TOXIC LAND IN CHANGZHOU CITY

- Case Study of Environmental Civil Public Interest Litigation   

                                                                                             Case I

Section 1． Factual Background

On April 17, 2016, CCTV News reported that nearly 500 students in Changzhou Foreign Language School were detected with symptoms such as abnormal blood indicators and leucopenia. Changzhou Foreign Language School is the leading middle school in Changzhou City, Jiangsu Province. After the school moved to the new site in September 2015, many students began to have various discomfort symptoms. Parents suspected that it was related to the ongoing land restoration work at the old location of the chemical plants nearby.

On the 26.2-hectare flat land in the north of Changzhou Foreign Language School, three chemical plants once flourished here, namely Jiangsu Changlong Chemical Co., Ltd., founded in 1958, Changyu Chemical Co., Ltd. founded in 1983 and Changzhou Huada chemical plant established in 1990. In 2010, the plot was purchased and reserved by the government of Xinbei District, Changzhou City. The purchase agreement did not stipulate the responsibility for pollution control and repair of the plot. In May 2011, the government of Xinbei District, which planned to carry out a commercial- residential development project, entrusted a third party to investigate the parcel and issue the site environmental investigation technical report and health risk assessment report. It is found that during the long-term operation of the three enterprises, the soil and groundwater in the “Changlong plot” have been seriously polluted, and the plot can only be put into use after being repaired. In July 2013, the Urban Construction Bureau of Xinbei District of Changzhou City signed an agreement with Heimudan Company, which organized and implemented the soil remediation

Geographical distribution of the Changlong plot

In March 2014, the restoration project was officially implemented. According to the plan, the shed should be equipped with air exchange equipment, and the waste gas should be collected and treated by the activated carbon adsorption device and then be discharged through a 15 m high exhaust funnel. But in the whole process of land restoration, this “steel structure shed” was never built. With dug-out “toxic soil” directly exposed to the air, or simply covered with the thin film, the smell was blown to the campus by the wind.

The soil and groundwater in this plot mainly contain organic pollutants such as chlorobenzene and carbon tetrachloride, and PAHs such as naphthalene and indenopyrene, as well as heavy metal pollutants like metal mercury, lead and cadmium, which exceed the standard seriously. Among them, the heaviest pollutant is chlorobenzene, the concentration of which in the groundwater and soil exceeds 94,799 times and 78,899 times while the concentration of carbon tetrachloride exceeds 22,699 times, and the index of permanganate, dichlorobenzene, trichloromethane and xylene exceeds thousands of times. Pan Xiaochuan, a professor at School of Public Health, Peking University, pointed out that: (1) these pollutants were known carcinogens, and the long-term exposure would lead to leukemia, cancer and so on; (2) there were so many group symptoms in the local area in a short period, and the incidence was so high, which should be related to the pollution of the plot.

Section 2． Prosecution and Trial

A.   Pre-litigation Preparation

Even though the Ministry of Environmental Protection, the Ministry of Education, and the local government had taken actions to deal with this incident, the worried parents brought the case to the environmental civil public interest litigation advocacy and legal support network platform. The platform is composed of our center (CLAPV) and Friends of Nature. The parents hoped to have our help.

After the on-the-spot investigation and verification work, CLAPV, as the supporting prosecution unit and Friend of Nature as the plaintiff, sued Jiangsu Changlong Chemical Co., Ltd., Changzhou Changyu Chemical Co., Ltd. and Jiangsu Huada Chemical Group Co., Ltd. with Changzhou Intermediate People's Court on April 29, 2016, mainly requesting the three defendants to eliminate the impact of their pollution on the soil, groundwater and ecological environment of the original plant site and surrounding areas, with relevant ecological environment restoration costs shall being borne. We also required the defendants to make monetary compensation if the damage to the ecological environment could not be repaired.

B.   Trial and Judgment

On May 16, 2016, the court officially accepted the case and announced the acceptance on May 21, 2016. The civil society organizations involved in the lawsuit also included China Biodiversity Conservation and Green Development Foundation as the joint plaintiff and Suzhou Industrial Park Green Jiangnan Public Environmental Concern Center as the litigation support unit.

The court of first instance held a public hearing on December 21, 2016, and delivered a judgment on January 25, 2017. The court held the two plaintiffs' claims could not be established. The reasons follow:

1.  The plot was purchased by and delivered to the Changzhou Xinbei Land Reserve Center in 2009. The Changzhou municipal government and Changzhou Xinbei District government had implemented the emergency disposal on the contaminated plot before the lawsuit and were organizing the corresponding environmental restoration. The monitoring results of air, surface water, groundwater, and soil gas show that the threat of pollution to the external environment had been preliminarily controlled.

2.  The environmental emergency disposal and remediation conducted by the local government conforms to Item VIII of the Opinions of the Ministry of Environmental Protection on Strengthening the Prevention and Control of Soil Pollution (HF [2008] No. 48) and the Provisions of the Action Plan for Soil Pollution Prevention and Control of the State Council.

3.  Besides, in the process of the local government implementing the environmental remediation, the defendants are unlikely to carry out the environmental remediation.

The court hereby rejected the plaintiffs’ claims and ordered them to bear the case acceptance fee of 1,891,800 Yuan.

The personnel of the plaintiff and the lawyers acting for the prosecution support unit took a group photo after the public hearing, held by the court of the first instance

The judgment came as a shock to the legal profession and the general public. Given the irrationality of the court’s decision, the plaintiffs appealed on February 7, 2017, mainly requesting to revoke the judgment and order the appellee to eliminate the impact of the pollutants from the original plant site and the surrounding soil, groundwater, and other ecological environments, to restore the site to its original state.

Jiangsu Higher People's Court accepted the appeal petition on March 1 of the same year, held a court session on December 19, 2017, and pronounced a verdict on December 27 of the same year. The court held that:

First, as the principle of environmental protection determined by law required the polluter to take responsibility, the appellees should be held accountable for the ecological pollution infringement.

Second, the appellants had the right to request the appellees to undertake the responsibility of environmental pollution infringement. However, as the local government had carried out the risk control and repair of the plot, there was no need for the appellees to do the same work. If the risk control and remediation organized by the government of Xinbei District could not be completed, or the impact of pollution on the surrounding environment and public health could not be eliminated, civil society organizations had the right to file another lawsuit against the polluters. At this moment, it was impossible to determine the specific amount of the cost for the follow-up treatment, so there has no prerequisite for the court to judge whether the appellees should bear the cost of ecological environment restoration.

Third, as the appellants’ priority claim was to repair the damaged environment to the original state, and the bearing of the repair fee was the standby claim when the priority claim could not be realized, the priority claim should determine the case acceptance fee.

The main contents of the judgment of the second instance are as follows:

1. The civil judgment of Jiangsu Changzhou Intermediate People's Court (2016) Su 04 Minchu No.214 is revoked.

2. The three defendants shall, within 15 days after the effective date of this judgment, make an apology to the public in the state-level media for the pollution.

3. Both the first and second instance case acceptance fees are 100 Yuan, to be borne by the three defendants.

The court of the second instance was holding the hearing

Section 3． Comments on the Ruling

Let's review the critical issues in the two trial decisions.

A.   Who Is Responsible for Pollution Remediation

According to Item VIII of the Opinions of the Ministry of Environmental Protection on Strengthening the Prevention and Control of Soil Pollution (HF [2008] No. 48), if the unit that caused the pollution has been terminated, or the unit or individual that caused the pollution cannot be determined due to historical reasons, the contaminated soil and groundwater shall be repaired and treated by the relevant people's government. If the use right of the land owned by the unit is transferred under the law, the transferee shall be responsible for the repair and administration. If the parties concerned agree otherwise, the agreement shall prevail. However, the parties shall not be exempted from the responsibility for the prevention and control of pollution.

In the Opinions, it is clear that as long as the polluter remains, the government cannot bear the responsibility of environmental remediation. In this case, the three defendants’ legal status remains. Even though the defendants once changed the legal forms of their business, their responsibility for pollution is not removed. It is wrong to hold that the environmental emergency disposal and restoration conducted by the local government meet the requirements of the above provisions.

B.   Whether the Plaintiffs’ Claim Loses the Interest of the Lawsuit

The court of the second instance affirms that the three defendants are liable for the environmental pollution tort, but not responsible for the pollution risk control and repair. The court holds that the scope of the risk control and repair implemented by the local government has covered the scope of the appellees’ tort liability. However, this view suffers the most criticism.

The criticized view is based on the theory of “the interest of litigation”. What is the interest of litigation? The interest of litigation refers to the necessity and effectiveness of making the judgment according to each claim. The courts shall examine whether the interests of the lawsuit exist or not, and if there are no interests, they shall reject the lawsuit.

Why is the judgment of the second instance not recognized? In the initial remediation plan approved by the Environmental Protection Bureau of Xinbei District, the remediation method of “heterotopia resource utilization + local area isolation” is adopted. The contaminated soil of above - 6 meters in the contaminated site should be dug out, the new dry process cement rotary kiln production device should be used as the resource utilization of the raw material of cement plant, and the contaminated soil of below - 6 meters should be isolated. On the other hand, the method of “in-situ chemical oxidation” is adopted to repair polluted groundwater. The chemical oxidant should be introduced into the underground aquifer through the injection well, and the oxidant reacts with the underground water to remove or degrade the pollutants in the underground water. After the students of Changzhou Foreign Language School began to reflect pungent smell and physical abnormalities, the government of Xinbei District adjusted the land for the use of greening and public supporting facilities. It also changed the restoration plan, becoming to cover with soil as a whole, instead of removing underground pollutants.

The court of the second instance is of the view that:

1.     the remediation plan of the government of Xinbei District has covered the scope of responsibility for prevention and control of pollution risk and remediation of the site that the appellees should bear;

2.     the implementation of environmental risk control and remediation has achieved obvious results;

3.     the ecological environment risk and human health and safety have been guaranteed to a certain extent; and

4.     the plaintiff's claim to eliminate the impact of pollution on the ecological environment of the plot, surrounding soil and groundwater, has been partially realized, which will be highly possible to be finally realized.

The removal of pollutants in the soil and groundwater of the plot has not been completed. According to the technical scheme for acceptance of the soil remediation and adjustment project of the original site of Changlong, Huada & Changyu Company published by the Environmental Protection Bureau of Xinbei District, as of January 2016, 95% of the contaminated soil in the area of phase I (two phases) of Changlong plot had been removed. Due to the over-standard points in the boundary and the bottom, the excavation range needs to be expanded or deepened. The soil clearing and excavation work in the second phase of the project has not started. The groundwater remediation work of the whole plot has not begun, either. Therefore, there are still a lot of pollutants in the plot.

According to the relevant provisions of civil environmental tort liability, the plaintiff can require the polluter to restore the site to the original state. Given that there are still a large number of pollutants in the site, the remediation plan of the government of Xinbei District does not cover the responsibility which the polluters should bear. As the modified remediation plan focuses only on the control of pollution diffusion risk, if the court does not require the polluters to take the responsibility of remediation, the plaintiffs’ claim to restore the plot to its original state is unlikely to be realized. In this case, the court shall assess the follow-up restoration work and order the polluters to bear the corresponding responsibility. Such a judgment conforms to the laws and meets the populace’s expectation for social justice.

C.   Standby Claim and Calculation of Case Acceptance Fee

The court of first instance held that in the trial, the two plaintiffs explicitly asserted the environmental restoration cost of 370 million Yuan, so they should bear the case acceptance fee of 1,891,800 Yuan. However, the court of the second instance took another view:

“The acceptance fee of environmental civil public interest lawsuits should be paid under the Provisions of the Measures for the Payment of Litigation Fees of the State Council. In a property case, the acceptance fee should be paid based on the amount or price of the claim at certain rates on an accumulation basis. In a non-property case, the acceptance fee should be a fixed amount depending on case types. The claims made by the appellants, requiring the appellees to repair the damaged environment and apologize, belong to non-property claims. The appellants’ claim that the appellees should bear the cost of repair is a property claim. As the appellants’ priority claim is to repair the damaged environment by the appellees and to bear the repair cost is the standby claim when the priority claim could not be realized, the case acceptance fee, in this case, should be determined according to the priority claim.”

The author agrees with the second view. As the courts of both instances all hold that the defendants do not bear the responsibility of restoration, there is no need to try the issue of compensation for the cost of ecological environment restoration. Thus, there is no justification for collecting the acceptance fee according to the standby claim.

On the other hand, the court should consider the particularity of environmental public interest litigation and reduce the burden of civil society organizations as much as possible. Under the current system, even if civil society organizations win the lawsuits, they cannot receive any benefits except for the actual expenses of litigation. However, the amount of the claims on environmental public interest litigation is often tremendous, meaning that the case acceptance fee the plaintiff shall bear is very high. Moreover, regarding the discovery of pollution clues, investigation, evidence collection, appraisal, evaluation, the employment of lawyers, etc., the plaintiff cannot complete the activities mentioned above without substantial financial support. Therefore, to initiate an environmental public interest lawsuit is heavy work. To encourage civil society organizations to file public interest cases and guide the whole society to pay attention to environmental protection, the court should make a favorable determination for the plaintiff within the scope allowed by the law when coming to the issue of acceptance cost.

Chapter 4． Observation and Deliberation

Even though Changzhou Foreign Language School has seemingly returned to normal, the case is far from over.

Changzhou Foreign Language School

A.   Heated Debates Continue

The theory circle and the practice circle all expressed their views on the judgment of the second instance. Those views mainly relate to case acceptance cost, attorney's agency fee, the subject bearing the final restoration responsibility, whether the emergency repair plan of turning toxic land into green land is advisable, etc. Throughout the opinions of all parties, there are few entirely in favor of the second instance verdict. Most scholars and practitioners take a questioning position or reserve their attitude because the court's opinions, such as the responsibility of land restoration and the adoption of restoration scheme, have no strong support from evidence and laws.

Scene of the Changzhou Toxic Land Case Seminar held by China Biodiversity Conservation and Green Development Foundation

B.   Whether Environmental Health Risk Assessment Is Imperative

In 2012, the Environmental Impact Report of Changzhou Foreign Language School Relocation Construction Project pointed out that the original site of Changlong, Huada & Changyu Company in the north of the project had been polluted. Thus, there were human health risks and ecological risks. The report also said that attention should be paid to the impact of air pollution on teachers and students in school after the remediation of the contaminated site began. However, the environmental impact assessment unit, the construction unit, and the examination and approval authority involved in the environmental impact report did not attach importance to those problems and take measures in advance to prevent the dangers.

 Under the current system, the environmental impact assessment reports of domestic construction project need not include the assessment of population health, but the planning environmental impact assessment reports do. Thus, many experts hold that the evaluation of human health risks in the environmental impact assessment report of Changzhou High Tech Zone is insufficient. In China, it is hard to find a complete planning environmental impact assessment on health impact. The root cause may be "too sensitive." Once the populace is informed of the risk of a specific disease, the opposition to the construction will grow louder. The case sounds the alarm for the improvement of the domestic environmental health risk assessment system. In the current legal environment, we need to complete the planning ecological health risk assessment thoroughly. Further, we need to improve the legislation and consider including the environmental health risk assessment in construction project environmental assessment documents so that the stakeholders can have a comprehensive understanding of the environmental impact of each construction project.

C.   Whether Turning Land Rehabilitation into Risk Management and Control is appropriate

The revised remediation plan is to cover the soil surface with clay, which can prevent people from contacting the polluted soil and groundwater and prevent pollutants from volatilizing to the air through the surface of the plot. However, the underground contaminants in the parcel are select chemicals that can exist for a long time. They can be transferred to the outside and volatilized to the air through the underground flowing water. As the east and west of the plot are residential areas, and the south is the school, the residents are still under the long-term threat of pollution.

Through the change of the restoration scheme, it can be inferred that the plot to be nontoxic is impossible or infeasible. When technical problems cannot be overcome, it is acceptable to adjust the remediation scheme not to pursue innocuity. However, all relevant units need to take practical actions to avoid pollution diffusion. For instance, to fully implement the restoration scheme, widely solicit public opinions, and thoroughly supervise the acceptance work of the soil remediation project and the subsequent long-term environmental monitoring scheme.

The involved plot in the process of restoration

Chapter  5． Social Influence

This lawsuit not only aims at a piece of polluted land in Changzhou, but also plays a crucial role in promoting the improvement of the legal provisions in the process of formation. On January 1, 2019, the Law on the Prevention and Control of Soil Pollution was officially implemented. Compared with the draft of the Law, this case plays a reference role in the formulation of many articles. For example, Article 45 confirms that the person responsible for soil pollution should repair the pollution and control the risk, as well as the exceptions in which the land user should bear the responsibility. Article 47 stipulates that when the person responsible for soil pollution is changed, the unit or individual that inherits its creditor's rights and debts shall undertake the risk control and repair obligations. Article 68 also states that if the land use right has been withdrawn by the local people's government and the person responsible for soil pollution is the original land use right holder, the local people's government shall organize the implementation of soil pollution risk control and remediation.

In this case, the lawsuit is utilized to promote the legislation, which embodies an essential value of public interest litigation.

P.S. This report is supported by the Heinrich-Böll-Stiftung (Germany) Beijing Representative Office, but the content of the report does not represent the position of the sponsor.