Guiding Case No. 257: Beijing Changping District [redacted] Environmental Research Institute v. [redacted]River Basin Hydropower Development Co., Ltd.
(Case of Civil Public Interest Litigation for Ecological Damage)

[Keywords]

Civil, Civil Public Interest Litigation for Ecological Damage, Construction Project, Significant Risk of Damaging Social Public Interests

[Key Points of Judgment] 

When adjudicating environmental resource cases, People's Courts should correctly handle the relationship between high-quality development and high-level protection. If a construction project has undergone an environmental impact assessment in accordance with the law and the project developer has taken targeted protective measures to prevent or mitigate adverse environmental impacts to the greatest extent, the project should be recognized as not posing a significant risk of damaging social public interests.

[Legal Provisions]

Article 1234 of the Civil Code of the People's Republic of China

Articles 1, 4, 5, and 19 of the Environmental Protection Law of the People's Republic of China

Articles 2 and 25 of the Environmental Impact Assessment Law of the People's Republic of China

Article 6 of the Water Law of the People's Republic of China

Article 32 of the Fisheries Law of the People's Republic of China

Articles 1 and 18 of the Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Cases Involving Disputes over Environmental Civil Public Interest Litigation Cases ( [2015] FaShi No. 1, amended in 2020)

[Basic Facts]

The hydropower station involved in the case was developed and constructed by [redacted] River Basin Hydropower Development Co., Ltd. (hereinafter referred to as "[redacted]Hydropower Company"), with a total investment of approximately CNY 8.15 billion. The developed river section is within the habitat for an endemic Chinese species, Hucho bleekeri. This rare and endangered fish species inhabiting the upper reaches of the Yangtze River is listed as a national first-class protected wild animal.

In September 2010, the [redacted] Hydropower Company commissioned a survey and design agency to conduct an environmental impact assessment (EIA) for the hydropower station project, resulting in the Environmental Impact Assessment Report for the Hydropower Station (hereinafter referred to as the “EIA Report”). In December 2016, the former Ministry of Environmental Protection issued the Approval of the Environmental Impact Assessment Report for the Hydropower Station (hereinafter referred to as the “EIA Approval”), which in principle, approved the EIA Report. The approval noted that the river section where the hydropower station is located is an important habitat for Hucho bleekeri, and required strict implementation of various environmental protection measures outlined in the EIA Report to minimize adverse impacts. It also specified requirements for habitat protection, fish passage measures, stock enhancement and releases, and other work. In May 2018, the hydropower station project was lawfully approved for construction, and in November 2021, the river was intercepted for construction. By the time of the trial, the dam of the hydropower station was still under construction.

The [redacted] Hydropower Company implemented the following measures as required by the EIA Report and EIA Approval:（1）Habitat Protection: The company formulated the Overall Implementation Plan for Fish Habitat and Ecological Protection, which was approved by the Sichuan Provincial Department of Agriculture and Rural Affairs and the Sichuan Provincial Department of Ecology and Environment. It conducted scientific investigation on the distribution of Hucho bleekeri resources and critical habitats, completed the construction of boundary-marking facilities for the habitat protection zone and allocated funds for the zone's construction and operation. (2)Artificial Stock Enhancement and Release: The company conducted research on artificial breeding techniques and large-scale seedling cultivation for Hucho bleekeri, obtaining national patents. It built and operated a Hucho bleekeri stock enhancement and release station and completed three artificial release activities. (3)Fish Passage Facilities: The company completed preliminary designs and preparations for constructing fish passage facilities such as fish lifts and fish collection/transport systems. Meanwhile, artificial breeding work was continuously carried out at two Hucho bleekeri domestication bases.

In 2021, the [redacted] Hydropower Company and its commissioned constructor were subject to administrative penalties for issues including improper disposal of spoil along slopes, delays in completing the fish stock enhancement and release station, and failure to construct a temporary storage facility for hazardous waste. The relevant administrative authorities ordered the [redacted] Hydropower Company and its contractors to construct the temporary hazardous waste storage facility by July 31, 2021, rectify the illegal spoil disposal conducts by October 31, 2021，and complete the construction of the fish stock enhancement and release station by December 31, 2022. Subsequently, the [redacted] Hydropower Company and its contractors completed all rectifications within the time limits specified in the Order to Rectify Illegal Acts and passed regulatory inspections.

In December 2021, the Beijing Changping District [redacted] Environmental Research Institute (hereinafter referred to as “Changping [redacted] Environmental Institute”) filed a civil public interest lawsuit in the Intermediate People's Court of Aba Tibetan and Qiang Autonomous Prefecture, Sichuan Province, alleging that the [redacted] Hydropower Company's construction of the hydropower station affected the survival of Hucho bleekeri, damaged the habitat of a critically endangered species, and harmed biodiversity. The Institute requested the court to order the [redacted] Hydropower Company to cease construction, compensate for losses, change the project site, and issue a public apology, etc.

During the trial, the court organized multiple mediation sessions between the parties, but no agreement was reached.

[Judgment]

On December 1, 2023, the Intermediate People's Court of Aba Tibetan and Qiang Autonomous Prefecture, Sichuan Province, issued Civil Judgment (2021) Chuan 32 Min Chu No.28, dismissing the claims of the Changping [redacted] Environmental Institute. On July 31, 2024, the Sichuan Provincial High People's Court issued Civil Judgment (2024) Chuan Min Zhong No. 4, dismissing the appeal and affirming the original judgment. 

[Judgment's Reasoning]

High-quality development and high-level protection are mutually complementary and reinforcing. Economic development cannot exhaust resources and the ecological environment, nor can ecological and environmental protection abandon economic development in favor of impractical pursuits. Articles 1 and 4 of the Environmental Protection Law of the People's Republic of China clearly articulate the legislative purpose of protecting the environment, preventing pollution, promoting sustainable economic and social development, embodying the principle of coordinated development.

In this case, the [redacted] Hydropower Company, as the developer of the project, generates electricity by utilizing rich local hydropower resources. This aligns with state’s requirements for developing hydropower tailored to local conditions and for green, low-carbon, high-quality development. It meets the needs of local economic and social development and the survival and development of the populace, and is consistent with the national policy of coordinated advancement of carbon reduction, pollution control, green expansion, and growth. Therefore it should be supported in accordance with the law. However, the construction of the hydropower station must also comply with environmental protection laws and policies, adopting measures to prevent and mitigate damage or significant risks of damage to the ecological environment of the relevant river basin, thereby balancing high-quality development with high-level protection.

According to Articles 1 and 18 of the Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Cases Involving Disputes over Environmental Civil Public Interest Litigation Cases ( [2015] FaShi No. 1, amended in 2020), environmental civil public interest litigation may be filed against acts of environmental pollution or ecological damage that have already harmed social public interest or pose a significant risk of such harm, with the defendant being held civilly liable. 

In this case, although the Changping [redacted] Environmental Institute provided evidence of administrative penalties imposed on the [redacted] Hydropower Company and its contractors, the administrative violations were rectified within the specified time limits and passed regulatory inspections, as confirmed by the local administrative authorities. Concurrently, artificial breeding efforts continued at the two Hucho bleekeri domestication bases, and the delay in constructing the stock enhancement and release station did not affect the normal implementation of stock enhancement activities. Moreover, the [redacted] Hydropower Company was not subject to further administrative penalties for violating relevant laws and regulations. The evidence submitted by the Changping [redacted] Environmental Institute was insufficient to prove that the construction of the hydropower station had caused damage to the Hucho bleekeri habitat or the surrounding ecological environment, and thus did not meet the criteria for“having already harmed social public interest” as stipulated in the judicial interpretation.

The key issue in this case was whether the construction project posed a “significant risk of harming social public interest” to the ecological environment.

First, the construction project complied with national environmental protection laws, and the protection of Hucho bleekeri was incorporated into the environmental impact assessment. Article 6 of the Water Law of the People's Republic of China states: “The State shall encourage entities and individuals to develop and utilize water resources in accordance with the law and protects their legitimate rights and interests.” Article 19, Paragraph 1 of the Environmental Protection Law stipulates: “Construction projects that have an impact on the environment shall undergo environmental impact assessment in accordance with the law.” According to the relevant provisions of the Environmental Impact Assessment Law of the People's Republic of China, an environmental impact assessment involves analyzing, predicting, and evaluating the potential environmental impacts of programs or construction projects, proposing countermeasures to prevent or mitigate adverse environmental impacts, and conducting follow-up monitoring. Accordingly, hydropower station construction projects must undergo environmental impact assessments, obtain approval from the competent administrative authorities before commencing construction, and adopt countermeasures to prevent or mitigate adverse environmental impacts.

In this case, the environmental impact assessment for the hydropower station project complied with legal requirements, and the EIA Report, approved by the former Ministry of Environmental Protection, was lawful and valid. In particular, the EIA Report and EIA Approval specifically identified the Hucho bleekeri as a key sensitive environmental protection target, conducting specialized environmental analysis, impact prediction, and evaluation, and formulating targeted protective measures. The hydropower station was lawfully approved for construction after obtaining the EIA Approval and adopted effective countermeasures and measures to prevent or mitigate adverse environmental impacts, in compliance with legal requirements.

Second, the construction project adopted effective measures to prevent or mitigate adverse environmental impacts. Article 5 of the Environmental Protection Law establishes the fundamental principle of “giving priority to protection, focusing on prevention,” requiring comprehensive measures to be taken before and during the implementation of environmental resource utilization activities to prevent environmental pollution or ecological damage. The environmental impact assessment is not only about evaluating the potential environmental impacts of a construction project but also emphasizes adopting targeted measures to prevent or mitigate adverse environmental impacts to the greatest extent possible.

In this case, the hydropower station project implemented targeted measures for habitat protection, fish passage, and stock enhancement and release, as required by the EIA Report and EIA Approval, and conducted artificial breeding of the Hucho bleekeri.The [redacted] Hydropower Company commissioned relevant agencies to complete the design of fish passage facilities, such as fish lifts and fish collection/transport systems, meeting the requirement for simultaneous design of environmental protection facilities with the main project. It also continued research on artificial breeding techniques, successfully achieving artificial breeding of the Hucho bleekeri, and implemented measures for habitat protection and stock enhancement and release as required. The targeted protective measures taken by the [redacted] Hydropower Company further advanced scientific research on the Hucho bleekeri, expanded the scope and strengthened efforts of protection, contributing to the survival and habitat protection of the species.

In summary, the evidence provided by the Changping [redacted] Environmental Institute was insufficient to prove that the [redacted] Hydropower Company's construction activities posed a significant risk of harm to Hucho bleekeri and the surrounding ecological environment. Therefore, the Changping [redacted] Environmental Institute's claims were dismissed in accordance with the law .

It should be noted that, although the Changping [redacted] Environmental Institute's claims were not upheld, the [redacted] Hydropower Company's ongoing environmental protection obligations are not diminished or exempted by this judgment. The company must continue to prioritize environmental protection, fulfill its ecological protection obligations in accordance with the EIA Approval and relevant legal provisions, proactively accept supervision from administrative authorities, and ensure that all environmental protection measures are implemented in accordance with the required time sequence.