The NGO That Sued Over Polluted Land Lost. Is It Really Just About the 1.89 Million Yuan in Court Fees?

The pollution itself is not in dispute. Who is responsible for it has become impossible to pin down.

The litigation team at Friends of Nature never expected to lose outright.

Friends of Nature is a grassroots environmental NGO founded in 1994 by Liang Congjie, the son of Liang Sicheng and Lin Huiyin. It has no commercial revenue and runs on foundation grants and individual donations. In 2016 it filed suit in the Changzhou Municipal People's Court in Jiangsu province against three chemical companies in the city, accusing them of contaminating the surrounding soil while making chemical products. The case grew out of the pollution at the new campus of Changzhou Foreign Language School. After CCTV and other outlets followed up, the public largely tied the pollution to the illnesses reported among the school's students — you have probably seen this story — and then, as with many similar stories, the argument petered out without a resolution.

But Friends of Nature was not suing on the school's behalf. It was suing on behalf of the public. Natural resources in China are "owned by the whole people or by collectives," and suits brought by environmental NGOs are usually called environmental public interest litigation. The logic differs from an ordinary suit, in which a plaintiff believes its own interests have been harmed and asks the defendant to pay. The clearest sign of the difference: no one has ever given a clear answer about who would receive the damages, or how that money would be managed.

The complaint was filed on April 29, 2016. Friends of Nature asked the three companies to apologize publicly and to cover the cost of repairing the environment. That cost came to 370 million yuan, though the figure was not spelled out at first.

On January 25, 2017, Zhang Boju, who runs Friends of Nature, received a text message from the court with the verdict. They had lost, and they were also told to pay 1,891,800 yuan in court fees. No sum like it had ever come up before — not in Friends of Nature's history, and not in the history of environmental public interest litigation by NGOs.

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January 25 fell too close to Chinese New Year's Eve. Zhang Boju worried that with everyone busy preparing for the holiday, no one would care how the case had come out.

He needn't have worried. Almost every outlet ran the news. The reports were not built on detailed interviewing, but plenty of people were stunned by the number: an NGO, ordered to pay 1.89 million yuan. The fee followed the standard formula for civil cases, but legal scholars said it could just as easily be read as a punishment aimed at the plaintiff.

As for why the case was lost, the Changzhou Municipal People's Court wrote in a 20-page judgment that the pollution was real, but that the chemical plants had complicated histories. The oldest traced back to the 1920s and 1930s, and they had since been through nearly every form of restructuring: state-enterprise reform, reorganization, Sino-foreign joint ventures. The companies argued that no one could say for certain who was responsible for the pollution, and that the evidence fell short. The court held that proving it was the NGO's job, and that the NGO had not given a precise enough account.

A second argument against the NGO was that the Changzhou government had taken the land back from these companies several years earlier, for planned commercial development. It then found severe pollution and began cleaning it up. The court held that the pollution was already under control and the soil was recovering.

The lawyers who won declined to speak to QDaily. One, at the Boaixing law firm, apologetically said his client felt the timing was wrong. Another key defense attorney, Cai Xue'en, laughed on the other end of the line and said he found the phrase in QDaily's question — "the so-called side of justice" — interesting.

No one at Friends of Nature, Zhang Boju included, had expected the court fee. They, too, described their reaction as "shocked."

Their co-plaintiff, the China Biodiversity Conservation and Green Development Foundation (CBCGDF), another environmental NGO, came closer to panic. "The judgment makes no sense," Zhou Jinfeng, who heads CBCGDF, told reporters. The foundation then launched a public fundraising drive and asked the court to let it defer payment of the fee.

Outside, the argument over the fee kept building. People turned the figure over, and from every direction came the charge that the fee was badly wrong. But Zhang Boju said the fixation on the "sky-high court fee" left him feeling "bitter." He also had some complaints about his fellow plaintiff, who had failed to meet an unexpected situation with more composure and professionalism, which risked dragging Friends of Nature into the same misunderstanding. The organization has spent years building an image of being "persistent, patient, professional," as one peer put it. They take that seriously, and they are wary of the stereotype people attach to NGOs — that they are zealots. "We don't have to respond to what the public expects," Zhang Boju said.

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Friends of Nature sees many problems in the ruling. "We think the facts of this case are quite clear, and our reasoning is fairly solid," said Ge Feng, who heads the organization's legal department.

The Changzhou government had begun cleaning up this land years earlier; as the environmental regulator, it had now taken on the whole job of repairing the damage. That is precisely what angered the environmental NGOs. Friends of Nature argued that this framing was a distraction, and that the more important fact was that the government was not the party that had poured chemicals into the surrounding soil. They pointed to a matching legal basis: "responsibility shall be borne by the entity or individual that caused the soil pollution." That line comes from the Action Plan for Soil Pollution Prevention and Control, issued in May 2016.

Friends of Nature also rejected the idea that it fell to them to prove when each company had damaged the surrounding soil and by how much. Their practice had always been to supply, at the time of filing, only preliminary evidence that the pollution existed and that the accused party was likely to have caused it. That practice has a basis in judicial interpretations from the Supreme People's Court. And over the previous two years, Friends of Nature had filed no fewer than 20 environmental public interest suits this way, without anyone calling it a flaw.

Ge Feng said they laid these arguments out clearly over several hearings. Another lawyer who took part said "the court was more careful and cautious in its review"; the longest single hearing ran more than eight hours. In the end, not one of the arguments survived into the judgment issued in January.

Legal scholars now lean toward the losing side. Some are willing to give up the "principle of fairness" altogether, arguing that rulings should tilt toward environmental NGOs — public interest litigation and the groups that bring it are still new, and still too weak to stand as equals. Others make a graver point: the case matters because it shows that the rather simple principles of ordinary civil litigation do not fully fit public interest cases. Xu Yixiang, a professor of environmental and natural resources law at Southwest University of Political Science and Law, said courts have long followed the fairness principle of "whoever makes the claim bears the burden of proof." If they are genuinely weighing the public interest, he said, they should not settle for being a neutral middleman.

In the month after the verdict, we found almost no third party willing to defend it in public. Opinion this one-sided is rare, and it makes the whole affair harder to read.

But not everyone on the NGO's side thinks this is only about whether the ruling was sound. Zhou Ke, a law professor at Renmin University who spoke with us, said he had expected the loss. "The loss exposed problems on every side — from officials, from society, from the companies, and possibly inside the NGOs themselves," he said. "They tend to underestimate how hard and how risky environmental public interest litigation is, and they may not have thought through what losing would cost."

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Friends of Nature may not qualify as a legal specialist, but it is at ease dealing with courts. Over the past two years it has filed no fewer than 20 environmental public interest suits. Ask which organization is best at fighting environmental cases and, unsurprisingly, every peer names this one.

A few landmark cases made its name in the field. In 2011 Friends of Nature filed an environmental public interest suit over chromium pollution — the first such case brought by a grassroots environmental group. Gathering evidence afterward proved difficult, and the case has still not gone to trial or reached a settlement anyone is happy with; it is still running. Another case, about forest vegetation, was accepted by a court on January 1, 2015, the day the new Environmental Protection Law took effect — timing that was also worth the record books.

Zhang Boju said that here, as in Changzhou, careful strategy was involved, including when to file and when to hold back. But he rejects the idea that they are chasing the label of "the first." In Changzhou, they hoped to shape the coming Soil Pollution Prevention and Control Law. That is why, in 2016, they deliberately went looking for more soil pollution cases they could take to court.

Zhang Boju joined Friends of Nature in 2006 and has watched it grow since. In 2013, after finishing a master's degree at the Chinese University of Hong Kong, he became its director.

He doesn't like talking about growth in headcount — 20 full-time staff, barely changed over the past few years. Ask him when the NGO grew fastest and he will tell you the question is wrong: the team does set plans at the start of each year and publish annual reports, but unlike a business, he puts little weight on those numbers. What finally shows an NGO's growth, Zhang Boju said, "is influence."

Over the past few years Friends of Nature has started the Gaia School of Nature to spread environmental knowledge. It has also tried building mass-market environmental projects with commercial brands — designing environmental plans for outdoor competitions with the outdoor sports brand Sanfo, for example. That product team, known internally as Public Action, is now the largest department in the organization; at best, it could make the NGO's brand as familiar as a consumer product.

Beyond that, Friends of Nature has put serious staffing and budget into its legal department. When Ge Feng joined in 2013 to run it, the department had two part-timers; now, counting her, it has five full-time employees and two part-timers. It will be bringing more and more environmental public interest suits. In 2015 the count was six; in 2016, the year of the Changzhou soil pollution case, Friends of Nature brought about 20. The "case selection form" used to judge whether a case is worth filing is now in its fourth version.

There is reason to see litigation as an important way for an NGO to build influence — a big case always draws heat, especially one about pollution. Zhang Boju thinks a more accurate way to put it is that NGOs have become more professional at environmental protection than they used to be. Litigation was never their specialty, yet Friends of Nature can now name its advantages precisely: the cost of cleanup amounts to a harsh financial penalty, and financial penalties are the best way to warn a polluting company. Eventually it will understand that pollution is part of its operating cost too.

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Friends of Nature had one more ally on the plaintiff's side: Green Jiangnan, an NGO less than five years old. It is based in Suzhou, Jiangsu, an hour's drive from Changzhou.

Green Jiangnan may have been the first team to find the contaminated plots; it has long done on-site monitoring and evidence collection. Peers call the team relentless — they knew companies dump wastewater when it rains hard, so they would lie in wait for a downpour and then charge out into it. In 2015 they already had some preliminary evidence. But Fang Yingjun, Green Jiangnan's director, later said that at the time "the scale was too large, so we didn't push it."

When the pollution came up again, Fang Yingjun noticed the coverage from CCTV and other outlets, and heard that some government officials were concerned. He read that as a change. "The whole climate was behind it — from the central government down to the local level, everyone took it very seriously," Fang Yingjun said.

He consulted Lanzhitian, an established Suzhou law firm. Its managing attorney, Zhou Chunlei, later gave us an account that did not entirely match Ge Feng's. He thought the case was legally contentious, and that there were also pressures working out of sight. "We had no idea what the final outcome or conclusion would be," Zhou Chunlei said. He was not the lawyer directly representing Green Jiangnan in this case, but as the firm's spokesman and managing attorney, he said he had studied the case files.

Fang Yingjun also talked it over with staff at the local environmental protection department, and got two opposite answers. Some held to the principle that whoever pollutes cleans up, as a warning to polluters. A smaller group argued that "the government is already cleaning it up, so a public interest suit isn't necessary."

A few days after the complaint went in, Zhang Boju took a private call from a Changzhou official who "hoped to meet with Friends of Nature and talk," and another from one of the defendant companies, which "hoped Friends of Nature would withdraw." A few days later, Changzhou deputy mayor Shi Zhijun and several officials from the environmental protection bureau showed up at Friends of Nature's Beijing office.

The reminders and warnings seem to have had no effect; the NGO had no intention of compromising on this case. If anything, it sped up its preparation. Zhang Boju said they worried that public feeling about pollution coverage would keep intensifying, and that this could instead turn such cases into forbidden ground. The NGO had to get to court first.

Over two weeks, besides sending volunteers to the site, Friends of Nature's main work was filing more than 20 requests for public information with government environmental departments, including remediation plans the government had drawn up and the related inspection reports. But they filed their case materials without waiting for those documents to arrive. What they filed included media reports and cleanup updates published on government websites.

"We wanted that case filed as fast as possible," Ge Feng explained later. "We kept collecting material on it after we filed."

And that is exactly what the judgment seized on: the material proved there was pollution in these areas, and it also showed that the government had already started cleaning up — which became one of the court's grounds for throwing the claim out.

Zhou Chunlei later argued that the shortcut of relying entirely on public government documents may have been a problem here. "In our usual experience with these cases, this kind of case also involves an appraisal — setting the value of the loss, or the scope of the work. But here the plaintiffs, Friends of Nature and CBCGDF, may have used the government's cleanup report as the basis for their appraisal. It saves work, but other cases go through a formal appraisal process." Those processes usually require collecting evidence and lab testing, which takes a great deal of time and money.

Still, he added, that doesn't mean the ruling itself is free of legal problems.

Ge Feng also said afterward that Friends of Nature's environmental public interest suits had tripled in the past year, and that running several at once may indeed have thinned out their preparation. "We didn't put in enough — our legal team needs to be stronger." But she wanted to stress that this was a secondary reason for losing at first instance: "Based on the evidence we have, our claims should still have been supported."

The lawyer representing Friends of Nature declined to be interviewed.

5

Legal scholars worry that the ruling sets a bad example, as though implying that "once something touches the government, you can't go near it, it becomes forbidden ground."

Zhou Ke said the court, deliberately or not, ignored an important fact: the government is paying the 370 million yuan for the cleanup on the companies' behalf, and all of that money comes out of government revenue — taxes. It means local residents, not the polluters, are paying for it.

The court ignored more than that. Xu Yixiang, the legal scholar, is co-writing an academic paper on the purpose of environmental public interest litigation, which, besides making sure environmental problems get fixed, is also meant to make polluters pay compensation for the damage. "The purpose isn't a single one," Xu Yixiang said. In the Changzhou soil pollution case, the court ignored the second half. Unlike Zhou Ke, though, he would not speculate about why.

No one can quite tell whether the government's attitude here is encouragement or unease. That has become one more thing complicating NGOs' environmental public interest suits.

One fact: after the Supreme People's Court set up "environmental courts" in 2015, courts almost everywhere in the country now have dedicated environmental divisions hearing environment-related cases. A source who asked not to be named also said local procuratorates must bring a set number of environmental public interest suits each year, as a mandatory administrative task. No other interviewee confirmed this.

At the same time, lawmakers appear to have no intention of fully opening up the public's right to take part in environmental matters.

In 2012 the Civil Procedure Law restricted environment-related public interest suits to "organs and relevant organizations specified by law." At the time no law had spelled out what that meant. For years afterward, because of that vagueness, only environmental organizations tied to official environmental protection departments — the All-China Environment Federation, for instance — had a clear, independent right to file an environmental public interest suit. When an environmental NGO found a source of pollution, the usual move was to report it to the environmental protection department, and those agencies would supervise the company's cleanup. They typically wrote fines of only 30,000 to 50,000 yuan.

The revised Environmental Protection Law finally spelled it out in 2015. The new threshold: registration with the civil affairs department of a municipal-level or higher government, and five or more consecutive years working specifically on environmental protection public interest activities with no record of violations. About 700 NGOs qualify.

The provision also implies that even a qualified environmental NGO can only sue companies. It cannot sue the government over inaction or improper conduct on environmental problems.

In a documentary NHK released last May, China's Environmental Litigation Battles (《中国环境诉讼攻防战》), the crew followed several of Friends of Nature's environmental public interest suits. Ge Feng is one of its central figures. On camera, talking about conflicts between law and policy, she said people often use "how could the government be wrong?" to make the question go away, but "I think there's right and wrong on both sides."

Like Under the Dome (《穹顶之下》), the 2014 documentary about the public investigating environmental problems, this film's Chinese-subtitled version is rumored to have been banned.

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On March 1, the 22nd day after filing their appeal, Friends of Nature received a letter from the Jiangsu Higher People's Court: the appeal had been accepted. But with the uproar over the court fee past, the second-instance case drew little attention.

The same day, CBCGDF received its own notice of acceptance. It had filed its appeal on February 19.

Given that they could lose again, second-instance court fees plus lawyers' fees mean Friends of Nature and CBCGDF may end up paying more than 3 million yuan.

The other side has grown stronger, too. Companies accused of polluting have begun hiring specialist environmental lawyers, either to escape punishment or to fend off hot-headed, malicious suits. Those lawyers include Cai Xue'en, who represented the defendants at first instance and is well regarded in environmental law. In the past he has also proposed more support for environmental NGOs, and suggested extending the time limit for environmental suits from three years to 20, since environmental problems can lie dormant for years.

But Fang Yingjun, who backed Friends of Nature and CBCGDF in this case, said they have no need to worry about the "sky-high" fee: "It's in the Supreme People's Court judicial interpretation — the plaintiff applies to the court for a reduction or a full waiver, and doesn't have to pay."

That is probably the only thing they don't have to worry about.

Cover image from the films A Civil Action (《公民行动》) and An Inconvenient Truth (《难以忽视的真相》)