UNDEF 4th Round Project: “Protect the Environmental Rights andJustice of the Public”

Evaluation Report

Dan Guttman1 Xia Kunbao2

Contents

I. Introduction
A. Background
B. Evaluation Approach
C. Project Strategy

II. Review of the Project Outputs
A. Baseline Survey Reports
B. Educational Materials and MediaC. Policy/Legislative Development
D. Legal Aid
E. Volunteer Lawyer Training
F. Promoting Information Disclosure

1

Project Consultant
Project Consultant

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III. Review of the Project Outcomes
A. Baseline Surveys
B. Policy and Legislative Development
C. Legal Aid
D. Public Awareness and Public Participation
E. UN/ACEF Cooperation
IV. Conclusions and Recommendations
A. Conclusions
B. Recommendations – Next Steps

Acronyms

ACEF

All-China Environment Federation

CLAPV

Center for Legal Assistance to Pollution Victims

CSOs

civil society organizations

EPB

Environmental Protection Bureau

PILpublic interest litigation

UNDEF

United Nations Democracy Fund

UNDP

United Nations Development Programme278

I. Introduction
A. Background
The United Nations Democracy Fund (UNDEF), All China Environmental
Federation (ACEF), and United Nations Development Programme (UNDP)
signed the project document (Project No. UNDF-CPR-O9-320) on 2 December
2010, and agreed to implement a UNDEF 4th Round project entitled “Protect
the Environmental Rights and Justice of the Public” from 1 January 2011 to 31
December 2012. The project was supported by UNDEF with a total fundingof 37500 USD, with ACEF as the Implementing Agency and UNDP as the
Executing Agency.
The All-China Environment Federation (ACEF), established in 2005, is anationwide non-proit civil society organization (CSO) in the ield of theenvironment, and is supported by the government. It is composed of CSOs andindividuals who are enthusiastic about and support environmental protection andare willing to work for it. The objective of ACEF is to serve as a bridge between
the government and the public in implementing the sustainable development
strategy, achieving national objectives on environment and development,
and protecting the environmental rights of the public. By fully utilizing its
organizational advantage, ACEF aims to promote environmental protection andsustainable development in China and the world at large.
UNDP promotes sustainable human development to help build resilient nations
and to empower people to build better lives. As the UN's development network,
UNDP draws on world-wide experience to assist China both in developing
solutions to its own ongoing development challenges, and in its south-south
cooperation and engagement in global development.
The environmental challenges faced by China need little introduction. In its
remarkable economic rise, China has become the workplace for the world,
fueling global development as well as its own. The environmental costs ofeconomic development include:
1) China’s water resources, limited by nature on both a per capita andregional bases, are in critical peril from overuse, and industrial andagricultural pollution;2) China’s air quality is daily challenged by reliance on coal as primary
fuel, increased auto use and continued construction;2793) The pervasive, often long term latent effects of the use of heavy
metals, and accumulations of solid waste;4) Ecological degradation such as desertiication, deforestation, andloss of biodiversity.
These environmental challenges are, in turn, set in a context of governancechallenges.
- China has many environmental laws, regulations and standards, but
their enforcement is weak, especially by industries at the local level;- Public Interest litigation (PIL) is new to China; at the time the project
began, there were a few environmental tribunals, but the numbers ofcases were small- Environmental Civil Society Organizations (CSOs) as a means toengage citizens in environmental protection face many dificulties,
including lack of inancial resources, lack of an adequate enabling
legislative framework, and limited availability of lawyers who will
volunteer for environmental legal aid (in the absence of fees).
The challenge of reconciling economic development and environmental goals
as China develops is well known to be a deep one.
B. Evaluation Approach
In performing this evaluation, the authors reviewed the Project Document andmaterials and information provided by ACEF and UNDP related to the project
implementation, discussed questions with ACEF staff, drew on their experienceattending project activities, and reviewed further relevant materials on China’s
environment and environmental governance.
The evaluation of this project presents some basic challenges.
First, in general, projects directed at improving “governance” may be evaluatedat many levels, with related dificulties and potential rewards. Much governanceevaluation focuses on what might be called “outputs”- for example, the numbersof reports produced, the numbers of recommendations that result in policies, thenumbers of cases decided, investigations conducted, workshops held, or thenumbers of citizens whose complaints were responded to.
In this case, this project called on ACEF/UNDP to create a handbook on theprotection of the environmental rights of the public, to engage in legal aid on 20

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cases, to propose environmental policy and law reforms, and to do lawyer training.
As we will discuss in Part II and III, by these measures (performance of surveys,
publication of the handbook, legal aid in twenty cases, training 80 lawyers, as
examples), the project goals were met. However, these accomplishments do not
yet tell us fully the deeper effects (sometimes called “outcomes”) of the projecton producing desired change.3
Moreover, in this project the basic objectives were at least three fold. The
primary objectives included: (a) increasing public awareness of environmental
rights; (b) inluencing policy change and gaining support for establishing anenvironmental PIL system; (c) protecting the rights of the public to a clean
environment as an important part of human rights, and contributing to thedemocratization process in China. In each case, evaluation involves further
levels of consideration.
In regard to the evaluation of progress on environmental law, it may be easy
to get measures on the numbers of cases that have been brought or decided; orthe numbers of penalties that have been assessed, and their amounts (as we will
do in regard to the cases of legal aid related to this project.) However, deeper
questions include, as examples:
Did the decisions or penalties in each case effect only the case at hand or havebroader effects in improved compliance with the law? If so, did improved
compliance with the law result in improvement in environmental quality, as
measured by pollution indices for example? And did improved environmental
quality result in improvement in human and further life? And, in any case, were
the time and money spent on the cases used well in comparison with alternative
uses of the resources?

In relation to environmental awareness, as the literature discusses,
environmental awareness is a multidimensional concept. For example,
the “naming, blaming, claiming” framework distinguishes levels ofawareness:2
In relation to environmental awareness, as the literature discusses,
environmental awareness is a multidimensional concept. For example,
the “naming, blaming, claiming” framework distinguishes levels of
3
See, generally, Oran R. Young: On Environmental Governance: Sustainability, Eficiency, and Equity:(Paradigm: 2012).

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awareness:2-- a citizen may be aware he or she is not healthy, but may not be awarethat the source of poor health comes from environmental pollution (as opposed,
for example, to the citizen’s own conduct or bad luck);-- a citizen may be aware that the health problem comes fromenvironmental pollution, but may not know the source(s);-- a citizen may know the source(s) but not know how to take action toprotect himself/herself-or may know but lack the resources to take action.
Similarly, the literature on risk perception explains that awareness may behigh but erroneous; citizens may think they have awareness of environmental
pollution, but, when measured by relevant expertise, the perceptions of risk may
be in error.
In short, awareness is essential for citizen action to protect the environment,
but the relation between awareness and useful action to protect the environment
may not be simple.
The same is the case with the related questions of the evaluation of “capacity
building”. Training sessions can be conducted and, by the measure of numbersof those trained, the training may be evaluated as successful. However, theimpact of the training-the numbers of participants who took action based on it,
who took action that was well founded, and who took action that had impact(and the effects of that impact) -- is much more dificult.
In sum, governance evaluations may show excellent performance by somemeasures, but may omit the most important measures of real world effect. Thereis a value to the use of multiple measures. In Part II, this evaluation focuses onwhat might be called “output” measures; in Part III we try to relect more deeplyon the impact (or “outcome”) of the project efforts. The focus will be on lessons
learned that may be the basis for future action and continued progress.

2

William Felsteiner, Richard Abel, Austin Sara, “The Emergence and Transformation of Disputes: Naming,
Blaming, Claiming”, 15 Law and Society Review 631 (1981) (reprinted in John J. Bonsignore et al. (eds.)
Before the Law: An Introduction to the Legal Process (Boston: Houghton¬Miflin, 4th ed., 1989); Benjaminvan Rooij; “The People v. Pollution: Understanding citizen action against pollution in China,” Journal ofContemporary China, 19:63; 55-77 (2010) (applying Felstiner et al to citizen environmental action in China
context).

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C. Project Strategy
What is to be evaluated? We used the basic agreement between UNDP/ACEF
and UNDEF relected in the Project Document as our guide. The Document
provides a “strategy” for the project and the speciic activities to be conducted.
1. Strategy
The Project Document states that the strategy of the project is to:-- raise public environmental awareness;-- inluence policy change, gain support from the government for
the legislation on liability and compensation for damages caused byenvironmental pollution and ecological degradation, and for establishingan environmental PIL system and environmental tribunals; and-- to provide legal aid to the victims of environmental damages,
thus protecting the rights of the public to a clean environment,
an important part of human rights, and contributing to thedemocratization process in China.
2. Implementation steps
The Project Document also states the steps to implement the strategy:-- a baseline survey to collect data related to project objectives andactivities;-- to raise public awareness, printed and video materials to be
produced, including a handbook with 5000 copies to be distributed
widely, especially to pollution victims and vulnerable groups,
producing and broadcasting TV programs, and disseminating
information on the ACEF website and websites of otherorganizations;- legal aid, including providing legal aid in 20 cases, developing
environmental tribunals and training lawyers;-- legislative policy proposals on an environmental PIL systemand on liability and compensation for environmental damages;- survey of public opinion towards the end of the project.

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The Project Document recognizes that risk factors include the dificulties
in iling environmental lawsuits in China, including the absence of theright of CSOs to appear in court on behalf of the public interest and theuncertainties of the legislative process.
II. Review of the Project Outputs
In this section we summarize activities undertaken to implement the
project. As explained in the Part One discussion of “Evaluation,” thissection may be said to focus, though not exclusively so, on more readily
available “output” measures- surveys conducted, publications produced,
legislative proposals made, TV programmes developed, number of legal
assistance cases conducted and lawyers trained.
A. Baseline Survey Reports
In 2010, prior to project implementation, ACEF conducted a baseline
survey on the public awareness of, and opinion about, environmental
conditions, environmental rights, and the protection of environmental
rights; In 2012, towards the end of the project, a followup survey was
conducted. The surveys relied on the posting of a questionnaire on anenvironmental discussion website and the distribution of questionnaire in
hard copies. 3822 and 1567 responses were received, respectively, fromthe 1st and 2nd survey.
The survey results should be viewed with the sample population inmind. Since the bulk of the responses were from the website focused on
environmental issues, it must be presumed that the sample population was
self-selected from a (website) group already focused on the environment.
Primary results of the surveys include:1.

2.

The irst survey found that a majority of respondents have heard of
the concept of environmental rights, though 42.84% have heard of
it but do not know details.
In the irst survey, 20.29% of the respondents said they would take
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3.

4.

5.

all necessary measures to protect their environmental rights; in thesecond the percentage was 30.4%.
In the second survey56.2% of the respondents reported they had
had some experiences in the protection of their environmental
rights, compared to 22.2% in the irst survey.
Regarding the methods to be used to protect environmental rights,
13.08% of the respondents said they prefer seeking assistance fromlawyers and settling the case through litigation while in the second
survey, the number was 25%. However the public has limited
knowledge about Public Interest Litigation (PIL). In the second
survey, only 3.5% of the respondents knew about PIL and 37.2%
have heard of the term.
65.9% of the respondents acknowledged the role of the CSOs in theprotection of environmental rights in the second survey, while thenumber was 34.07% in the irst survey.
B. Educational Materials and MediaThe Project Document provided that a Handbook on the Protection of
the Environmental Rights was to be produced. This was done, and 6000
copies were distributed. The Handbook has been translated into English
and is available in hardcopy and the web. The Handbook should have asustaining role in increasing citizen environmental rights awareness andcapacity.
In addition, ACEF also worked with media in publicizing, and thereby
helping to address, cases resulting from citizen complaints. 10 TV
programmes on the protection of environmental rights were produced
and broadcasted.
C. Policy/Legislative Development
The Project Document called on ACEF to help promote the developmentof the environmental PIL system through the promotion of amendments
to existing law.
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Towards this end, three expert workshops were conducted and expert
analyses commissioned and six legislative proposals were produced andprovided to China’s top legislature, the National People’s Congress. The
proposals focused on amendments to the Civil Procedure Law of thePeople’s Republic of China, and the Environmental Protection Law of
the People’s Republic of China to include provisions on PIL.
In 2012, China revised its Civil Procedure Law (with an effective dateof January, 2013). The law now includes a provision that states: “Theinstitutions and related organizations provided by law can bring suits to thePeoples Court on violations of the public interests such as environmental
damages and violation of consumers’ legal rights and interests” (Article
55 of the revised Civil Procedure Law of China). This is a irst step in thedevelopment of the China PIL system. The UNDEF project contributed
to this progress. This is an outstanding outcome of the project.
The Environmental Protection Law is in the process of revision, andACEF is making efforts to include a provision to clarify and render
more readily operational the rights provided in the Civil Procedure Law
amendment now in effect.
ACEF also worked in support of the development of environmental
tribunals. This work included legislative proposals and two workshops
on the establishment of environmental tribunals, which involved
Presidents and senior judges of Intermediate Courts from 10 major cities.
During the project’s lifespan, the numbers of environmental tribunals
have grown from 41 to over 90 (by year end 2012). ACEF contributed
to this development through these activities. ACEF helped directly inthe establishment of the Yubei District Environment Tribunal and the
Wanzhou District Environmental Tribunal in Chongqing Municipality.
Averagely ACEF handled 4 PIL cases with involvement of at least
4 judges every year. Since 2008, ACEF has worked in PIL cases withEnvironmental Tribunals in Wuxi City of Jiangsu Province, Guiyang
Intermediate Court and Qingzhen City of Guizhou Province, Kunming
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City of Yunnan Province, Haikou City of Hainan Province, and the Yubei
District and Wanzhou District of Chongqing Municipality.
In 2011 a workshop was also organized to discuss the concept of“Environmental Public Interest Compensation Fund(s),” which would
provide for appropriate distribution of compensation monies awarded
to victims of environmental pollution. As a result of the workshop, in2012 a proposal was produced and submitted to the National People’s
Conference in March 2012. The proposal was transferred to the relevant
legislative and government organs for consideration.
D. Legal Aid
Under the Project Document, legal aid was to be provided to 1000 victims
in 20 cases of environmental damages. The project exceeded these targets.
(1) According to ACEF, legal aid was provided to thousands of victims
in 24 cases in different cities and provinces. ACEF categorizes its
efforts into three kinds of legal assistance work; litigation, mediationand supervision. In litigation, ACEF brings a case to court with ACEF
as the plaintiff, with the result (settlement or decision) coming throughcourt proceedings; In mediation, ACEF meets with parties to the dispute,and seeks to persuade them to settle the case through negotiation.
Alternatively, when a case is brought to the court, the judge can try
to persuade the two parties in the litigation to consult with each otherand settle the case on mutually agreeable terms. Supervision refers tosituations where settlement is sought outside of court with the potential
involvement of ACEF investigation, media, central or local government
assistance, and settlement negotiations.
Dingpa Paper Mill pollution case is a good example of a successful
PIL case handled by ACEF. In January 2011, ACEF brought a lawsuit
to Qingzhen City Environmental Tribunal against Dingpa Paper Millin Wudang District, Guiyang City, Guizhou Province, which hadpolluted the environment. It was tried with ACEF as the plaintiff. After287

the hearing, the tribunal announced its verdict, which supported all of
ACEF’s litigation claims. Dingpa Paper Mill was shut down. It is the irst
PIL won by a CSO in China.
An example of legal aid by mediation is the Haoyiduo Dairy Corporation
pollution case. In October 2011, ACEF brought a lawsuit to theEnvironmental Tribunal of Qingzhen City against Haoyiduo Dairy
Corporation Ltd in Guizhou Province for discharging waste water directly
into the rivers, polluting the environment and impairing people’s health.
The case was settled through mediation by the tribunal with participationof ACEF and a local environmental CSO. The corporation stopped
pollution and took pollution control measures under the supervision of
Guiyang Public Environmental Education Center.
In the 24 cases under the Project, twenty have been settled, of which four
were settled by litigation, eight by mediation and eight by supervision.
The remaining four cases are pending, with related settlement efforts,
including the Conoco Phillips Bohai Bay oil pollution case. The
victims have been awarded 3.16 million CNY (about 508,000 USD) as
compensation for their direct economic loss.
(2) The majority of all cases (and all litigated cases but for one) focusedon water pollution. The water pollution litigation cases were based on
ACEF presentation of evidence of noncompliance with relevant national
standards (for example, for Chemical Oxygen Demand, Biological
Oxygen Demand as found in the National Standards No. GB-3544-2008).
(3) Further cases settled by mediation and supervision involved mining,
agricultural chemicals, waste gas, noise and powder.
(4) We discuss the Dingpa case and the open information case below)-

settlements including compensation for damage to ish, silkworms,
and crops, and in which polluters were ordered to cease pollution.3

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(5) While the cases may have involved impairment of human health, thecases generally did not involve claims for compensation for damage tohuman health. In general, the remedy sought in court was cleanup order(not compensation); in one case the request was for local government
compliance with the information disclosure policy; In one case there wascompensation (for silk worm damage), but the compensation decision
was made by mediation, not court order.
(6) As discussed in Part III below, the cases also encountered dificulties,
including:-- Dificulty in obtaining government certiied experts to testify
to/prove environmental damages;-- Dificulty in showing harm to human health;-- Dificulty in collecting and analyzing evidence in air pollution
cases (as a most important pollution concern).
E. Promoting Information Disclosure
As a matter of special note, ACEF legal aid also included promoting
information disclosure pursuant to the relevant regulations of thegovernment, as contained in the Regulations on the Government
Information Disclosure promulgated by the State Council and the Methodsof Environmental Information Disclosure (for Trial Implementation)issued by SEPA in April 2007. [we should refer to the name of the policy]
In December 2011, ACEF requested the Environmental Protection
Bureau (EPB) of a county in Guizhou Province to provide information on
pollution of a dairy company. The EPB did not provide the information
within the time limit provided by law. ACEF sued the EPB for its
violation of the law on disclosure. ACEF won the case. This is the irst
successful PIL case achieving court ordered disclosure of environmental
information in China.

3

ACEF reports that the task of ensuring that court ordered relief was followed through on was usually thejob of the local Environmental Protection Bureau (EPB).

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[I deleted the People’s Daily sentence; we explain the Dingpa case is theirst successful PIL case-and the open information comes after]
Following the case, in October 2012 the Ministry of Environmental
Protection issued a Circular on the Strengthening of the Work on
Environmental Information Disclosure in October 2012.
F. Volunteer Lawyer Training
According to the Project Document, 80 volunteer lawyers were to be
trained under the project, through two training sessions. The lawyers wereselected from web applicants. As a condition to participation, lawyers
agreed to handle at least one case on a volunteer basis. As of yearend
2012, about 25% had done so.
The irst training took place in Shanghai from 2 to 4 November 2011
on development of the environmental legal system, basic issues
in environmental protection, methodologies in determination andassessment of environmental damages, and responsibilities of evidence
proof in environmental litigation. The trainers included professors from
4 universities and legal experts from the East China Supervision Centerof the Ministry of Environmental Protection and the China Instituteof Environmental Planning. 44 volunteer lawyers from the East China
region participated in the training. [Explanation for deletion; we don’t
have formal evaluations; in any case, the test is whether they volunteeredwhich we discuss elsewhere]
The second training took place in Beijing from 7 to 9 June 2012,
focusing on development of Environmental Law in China, trends ofdevelopment of environmental law enforcement, discussion on therevision of the Environmental Protection Law of China, risk prevention
by lawyers in handling environmental cases, environmental information
databases, evidence gathering and proof in environmental litigation
cases, environmental public litigation in the US, the PIL system in
China, and the role of negotiation in handling environmental cases. The
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trainers include professors of law from 3 universities, and legal experts
from Supreme People’s Court, ACEF and a law irm. 35 volunteer
lawyers and representatives from 9 law irms participated in the training.
[Explanation; again, the evaluation criteria is how many volunteer-which
we say elsewhere]
III. Review of the Project Outcomes
In this section, in accord with the discussion of the evaluation criteria inPart I, we provide qualitative relections on the results summarized inPart II.
A. Baseline Surveys
As discussed in Part II, the two baseline surveys conducted, one in 2010
and the other in 2012, addressed dificult topics - public awareness ofthe environment and environmental rights, government environmental
protection capacity, government implementation of the law, and thestate of environmental civil society development. As noted in Part II,
the sample population’s nature limits the use of surveys. However, thesurvey results provide some information that indicate general levels ofawareness on protection of environmental rights have been raised to acertain degree, to which this project has contributed to and it, can serve
as a baseline for the development of subsequent surveys.
Policy and Legislative Development
As noted in Part II, ACEF efforts (in concert with others) to expand the
Civil Procedure Law to include a provision on PIL system have beensuccessful in gaining an amendment to the Law. This is an outstanding
outcome of the project. However, at the same time, the wording of theamendment will require elaboration or interpretation to determine which
CSOs can bring lawsuits as plaintiffs. Thus, the success in gaining theamendment also illuminates the roadmap for the path to be taken by
ACEF and others seeking to promote environmental PIL.
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1. The Implementation of the Amendment to the Civil Procedure
Law
First, the success in the amendment indicates that ACEF may now act on
multiple fronts to make the PIL a practical reality, ACEF can:-continue to bring public interest suits to environmental
tribunals (some of which recognized ACEF as public
interest plaintiff in litigation prior to the law change)-

use the amendment to bring cases and establish civilsociety standing in common courts (in localities where
there are no environmental law tribunals);-

continue to advocate-through expert advice and lobbyingfor adequate clariication and implementation of the lawthrough amendment to the Environmental Protection Law,
judicial interpretation and other appropriate means;-seek to cooperate with local civil society organizations
as joint plaintiffs to expand the scope of civil society
organizations that may serve as plaintiffs

2. Further policy challenges
Second, the ACEF litigation experience under the project was similarly
helpful in highlighting policy questions which need attention, and which
ACEF may seek to address through some combination of new policy,
interpretation of old policy and/or court decisions or interpretations. The
policy challenges which have been identiied include:-the need for assurance that courts will properly apply theburden of proof already provided for by law itself;
the need for assurance that there will be available certiicated
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-

-

experts needed for proof of damages and compensation; andthe provision of mechanisms to assure compensation thathas been awarded by a court is received by those who areentitled to it.
the need to make efforts to include a provision on the
PIL system with more clearer terms in the Environmental
Protection Law of China , which is in the process of revision.

B. Legal Aid
Under the project, legal aid was provided to over 50,000 victims in 24
cases in different cities and provinces. This outcome is more than what isrequired by the project.
China is vast and still rapidly developing. The numbers and variety ofpollution cases extend well beyond the capacity of ACEF to help inall but a fraction of individual cases. Every effort to assist citizens isimportant, but ACEF must use its mounting experience to develop a
strategy likely to assure that ACEF’s resources are used most eficiently
and with greatest impact on the capacity of citizens to act for themselves.
The experience in this project, in tandem with further ACEF experience,
may provide a useful guide to relection on longer term strategy.
1. Pollution Sources: What strategy is best to focus resources
eficiently among many high priorities?
The legal aid cases under the project show that while China has a broadarray of environmental challenges, in practice legal aid is devoted tosome of these concerns more so than others.
Most prominently, both air and water pollution are recognized as primaryenvironmental priorities for China. However, attention and success
related to this project dramatically differ between the two.
Water pollution was the focus of the majority of the cases, and nearly all293the litigation cases. Control of water pollution is a top priority for China,
but so is control of air pollution (and control of heavy metals, solid waste
and other pollutants).
Why were so few litigated cases addressed by the project focused on
pollution other than water pollution? Why was water the prime focus for
all cases? ACEF reports that the focus on water was possible because
water pollution and its effects may be (relatively) easy to trace (pollution
from a factory is emitted into a stream or river, for example), ACEF teamhas capacity to investigate the source and low of the pollutants, to takesamples and send to a laboratory for analysis.
ACEF reports that it receives complaints about air pollution, but they are
not typically handled by litigation. Citizens can look to damaged trees(and leaves and fruits) and crops for evidence of air pollution. But ACEF
reports that measurement of air pollution from cause (sources) to effects(damage) is dificult (pollution from a factory may be dispersed in many
directions) and requires substantial expert and inancial resources. The
dificulties are compounded where as ACEF reports, in environmental
litigation (1) the burden of proof is not applied according to law, and (2)a court requires certiicated expert to prove cause and effect.
The project further indicates:-- successes in cases relate to mining are possible, though they
were not obtained through litigation.
-- success is less clear in relation to industrial heavy metals
pollution, solid waste, and nonpoint pollution; for example,
human or animal waste or agricultural pesticide runoff).
In sum, the experience in this project (and further ACEF work) suggests
relection and reinement of strategies:(1) In the case of water, ACEF achieves successes, but
problems are omnipresent and ACEF resources limited.
What can be done to maximize impact of water cases-to294make sure that success in one case or region may be basis
for continued environmental protection in that region, andsuccess elsewhere?
(2) Air pollution cases are limited, in part by dificulties ofevidence gathering for proof and expertise to testify on
the evidence. What strategy can ACEF employ to test
ways to success in identifying and addressing air pollution
concerns?
(3) Further key pollutants (e.g. heavy metals, solid waste) andpollutant sources (such as Mines). What does experience
to date suggest about strategy in these areas?
2. What institutional factors and patterns provide clues to “whatworks and what does not?”In addition to showing patterns related to pollution source, the legal aid
experience under the project highlights “institutional factors” that help
make law work and some that do not. For example:(1) The cases show that some laws, regulations and standards
may be effectively used, and how they may be used. In thewater cases, for example, measurements based on water
quality national standards proved effective. In other cases(mines, for example) failures by enterprises and/or thegovernment to follow procedural standards provided legal
basis for claims.
(2) The cases showed that local problems may exist for years
without receiving attention from the government (orpolluting enterprises).
(3) The cases showed that some kinds of citizens are likely
to identify problems, and serve as irst line of defense for295

the public at large. For examples, ishermen may be likely
guardians of the integrity of water supplies, and farmers of
the integrity of air quality.
Here, as in the case of the focus on pollutants, there is opportunity todraw from experiences to develop strategies that make eficient use ofmodels that have succeeded and identify areas where models are needed.
For example:(1) where rules (laws, regulations and standards) have proved
to be useful, how can their use be broadened? Similarly,
where relevant rules or standards have been less useful, why
not? And what can be done to make them useful?
(2) where pollution problems existed for years in the absenceof government action, how did ACEF assistance change thelong-term pattern? Can the lessons be applied by citizens inother localities without ACEF assistance?
(3) where certain citizen groups-ishermen for example- haveshown themselves likely to serve as watchdogs for pollution
harm, what can ACEF do to make sure these groups more
widely have access to information and expertise needed toserve as lines of defense for the public interest?
3. Pollution Effects and Compensation: What strategy
to address and resolve dificulties to achieving compensation?
Environmental pollution in China causes substantial damage to theenvironment, human, animal and plant life, and to property. However,determination of the effect on living things and compensation that is inorder- is often dificult. Damage may become manifest only after many
years, and even then in only a small percentage of the exposed population.
Moreover, in China today where there are many pollution sources andpollutants, it is often more dificult to identify cause and effect in relation
to particular harms.
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a. Dificulties in Evidence Gathering and Proof
The experience of the legal aid program indicates that (1) legal proceedingsfor obtaining compensation are often quite dificult; (2) compensation forharm to humans is dificult in any case.
Among the litigated cases, compensation was provided in 3 cases, but
through mediation by the court. In negotiation, claims for compensation
for damage to ish, trees, crops and silk worms were successful. In thesecases, the basis for the calculation of damage was market price (forexample, evidence on the type and number of ish killed and the market
price of the ish).
Claims for damage to human life were much more dificult to establish,
though damage may had existed. In one case (in the Inner Mongolia
Autonomous Region, involving cement plant wastewater), a man exposed
to polluted water for a long time developed cancer. The victim received
180,000 CNY (29000USD) from the cement company defendant, throughmediation in a settlement approved by the court.
b. Shortcoming in China Law Implementation
In addition to inherent problems of collecting and analyzing evidence, in
its efforts to obtain compensation ACEF experienced a dificulty related
to the implementation of China law.
Ministry of Justice certiicated institutions are often relied on by courtsfor determination and assessment of environmental damages andcompensation measures in environmental (and other) cases. However,
ACEF reports there is not a certiication for environmental damage
institutions. ACEF reports that a judge may recognize that the plaintiff isharmed, but still will not act to provide compensation in the absence ofcertiicated institution attestation to damage and compensation measure.
ACEF may hire an expert and present evidence of damage and needed
compensation, but this may be insuficient in the absence of an expert
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from a certiicated institution. In one case (the Guizhou Province Dingpa
case involving water pollution), the environmental tribunal accepted theexpert presented by ACEF as basis for damage order. This may be an
important precedent.
In sum, there is value for a strategy to develop models for obtaining
compensation (where compensation is merited), particularly (1) inlitigation (2) for harm to humans.
4. What may be learned from experiences in other countries
about the speciic problems encountered in the
project implementation?
In relation to some of the speciic obstacles identiied in the projectexperience, there are some lessons to be learned from experience in othercountries. For example, drawing on the US experience, which is likely
the deepest in public interest law and related litigation:
Compensation for human health damage: The dificulty of proving harm
to humans (and other living things) from pollution is universal.4 Wherethe evidence shows humans have been exposed to pollutants but harm
(illness) has not manifested itself, U.S. cases have provided that thepolluter must bear the cost of medical monitoring of potential victims (tocheck on their health and provide compensation if illness results).
Air pollution cases: As discussed above, evidence and expert proof in air
pollution cases is dificult. Here, too, the problem is not unique to China(but a characteristic of air pollution). China might consider the use ofevidentiary tools and techniques employed elsewhere-for example the“Calpuff” model which the U.S. Environmental Protection Agency may
employ.5

Indeed, the dificulty may be greater in developed countries where exposures are often less acute; harms
may take longer to manifest itself and then do so in a relatively small proportion of the exposed population.
5
http://www.epa.gov/scram001/dispersion_prefrec.htm
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Lawyer’s compensation: A key to citizen use of law, especially inlitigation, is the availability of lawyers. Lawyers are expensive andoften beyond the means of affected citizens. ACEF seeks to address thisproblem by training volunteer lawyers. ACEF reports that it requires that,as condition of training, lawyers agree to serve as volunteers in one case,and, in fact, about 25% (20 of 80) of lawyers ACEF trained have done soby year end 2012. This is a good start.
The dificult, and underlying, challenge is the development of meansby which lawyers can make a sustainable living doing environmental
law in China. At present, core obstacles to this development include:(1) dificulties in gaining court acceptance of cases; (2) dificulties in
representing groups of plaintiffs (3) dificulties in providing for lawyer
compensation where victims lack inancial resources-even where cases
are successful.
The two long term (more than ive years) sustaining environmental
CSOs, i.e. ACEF and the Center for Legal Assistance to Pollution Victims(CLAPV) of the Chinese University of Political Science and Law rely on
inancial support from the Chinese government or foreign sources forproviding legal aid to pollution victims. Such support is not generally
available for private lawyers.
In this context, efforts to ind ways to support legal aid would be useful.
In fact, ACEF reports that it is trying to develop the use of contingent
fee in cases where there is possibility of damage compensation. [whatis the PIL fund? If it is the compensation fund I think it provides forvictims not lawyers. We have not mentioned any other fund] If ACEF
can demonstrate success with this arrangement, it may be a model foruse by environmental (and other) public interest lawyers. At the sametime, as discussed above, this approach will only work if there are models
for successfully obtaining compensation for victims. Thus, ACEF maywant to consider policy efforts focused on providing for attorneys
compensation in cases where evidences of damage are not available.

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The challenge of inding appropriate compensation means for public
interest lawyers is a universal one. In the U.S., and other countries,
environmental public interest lawyers (working in private law irms
and NGOs) sustain their work through receiving “attorney’s fees” forsuccessful litigation. In the U.S. there are now multiple means by which
attorney’s fees can be awarded. These include, as ACEF is pursuing,cases where successful attorneys may be paid from damages awardedclients; but they also include cases where success may not include
damage awards. For example:- under “citizen suit” provisions of most major US environmental
laws, if a citizen sees that a law is violated, the citizen can go tocourt to, in essence, represent the government; if the court case is
successful, then the citizen’s lawyer will get attorney fees;- under the U.S. False Claims Act (the “whistleblower law”)
citizens who see that the government is being cheated can geta lawyer and bring a lawsuit to protect the government; if thecitizen wins, the government should provide the citizen andthe lawyer a share of the money the government recovers fromthe cheater. This law may be used in environmental cases, forexample, when a government contractor who is working on
construction for a government project tells the government it
is following environmental laws, but in fact is not following
environmental law).
C. Reinement and Publication of “Fact Patterns”
to Promote Public Awareness and Public Participation
ACEF’s experience and successes (but also the dificulties it encountered,can provide the public with “fact patterns” to help focus on and addresscommon problems.
The problems that the project addresses occur daily throughout China.
For example, the cases of water pollution the project dealt with are
likely not unique, but occur in similar ways in myriad towns and villages
300throughout China. ACEF can assist directly in only a small number ofcases. But ACEF can provide the public with the beneit of what has beenlearned from the project.
The Handbook on Protection of Environmental Rights provides
a “baseline” document for the public seeking to protect their own
environmental rights. It explains what environmental rights citizens
have, and how they can protect such rights.
However, as discussed above, ACEF’s continued experience now
permits it to go much deeper in the information provided to citizens.
It now has considerable experience, for example, with the litigation ofwater pollution cases. It now also has experience with the resolution ofmining related concerns through non-litigation approaches. ACEF has
experience that shows, for example, that, in some cases evidence may berelatively easy to gather, standards exist, and courts can be successfully
used, and in other cases, air pollution, for example, evidence may andsolutions may be more dificult.
In tandem with developing its own next steps strategy based on thisexperience, ACEF can deepen the Handbook (through continued website
updates) by beginning to construct a matrix of common “fact patterns.”
With its continuing accumulation of experience, It should be able to tellcitizens with increasing depth and speciicity what speciic pollution
problems they should be aware of, what risks they present, and how they
can address them.
Drawing from the project experience with each fact pattern, the matrix
might include for each fact pattern:(1) the kind of pollutant at issue, its characteristics and sources
and the risks involved:(2) the laws, regulations and policies that are related to the control301

of this pollutant;(3) how to identify and measure the presence of the pollutant;including (from the project experience) the location of experts
and equipment needed for investigation and proof;(4) the methods to be used to address the pollutant to date litigation, supervision, mediation or some combination;(5) the remedies that have been obtained to date - including, forexample, treatment, relocation, compensation for damages to theenvironment, living things and property;(6) particular challenges citizens might expect in dealing with thepollutant, and how they can be dealt with (for example, dificulties
in collecting evidence or inding experts, government inaction).
As ACEF, and citizens, continue to learn more the fact pattern matrix canbe deepened and expanded to include new fact patterns.
D. UN/ACEF Cooperation
In addition to the express goals stated in the Project Document (assummarized at IC above), it is essential to note the value of UN/ACEF
cooperation in summarizing what has been learned from the project.
UNDP did substantial work, particularly on international knowledge
and best practices transfer and policy advice, to ensure project success,including:1)

increasing the project visibility and public awareness ofenvironmental concerns and rights by producing a project
video;

2)

providing ACEF with a platform for international exchanges
through several international conferences, such as the302Guiyang International Eco Forum in 2011.
3)

supporting ACEF’s staff and volunteer lawyers’ participationin several UNDP regional and global workshops on Accessto Justice and Environmental Governance, thereby building
their capacity through exposure to the experiences of othercountries;

4)

providing strong technical support through a UNDP
international technical advisor to the project, in order tofurther bring relevant technical advice and relevant global
experience to ACEF;

5)enhancing the development of South-south cooperation
channels for ACEF with other developing countries, such as
Vietnam and Mongolia.

6)joining in ACEF’s efforts in policy and legislative change,
including assisting in lobbying the Legislative Affairs
Commission of the National People’s Congress to include
ACEF proposals in revising the Civil Procedure Law and theEnvironmental Protection Law.

7)

providing global awareness of ACEFs work, through ACEF
participation in UN conferences as noted above, and also
through visits of UN oficials to China to meet with ACEF
s, including the UNDP Associate Administrator (Rebeca
Grynspan) and the UN Deputy Secretary General (JanEliasson).

IV. Conclusions and Recommendations
A. Conclusions
ACEF, as the Implementing Agency, and UNDP, as the Executing
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Agency, have cooperated well and successfully implemented the project
by following the strategy as set out in the Project Document.
As discussed in Parts II and III, ACEF has implemented all the activities
and produced the planned outputs and achieved notable successes.
Its legal aid has achieved landmark litigation successes; Its policy
recommendations have played a role in the amendment to the Civil
Procedure Law, which should broaden CSO environmental litigationrights, and ACEF has trained dozens of lawyers and produced a Handbook
for general public use.
As discussed in Part III, UNDP’s contribution has been substantial,
particularly in bringing international knowledge and best practices tobear on the project, as well as in project implementation.
Explanation for deletion; we say this in the second paragraph above; also,
democratization was not part of the Project (see out project deinition inPart I), and we do not explain what it means in this context)
B. Recommendations: Next Steps
ACEF now has the opportunity to build on this experience, developing astrategy to build on successes and to address the obstacles to success that it
encountered. In doing so, the focus may be on (1) continued developmentof ACEF strategy based on relection on what has been learned fromits experiences; (2) organization of these experiences to support citizen
capacity to address environmental concerns directly.
1. ACEF should relect on and organize its legal aid experience topermit ACEF, citizens and oficials to eficiently and effectively
address common environmental fact patterns.
As discussed at Parts II and III, ACEF’s legal aid experience indicates:(1)

how some key pollution problems may be successfully
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(2)
(3)
(4)

addressed, while others remain challenging; in the case ofwater, for example, litigation and other legal aid practices are
successful; in the case of air pollution, success has been much
more limited;
how courts and litigation may be used, and their limits;
how alternative approaches-mediation and supervision-may
be used with law to address;
institutional obstacles that remain to be addressed.

In short, ACEF’s experience increasingly provides information on whatworks and what may not work. This experience provides opportunity torelect on, for example, how to best multiply successes in cases which
address substantial problems, and how to address important problems thathave not been successfully addressed. As discussed at III D, ACEF canreview and organize its experience to develop a matrix of “fact patterns,”
so that ACEF and citizens may get the beneit of what ACEF has learned.
As ACEF continues to gain experience the matrix can be deepened andexpanded.
ACEF’s experience can then be used as bedrock for ACEF own strategy
development, for deepening the Handbook on the protection of theenvironmental rights of the public and for training of lawyers, citizens
and CSOs.
2. ACEF should deepen its Handbook and related training andeducation materials to provide the fact pattern learning from ACEF’s
continued experiences.
Public participation requires an informed public. Because there are somany environmental problems, their nature is often technical and social
resources are limited, there is a premium on an informed citizenry thatknows as much as it can about common problems and ways to address
them; and about the dificulties that will be met.
In this context, ACEF can deepen and expand its Handbook to provide
305the public with key information on the fact patterns they are likely to
encounter, and the tools and strategies to deal with them.
3. ACEF’s legal aid strategy should incorporate lessons learned fromthe project.
As discussed in Part III C, ACEF’s experience in providing legal aid
under the project provides lessons to be incorporated in ACEF strategy touse its resources eficiently and effectively.
For example, as discussed, ACEF’s success with water and air pollutants-both primary pollution concerns-calls for strategic relection. Thus, in
relation to water and air (and other high priority pollutants) the strategicneed is to (1) determine how to multiply ACEF’s success in water; how
can citizens use ACEF models for success to take actions without relianceon ACEF’s limited resources? (2) test ways to provide a model by whichcitizen air pollution concerns can be effectively addressed.
Similarly, ACEF has found common challenges to success, including
dificulties in obtaining compensation for human health damage,
dificulties in gaining court adherence to the burden of proof provided
by China law for environmental litigation, and dificulties in obtaining
certiicated expertise. Thus, in relation to institutional obstacles toenvironmental protection, the strategy might focus on: (1) the best
method to gain court adherence to the burden of proof and to address
the current limits on certiicated experts; (2) way(s) to provide forlawyer compensation needed to sustain environmental PIL; (3) way(s) todevelop capacity to make successful claims for compensation for harms
to humans.
4. ACEF should use the amendment to the Civil Procedure Law topractice and improve the PIL system.
As discussed at II C an amendment to the Civil Procedure Law including
the PIL, to which ACEF has contributed, is vague, and needs to be306

practiced and improved. Steps ACEF can take include:(1)

work with courts and legislature and other CSOs to assure thatthe law’s deinition of “ related organizations” is interpreted
in an appropriately broad way so that CSOs can bring suits tothe court and act as plaintiffs;(2)

Cooperate with other CSOs as co plaintiffs in addressing
more environmental cases;(3)

work with the Ministry of Environmental Protection and
China’s legislative bodies to include a provision(s) in theEnvironmental Protection Law (which is in the process ofrevision ) to strengthen the PIL system;(4)assert CSO rights to bring public interest lawsuits in common
courts, in locale where there is no environmental tribunal;(5)

further make efforts to provide means to compensate lawyers
who provide environmental PIL service.

5. ACEF should further work on the promotion of public participationand democratic decision making in environmental protection
As discussed earlier, because of lack of resources (including time, money,
and information), many people in China are not able to participate indecision making and exercise supervision on environmental matters.
Therefore they are not able to protect their environmental rights. Steps
ACEF can take include:(1) ACEF should further its work in the promotion of the disclosureof information by the government and industries and the use of open
information as a key to, public participation in decision making andpublic oversight related to environmental protection;307

(2) ACEF should further conduct educational programs that provide
citizens with opportunity to develop skills to use law and information
to participate in environmental decision-making towards the end of
democratic decision-making
I deleted this because we do not explain what a “public supervision”
system is-and do not discuss it Parts II and III. If we want to use this weshould explain what we mean, and why it is likely to be a good idea.
(4) ACEF should use the web to expand the existing Handbook, as ACEF
and other CSOs continue to develop experience, to include, for example,(a) the new information on fact patterns as noted in “2” above; (b)examples of documents and other materials used in successful litigation(or mediation or supervision);(5) ACEF should continue to work with broadcast and print and web
media to publicize environmental problems and the ways to use law todeal successfully with them.
6. ACEF May Continue to Work with the UN on the protection of theenvironmental rights of the public.
As discussed herein, the UNDEF project realized many achievements-in
legal aid, policy development, environmental awareness raising and etc.
ACEF should seek to continue to work with UNDEF and UNDP to buildon the success of the UNDEF 4TH Round Project, and to address thechallenges and opportunities the project identiied.

308