Vermont Law Top 10 Environmental Watch List 2017

Public Litigation for Public Harms: China’s Revised Environmental Protection Law

Since China revised its Environmental Protection Law in 2014, two cases have been decided that provide insight into how the Chinese judiciary is reacting to the law. Nongovernmental organizations have increased access to the courts, and the courts have recognized that violating pollution standards is a public harm.

China’s severe air, water, and soil pollution problems are major concerns for Chinese citizens and the government. These problems affect not only 1.4 billion Chinese but have international ramifications; China’s air pollution reaches across the Pacific, and the country is the headwaters for some of South Asia’s most vital water resources. Limited enforcement resources, local protectionism, and lack of a clear legal structure have caused the Chinese government to look to the judiciary to help find solutions.

Severe air pollution in Shanghai, China. Courts in China have recognized that violating pollution standards is a public harm.

Severe air pollution in Shanghai, China. Courts in China have recognized that violating pollution standards is a public harm. Photo: Adobe Stock

China revised its Environmental Protection Law (EPL) for the first time since its 1989 promulgation in 2014.1 The revised EPL opens the door for environmental public litigation by allowing standing for environmental nongovernmental organizations (NGOs) to sue those causing pollution, “ecological damage, and public interest harm.”2 In contrast to the standing rule in the United States, where a party must have a particularized, concrete injury that is actual or imminent, Chinese law has recognized a public harm.3

NGOs have been testing the strength of the revised EPL. Two cases highlight the success of environmental plaintiffs working in the public interest. In 2014, the Nanping Intermediate People’s Court decided Friends of Nature, Fujan Green Home v. Xie Zhijin, et. al (Nanping). Two years later, the Dezhou Intermediate People’s Court decided All China Environment Federation v. Jinghua Group Zhenhua Decoration Glass, Ltd. Co. Both reveal the availability of broader standing and powerful remedies in Chinese environmental public litigation.

Article 58 of the revised EPL allows standing if the NGO has (1) registered with “the civil affair departments of people’s governments, and (2) has specialized “in environmental protection public interest activities” for at least five consecutive years without legal violations.4 Nanping, the first environmental public interest case filed under the revised EPL, confirms that the Beijing-based plaintiff, Friends of Nature (FON), had standing to sue polluters for pollution occurring outside of the place of registration. The court found that even though FON had registered as an NGO since only 2010, it satisfied the standing requirement because it was registered at the time of the suit, had existed as an organization since 1999, and had been involved in environmental work since then.

The Nanping and Dezhou cases demonstrate the power of the revised EPL by using the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Conduct of Environmental Civil Public Interest Litigations.5 Unlike the United States., China’s judiciary may issue interpretive opinions. Though the interpretive opinions are not legal precedent, the Nanping and Dezhou courts leaned on the interpretation when deciding remedies. After finding the defendant had exceeded pollution standards, the Dezhou court implemented two of the six available remedies in the interpretation—it required the polluter to publicly apologize and compensate for losses.

When the Dezhou court found the defendant liable for exceeding pollution standards, it recognized the aesthetic and spiritual public environmental interests. Exceeding pollution standards harmed those interests, and, unlike in private tort law, the court found that a personal injury was not needed to show harm. Proof of excessive emissions was sufficient to harm the public interest.

The Dezhou court computed the compensation for losses by accounting for virtual pollution control costs. The court did not discuss the methodology used to calculate the virtual pollution control costs. Rather, the court accepted the plaintiff NGO’s methodology and findings based on its appraisal report; the defendant failed to produce any contrary appraisal and meet its burden to prove it was not liable. In China, the plaintiff has the initial burden to show damages and causation, and the defendant has the burden to prove it is not liable.6 While the defendant did not meet its burden, the deference the court showed the NGO represents a clear shift in China’s environmental politics.

Together, Nanping and Dezhou send a message that industry can no longer assume it is cheaper to pay a penalty than to abide by the law—now courts are requiring remediation costs and natural resource damages. As one firm warned its clients: “companies are advised not to just take a ‘wait and see’ approach.”3 Industry can respond by taking proactive precautionary measures to abide by the revised EPL, but “business as usual” pollution carries risks. Since 2015, Chinese courts have accepted more than 70 public interest pollution cases. In addition, the courts are experimenting with Procuratorate-led public interest litigation. While long-lasting results of China’s nascent public interest litigation system remain to be seen, Chinese courts, NGOs, and the Procuratorate are playing key roles to reign in polluters.