Energy Governance Case Study #13

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Contents Executive Summary 3 Introduction 4 The case in context: China’s energy governance landscape 4 Opening the door to public participation 7 The plantiff’s complaint and the would-be case 9 Conclusions 18 References 19 Acknowledgements 24 About the authors 25

Image: AdamCohn @ flickr.com

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In recent decades, demand for electricity in China has grown faster than in any other country at any other time in history. To help meet this rapid growth in demand China built and commissioned thousands of new coalfired power plants. As a result of this buildup, China became the world’s largest coal user and the largest emitter of sulfur dioxide (SO2). Coal-fired power plants are China’s largest single source of atmospheric SO2 pollution, which is the major component of acid rain and a major cause of China’s severe air pollution.

Since 1979, China has drafted numerous laws and policies that aim to control and limit SO2 emissions. In recent years, China has also endeavored to promote public participation as a means to improve environmental protection and monitor pollution. A growing commitment to address China’s severe environmental degradation led to the establishment of environmental courts/tribunals across China. Beginning in 2009, some of these environmental tribunals began to expressly promote standing provisions for public interest plaintiffs as a pragmatic means of increasing oversight and the enforcement of environmental law.

As of January 2011, China’s e-tribunals decided 15 public interest cases – government prosecutors or government agencies brought 13 of these cases. The remaining two cases were brought by the All China Environment Federation, a government organized “non-governmental organization”, originally established and partially funded

by China’s Ministry of Environmental Protection.

The promotion of public participation and public interest standing in the environmental courts emboldened senior environmentalists and public interest environmental lawyers in China. In May 2010, an independent non-governmental organization (NGO), the Chongqing Green Volunteers, filed a public interest action with the Kunming Intermediate Court’s environmental tribunal

against the Guodian Yangzonghai coal-fired power plant.

The plaintiff’s case was premised on the documented failures of the plant to operate SO2 scrubbers and control emissions. Prior to filing the case, the plaintiff and the plaintiff’s lawyers engaged in discussions with judges from the Kunming Court and strategically decided to file their case with the hope that it would be the first true non-governmental organization to bring an environmental public interest suit to address a nationally recognized environmental issue. However, after initial signals from the court that it would accept the case, it later became clear that the case would not be accepted.

In comparison to other environmental public interest cases that were brought in China, the plaintiff’s case was unique in many aspects. First, the plaintiff was an independent NGO. Second, the plaintiff’s complaint and the remedies requested were uniquely public interest in nature. Third, the targeted defendant was one of China’s five largest electric generators and it was already contractually obliged to China’s executive to reduce SO2 emissions. Fourth, the plaintiff’s case cut to core issues impacting China’s energy security and social stability.

Importantly, the case also tests the robustness of China’s promotion of public participation and its reliance on China’s weak judiciary to be effective. Additionally, the case highlights the existence of dual enforcement systems within China and how these dual systems impact the public’s ability to participate. An examination of China’s laws and regulations on SO2 emissions evinces that enforcement of laws and policies has less to do with existing written law, and more to do with incentivizing local executive government officials to meet specific goals. While this system of executive driven enforcement proved effective at curbing SO2 emissions in China to some extent, it can also marginalize the role of existing law, the judiciary, and the ability of the public to effectively engage in energy and environmental issues.

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It is hard to overstate the role that energy plays in human development. It is equally as hard to overstate the impact that energy systems have on the environment and human health. For a rapidly developing country, like China, with severe environmental problems, providing for energy security and doing so in a way that does not cause severe environmental harm is critically important.

In contemporary China the tension between environmental protection, energy demand, and economic growth is more evident than almost anywhere else on the planet. Few individual cases or events provide a better platform to examine the ability of the public to engage in core issues concerning China’s energy governance than the case of Chongqing Green Volunteers v.

Guodian Yangzonghai Power Company.

Or the non-case of Chongqing Green Volunteers v.

Guodian Yangzonghai Power Company, that is, because the Kunming City Intermediate Court never accepted the case. The court did not even issue a formal explanation as to why the case was not accepted, despite law requiring that it do so. Regardless, this non-case has garnered a fair amount of attention within public interest environmental law circles in China. Most of the attention around the case is derivative of the broader context that it was brought to the court under, namely, the relatively unique forum of an environmental tribunal—with equally unique provisions for public interest standing.

While these elements of the case are briefly discussed, this article focuses its analysis on the energy governance issues that this case raises, particularly in relation to how civil society can use law and the court system to influence China’s energy governance.

Central to the plaintiff’s case were documented failures by the Guodian Yangzonghai Power Company to operate desulfurization equipment at its coal-fired power plant. The plaintiff alleges that these failures were intentional and resulted in excess SO2 emissions. The case was also the first in China to request increased transparency regarding a power plant’s carbon dioxide (CO2) emissions.

Coal comprises nearly 70 percent of China’s primary energy and SO2 emissions from coal-fired power plants are a major cause of serious air pollution and acid rain nationwide. China also regularly struggles to avoid energy and electricity shortages. Therefore by targeting

the SO2 pollution from a power plant the plaintiff’s complaint cut to core issues surrounding China’s energy governance. These issues are particularly evident here, because during the months preceding the filing of the case in May 2010, China’s southwest suffered from a severe drought that cut hydropower production in the region and prompted coal-fired generators to increase output and emissions.

The plaintiff’s complaint to the court has simultaneously been described by legal experts as failing to state a claim and being a “declaration of war.” In its simplest form, the plaintiff’s case merely requests that the court enforce existing laws and policies that ostensibly aim to limit and reduce sulfur emissions and provide the public with a role in verifying emission controls. At its most ambitious, the case challenges a sensitive status quo surrounding the role of the courts in enforcing law, the role of administrative regulators, the rule of law within China’s energy governance, and basic notions of accountability.

China is the world’s largest consumer of energy and its energy sector is the world’s single largest source of greenhouse gases.1 In 2010, China overtook the U.S. as the largest consumer of electricity at 4192 TWhs, up 14.56% from 2009.2 China’s overall energy consumption more than doubled from 2000 to 2010. Coal comprised nearly 70 percent of China’s primary energy and 77 percent of its electricity generation in 2011.3 China has the world’s largest fleet of coal-fired power plants with over 600 GW of installed capacity. Emissions from China’s coal plants contribute to severe air pollution and acid rain that China struggles to control. The country burns over 45 percent of the world’s coal and the International Energy Agency expects China’s coal use to double by 2035.

After coal, hydropower is China’s second largest source of electricity. Although hydropower only provided 16 percent of China’s electricity in 2010, China is by far the world’s largest producer of hydropower with over 200 GWs of installed capacity.4 Over the next decade China plans to add up to 180 GWs of new hydropower generation. China’s position as a world leader in hydropower deployment has not come without difficulty at home.

Since the completion of the world’s largest dam, the Three Gorges Dam in Hubei Province, there has been

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Figure 1:The 1000 MW Guodian Yangzonghai coal-fired power plant on Yangzong Lake, Yunnan, China

growing concern within China regarding the environmental and social costs of mega-dam projects.5 Additionally, during recent droughts hydropower production fell drastically in the southwest in 2009 through May 2010 and in the central Yangtze River region in the spring of 2011.

The rapid expansion of China’s electric generation hardware and demand has caused growing pains for China’s energy policymaking apparatus.6 Since the 1980s, China has established and discarded a State Energy Commission, a Ministry of Energy, and numerous other attempts to consolidate energy policy development.7 The latest attempt to centralize energy policy is the National Energy Commission, formed by the State Council in 2010. However, for all intents and purposes the National Development and Reform Commission (NDRC), China’s master planning agency, drives China’s energy policy.

The NDRC sets the prices for electricity and influences the pricing of many raw energy commodities; it is the primary author of China’s five-year plans which set industrial and economic policy goals for the nation, and which have major impacts on China’s energy sector.

Despite the official unitary nature of China, China’s central government has struggled over the past two decades

to control the unauthorized building of coal-fired power plants and hydropower dams. It has also struggled to control the environmental impacts and the emissions from power generating facilities, whether the plants were approved or not. The difficulty in enforcing central government laws and policies is attributable to China’s weak rule of law and the lack of a designated regulatory body for China’s energy sector with the ability to control powerful vested interests.

Clearly coal has a special place in China. Some of China’s leading environmental and energy law scholars told the author that environmental advocacy work that targets coal can be sensitive. This sensitivity is attributable to the fact that China relies so heavily on coal for its energy security. China has the world’s third largest coal reserves.

Of course, coal is the dirtiest fuel source and the largest single source of China’s (CO2) emissions. But, currently, China’s largest energy security concern is keeping the lights on domestically in order to maintain economic growth and social stability.8 China has struggled in recent years to meet its rapid growing demand for power. In 2003-2004 major power shortages affected 24 of China’s 31 provinces. In the

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Figure 2: Additions to China’s Electricity Generation in GWs 2006-20109

spring and summer of 2011, the industrial hubs of Zhejiang and Jiangsu suffered power shortages which forced some factories to resort to diesel powered generators.10 In August 2011, frequent power shortages in a suburb of Chengdu brought thousands of residents into the street to protest.11 The China Electricity Council estimates that China will face electricity shortages of 50 GWs in 2012 and up to 70 GWs in 2013 if demand continues to grow at current rates.12 The plaintiff’s case against YZH Power would be sensitive enough if SO2 emissions were the only issue, but the plaintiff also raised the issue of monitoring carbon dioxide (CO2) emissions, the primary greenhouse gas that causes climate change.

Additionally, and perhaps unintentionally, the case ran head-on into energy security concerns. Yunnan is located in China’s southwest which suffered a severe drought from late-2009 through May 2010. From September 2009 through March 2010, hydropower production in the province fell by nearly half of what it was the same period a year earlier, with more drastic hydropower losses in early-2010.13 In neighboring Guangxi Province, hydropower output was reduced by

nearly 90 percent. To meet power demand, Yunnan’s coal-fired power generators increased production by 22 percent from September 2009 through March 2010 and had to rely on high sulfur coal due to coal supply constraints. Correspondingly, in the first quarter of 2010, Yunnan’s SO2 emissions were up 78 percent from a year earlier.14

Ten years ago, the expectation that a court would accept a public interest case like Chongqing Green Volunteers v.

Guodian Yangzonghai Power Company was almost nonexistent. However, over the last decade laws and policies were made to promote public participation and grant public access to government information. Additionally, there was a growing recognition that China’s environmental situation could no longer be ignored. New environmental tribunals sprang up around China as a pragmatic attempt to address rampant environmental pollution. Several of the courts which host an environmental tribunal crafted unique provisions that permit legally recognized groups to bring public interest claims.15

The cornerstone of China’s environmental law framework is the Environmental Protection Law of 1989. The law also provides the basis for public engagement in the enforcement of environmental protection. Article 6 states that, “[a]ll units and individuals shall have the obligation to protect the environment and shall have the right to report on or file charges against units or individuals that cause pollution or damage to the environment.”16 In 1997, the then State Environmental Protection Agency (now, the Ministry of Environmental Protection) began to encourage and require some local environmental protection bureaus (EPBs) to operate hotlines for accepting citizen complaints about pollution. By 2001, a national 12369 hotline was established, and now local EPBs are required to accept hotline complaints 24 hours a day. In many regards the pollution reporting hotlines are a success. The number of complaints lodged with the call centers increased steadily from around 300,000 complaints in 2000 to over 700,000 in 2010.17 However, as Zhang and Yang point out, the hotline complaint system tends to focus attention on pollution that is most noticeable to the human senses; this results in a predominance of nuisance like complaints, which may come at the expense of addressing more serious pollution issues related to public health.18 For example, noise and air pollution complaints that target restaurant and entertainment establishments tend to dominate complaints, and this directs local EPB resources toward such cases, potentially at the expense of targeting pollution, such as SO2 from coal plants, that has a broader impact on society.

environmental public interest lawsuits.21 Following the State Council’s notice, the promotion of public participation in environmental matters increased rapidly.

The largest move to date to promote public participation was the 2007 Open Government Information Regulation (OGI Regulation).22 The OGI Regulation requires government agencies to disclose certain information on their own initiative and to respond to requests for information from the public within 15 business days. The OGI Regulation came after over eight years of local level experimentation with OGI initiatives. Although the OGI Regulation is not “law,” i.e., promulgated by the National People’s Congress, it does provide a legal foundation for OGI requests and responses.23 China’s Ministry of Environmental Protection (MEP) has been one of the most aggressive ministries at promoting the OGI Regulation.24 In 2007, the then State Environmental Protection Agency (now MEP), drafted its own Measures on Open Environmental Information (OEI Measures) which provide details on how environmental protection bureaus nationwide should implement the OGI Regulation.25

Perhaps in recognition of the limits of the 12369 hotline, recent laws and policies have been adopted that aim to serve the broader public interest. Public participation and the public’s environmental interests were first enshrined into law in 2002, in the Environmental Impact Assessment Law of the PRC (EIA Law).19 Numerous articles in the EIA Law require the relevant agency to seek public input and provide for the right of the public to participate in the evaluation of environmental impacts.20

ÎÎ Chapter 1, Article 1: In order to propel and regulate the disclosure of environmental information by administrative departments in charge of environmental protection and by enterprises, to maintain the rights and interests of citizens, legal persons and other organizations to obtain environmental information and promote the public’s involvement in environmental protection, these Measures are hereby formulated in accordance with the Regulations of the People’s Republic of China on Open Government Information, Law of the People’s Republic of China on the Promotion of Clean Production, Decision of the State Council on the Implementation of the Scientific Development Concept and the Strengthening of Environmental Protection and other relevant provisions.26

In December 2005, the powerful executive State Council issued a “Decision of the State Council on the Implementation of the Scientific Development Concept and the Strengthening of Environmental Protection.”

The decision highlights the severity of China’s environmental problems and the importance that the Central Government attaches to environmental protection.

It strongly urges that civil society groups should play a larger role in encouraging environmental enforcement and detecting illegal behavior; and even promotes

Justifiably, Chinese civil society was excited about the potential for the OGI Regulation to enhance the public’s role in government decision-making, to ensure accountability and environmental protection.27 Since the OGI Regulation became effective in 2008, there have been numerous lawsuits targeting government agencies for failing to disclose information; and the Supreme People’s Court issued specific guidance for lower courts on how to handle OGI cases. In addition, several studies specific to environmental information disclosure have been

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undertaken to compare implementation and effectiveness amongst Chinese cities.28 Without increased public disclosure of environmental pollution information, the plaintiff in this case would not have been able to obtain the evidence of violations that it relied upon to support its case. From the author’s interviews with the plaintiff’s lawyers it is clear that recent public participation policies and OGI Regulations emboldened the plaintiff to file suit. Additionally, three of the five requested remedies were requests for more transparency and public oversight regarding emission data and the use of scrubbers at the coal-fired power plant —requests directly in-line with the existing aforementioned policies.

The Kunming Environmental Tribunal and Public Interest Standing In 2007 and 2008, environmental tribunals in China began to multiply, many as a reaction to high-profile water pollution incidents in their respective jurisdictions. Currently, there are over 40 E-tribunals at the basic and or intermediate level in at least 13 out of China’s 31 provinces. In June 2010, China’s Supreme People’s Court (SPC) issued a circular which included a paragraph that expressly permitted courts with a relatively high number of environmental cases to establish environmental tribunals.29 The most legally controversial measures taken by some of the e-tribunal jurisdictions are provisions that ostensibly grant legal standing to legally recognized groups to sue in the name of the public interest. This is controversial because China’s Civil Procedure Law requires that the plaintiff have a “direct interest” in the case, and the Administrative Procedure Law requires a similar interest related to a specific action.30 The SPC has not yet issued a formal statement as to the status of these public interest standing provisions, but neither has the SPC directly condemned the provisions. The judges that the author spoke with, from courts that permit public interest standing, believe that they have informal approval from the SPC. But this issue will not be fully resolved unless the relevant civil and administrative procedure laws are modified.31 As of January 2011, China’s e-tribunals had decided 15 public interest cases – government prosecutors or government agencies brought 13 of these cases. The remaining two cases were brought by the All China Environment Federation, a government organized non-governmental organization, directly funded and supported by China’s Ministry of Environmental Protection.

The plaintiff in this case filed its complaint with the Kunming City Intermediate Court, home to the Kunming e-tribunal. The impetus for establishing the Kunming e-tribunal came from a major pollution incident in the summer of 2008 that involved severe arsenic pollution in Yangzong Lake.32 Arsenic levels in the lake were found to be ten times higher than the national standard.

Yangzong Lake is located 36 kilometers southeast of Kunming’s city center and is under the environmental supervision of the Chengjiang County EPB and the Kunming City EPB. The twelve-kilometer-long lake is a quasi-scenic spot and a major source of drinking water for tens of thousands of people in the surrounding area.

The arsenic pollution came from a fertilizer factory that regularly and illegally discharged near the lake and sometimes directly into the lake for nearly a decade.33 The incident made national and international headlines as a story indicative of China’s environmental enforcement challenges. In December 2008, the Kunming e-tribunal was established.

Kunming e-tribunal judge, Yuan Xuehong, told a Chinese journalist in October 2010, that attracting environmental public interest cases was the aspiration of the e-tribunal and the largest difficulty with environmental public interest suits was the lack of plaintiffs.34 Indeed, the Kunming Court went to significant lengths to encourage public interest suits. Not only was public interest standing permitted by the Kunming e-tribunal, but also, the City created a special fund to provide financial assistance to public interest plaintiffs for court fees, lawyer fees and investigative fees.

In 2009, shortly after the Kunming e-tribunals inception, judges from the tribunal attended workshops and roundtables on environmental law. These workshops, hosted by environmental and public interest law NGOs, focused on the unique challenges that environmental law cases present to courts and encouraged dialogue on these issues amongst judges, lawyers and civil society.

It was clear from these workshops and discussions that the e-tribunals were looking to encourage public interest lawsuits and that the lack of such suits was a concern for the courts.

The Chongqing Green Volunteers Union is an environmental NGO founded in 1995 and registered as a civil

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Figure 3: Yangzhong Lake and its surroundings society group with Chongqing Municipal Government.

The Union has over 600 members and only 5 staff members. The Association’s President, Mr. Wu Dengming, is a People’s Liberation Army veteran and former teacher. In 2002, Wu Dengming was invited by the United Nations to join the World Summit on Sustainable Development in South Africa; he has also been recognized domestically with numerous accolades for his work to protect the environment. The Chongqing Green Volunteers broadly promote public participation, sustainable development and ecosystem protection with a focus on Western China, and emphasize that they work as a partner with the government to support government policies and laws.35 Since the establishment of the Kunming e-tribunal, the plaintiff and environmental lawyers began to think strategically about a strong case that would be the first public interest case before the Kunming court, and the first case brought by an independent environmental group nationwide. Uniquely, the plaintiff had the opportunity to interact and discuss issues with judges from the Kunming e-tribunal before actually filing a case.

The plaintiff and environmental lawyers discussed with judges from the Kunming e-tribunal the potential for

bringing a public interest lawsuit at environmental law workshops in 2009. According to the plaintiff, discussions at a workshop in 2009 helped clarify not only the type of case that the court would accept, but also a case that could likely win. For example, the issue of bringing a case against a large hydropower project was raised, but the feedback from judges was not positive and the plaintiff decided not to file the case with the Kunming e-tribunal.

According to the plaintiff’s attorney, it was only after discussing the case regarding the Guodian Yangzonghai Power Company with judges and receiving positive feedback that the plaintiff decided that this would be a good case to bring.36 It was with this background and understanding that the plaintiff decided to file a public interest lawsuit against the Guodian Yangzonghai Power Company for documented violations of environmental laws and regulations.

The Guodian Yangzonghai Power Company (hereafter, the power plant, YZH plant or YZH Power), is a subsidiary of one of China’s five largest electric generating companies, the China Guodian Corporation. China Guodian was established and approved by the State Council in 2002, after China split the former State Power Corporation into

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five national power generating companies and two grid companies. As of 2009, China Guodian operated in every province in China with a total generation capacity of 80 gigawatts, over 70 gigawatts of which came from coalfired plants.37 Guodian’s YZH power plant is located at the north end of Yangzong Lake. The plant is majority owned by China Guodian’s Yunnan subsidiary (51 percent), the remaining shares are owned by the Yunnan Hongta Group (32 percent) and the Yunnan Province Investment Group (17 percent), both provincial government owned groups.

At present, the plant has a generation capacity of 1000 MWs, from 2x200 MW units (unit 1 and unit 2) built in 1997 and 1998, and 2x300 MW units (unit 3 and unit 4) completed in 2007 with wet flue gas desulfurization (FGD) equipment.38 Guodian’s YZH power plant is the largest source of SO2 pollution within Kunming City’s 21,500 square kilometers.39 According to the plaintiff’s complaint, since 2005, the plant seriously violated national environmental protection laws and policies, consistently failed to control sulfur dioxide emissions, “fraudulently” reported on its emission control projects and without cause postponed repairs to desulfurization equipment after being ordered to do so. The power plant “maliciously” refused to cooperate with enforcement actions from environmental protection authorities, and “wantonly” evaded paying pollution fees.40 To substantiate these claims the plaintiff relied heavily on information that was disclosed by the Yunnan Provincial Environmental Protection Bureau and China’s Ministry of Environmental Protection on their respective websites.

YZH plant was in violation of law for the irregular operation of its desulfurization equipment. An October 2009 report on pollution reduction and progress from the Yunnan EPB states that a “few industries are using hightech methods to conduct fraud,” and that this is seriously influencing the province’s reduction in pollution.41 The same report alleges that the YZH plant was under an obligation to complete repairs to its desulfurization equipment for units 3 and 4 by January 2009, but has failed to do so. The report claims that emission concentrations are due to bypassing the scrubber unit because of the need to repair a component part, that the coal had higher sulfur content than the equipment was designed for, that the operation of the scrubber was abnormal, and that corrections are underway. The Yunnan EPB’s 2010 work plan stated that the power plant’s number 4 unit must complete repairs to its scrubber system by April 30, 2010.

The complaint cites to laws and policies that support its arguments including the Air Pollution Law, the 11th five-year plan, the Clean Production Law, and Decision of the State Council on the Implementation of the Scientific Development Concept and the Strengthening of Environmental Protection. To summarize, the plaintiff argued that the power plant engaged in a pattern of intentionally and fraudulently prolonging repairs that led to a long period of irregular use of the desulfurization units in violation of numerous laws and policies. The plaintiff requested remedies that were relatively unique for a civil case in China, but consistent with the public interest nature of the lawsuit.

The plaintiff’s requested remedies (directly translated from the complaint):

The earliest pollution information cited by the plaintiff comes from a 2005 report from the Yunnan EBP that listed the top 50 serious polluters in the province. The complaint then alleges that the power plant failed to obtain the required environmental impact assessment approval before beginning construction on the 2x300 MW units in 2005 and 2006. The complaint cites to a 2008 report from the Yunnan EPB’s investigative team to allege that in 2007, unit 3 was put into trial production without proper approval and failed to operate its desulfurization equipment. The same report alleges that unit 4 also began trial production without approval and that its smokestack monitoring system was not connected to the Yunnan EPB’s network.

• Order that the Guodian YZH Power Company, under environmental agency supervision, adopt effective rectification measures for the proper use of its desulfurization equipment and ensure that sulfur emissions are stabilized to meet emission standards, total emission controls, and emission reduction targets in order to comply with national and Yunnan Provincial regulations and duties regarding the reduction of SO2 emissions. Without delay, Defendant should publicly disclose the aforementioned corrections and emission reductions and allow supervision by the plaintiff, the court and the public.

The complaint highlights that in September 2009, China’s Ministry of Environmental Protection reported that the

• Order the Guodian YZH Power Company, under environmental agency supervision, to follow the

regulations set forth in the Law on the Promotion of Clean Production regarding SO2 and heavy metal emissions reductions, implement mandatory clean production audits, and immediately and thoroughly disclose clean production audit reports and implementation to the public and permit supervision by the plaintiff, the court and the public.

• Order that the Guodian YZH Power Company, in accord with relevant national policies, provide plans for controlling nitrogen oxide and carbon dioxide emissions within three months after the court’s decision. Require that Defendant request opinions from the public and the environmental protection bureau regarding the proposed plans, and implement the plans after court approval.

Defendant should publicly disclose its implementation of the plan and allow supervision by the plaintiff, the court and the public.

• (Provisionally) Order the Guodian YZH Power Company to pay RMB 3,000,000 (USD 470,000) compensation for environmental damages related to the period that it did not adequately use its desulfurization equipment and consistently meet SO2 emission standards. This compensation should be paid within 15 days after the courts final order to the Kunming Environmental Protection Bureau which should use this fine as a base to establish, in accordance with law, the Kunming Environmental Public Interest Litigation Support Fund (provisionally named). And under the supervision of the plaintiff, the court, and the public, this fund should be used to support public interest litigation, ecological and environmental management, and to provide relief to appropriate pollution victims.

• Order the Guodian YZH Power Company to bear the burden of all litigation costs, including the plaintiff’s costs associated with litigation and enforcement, not limited to: case acceptance fee, evaluation and assessment fee, travel, and lawyer fees.

In May 2010, the plaintiff, Mr. Wu Dengming, delivered the complaint to the Kunming Court. That same day, judges from the environmental court treated Wu to lunch and responded positively to the complaint. In June, Wu received a call from the Kunming Court informing him that the case would be accepted. However, Wu never received formal written documents regarding the court’s acceptance of the case; and in July, he was made aware that the Kunming e-tribunal would hear a public

interest case brought by the Kunming EPB against a pig farm operation for local water pollution.42 In late-July, the plaintiff’s lawyer, Mr. Xia Jun, an experienced environmental litigator from Beijing, was in Kunming and inquired with the Kunming court’s case acceptance office about the current status of the case against Guodian YZH Power Company. The case acceptance office told Xia that the case materials were no longer on file with them and that the Kunming’s e-tribunal had the case documents. During Mr. Xia’s trip to Kunming in July, he was unable to meet with Kunming e-tribunal judges to discuss the case.

In September 2010, another experienced environmental litigator and a consulting attorney for the plaintiff, Ms. Zhang Jingjing, travelled to Kunming to inquire about the status of the case. Zhang was also limited in her ability to get any clarification as to what the status of the case against the power plant was; but it was clear that the e-tribunal was moving forward with the case against the pig farm. Zhang was told by the court that the Kunming EPB was aware of the case against the power plant and that they were dealing with the issues that the plaintiff raised.

A reporter from one of China’s leading investigative news organizations, the Southern Weekly, also travelled to Kunming in September 2010 to research a story on the Kunming e-tribunal’s first public interest case. The reporter focused on the e-tribunal’s decision to accept the pig farm case over the case against the power plant.

In regards to the case against the power plant, Kunming e-tribunal judge, Yuan Xuehong, told the reporter that “the environmental protection bureau has responded [to the court in regard to this matter], and the [the YZH Power Company] is making corrections, we [the court] are still investigating.”

The reporter’s article was published in October 2010 with the title, “Wielding a Big Bat to Hit a Mosquito: the Inside Story of Yunnan’s First Environmental Public Interest Case.”43 The metaphor, of course, is that the e-tribunal is a supposedly powerful weapon against pollution and the pig farm a mere mosquito. The reporter argues that the e-tribunal purposefully chose the pig farm case because it would be much easier for the plaintiff to win and for the court to enforce a ruling against a smaller less powerful defendant than against one of China’s largest power generators.

Over the following months, the plaintiff’s lawyers continued to enquire with the Kunming court regarding

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Figure 4: One of the many brick kilns along the northeast shore of Yangzong Lake and a major source of local pollution

the case, but with little success. In January 2011, the Kunming e-tribunal again told lawyers Xia and Zhang to check with the Kunming court’s case acceptance office regarding the status of the case, but the case acceptance office again replied that the e-tribunal had all of the case materials. The lawyers tried to meet with the e-tribunal in January, but judges from the e-tribunal were unavailable.

Article 112 of China’s Civil Procedure Law requires that a court respond to a complaint within 7 days by accepting it and notifying the parties, or by issuing an order as to why the complaint does not meet the requirements for acceptance. If the plaintiff is unsatisfied the plaintiff can appeal. It is relatively common in China for courts to refuse to accept certain cases for a number of reasons, and there is little to compel courts to issue an order explaining their none-acceptance.44 Generally speaking, China’s judicial system is young and lacks independence. China’s judiciary is weak when it

comes to protecting the environment and this is for two main reasons. One, judges are often unfamiliar with the issues of causation and evidence in environmental cases, and unfamiliar with how to apply environmental laws.

Secondly, because of a lack of independence, courts often favor the short-term economic concerns of powerful local interests over the application of law or legitimate environmental concerns.45 While a court’s decision to not accept an environmental case or issue an order describing its reasoning is not uncommon in China, the YZH Power Company case is unique and worthy of attention. Firstly, the case tests the extent that the public can engage in core issues impacting China’s energy governance and how energy decisions impact the environment. Additionally, the rapid growth of e-tribunals in China and their promotion of public interest standing makes the examination of the YZH Power case all the more important.

The plaintiff intended this case to be the first public interest case brought in the Kunming e-tribunal and the first public interest case brought by an independent NGO in all of China. According to the plaintiff and the plaintiff’s lawyers, they desired to find a case that

would have a good chance of winning on the merits and one that would set a strong precedent for similar cases in the future.46 Because of this background, and help from the Southern Weekly article, the case has spurred discussion within China’s environmental public interest law community. While this aspect of the case deserves significant attention, the case is arguably even more valuable when analyzed from an energy governance perspective.

Several of the Kunming e-tribunal judges and some Chinese environmental law scholars have commented that the plaintiff’s complaint fails to state a specific claim and that the remedies requested are unorthodox and would be too difficult for the court to enforce. A senior researcher with China’s MEP, who has worked extensively with SO2 regulations, told the author that if the case would have went to litigation the power plant would argue that there is no “law” requiring total volume SO2 emissions control and that they would be right.

According to the plaintiff’s lawyer and repeated to the author by other Chinese law scholars, one Kunming e-tribunal judge said the complaint was “not a complaint, but a declaration of war.”

The following discussion will first briefly address the nature of the plaintiff’s complaint and its requested remedies in relation to the case that the Kunming e-tribunal did actually accept, the case of the Kunming EPB versus the pig farm. The discussion then shifts to focus on China’s SO2 regulations and controls as “law,” “policy,” and “plan” and how dual systems of enforcement impact the ability of the public to effectively use law and the judiciary to influence energy governance in China.

A Cautious Court and the Limits of Public Interest Standing Despite efforts and forums designed to share information regarding what would make a good public interest case, there was likely miscommunication between the court (government) and civil society as to just how public in nature a public interest case should be. And it is likely that the plaintiff and public interest lawyers had unreasonable expectations, considering the questionable legality of public interest standing, for what the e-tribunal could reasonably achieve. Comparing the Yangzhonghai case to the public interest pig farm case that the Kunming Court did accept helps illustrate that the Kunming Court is still struggling to define the nature of public interest standing and deal with the legal and political constraints that China’s courts face.

The plaintiff in the pig farm case was the Kunming EPB. Arguably, the Kunming EPB does not need to bring a public interest case, because it can bring an administrative enforcement case against the pig farm.47 Additionally, the Kunming EPB, as a government regulator in charge of regulating the pig farm and having had its previous orders to the pig farm ignored, could claim to have a “direct interest” in the case. Another point is that there were pollution victims directly impacted by the pig farm’s actions.

The local water supply for some people in the area was harmed and at least one small business suffered losses because of the pig farm’s pollution. Arguably, these victims have direct losses related to the pig farm’s discharges and can bring a case for damages on their own behalf. And again, the Kunming EPB, in charge of protecting the environment for the broader society has an interest in getting compensation for the victims. This factor helps make the complaint and the remedies requested more conventional and familiar to tort cases that the court has handled previously. Significantly, the Kunming e-tribunal refers to the fine imposed on the defendant as “compensation” (赔偿), of which a large portion went to remedy harm to the pollution victims; this is consistent with conventional tort remedies. Together, these factors help lessen the legal gap between China’s civil law on the books, which requires a “direct interest” in the case, with the legal uncertainty that surrounds pure public interest standing.

More influential may be the role that the Kunming People’s Procuratorate played in the case. China’ procuratorate is a powerful government entity that can exercise a supervisory role over the courts, especially in regards to civil cases.

The Kunming Procuratorate’s joint opinion letter with the Kunming Court regarding public interest standing is indicative of the interest that the procuratorate has in public interest cases. The procuratorate can choose to support a plaintiff in a civil suit; this may mean nothing more than the procuratorate sitting with the plaintiff at trial, but this sends a strong message to the court. The procuratorate can also request that a court rehear a civil case if it believes the court erred in its decision or process.

In the pig farm case, the procuratorate was supportive of the EPB from the start and sat with the EPB at trial.

Some public interest advocates worry that if a precedent for procuratorate support is set in public interest standing cases then courts will be reluctant to accept cases or rule in favor of plaintiffs if the procuratorate is not directly supporting their case.

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In many ways, the pig farm case was similar to traditional tort cases that Chinese courts are used to dealing with, with the exception that the case was classified as a public interest standing case. In contrast, the Chongqing Green Volunteers case against YZH Power Company was intentionally designed by the plaintiff to be different from a regular tort case.48 For example the case against YZH Power relies almost solely on the power plant’s violation of laws and policies, not on direct damages suffered by a specific group. Similarly, the compensation requested is not for specified victims, but rather, environmental damage generally. Everything from the complaints alleged harms to the remedies requested are unique and could only have a realistic expectation of being considered by a court under the new and uncharted public interest standing provisions that Kunming and e-tribunals across China are experimenting with.

SO2 Regulation in China: what’s law got to do with it?

Despite a pollution levy on SO2 emissions since 1982, a total emission control policy and numerous regulations issued from the MEP and the NDRC, China has struggled until recently to control a rapid rise in SO2 emissions.

Only during the period of the 11th five-year plan, from 2006 through 2010, was China able to control and reduce SO2 emissions, primarily through increased executive enforcement and the deployment of SO2 scrubbers at coal-fired power plants.49 From 2006-2009, SO2 scrubbers were installed on 422 GWs of coal-fired power plants; this increased the share of coal plants with scrubbers from 10 percent in 2005 to 71 percent in 2010.50 This was a massive deployment of hardware in a very short period of time. Though the operation and oversight of scrubbers are improving, technical problems and enforcement gaps remain.

The extent to which China’s civil society can help fill enforcement gaps and ensure compliance remains an open question, in part because of a complicated mix of “laws,” “regulations,” “policies,” and “goals,” which vary greatly in their effectiveness, their enforceability through the courts, and their promotion of public participation. An important distinction that the following analysis makes is the difference between executive enforcement and judicial/legal enforcement.

Executive enforcement refers to the Chinese Central Government’s efforts to motivate local executive officials to support and enforce national policies, usually by linking national policy goals to the Communist Party’s cadre evaluation system, which assesses the job performance of local government officials. Judicial/legal

enforcement, on the other hand, refers to how laws and regulations are applied and enforced by courts or other legal actors.

China struggled for decades to control SO2 emissions under its judicial/legal enforcement system.51 While China is technically a unitary state with power radiating out from Beijing, a combination of insufficient rule of law and economic reforms that gave local governments freedom to pursue economic development, have created a de facto system of decentralized authority that heavily influences the implementation of national laws and policies. This is especially the case for environmental laws and policies, and even additions to electricity generation, because both are closely linked to economic development, which local leaders have an incentive to promote over environmental protection. Indeed, the recent inclusion of some environmental targets in the cadre evaluation system is intended to balance environmental concerns with economic ones.

National goals, such as those established in China’s five-year plans, are often allocated to provinces and on down to individual cadre evaluations; and they can send clear signals to local leaders as to what the Central Government’s priorities are.52 In the 11th five-year plan from 2006-2010, the plan’s SO2 reduction goals were directly linked to the promotion/removal of local leaders.53 This incentivized local leaders to follow-through with programs to reduce SO2 emissions. However, these provincial goals were achieved “largely independent of existing SO2 mitigation policies”54 – the same policies and laws that are inconsistently enforced primarily due to China’s de facto decentralization of authority.

Professor Yuan Xu states, “[t]he Chinese relationship between goals and policies partly reflects its insufficient rule of law. Policies are written and enforced by executives and their enforcement heavily relies on the willingness of these executives.”55 Xu argues that there are advantages to this relationship, most notably, the ability of executives to act to address an issue when the political will is present. Of course, the disadvantage is that when political will weakens the enforcement of policies and goals suffers. A move toward a regulatory system based on “[r]ule of law could provide the necessary continuous pressure and liberate the Chinese top leaders.”56 Additionally, because the plans enforcement is almost exclusively an internal party affair and removed from the judicial system, and in many ways existing law, it is far less conducive to encouraging public participation in enforcement.

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Figure 5: A worker rides past the Yangzhonghai plant in June 2011

It is hard to definitively say that linking SO2 mitigation to cadre evaluations was alone responsible for emission reductions during the 11th five-year plan, because numerous other regulatory and policy changes were made during the period. However, it is clear that there was renewed political will to curb SO2 pollution and that the implementation and enforcement of these policies were primarily driven by the executive at both the national and local level. The following reviews China’s attempts to regulate SO2 over the last 3 decades and highlights how laws, policies, goals, and public participation work together or fail to do so. The discussion section then examines how these dual enforcement systems work to dissuade courts from adjudicating difficult or sensitive issues and how this impacts the public’s ability to participate.

The Law and Policy Framework for SO2 Emissions from Coal Plants Technically, only legislation passed by China’s national legislature, the National People’s Congress (NPC) or its standing committee, is “law (法律)”. Many of the laws passed by the NPC suffer from brevity and read more like specific policy statements than actionable laws.

Frequently, these laws call on the State Council or a relevant but undesignated administrative body to draft implementing regulations that define the obligations of

regulated entities. When these administrative measures are approved by the powerful executive State Council they have the status of administrative regulations (行 政法规). Additionally, ministries and other government agencies can formulate rules (部门规章) without formal State Council approval.

Policies (政策) and goals (目标), on the other hand, are measures that are often related to the China’s five-year plan on economic and social development, the nation’s principal economic and social planning framework.

The plan is primarily drafted by the powerful National Development and Reform Commission (NDRC), with input from ministries, and then approved by the NPC. The plan is law-like because it is passed by the NPC.57 However, it is unlike law in that it does not necessarily provide for any means of judicial enforcement. The plan establishes policy priorities and hard and soft goals, but provides little detail as to how such goals are to be achieved. Indeed, the plan’s vagueness as to implementation essentially precludes the plan from being effectively enforced through the judicial system.

China’s Environmental Protection Law of 1979 (for trial implementation) first established a pollution levy for emission discharges that exceeded established concentration limits. By the middle of the 1980s this levy was

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being applied to SO2 emissions from smokestacks. The pollution levy system has been at the core of China’s pollution regulatory regime for nearly two decades and it has been both blamed for lax enforcement and mildly praised for incentivizing pollution reductions.58 China’s first Air Pollution Control Law (APCL) was adopted in 1995 and revised in 2000. Chapter III of the APCL clearly emphasizes the important need to control SO2 emissions from coal. Indeed, SO2 is one of the very few specific pollutants actually mentioned in the APCL. However, the APCL does not explicitly provide for total (volume) emission controls for SO2 nationwide.59 In 1996, however, a total emission control system was developed as “policy” by the State Council to specifically help achieve environmental goals under the 9th five-year plan.60 The levy technically put a price on every ton of SO2 emitted from large coal plants. While better than nothing, the total emission control levy system still struggled to control SO2 in China, in part because the levy was too low to encourage the adoption and operation of scrubbers and because absent executive will, judicial enforcement could be difficult.

The hierarchical nature of Chinese laws and regulations coupled with the low stature of the courts creates judicial enforcement challenges. For example, the APCL provides for levies on emissions that exceed standards and provides for total emission controls of SO2 in designated acid rain regions, but it does not explicitly provide for nationwide total emission controls or total emission levies, or penalties associated with violating total emission controls. Even though the State Council has passed regulations establishing a total emission control for SO2, the lack of direct cohesion with the higher APCL and the Environmental Protection Law gives ground to polluters to argue against legal enforcement and room to negotiate with EPBs to reduce fines related to violations.

In contrast, executive enforcement measures are generally independent from judicial/legal enforcement. The 10th five-year plan, from 2000 to 2005, was the first to include a goal to reduce SO2 emissions by 10 percent from existing levels over five years. Unfortunately, the goal of SO2 reduction was not met and SO2 emissions continued to rise. There are several reasons that help explain why SO2 reductions were unsuccessful during the 10th five-year plan (FYP), but successful during the 11th five-year plan. During the first two-years of the 10th FYP, SO2 emission reductions declined by 3.4 percent, but in March 2003 a new executive administration came into

power in China, and during the following three-years emissions soared by 32.3 percent.61 In comparison, the 11th FYP was entirely within President Hu Jintao’s administration and the unification of political will and implementation could be a major contributor to its success.62 Additionally, while the 10th FYP stated in general terms that local executives would be evaluated on their ability to meet environmental targets, no specific evaluation system was defined. In contrast, the 11th FYP explicitly linked environmental goals to the promotion/demotion of local officials.63 It is also likely that changes in law and policy incentivized the adoption of scrubbers after 2005. In July 2005, the discharge fee/levy on SO2 almost trebled from $0.031/kg to $0.092/kg, but even this increase alone was still too low to justify the expense of installing and operating a scrubber, and its enforcement varied across China.64 In 2004, new coal-plants with SO2 scrubbers could receive a price premium of $2.2/MWh; and in June 2006, this policy was expanded to cover all coal plants using scrubbers, including retrofits.65 In 2007, a penalty provision was added to the price premium policy. If the operation rate of a scrubber at a plant falls below 80 percent, the plant must return the premium paid and pay a penalty of up to $11/MWh, in addition to the SO2 levy.66 Also in 2006, administrative rules more clearly defined the allocation of SO2 emission quotas for individual coal plants which facilitated the wider adoption of plant specific quotas.67 In addition to plant specific quotas, China’s NDRC entered into contractual agreements with all of China’s major electricity generating companies that required SO2 emission reductions and established penalties, including Guodian, the owner and operator of the Yangzonghai Plant.68 Also in 2004, the Central Government required that all major coal-fired power plants install continuous emission monitoring systems (CEMS) on their smokestacks.

As of 2009, nearly all of China’s large coal plants had CEMS for SO2 installed.69 When a CEMS is installed it is connected to data centers at provincial EPBs and to the relevant electric grid operator. Although numerous orders and regulations from the State Council and the MEP encourage the use of CEMS data for verifying pollution discharge data, the collection of levies, and total emission controls, CEMS data is primarily used only by the grid operator to determine the price premium paid for electricity sales. Problems with both the veracity of CEMS data and penalty provisions in the law dissuade many EPBs from using CEMS data to calculate levies or other penalties. Typical problems that government

officials encounter when inspecting monitoring systems include: failure to calibrate systems, improperly calibrated systems, inconsistencies between on-site data and concentration data reported to EPBs, and modified computer software designed to alter data sent to EPBs.70 How all of these laws, regulations and policies are implemented and enforced can vary widely depending on the region. However, a 2010 joint notice from the NDRC and the MEP regarding the inconsistent use of SO2 scrubbers at eight coal plants across China helps clarify where the legal backing for enforcement resides. While the notice mentions the 11th FYP and numerous policies associated with it, the section on punishment and compliance relies solely on enforcement provisions found in article 46 of the Air Pollution Control Law regarding the failure to operate pollution control equipment, and the penalties associated with the electricity price premium regulation.71 The plaintiff’s complaint against the Yangzhonghai plant targets the exact issues that the NDRC and MEP notice attempts to address. The plaintiff’s complaint cites to several articles in the APCL regarding the need to operate pollution control equipment, but it does not cite to article 46 on penalties, nor does it seek compliance based on the electric price premium regulation. However, it is unlikely that these two legal citations alone would have made the plaintiff’s case more acceptable to the court.

Discussion Dual systems of enforcement erodes the supremacy of law and the exigency to further develop a system of law that is accessible to the public and that can hold all parties accountable. This is especially the case when the alternative “non-legal” enforcement system is proven to be successful at accomplishing particular goals. The existence of alternative enforcement channels also reduces the burden of responsibility that might otherwise fall on the courts and judges to provide justice. In the case of China’s executive enforcement, judges can find solace in knowing that their professional superiors have a means for dealing with certain difficult issues. Correspondingly, it would be presumptuous for a judge or other law enforcer to intervene into the enforcement realm of their superiors – it is rarely a wise career decision to tell one’s bosses that they are not doing their job.

Furthermore, an alternative enforcement system that is closely connected to the same personnel who drive policy and political decisions will likely further reduce the responsibility on judicial enforcers to delve into areas of significant policy importance, even when issues could be

construed narrowly under law. For example, the plaintiff’s case here ran directly into sensitive energy and national security issues. The plaintiff filed its complaint in May 2010. During the first quarter of 2010, hydropower production was down more than 80 percent in Yunnan. In non-drought years, Yunnan regularly receives half its electricity from hydropower. To replace the large loss in hydropower, coal plants increased output across the region; this increased demand and price pressures on coal supplies and resulted in coal plants, including the Yangzonghai plant, burning coal with higher sulfur content than the coal generally used.

Under a strict legal analysis, the laws and regulations relevant to SO2 emissions do not provide for exceptions during periods of drought, and thus, the extenuating circumstance of the drought should not influence the courts application of law. However, when two enforcement systems exist, it is easier for the court to shy away from cases that touch on sensitive policy and security issues under the expectation that the executive will manage the issue.

The duality of enforcement is not the only barrier to judicial enforcement or greater public participation.

Generally, laws and regulations that are independent of goals, such as the Environmental Protection Law, the Air Pollution Control Law, and the Open Government Information Regulations provide the legal basis for judicial enforcement.72 Arguably, their enforcement is in line with developing a rule of law system through increased law based enforcement. However, many of the enforcement and penalty provisions in these laws are too limited to be effective.

The question of how law and executive enforcement coexist is still not clear, and this is the case in many areas of Chinese governance. Overall, the linking of environmental goals to the career evaluation of local officials has been effective in reducing targeted pollutants. In this way the cadre evaluation system and existing law are supportive of each other. But there is little evidence that executive enforcement alone will help develop the capacity for a robust and sophisticated energy and environmental governance system. In practice, cadres tend to do whatever is required to meet their hard targets with little regard for existing law. The 11th FYP set hard targets for SO2 and chemical oxygen demand discharges, and those targets were met. However, meeting these two targets did little to improve the overall ability of EPBs or the courts to enforce environmental laws and regulations more broadly.73

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Although legal enforcement is weak, it is not insignificant; and there are signs that the Central Government is trying to improve the cohesion between executive enforcement and the legal system. In the fall of 2010, some local governments haphazardly cut power to factories, hospitals and homes in a rush to meet energy conservation targets. Paradoxically, these cuts resulted in many affected users shifting to less efficient and dirtier diesel generators. These unintended consequences illustrated the risks inherent in emphasizing executive enforcement above law. Shortly after the rush to generators occurred, a senior official with the NDRC commented that what was needed was to “gradually shift from persuasion and encouragement-based energy conservation to compulsory energy conservation according to the laws.”74

China’s energy and environmental governance challenges are daunting. Recent efforts to include energy efficiency and environmental targets in the cadre evaluation system and efforts to promote public participation and open information illustrate that China takes addressing energy and environmental issues seriously.

As is the case with any rapidly developing system, there are growing pains. China’s energy and environmental governance systems are still trying to find the right balance between the need to accomplish immediate results with demands to develop a deeper and more robust system of accountability based on law and conducive to public engagement.

The non-case of Chongqing Green Volunteers Union v. Guodian Yangzonghai Power Company provides a detailed example of how the many elements of government action, law and the public’s expectations interact within the current system. China’s judiciary lacks independence and remains weak, and it if it is to play an active role in promoting public participation and enforcing laws, the enforcement and penalty provisions included in laws and regulations must be strengthened and clarified. Efforts to link the cadre evaluation system’s targets to the enhanced enforcement of existing laws and the broader capacity building of regulators generally should be promoted. China’s National People’s Congress or its standing committee should pass law that clarifies the right of the public to sue in the public interest or provide for public interest standing in amendments to specific laws.

The monitoring of emissions from coal-fired power plants is improving, but there remains room for additional improvement. Considering the ostensible promotion of public participation within China’s environmental governance framework, it is not implausible that the public could play a larger role in ensuring the veracity of emissions data if given the chance. However, SO2 regulation in China now straddles two enforcement systems: one based in law and reliant on judicial enforcement, the other reliant on executive enforcement and based in the internal cadre evaluation system of China’s Communist Party. So long as executive enforcement exists independent from the law on the books and judicial oversight, the opportunity for public participation will likely be limited in comparison to a system based in law and judicial enforcement.

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1. Fredrich Kahrl et al., Challenges to China’s transition to a low carbon electricity system, Energy Policy 39, 4032-4041 (2011), 4032.

2. China’s electricity consumption up 14.56% in 2010, Xinhua, Jan. 17, 2001, http://news.xinhuanet.com/ english2010/china/2011-01/17/c_13693802.htm.

3. State Electricity Regulatory Commission, Annual Report 2010, April 2011, at 10.

4. China Electricity Council, 2010 Annual Statistics (2010年电力统计年报数据一览表), Jun. 2011, http://tj.cec.org.cn/niandufazhanbaogao/2011-06-27/58873.html.

5. Xie Liangbing and Chen Yong, Making Up For Lost Time: China’s Hydropower Push, Economic Observer, Jan. 24, 2011, http://www.eeo.com.cn/ens/ Industry/2011/01/24/192214.shtml.

6. Supra note 1.

7. Erica Downs, The Brookings Foreign Policy Studies Energy Security Series – China, Dec. 2006, 16-17.

8. Andrew Kennedy, Rethinking energy security in China, East Asia Forum, Jun. 6, 2010, www.eastasiaforum.org/2010/06/06/rethinking-energy-securityin-china/; quoting a former Chinese energy official as saying that “electrical power security is the most important energy security problem” for China.

9. Data from China Electricity Council, 2010 Annual Statistics, supra note 4.

10. Adam Moser, Feeding the Irrational Economy, Build for Irrational Peak Demand, China Environmental Governance Blog, Jun. 06, 2011, http:// chinaenvironmentalgovernance.com/2011/06/16/ feeding-the-irrational-economy-build-for-irrationalpeak-demand/.

11. Ye Bing, Thousands in Chengdu Protest “Discriminatory Blackouts”(成都数千市民上街抗议“歧视 性断电”), VOA News, Aug. 8, 2011, http://www. voanews.com/chinese/news/20110815-chengdu-

power-supply-127740838.html 12. China’s power shortage up to 70 mln kw by 2013, Xinhua, Aug. 13, 2011, http://www.china.org.cn/ environment/2011-08/13/content_23203298.htm.

13. Hanzai zhi shi “laingwu” xiaojian fandan (旱灾致 使“两污“消减反弹), April 16, 2010, http://www. dloer.gov.cn/ReadNews.asp?NewsID=5189.

14. Yanzhong gahan daozhi eryanghualiu paifang liang fandan (严重干旱导致二氧化硫排放量反 弹), Apr. 22, 2010, http://www.zhb.gov.cn/zhxx/ hjyw/201004/t20100422_188549.htm 15. Gao Jie, Environmental Public Interest Litigation and the Vitality of Environmental Courts: The development and future or environmental courts in China, 16, (2010).

16. Environmental Protection Law of the PRC, Oct., 1989, http://www.china.org.cn/english/environment/34356.htm 17. Xuehua Zhang and Tseming Yang, A Comparative Assessment of China’s Environmental Complaint System: Public Participation in Environmental Enforcement…with Chinese Characteristics?, forthcoming, draft on file with author.

18. Id. 19. Also translated into English as the Law on Evaluation of Environmental Effects (Huanjing Yingxiang Pingjia Fa), http://english.gov.cn/laws/2005-10/09/ content_75327.htm.

20. Id. at articles 5, 11, and 21.

21. Decision of the State Council on the Implementation of the Scientific Development Concept and the Strengthening of Environmental Protection, issued by the State Council, Dec. 30, 2005, #27, http://news.xinhuanet.com/politics/2006-02/14/ content_4179931.htm.

22. Zheng fu xin xi gong kai tiao li [Regulation on Open

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Government Information] promulgated by the State Council, Apr. 124, 2007, effective May 1, 2008.

23. Id; Jamie Horsley, China Adpots First Nationwide Open Government Information Regulations, May 2007, http://www.law.yale.edu/documents/pdf/ Intellectual_Life/CL-OGI-China_Adopts_JPH-English. pdf. The status of the OGI Regulation as a “regulation” and not “law” is because it was approved by the State Council, an executive body, not China’s formal legislature, the National People’s Congress or its Standing Committee. This distinction is important within China’s legal, administrative and judicial system.

24. Even before the OGI Regulation, senior officials within China’s environmental protection agency called for the need for increased public participation, see Pan Yue, The environment needs public participation, Dec. 5, 2006, http://www.chinadialogue.net/article/show/single/en/604.

25. Article 11 of the OEI Measures sets forth the information that environmental protection bureaus are required to disclose and how: including the breakdown of total emission quotas for major pollutants as they relate to emission permits, and information regarding violations by polluters. Like the OGI Regulation, article 12 of the OEI Measures states that information that regards state secrets or proprietary information of a private party is not to be disclosed. Neither the OGI Regulation nor the OEI Measurers clearly defines what qualifies as a state secret or a proprietary trade secret and this failure is considered a weakness in both of the rules.

26. Measures on Open Environmental Information (for trial implementation), adopted by the State Environmental Protection Agency February 2007, effective May 01, 2008, Chapter 1, Article 1, http://www.epa. gov/ogc/china/open_environmental.pdf.

ment Information Regulations: Surprising Public Demand Yielding Some Positive Results, Apr. 23, 2010, http://www.freedominfo.org/2010/04/ update-on-china-open-government-informationregulations/; The China Pollution Information Transparency Index, 2008 First Annual Assessment Results, Jun 3, 2009, http://www.ipe.org.cn/uploadFiles/2009-08/1251342198040.pdf.

29. The Supreme People’s Court, 关于为加快经济发 展方式转变提供司法保障和服务的若干意见, #13, Jun. 29, 2010, http://news.xinhuanet.com/ legal/2010-07/02/c_12288361.htm. The Organic Law of the People’s Courts of China already includes language that would support the establishment of E-tribunals, but the circular helped clarify the status of the tribunals. Tribunal is used here as a translation for “fating.” In contrast, the court that houses the tribunal is translated as “fayuan.”

30. Article 108 of China’s Civil Procedure Law requires that plaintiffs have a direct interest (直接利害关系) in the case; article 2 of China’s Administrative Law states that a legal person must have a right or interest infringed on by a specific administrative action.

31. Adam Moser, Public Interest Standing Gets Legislative Support, China Environmental Governance Blog, Mar. 03, 2011, http://chinaenvironmentalgovernance.com/2011/03/14/public-interest-standinggets-support-for-legislative-reform/.

32. Lake in Mandarin Chinese is romanized as “hai.”

“Yangzong Lake” is one way to write Yangzonghai.

33. Wang Wei, Officials claim ignorance of arsenic pollution in Yangzonghai Lake, Xinhua, Sep. 22, 2008, http://www.china.org.cn/environment/news/200809/22/content_16516593.htm

27. Ma Jun, The environment needs freedom of information, May 9, 2007, http://www.chinadialogue. net/article/show/single/en/990-The-environmentneeds-freedom-of-information.

34. Meng Dengliao (孟登科), Wielding a Big Bat to Hit a Mosquito: the Inside Story of Yunnan’s First Environmental Public Interest Case (抡起大棒打 蚊子——云南环境公益诉讼第一案出台内情), Southern Weekly, Oct. 01, 2010, http://www.infzm. com/content/5078.

28. See Jamie Horsley, Update on China’s Open Govern-

35. Despite its efforts to be supportive of government

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policies, the group has been at the forefront of challenging the MEP over major decisions. In 2009, CGV challenged the Ministry of Environmental Protection over its role in approving and permitting dams on the Jinsha River in Sichuan Province after power companies began construction on dams before getting MEP approval, http://env.people. com.cn/GB/9724838.html. In 2010, the group also attempted to sue MEP over the lack of transparency regarding how MEP decided to fine a major mining company, Zijin Mining, after one of the company’s tailings dams broke and caused serious harm to the environment and people in Fujian Province, http:// env.people.com.cn/GB/13649418.html.

36. It should be noted that the Chinese legal system does not have strict rules regarding ex parte communication, and it is quite common for ex parte communication to take place even after a lawsuit is accepted and is before a court. Some attribute this to the mixed role that Chinese judges have in both overseeing litigation and promoting mediation amongst the parties in a lawsuit.

37. China Guodian 2010 Company Brochure, http:// www.cgdc.com.cn/c/document_library/get_file?fold erId=936758&name=DLFE-12401.pdf 38. Guodian Yangzhonghai Power Company website, http://yzh.yepg.com/Article/ShowInfo.asp?ID=3381; 关于2009年2月份建设项目竣工环境保护验收 公示的通告, http://hps.mep.gov.cn/jsxmhbys/ nysxmgs/200903/t20090304_134872.htm.

39. Plaintiff’s Complaint, on file with author. In China, cities are generally larger than counties and often contain several counties under the city’s administrative control.

40. Plaintiff’s Complaint at 2-3, on file with author.

tal Public Interest Litigation Forward with RMB 4.3 million Fine, China Environmental Governance Blog, Feb. 01, 2011, http://chinaenvironmentalgovernance.com/2011/02/01/kunming-e-court-movesenvironmental-public-interest-litigation-forwardwith-rmb-4-3-million-fine/.

43. Meng Deng Liao (孟登科), Wielding a Big Bat to Hit a Mosquito: the Inside Story of Yunnan’s First Environmental Public Interest Case (抡起大棒打 蚊子—云南环境公益诉讼第一案出台内情), Southern Weekly, Oct. 01, 2010, http://www.infzm. com/content/5078.

44. See Xin He, Why did they not take on the disputes?

Law, power and politics in the decision-making of Chinese courts, International Journal of Law in Context, 3, 3, 203-225, (2007). It should be noted that in the Chinese civil law system, the plaintiff does not have a duty to provide notice to the defendant of an action. Once the case is accepted by the court, the court will notify the defendant of the action.

45. Adam Moser and Tseming Yang, Environmental Tort Litigation in China, Environmental Law Reporter: News and Analysis, 41 ELR 10895, October 2011.

46. Technically, China is a civil law country and precedent should not play a role in how judges or the law decide cases.

47. A traditional administrative case would limit remedies and in suing as a public interest tort case, the Kunming EPB can request additional remedies.

48. The plaintiff’s case in many ways resembles a citizen’s suit as provided for in the U.S. Clean Air Act and Clean Water Act. Under the U.S. citizen suit provision, a citizen can bring suit based on the violation of the Act by either the government or a regulated entity.

41. Plaintiff’s Complaint at 3, on file with author, citing to Yunnansheng huanjing baohu ting guanyu 2009 shengji wuran jianpai zhongdian xiangmu jinzhan qingkuang tongbao (云南省环境保护厅关于2009 年省级污染减排重点项目进展情况通报).

49. Yuan Xu, The use of a goal for SO2 mitigation planning and management in China’s 11th Five-Year Plan, Journal of Environmental Planning and Management, 54, 6, 769-783, Jul. 2011.

42. Adam Moser, Kunming E-court Moves Environmen-

50. Yuan Xu, Improvements in the Operation of SO2

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Scrubbers in China’s Coal Power Plants, Environ. Sci. Technol., 45, 380-385, 2011.

51. Judicial/legal enforcement, as used here, also includes enforcement through the nearly 3000 environmental protection bureaus and offices (EPBs) across China. Technically, the EPBs are administrative and in that way closer to the executive, but they must rely heavily on law and regulations to justify and support their regulation. This is in contrast to executive enforcement which because of the weak status of courts can at times rely on extra-legal measures and party affiliated control techniques to enforce objectives.

52. Surpa. note 50, at 779.

law/zy/bw/gwy/hj/1369963.html.

61. Supra. note 50, at 773. If the change of an administration can influence the political will to implement certain policies to this extent, this would be a strong argument for a more robust legal system that would not be as reliant on the executive’s political will to meet goals.

62. Id. 63. Id. 64. Supra. note 51, at 383.

54. Id.

65. Id.; Ranmei fadian jizu tuoliu dianjia ji tuoliu sheshi yunxing guanli banfa (燃煤发电机组脱硫电价及 脱硫设施运行管理办法（试行)), 2007, 1176, http://www.sdpc.gov.cn/zcfb/zcfbtz/2007tongzhi/ t20070612_140883.htm

55. Id. at 780.

66. Supra. note 51, at 383.

56. Id. at 781.

67. Id.

57. Specifically, it is the outline of the plan that is approved by the NPC. The 12th five-year plan’s outline is around 74 pages in English, and even shorter in Chinese. It is left to the State Council to draft specific “notices” (通知) and policies to help implement the plan.

68. Phone interview with Jeremy Schreifels, U.S. Environmental Protection Agency, notes on file with author.

53. Id. at 778.

69. Id. 70. Id.

58. Hua Wang and David Wheeler, Endogenous Enforcement and Effectiveness of China’s Pollution Levy System, Development Research Group World Bank, May 2000, http://www-wds.worldbank.org/ external/default/WDSContentServer/IW3P/IB/200 0/06/05/000094946_00051905322350/Rendered/ PDF/multi_page.pdf.

59. Though the APCL does provide for total emission controls in designated acid-rain prevention areas, it does not clearly provide penalties for non-attainment.

60. Jiuwu qijian quanguo zhuyao wuranwu paifang zongliang kongzhi shishi fangan (九五”期间全国 主要污染物排放总量控制实施方案(试行)), State Council, Jun. 10, 1997, http://www.chinabaike.com/

71. Unfortunately, under article 46 of the APCL the maximum fine for such a violation is only 50,000 Yuan ($7815). http://www.mep.gov.cn/gkml/hbb/ bgg/201009/t20100925_194938.htm.

72. It is not uncommon for executive orders and regulations to rely on enforcement of penalty provisions in laws passed by NPC. For example, Order 28 Management Methods for Automatic Emissions Monitoring of Polluting Sources (污染源自动监控 管理办法), 2005, cites to the APCL article 46 for general penalties regarding the failure to use pollution control and monitoring systems.

73. For example, hard targets were not set for lead and

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other heavy metal emissions during the 11th FYP and their overall emissions increased rapidly and contributed to major social unrest.

74. China to prioritize compulsory energy conservation, People’s Daily Online, Nov. 30, 2010, http://english. people.com.cn/90001/90778/90862/7216129. html; Adam Moser, Insights Into the Role of Law and Plan in China, China Environmental Governance blog, http://chinaenvironmentalgovernance. com/2010/12/07/insights-into-the-role-of-law-andplan/.

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The authors are appreciative to the Centre on Asia and Globalisation and the Lee Kuan Yew School of Public Policy for some of the financial assistance needed to conduct the research interviews, field research, and travel for this project. The authors are also extremely grateful to the National University of Singapore for Faculty Start-up Grant 09-273 as well as the MacArthur Foundation for Asia Security Initiative Grant 08-92777-000-GSS, which have supported elements of the work reported here. Any opinions, findings, and conclusions or recommendations expressed in this material are those of the authors and do not necessarily reflect the views of the Centre on Asia and Globalisation, Lee Kuan Yew School of Public Policy, National University of Singapore, or MacArthur Foundation. Also, the views of the author(s) expressed in this study do not necessarily reflect the views of the United States Agency for International Development or the United States Government.

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Adam Moser, J.D., LL.M, is China environment fellow with Vermont Law School’s US-China Partnership for Environmental Law. From 2001-2006, he lived and worked in China’s Gansu Province and Taiwan. Adam has researched and volunteered with Shandong University Law School’s Human Rights Research Center, and at the Center for Legal Assistance to Pollution Victims at China University of Politics and Law. Adams works closely with Chinese partners to develop practical programs and research that aim to solve energy and environmental challenges. His email is amoser@vermontlaw.edu.

Dr. Benjamin K. Sovacool is currently a Visiting Associate Professor at Vermont Law School, where he manages the Energy Security and Justice Program at their Institute for Energy & the Environment. His research interests include the barriers to alternative sources of energy supply such as renewable electricity generators and distributed generation, the politics of large-scale energy infrastructure, designing public policy to improve energy security and access to electricity, and building adaptive capacity and resilience to climate change in least developed Asian countries. He is the author or editor of eight books and more than 140 peer reviewed academic articles on various aspects of energy and climate change, and he has presented research at more than 70 international conferences and symposia in the past few years. He is a frequent contributor to Energy Policy, Energy & Environment, Electricity Journal, Energy, and Energy for Sustainable Development.

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Image: timquijano @ flickr.com

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