Environmental Tour of China (by Bob Percival)

On Sunday March 18 I returned from a week and a half in China where I led a group of 38 students, alums and friends of Maryland’s Environmental Law Program on a spring break environmental tour. On Thursday March 8, I left for China with a group of 38 students, alumni, and friends of the Maryland Environmental Law Program. The trip is designed to combine visits to some of the most important tourist sites in the country with meetings with Chinese environmental students, professors and professionals. This is the third time we have done such a trip, which started in 2008 when I was teaching in Beijing on sabbatical and my Maryland students asked if they could come visit me. Each trip has been better than the preceding one and this year’s trip appears to be the best ever.

We arrived in Beijing on Friday evening March 9. Joining us in Beijing were Professor Zhang Shijun from Shandong University, who had been a visiting environmental scholar at Maryland during the 2009-2010 academic year, and Professor Erin Ryan, a former student of mine from Harvard, a Lewis & Clark environmental law professor now teaching as a Fulbright scholar at Ocean University in Qingdao. Saturday was the clearest day I had ever seen in Beijing, due largely to high winds that contributed to bitterly cold conditions. We visited Tiananmen Square, the Forbidden City and the Summer Palace. In Tiananmen Square we posed for a group photo and unveiled a banner thanking our trip organizer. This triggered a swift response from the Chinese police who thought we were engaging in some forbidden political protest at a particularly sensitive location. The confrontation was swiftly defused by the native Chinese speakers in our group who explained what the banner was about (the police ultimately did not even seize it). At the Summer Palace our group received a tai chi lesson, a welcome opportunity for us to unlimber after the long plane flight the day before.

After dinner on Saturday some of the students and I met up with Huang Jing, who had been a visiting environmental scholar at Maryland in 2010-2011, and Zhang Jingjing, the “Erin Brockovich of China,” who now works for the China office of the Public Interest Law Network. On Sunday we visited the Great Wall at Badaling. Again it was a spectacularly clear, though cold day, which made for some wonderful views from the top of the wall. We had dinner Sunday night in a hutong near the Drum and Bell Towers with the family of a military cook.

On Monday March 12 I spoke to a workshop of the All China Environment Federation (ACEF), a government-approved NGO (known as a GONGO here) comprised of environmental lawyers. ACEF was founded in 2005 and it has brought some of the most significant environmental cases on behalf of communities victimized by pollution. The focus of the workshop was oil spill law. I spoke about U.S. oil spill law, the BP spill, the litigation it has spawned and the partial settlement agreement. A lawyer for the Chinese law firm representing ConocoPhillips spoke about the offshore oil spill that occurred last summer in the Peng-Lai oil field in Bohai Bay. ACEF representatives spoke about the lawsuit they have filed on behalf of 107 fishermen affected by the spill. The Tianjin Maritime Court where the lawsuit was filed last December still has not officially accepted the case to the great frustration of the plaintiffs and the ACEF lawyers.

Our group also visited the China University of Political Science and Law (CUPL) where they toured the Center for Legal Assistance for Pollution Victims (CLAPV), which operates a hotline to field environmental complaints from all over China. CUPL Professor Wang Canfa, the director of CLAPV, spoke to our group about the CLAPV’s work. Teams of students from the Beijing Institute of Technology and CUPL, who will be competing later this month in the finals of the Stetson International Environmental Moot Court Competition, then did a practice round with members of our group serving as judges. One of the judges was EPA attorney Mike Walker, a long-time environmental adjunct professor at Maryland, who is traveling with our group. The group also visited the Cnetral University of Finance and Economics where Maryland has a joint exhange program in business law directed by Dan Mitterhoff. At the end of the day we all gathered at the Beijing office of DLA Piper, the world’s largest law firm, where we heard presentations from lawyers discussing the challenges of practicing law in China. Zhang Jingjing also addressed the group on public interest litigation in China. She expressed the hope of the public interest community that the National People’s Congress will amended the civil code during this session to facilitate public interest litigation.

On Tuesday March 13 we flew from Beijing to X’ian, a city in northwest China that has become a tourist attraction due to the buried terra cotta warriors. When I first visited China in 1981 only a portion of the buried warriors had been discovered and the Chinese authorities did not permit any photos of the site. Now there are two large structures covering the archaeologic sites and photos are permitted.

We spent Tuesday afternoon touring the city of X’ian including a climb to the top of the Big Wild Goose Pagoda. X’ian is in the heart of Shanxi Province where more than a quarter of China’s coal is mined, most of it for export. The coal-fired power plants in the province create highly visible pollution, which shocked some of the students and alums in our group, who had thought that the rare clear conditions in Beijing (caused by unusually high winds) indicated that China was making more progress in controlling pollution. On Wednesday March 14 we visited the site of the buried terraa cotta warriors, which is located approximately an hour east of the city of X’ian. After a raucous night in a karaoke bar in X’ian, our group left at 5:30AM on Thursday March 15 for an early morning flight to Shanghai.

After arriving at Pudong International Airport in Shanghai, our group made a brief stop on the Bund where we viewed the incredible Pudong skyline during a slight drizzle. On the next day -- Friday March 16 -- our group visited the Taikan Lu arts district in the French Concession and then we stopped at the Shanghai Museum and the Nanjing Road shopping district. On Friday afternoon the group visited a Chinese law firm -- the DeBund firm -- where we participated in the firm’s weekly discussion session. Wei Hu, an associate at the firm, had been one of the young CHinese environmental professionals who had participated in a workshop on U.S. environmental law that we conducted at Maryland last June. When we arrived at the firm a training session was being conducted for young associates on recent developments in patent law. AFter they made room for our group, we enjoyed an incredibly candid discussion of the status of the “rule of law with Chinese characteristics.”

There are now 14,000 lawyers and more than 1,000 law firms in Shanghai (Beijing has more than 20,000 lawyers), The DeBund Firm has 44 lawyers , including 11 partners. It currently is rated #36 in Shanghai. The lawyers explained the difficulty of practicing in a legal system where the courts are “not so independent”. The National People’s Congress has just approved changes in China’s criminal code, which will make it somewhat more transparent. The changes include a provision to legalize forced disappearances of people who are deemed threats to state security, hardly a change in policy, but one that has spawned protests for its interference with civil liberties.

Comparing U.S. and Chinese law, members of the firm noted that witnesses rarely come to court in Chine, despite courts asking them to do so. The Supreme Court of China has ordered the country’s old specialty railroad courts to be integrated into China’s court system. Recently it has started issuing interpretations of various laws. While there is no formal legal source for Supreme Court’s power to do this, its “Instructive cases” project was started last year.

The DeBund law firm specializes in intellectual property law, foreign direct investment and environmental torts. The lawyers seemed frustrated that ConocoPhillips had received only a fine of 200,000 RMB for an oil spill in Bohai Bay. While noting that there had yet to be a critical mass of lawyers practicing environmental law in China, the firm has handled environmental cases. Disputes over siting new chemical plants usually are resolved not based on the law but on political power. Localities eager to attract industry make required environmental assessments a perfunctory exercise and local officials try to pressure lawyers not to bring environmental challenges. Siting decisions for powerplants and new industries usually are made without consulting the public and there is little chance for lawyers to block them. Occasionally environmentalists win, but it usually is due to their ability to generate sufficient political opposition to a project, rather than due to enforcement of the environmental laws.

On Friday evening our group had a reception at the Maryland China Center, which initially had been established by the state of Maryland to help Maryland companies do business in China. Jim Curtis from the Center noted that the Center now devotes substantial resources to helping Chinese companies create jobs by doing business in Maryland. Our group heard a presentation from Zhenxi Zhong from Shanghai Root and Shoots, one of the few NGOs officially licensed by the Chinese government. Roots and Shoots, a group initially formed by Jane Goodall, is working in more than 200 schools in the Shanghai area to improve environmental education. After a final day of sightseeing in Shanghai on Saturday, we flew back to Washington on Sunday March 18.

A gallery of photos of our trip to China is available online at: http:gallery.me.com/rperci/100910.