Yunlin District Court, March 22, 2016. The third court hearing of Chang et al. (Taisi residents) v. five representative companies of the Sixth Naphtha petrochemical zone.
A panoramic view of the court: the defendants’ lawyers on the left and the plaintiffs’ lawyers on the right. In the first row of the audience were three plaintiffs who accompanied Brother Wu (a leader in organizing the plaintiffs’ group) and documentary filmmaker Hao-chung Chan (author of Shrouding the Clouds, about air pollution from the Sixth Naphtha cracker). The last row was occupied by FPG employees.
Defendant attorney Tsai feels very much at home in the courtroom, frequently leaving the seat assigned to the defendants to sit in the middle of the courtroom at the desk normally reserved for experts and the plaintiffs, translating to the judge in “plain Chinese”, i.e., oversimplifying and misleading the problem of causality between air pollutants and cancers.
The head of the plaintiffs’ lawyers, Att. Thomas Chan. After this hearing, in May 2016, he was invited to stand as the Deputy Minister of the Environmental Protection Administration (Taiwan EPA), a position he left in September 2018. In the meantime, he could not attend anymore court hearings and his younger colleagues had a harder time with the judge.
The fifth court hearing was a black Friday for the plaintiffs’ lawyers. The judge wanted the discussion to proceed from the first plaintiff and the first defendant, and so on, one after another. Although it is a strange way to approach problems of causality in a case of industrial pollution, the defendants’ lawyers were very happy with that.
Furthermore, the judge rejected the plaintiffs’ request to have Prof. Chan Chang Chuan (NTU College of Public Health) testify as an expert at the bar, despite the fact he had conducted a lot of excellent epidemiological research on the case. For the sake of neutrality, the judge prefered to ask two other experts, although they had not conducted research on the case.
Plaintiffs’ lawyer Shu-fang Huang discussed the huge amount of surveillance data on air pollution, which were falsified by Formosa Plastics, breaching the Air Pollution Control Act. This made the headlines the previous day, but the judge rejected the problem: “I don’t care about newspapers!”
I tried to adopt the judge’s position to imagine how he might appreciate defendant Att. Tsai’s translations of the debate in “plain Chinese”, the other lawyers and the audience behind: a few plaintiffs and environmental groups in the first row, including a foreigner (me), and FPG employees in the third row.
On the left, defendant Att. Chang argues that the plaintiffs must prove a reasonable probability that “substances” from the petrochemical zone cause cancer (the defendants do not use the words “air pollutants”). At least now, they do not argue that the plaintiffs should prove which substance from which company chimney is causing the plaintiffs’ cancers, as they asked for during the first hearings.
The judge seems to spend little time reading the documents provided by the lawyers. And most of the time, he adopts a rather passive attitude during the court hearings. Instead of inviting the plaintiffs into the court to explain their motivations for sueing the companies, and instead of organizing a contradictory debate between experts suggested by the two sides, he seems obsessed to request the two sides agree on one expert who could decide if there is a causality between the cancers and what is emitted in the industrial zone. Then he gets angry about the debate having no end. At the previous hearing, he was also angry because he thought environmental groups attending the hearings had made audio recordings and shared some of his weird behaviors with the defendants’ lawyers.
For once, the judge made a sound request of the lawyers: to translate those complex and very technical matters into plain Chinese. Defendant Att. Tsai has been eager to meet this demand, punctuating his explanation in Mandarin with some Taiwanese language. Actually, many plaintiffs do not really understand Mandarin, so it would be helpful for them if the hearings could be conducted in Taiwanese. But anyhow, given the little attention the judge gives them, these hearings are obviously not framed for them.
Part of the lawsuit has recently started in the high court. The first hearing provided a sharp contrast with the atmosphere in the district court. The judge begins with inviting the plaintiffs’ lawyers to sum up their statement of appeal and she listens carefully to it. The precision of her questions and propositions to both sides suggest that she had carefully read the documents submitted to the court by the lawyers.
And here is Att. Tsai who comes again in the middle of the room for his show. Despite the rules that impose the wearing of masks in prevention of the Covid-19, he just takes it off. His excuse is that it’s not convenient for speaking. But after five minutes, the judge finally asks him to put the mask back on.
Defendant Att. Wu argues that the plaintiffs must prove “a reasonable probability” of at least 50% of risk. “In Taiwan, there’s a new case of cancer every five minutes. These can’t be all attributed to air pollution. Moreover, our company ranks among one of the best in the world for the respect of environmental protection. Besides, the plaintiffs should not treat the courtroom as if it were an academic conference. Scientific simulations are not equal to solid data from the EPA.”