched in 2006. Residents believed it was the dioxin from garbage incinerations that led to the diseases and deaths, but a local court ruled against the resident, saying he did not have enough proof of a connection between the disease and the pollution.
Pollution victims in China received a total of 20 million yuan ($3.15 million) worth of compensation in lawsuits filed nationwide on pollution damage disputes in 2010, according to an official with the Ministry of Environmental Protection who spoke at the forum but declined to be named.
"The victims should have been compensated with much more money, given the number and scale of the pollution damage cases," he said.
Victims will have to learn how to collect and keep evidence in their favor, while NGOs should appeal for public lawsuits, the official said.
Holes in the legislation
An obstacle for these victims is the fact that China does not have comprehensive legislation on pollution compensation, said ministry officials.
Although there are stipulations regarding pollution damage, the officials said those responsible find ways to avoid punishments because the existing stipulations are insufficient.
The first mentions of pollution payouts in Chinese law came as part of the General Principles of the Civil Law, which was passed in 1986. It said that whoever breaches national environmental protection regulations and causes damage to others through pollution should be held liable.
A 1989 environmental protection law stipulates that those who cause pollution damage should be responsible for mitigation and compensation. Other laws, including the Marine Environment Protection Law and the Tort Law, also include environmental tort and compensation articles.
"But the current stipulations do not ensure that pollution damage appeals will be filed at court, and even if courts do accept the cases it's difficult for victims to win or receive reasonable compensation," said Wang Jiansheng, an official with the Policy Research Center for Environment and Economy under the ministry.
Governments have been treating economic development rather than environmental protection as their priority, he added. He also noted that there are no organizations that assess pollution damage to human health, and no environmental liability insurance policies or funds are in place to ensure compensation is fully paid and on time.
NGOs to the rescue?
A drafted amendment to the Civil Procedure Law, submitted to the National People's Congress last year, includes a public interest litigation principle, which entitles groups to file lawsuits for the public interest and environmental protection.
As yet, there has only been one successful case. On May 15, seven people were sentenced to three to four years in prison in Qujing, Yunnan Province after a chemical plant was found to be polluting nearby waters with chromium, resulting in the deaths of animals. Friends of Nature, a Beijing-based environmental NGO that sued the plant together with the local environmental protection bureau, told the Global Times it was not an easy task.
"We were harassed by the plant employees when investigating on-site, and the local court accepted the case a month after we sent our appeal," said Guo Jinghui, media officer with Friends of Nature. Many other NGOs have also attempted to file public-interest lawsuits, but most have been rejected.
Changing the laws
According to Wang Jiansheng, ministry officials have visited other countries such as Japan to learn from their experiences. Japan introduced a compensation law on public health hazards in 1973, which says polluting companies should take responsibility for compensating victims, but sometimes the government also compensates them via a public fund.
The ministry is also working on a database of the environment and human health, Wang Jiansheng said, adding that the path to establishing a compensation system "might take decades for China and all we can do is to wait for the legislation, or a major health crisis, to urge the top legislators to take action."
However, Wang Mingyuan, a professor with Tsinghua University, said, "it will be horrible if we wait and do nothing."
"The lack of legislation isn't an excuse. The laws are already sufficient," he said, "it's the law enforcers and court judges who haven't been acting responsibly." China and Japan are taking different approaches toward pollution damage cases, he said, with Japan trying to protect the interests of the victims and China prioritizing profit over human health.
"The situation will not see substantial change unless China's legislators and courts take initiatives to make a difference," said Wang Jin. Governments should take the lead on the pollution compensation issue, he said.
A drafted amendment to the Civil Procedure Law, submitted to the National People's Congress last year, includes a public interest litigation principle, which entitles groups to file lawsuits for the public interest and environmental protection.
As yet, there has only been one successful case. On May 15, seven people were sentenced to three to four years in prison in Qujing, Yunnan Province after a chemical plant was found to be polluting nearby waters with chromium, resulting in the deaths of animals. Friends of Nature, a Beijing-based environmental NGO that sued the plant together with the local environmental protection bureau, told the Global Times it was not an easy task.
"We were harassed by the plant employees when investigating on-site, and the local court accepted the case a month after we sent our appeal," said Guo Jinghui, media officer with Friends of Nature. Many other NGOs have also attempted to file public-interest lawsuits, but most have been rejected.
Changing the laws
According to Wang Jiansheng, ministry officials have visited other countries such as Japan to learn from their experiences. Japan introduced a compensation law on public health hazards in 1973, which says polluting companies should take responsibility for compensating victims, but sometimes the government also compensates them via a public fund.
The ministry is also working on a database of the environment and human health, Wang Jiansheng said, adding that the path to establishing a compensation system "might take decades for China and all we can do is to wait for the legislation, or a major health crisis, to urge the top legislators to take action."
However, Wang Mingyuan, a professor with Tsinghua University, said, "it will be horrible if we wait and do nothing."
"The lack of legislation isn't an excuse. The laws are already sufficient," he said, "it's the law enforcers and court judges who haven't been acting responsibly." China and Japan are taking different approaches toward pollution damage cases, he said, with Japan trying to protect the interests of the victims and China prioritizing profit over human health.
"The situation will not see substantial change unless China's legislators and courts take initiatives to make a difference," said Wang Jin. Governments should take the lead on the pollution compensation issue, he said.
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