Protecting Land Rights and the Environment
Karla W. Simon
Professor of Law
NYU US-Asia Law Institute
Fairbank Center, Harvard University
CPRI, Beijing Normal University
China’s top legislature has adopted an amendment to the Administrative Procedure Law, aiming to expand the people’s right to sue the government. Members of the Standing Committee of the National People’s Congress (NPC) passed the amendment through a vote at the close of the week long, bi-monthly legislative session in November 2014, saying it is in line with the reality of administrative litigation and makes it easier for citizens to take the government to court. This is important for environmental litigation. This paper explores the newly passed Administrative Procedure Law amendments and other developments aiming to quell disturbances in especially the countryside about land rights and environmental pollution. The newly promulgated law, with amendments, is available at: http://www.lawinfochina.com/Display.aspx?lib=law&Cgid=237553.
More recently, the Ministry of Environmental Protection has promulgated draft regulations concerning the right of citizens to participate in a variety of environmental matters. The full, translated version is available here: http://chinalawtranslate.com/en/enviroparticipation/.
By way of background it is clear that land rights and the environment are some of the most contentious social and environmental issues facing China today.
When Hong Kong students launched their “Umbrella Revolution” in 2014, the comforting narrative of youngsters striving for democracy combined with the aesthetic of tents beneath the skyscrapers captivated the world’s media. The scene in gritty Tianmu, a village outside the northern industrial city of Tianjin, couldn’t be more different to glamorous Hong Kong – nor could it be more typical of the widespread protests taking place on the Chinese mainland.
According China Spectator, “without much fanfare or media attention, Tianmu’s residents have been protesting for almost as long as their counterparts did in Hong Kong. Instead of universal suffrage, the villagers have more mundane concerns on their minds: a fair price for their land. And in Tianmu, as in so many villages and towns throughout China, getting a fair price from local officials can be no less arduous than getting the central Chinese Communist Party to agree to free and fair elections.
“For more than 70 days, several hundred people (and sometimes a few thousand) gathered outside government offices to demand the removal of the local party secretary, Mu Xiangyou, who they accuse of illegally selling off their land and pocketing the profits. The protests have only just begun to taper off.
“Reports said that a public security official ordered the village committee to “find a solution,” but protesters have promised to return to the streets if their demands are not met.”
China’s environmental movement has been strong since the mid-1990’s when Friends of Nature, Green Earth Volunteers, and Green River were founded, and it continues to be strong to this day, with environmental activists such as Haxi Zhaxishoujia working on their own and with SEPA to encourage greater protections for the environment throughout China. There was a spate of scholarly articles about the movement in the mid aughts. Now more attention is being paid to protests.
As The Economist wrote in 2014: “Demonstrations against a petrochemical plant have this week reverberated throughout cities in China’s south-eastern Guangdong province, at times becoming riotous. The unrest began on March 30, 2014, when 1,000 protestors assembled outside government buildings in Maoming, a city in southern China’s industrial heartland. They objected to long-standing plans for a 3.5 billion yuan ($563m) paraxylene (PX) plant, a joint venture between the local government and Sinopec, a state-owned oil and gas company. Paraxylene, a chemical in polyester fabric and plastic bottles, is dangerous if inhaled or absorbed through the skin. After several days of protest in Maoming, by April 4th smaller sister demonstrations had broken out in the cities of Shenzhen and Guangzhou.”
More recently an explosion at a similar plant in April 15, 2015 is sure to trigger more animosity against the local government. According to Caixin’s English language e-newspaper: “A large explosion and fire at a chemical plant in Zhangzhou, in the eastern province of Fujian, has rekindled the public’s concern about the security of petroleum projects and the adequacy of government oversight, and experts say the incident may further exacerbate this distrust.”
The 2014 amendment to the Administrative Procedure Law add this article: “The people’s courts shall protect the right of a citizen, a legal person, or any other organization to file a complaint, and accept, according to the law, administrative cases that shall be accepted.” In addition, these are some of the types of complaints that must be accepted:
|“(4) A complaint against an administrative agency’s decision to confirm the ownership orthe right to use any natural resource, such as land, mineral resources, water, forest, hill, grassland, wasteland, tidal flat, or sea area.|
|“(5) A complaint against a decision on expropriation or requisition or a decision on compensationfor expropriation or requisition.
These claims would obviously affect both land rights and environmental rights. Other stipulations of the law go further and could have similar effects. According to Xinhuanet, the passage of the new rules was hailed in 2013 when it came up for the first reading: “Hu Jianmiao, professor with China National School of Administration, told reporters that the occasions on which citizens could sue governments had been increased and were more clearly defined. He regards the revisions as most the important parts of the law, balancing the interests of citizens, administrative bodies, and courts. As many administrative bodies simply refuse to implement or ignore verdicts, which favor citizens, the amendment stipulates that administrative bodies’ refusal to execute verdicts should be made public.”
It is interesting that the passage of these amendments (and the effective date of May 1, 2015) are consistent with the “rule of law” component of the Chinese Communist Party’s 4th Plenum held in October 2014. Governing China consistently with the rule of law and the Constitution should give these new rules for administrative litigation great force. With respect to land rights, they are strengthened by the NPC meeting in March 2015, when the government Work Report stressed the need for reform.
Most importantly, China will carry out a groundbreaking trial program that may allow farmers to mortgage and sell land, a step towards liberalizing rural real estate transactions currently monopolized by the government. The ability to mortgage and sell land is expected to accelerate China’s urbanization, a key driver of its decades-long economic boom, by enabling farmers to realize value from their assets, facilitating their move to the cities. On the other hand, it may also allow them to leverage their land, and thus stay on the land, having financed education and more modern equipment.
Up until now, only the government has had the power to appropriate land, often with little or no compensation, and corrupt government officials would often sell it to property developers at a huge profit, leading to widespread social resentment and frequently triggering unrest. The sensitive situation in Tianmu is indicative of this, but there are many other examples. One is the famous case of Wukan in 2011, which received a great deal of attention in the press and by scholars, such as myself.
For the environmental movement, the new Administrative Procedure Law fixes the right to litigate serious issues against the local State Environmental Protection Agencies (SEPA), when they fail to carry out their jobs with care. But as I indicate in other work, local activists tend not to sue but rather to work with local SEPAs and to demonstrate then their demands for better environmentalism are not met, as in Maoming, cited above.
The draft regulations on engaging in environmentalism suggest that public participation in the following activities is now permissible:
(1) The drafting and revision of laws and regulations on environmental protection, as well as normative documents, policies, plans, and standards;
(2) Compiling environmental impact reports on plans or construction projects;
(3) Investigation and handling of major environmental pollution or ecological damage incidents
that might seriously harm the public’s environmental and health interests;
(4) Supervising the primary pollution discharge of key polluting units, as well as the construction and operation of anti-pollution equipment;
(5) Publicity and education, social practice, volunteer service, and related public interest activities on environmental protection; and
(6) Other matters provided for by laws, regulations, and rules.
The rules are broader than the Interim Measures of Public Participation in Environmental Impact Assessment (February 22, 2006) and the Environmental Information Disclosure
Measures (April 11, 2007). They are given broad scope and wide impact and are expected to become effective later in 2015.