CBCGDF won China's first Environmental Public Interest Litigation on Indoor Smoking Control | Safeguarding People's Health and Environmental Rights
2021/8/5 16:33:00 本站

The country’s first public interest lawsuit against smoking control in an indoor public place was recently won. The shopping mall involved was sentenced to compensation for environmental restoration costs and service function losses of 1.4 million yuan for setting up smoking rooms indoors. The lawsuit was jointly filed by the China Biodiversity Conservation and Green Development Foundation (hereinafter referred to as the CBCGDF) and the Xinxiang Environmental Protection Volunteer Association of Henan Province. China) Investment Co., Ltd. and Aeon Mall (China) Commercial Management Co., Ltd. were the 3 defendants.


The court held that indoor public places are relatively closed, and air conditioning is often carried out through exhaust ventilation, air conditioning and other equipment. The indoor air elements are natural factors that have been artificially modified. At the same time, the air quality is not simply affected by individuals, but rather Unspecified majority of people, so indoor air in public places conforms to the environmental concept stipulated by the above-mentioned laws.


Attorney Zhong Lanan, a senior partner of Beijing Jingshi Law Firm and the member of the Public Welfare Law Committee of the China Smoking Control Association, He believes the judgment has made new breakthroughs in the field of smoking control at the legal level, and also provided judicial reference for future smoking control work.


Smoking areas in shopping malls do harm to unspecified public health?


In this case, the children's theme mall operated by Aeon Mall (Sanhe) Commercial Management Co., Ltd. is located in Yanjiao Town, Sanhe City, Hebei Province. Since the beginning of 2018, CBCGDF has received complaints from many parents who brought their children to shopping and play in the mall involved: dozens of maternity rooms, children’s room, toilets, toilets and other signs and smoking rooms in the mall. The indication signs are together, and many maternity rooms, children's room, etc. are adjacent to the smoking room, causing minors and pregnant women outside the smoking room to be physically and mentally harmed by smoking smoke.


After field investigation by the CBCGDF, after entering the AEON Mall Hebei Yanjiao Children's Theme Mall, you can smell a strong smell of smoke in the lobby on the first floor. There are 13 smoking rooms in the mall, and most of the smoking rooms are open. It keeps drifting out from the smoking room. There is an exhaust fan in the room but it is not turned on, and no one is seen to manage it.


It is understood that the mall is invested and managed by Aeon (China) Investment Co., Ltd. and Aeon Mall (China) Commercial Management Co., Ltd. (hereinafter referred to as "AEON Mall"). It is also located in Tianjin, Beijing, and Yantai. , Qingdao and many other cities across the country have invested and managed more than 20 similar shopping malls. Among them, the indoor smoking room of the "AEON MALL" Beijing Fengtai Mall has been demolished after the "Beijing Regulations on Smoking Control" was promulgated.


In order to protect the public interest, the CBCGDF and the Xinxiang Environmental Protection Volunteer Association took the three to the Baoding Intermediate People's Court and filed the country's first public interest lawsuit against smoking control in indoor public places.


On May 15, 2019, the Intermediate People’s Court of Baoding City, Hebei Province accept the prosecution from CBCGDF for the construction of smoking rooms in children's themed shopping malls in more than 20 cities across the country, affecting air quality and public life and health. The case was registered, and the evidence was preserved.


After that, the defendant filed an environmental public interest litigation and jurisdictional objection to the Baoding Intermediate People's Court. After being rejected, the defendant filed an appeal to the Hebei Higher People's Court. On August 28, 2019, the Higher People’s Court of Hebei Province made a final ruling, dismissed the appeal, upheld the original ruling, and held that: shopping malls are public places, and smoking areas in shopping malls will not only endanger the health of consumers, but also affect unspecified members of the public. Harm to public health. Therefore, it is not improper for the original court to characterize the case as an environmental public interest litigation.


Is the indoor environment problem an environmental dispute?


In the court hearing, both parties disputed whether the case was an environmental public interest litigation. Article 2 of the "Environmental Protection Law" stipulates that the environment not only includes various natural factors that affect the survival and development of human beings, but also natural factors that are artificially modified. The two are a unified whole. The defendant believes that environmental pollution acts refer to acts of destruction of the natural and ecological environment, and that tort disputes caused by indoor air problems are not environmental pollution disputes.


The court ruled that indoor public places are relatively a closed environment, and air conditioning is often carried out through ventilation, air conditioning and other equipment. The indoor air elements are natural factors that have been artificially modified. At the same time, the air quality is not simply affected by individuals. It is an unspecified majority, so indoor air in public places conforms to the environmental concept stipulated by the above-mentioned laws.


"The judgment confirms that the indoor air environment in public places is ‘a natural factor after artificial transformation' and is one of the objects regulated by the Environmental Protection Law. This is a major legal breakthrough in this case." Deputy Secretary-General of CBCGDF In an interview with reporters, Ma Yong said that in addition, smoking causes air pollution to cause damage to human health, which has become a regulatory content of environmental infringement, breaking through the previous recognition that "air pollution often equal to industrial emissions".


In this regard, Zhong Lan’an explained that “the court confirmed that environmental public interest litigation can also be initiated against the indoor environment because the indoor environment involves the public’s right to health.” The “Report on the Hazards of Smoking in China” issued by the former Ministry of Health stated that The related issues of the health hazards of second-hand smoke (environmental tobacco smoke) exposure are discussed, and the hazards to special populations such as pregnant women and children are particularly pointed out. Therefore, the court held that even if the door of the smoking room is automatically closed, it cannot ensure that the door can completely avoid the overflow of smoking smoke during the opening and closing process. Caused hazards and health risks."


Zhang Jianshu, president of the Beijing Smoking Control Association, said that a large amount of scientific evidence shows that it is impossible to set up smoking rooms indoors to isolate the hazards of second-hand smoke. "


1.4 million environmental restoration costs How is it calculated?


Smoking rooms that threaten health have been closed. Does the defendant have to bear the cost of ecological environment restoration and the loss of service functions? The court held that the defendant AEON MALL (Sanhe) Commercial Management Co., Ltd. illegally set up smoking rooms in the shopping mall involved, which objectively caused the harm of smoking smoke to air quality and public health, and the increase in health risks, and should bear tort liability in accordance with the law.


The plaintiff, CBCGDF, submitted to the court the judicial appraisal opinion of the Inner Mongolia Autonomous Region Chemical Science and Technology Judicial Appraisal Institute, proving that the AEON MALL Hebei Yanjiao Children's Theme Mall has issued a total of from November 5, 2016 to November 20, 2020. Smoking smoke pollutants discharged in the air environment are 1,79.72 kg, calculated by using the virtual treatment cost method, and the ecological environment restoration cost is 2,160,500 yuan.


Jiang Xuejun, the project leader of the Inner Mongolia Autonomous Region Chemical Science and Technology Judicial Appraisal Institute, told reporters that due to the epidemic, the shopping mall was closed and unable to enter the scene for investigation and statistics. Therefore, according to the public financial statement data of the shopping mall, the flow of people and smoking were calculated. Number of people. At the same time, according to the experimental data on the harm of cigarettes to the human body from the relevant laboratories of Chemical Engineering of Inner Mongolia University, the ecological environment restoration costs and the service function loss costs are finally calculated.


The court accepted the virtual governance cost calculation method adopted by the Inner Mongolia Autonomous Region Chemical Science and Technology Judicial Appraisal Institute. The court held that all the smoking rooms involved in the case had ceased to be used on May 22, 2019, and therefore did not support the part of the ecological environment restoration costs claimed by the plaintiff after May 22, 2019. Based on the actual situation of the case and relevant regulations, the court finally determined that the ecological defendant should compensate the ecological environment restoration costs and service function losses totaling 1.4 million yuan.


Translated by Luke Chen

Original website of article in Chinese: 

https://mp.weixin.qq.com/s/ITml5EOZYcZmdwLwKxtq2g


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