WETLAND DESTRUCTION OF URBAN FANGYUAN COMMUNITY

- Case Study of Environmental Civil Public Interest Litigation 

                                                                                            Case II

Section 1． Factual Background

A.   Wetland in the Community

Seated in the Urban Fangyuan Community, Dongxiaokou Town, Changping District, Beijing, there is a lake wetland with a total area of about 200 mu. There were two fish ponds in this area before the development of this community. The developer changed the ponds into a lake. The lake is divided into two regions, north and south. The middle of the lake is connected by a narrow waterway, which is generally in the shape of "I." There are birds, hedgehogs, frogs, and other wild animals living here. It is the natural "green lung" of the community and surrounding areas. It conserves water sources, purifies water quality, regulates microclimate, maintains biodiversity, and has rich ecological service functions.

Also, the terrain of the Urban Fangyuan Community is lower than that of the surrounding area, and there has no rainwater drainage system. The wetland in the community plays a vital role in rainwater storage and drainage, which is essential to flood control and drainage.

The wetland in the Urban Fangyuan Community

Satellite photo of the wetland in the Urban Fangyuan Community

B.   Residents' Trouble

One day in October 2014, Urban Fangyuan Real Estate Development Co., Ltd. suddenly posted a notice announcing that it would green and level the lake surface of the community. The following day, the developer hired a team to start filling. Given that the community used well water for living while there had no municipal tap water, the residents worried that the underground water would be polluted due to the unknown filling materials. The residents began to complain through various channels, but could not stop the project. Ten months later, more than three-quarters of the original lake area was filled up, the bridge connecting the east and west sides of the community was demolished, the growing plant community was destroyed, and the original ecological environment disappeared. This development made the residents who had lived in harmony with the lake for a long time felt uneasy.

The community wetland was being filled

Section 2． Pre-litigation Preparation

A.   Whether Environmental Public Interest Litigation Is Feasible

After learning that environmental public interest litigation was likely to solve the problem in front of them, the representatives of the community residents brought the case to the environmental civil public interest litigation advocacy and legal support network platform, composed of CLAPV and Friends of Nature.

This matter that concerned us the most was whether destroying this lake wetland violated the public social interest. On the surface, it seemed only to affect the community, but from the perspective of wetland protection, different conclusions could be drawn. Since the 18th National Congress of the Communist Party of China, our country has listed "wetland area no less than 800 million mu" as one of the main objectives of the construction of ecological civilization by 2020. The Regulations on Wetland Protection and Management implemented on May 1, 2013, set the "national policy of comprehensive protection, scientific restoration, rational utilization, and sustainable development of wetlands." Because wetland has unique ecological value, we think it is reasonable to regard the destruction of lake wetland as the infringement of public social interests.

B.   Investigation of Case

After confirming the feasibility of environmental civil public interest litigation, we started to investigate on the spot. Using the Google satellite image retrieval, we studied the process of the lake change since September 13, 2003, and confirmed that the artificial lake area was rich in vegetation before it was filled. Through the government information disclosure application, we obtained the reply of Beijing Changping District Comprehensive Administration and Law Enforcement Supervision Bureau on reporting the dumping of garbage and dregs in the Dongfangyuan Community, Dongxiaokou Town on November 9, 2014, which proved that the lake filling started on October 22, 2014, and the backfill came from the south side of the Huoying Village Committee, Huoying Street, Changping District.

Section 3． Prosecution and Trial

A.   Notice of Case Acceptance

CLAPV, as the supporting prosecution unit and Friend of Nature as the plaintiff, filed a lawsuit with the Fourth Intermediate People's Court of Beijing on July 16, 2015, against the defendants, Beijing Urban Fangyuan Real Estate Development Co., Ltd. and Beijing Jiuxin Property Management Co., Ltd.  The claims follow:

1. Immediately stop the construction work in the lake area, and do not continue to dump solid waste such as muck, or continue to damage the original ecology;

  2. Restore the wetland to its original state and restore the ecological environment of the damaged wetland to the state and function before the damage.

   3. Compensate for the loss of service function from the destruction of the wetland ecology to the restoration of the original state. The compensation should be used for public welfare undertakings such as wetland protection in Changping District, Beijing.

On the morning of July 23, 2015, the court officially accepted the dispute. As the first environmental civil public interest lawsuit in Beijing, this suit attracted extensive attention from the populace.

Besides, the defendants began to plant vast areas of trees on the filled land.

B.   Damage Assessment and Appraisal

For understanding whether the filling caused heavy metal pollution and other damage to the ecosystem, the plaintiff applied for appraisal to the court on May 9, 2016. The court approved the application and entrusted an appraisal center. The center issued an appraisal report in August 2018, which confirmed that the lake had wetland function. The appraisal conclusion is as follows:

1.    Through the monitoring, the landfill is approved not to cause damage to the soil and surface water environment in the assessment area.

 2.  The annual ecosystem service value provided by the wetland before the landfill is 170,400 Yuan; the annual service value provided by the remaining 0.82 hm2 wetland after the dump in 2015-2018 is 26,900 Yuan, 40,800 Yuan, and 81,000 Yuan respectively; the annual ecosystem service value provided by the 5.18 hm2 artificial woodland planted by the defendant after the landfill is 272,900 Yuan.

 3.  From the beginning of the ecological damage from 2015 to 2018, the periodic loss of the ecosystem service value is 294,300 Yuan, while the periodic benefit of the ecosystem restoration measures is 3,613,000 Yuan. The service value of the restoration measures taken exceeds the service value of the damaged zone, and other ecological restoration measures are not needed.

The appraisal work was in progress

C.   Court Investigation

To find out whether the defendants violated the law, the court sent the notice of environmental civil public interest litigation to 16 administrative organs, including Beijing Environmental Protection Bureau, Beijing Changping District Environmental Protection Bureau, and Beijing Landscaping Bureau. The notice informed of the acceptance of the case and requested the abovementioned administrative organs assisting in case investigation.

D.   Trial Results

On August 16, 2018, the court held a public hearing, and the appraiser appeared in court to accept the inquiry.

After hearing, the court held that:

First of all, it was necessary to fill the lake. Affected by the annual decline of the groundwater level in Beijing, the water department prohibited a large number of groundwater pumping, which made the defendants unable to pump groundwater into the lake. According to the reply letter from the Beijing Municipal Bureau of Landscape Architecture and Afforestation, there was no anti-seepage project in the lake, and there was no other supplementary water source. The lake area was dried up year by year, and there were significant hidden dangers in terms of fire and public security. It was necessary to reconstruct the lake.

Secondly, filling the lake was not illegal. According to the reply letter from Changping District Bureau of Landscape Architecture and Afforestation of Beijing, the artificial lake was listed as other occupied lands in the community, not included in the green area. The reply from Beijing Municipal Water Bureau proved that the artificial lake was classified as auxiliary landscape facilities, of which the property right belonged to all the owners of the community. The defendants, with the consent of more than two-thirds of the owners, filled and reconstructed the artificial lake. This action complied with the law. According to the reply letter from the Beijing Municipal Environmental Protection Bureau, the landfill was implemented for "artificial lake," which was not a wetland.

Thirdly, the greening of the filled lake did not affect the ecological environment. The appraisal and evaluation report stated that the service value of the restoration measures taken in the reconstructed assessment area exceeded the damaged service value, and no other ecological restoration measures were needed.  

Therefore, the judgment was made on October 24, 2018, mainly including:

1. The defendants Beijing Urban Fangyuan Real Estate Development Co., Ltd. and Beijing Jiuxin Property Management Co., Ltd. have carried out the transformation and greening of the artificial lake in the Urban Fangyuan Community. They should maintain the transformed and green environment and shall not destruct the ecology and pollute the environment in the area.

    2. Other claims of the plaintiff were rejected.

    3. The appraisal fee was 254,660 Yuan, which shall be borne by the plaintiff.

The hearing of the case in progress

Section 4.  Comments on the Ruling

Some opinions in this judgment are worthy of study and discussion.

A.  Whether “Artificial Lake” Is Not Protected by Wetland-Related Laws   and Regulations

Beijing Municipal Environmental Protection Bureau provides that the landfilling is to reconstruct the dried-up "artificial lake," which has nothing to do with "wetland." Accordingly, the court held that the use of the lake is subject to general property laws, not within the scope of the trial of environmental civil public interest litigation.

However, Article 2 of the Regulations of Beijing Municipality on the Protection of Wetlands stipulates that "the wetland mentioned in these Regulations refers to the natural or artificially formed rivers, lakes, reservoirs, swamps, and other areas that are perennial or seasonal, with static or flowing water bodies and suitable for the survival of wet-loving wildlife." The appraisal and evaluation report of this case also confirms that the lake involved has wetland function, and belongs to the protection category of ordinary wetland in Beijing wetland protection regulations at least. Unfortunately, the Regulations of Beijing Municipality on the Protection of Wetlands are not clear about how to protect ordinary wetlands. When there have conflicts between private use rights and local wetland-related laws and regulations, how to define the connotation of wetland protection? We cannot find a clear answer in the Regulations of Beijing Municipality on the Protection of Wetlands. This dispute may need legislators to solve.

B.   Whether It Is Necessary to Identify the Loss of Ecological Service Function

Because most of the plaintiff's claims are not upheld, the court orders the plaintiff to bear the entire appraisal and evaluation fees of 254,660 Yuan, which is extremely heavy for a civil society organization that shoulders the burden of public interest litigation on its own.

Whether can the court save a considerable appraisal cost for the plaintiff in the following way? The court examines whether the landfill is legal, and directs the appraisal unit to monitor the soil and groundwater pollution at the same time. Upon confirming that the dump is allowable and the site is pollution-free, the court discloses the findings to the litigants and asks them to decide whether to continue other appraisal tasks, which may not be necessary.

The courts cannot exercise the litigation command delicately and efficiently unless they are proficient in dealing with environmental cases, and the civil litigation system requires a more humanized and transparent exercise of litigation command. Those preconditions may not exist in the current legal environment, but efforts can be made for the future of China's civil litigation system.

C.   Whether the Ecological Service Function of Wetland Is Equal to That of Forest and Woods

The evaluation and appraisal report holds that:

(1)  from the beginning of ecological damage in 2015 to 2018, the periodic loss of the ecosystem service value is 294,300 Yuan while the periodic benefit of the ecosystem restoration measures is 3,613,000 Yuan; and

(2) the service value of the restoration measures taken exceeds the service value of the damaged zone, and other ecological restoration measures are not needed.

However, the premise of such results is not to consider the difference of ecological service functions provided by wetland and artificial forest land but to simply calculate the ecological service functions at a price.

Is this formula reasonable? In the view of the plaintiff, there is a problem. Wetland is known as the "kidney of the earth," which has the functions of species storage, climate regulation, flood storage, and peak cutting, which cannot be replaced by the ecological services provided by trees. In the appraisal report, it is a pity that we do not see the appraisal unit's explanation for the use of this formula. Although the plaintiff repeatedly emphasized the differences in ecological services, the court finally failed to adopt its view.

 At present, China's assessment of ecological and environmental damage to nature reserves and protected species is still in its infancy, and the lack of corresponding technical specifications makes full evaluation of the ecological services difficult, for which this case is an example.

D.   Judgment Based on Unpleaded Claim

In the first item of the judgment, the court confirms that the defendants should maintain the transformed and afforested environment and shall not carry out the acts of destroying the ecology and polluting the environment in the area. This judgment is conducive to environmental protection. However, from the perspective of law, there have problems:

First of all, this judgment has nothing to do with the plaintiff's claim. The plaintiff requests to repair the wetland ecological environment, not the artificial forest land. The plaintiff does not require the defendant to maintain the reconstructed green space, either. The court's decision is suspected of "judging without litigation."

Second, the judgment contradicts the facts and opinions recognized by the court. The court holds that the defendant's filing of the lake is reasonable and legal, which is the proper exercise of land use rights, and wetland-related laws and regulations do not protect this lake area. As the use of this lake is subject to general property laws, how can the court require the defendants to maintain the reconstructed green land when the relevant laws do not impose such an obligation? The author speculates that this judgment should be a "wise act" by the court to take into account the expectations of the public.

Section 5.  Observation and Deliberation

Although the judgment a doubt "judging without litigation," in essence, it has contributed to the permanent maintenance of the forestland. The possibility of turning green land into residential buildings has been greatly reduced. The intention of the court is certain.

For the residents who like the beautiful lake scenery, they may be disappointed with the verdict. However, the environment is confirmed, through the lawsuit, not to be contaminated. The residents can finally take a sigh of relief. The 200 mu lake becomes the 200 mu forestland that needs permanent maintenance. Is it another harvest for the community?

Moreover, the result of this case serves as a warning. We shall turn passive into active, actively understand the government's wetland protection work, and actively promote the wetland ecology of our concern to be listed in the wetland protection list, which may be a better way to safeguard our rights and interests. Taking this case as an example, if the lake was listed in the Changping District Wetland List, the scene of lake filling might not occur. Even if the lawsuit procedure is still entered, the result may be substantially different.

Section 6.  Social Influence

In addition to improving the public awareness of wetland ecological protection, the case has also promoted the birth of wetland protection list in various places. Taking Beijing as an example, the Regulations of Beijing Municipality on the Protection of Wetlands and the Regulations on Wetland Protection and Management promulgated by the State Forestry Administration were implemented on the same day. However, till the initiation of the lawsuit, the competent wetland authorities of Beijing Municipality and its districts and counties had not published any list of wetlands, and neither had most of the other provinces, autonomous regions, and municipalities directly under the central government. In these years, the wetland protection list is announced one after another. The phenomenon proves that the corresponding environmental civil litigation can provide a positive impetus for wetland protection.

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.