Since January 2015, China’s Environmental Protection Law has allowed Chinese Non- Government Organisations to initiate public interest litigation in relation to activities that harm the environment. This article assesses the implementation of this reform. Based on a variety of primary and secondary sources, it documents almost every case filed in the first two-and-a-half years of the implementation of public interest environmental litigation in China. It demonstrates a rapid development of this new field of litigation which, so far, has almost systematically led to Court decisions favourable to the plaintiffs. Yet, we also recognize some limitations and room for improvement, in particular regarding barriers to access to courts and questions of enforcement of judgments. Therefore, while public interest environmental litigation is a promising opportunity for the protection of the environment in China, some possible refinements of the relevant statutory framework can be identified.
It is well recognised that China’s environment has suffered as a consequence of rapid economic development. The 13th Five-Year Plan for Environmental Protection acknowledged major environmental concerns, including heavy pollution of the air, water and soils, considerable ecological degradation and high environment risks from by industrial activities. For instance, 78.4% of the cities failed to meet the air quality standards set by the Chinese Government.1 Although the latest report of the Ministry of Environment Protection on the state of the environment revealed improvements in some areas, many other concerns are only worsening, including the quality of arable lands and ecosystems.2 Greater awareness about such issues has given rise to public protests. Many in the Chinese Government and beyond are looking for new, effective ways to improve environmental protection. In this context, public interest litigation has been seen as one way to promote compliance with environmental standards and environmental protection.
This article documents the implementation of a new legal framework opening up environmental public interest litigation (
2 A New Statutory Framework
In 1989, China promulgated a dedicated statute on environmental protection, the Environment Protection Law (hereinafter
The concept of public interest litigation has progressively gained ground at the national level. In 2012, proposals with regard to public interest litigation were considered through a revision of the Civil Procedure Law (
It was only through the reform of the
The final version of the
The Communist Party of China has introduced a concept of ‘ecological civilization’ to promote a harmonious relationship between people and nature. In 2007, it first mentioned this idea formally in the report of its 17th National Congress.20 As part of the idea of developing ‘ecological civilization’,21 the
lays the foundation for public interest litigation because, to create an ecological civilization, China must address the root cause of the deterioration of the environment—i.e., pollution—so as to reverse the trend, to ultimately create a sound working and living environment, and to contribute to China’s global ecological security.24
Although ambitious, the legislative framework established by Article 58 of the
3 Implementation of Article 58 in its First 30 Months
The 2014 revision of
Several scholars have explored the implementation of the
To overcome these obstacles, this article relies on information gathered through a variety of primary and secondary sources, including authoritative media sources, non-governmental reports and
3.1 The Expansion of
As mentioned, the number of
The number of new
The introduction of
3.2 Expansion of Categories of
Another emerging feature of the practice of
On the other hand, for grassroots
In addition to national
Overall, however, the potential of
3.3 Prevalence of Cases Building on Prior Investigations
Before 2015, most
3.4 Prevalence of Cases on Air, Water and Soil Pollution
Article 58 allows
However, according to the information we gathered, most cases remain concerned with rather classical environmental pollution issues. About four in five cases in our database concern pollution of air, water and/or soils (see Table 3). The prevalence of water pollution (30 cases) could relate to the relatively straightforward assessment of the impact and absence of major obstacles to causation.
3.5 Regional Distribution
According to the
It could be expected that the number of
This suggests that the regional distribution of
3.6 Prevalence of Agreements and Judgments in Favour of
The popularity of mediation as a settlement of
Thanks to their flexibility, mediation documents or settlement agreements may allow
All in all, cases brought and decided over the last two-and-a-half years show that the introduction of public interest environmental litigation in Chinese law is having a significant impact. In this section, we seek to assess the overall impact of
4.1 A New Role for Civil Society Organizations
In light of the increasing caseload, the revision of the
Secondly, pursuant to the procuratorate’s suggestion, some
Thirdly, some courts have been keen to safeguard public participation through a liberal interpretation of the conditions for standing. For example, in the retrial of CBCGDF v. Ningxia Ruitai Technology Co, the
Fourthly, another area of important innovation touches on the original agreements reached through mediation. Apart from monetary compensation, defendants have agreed to carry out actions to restore the affected environment and to being monitored jointly by the court, the
4.2 The Need to Refine the Statutory Framework
Notwithstanding the positive developments detailed above, there are some general limitations to the statutory framework established by Article 58 of the new
This approach may appear unfair given the absence of direct economic benefits from
Secondly, improvements could also come from clearer cooperation arrangements between judicial power and administrative power at the hearing stage. At present, a possible source of concern is that
Under the existing legal framework, a court must notify relevant
Thirdly, at the stage where a decision is adopted, a difficulty may arise from the interpretation of vague provisions such as the obligation to ‘restore’102 an environmental resource. This, most often, requires a baseline or target whose determination requires professional skills. Therefore, while determining the obligation of the responsible party in the settlement of the dispute, it is best to leave such technical questions to relevant professional organisations.
In cooperation with local courts, leading
Last but not least, when compulsory enforcement is required after a decision is adopted, the existing legal framework is yet to define specific responsibilities.106 It neither defines, nor even acknowledges the role that
The recent introduction of
‘国务院关于印发 “十三五” 生态环境保护规划的通知’ [Notice of the State Council on Issuing the 13th Five-Year Plan for Environmental Protection], issued by the State Council on 24 November 2016.
See GUO Wei, ‘全国人大常委会听取审议环境状况和环保目标完成情况报告’ [Standing Committee of the National People’s Congress listened to and reviewed the Report on Environmental Condition and Completion of Environmental Protection Goals] China Environment News (25 April 2017) 1.
Environmental Protection Law of the
See e.g. Daniel CARPENTER-GOLD, ‘Castle Made of Sand: Public-Interest Litigation and China’s New Environmental Protection Law’ (2015) 39 Harv. Envtl. L. Rev. 241, 241; Erin RYAN, ‘The Elaborate Paper Tiger: Environmental Enforcement and the Rule of Law in China’ (2013) 24 Duke Environmental Law & Policy Forum 183; WANG Canfa, ‘Chinese Environmental Law Enforcement: Current Deficiencies and Suggested Reform’ (2007) 8 Vt J Envtl L 159; see also MA Yun, ‘Vertical Environmental Management: A Panacea to the Environmental Enforcement Gap in China?’ (2017) 1
Article 6 of the
For the legislation and the practice of trial regions on
Civil Procedure Law of the People’s Republic of China (effective on 9 April 1991, as revised on 31 August 2012) [hereinafter ‘the
See Article 119 of the
Law of the People’s Republic of China on the Protection of Consumer Rights and Interests (effective on 1 Jan 1994, amended on 25 October 2013), Article 47.
See LI He, ‘2013 年环境公益诉讼“挂空挡”’ [No Environmental Public Interest Lawsuits in 2013] Science and Technology Daily (1 March 2014) 3.
See eg LUI Zhongmei, ‘“环境保护法”的前世今生’ [The Past and Present of Environmental Protection Law] (2014) 5 Journal of Political Science and Law 51, 57.
‘中华人民共和国环境保护法修订案(草案)’ [Draft of the
See eg LUI (n 12) 57–58; GONG Gu and AN Ran, ‘Progress and Obstacles in Environmental Public-Interest Litigation under China’s New Environmental Law: An Analysis of Cases Accepted and Heard in 2015’ (2017) 7 Climate Law 185, 189–90; CHEN Yang, ‘环保法三审稿困惑：环境公益诉讼主体反收窄’ [Puzzle on the third Review Draft of the Environmental Protection Law: the Scope of Environmental Public Interest Litigation Subject is Narrowed] China Economic Herald (29 October 2013) B6.
See PENG Bo and MAO Lei, ‘全国人大常委会办公厅召开新闻发布会’ [The General Office of the Standing Committee of National People’s Congress held a Press Conference] People’s Daily (24 April 2014) 6.
See in particular ‘最高人民法院关于审理环境民事公益诉讼案件适用法律若干问题的解释’ [The Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in Environmental Civil Public Interest Litigation Cases] [hereinafter: Judicial Interpretation on
See CAO Mingde, ‘中国环保非政府组织存在和发展的政策法律分析’ [An Analysis on the Policy and the Law for the Existence and the Development of the Chinese Environmental
See eg ‘胡锦涛在中国共产党第十七次全国代表大会上的报告’ [HU Jintao’s Report Representing the 16th Central Committee of the Communist Party of China (
See Article 1 of the
See eg ‘全国人民代表大会常务委员会执法检查组关于检查“中华人民共和国环境保护法”实施情况的报告’ [The Inspection Report on the Enforcement of the Environmental Protection Law of the
See eg ‘中国生物多样性保护与绿色发展基金会环境污染责任纠纷审判监督民事裁定书’ [The Civil Ruling of Trial Supervision on Environmental Pollution Liability Dispute of the China Biodiversity Conservation and Green Development Foundation] (28 January 2016).
SUN and TUHOLSKE (n 6) 10501–02.
Administrative Litigation Law of the
See ZHANG Qing, A Database on Environmental Public Interest Litigation Filed by
See ‘700 多个社会组织可以提起环境民事公益诉讼’ [More than 700 Social Organizations Can File Environmental Civil Public Interest Litigation] China Youth (14 January 2015) 8.
See ‘最高法发布十件环境公益诉讼典型案例’ [The Supreme People’s Court Issues 10 Model Cases of Environmental Public Interest Litigation] People’s Court Daily (8 March 2017) 1.
See eg SUN and TUHOLSKE (n 6); GONG and AN (n 15); Kathryn MCCALLUM, ‘Changing Landscapes: Enforcing Environmental Laws in China through Public Interest Litigation’ (2017) 20 Asia Pacific Journal of Environmental Law 57.
A complete list is available online; see ZHANG (n 26).
See note 30.
See WANG Shekun and MA Rongzhen, ‘环境公益诉讼观察报告: (二) 回顾’ [Observation Report for
See ZHENG Xuelin, ‘中国环境资源审判的新发展’ [The New Development of the Trial involving Environment and Resources in China] People’s Court Daily (7 June 2017) 8.
See BAI Yang, ‘最高法: 已受理上百件环境民事公益诉讼’ [The Supreme People’s Court: More than 100 Environmental Civil Public Interest Lawsuits Have Been Accepted] Xinhua Daily Telegraph (28 July 2016) 2.
See SONG Yuanyuan, ‘2016 年度十大公益诉讼“出炉”’ [Top Ten Public Interest Cases of 2016 Come out], at <http://www.legaldaily.com.cn/index/content/2017-04/05/content_7080703.htm> accessed 7 November 2017.
The date of acceptance by the Court could not be retrieved for nine of the 115 documented cases. Therefore, this graph features a total of 106 cases.
See eg ‘最高人民法院关于全面加强环境资源审判工作 为推进生态文明建设提供有力司法保障的意见’ [Opinions of the Supreme People’s Court on Comprehensively Strengthening Environment And Resources Adjudication to Provide Powerful Judicial Assurance for Boosting Development of Ecological Civilization], issued on 23 June 2014.
For definitions, see Table 1 above.
The number of
See e.g. Corporate Social Responsibility Promoting Center of Henan v. Guizhou Tongrentongxin Mercury et al, Luoyang Intermediate People’s Court (Henan Province), accepted in August 2016.
According to the results of a questionnaire survey conducted by the first co-author in January 2016.
See LI Dun (ed), 环境公益诉讼观察报告 [Review of Public Interest Litigation in Environment Protection] (Law Press China 2016) 244.
Article 15 of the
Based at China University of Political Science and Law; see <http://www.clapv.org/english_lvshi/> accessed 9 November 2017.
See eg GAO Shengke, ‘环境诉讼仍在囧途’ [Environmental Public Interest Litigation is Still on a Hard Road] Caijing (2015) (in file with authors); GE Feng and WANG Huishihan, ‘环境公益诉讼观察报告：（三）年度述评’ [Observation Report for
WANG (n 35) 192.
See eg FON et al. v. XIE Zhijin et al, Nanping Intermediate People’s Court (Fujian Province), accepted in January 2015 (first instance). For more details see
See eg Guiyang Public Environmental Education Center v. Guizhou University et al, Ecological Protection Division of Qingzhen People’s court (Guizhou Province), accepted in June 2015.
This concept is from Article 111 of Constitution of the
See eg Anhui Province Environment Federation v. Tongxiang Company of Fuyang Yonghao Renewable Resources et al., Huainan Intermediate People’s Court (Anhui Province), acceptance date is uncertain. The People’s Government of Wuzhen County, Zhejiang, featured among the defendants.
See CBCGDF v. ConocoPhillips China et al, Qingdao Maritime Court (Shandong Province), accepted in July 2015; FON v. Hyundai Motor Group, The Fourth Intermediate People’s Court of Beijing (Beijing), accepted in June 2016; FON et al. v. China Resources New Energy Investment, Qiannan Intermediate People’s Court (Guizhou Province), accepted in January 2017.
See eg CBCGDF v. Huazhuang Villagers’ Committee et al, Environmental Division of Zhengzhou Intermediate People’s Court (Henan Province), accepted in May 2016. See generally YU Jiaxi and HAN Qing, ‘河南新郑数千古枣树被集体“移植死”, 村民: 枣树救过我们命’ [Thousands of Ancient Jujube Trees were ‘Transplanted to Die’ Collectively in Xingzhen, Henan. Villagers: These Jujube Trees Saved Our Lives in the Past] The Paper (14 January 2017).
This trend was noticed early on; see GONG Gu, ‘2015 年中国环境民事公益诉讼的实证分析’ [Empirical Analysis on Chinese Environmental Civil Public Interest Litigation in 2015] (2016) 418 Law Science 16, 21.
See DING Meiying, ‘向企业索赔41.6万元’ [Claim the Enterprise for a Compensation of
See note 55.
See eg Green Hunan v. Chixiazoumaxia Quarry et al, Changsha Intermediate People’s Court (Hunan Province), accepted in December 2016. One of the claims is to restore damaged vegetation. For more details, see SHI Weiyan ‘2016 年湖南首例环境公益诉讼立案’ [The First Public Interest Environmental Litigation of Hunan in 2016 was Accepted] at <http://www.chinacourt.org/article/detail/2016/12/id/2501552.shtml> accessed 7 November 2017.
See eg FON et al. v. Shenzhen Dongyangguang Industrial Development et al, Environmental Division of Qingyuan Intermediate People’s Court (Guangdong Province), accepted in March 2016 (‘Dongyangguang Case’). For more details, see LEI Jian, ‘清远首例环境公益诉讼案达成调解协议’ [The First Public Interest Environmental Litigation of Qingyuan Reached a Mediation Agreement] Legal Daily (23 March 2017).
See eg FON et al. v. China Resources New Energy Investment, Qiannan Intermediate People’s Court (Guizhou Province), accepted in January 2017. Endangered Chinese plant Liriodendron chinense is the focus. For more details, see Friends of Nature, ‘立案 | 在中国珍稀濒危植物保护区里干这事？必须立即停止!’ [Acceptance: How Could a Company Do This Thing in a Reserve of Chinese Endangered Plants? It Should Stop Immediately!], at <http://www.sohu.com/a/124084623_403458> accessed 7 November 2017.
See eg FON v. Beijing Dushi Fangyuan Real Estate et al, The Fourth Intermediate People’s Court of Beijing (Beijing), accepted in July 2015. In this case,
See eg CBCGDF v. Aluminium Corporation of China et al, Ecological Protection Division of Qingzhen People’s Court (Guizhou Province), accepted in January 2016. One of the claims is to restore the damaged farmland. For more details, see YU Yingbo, ‘中铝贵州开矿致房屋开裂影响村民近千人，绿发会提起公益诉讼’ [Mining by the Guizhou Branch of Aluminium Corporation of China Limited Causes House Cracking and Affects Nearly One Thousand Villagers; China Biodiversity Conservation and Green Development Foundation Files a Public Interest Case] The Paper (21 November 2016).
See eg CBCGDF v. ZHOU Yaohe et al, Environment and Resources Division of Huaian Intermediate People’s Court (Jiangsu Province), accepted in June 2016. This type of case can be accepted because a cultural relic is a component of ‘environment’ according to Article 2 of the
‘Transregional pollution’ here means pollution which relates to more than two provinces or cities in China. See eg CBCGDF v. Changzhou Yongtaifeng Chemical et al, Bozhou Intermediate People’s Court (Anhui Province), accepted in October 2015. A Jiangsu company was sued in an Anhui court because of dumping toxic waste that affected these two provinces. For more details of this case, see DING Wei and TANG Huan, ‘我省首起环境公益诉讼索赔700万’ [The First Public Interest Environmental Litigation in Anhui Seeks Damage of
See eg CBCGDF v. Yalung River Basin Hydroelectric Development, Ganzi Autonomous Prefecture Intermediate People’s Court (Sichuan Province), accepted in December 2015.
See note 30.
According to the 2016 Report of the State of the Environment in Guizhou, more than 97% of cities in Guizhou have average good air quality in 2016 (i.e. Air Pollution Index is less than or equal to 100). See ‘2016 年贵州省环境状况公报’ [The 2016 Report of the state of environment in Guizhou]. As for Hebei, air quality of its cities was good in 56.6% of the days in 2016 on average. See ‘2016 年河北省环境状况公报 [The 2016 Report of the State of the Environment in Hebei].’
For example, as mentioned, Guizhou is one of the earliest provinces to explore
Statistics of population and
The settlement method of six other cases could not be identified.
See ZHOU Tailai, ‘常外毒地”天价诉讼费案两原告上诉’ [Two Plaintiffs of the “Changlong Toxic Land Case” Appealed], Caixin (18 February 2017).
Article 25 of the Judicial Interpretation on
Article 236 of the
For example, according to the mediation agreement of the ‘Dongyangguang Case’, the plaintiffs can evaluate the condition of ecological restoration in 2019, listen to defendants’ report on ecological restoration at the end of every year, supervise the restoration and check it on site. See Qingyuan Intermediate People’s Court of Guangdong, ‘公益诉讼公告’ [Announcement of Public Interest Environmental Litigation] People’s Court Daily (14 January 2017) 8.
For example, before mediation agreement was affirmed by the court in April 2017, the defendant of the case of CBCGDF v. Liusikun Wanxiangxintian Kindergarten of Chaoyang District (The Fourth Intermediate People’s Court of Beijing, accepted in July 2016) had already performed its responsibilities prescribed by this agreement. See WANG Wei and PAN Jiakun, ‘幼儿园因“毒跑道”被诉调解结案并捐款10万元’ [The Case in which a Kindergarten was Sued because of ‘Toxic Tracks (i.e. running tracks) Was Settled through Mediation and the Defendant Donated
Green Home v. Fuzhou Chuangshiji Agriculture Comprehensive Development, Ecological Division of Fuzhou Intermediate People’s Court (Fujian Province), accepted in January 2017.
See CHEN Wei and LIU Hongxing, ‘福州中院调解一起环境公益诉讼案’ [Fuzhou Intermediate People’s Court Has Mediated an Environmental Public Interest Litigation Case] China Environment News (14 June 2017) 8.
Introductions of these two projects can be found in FON’s website, at <http://www.fon.org.cn/index.php?option=com_content&view=featured&Itemid=105>.
See ‘自然之友2016年度报告’ [Annual Report of Friends of Nature 2016].
Detailed information on this trust (Changanci—Charitable Trust on Environmental Protection) can be found in FON’s website, at <http://www.fon.org.cn/index.php?option=com_k2&view=item&id=12270:100&Itemid=176> accessed 7 November 2017.
See Civil Ruling cited (n 23).
Ibid; SUN and TUHOLSKE (n 6) 10506.
For example, in Green Home v. Wenfu Lan (Changting County People’s Court in Fujian Province, accepted in May 2015), the plaintiff, court and
‘Legal Aid’ (法律援助) could provide free legal services to plaintiffs such as free consultation, but it is open only to citizens with economic difficulties. See ‘Regulation on Legal Aid’ [法律援助条例], Article 1 and 2.
Article 13 of ‘The Measures on the Payment of Litigation Costs’ [诉讼费用交纳办法].
In that case [FON et al. v. Jiangsu Changlong Chemical Co. et al, Changzhou Intermediate People’s Court (Jiangsu Province), accepted in May 2016 (first instance)], the court of first instance held that the two plaintiffs should bear an acceptance fee of about
See Article 33 of the Judicial Interpretation on
See WANG and MA (n 37) 260.
These mediation agreements can be found in ‘Notice Board’ of ‘Guizhou Court’ website, at <http://www.guizhoucourt.cn/jxjs/index_12.jhtml> accessed 7 November 2017.
FON v. Lianyungang Alkali (Lianyungang Intermediate People’s Court in Jiangsu Province, accepted in August 2016) and FON v. Jilin Petrochemical of PetroChina (Environment and Resources Division of Jilin Intermediate People’s Court in Jilin Province, accepted in September 2016) are typical cases for this. Defendants were penalized by
Judicial Interpretation on
Article 26 of the Judicial Interpretation on
See by analogy 42
Article 18 of the Judicial Interpretation on
Article 24 of the Judicial Interpretation on
Also see eg YANG Kaiqi and ZHANG Zixuan, ‘亿元环境公益诉讼赔偿金何去何从？’ [How to Deal with Hundred Million of Environmental Public Interest Litigation Compensation?] Southern Weekly (31 August 2017).
See ibid; CBCGDF, ‘人大代表建议设立全国统一环境修复基金:绿会也将在两年实践基础上继续推进’ [National People’s Congress Deputies Recommend the Establishment of a Uniform National Environmental Restoration Fund:
Article 32 of the Judicial Interpretation on
See eg Dongyangguang case (n 65) and Chuangshiji case (n 83). Restoration work of both cases shall be carried out under supervision of plaintiffs, relevant environmental agencies and the society. According to the mediation documents, in the Dongyangguang Case, the progress of environmental restoration will be evaluated by plaintiffs, defendants, supporting litigation units and experts under the supervision of the court and relevant environmental agencies. For the Chuangshiji Case, the result will be checked by relevant agencies.