Cases of Citizens Defending Environmental Rights: Beijing Residents Sue Planning Committee for Illegally Approving Planning Permits
公民环境维权案例选篇:182户居民诉北京市规划委违法核发规划许可证案
To help victims of pollution use the law to protect their legal environmental rights, and to give the wider public the basic legal knowledge to protect the environment and their environmental rights, the “People and the Environment” supplement of the Gansu Economic Daily closely planned and consulted with the Environment and Resources Law Research and Service Center at the China University of Political Science and Law before formally launching the “Citizens’ Environmental Rights Protection” column on May 9, 2007. Its goal is to advance and spread the implementation of environmental law in China.
This is a collection of cases that have already appeared in the “Citizens’ Environmental Rights Protection” column. Most are cases in which the Environmental Law Clinic and the Center for Legal Assistance to Pollution Victims (CLAPV) at the China University of Political Science and Law (CUPL) have provided legal assistance.
Previously available only in Chinese, Greenlaw will be translating and posting one column each week with additional legal commentary. These CLAPV columns are translated directly from their original versions and do not necessarily reflect the views of NRDC.
View the full case and commentary after the break.
Click here to view previous cases.
182 Beijing Residents Sue the Beijing City Planning Committee for Illegally Approving Planning Permits
Author: Hou Beili Source: Gansu Economic Daily Date: 2007.12.12
Case Summary:
The Panjiayuan residential complex is in Chaoyang District, Beijing. Two of its residential buildings sit just across the road from two departments of the China Academy of Preventive Medical Sciences: the environmental hygiene testing center and the food hygiene testing center. In July 1998, the two centers applied to the Beijing Planning and Management Commission for approval to build an animal testing lab. In August 2000, they submitted a design plan for the animal lab to the City Planning Committee (formerly the Commission). The committee approved the plan the next month. Another three months later, the food hygiene testing center applied to the Beijing Environmental Protection Bureau to initiate procedures for environmental approval. The EPB accepted the application and asked the center to compose an Environmental Impact Assessment (EIA). In December 2001, the City Planning Committee then issued a construction plan permit to the two centers. The following February, the city EPB approved the environmental impact assessment.
In October 2002, three people, including Mr. Wang of the Panjiayuan residential complex, requested that the city government conduct administrative review of the decisions made by the EPB and the planning committee. The residents argued that the planning committee approved the animal lab in violation of normal procedures, and that the lab would pollute the surrounding residential area. They requested that the approvals issued by the two government bodies be withdrawn. The city government agreed to a review but ultimately upheld the approvals.
Later, 182 residents of the complex filed administrative litigation with the planning committee as the defendant. The plaintiffs asked that the court withdraw the permit issued by the committee. The court held hearings and agreed to the plaintiffs’ request.
The planning committee was dissatisfied and filed an appeal, but it later withdrew the case while it was being conducted by the court of second instance.
Expert Analysis:
1) On the project approval process
This case mainly involves the issue of how construction projects are approved. A construction plan permit should be issued after the completion of a project’s design but before construction starts. Any involved construction that might affect the environment must undergo an Environmental Impact Assessment. The evaluation is conducted to analyze how a construction project will affect the environment before it starts, and to facilitate the adoption of measures to prevent any adverse influence on the environment. This process embodies the principle of prevention in environmental law.
China has laws that explicitly mandate this process and its details. First, according to Article 13 of the Environmental Protection Law: “the environmental impact assessment for a construction project must evaluate how much pollution the project will create and what effects it will have on the environment. It must stipulate measures to prevent and control such effects. The bureau overseeing the project will provide an initial review and, in accordance with stipulated procedures, submit it for administrative approval to the administrative bureau that handles environmental protection issues. The planning bureau may only issue approval for the project design after the environmental assessment is approved.” Second, according to the second clause of Article 8 of the Beijing Municipal Plan for Implementing the Atmospheric Pollution Control and Prevention Law: “during the case establishment phase, environmental impact assessments must be composed for construction projects in accordance with national regulations on environmental protection. They must be approved by the administrative department in charge of environmental protection.” According to Article 25 of the Environmental Impact Assessment Law promulgated in 2002, the legal consequences of violating procedures for an environmental impact assessment are as follows: “if the environmental impact assessment for a construction project does not undergo the legally required process of review by the bureau in charge of approving it, or if the assessment is rejected after review, then the bureau in charge of approving the construction project is not permitted to approve it, and the company that proposed the project is not permitted to launch construction.”
In the above case, the Beijing City Planning Committee issued its permit before the two academy centers had composed an environmental impact assessment. This violated the legally mandated approval process.
Moreover, according to Article 31 of the Environmental Impact Assessment Law: “if the company that wishes to undertake construction does not submit an environmental impact assessment for the project in accordance with the law, or does not resubmit its assessment or request a new review of its assessment as required in Article 24 of this law, but nonetheless launches construction, then the administrative bureau that is in charge of environmental protection and handling approval for the project’s environmental impact assessment will order a halt to construction and set a time limit for the company to complete the omitted procedures.” In practice, many construction projects receive permits from the relevant planning bureau despite skipping the environmental assessment procedures. In such cases, the company that undertook the project will often compose an environmental impact assessment only after the project is complete. This contradicts the prevention and control principles in environmental law.
2) Channels for redress when administrative acts infringe on citizens’ interests
According to regulations in the Administrative Reconsideration Law and the Administrative Litigation Law: if a citizen, legal person or other organization believes that its legal rights and interests were infringed upon by the administrative act of an administrative organ or one of its employees, then it may apply for reconsideration to the next-higher level of the same administrative organ or to the other body specifically charged with such tasks. In this case, the body applied to will investigate the administrative act and issue a decision on whether to uphold it. If the applicant is dissatisfied with the result, he or she may file litigation within 15 days of receiving notice of the outcome. The concerned person may also directly file litigation rather than first seeking administrative review. If the person is dissatisfied with the outcome of a first lawsuit, he or she may file an appeal with the next-higher court within 15 days of being notified of the result.
(This article was originally published in the Gansu Economic Daily. Many thanks to Professor Wang Canfa and Xu Kezhu of CLAPV for providing the materials.)
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