Skip to content

Cases of Citizens Defending Environmental Rights: Noise Pollution from a Local Construction Company

This post is also available in: Chinese (Simplified)


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.

This week’s case involves citizens harmed by noise pollution from a local construction company. After the citizens filed civil litigation in the district court, they lost the case and appealed the case to higher courts. With help from CLAPV, the citizens presented a strong case; the higher courts reviewed the facts determined that significant administrative procedural issues clouded the lower court’s judgment, earning these citizens a retrial.

View the full case and commentary after the break.

Click here to view previous cases.

Noise Pollution from a Construction Company
Author: Huo Pengyan Source: Gansu Economic Daily Date: 2007.08.08
Translation by Owen Fletcher

Case Description:
An engineering and construction company in Beijing started operating a concrete mixing plant in 1986. After the plant’s expansion in 1995, its wall reached to just several meters from the homes of four victims in a neighboring village. This plant had operated continuously, day and night, ever since its opening, and it produced substantial noise, vibrations and dust that severely affected the four villagers’ regular schedules and productivity. It also caused varying degrees of damage to the four villagers’ homes.

The four villagers had previously requested the district EPB to conduct tests and appraisal of the noise and vibrations produced by the factory, but the EPB concluded that neither exceeded allowed levels. The four villagers later filed civil litigation in the district People’s Court with the defendant as the construction and engineering company that owned the mixing plant. They requested that the court order the defendant to stop its infringements and pay reparations for damages. As part of the hearing process, the court sent the “Chaoyang District Housing Safety Appraisal Station” to determine whether the victims’ homes were endangered by the noise and vibrations and to assess the degree of damage. But the court did not publicly present the assessment’s conclusions as evidence during the hearing, and this evidence therefore was not subject to cross-inspection. The court nonetheless held, based on the assessment’s conclusions, that the mixing plant’s noise did cause harm to the plaintiffs’ homes. It ordered the defendant to compensate the plaintiffs for home maintenance costs, but it rejected the plaintiffs’ demand to order the defendant to “stop its infringements” on the grounds that it “did not fall under the jurisdiction of civil affairs”. After the first hearing, the plaintiffs filed an appeal on the belief that the court’s rejection of their request for the plant to “stop its infringements” did not have a legal basis. The defendant also filed an appeal to the next-higher court on the grounds that it should not have to take civil responsibility for the plaintiffs. The appeals court agreed that applicable procedurural problems existed in the handling by the court of first instance and sent the case back for retrial. At the same time, a victim named Mr. Song requested help from the Center for Legal Assistance to Pollution Victims at the China University of Political Science and Law. The center gave him relevant legal assistance, including submitting a “Request for Appraisal” to the court of retrial on behalf of the victims. The center also participated in the retrial as the plaintiffs’ entrusted representative, and ultimately spurred the plaintiffs and defendant to reach a settlement agreement in the retrial “with facts as the bases and the law as the yardstick”.

Expert Analysis:
This is a typical case of a dispute over environmental noise pollution. Viewing this case broadly, the writer believes analysis in the following areas is appropriate:

1) The applicable procedural problems in the court of first instance
The court of first instance entrusted the “Chaoyang District Housing Safety Appraisal Station” with responsibility to determine whether the victims’ homes were endangered by the noise and vibrations and to assess the degree of damage. But the assessment’s conclusions were not subject to the procedures of evidentiary presentation and cross-examination. This violated relevant regulations in the Civil Procedure Law. According to the Civil Procedure Law, the Opinion of the Supreme People’s Court on Several Problems in the Applicability of the Civil Procedure Law, and the Provisions of the Supreme People’s Court on Evidence in Civil Procedures, evidence should be presented and cross-examined by concerned parties in court. Evidence that does not undergo cross-examination cannot be used as a basis for determining the facts of a case. The appeals court repealed the ruling of the court of first instance and sent the case for retrial based on this regulation.

2) Problems that existed in the ruling of the court of first instance
The court of first instance was biased in rejecting the plaintiffs’ request for the defendant to stop its infringements. Article 61 of the Environmental Noise Pollution Prevention and Control Law states: “Businesses or individuals that suffer endangerment from environmental noise pollution have the right to request that the perpetrator remove the source of danger; in cases where damages exist, compensation shall be paid in accordance with the law.” Articles 142 and 134 of the General Principles of the Civil Law also make relevant stipulations. It is apparent that, according to legal stipulations, the court of first instance in this case should have drawn on the law to order the defendant to end its infringements or to take measures to prevent further damage to the plaintiffs.

3) Problems to note in the determination of cause and effect in this case
According to Article 74 of the Opinion of the Supreme People’s Court on Several Problems in the Applicability of the Civil Procedure Law, concerned parties are responsible for providing evidence to support claims they make about themselves during litigation. But in environmental pollution litigation, the defendant is responsible to present evidence against claims made by plaintiffs about infringements on their rights if the defendant denies them. Also, the third clause in Article 4 of the Provisions of the Supreme People’s Court on Evidence in Civil Procedures stipulates that “in damages claims litigation arising from environmental pollution, the perpetrator has responsibility to provide evidence concerning legal exemption from liability and disproving the existence of a causal relationship between its actions and the damages.” This should make apparent that Chinese law has adopted a principle of “inverted evidentiary responsibility” in environmental tort litigation. Namely, in environmental tort litigation the plaintiff needs only to prove that the polluting business has engaged in pollution and the fact that damage exists. The defendant must present evidence regarding whether the damages were caused by its emissions and whether it is legally exempt from liability.
Therefore, in this case the mixing plant had to prove that its pollution had no causal relationship with the damages suffered by the victims. If the plant could not prove this, it could only accept the unfavorable result of the litigation.

Using litigation to protect rights has the problems of high costs, the long time required, and the difficulty of furnishing evidence. This only strengthens the writer’s favor for rights protection through applications for administrative mediation. According to Article 41 of the Environmental Protection Law, concerned parties can request the EPB or other departments legally given monitoring and supervision duties to arbitrate and resolve disputes over liability for compensation and indemnity. This kind of “resolution” lies on the foundation of clarifying the facts and determining liability; it uses arbitration to create agreements and resolve disputes. It is neither an administrative order nor an administrative decision with strong binding power. It is rather a kind of arbitrational activity. If the concerned parties are not satisfied with this kind of administrative decision regarding resolution, either party can file civil litigation with the other party as the defendant. Compared to environmental civil litigation, this method of resolution is fast and economical. Moreover, all levels of administrative organs for environmental protection are extremely familiar with the environmental pollution problems in their districts. They also have specialized technical personnel and knowledge. EPBs therefore can promptly become involved, clarify aspects of a case, and find a solution at the request of parties concerned. It is precisely for these reasons that the writer believes administrative mediation is a good channel for resolving environmental disputes.

Author: Huo Pengyan Source: Gansu Economic Daily Date: 2007.08.08

Case Description:
An engineering and construction company in Beijing started operating a concrete mixing plant in 1986. After the plant’s expansion in 1995, its wall reached to just several meters from the homes of four victims in a neighboring village. This plant had operated continuously, day and night, ever since its opening, and it produced substantial noise, vibrations and dust that severely affected the four villagers’ regular schedules and productivity. It also caused varying degrees of damage to the four villagers’ homes.

The four villagers had previously requested the district EPB to conduct tests and appraisal of the noise and vibrations produced by the factory, but the EPB concluded that neither exceeded allowed levels. The four villagers later filed civil litigation in the district People’s Court with the defendant as the construction and engineering company that owned the mixing plant. They requested that the court order the defendant to stop its infringements and pay reparations for damages. As part of the hearing process, the court sent the “Chaoyang District Housing Safety Appraisal Station” to determine whether the victims’ homes were endangered by the noise and vibrations and to assess the degree of damage. But the court did not publicly present the assessment’s conclusions as evidence during the hearing, and this evidence therefore was not subject to cross-inspection. The court nonetheless held, based on the assessment’s conclusions, that the mixing plant’s noise did cause harm to the plaintiffs’ homes. It ordered the defendant to compensate the plaintiffs for home maintenance costs, but it rejected the plaintiffs’ demand to order the defendant to “stop its infringements” on the grounds that it “did not fall under the jurisdiction of civil affairs”. After the first hearing, the plaintiffs filed an appeal on the belief that the court’s rejection of their request for the plant to “stop its infringements” did not have a legal basis. The defendant also filed an appeal to the next-higher court on the grounds that it should not have to take civil responsibility for the plaintiffs. The appeals court agreed that applicable procedurural problems existed in the handling by the court of first instance and sent the case back for retrial. At the same time, a victim named Mr. Song requested help from the Center for Legal Assistance to Pollution Victims at the China University of Political Science and Law. The center gave him relevant legal assistance, including submitting a “Request for Appraisal” to the court of retrial on behalf of the victims. The center also participated in the retrial as the plaintiffs’ entrusted representative, and ultimately spurred the plaintiffs and defendant to reach a settlement agreement in the retrial “with facts as the bases and the law as the yardstick”.

Expert Analysis:
This is a typical case of a dispute over environmental noise pollution. Viewing this case broadly, the writer believes analysis in the following areas is appropriate:

1) The applicable procedural problems in the court of first instance
The court of first instance entrusted the “Chaoyang District Housing Safety Appraisal Station” with responsibility to determine whether the victims’ homes were endangered by the noise and vibrations and to assess the degree of damage. But the assessment’s conclusions were not subject to the procedures of evidentiary presentation and cross-examination. This violated relevant regulations in the Civil Procedure Law. According to the Civil Procedure Law, the Opinion of the Supreme People’s Court on Several Problems in the Applicability of the Civil Procedure Law, and the Provisions of the Supreme People’s Court on Evidence in Civil Procedures, evidence should be presented and cross-examined by concerned parties in court. Evidence that does not undergo cross-examination cannot be used as a basis for determining the facts of a case. The appeals court repealed the ruling of the court of first instance and sent the case for retrial based on this regulation.

2) Problems that existed in the ruling of the court of first instance
The court of first instance was biased in rejecting the plaintiffs’ request for the defendant to stop its infringements. Article 61 of the Environmental Noise Pollution Prevention and Control Law states: “Businesses or individuals that suffer endangerment from environmental noise pollution have the right to request that the perpetrator remove the source of danger; in cases where damages exist, compensation shall be paid in accordance with the law.” Articles 142 and 134 of the General Principles of the Civil Law also make relevant stipulations. It is apparent that, according to legal stipulations, the court of first instance in this case should have drawn on the law to order the defendant to end its infringements or to take measures to prevent further damage to the plaintiffs.

3) Problems to note in the determination of cause and effect in this case
According to Article 74 of the Opinion of the Supreme People’s Court on Several Problems in the Applicability of the Civil Procedure Law, concerned parties are responsible for providing evidence to support claims they make about themselves during litigation. But in environmental pollution litigation, the defendant is responsible to present evidence against claims made by plaintiffs about infringements on their rights if the defendant denies them. Also, the third clause in Article 4 of the Provisions of the Supreme People’s Court on Evidence in Civil Procedures stipulates that “in damages claims litigation arising from environmental pollution, the perpetrator has responsibility to provide evidence concerning legal exemption from liability and disproving the existence of a causal relationship between its actions and the damages.” This should make apparent that Chinese law has adopted a principle of “inverted evidentiary responsibility” in environmental tort litigation. Namely, in environmental tort litigation the plaintiff needs only to prove that the polluting business has engaged in pollution and the fact that damage exists. The defendant must present evidence regarding whether the damages were caused by its emissions and whether it is legally exempt from liability.

Therefore, in this case the mixing plant had to prove that its pollution had no causal relationship with the damages suffered by the victims. If the plant could not prove this, it could only accept the unfavorable result of the litigation.

Using litigation to protect rights has the problems of high costs, the long time required, and the difficulty of furnishing evidence. This only strengthens the writer’s favor for rights protection through applications for administrative mediation. According to Article 41 of the Environmental Protection Law, concerned parties can request the EPB or other departments legally given monitoring and supervision duties to arbitrate and resolve disputes over liability for compensation and indemnity. This kind of “resolution” lies on the foundation of clarifying the facts and determining liability; it uses arbitration to create agreements and resolve disputes. It is neither an administrative order nor an administrative decision with strong binding power. It is rather a kind of arbitrational activity. If the concerned parties are not satisfied with this kind of administrative decision regarding resolution, either party can file civil litigation with the other party as the defendant. Compared to environmental civil litigation, this method of resolution is fast and economical. Moreover, all levels of administrative organs for environmental protection are extremely familiar with the environmental pollution problems in their districts. They also have specialized technical personnel and knowledge. EPBs therefore can promptly become involved, clarify aspects of a case, and find a solution at the request of parties concerned. It is precisely for these reasons that the writer believes administrative mediation is a good channel for resolving environmental disputes.

This entry was posted in CLAPV Cases and tagged , , , , , , , . Bookmark the permalink.

Post a Comment

Leave a Reply

All comments offered in the spirit of civil conversation are welcome! Commercial spam, obscenity and other rude behavior are not, and will be removed. We are also required to remove any express or implied statement endorsing or opposing any political party or candidate for political office. Comments require a valid email address and typically remain open for 10 days. Please sign comments with your real name (first names are fine).

Recent Comments

  • Beijing Daze, Missed your comment. Apologies. The Li-Ion batteries are goin... read »
  • Hey Alex, Great write up! I'm fixing to get one of those Turtle Kings in the... read »
  • Nice!... read »
  • These polutions will have major negative impact on China's future budget in t... read »