On 9 March, it was reported by China Daily, that China’s environmental litigation cases brought by prosecutors against people had dropped by 11.3% in 2023, to 3,831 in total. Mr. Ying Yong, procurator-general of the Supreme People’s Procuratorate, attributes the drop in cases to “harsh punishments of polluters and the general public’s increasing awareness of the importance of environmental protection”.
These figures were included in a report provided to the ongoing session of the 14th National People’s Congress. The report also states that 84,000 public-interest lawsuits were initiated to “supervise environmental administrations”. Moreover, the report highlights that civil environmental cases had dropped by 5.8% in 2023, to 232,000 in total, as compared to 2022 levels. Out of these cases, 5,300 were pollution cases.
China’s Climate Litigation Strategy
Last year, the Supreme People’s Court of China (SPC) published guidance on the country’s law for climate governance. The guidance applies to all of the country’s courts and offers detailed instructions for addressing diverse disputes, such as those related to the green transition, heavy industries, low-carbon energy systems, and the carbon market. The overall aim of the guidance is to ensure that judges “balance the relationship between development and emission reduction of enterprises in case handling”.
China recognises environmental tort liability and liability for environmental damages. Environmental tort liability are civil actions that can be brought by individuals who have suffered some form of property or personal injury themselves. Liability for environmental damages is broader and can arise irrespective of an individual suffering any type of harm or damages. These latter cases fall under China’s environmental public interest litigation.
Environmental Public Interest Litigation in China
Environmental Public Interest Litigation (EPIL) focuses on protecting the public interest against environmental pollution or ecological damage. In China, EPIL aims to maintain social harmony, and the system was established after large demonstrations about a decade ago.
EPIL cases in China are brought by prosecutors or by non-governmental organisations (NGOs). Under Article 58 of China’s 2012 Civil Procedure Law, conduct that pollutes the environment and/or damages public interest can be prosecuted by certain organisations or authorities. For non-governmental organisations, it is required that they are engaged in environmental protection for a minimum of 5 years and have no record of legal violations. Research found that between 2015 and 2019, 423 EPIL cases were brought by NGOs. The leading NGO EPIL case is Chongqing Green Volunteer League v. Enshi Autonomous Prefecture Jianshi Sulfon Changping Mining Co., regarding pyrite ore mining near the Qianzhangyan reservoir. If these organisations or authorities fail to file a lawsuit, the People’s Procuratorate can do so. This is a State organ for legal supervision. State-backed NGO, the China Biodiversity Conservation and Green Development Foundation is one of the most experienced NGO climate litigants. It has taken on 8 polluters in the Tengger Desert pollution case, it sued ConocoPhillips and China National Offshore Oil Corporation for a 2011 oil spill, and it succeeded in getting school running tracks made from poisonous materials replaced, to name a few.
EPIL cases are thus rarely brought by individuals. In 2020, an individual plaintiff tried to bring a judicial review case against the Hejin Municipal People’s Government over the government’s alleged failure to perform its environmental duties, which had led to severe damage to the environment and potentially locals’ health. In its ruling, the court acknowledged that individuals are entitled to criticise, make suggestions, or complain against any state body under Article 41 of the Chinese Constitution. However, the court did decide to dismiss the case, as the plaintiff did not demonstrate a direct interest in the case. The court also questioned whether the plaintiff had the technical knowledge to understand the environmental dimensions of the disaster. This implies that the courts are of the opinion that the professional prosecutors (the procurators), who are ‘supposed’ to bring EPIL cases, are more suitable. The court ultimately told the plaintiff to petition a prosecutor to file an EPIL lawsuit.
The use of the procuratorate framework in China is a suitable option within the country’s governance system. The procuratorate is a national actor and can therefore counterbalance the issue of local agencies’ tendency for self-preservation. However, scholars continue to disagree on whether EPIL in China is effective. On the one hand, it is argued that the procurators benefit from larger financial resources, more professionalism, and a better network to collect evidence. On the other hand, scholars argue that the procurators suffer from a lack of institutional independence and therefore prefer to pursue more straightforward EPIL cases. Both arguments likely apply to the procuratorate. Yet, the gap left by the procurators in pursuing the more (politically) sensitive EPIL can be filled by NGOs; a synergy that was found to be complimentary. Cases brought by NGOs do bring varying results, which is not very different from NGOs’ efforts in Europe, the United States, or the United Kingdom, for example.
Environmental Tort Claims in China
Tort litigation remains a viable route for individual litigants. Under Article 1229 of the Chinese Civil Code, which governs environmental tort liability, a tortfeasor who either harmed the environment or damaged the ecological system, causing damage to others shall be liable.
Comentarios