The slogan “lucid waters and lush mountains are invaluable assets” seemed omnipresent in China in 2015, highlighting a crucial part of Xi Jinping Thought on Ecological Civilization. Yet this powerful formulation proved vague in execution, giving local policymakers new headaches on how to strike the balance between development and conservation in making new laws. China’s judiciary faced an even stickier problem. How do you try such cases in the absence of concrete legal text and sufficient legal precedents? 

For instance, how should a judge decide if the construction of a hydropower plant worth trillions of dollars is threatening an endangered species? A Chinese court faced this dilemma when the Chinese NGO Friends of Nature brought a public interest lawsuit in 2017 to halt a new dam on a stretch of the Red River in Yunnan Province. They asserted the dam would destroy the last stand of green peafowls — an IUCN Red List endangered species.

Friends of Nature (FON) won the case, and the hydropower plant construction was shut down. As China’s first preventive environmental public interest litigation (EPIL), the green peafowl case will provide important guidance for Chinese judges to tackle future litigation, especially cases filed before actual damage has occurred. This landmark case also may open the door for more proactive environmental public interest legislation, ensuring better legal safeguard of biodiversity before actual damage occurs.

China’s oldest green group builds the case

FON is one of the oldest environmental NGOs in China, and it was no surprise to find it representing the interests of the green peafowls. The peafowl population in China has dropped to several hundred. Prior to filing EPIL litigation together with other domestic NGOs, FON successfully raised public attention to the threats facing these stunning birds.

The organization’s ceaseless advocacy spurred an internal negotiation held by the Ministry of Environmental Protection (today the Ministry of Ecology and Environment) with dam builders, authorities, and NGOs. This process yielded only a temporary halt of the construction of the power plant, however, and did not reach a final consensus on whether the project would be revived in the future.

China’s revisions to its Environmental Protection Law in 2015 officially permitted environmental NGOs to file EPIL cases. That same year, the Supreme People’s Court (SPC) also published a judicial guideline to instruct public interest trials, further allowing eligible organizations to file suit against any conduct posing a “major risk” of damaging the public interest.

Although preventive EPILs have been legally permitted in China since 2015, almost all EPIL suits were filed only after actual environmental pollution or ecological damage had taken place. Local judges also scratched their heads when construing the question of major risks, as the range and degree of determining them was left to their complete discretion. This process bears a striking resemblance to what American judges faced 40 years ago, when they puzzled over whether the impoundment area of Tellico Dam constituted a “critical habitat” for snail darters in Tennessee Valley Authority v. Hill (1978). 

The illegal dam’s rise and fall 

The Red River Dam was initially approved by all upper levels of government in 2008, at a time when China was pivoting towards a resource-intensive economic model to eradicate poverty in the western regions. To make way for the dam, local authorities allowed the construction to proceed in the peafowl’s nature reserve.

In 2012, however, policy winds changed swiftly. The new Xi Administration emphasized a green economy and better environmental stewardship. New dam construction was strictly forbidden in ecological protection areas, which strengthened FON’s peafowl case. FON also discovered the Red River Dam’s environmental impact assessment report used very outdated data that did not provide an accurate number of endangered species in the nature reserve. This gave the NGO an even more solid basis to argue for the illegality of the dam’s construction.

Between 2017 and 2020, the peafowl case was tried by two different levels of local courts in Yunnan Province. Both ruled in favor of suspending the project. Yet neither court gave explicit directions on how to enforce its decisions, and FON appealed the case to the Supreme People’s Court (SPC) in 2021.

The SPC followed the lower courts in suspending the dam project and dismissed FON’s appeal. However, it implied a strong signal in its final judgment that the Yunnan provincial government needed to figure out how to remove it. The provincial government later quietly passed a new Ecological Conservation Redline Policy. This new policy determined that the dam project was illegally sited inside designated local ecological sensitive areas and directed a halt to investment and eventual demolition of the dam in coming years. 

The FON’s EPIL case catalyzed a compromise between China’s judicial and executive powers. To avoid passive adjudication, the judiciary refrained from intruding upon the authority of the executive branch by merely declaring the project illegal. The executive branch responded implicitly by publishing a targeted policy to remedy its historically right, but now flawed decision.

New legal battles for biodiversity protection

The green peafowl case inspired other Chinese NGOs to review another preventive environmental public interest litigation to protect an IUCN Red List endangered plant. This case ultimately won the support from local courts as well. However, a more profound impact of the peafowl case was the establishment of a preventive environmental public interest litigation system in China with principles reflected in subsequent legislation and policies.

For instance, in 2020, President Xi publicly referred to the need to strengthen the preventive legal system. Soon after, the Human Rights Action Plan of China (2021-2025) explicitly addressed the mission of exploring best practices of preventive environmental public interest litigation. The peafowl case thus was not just a one-off PIL win, but instead represents a long-term legislative and policy trend during Xi’s Administration. Selected by the Convention on Biodiversity COP15 as a model example during its first session in 2020, the green peafowl case demonstrates China’s concrete stride towards safeguarding biodiversity to the world.

It also is notable that in the wake of President Xi’s 2060 decarbonization commitment, central authorities have devised the 14th Five-year Plan for Renewable Energy Development. This plan aims to establish regional energy hubs in resource-abundant areas in China with a primary focus on wind and solar energy.

Considering the overlap between vital ecological sensitive areas and wind-abundant regions, it seems that collisions between renewable energy development and ecological conservation may be just around the corner. The ruling in the green peafowl case may have already contributed to construction restrictions to prevent the occurrence of another green peafowl case in ecological sensitive areas. But these new projects may be a test of the balance between ecology and development, and EPILs may have a future role to play in tipping the scales.