On January 30, 2021, Wang Shujiang, Chief Justice of the High People’s Court of Sichuan Province, disclosed more than ten typical cases of 2020 at the fourth session of the 13th Provincial People's Congress. Among them, the case of “Acer Pentaphyllum Threatened by Hydropower Station” is known as the first case of preventive public interest litigation in China, which has aroused social attention.
“It's not merely a matter of protecting a few acer pentaphyllum, but of protecting the only existing, wild and the largest acer pentaphyllum population and its original habitat.” said Wang Jing, head of the Information Department of China Biodiversity Conservation and Green Development Foundation (hereinafter referred to as CBCGDF), when talking to the reporter from Shangyou News (Reporting Wechat: Shangyounews).
After five years of trial, at the end of December 2020, the Intermediate People's Court of Ganzi Tibetan Autonomous Prefecture made a judgment of first instance on the case of “Acer Pentaphyllum Threatened by Hydropower Station”: the defendant Yalong River Basin Hydropower Development Co., Ltd. (hereinafter referred to as Yalong Hydro) should regard the survival of acer pentaphyllum as an important part of EIA of Yagen Hydropower Project, and only after the EIA report was approved by the administrative department in charge can the further moves be carried out.
At present, the judgment has been legally binding.
On February 2, Wang Chaoyong, the legal adviser of the CBCGDF, told the Shangyou News journalists that he believed that the case of “Acer Pentaphyllum Threatened by Hydropower Station” concluded by Intermediate People's Court of Ganzi Autonomous Prefecture was the first case of preventive public interest litigation for the protection of rare and endangered plants since the implementation of the public interest litigation system, which was groundbreaking and representative in the field of environmental public interest litigation system.
▲Because of its unique leaf shape and gorgeous color, acer pentaphyllum is known as one of the two most ornamental maples in the world. It is as famous as davidia involucrate, another well-known ornamental dove-tree from China, in Western horticulture. Photo source / CBCGDF
Acer pentaphyllum, a “critically endangered” species along the Yalong River
According to Flora of China, acer pentaphyllum is a deciduous tree with a height of 10 meters. The bark is dark brown or grayish brown, and often splits into irregular flakes and comes off. It is distributed in western Sichuan and grows in sparse forests at an altitude of 2300-2900m. According to the research of Sichuan Academy of Forestry, because of its unique leaf shape and gorgeous color, acer pentaphyllum is known as one of the two most ornamental maples in the world. It is as famous as davidia involucrate, another well-known ornamental dove-tree from China, in Western horticulture.
Before the 1980s, scholars at home and abroad generally believed that acer pentaphyllum had become extinct in its original habitat. Until 1982, when Chengdu Institute of Biology, Chinese Academy of Sciences was conducting a plant investigation in Hengduan Mountain, a specimen of acer pentaphyllum was accidentally collected along the Jiulong River, a tributary of the Yalong River in Jiulong County, west slope of Gongga Mountain, Sichuan province.
The reappearance of this rare species, which has disappeared for nearly half a century, immediately attracted the attention of botany and horticulture fields at home and abroad.
In 2006, Yin Kaipu, a researcher of Chengdu Institute of Biology, Chinese Academy of Sciences, discovered another population of acer pentaphyllumin along Yalong River near Woluoxi village, Malangcuo township, Yajiang county, Sichuan province. Up to now, acer pentaphyllum only exists in the Yalong River valley of Jiulong county, Kangding county, Yajiang county and Muli county in Sichuan province.
On September 2, 2013, the RedlList of China's Biodiversity was issued, and acer pentaphyllum was assessed as “critically endangered” plant. Acer pentaphyllum was included in the List of Key Protected Plants of Sichuan province on February 9, 2016. On August 10, 2018, the International Union for Conservation of Nature (IUCN) assessed acer pentaphyllum as "critically endangered" in its red list.
▲Location of Yagen Hydropower Station. Photo source / Department of Water Resources of Sichuan Province
Hydropower station is accused of "directly threatening" to the survival of acer pentaphyllum population
Woluoxi village, which is in Malangcuo Township, Yajiang County, Ganzi Prefecture, Sichuan Province, is the growing place of acer pentaphyllum involved in the case. The local forestry department of Ganzi Prefecture has erected protection boards on the nearby road. According to the official website of CBCGDF, the wild population of acer pentaphyllum, which is located on the bank of the Yalong River, may be the largest known population of its kind, with a preliminary statistic of about 180.
“But this wild population is now facing a disaster of extinction. A hydro dam is under intensive construction. By the time of impoundment, most of acer pentaphyllum will be submerged in the reservoir.”
In September 2015, the CBCGDF filed an environmental public interest litigation to the Intermediate people's court of Ganzi Autonomous Prefecture, where the Yagen hydropower station is located, with an accuse that the Yagen Hydropower Station to be built may pose a threat to the survival of the critically endangered wild acer pentaphyllum.
After five years of trial, the case was pronounced at the end of December 2020. On January 20, 2021, the judgment of “the first case of preventive public interest litigation”, which was written into the work report of the Sichuan courts by High People's Court of Sichuan Province, was issued by the website of China Judgments Online.
During the trial, the CBCGDF thought that the construction of Yagen Hydropower Station and supporting highways will directly threaten the survival of acer pentaphyllum, a rare and endangered wild plant, and pose a direct threat to social public interests.
According to CBCGDF, acer pentaphyllum is an endemic species in Sichuan Province of China. Because of its unique leaf shape and gorgeous color, it is one of the most ornamental maple species in the world. According to the endangered species categories and critiria of IUCN, this species has been critically endangered. Acer pentaphyllum population near Woluoxi village, Malangcuo township, Yajiang county is the largest remaining in the world, the only population with natural reproduction ability. The altitude of this population’s growing area ranges from 2520m to 3000m.
According to the Research Report on Hydropower Development Scheme of Lianghekou-Yagen Section of Yalong River in Sichuan Province, after the completion of two cascade hydropower stations in this section, the normal water level of Lianghekou Hydropower Station is 2860m, that of Yagen Level I Hydropower Station is 2602m, and that of Yagen Level II Hydropower Station is 2560m.
According to the altitude of the growing area of acer pentaphyllum population in Yajiang and the water level of hydropower stations, most of the growing area will be inundated after the normal impoundment of the power station reservoirs, which poses a serious threat to the survival of acer pentaphyllum population and emergency protection is urgently needed. The road built for the construction of hydropower stations, which is "designated for external transportation" of Yagen Level II Hydropower Station on Yalong River, is situated in Yajiang county, with an elevation of 2535.53 meters. Passing through the growing area of acer pentaphyllum, it will also make a serious impact on the survival of acer pentaphyllum population.
To this end, the CBCGDF filed a lawsuit. First of all, it asked the Yalong Hydro to take appropriate measures immediately to ensure that the survival of acer pentaphyllum would not be damaged due to the implementation of the Yalong River Hydropower Station’s development plan. Secondly, all construction works of Yagen Hydropower Station and its auxiliary facilities (including supporting roads) should be suspended until the measures taken by Yalong Hydro were sufficient to eliminate the threat to the survival of acer pentaphyllum.
During the trial, the CBCGDF said that the purpose of the lawsuit was not only to protect a few acer pentaphyllum, but also to protect the existing and the only wild acer pentaphyllum population and its original habitat. “Even if acer pentaphyllum can survive in large numbers under the condition of artificial reproduction, the protection of the original habitat cannot be ignored.”
▲Wild acer pentaphyllum. Photo source / CBCGDF
Yalong Hydro: the site has not gone into operation, and there was no damage to be prevented
According to the Research Report on Hydropower Development Plan of Lianghekou-Yagen Section of Yalong River in Sichuan Province, Yalong Hydro will build two hydropower stations on the Yalong River in Yajiang County. Shangyou News reporter inquired about the industrial and commercial registration information and learned about that Yalong Hydro was established in 1995 with a registered capital of 32.3 billion yuan, and it is a central enterprise in Sichuan.
According to the judicial documents, in June 2006, POWERCHINA Chengdu Engineering Corporation Limited (hereinafter referred to as POWERCHINA Chengdu) completed the Hydropower Planning Report of the Middle Reaches of Yalong River (Lianghekou-Kala Section) in Sichuan Province, which included the Yagen cascade hydropower stations in the plan. The planning report passed the review by the China Renewable Energy Engineering Institute and Sichuan Provincial Development and Reform Commission in August 2006. In December 2008, Sichuan Provincial People's Government approved the plan in a government letter [2008] No. 368.
In March 2010, according to the latest situation of submergence area of Yagen cascade reservoir, the original planning of Yagen cascade reservoir was adjusted by POWERCHINA Chengdu to a two-stage development with Yagen I (normal impoundment level of 2602m) and Yagen II (normal impoundment level of 2560m), forming the Research Report on Hydropower Development Plan of Liangheko-Yagen Reach of Yalong River in Sichuan Province. The report was published in August 2010 after the joint review of China Renewable Energy Engineering Institute and Sichuan Provincial Development and Reform Committee. On January 6 and April 13, 2013, the General Office of the National Development and Reform Commission (NDRC) approved the preliminary work of Yagen Level I Hydropower Station and Yagen Level II Hydropower Station, which were constructed and managed by Yalong Hydro. Yalong Hydro should organize and carry out the preliminary work of the power station according to the relevant provisions of the project approval.
During the trial, Yalong Hydro argued that Yagen Hydropower Station is only at the stage of research and preparatory audit, and has not yet been approved for construction, and that it was still uncertain that whether the construction of Yagen Hydropower Station was feasible, whether it was submitted for approval, and whether relevant government departments (including environmental protection departments) have passed the approval. The company also reported that the CBCGDF’s lawsuit against it in terms of its internal audit lacked the premise and basis of the lawsuit, and did not conform to the corresponding provisions of the judicial interpretation of civil public interest litigation.
Yalong Hydro said that the preliminary design and approval procedures of the hydropower project would take a long time. The construction of Yagen Hydropower Station would not start shortly. At present, an inch of soil had not been moved on the site. The Company had no illegal activities and had not damaged the ecological environment. “There is no pause, and there is no damage to be prevented.”
Yalong Hydro claimed that even if the construction of the hydropower station started, all construction procedures of the company would be carried out in accordance with the requirements of national laws and regulations and with all national permits. Especially in the construction, the company would continue to adhere to the concepts of “Ecological Yalong River” and “Equal Emphasis on Development and Protection” and the relevant work would also be carried out according to the legal requirements.
The Company believed that CBCGDF’s prosecution had no factual and legal basis in terms of basic evidence and claims and should be rejected in accordance with the law.
▲The staff of the Intermediate People's Court of Ganzi Tibetan Autonomous Prefecture investigated the survival of acer pentaphyllum on the site. Photo source: the Intermediate People's Court of Ganzi Tibetan Autonomous Prefecture
The Intermediate People's Court of Ganzi Tibetan Autonomous Prefecture: the survival of acer pentaphyllum should be taken as an important part of EIA of hydropower station.
After hearing this "preventive lawsuit case", the Intermediate People's Court of Ganzi Tibetan Autonomous Prefecture held that acer pentaphyllum was placed high in the Red List of Biodiversity. After the completion of the Yagen cascade hydropower station, there may be a potential risk of causing damage to the original living environment of acer pentaphyllum and affecting its survival, which may damage the social and public interests.
According to the regulations of hydropower project approval process in China, hydropower project is divided into four stages: project planning, project pre-feasibility study, project feasibility study and project approval. Considering that the Yagen Cascade Hydropower Station involved in the case is in the pre-feasibility study stage of the project, the defendant is ordered to strengthen the environmental impact assessment of acer pentaphyllum in the feasibility study stage of the project and go through the legal approval procedures before proceeding to the next stage. “It is necessary and reasonable to avoid the risk of endangering the survival of wild acer pentaphyllum as far as possible.”
the Intermediate People's Court of Ganzi Tibetan Autonomous Prefecture said that CBCGDF, as a qualified social organization, under the situation that the construction of Yagen Cascade Hydropower Station may have a major risk of damaging the public interests of the environment, rightly put forward the claim that “the defendant shall be ordered to take appropriate measures immediately according to the law to ensure that the survival of acer pentaphyllum, a rare and endangered wild plant, will not be damaged due to the implementation of Yalong River hydropower development plan”, which should be supported. However, the construction of Yagen Hydropower Station has not started yet, and CBCGDF has filed a lawsuit to "suspend all construction projects of Yagen Hydropower Station and its auxiliary facilities", which is not supported without factual basis.
The Intermediate People's Court of Ganzi Prefecture ruled in the first instance: Yalong Hydro should take the survival of acer pentaphyllum as an important part of the environmental impact assessment of Yagen Hydropower Station, and that the next step can be carried out only after the environmental impact assessment report is approved by the administrative department of environmental protection.
▲The Intermediate People's Court of Ganzi Prefecture ruled in the first instance that Yalong River Company should take the survival of acer pentaphyllum as an important part of environmental impact assessment of Yagen Hydropower Station. Photo source / website of China Judgments Online
A precedent of preventive public interest litigation.
On February 9, 2016, acer pentaphyllum was listed in the List of Plants under Key Provincial Protection of Sichuan. Environmental protection professionals generally believe that the environmental public interest litigation filed by CBCGDF has directly promoted the protection of acer pentaphyllum.
On February 2, Lawyer Wang Chaoyong, the legal adviser of CBCGDF, introduced to the journalists from Shangyou News that this case was the first one of “preventive public interest litigation” for the protection of rare and endangered plants since the implementation of the public interest litigation system, which was an innovative and representative practice in the field of environmental public interest litigation system.
“At the time of prosecution in 2015, acer pentaphyllum was protected neither at national nor provincial level. At that time, according to the relevant regulations on the protection of wild plants and the international conventiona on the protection of endangered wild plants that China has participated, it was speculated that acer pentaphyllum should be a plant under key protection. Later, with the progress of the case, acer pentaphyllum was listed as a protected plant at the provincial level in Sichuan Province.” Wang said that the case directly promoted the protection of acer pentaphyllum and biodiversity.
Wang Chaoyong said that from the prosecution in 2015 to the sentencing at the end of 2020, the case has gone through a long litigation of more than five years. “However, I am very grateful to the Intermediate People's Court of Ganzi Autonomous Prefecture for its decision, which has responded to our claims and determined that this kind of preventive public interest litigation can be established, creating a precedent of preventive public interest litigation.”
For the future of acer pentaphyllum population along the Yalong River, Wang Chaoyong still expressed some concerns: “The court ruled that the environmental impact assessment report of Yalong Hydro, after being approved by the administrative department of environmental protection, can continue to carry out the next moves.” Wang Chaoyong believed that this was to put the judicial protection function after the administrative examination and approval. “The approval of the administrative organ is a precondition for the construction of hydropower stations, but this prerequisite is not enough. Since it is a case of protecting endangered plants, protecting them should be the ultimate goal.”
Sichuan local media reported on the case that public interest litigation cases such as the Yunnan green peafowl case, which caused public concern before, were all cases of “established facts that pollution or destruction have occurred”. The lawsuit accepted by the Intermediate People's Court of Ganzi Autonomous Prefecture is aimed to address the potential risks and possible damages, which means the damage has not occurred. It is a preventive public interest litigation, the first case of preventive public interest litigation in China.
Wang Jing, head of the Information Department of CBCGDF, said, “This case has gone through a long time from the submission of litigation materials in 2015 to the trial, and then to the judgment, from which we also found some difficulties and problems in the practice of preventive public interest litigation. For example, the way of bearing civil liability, the limitation of traditional right infringement liability, the difficulty of identifying the risk of major damage, the order of prevention and relief after the event, and the inadequate connection between law and preventive administrative supervision measures.”
In view of these problems, CBCGDF has continued to solve them through various ways and means. “We will continue to improve the environmental public interest litigation system through other ways, such as submitting suggestions to the two sessions on behalf of committee members and sending suggestions to relevant departments.”
Translator: Chen Liyuan
Original Chinese article
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