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Refusing to Accept Punishment Decisions for Emitting Exhaust Gas During Production
[2020-06-05]

   Court: Shanghai Municipal Bureau of Ecology and Environment¡¯s Decisions Have Eligible Subject of Law Enforcement

On June 5, 2020, the Jinshan District People¡¯s Court of Shanghai (hereinafter referred to as the ¡°Shanghai Jinshan Court¡±) Environmental Resources Tribunal pronounced judgement on two administrative cases involving exhaust gas pollution of environmental resources. In both cases, the plaintiff company lacked factual basis and legal basis, so the first-instance judgment dismissed the plaintiff¡¯s lawsuit.

[Case Review]

In June 2019, some people reported that a certain company was processing plastics, which produced waste gas and affected the lives of surrounding residents, and the company had not gone through the environmental impact assessment procedures and had no facilities to treat the pollution.

Subsequently, the law enforcement personnel of the Shanghai Municipal Bureau of Ecology and Environment inspected the company and found that Company Y was engaged in the production of plastic products. The company¡¯s suspected illegal activities were filed and investigated. The company¡¯s legal representative admitted that Company Y was engaged in the production of mobile phone plastic accessories. It began to install equipment in mid-May 2019 and put into production in the same month, with a production output of about 10,000. A small amount of waste gas was generated during the production process, but no waste gas collection and treatment facilities were provided, and the environmental impact assessment report form of the construction project has not been submitted to the environmental protection department for approval.

On August 28 and September 19 of the same year, the law enforcement personnel of the Shanghai Municipal Bureau of Ecology and Environment inspected Company Y and found that it ceased production. On September 23, the Shanghai Municipal Bureau of Ecology and Environment made two ¡°Administrative Penalty Decisions,¡± holding that Company Y failed to submit the environmental impact assessment report form of the construction project for approval in accordance with the law and started construction without permission, which violated the Law of the People¡¯s Republic of China on Environmental Impact Assessment, and a fine of RMB 14,000 should be paid. At the same time, when the required environmental protection facilities for supporting construction were not completed, Company Y construction project began to put into production and emitted pollutants, which violated the relevant regulations of Regulations on the Administration of Construction Project Environmental Protection, and a fine of RMB 350,000 should be paid. The Company Y refused to accept the aforementioned two administrative punishment decisions, and filed administrative lawsuits against the Shanghai Jinshan Court.

The Company Y argued that it accepted the entrustment of Company N to cooperate with the investigation and punishment of the Shanghai Municipal Bureau of Ecology and Environment, and had leased the plant to Company N, the actual operator, so it was not an eligible subject.

The Shanghai Municipal Bureau of Ecology and Environment argued that: throughout the law enforcement process, Company Y has always acknowledged its production and operation. The Shanghai Municipal Bureau of Ecology and Environment has fulfilled its duty of care and requested Company Y to provide materials related to Company N in the appointment notice, but Company Y failed to provide it. The Company Y was an eligible subject to be punished.

During the trial, the court found that Company Y¡¯s statement in the lawsuit was inconsistent with that in the transcript made in the enforcement process of the Shanghai Municipal Bureau of Ecology and Environment. The Company Y stated in the lawsuit that it was acting for company N to deal with punishment matters and violated the estoppel rules (The parties shall be responsible for the various expressions they made in words when conducting civil proceedings. No remarks or actions that negate prior words may be made at will.) Moreover, the person in charge of Company N stated that they were unclear about the matter before the punishment was made and that Company Y had not been entrusted. Therefore, the claim of Company Y lacked evidence and was contrary to common sense.

[Case Study]

After trial, the Shanghai Jinshan Court held that the Shanghai Municipal Bureau of Ecology and Environment, as the competent department of environmental protection, implements overall supervision and management of environmental protection work in its administrative area, and has the authority to supervise and manage the environmental protection work within its jurisdiction according to law. The Shanghai Municipal Bureau of Ecology and Environment, after discovering the illegal clues in this case, carried out the procedures of filing, investigation, hearing, decision, and service according to law. Before making an administrative penalty decision, it informed Company Y of the facts, reasons and basis of the administrative penalty, and heard Company Y¡¯s statement of defense. Its enforcement procedures were in compliance with the law. As for the administrative penalty decisions made by the Shanghai Municipal Bureau of Ecology and Environment, the subject of law enforcement was eligible, the facts clear, the procedure legal, the applicable laws and regulations correct, and the administrative penalty reasonable. The Company Y¡¯s lawsuit request lacked factual and legal basis, and the court cannot support it. The court of first instance dismissed Company Y¡¯s lawsuit.

[Relevant Laws]

The Administrative Litigation Law of the People¡¯s Republic of China

Article 69 Where the alleged administrative action has been taken under statutory procedures with conclusive evidence and correct application of laws and regulations, or the grounds for the plaintiff¡¯s application for the defendant to perform its statutory duties and responsibilities or make payment are unfounded, the people¡¯s court shall enter a judgment to dismiss the plaintiff¡¯s claims.

(Authors: Lu Yebo, Zhou Hui, and Liu Jingyun of Shanghai Jinshan Court)

 

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