Recently, a local Chinese court ruled in favour of Yunnan’s green peacocks, ordering an “immediate suspension of works” at the Jiasa River level one hydropower station. Reports bearing headlines such as “500 Green Peacocks Grind Billion-RMB Hydropower Project to a Halt” immediately flooded the media. Dissatisfied with the ruling, both the plaintiff and defendant of the case filed for an appeal.
The biggest question is, can humans win the lawsuit fought on behalf of the green peacock, a creature of nature?
After investigations, it is likely that there are less than 500 green peacocks left in the country, with Shuangbai county and Xinping county home to over 60% of them.
The plaintiff and defendant of the case are Friends of Nature (自然之友) — a well-known Chinese environmental non-government organisation, and Xinping Company — the company in charge of building the hydropower station, respectively.
As soon as construction works began, Friends of Nature filed the country’s first preventive public interest litigation concerning wildlife protection against it. A “preventive public interest litigation” refers to the right to take legal action against projects or actions that may negatively affect the environment in order to prevent the actual occurrence of environmental damage.
Friends of Nature is against the hydropower project because its construction would destroy the green peacocks’ main habitats in the two adjacent counties of Shuangbai in Yunnan’s Chuxiong Yi autonomous prefecture, and Xinping in Yunnan’s Yuxi city (map). After investigations, it is likely that there are less than 500 green peacocks left in the country, with Shuangbai county and Xinping county home to over 60% of them.
At the same time, additional evidence from the lawsuit highlighted that the Jiasa River level one hydropower station would have devastating impacts on one of the country’s rare plants accorded first-grade state protection. This is because the dam’s reservoir would submerge large portions of the Shiyang (石羊江) and Lvzhi Rivers (绿汁江) located at the junction of Xinping and Shuangbai. The lands around these rivers not only include the main habitats of green peacocks but also the areas where the largest concentration of Cycas chenii in China is found (mainly along the Lvzhi River basin).
The court ruled that Friends of Nature had provided sufficient evidence to prove that the Jiasa River level one hydropower station would pose “a significant risk” to the green peacocks’ habitat and the Cycas chenii’s growth. It ordered an immediate suspension of works at the hydropower station.
Yet, from an economic perspective, it seems that the Jiasa River level one hydropower station has more weight on the scale.
However, this verdict was just a tie between both parties. None were satisfied and both have since appealed. Who would win in the end remains a question. Yet, from an economic perspective, it seems that the Jiasa River level one hydropower station carries more weight — its total value stands at roughly 3.7 billion RMB, not including the economic benefits and employment opportunities that it would bring to the table after its establishment. As for the 500 green peacocks and over thousands of the Cycas chenii affected, surely their value would never exceed that of the hydropower station?
Small steps, but breaking ground
Thus, if the plaintiff wants an overall victory, it needs to beef up its arguments on the basis of science, and show proof that the green peacocks and Cycas chenii plants do have an invaluable role in the ecological chain and ecosystem. Only then would this lawsuit filed by Friends of Nature on behalf of green peacocks and Cycas chenii — both nature’s creatures — stand a chance in being the ultimate victors of the case. However, the current tie is already an improvement in itself.
On 7 December 2005, a group of three professors and three graduate students of Peking University Law School filed the country’s first environmental public interest litigation involving natural objects — sturgeons (鲟鳇鱼), Songhua River (松花江), and Sun Island (太阳岛) — as co-plaintiffs to the Heilongjiang Higher People’s Court.
The litigation was filed against the Jilin petrochemical plant that had exploded and released 100 tons of benzene into the Songhua River. They demanded a compensation of ten billion RMB from the plant to set up a Songhua River pollution restoration fund that helps restore ecological equilibrium in the area and safeguard the sturgeon’s right of survival, Songhua River and Sun Island’s right of having a clean environment, and the people’s right to travel and enjoy beautiful scenery.
However, the supervising judge of the Heilongjiang court rejected the litigation saying that it had nothing to do with the plaintiffs and that such cases were currently not within the scope of the People’s Court. The judge also said that the State Council had the final say.
Even in the US where the proposition that nature’s creatures should enjoy the same rights as humans was first introduced, few cases of litigations fought on behalf of nature’s creatures were reported to have succeeded.
In the present, the lawsuit that Friends of Nature is fighting on behalf of the green peacocks and the Cycas chenii’s not only reinforces the mindset that nature’s creatures should enjoy the same rights as humans, but also illustrates that such litigation actions have made progress and are showing initial success.
Even so, the upcoming appeal of Friends of Nature’s litigation perhaps bodes more ill than well because the experiences and lessons from history have long been in plain sight. Even in the US where the proposition that nature’s creatures should enjoy the same rights as humans was first introduced, few cases of litigations fought on behalf of nature’s creatures were reported to have succeeded.
In 1973, the Americans discovered a type of slow-moving fish — the snail darter — in the Tennessee River. It is around three inches long and belongs to the family of Percidae, a species of small freshwater fish. It lived in the shallow shoals of the Little Tennessee River and was not found anywhere else. In 1975, the snail darter was added into the list of endangered species in the US, causing difficulties for the almost-completed Tellico Dam built by the Tennessee Valley Authority.
Environmental organisations filed a lawsuit against the dam’s completion based on Section 7 of the US’s Endangered Species Act, requesting that the completion of the US$116 million dam project be stopped. After intense court debates, the US Supreme Court ruled in favour of the fish.
However, the Tennessee River dam project filed an appeal and the US Congress amended the Endangered Species Act by including “flexibility” into its terms to overturn the court’s decision. This flexibility states that the protection of a species can be sacrificed should a conflict of interest arise between the protection of endangered species and vital economic interests. The argument was that a small freshwater fish should not take precedence over a multi-million-dollar dam. Besides, the dam’s construction also involved the livelihoods of 3000 people working there.
Eventually, the amendment to the Endangered Species Act was signed into law. According to the amendment, a committee consisting of seven high-ranking federal officials were given the authority to decide if the Tellico project can be exempted from the requirements of the Act. However, the committee voted in favour of the snail darter and unanimously voted for the halting of the construction of the Tellico Dam on 23 January 1979.
Former Representative John Duncan of Tennessee was furious at the result and decided to take another approach. On 18 June 1979 in an almost-empty House, Duncan presented a short additional provision to be added to the annual energy and water development bill and immediately called for its reading to be waived and a vote to be taken. Duncan’s amendment had exempted the Tellico Dam from the requirements of the Endangered Species Act. With regret, then US President Jimmy Carter signed the bill into law on 25 September 1979.
This implies that human interests would always have precedence over the interests of nature’s creatures should a conflict of interest arise between them.
In the end, the Tellico Dam was completed, and the mission to protect the snail darters failed. According to the Tellico Dam website, construction of the dam began in 1967 and was completed in 1979. This implies that human interests would always have precedence over the interests of nature’s creatures should a conflict of interest arise between them.
Would the fate of China’s green peacocks and Cycas chenii be the same as the US’s snail darters? From an economic and people-centred point of view, their fate is indeed worrying. However, there is another way in which neither party has to sacrifice: the Jiasa River level one hydropower station can be built while still protecting the green peacocks and Cycas chenii — by transplanting the latter to an area with a similar environment as their original habitats.
However, ecologists say that while the green peacocks can be transplanted, it would be difficult to uproot the Cycas chenii. It seems that a win-win situation cannot be achieved. For now, whether construction works at the hydropower station can be resumed depends on the decision of relevant administrative departments after the defendant has completed an environmental impact assessment as required by the Chinese Ministry of Ecology and Environment.
So then, the question remains: how should we protect the ecosystem?