Franco-Chinese Meetings on Law and Justice

12th and 13th of October 2017, Beijing

‘Urban Transformations: What Law for the City of the 21st Century?’

Report by Ms Manon SIMON with the Assistance of Ms Cécile HAM, PhD candidates,

Research Institute of Environmental Law

Wuhan University

Thursday 12th of October

Opening

DANLOS Benjamin, Chief of the Bureau for International Cooperation, French Ministry of Justice

He first underlined that legal cooperation between France and China is very strong in several fields (access to justice, etc.). Numerous programs exist to exchange on good practices, welcome legal auditors...

The ministry of justice designated environmental law as a priority issue, because of the COP21 but also because it is a highly topical issue which mobilize both administrative, civil and criminal law. He cited as an example the French Agency for development in China and its work on parks and natural areas.

YANG Jie, General Director of the Law and Regulation Department of the PRC National Development and Reform Commission

She welcomed the choice of this topic, as urbanization is an important process both for modernization and development. She recalled some interesting statistics: Half of the global population lives in the cities: this represents 2% of the planet surface but 75% of the natural resources consumption and waste production. In China 800,000 million people live in the cities, representing 80% of the GNP and 86% of the consumption. Therefore, it is worth asking how to ensure environmental protection throughout the urbanization process to improve the quality of life in the cities.

She presented Paris as a global example of urbanization, and wondered how Beijing can use the Parisian model to find solutions to its current problems, and how China innovate to bring good practices to France.

She insisted on the need for a harmony between human and nature, while respecting traditions, in the development of legal mechanisms (like the 2014-2020 program and sustainable city programs such as the one led in Caidan, Hubei). She called for an improvement of water and waste treatment as well as access to natural gas through a revision of urbanization and natural disaster law and opened the debates by asking the following question: How to develop a new model of sustainable cities?

Introductory Plenary Session:

Taking into account the Environmental concerns in the Law applicable to urban transformations

Round-Table on the Chinese Situation (Chair: QIN Tianbao)

Wang Mingyuan, Vice-President of the Commission on Environmental Law of the China Law Society, Professor at Tsinghua University: ‘Urban Transformations, Environment and Law: Research, Theoretical Analysis and Practice’

1/ Case study – the link between environmental law and urbanism law: He introduced by stating that law regulates material spaces and urban life, and coordinates the relationship between human and nature. He used the example of the Everglades: the over-exploitation of the dunes for real-estate and industrial development weakened the area. After a hurricane that sinister about 2000 homes, scientific research led the legislator to pass the 1982 Coastal Zone Management Act. However, Hurricane Sandy damaged the zone again in 2012, demonstrating we did not fully learn the lessons.

2/ Historical overview of the ecological city: He mentioned the Chinese concept of “Fengshui”: the harmony between human, mountains and rivers (and its equivalent in occidental mythologies). He explained that the industrial revolution has brought new developments to the research on urbanism. Later, Haussman drew the first urban plans, like Howard in England with the “lyrical cities” and Park in the US (School of Chicago, 1920), with his theory on “urban ecology”.

3/ Evolution of Urban Law: He then insisted on “the move of priorities”, from security and health to sustainable development, thanks to awareness raising (introduction of technique and science in law, increasing participation of State and local authorities and democratic participation of the public).

MA Hongjie, Chief of the Urban Design Service of the Planning and Land Use Planning of the Beijing municipality: ‘Beijing, Practices for an Ecological City’

He presented Beijing blueprint to improve the quality of life, in the context of President Xi's will to develop ecological efficiency and reduce CO2 emissions. The project sets an ambitious target: 75% of ecological areas in Beijing by 2020 through various measures (water treatment, waste recycling, integration of technologies to ensure the efficiency of the ecological objectives).

For instance, the norms and standards on eco-construction and renovation (1st of June 2015) already have positive impacts: ten neighborhoods are to be built using ‘passive construction’ techniques (decreasing water runoff, 100% of waste recycled...). These norms and standards, already introduced in retrocession projects, comprise financial incentives for foreign investors.

These exemplary projects (e.g. the nine pilot-zones, including the former steel industry zone of Beijing converted into ecological spaces for the Winter Olympic Games) are useful to define principles, guidance and recommendations on social diversity, reforestation rates, etc.

WANG Tianying, Prosecutor of the Supreme Prosecution: ‘The Specialization of Prosecutors in Environmental Matters’

She presented the proposal of Revision of the Law of Administrative Procedure introducing the “public interest litigation”: administrative and civil public actions ensuring the use of natural resources for the benefit of the public. The reform was put in place in thirteen pilot-provinces where the procedures encountered a great success (9503 cases including 1150 trials and 5502 cases resulting in correction measures: calling upon the various actors involved to remedy to pollution). This proposal was submitted to the Parliament to revise the Laws of Civil and Administrative Procedure. She used a couple of examples:

- In Hubei, the inaction of the Bureau of Silviculture of the District of YunYang regarding the deforestation of a protected forest was sanctioned in first instance

- In Canton, the Judge requested the administration to solve a problem of land pollution caused by the unsound treatment of waste (case detailed later)

In China, the prosecution is the organ of application of the law and control of the administration. Its particularities are the following:

- definition by the law and the Communist Party

- several measures available (voluntary/own-initiative investigation (“auto-saisine”), measures of rehabilitation, reparation and compensation...)

- preliminary procedure (77% of the cases are settled prior to trial through formal notice, which constitutes a real gain of time and energy)

GE Feng, Director for the Promotion of Laws and Policies of Friends of Nature: ‘The Role of NGOs’

She recalled the tripartite relationship of the State, the private sector and the civil society in the modern society but expressed her disappointment on the weakness of NGOs' roles:

The participation of NGOs in the elaboration of laws and regulation: Friends of Nature participated in 20 law bills including the law on the protection of the environment and the law on the protection of the soils, which raises serious concerns, since soils terminals for air and water pollutions. She raised several issues and notably those of the identification of the responsible, the evidence necessary to initiate procedures, etc.

The participation of NGOs in public interest litigation: FoN participated in 32 procedures (11 on air pollution, including the Hyundai case, still pending, 6 on water pollution, 8 on soil pollution...)

She mentioned the concept of “ecological prejudice” used in a case raised in Hunan Province regarding polluting practices affecting wetlands, habitat of the rare green peacocks.

She concluded by proposing a NGO network, to combine efforts in staff training, rapport publications, etc.

SONG Jumbo, Associate of the DEHENG LAW OFFICE in Jinan: ‘The Role of Attorneys’

He pointed out that environmental awareness creates a lucrative market for law firms that he calls “Blue Sea Market”. The problem is that, despite the progress made in Environmental law, there are not enough specialized environmental lawyers to meet the economic, societal and cultural expectations. Attorneys to massively convert to environmental legal matters but lack technical and scientific knowledge. Therefore, he called upon the environmental lawyers to defend the “purity” of the market. Indeed, lawyers' role in the evaluation of the risks can have great impacts on enterprises and workers' lives (through audit, compliance monitoring and development of the ecological prejudice mechanisms).

As to participation to legislation, they can help to reinforce the legal framework and to narrow the gaps between the ambitious governance text and the concrete application measures.

Comments: BALME Stéphanie, Attaché of Academic Cooperation at the France Embassy in China

She asserted that the ratification of the Paris Agreements by China seals the cooperation between France and China. She also underlined the great method used for the Conference and congratulates the presence of all environmental actors (except the private sector). She retained one key-word: legal and technical “innovation” to summarize both the frantic development of China and China's will to remedy to environmental degradation (administrative environmental litigation, creation of specialized Courts, professionalization of actors). She looked forward to hearing about the legal translation of the concept of “ecological city” in law: the transition from the right to a city to that to a sustainable city as a global common good.

Questions and Comments:

- A lawyer offered to work along with the civil society through pro bono service, he already volunteered in school to raise awareness among pupils on environmental matters.

- What are the benefits of prosecutors' legal advice as opposed to NGOs'? The prosecution is protected by the law, and their formal notice worth warning. NGOs can transmit their advice to prosecutors in case of administration's inaction.

- What are the difference between Chinese and French Prosecutions? In China, Prosecutors have a different status than a regular claimant because they do not represent their own interest but the public interest (sum of the private interests and not the State's interest), moreover, they simultaneously play their role of control of the application of the law. In France, Prosecutors represent the State interests.

- Is it possible for the Prosecution to enter into agreement with the offenders to avoid trials? The conciliation process exists in civil law but not it does not institutionally exist at the administrative level within the framework of the public interest procedure. Prosecution's opinion, if it is followed by parties, can constitute a preliminary conciliation. Also, if the offenders remedy to their fault, the prosecutions can be dropped.

Round-Table on the Chinese Situation (Chair: MARTIN Gilles, Emeritus Professor at the University of Nice Sophia Antiopolis and Institute of Political Studies (IEP) Paris)

Urban transformations are the causes and consequences of environmental protection.

They only are acceptable if the environmental issues they create are solved both upstream and downstream.

PENNAFORTE Manuel, Associate attorney (BOIVIN & ASSOCIES): ‘Main Legal Instruments’

He presented a non-exhaustive list of the major legal instruments designed to execute French land use planning policies: to slow down urban expansion (sustainable cities are limited in space) and re-conquest urban wasteland to valorise urban spaces (e.g. Marseille docks turned into enterprises' work sites)

- Top of the normative pyramid: Constitution and Charter of Environment (obligation of reparation)

- Code of Environment and others (civil and administrative liability) etc.

Jurisdictional dualism: civil and criminal judge on one side and administrative judge on the other

Environmental polices (Napoleonian State Police) such as the police of waste, of classified installations, etc.

- Contract Law: “contracts legally formed constitute the law of the parties” (civil code)

- Various actors: consultancy study, lawyers, notaries, etc.

He mentioned, for instance, expropriation procedures where all these instruments and actors intervene.

HUYBRECHTS Eric, Director of International Relations, Institute of Land Use Planning and Urbanism of Ile de France: ‘The Urbanist's Point of View’

He introduced by asserting that urbanism is a tool for planning and creating norms (on quality of life, biodiversity, mobility, etc.) Parisian planning policies have integrated environmental issues, and notably through the concept of “compact city” (to densify the city and exploit under-used spaces to limit urban expansion). As a matter of fact, 90% of the construction are undertaken within the existing city.

He mentioned several instruments:

- The regional blueprint (“Schéma directeur régional”) covers different environmental fields: mentions the protection of agricultural spaces, the management of forests and other natural resources, the limitation of urban fronts, the restoration of green spaces continuity (“green highways” like that designed in the Plaine Saint-Denis or the Batignolles), the improvement of common transportation and flood management. The blueprint is regularly monitored and partially reviewed every five years.

- It translates at different levels through various documents (strong integrations and articulations between the documents): inter-communal coherence blueprints and local planning blueprints...

DU MARAIS Bertrand, Justice at the Conseil d'Etat (Administrative Supreme Court), ‘Taking the Environment into account in the Public-Private Partnerships (PPP)’

It is a current issue in China (e.g. first FIDES publication on Chinese Real Estate, 2007). He asserted that environmental concerns in PPP do not exist as such in French law but exist as a typology of contract law under “concession law”, which includes planning concession.

1/ PPP governed by environmental law: He recalled that the construction of public infrastructures is also subject to environmental legislation: notably Art. 7 of the Charter of the Environment on access to information and public participation (obligation of notification, etc.), and expropriation procedures subordinated to public inquiry and environmental impact assessments. As an illustration, he mentioned the project of Notre-Dame-des-Landes Airport and the decision of the Conseil d'Etat dismissing the action against the Public Utility Declaration (170 decisions were made on that case).

2/ PPP vector in implementing sustainable development: He also recalled that most contracts of partnership pertain to public lightning with an objective to reducing the energetic consumption, but also water treatment, urban transportation, preliminary evaluation, etc.

MOUSTARDIER Alexandre, Associate HUGLO LEPAGE &Associés, ‘Environmental Justice’

He put environmental justice in the context of environmental equity, reminding that it is a recent kind of justice. He then gave an overview of the various actors involved:

- Civil and criminal Judges (crimes against environment). Because the texts are too broad, and often more technical than legal, they are difficult to implement (use of general law and not environmental law) and remedies often are limited (as opposed to competition law for instance)

- Administrative Judges (power to compel the administration)

- Experts (necessary to evaluate the prejudice and bring evidence despite technical difficulties such as the identification of the responsible)

- Lawyers (participate in the creation of the law cf. Erika Oil Spill Landmark Case, recognition of the environmental prejudice prior to the law)

- Mediator/ADR actors (usually cases concern disputes between organizations and enterprises as opposed to legal interpretation issues)

- Local Authorities (major actor of urban planning and environmental litigation)

- Civil society (despite the absence of “class action” procedure in France, they can be indemnified for environmental prejudice) and Enterprises...

He then pointed at the difficulties both technical (lack of tools such as evaluation grid, nomenclatures...) and legal (conviction is not always the solution as the reparation or compensation is not always possible). The complexity of environmental law makes it difficult to implement and creates legal insecurity. Moreover, social pressure greatly influences environmental equity.

BERLIOZ Pierre, Law Professor and former counsellor of the Minister of Justice, ‘The group action in environmental matters’

He insisted on the difference between the French “group action” and the Common Law concept of “class action”. Recently introduced in French Law in the Code of Consumption, it is developing, and notably with the Law of the 18th of November 2016 (on justice modernization) establishing the Common Framework, regulating litigation in the cases between claimants economically weaker than the defenders.

It is explicitly extended to environmental matters by the legislator but necessitates the breach of a legal obligation. Serial litigation is reserved to certain organizations (criteria: accreditation, conditions, scope and length of the accreditation). It is limited to cessation or reparation action: can only result in a formal notice for the cessation of the breach and a mediation to enable the victims' compensation, individually (case-by-case) or collectively (package for identical situations). Damages to the environment are not defined by the law: limited list of the action that organizations can initiate (protecting nature, combatting pollutions, etc.).

He maintained that the main objective is the cessation of the breach and the individual reparation (physical or material), and not the reparation of collective prejudice.

Comments: CAO Mingde, Vice-President of the Commission on Environmental Law of the China Law Society and Professor at the Univeristy of Zhengfa

He welcomed the solutions brought by the French speakers as adequate to solve Chinese environmental issues: the environmental police, the periodical evaluation of the blueprint, the PPP model (important both for the ecological transition and public interest actions), the repartition of the role between actors (as we cannot solely depend on the Administration), the roles of experts and NGOs (in China as well, since 2014, accredited organizations can lead public interest actions), the difference between the “group action” and the “class action” to limit the requests (in China, group actions only concern private interests, that is to say civil actions, as opposed to administrative actions).

He concluded by stating that the complexity of the environmental realities implies a complex law, which can sometimes affect the legal security, hence the importance of scholar work in elaborating the law.

Questions:

- How are environmental law and urban law articulated? In many ways: obligations of evaluation, principle of compatibility between the authorizations delivered by the competent authorities (source of many litigation), consideration for environmental documents in the blueprint. Urbanism lies at the crossroads of many dynamics and depends on superior constraints.

- What are the measures taken by France in order to give cities leadership to tackle the effects of climate change? France has put in place new norms pertaining to construction permits, and many legal and regulatory provisions concerning adaptation to climate change consequences (especially on coastal areas). To tackle the risks of flooding and heat waves, cities also have taken the initiative to green and cool the cities.

- Are they cases overlapping between civil, criminal and administrative justice? Yes, a good example is that of industrial sites. These procedures are complementary but need to be filed before different jurisdictions: the administrative judge orders the cessation; the criminal judge examines the offense and the civil judge orders the reparation of the prejudice. However, it is rare because the competences of the judges are distinct.

- What is the role of lawyers in mediation and conciliation procedures? Are they provided with a specific training? Is there such thing as an agreement procedure? For a long time, lawyers did not need a special training, now these trainings exist and a list identifies the mediators. However, it is not well-developed in environmental matters since ADR is very recent in administrative matters.

- What types of expertise exist to evaluate the amount for the reparation of the environmental prejudice? This is the role of the experts but no scoring method (“barême”) exists: there are indicators but no rules so the evaluation is done case-by-case by the judge. The risk if for the compensation to be too small because judges often lack specialization.

Friday 13th of October

Thematic Round-Tables

Thematic Round-Table 1: Polluted sites and soils (Facilitator: MOUSTARDIER Alexandre, Associate Attorney HUGLO LEPAGE & Associés) (notes taken by Cécile Ham)

HOCHE Martin, Notary, President of the Notarial Institute of the Rural Space and the Environment

He presented the rehabilitation mechanisms of polluted sites: there is an administrative obligation to rehabilitate the site after the cessation of the installation, taking into consideration the protected interests and future uses of the sites.

The legislation of polluted soils depends on both the legislation on Classified Installations for the Protection of the Environment (CIPE, in French “ICPE”) and the legislation on wastes. Non-excavated soils are excluded of the legislation on wastes. The owner remains responsible until the elimination of the wastes, and negligent owners are responsible under the 2014 Law ALUR (access to housing and renovated urbanism).

A contract is always drafted (even if the site was rehabilitated) and determines:

- the environmental state: determined by 1) the seller, 2) national database, 3) state service database and helps to establish the future realizations

- the project considered (core of the contractual relationship): the terms must be highly precise, identical to the administration terms, following the same framework of reference as the administrative police

- planning of the environmental liability: mentions who will pay for pollution, what are the risks taken and the obligations in case of incident or technical accident (the transferor bears the liability). There are two kinds of clauses:

- clause of liability guarantee (“garantie des passifs”): limited efficiency, non-enforceable to the Administration. The Administration only knows the last owner and the Law ALUR provides that definitive transfer cannot be made for the benefit of the last substituted third-party (limit the substitutions of third-party to the CIPE)

- clause reviewing the price: cession of the compensation to the dealer

SUN Youhai, Vice-President of the Commission on Environmental Law of the China Law Society

He focused on a case, in the South of China, related to environmental pollution caused by a chemical factory, sold to the public authorities. The pollution affected the health of pupils from a primary school close by. An organization filed a case for the company to 1) compensate, 2) apologize, 3) and bear the costs of the trial.

In Chinese law, there are four types of responsibility:

- criminal: crime of damage to the environment (four criteria: 1) non-compliance, 2) intention, 3) link with environmental management and 4) direct link between the activity and the pollution)

- civil: 1) the industry must bear the costs of the reparation, 2) in case of cession, the liability cannot be transferred, the owner must repair (with some exceptions), 3) the land must be decontaminated

- administrative: local authorities responsible

- political: within the Communist Party

If the Government acquires the land, it cannot be held responsible for the decontamination because it would fund the reparation with tax-money, which is not an option in China. He explained that this is the reason why the polluter-pay principle is very strong in China.

LEVY Frederic, Associate Attorney DS AVOCATS, in charge of the Real Estate Pole

He explained that we are shifting from the polluter-pay principle to a “planner-pay” principle, notably because of the process of deindustrialization. In 2050, 70% of the global population will live in the city, explaining the efforts to invest in industrial wasteland. It is not about civil liability anymore (who polluted?) but about administrative responsibility (how to deal with the pollution?).

We have started to build vertically, higher in the sky but also deeper in the ground, leading to the recognition of the principle of consideration of future use in soil management. This creates an obligation of specific information, in order to keep track of soil pollution, including residual pollution.

He concluded by asserting that the land-owner must be held liable, when it used to be the waste-owner, because manufacturers also are concerned. The Law ALUR deals with this issue but the manufacturer is liable on a subsidiary basis.

ZHAO Guang, Attorney member of the Comity on Environmental Law of the ACLA (All China Lawyers Association) *Not provided *

Thematic Round-Table 2: Protection of Biodiversity in Urban Transformations (Facilitator: ZHOU Ke, Vice-President of the Commission on Environmental Law of the China Law Society)

He introduced the discussions by reminding that this topic is very recent in China so that these theoretical and practical contributions will foster the work in several fields. The Chinese specificity lies in their square-shaped cities, as opposed to the Occident where cities follow a more natural configuration (following watercourses and mountain ranges). Protection of biodiversity was put aside during the frantic urbanization of China: there is an environmental awareness but it lacks structure. The damages to biodiversity already require compensation but Chinese legal system lacks precise and constraining legal texts.

MARTIN Gilles, Emeritus Professor at the University of Sophia Antiopolis

He presented the French developments on ecological compensation. Every work leads to damages to biodiversity (in all countries and at the global scale) but the risk to lose up to half of the global biodiversity by the end of the century will create major imbalances and loss of information (inherent to each specie).

The European and French legislators created obligations upon the project owner: (1) to avoid damages to biodiversity (by modifying the projects consequently), (2) to reduce the impacts of the unavoidable damages (by setting appropriate device) and (3) only in a third time, to put compensatory measures in place on the land he has ownership or control over.

The law on Biodiversity of the 8th of August 2016 introduces the compensation measures in the Code of the Environment (e.g. “ecological equivalence” to rebuild natural habitat). The compensation measures must be ensured during the whole duration of the damage! (e.g. if a highway damages an ecosystem for over 100 years, the compensation must last as long). The law encourages the project owner to enter into a contract with a biodiversity operator (public or private professional who acquires land and manages it with the perspective of protecting the biodiversity e.g. the “caisse des dépôts et consignation” biodiversity subsidiary) to compensate on his land, by buying “compensation units”. The money deposited serves the management of the site. The administration ensures a permanent control of the compensatory measures and their modalities.

However, he raised several questions:

- how to guarantee that the compensation avoids a net loss of biodiversity? Need for expertise in ecological engineering

- how to guarantee the long-lasting nature of the measures? The French law does not quite address the problem: only when the site is definitely affected or when the project owner disappears, does the site is placed on-lend (“rétrocéder”) to the operator

- how to regulate the conflict of interests and abuse? (an administrative authority could be established)

Comments from the facilitator: Ecological compensation mechanisms exist in China but they only last the time of the operations (short-term) and are not well-executed. They could constitute an obstacle for the investors: it is considered as a grace from the land developer when it should be a legal obligation (e.g. wetland bird nests rebuilt after the 2008 Olympic Games but great loss of surface)

RUFRAY Xavier, Director of the Chinese subsidiary Biotope

He developed the example of the fast-train lane between Nîmes and Montpellier that impacted a specie of bird in danger of extinction (70% of loss at the global scale and the project drove the French bird population down to 50%). The two steps “avoid” and “reduce” the impacts were not respected, therefore, the project owner had to compensate.

The Project was thought-out over twenty years ago and, in the Public Utility Declaration, the State granted a derogation to initiate a large-scale ecological compensation of the agricultural wasteland, habitat of the bird, that was greatly affected. Biotope had to re-create natural habitat outside of the lane trajectory by providing farmers with bonuses to leave their land still. The agro-environmental measures thus created a parallel economy. Out of the 1500 acres concerned by the ecological compensation, 650 acres were bought by the project owner, Bouygues, to place it on-lend to the biodiversity operator: as a result, there was no net loss of the bird population (loss of 10%).

In China, Biotope only has a limited experience: program “grain for green” turning agricultural land into wetlands. Nevertheless, several projects are impacting areas rich in biodiversity (coastal mudflat where migratory species live) without providing compensatory measures.

He concluded by saying that ecosystem services can create a tourism economy and improve the quality of life of the Chinese population. International funds could be used as a basis for a Chinese legislation.

TAN Boping, Green Development Foundation

He presented the Chinese legislation on biodiversity and the difficulties encountered with the law bill proposed in name of the civil society. The main argument was that a special law is not necessary given the existence of numerous measures, ordinances and regulations on the protection of wildlife, forests, etc. However, the existing legislation contains gaps and sometimes is incoherent (problems in the formulation of principles and objects concerning protection in-situ/ex-situ, public participation, etc.). China must draw common principles from regulations drafted at different periods, in different manners, with different methods. The ratification of the CBD by the 18th Congress is fastening the process. To ensure the balance between ecological and economic development, China needs to harmonize the process of regulation, which currently involve too many competent authorities (silviculture, customs, etc.). He highlighted the need for a unique authority, arguing that if too many departments are involved, none is responsible. A commission on coordination of the protection of biodiversity exist to encourage coordinated work: it should become a permanent instance to articulate the competences of the various departments involved and solve biodiversity management core problems. One major issue also lies in the structure of the text draft: Should it be organized by objects, instances, environments? Should the content of the articles be taken as such from the existing legislation or should a new draft better balance the content of the different chapters?

The bill that he presented organizes the law in 9 chapters: 1) General principles, 2) protection of species, 3) protection of the environments, 3) patrimonial resources, 4) procedural rights, 5) civil law interpretation, etc.

WANG Wenyong, China Biodiversity Conservation

He asserted that theory is grey when practice is green, representing the living.

He recalled that 60% of the public interest litigation his organization was involved in (60 cases related to ancient trees, cultural relics, and protection of landforms) concerned the law on the protection of the environment. Despite the fact, accredited organization can initiate this type of actions, they still encounter major obstacles. He denounced the lack of validity of commonly heard arguments: environmental protection would be an occidental conspiracy to slow the economic development and reduce the employment opportunities in China, NGOs abuse of both their authority and environmental provisions (e.g. XinShan case). Contrariwise, he argued that the environmental protection and the rule of law, with an appropriate control, will sustain the economic development. Indeed, environmental offenses are not an economic boost.

Since the central government has emphasized on environmental protection, the anti-NGO speeches have reduced but persist. He also denounced the requirement for a “strict” application of the law as being unnecessary, since the law is made to be applied and respected anyway. Finally, he refuted the argument according to which the interests of the Government and those of the local authorities are divided: the only conflicts of interests lie between private interests.

Comments: NGOs have a great role to play since the public cannot directly participate to biodiversity protection

YU Wenxuan, Vice-President of the Commission on Environmental Law of the China Law Society

He presented the project of research led since 2001 on the protection of genetic resources, species and ecosystems. Already present throughout various regulation and ministerial decrees on wildlife and evaluation mechanisms in industrial infrastructure development projects, they are not respected in practice (e.g. pharmaceutical companies extract bears' biliary liquid for medicines).

Very rich in biodiversity, China always valorized the species on its territory to stimulate the economy.

The 1989 law on wildlife protection was revised in 2016 with an emphasis on wildlife as a “resource”, but not as an ecological treasure requiring protection. In the decree implementing the law, only the wildlife “useful” to humans is protected because of their economic or scientific value. Therefore, it is necessary to promote the protection of other species. The law contains dispositions on the protection of the wildlife habitat (nomenclature for natural reserve) but this raises issues pertaining to the repartition of the competences between the National Forestry Administration and the Ministry of Environment. It also regulates the intrusion of invasive foreign species but only in the natural reserve, not in the other environments (economic loss evaluated up to 120 billion of RMB). As to the protection ex-situ of species, this should be the last resort: only when the habitat is damaged or if the specie is so rare that its conservation ex-situ must be considered. Rare genetic species is the property of the State, which can consent to grant usufructs if the procedures are clearly defined (distinction between material and immaterial benefits). To do so, institutions should recognize a link between the natural and the economic values of the species and the concept of ecological security should be central.

Comment: Because China has been focusing on pollution issues so much, it fell behind on ecological reparation. Yet, China should catch up without following an anthropocentric vision of biodiversity.

Questions:

- The system of compensatory units is similar to the Emission Trading System: Isn't it a form of monetarization of the biodiversity? There is an intellectual relationship between these units and the carbon credits but living mechanisms are more complex. This is why the compensation intervenes only after the prevention and the reduction of risks. Moreover, as opposed to carbon credits, the units are not negotiable or tradable precisely in order to limit this risk of commodification/merchandization.

- The reparation a priori and a posteriori USE ORDINARY ENGLISH EQUIVALENTS both raise evaluation issues. To avoid conflicts of interests, we should ensure a multiplicity of actors using the same evaluation methods.

Thematic Round-Table 3: The Environmental Criminal Risk (Facilitator: DESEVEDAVY Franck, Associate Attorney ASIALLIANS law firm) (notes taken by Cécile Ham)

PENNAFORTE Manuel, Associate attorney (BOIVIN & ASSOCIES) and President in France of the organization France China Environment

Presentation missed for picture-taking

ROUCHAYROLE Marc, General Attorney at the Appeal Court of Paris

He addressed the following question: What is criminal environmental law? (highly technical)

It consists in an offense (damage to the environment) under the Code of the Environment, but can also indirectly concern damage to human health and integrity, committed by an individual or an organized criminal organization. The criminal liability is personal: based on a personal fault or negligence fault.

Repressive actions usually derive from a preventive action: here, the administrative police are the organ in charge of preventing and sanctioning damages to the environment.

The actions of the criminal justice are the following: 1) record the infringement, 2) identify the offenders and 3) sanction and punish.

LIU Hongyan, Permanent member of the Commission on Environmental Law of China Law Society

He presented the evolution of criminal law in China:

- 1979, first Criminal Code (four articles relate to the environment – gap with societal development)

- 1997, new Criminal Code, followed by attempts of improvements

- 2002, 4th revision mentions more environment-related fields of action

- today, twenty laws relate to the environment

Environmental law is absent from the Criminal Code. The poor articulation between the two areas of law is inherited from the Soviet Union that greatly influenced Chinese criminal law.

ZHAO Jianjun, Attorney member of the Committee of Environmental Law of the ACLA

He recommended to 1) put in place a strict liability regime, 2) reinforce administrative police, 3) valorise criminal justice and deterrence (e.g. companies listed on the Stock Market should be disqualified and required to apologize). In China, citizens do not have a right of denunciation. The group action exists in civil and administrative law but not in environmental matters, and only through NGOs.

Thematic Round-Table 4: Reparation of Damages to the Environment: New Instruments and Procedures (Facilitator: WANG Canfa, Director of the Center for Legal Assistance to Pollution Victim)

BRUN Phillippe, General Attorney at the Cour de Cassation (Civil and Criminal Supreme Court)

Presentation missed for picture-taking

BERLIOZ Pierre, Law Professor

He presented the specificities of “ecological prejudice” in French Law. The notion of prejudice implies a damage caused to others. However, scholars and jurisprudence managed to overcome this obstacle by creating the “principle of reparation of pure ecological prejudice” (to the environment and not to “others”).

This is a general law principle and not an autonomous system (like that of neighbourhood disturbance): it requires 1) a personal fault and 2) a link of causality.

What are the modalities of its reparable nature?

- The works of Gegouzo proposed a requirement of “abnormality” but it was left aside to avoid the risk of creating a derogatory law (distinction between “droit commun” and “droit dérogatoire”)

- However, the law sets a requirement of “non-negligibility” (serious nature of the damage, borrowed from the jurisprudence Erika and appreciated by the judge case-by-case)

- It also sets a distinction between damage to the environments (“milieux”) and to the environmental services (integrated to the damage)

- The nomenclature provided by the law is indicative but very useful to evaluate the prejudice

- Fundamental principle: the priority of the reparation in nature (as opposed to reparation by equivalent), which is coherent with the objective nature of the prejudice. The subsidiarity of the monetary compensation intervenes only if the reparation measures are insufficient and the compensation must be assigned to the reparation of the environment (not only in the instant case but to other sites in order to avoid the funds to be used to other non-environmental ends). In cases where it is impossible, it will be given to the State.

- The complementary measures (e.g. cessation of the illegal activity) is appreciated by the judge: they must be reasonable, proportionate and adequate. Punitive remedies are not considered (mostly due to industrial lobbying).

- The law provides a list of the persons having standing, but the judge will have to interpret whether the list is exhaustive or not (large or restrictive interpretation). The law does not require an injury but the evidence that the person's activity is impacted (what about moral interest?)

- Maximum limitation derived from general law: ten years, like physical damages (as opposed to five years) from the moment where the facts are known or should have been known, like top-priority issues, within a twenty-year deadline period from the entry into force of the law (proposition of hundred-year deadline left aside).

MADIOT Emmanuel, Court Bailiff

He presented the work of bailiffs in collecting evidence for preventive purposes.

He started by comparing Art. 9 of the French Civil Procedure Code (CPC) and 64 of the Chinese CPC: both provide that it belongs to the Parties to collect evidence. However, in France, whenever it is impossible, the Tribunal can request to collect the evidence itself.

This raises serious difficulties in environmental matters, although experts are available. In France, the bailiff (hybrid between a lawyer and a notary) is a legal professional mandated by the State to establish objective elements (material evidence and their legal consequences but no opinion, as opposed to an expert). This evidence has a probative value until it is proved to the contrary. In China, Judges can make this observation.

He then developed a case study, from the years 2000, where a pesticide was affecting the bees of an apiarist. The beekeeper proceeded to analyses to obtain scientific evidence: he followed the protocol to obtain samples of the dead bees and of the crops from the fields within the determined zone to establish the link between the damage and the pesticide (event giving rise to the damage, “fait générateur”). At that time, the laboratory was unable to prove the link of causality because of the state of science.

The damage itself can also be difficult to prove (e.g. long-term or discrete pollution like the 2,5 pm).

The 2016 law helps experts to reconstitute both the initial state and post-damage state to prove the extent of the impact. The decree implementing the law (3 May 2017) establishes the French Agency for Biodiversity, in relation with the Museum of Natural History as well as an inventory program of the national territory (cartography, reference standards, etc.).

WANG Tianying, Prosecutor of the Supreme Prosecution

She presented the public interest litigation and proposed revisions based on the rich jurisprudence derived from cases led in the thirteen pilot-provinces (600 decisions out of 1100 cases, the others are pending)

Judges have systematically given judgements in favour of the prosecution.

Case study:

- In Canton, the municipal authority did not proceed to the EIA of the soil in a valley where a landfill was built. The Prosecution required from the Administration to take measures: they raised a cement wall but did not operate a proper waste treatment. The Prosecution initiated a public interest action and the judge confirmed the law violation and obligation for the administration to remedy to the pollution. The administration finally operated a decontamination of the soil.

- Another case concerned a paper-mill on a river where the Prosecution intervened to back up accredited NGOs. The damage was difficult to evaluate: three experts were hired to quantify the compensation of the loss and rehabilitation of the river functions. The Judge established a fine four times higher than the real loss and created a special fund where the money will be deposited to manage environmental damages.

WU Xioyu, Associate of the DEHENG LAW OFFICE in Jinan

He also presented several case studies:

- In 2009, they assisted a case related to air pollution: the first trial where a NGO was recognized as a claimant. They used an innovative method by proposing alternatives.

- Another case related to the construction of a highway. The decision was taken into account by other projects of highway construction.

- One case, related to the pollution of a river due to pig farming, enabled to raise to level of pollution of the river from 5 to 3.

- Finally, they had the Judge recognized that State enterprises should also take into account the public interest!

He then drew reflexions from these experiences:

- Reparation must guarantee ecological security (by requiring the cessation of the polluting activity)

- Since a 2016 decision of the Supreme Court, the punitive fine follows a grid of ten criteria based on the evaluation of the prejudice on the environments

- A contradiction exists between procedures: NGO can be claimant but usually are unable to pay for the emergency measures so the Court or the State can advance the expenses but the text is not clear

- The decisions could be more deterrent thanks to a control of the effective application of a decision

- The burden of proof should be reversed from the claimant to the defender

- The lack of traceability in waste treatment and rejection of pollution in the environment prevents the effective reduction of the pollution upstream of the reparation

Comments: In China, the limitation is usually of 2 years, 3 years in environmental matters, but starts at the commission of the infringement (unlike France, from the moment were the facts are or should have been known) with a deadline period of 20 years starting from the fact and not from the entry into force of the law.

Questions:

- What are the rules and modalities of the funds of ecological reparation in France and China? In China, these public interest funds are managed by the local authorities, jurisdictions or governments depending on the provinces, given the experimental nature of these developments. In France, no such fund exists.

- How can we evaluate the ecological prejudice if the damaged asset (e.g. a polluted river) naturally restores after a short period of time? The prejudice should be determined according to the duration of the pollution, even if it is temporary. Moreover, the full natural restoration is debatable and would still require an expertise.

- Comments of Yann Aguila (clubdesjuristes.com): The proposition of the creation of a fund had been submitted in the 2016 Law but was left aside. In France, the Prosecution does not have a role of reparation, only a punitive function (criminal law): How recent is this role of the Prosecution in China? It is very recent, but after two years of successful experimentation, it is to be put in place.

Plenary Session

Paris-Pekin: What Challenges for our Metropoles? (Facilitator: BERTON Matthieu, Attaché of Cooperation in the Environment Sector of the French Embassy in China)

Paris and Pekin have old relationships as demonstrated by the Memorandum of Understanding between the two land use planning institutes to develop cooperation and find mutual sources of inspiration in order to innovate and reach the targets set to limit the temperature rise and adapt to the effects of climate change.

MA Liangwei, Deputy General Director of the Institute of Planning and Design of Pekin

He presented an overview of Pekin urban plans: 62% are mountain zone, 20 million inhabitants, 631 kms of metro and tramway lanes. By 2035, they plan 2500 kms of public transportation lanes and 12,5% of bike transportation (by creating bike lanes) to remedy traffic jam. It will also remedy to air pollution, which 30% is due to vehicles. Beijing Airport is the second largest airport in the world, they are planning on building a new one expected to be the largest in the world, notably to welcome the Winter Olympic Games in 2022.

He denounced the “metropolitan illness”: real-estate price explosion, traffic jam, air pollution, etc.

To heal this illness, China needs to change its mode of development thanks to technological innovation (construction of the Beijing Silicon Valley, the City of Sciences to gather high-technology enterprises and other activities like the construction of habitable spaceship vessels, modules, etc.). China also needs to ameliorate the access to health and sport to improve the quality of life and public health.

He recalls that Beijing is a historical city rich of cultural traditions (for 3000 years, as opposed to New-York or Sydney). In order to limit the urban expansion, they intend to create a multipolar metropole with the construction of two secondary cities: Tongzhu et Xiong'an to relocate the capital functions (such as governmental departments, hospitals, universities and state enterprises). This ecological development implies the creation of a line of control and a frontier-line to preserve the biodiversity of the mountains. It will also require replacing coal by natural gas and creating one and half million of housing including public housing.

He also develops the initiatives taken to relieve Beijing: three green corridors representing 300 kms of green ways (75% of the first one has been finalized after solving expropriation issues), five air corridors (allowing winds to circulate in the city by reducing the height of the buildings), and a “blue network” of rivers to contain the desertification problems. The historical neighborhood of Beijing will be preserved by extending the north-south axis up to 88,8 kms, from the mountain range to the airport (as opposed to 10kms in Paris) and the east-west axis up to the great wall. He concluded by mentioning the transformation of steel industry area into cultural and economic quarters and the destruction of the hutong to build the Franco-Chinese project of the white pagoda park.

HUYBRECHTS Eric

He provided an overview of the challenges in the Parisian metropolis/Ile-de-France region: 12 million inhabitants, 12000 km2 of plain (against 6000 in Beijing), 30% of the French GNP. Because it is the second centre for international enterprises (after Tokyo), Paris must guarantee the quality of life to ensure its attractiveness for executives. It also has the largest concentration of researchers in the world.

Paris has the densest transportation network and is also victim of the “metropolitan illness”. To overcome these challenges, the authorities have organized debates with the local population to identify the problems (forums, participative working groups, etc.). Three major issues were raised: 1) ecological and social transition, 2) environmental changes, 3) mobility.

He asserted that the uncertain nature of the future force us to imagine hypothesis and scenario over time. By 2030, one million of housing should be built and 28,000 jobs created per year. The Institute is working towards making Paris even more compact to limit the urban expansion, through policies of “centers pluralization”. The space project is centered on adaptability to climate change.

Out of 1600 project, one of the main project is the construction of the “Paris express”, a ring train lane and seventy new stations around the city to facilitate the life of people living and working in the suburbs. Others comprise ecological corridor between the forests, the use of the Seine river to create ecological linkage. The Blueprint applies to the 300 communal blueprints (retrievable in one document), and is monitored regularly.

LEVY Frederic, Associate Attorney DS AVOCATS, in charge of the Real Estate Pole

He addressed the creation of new legal instruments to support urban transformations and notably, to combat industrial and tertiary wasteland (abandonment of offices because of teleworking etc.).

We need to find new uses to these neglected spaces. The creation of a legal status to “wasteland” is complex because of their variable geometry. For instance, French law has developed a tax on vacant office.

French Law has long limited the floor area ratio (“coefficient d'occupation des sols”) to limit the heights of the building. It has recently extended the ratio, allowing the construction of higher building, to reduce the urban expansion.

Toward a Global Pact for the Environment? (Facilitator: ZHOU Qian, Chief of the Bureau in charge of the Negotiations on Climate Change at the Ministry of Foreign Affairs)

AGUILA Yann, Attorney, President of the Commission Environment of the Club des Juristes

About a hundred experts from forty nationalities gathered in last June, in Paris, under L. Fabius' leadership.

- Origin: The need for international environmental norms is even more significant at the international level than at the national level as environment policies raise transboundary issues and affect the humanity as a whole, requiring a collective work. The paradox is that despite very positive progress (e.g. Paris Agreements), there are alarming signals as to the state of the planet and that of the international mobilization (e.g. USA). This text intends to comprise all environmental issues to remedy to the lack of coherence of the existing sectorial conventions, and to give legal force to the general, reasonable, principles that are object of consensus (as opposed to Declarations like Rio...)

- Content: Overview of the Principles (some are pre-existing and the Pact confers them a legal force, others are new). He raises a powerful point: the two first articles are correlative and complementary right and duty, equally balanced, recalling the relationship between human and nature.

- Impact: These principles are very broad but this draft is just a starting point and implies that States transpose the principles into domestic law. The draft creates new dynamics to reinforce the domestic legal frameworks for more protective legislation.

Comments: The Pact plays a fundamental role for international cooperation in environmental matters.

Qin Tianbao, Law Professor and President in China of the organization French China Environment

After the theoretical approach of Pr. Aguila, Pr. Qin presented the practical perspective.

- The complex context of IEL: The international community reached a consensus on environmental matters. The field has evolved from inexistent, to spare and we now see a convergence of the interests and a multiplication of structures: more and more environmental law organizations, at a higher level, with a diversification of non-state actors. IEL is at a teenage stage and still shows gaps: there is no complete mechanism at the international level and the texts are not structured enough yet, or whenever they are, they do not legal force. Finally, there is no international or supra-national competent instance to decide on environmental issues, and no pressure mechanisms to prevent States from withdrawing from MEAs: it is still difficult to overcome the national interests.

- Progress made in the drafting: The ideal would be to consider an approach hybrid between top-down and bottom-up. The existing texts are incomplete or reductionist. We are lacking five-year programs at the international level and need an integrated global initiative.

- Major challenges: The accent has been put on promoting transparency, fairness and procedural justice in the drafting of the text, as far as the authors and instances involved are concerned (50% civil society/ 50% Government). The text is only a draft and in elaborating the text, the Agency of environmental planning should participate and the developing countries be well represented to ensure that their interests are fully taken into consideration. The “green room proceeding” must be avoided as experts are usually cut off from the reality.

- Major objectives and expectancies: Promoting sustainable development, balancing State sovereignty with global public interest, ensuring real equity (Principle of common but different responsibilities), integrating precaution and polluter-pay principles as the philosophical basis of the text, and finally, ensuring the control of the integration and the execution of the measures at the planetary level through concrete and precise stipulations.

Synthesis and Closure

Facilitator: MANWARING Anthony, Legal Counsellor at the French Embassy in China

MARTIN Gilles, Emeritus Professor at the University of Nice Sophia Antiopolis

He concluded by highlighting four key-words:

- Innovation: expressing the novelty of both the problems and solutions

- Complexity: both impacts and challenges (efficiency and legal security) and of the instruments (reparation and compensation)

- Conciliation: expressing the link between ecology and economy

- Principles: necessary to remedy technical difficulties and to ensure that environmental law is not a law for engineers but also bear values

SUN Youhai, Vice-President of the Commission on Environmental Law of the China Law Society

He congratulated the Sino-French legal cooperation that had many positive outcomes within a year-and-half: the two-pioneer countries have had the courage to limit the regressions of the US. The topic of the conference was very clear: environmental problems are caused by human activity and especially urban development. He also congratulated the initiative of the Pact, despite the divergence of opinions: it will not be a magical remedy to the problem of global pollution but will play a role. He expressed his wish to create a multilateral partnership to promote the legislative work in France and China and thanked the new generation of researchers for their will to ensure the longevity of the Franco-Chinese friendship in the combat against climate change.

Finally, he quoted President Xi who asserted, during the 18th Congress: “We need mountains of gold and silver but also green mountains and a blue sky, which the latest should come before the first”

BELANGER Laure, General Director of the Foundation for Continental Law

She recalled that both France and China derive from civil law traditions. The diversity of the continental law constitutes its main strength (as far as the language, the geography and the people are concerned).

She also congratulated the method followed in the conference, allowing a representation and synergy between professional, institutional and academic actors. This second meeting on environmental law and fourth edition of the Franco-Chinese legal cooperation is in line with the letter of intention signed between the two countries in 2010. We should now make sure these meetings keep taking place over time.

CI Dangzhuoga, Deputy Director of the Department of Politics, Laws and Regulations of the Ministry for the Protection of the Environment

These exchanges are important points of reference in developing environmental legislation. The acceleration of the legislation in China must now result in the establishment of liability mechanisms and sanctions.