Downloaded from Brill.Com09/30/2021 03:17:14PM Via Free Access

climate law 7 (2017) 185-208

brill.com/clla

Progress and Obstacles in Environmental Public-Interest Litigation under China’s New Environmental Law: An Analysis of Cases Accepted and Heard in 2015

Gu Gong Zhejiang University Guanghua Law School [email protected]

Ran An Qufu Normal University Law School [email protected]

Abstract

Article 58 of China’s Environmental Protection Law 2014 (epl) makes up for the earlier inadequacy of China’s environmental public-interest litigation (envpil), but its actual efficacy needs to be tested in practice. An analysis of the 38 cases accepted and heard in 2015 shows that envpil has indeed experienced some development since the epl came into force. Significant progress has been made in terms of the number and scope of cases accepted, range of plaintiffs and defendants, completion rates, the trial mechanism, and jurisdiction. However, there are still many problems relating to the acceptance and hearing of cases, the role of environmental protection tribunals, the selection criteria for cases, the identification of plaintiffs’ qualifications, and the determination of legal liability. Institutional factors, rather than legal texts, determine the future of China’s envpil. Overall, however, the developments are positive. This is important for all areas of environmental law in China, including the country’s still nascent climate change law.1

1 The authors wish to acknowledge the support of the Collaborative Innovation Center of Judicial Civilization of the National 2011 Program. We are also grateful to the journal’s two anonymous referees for their constructive feedback on an earlier version of this article.

186 Gong and An

Keywords

China’s environmental law – Environmental Protection Law 2014 – environmental public-interest litigation (pil) – environmental cases accepted and heard in China in 2015

1 Introduction

The rise of envpil in China over the past few years has been a remarkable phenomenon for the country’s environmental protection and the rule of law,2 manifesting the Chinese government’s determination to achieve an “ecological civilization” (生态文明). This effort has been embodied in the 2014 revisions to the epl, China’s most important environmental law. Article 58 of the epl gives envpil a basis in law and provides normative guidance for its practice. Public-interest litigation is a complex procedure whose success is subject to many prerequisites. In addition to the establishment article in the epl, other changes to China’s legal regime are necessary for its implementation; and the actual impacts of the epl in this respect must also be explored. China’s envpil has been pessimistically described as a sand castle3 and as a new law preserving old problems.4 In this paper, we revisit these assessments through an examination of actual practice. While only some of this practice is related to climate change issues, and then only indirectly (e.g. forest protection), it provides a kind of baseline for the future of envpil in climate-related litigation. It is also worth noting that because climate change is considered to be a classic public-interest problem, environmental public-interest litigation may be able to offer judicial solutions to the problem of climate change in China.

2 According to China’s present litigation division, envpil can be divided into civil pil and administrative pil. The former is civil litigation focused on environmental offenders, and the latter is administrative litigation focused on environmental-regulation organs. 3 Daniel Carpenter-Gold, ‘Castles Made of Sand: Public-Interest Litigation and China’s New Environmental Protection Law’, 39 Harvard Environmental Law Review 241 (2015). 4 Bo Zhang, Cong Cao, Junzhan Gu, and Ting Liu, ‘A New Environmental Protection Law, Many Old Problems? Challenges to Environmental Governance in China’, 28 Journal of Environmen- tal Law 325 (2016).

climateDownloaded law from 7 Brill.com09/30/2021 (2017) 185-208 03:17:14PM via free access

ENVIRONMENTAL PUBLIC-INTEREST LITIGATION IN CHINA 187

The paper is divided into five parts. First, we review the development of China’s envpil and discuss the normative significance of the epl’s article 58. The subsequent section consists of a table summarizing information about the 38 envpil cases accepted and heard in China’s courts in 2015. Next, we com- pare those cases with earlier ones, highlighting the positive role played by the amended epl and thus the progress achieved. Section 5 identifies certain institutional obstacles affecting envpil’s future development which China will need to address in order to improve its environmental-law system. In the last section we offer an evaluation of China’s envpil while attempting to predict its future development.

2 The Winding Path of China’s envpil

Though China’s environmental conditions have been deteriorating since the “reform and opening” period began in the 1980s, envpil did not become an object of interest to the central government before 2005. Most Chinese environmental laws up to that point contained provisions allowing certain entities and individuals to impeach illegal environmental acts; however, the “right to impeach” was merely a right to report situations and provide evidence, not a right to take legal action. Moreover, under the applicable Civil Procedure Law, plaintiffs needed to have “a direct stake” in cases. Thus ordinary citizens or social groups had no right to sue in the name of public environmental interest in cases where they lacked a direct stake. Since 2000, support for envpil has grown as a result of serious environ mental degradation and poor performance by environmental protection de- partments. At the March 2005 meeting of the National People’s Congress (npc) and Chinese People’s Political Consultative Conference (cppcc), Liang Congjie, an eminent environmental-protection activist and founder of Friends of Nature, convinced 28 members of the cppcc to submit to that body a Proposal Regarding Establishing and Perfecting Environmental Pro- tection Public-Interest Procedural Law as Soon as Possible (关于尽快建立和完善环境保护公益诉讼法的建议).5 In December 2005, China’s State Council issued a Decision on Carrying Out Scientific Development Views and Strengthening Environmental Protection, stating that “it was necessary to

5 Du Qun and Liang Chunyan, ‘Reflections on Environmental Public Interest Litigation in China under a Comparative Viewpoint’, 1 Journal of Law Application 46 (2016).

climate law 7 (2017) 185-208 Downloaded from Brill.com09/30/2021 03:17:14PM via free access

188 Gong and An encourage social organizations to play a role in impeaching and disclosing all kinds of unlawful environmental acts as well as promoting environmental public-interest litigation”.6 Nevertheless, the system of fiscal federalism and tax redistribution made local governments strongly committed to economic development,7 and the lack of an incentive mechanism maintained a low moti- vation for environmental protection. As a result, the abovementioned policies and appeals did not make an immediate difference.8 Local governments did not begin to respond to the centre’s environmental protection signals much before 2008.9 There was some early exploration of envpil practices in the Wuxi and Gui- yang cases. The former, from 2007, is also known as the Taihu Lake Blue-Green Algae Event.10 The latter, from the same year, was a local water-protection case that has come to be known as the “two lakes and a reservoir” case.11 As there

6 Wu Changjun, ‘A Study on Legal Mechanism of Social Organizations’ Participation in Public Interest Litigation’, 5 Journal of Capital Normal University 64 (Social Science Edition) (2014). 7 Zhao Xiao, ‘Central-Local Relations: A Further Reflection on Fiscal Federalism’, 8 China Development Observation 47 (2007). 8 This was the root reason why Chinese environmental law could not achieve effective implementation, and environmental law enforcement was generally inefficient. See Gong Gu, ‘Environmental Protection Law Amendment Under the Vision of Government Moti- vation’, 1 Science of Law 52 (2013). 9 The 17th National Congress of the Communist Party of China in 2007 put forward “building an ecological civilization”, regarding it as one of “the new demands of the goal in the struggle for realizing all-around well-off societal construction”, which reflected the Party’s determination to strengthen environmental protection and to provide political guaran- tees for the proposals of various kinds of innovative measures regarding environmental protection. 10 The severe blue-green algae contamination, which broke out in Taihu Lake during May and June 2007, resulted in domestic and potable water being critically short throughout Wuxi, water being cut off in some areas, and bottled water being snapped up in super- markets and stores. This event was considered to be the result of local government in- dulging enterprises by allowing pollution discharge for a long time in order to pursue economic development. The event attracted much attention from the central authority, and the Wuxi local government was widely criticized. See ‘“Blue-Green Algae Event” Who Is Showing Us the “Color”?’, Chengdu Daily, 2 June 2007; and Zhang Ke, ‘State Environmen- tal Protection Administration: Wuxi Blue-Green Algae Crisis Is a Natural Disaster as well as a Man-Made Calamity’, China Business News, 6 June 2007. 11 “Two lakes and a reservoir” refers to Guiyang Hongfeng Lake, Baihua Lake, and Aha Res- ervoir, the main drinking-water sources in Guiyang, supplying more than 1,200,000 people with drinking water. Due to years of pollution, the water quality of “two lakes and a reservoir” is gradually getting worse, directly threatening drinking-water security. The task of

climateDownloaded law from 7 Brill.com09/30/2021 (2017) 185-208 03:17:14PM via free access

ENVIRONMENTAL PUBLIC-INTEREST LITIGATION IN CHINA 189 was no legal basis for action in national law, the Wuxi and Guiyang governments had to find support for envpil in local legislation. In Wuxi, the local court and procuratorate jointly issued a policy which allowed the court to accept envpil cases brought by “relevant social groups”.12 In Guiyang, the local People’s Congress originally granted the Intermediate Court authority to receive cases brought by specified governmental agencies; in 2010, it expanded this to include all “environmental public-interest organizations”.13 While local legislation was able to play a pioneering role, such cases did little more than highlight a lack of uniformity in the development of the law. The Civil Procedure Law of 2012, in article 55, provided in general terms that “Relevant bodies and organizations prescribed by the law may bring a suit to the people’s court against such acts as environmental pollution, harm of the consumer’s legitimate interests and rights and other acts that undermine the social and public interest.” Accordingly, a qualified plaintiff was someone “prescribed by the law”. As long as there was no such law, there was no qualified plaintiff. (In China, the concept of “law” used in legal documents refers only to legislation enacted by the npc or its Standing Committee.)14 The number of envpil cases fell to zero after the new Civil Procedure Law went into effect in 2013.15 Against this background, the revisions to the epl, and their promulga- tion in 2014, were extraordinarily important to the establishment of envpil in China. The path of amendment was by no means straightforward. The first draft of the amended epl, published in August 2012, did not include the envpil clauses. Following appeals from many sectors of society, a second draft (in June 2013) added envpil clauses but granted standing only to the All- China Environment Federation (acef, a government-organized ngo) and the environmental-protection federations established in provinces, autonomous

strengthening protection of them spured local government to explore envpil. See Ning Hua, ‘Establishment and Development of Guiyang Ecological Protection Model’, 12 Legal Exhibition 2016. 12 Trial Stipulations Regarding Handling of Environmental Civil Public-Interest Litigation Cases (环境民事公益诉讼案件审判处理规定), jointly issued by Wuxi Municipal Intermediate People’s Court and Wuxi Municipal People’s Procuratortate in 2008. 13 See Carpenter-Gold, supra note 3. 14 Article 7 of the Legislation Law 2015. 15 See Lin Yanmei and Wang Xiaoxi, ‘Back to the Star: 2013 Environmental Public Litigation’, Annual Report on Environment Development of China, Social Sciences Academic Press, 2014, pp. 157–174.

climate law 7 (2017) 185-208 Downloaded from Brill.com09/30/2021 03:17:14PM via free access

190 Gong and An regions, and municipalities directly under the central government.16 This draft was also broadly denounced. The third draft, published in October 2013, re- moved the acef provision but limited plaintiffs to nation-wide organizations registered with the Ministry of Civil Affairs.17 Compared with those earlier formulations, the final text of epl article 58 evidences a significant advance.18 It relaxes the standing restrictions, allowing organizations registered with the ministries of civil affairs at the district level or above to engage in envpil, on the condition that they have operated for at least five consecutive years. According to the Authority on Non-Governmental Organizations of the Ministry of Civil Affairs, as at the end of the third quarter of 2014 there were more than 700 social groups in the country that met the epl requirements for standing.19 The scope of cases accepted was also permitted to be broad. All cases involving “acts that pollute the environment, or cause ecological damage” could be heard if they “harm public interests”. This does not require plaintiffs to have a

16 Environmental Protection Law (2nd Reviewing Draft), Art. 48: “For the acts of contaminating the environment, destroying ecology and damaging social public interests, the acef and the environmental protection federations established in provinces, autonomous regions and municipalities directly under the Central Government can bring an action to a people’s court.” 17 epl, 3rd Reviewing Draft, Art. 53: “For the acts of contaminating the environment, destroying ecology and damaging social public interests, the nationwide social organizations, which are registered with the Ministry of Civil Affairs under the State Council according to law and have specialized in environmental protection public-benefit activities for over five years in succession with a sound reputation, can bring an action to a people’s court. When other laws stipulate otherwise, such provisions shall prevail.” 18 “Any of the social organizations satisfying the following conditions may file lawsuits with the people’s courts against acts that pollute the environment, cause ecological damage and harm public interests: (1) Registered with the civil affairs department of the people’s government at or above the level of city with districts in accordance with the law; and (2) Engaging specially in the public service activities in environmental protection for five consecutive years without any record of violation of laws. Where a social organization satisfying the provisions in the preceding paragraph files a lawsuit with the people’s court, the people’s court shall accept the lawsuit in accordance with the law. The social organization that files a lawsuit shall not make use of the lawsuit to seek economic benefits.” 19 Zhou Chen and Zhuang Yayu, ‘Cases of Environmental Protection Organizations Accus- ing Enterprises of Contamination Were Refused Filing by Local Authorities One After Another: Who Is Obstructing Environment Public-Interests Litigation?’, The Paper, .

climateDownloaded law from 7 Brill.com09/30/2021 (2017) 185-208 03:17:14PM via free access

ENVIRONMENTAL PUBLIC-INTEREST LITIGATION IN CHINA 191 stake in them, nor does it limit the geographical range or types of cases. It is broad enough to include cases related to climate change. In order to strengthen deterrence and motivate courts to accept and hear cases, article 58 stipulates that “Where a social organization satisfying the provisions in the preceding paragraph files a lawsuit with the people’s court, the people’s court shall accept the lawsuit in accordance with the law.” In order to assist and speed up implementation, the Supreme People’s Court released the Interpretation of the Supreme People’s Court on Several Issues con- cerning the Application of Law in the Hearing of Environmental Civil Public Interest Lawsuits (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意见; hereinafter Interpretation) on 6 January 2015.20 The Interpretation provides detailed guidance on article 58. At that point, China’s envpil system had been shaped, at least on paper, so as to facilitate an up- surge in cases.

3 Overview of envpil Cases Accepted in 2015

While there was an obvious growth in envpil cases in 2015, to give an overview of them is no simple matter. There are different versions of the total number of cases, and the dearth of information about them in official sources is especially challenging.21 Fortunately, most cases have been reported either by the media or otherwise on the internet. We carried out a thorough internet search, which included the official websites of courts and ngos. We found a total of 38 envpil cases in 2015.22 All of these were “typical” envpil cases, filed by ngos against environmental polluters under epl article 58, and accepted by the courts. In order to reflect how these cases stood over the period of a year, we drew a line on updating their status at 31 December 2015. The following table provides summary information on the 38 cases we found:

20 See . 21 See Enjing Zhu, ‘Supreme Court Released 10 Environmental Tort Typical Cases’, ; and ‘All levels of courts accepted 6 cases of administrative public interest litigation last year’, . 22 Details on these cases may be found at , , , , , , and .

climate law 7 (2017) 185-208 Downloaded from Brill.com09/30/2021 03:17:14PM via free access

192 Gong and An

Case name Filing Filing Court Claims Status at date place end of 2015

Fujian Green Home Jan. Fujian Nanping Clear away the waste in work Concluded Environment-friendly Cen- Intermediate sheds; restore the vegetation in the ter and Friends of Nature v. People’s Court in forest lands or compensate second Xie Zhijin and Three Other 1,101,900 yuan for ecological instance Defendants (fgev v. Xie) remediation expenses; compensate eco-service function losses of 1,340,000 yuan; bear the cost related to lawsuits. All-China Environment Jan. Shandong Dongying Compensate 10,000,000 On the Federation v. Xin’an Chemi- Intermediate yuan for contaminant- docket cal Industry and Five Other People’s Court disposal fees used for Defendants (acef v. Xin’an) entrusting a third-party institution to lawfully dispose of “phosphate mixed liquor”. All-China Environment Jan. Shandong Dongying Cease polluting; pay On the Federation v. Jinruil- Intermediate 967,219 yuan for docket ian Company (acef v. People’s Court ecological-remediation Jinruilian) expense used for entrusting a third party to conduct ecological restoration. Qingzhen Eco-Environ- Feb. Guizhou Qingzhen Cease infringing, eliminate Settled ment Protection Federation Ecological risks, propose remediation through and Friends of Nature Protection schemes; make a public mediation v. Qingzhen Qianming Tribunal apology; bear the cost Aluminum and Iron Mine related to lawsuits. (qeepf & Friends v. Qingzhen) All-China Environment Mar. Shandong Dezhou Cease pollution discharges On the Federation v. Jinghua Intermediate beyond agreed standards; add docket Group Zhenghua Company People’s Court and use pollution-prevention (acef v. Jinghua) facilities; pay 28,200,000 yuan for pollution damage compensation used for Dezhou air-contaminant treatment; offer an apology; bear the cost related to lawsuits.

climateDownloaded law from 7 Brill.com09/30/2021 (2017) 185-208 03:17:14PM via free access

ENVIRONMENTAL PUBLIC-INTEREST LITIGATION IN CHINA 193

Case name Filing Filing Court Claims Status at date place end of 2015

Friends of Nature v. Taix- May Jiangsu Taizhou Compensate 1,200,000 yuan On the ing Rubber Plant (Friends Intermediate for environmental dam- docket v. Taixing Rubber) People’s Court age; bear the cost related to lawsuits. Friends of Nature v. Woaite May Jiangsu Taizhou Compensate 1,800,000 yuan On the Chemical Plant (Friends v. Intermediate for environmental dam- docket Woaite) People’s Court age; bear the cost related to lawsuits. Friends of Nature v. May Jiangsu Taizhou Compensate 2,300,000 yuan On the Zhongdan Chemical Plant Intermediate for environmental dam- docket (Friends v. Zhongdan) People’s Court age; bear the cost related to lawsuits. Fujian Green Earth Volun- May Fujian Changting Cease river discharges; Settled teers v. Lanwenfu (fgev v. County Court dismantle production through Lanwenfu) facilities and conduct mediation harmless treatment of contaminants; restore vegetation or pay 50,000 yuan to enable the plaintiff to remedy on the defendant’ s behalf; bear the cost related to lawsuits. China Mangrove Conserva- May Hainan Haikou Cease building and On the tion Network Intermediate dismantle wooden docket and China Biodiversity People’s Court trestles, adopt repristina- Conservation and Green tion measures as well as Development Founda- eliminate the damage to tion v. Hainan Mangrove the environment caused Tourism Joint-Stock Com- by the construction be- pany (xmgdf v. Hainan haviour; compensate for Mangrove) ecological environmental losses (provisional amount: 1,000,000 yuan) used for governing and restoring the ecological environment; bear the cost related to lawsuits.

climate law 7 (2017) 185-208 Downloaded from Brill.com09/30/2021 03:17:14PM via free access

194 Gong and An

Case name Filing Filing Court Claims Status at date place end of 2015

Guiyang Public May Guizhou Qingzhen Cease discharging into Settled Environment Education Ecological the environment, improve through Center v. Guizhou Kai- Protection environmental protection mediation yang Guahua Tianxin Tribunal facilities and make them Phosphorus Industry Com- operate normally in order to pany (gpeec v. Guahua) meet emission standards. Guiyang Public Environ- May Guizhou Qingzhen Cease discharging into Settled ment Education Center Ecological the environment, improve through v. Guizhou Kaiyang Protection environmental protection mediation Qinglitianmeng Chemical Tribunal facilities and make them Industry Company (gpeec operate normally in order to v. Qinglitianmeng) meet emission standards. Guiyang Public May Guizhou Qingzhen Cease discharging into Settled Environment Education Ecological the environment, improve through Center v. Guizhou Province Protection environmental protection mediation Kaiyang Phosphorus Tribunal facilities and make them Chemical Industry operate normally in order to Company (gpeec v. Kai- meet emission standards. yang Phosphorus) Guiyang Public May Guizhou Qingzhen Cease discharging into Settled Environment Education Ecological the environment, improve through Center v. Guizhou Qian- Protection environmental protection mediation nengtianhe Phosphorus Tribunal facilities and make them Industry Company (gpeec operate normally in order to v. Qiannengtianhe) meet emission standards. All-China Environment Jun. Shandong Environmental Cease illegal discharge; On the Federation v. Shandong Protection pay 8,790,750 yuan for docket Haike Chemical Industry Adjudication ecological remediation Group Co. Ltd, et al. (acef Tribunal of expense incurred for third- v. Haike) Dongying party remediation. Economic and Technological Development Zone Court

climateDownloaded law from 7 Brill.com09/30/2021 (2017) 185-208 03:17:14PM via free access

ENVIRONMENTAL PUBLIC-INTEREST LITIGATION IN CHINA 195

Case name Filing Filing Court Claims Status at date place end of 2015

Dalian Environmental Jun. Liaoning Dalian Decree the defendant to Settled Protection Volunteers As- Intermediate compensate 7,221,399 yuan through sociation v. Dalian Riqian People’s Court for environment reme- mediation Electric Motors Corpora- diation from to its illegal tion (depva v. Riqian) income; cease infringing and handle discharge facilities according to law; offer an apology; bear the cost related to lawsuits. Xiangtan Environmental Jun. Hunan Zhuzhou Cease infringing, etc. On the Protection Association v. Intermediate docket Zhuzhou Jinliya Environ- People’s Court mental Protection Technol- ogy Company (Xiangtan v. Zhuzhou) Guiyang Public Environ- Jun. Guizhou Qingzhen Cease discharging effluents Settled ment Education Center Ecological and dumping waste residues; through v. Guizhou University, Protection carry out harmless treat- mediation Guizhou Sanyuan Indus- Tribunal ment of waste; remedy the trial Limited Company and ecology; run environmental- Guizhou Guijianhengda protection facilities; bear the Concrete Company (gpeec cost related to lawsuits. v. Three) Guiyang Public Environ- Jun. Guizhou Qingzhen Cease discharging effluents Settled ment Education Center v. Ecological and dumping waste residues; through Guizhou Guijianhengda Protection carry out harmless treat- mediation Concrete Company (gpeec Tribunal ment of waste; remedy the v. Guijianhengda) ecology; run environmental- protection facilities; bear the cost related to lawsuits. Guiyang Public Environ- Jun. Guizhou Environmental Cease discharging effluents Settled ment Education Center Protection and dumping waste residues; through v. Guizhou Sanyuan Tribunal of carry out harmless treatment mediation Industrial Limited Com- Qingzhen of waste; remedy the ecology; pany (gpeec v. Sanyuan Court run environmental-protection Industrial) facilities; bear the cost related to lawsuits.

climate law 7 (2017) 185-208 Downloaded from Brill.com09/30/2021 03:17:14PM via free access

196 Gong and An

Case name Filing Filing Court Claims Status at date place end of 2015

All-China Environment Jun. Fujian Ecological Cir- Restore the ecology, etc. Settled Federation v. Xu Zefu cuit Tribunal through (acef v. Xu) of Zhangzhou mediation Intermediate People’s Court China Mangrove Conserva- Jun. Gansu Pingliang Cease river discharges; On the tion Network Intermediate bear the fee for opening docket and China Biodiversity People’s Court up water sources; compen- Conservation and Green sate 30,000,000 yuan for Development Foundation pollution-related losses; bear v. The Ningxia Hui the cost related to lawsuits. Autonomous Region Longde County People’s Government and Seven Other Defendants (gdf v. Ningxia) China Mangrove Conserva- Jul. Shandong Qingdao Mari- Remedy the ecology and On the tion Network time Court restore the original state of docket and China Biodiversity the environment. Conservation and Green Development Foundation v. ConocoPhillips China Co. Ltd and China National Offshore Oil Corporation (gdf v. Conoco) Friends of Nature v. Beijing Jul. Beijing Beijing Fourth Cease constructing, dump- On the Doushi Fangyuan Real Intermediate ing residue soil and solid docket Estate Agency and Beijing People’s Court waste, and damaging the Jiuxin Property Manage- ecology in lake areas; pay ment Company (Friends v. 9,500,000 yuan for eco- Doushi) environment remediation expense; compensate the fee for eco-service function loss used for wetland conservation in Changping District.

climateDownloaded law from 7 Brill.com09/30/2021 (2017) 185-208 03:17:14PM via free access

ENVIRONMENTAL PUBLIC-INTEREST LITIGATION IN CHINA 197

Case name Filing Filing Court Claims Status at date place end of 2015

All-China Environment Jul. Jiangsu Suzhou Compensate 156,291 yuan Settled by Federation v. Zhang Jianc- Intermediate for environmental pollution judgment hun (acef v. Zhang) People’s Court remediation expense China Mangrove Conserva- Oct. Zhejiang Jiaxing Cease infringing, restore On the tion Network Intermediate original state, and eliminate docket and China Biodiversity People’s Court risks. Conservation and Green Development Foundation v. Zhejiang Fubang (gdf v. Fubang) China Mangrove Conserva- Oct. Henan Zhengzhou Offer an apology; re-plan the On the tion Network Intermediate area, perform conservation docket and China Biodiversity People’s Court in situ to immovable cultural Conservation and Green relics and site protection Development Foundation to dismantled former resi- v. Shangjie District dences; construct a museum Magu Village Committee, of cultural relics and rebuild Shangjie District People’s dismantled cultural relics; Government, Xiawo Town bear the cost related to People’s Government and lawsuits. Shangjie District Bureau of Culture, Radio, Film, tv, Press and Publication, et al. (gdf v. Shangjie et al.) China Mangrove Conserva- Oct. Anhui Bozhou Compensate 7,000,000 yuan On the tion Network Intermediate used for the ecological reme- docket and China Biodiversity People’s Court diation in Biaoli Town. Conservation and Green Development Foundation v. Changzhou Yongtaifeng Chemical Industry and Changzhou Qinghong Chemical Industry (gdf v. Changzhou Chemical)

climate law 7 (2017) 185-208 Downloaded from Brill.com09/30/2021 03:17:14PM via free access

198 Gong and An

Case name Filing Filing Court Claims Status at date place end of 2015

China Mangrove Conserva- Dec. Ningxia/ Environmental Eliminate pollution hazard, On the tion Network Beijing Resources restore the ecological envi- docket and China Biodiversity Adjudication ronment or establish a fund Conservation and Green Tribunal of for entrusting a third party Development Foundation the Supreme to remedy; compensate v. Eight Defendants (gdf People’s Court ecological function losses; v. Eight) offer an apology. China Mangrove Conserva- Dec. Tianjin Tianjin Second Offer an apology; pay for On the tion Network Intermediate pollution damage and puni- docket and China Biodiversity People’s Court tive compensation; remedy Conservation and Green the polluted environment; Development Foundation bear the cost related to v. Volkswagen (China) lawsuits. Sales Company (gdf v. Volkswagen) China Mangrove Conserva- Dec. Sichuan Environmen- Take plant protection On the tion Network tal Resources measures; suspend relevant docket and China Biodiversity Adjudication projects. Conservation and Green Tribunal of Development Foundation Ganzi Autono- v. Hydroelectric Development mous Prefecture Corporations in Ya-lung River Intermediate Basin (gdf v. Hydro Corp.) People’s Court

4 Positive Outcomes

The envpil cases of 2015 demonstrate progress compared with cases in earlier years. This underscores the role of the new epl as a positive force, as discussed below.

4.1 Number of Accepted Cases Increased Markedly During the ten years from 2005 to 2014, the total number of envpil cases heard by China’s courts was 4723—an average of less than five per year. In 2015, 38 cases were accepted and heard, representing a remarkable increase.

23 The data sources in previous years: Wang Shekun, ‘Investigation Report of Juridical Prac- tice and System Construction of China’s Environment Public-Interest Litigation’, 1 China’s

climateDownloaded law from 7 Brill.com09/30/2021 (2017) 185-208 03:17:14PM via free access

ENVIRONMENTAL PUBLIC-INTEREST LITIGATION IN CHINA 199

4.2 Scope of Cases Extended The earlier envpil system was mainly directed at pollution problems, especially water pollution. Among the 47 cases of the prior decade, there were 33 water-pollution and two air-pollution cases. By contrast, the 2015 cases were more diverse. They consisted of 25 cases of water-pollution, eight air-pollution cases, six ecological-damage cases, two cases of hazardous-waste disposal, two cases of soil pollution, a cultural-relics case, and an endangered-plant case. The types of pollution under consideration were thus more diverse, with solid-waste and soil-pollution issues starting to appear, and air-pollution cases increasing significantly as a proportion. Moreover, ecological-damage cases became prominent,24 and cases involving endangered plants and cultural relics also made an appearance. This year was the first time pil was used not only with respect to endangered plants but also to avert the risk of damage to them;25 and the cultural-relics case extended envpil action from the natural to the artificial environment.

4.3 Range of Plaintiffs Extended; Growth in Influence of Grassroots ngos and Non-National Organizations envpil cases prior to 2015 were mainly brought by official epos (Environmen- tal Protection Organizations), in particular acef.26 Participation of grassroots ngos was rare. Almost all the plaintiffs in heard cases belonged to nation-wide

Environmental Rule of Law 77 (2011), summarized the data of various types of envpil cases prior to 2010; and Chen Liang, ‘Study on Environment Public-Interest Litigation’, Law Press China (2015), at 223–32, analyzed the data of various types of envpil cases from 2005 to 2013. Based on them, the authors sifted out envpil data for 2005 to 2013, and added this to the data of 2014, summarizing 47 cases. 24 See, e.g., Fujian Green Earth Volunteers and Friends of Nature v. Xie Zhijin and Three Other Defendants, known as the “First Case of Environment Public-Interest Litigation in 2015”, and Green Development Foundation v. ConocoPhillips China and China National Offshore Oil Corporation. 25 He Yonghai, ‘Icebreaking Significance of First Public-Interest Litigation Case Regarding Protecting Endangered Plants’, Chaozhou Daily, 19 September 2015, at L7. 26 Such as the cases of Friends of Nature accusing Taizhou Rubber Plant, Woaite Chemi- cal Plant, and Zhongdan Chemical Plant of illegally disposing waste acid. The details of these three cases were similar to the Taizhou 2014 case, which involved illegally discharging pollutants into the Yangtze River. However, the prosecution of the latter by the government-organized Taizhou Environmental Protection Federation, for which the legal representative was the deputy director general of the local environmental protection bureau, was accepted and heard, and was awarded a huge compensation of 160,000,000 yuan; while the case brought by Friends of Nature was refused by Taizhou Intermediate People’s Court.

climate law 7 (2017) 185-208 Downloaded from Brill.com09/30/2021 03:17:14PM via free access

200 Gong and An organizations headquartered in Beijing. From there, they lodged complaints in other localities. In 2015, by contrast, grassroots ngos were active: the Guiyang Public Environment Education Center launched seven cases, while Friends of Nature launched six, the same number as acef. The number of cases launched by six non-national organizations accounted for nearly 40 per cent of the cases.27 All of these targeted local issues, taking advantage of the organizations’ familiarity with local affairs and reflecting their responsiveness to local opinion. The epl’s non-differentiation between government-run and other epos shows up in actual practice.

4.4 Scope of Defendants Extended Most defendants in the earlier envpil cases were vulnerable individuals or groups. Among the 47 pre-2015 cases, defendants included ten small businesses and seven peasant defendants, who caused little environmental damage.28 This phenomenon has been described as “wielding a big stick to beat mosquitos”.29 By contrast, in 2015, only one-in-ten cases was against an individual. Most defendants were enterprises, including many very large companies, such as Jinghua Group Zhenghua, ConocoPhillips, China National Offshore Oil Corporation, and Volkswagen. That year was also the first time that real-estate firms, property-management companies, travel corporations, and hydropower-development enterprises were envpil defendants. There were also institutional defendants (Guizhou University), village committees (Magu Village), local governments (Longde County People’s Government and Shangjie District Government), and even state organs (including Shangjie Dis- trict Bureau of Culture, Radio, Film, tv, Press and Publication).

4.5 Satisfaction Rates Were High and Environmental Damage Compensation Gained General Support Thirteen of the 2015 cases—more than one-third—were concluded before the year’s end. Among them, 11 were settled through mediation. This was a relatively high mediation rate compared with earlier years. Whether through mediation or judgment, the plaintiffs’ claims were awarded relatively large amounts

27 Guiyang Public Environment Education Center, Dalian Environmental Protection Volun- teers Association, Fujian Green Earth Volunteers, Qingzhen Municipal Eco-Environment Protection Federation, Xiamen Mangrove Conservation Union and Xiangtan Environ- mental Protection Association. 28 See Chen Liang, supra note 22, at 231. 29 Meng Dengke, ‘Wield a Big Stick to Beat Mosquitos’, Southern Weekly, 4 October 2010, at L5.

climateDownloaded law from 7 Brill.com09/30/2021 (2017) 185-208 03:17:14PM via free access

ENVIRONMENTAL PUBLIC-INTEREST LITIGATION IN CHINA 201 of compensation. For example, in fgev v. Xie, the defendants were required to pay about 2,540,000 yuan (more than us$400,000) in compensation;30 in depva v. Riqian, a settlement agreement of 200 million yuan (over us$32 million) was reached.31 By contrast, among pre-2015 envpil cases, most winning lawsuits failed to win full satisfaction of the plaintiffs’ claims. Damages were either denied or sharply reduced. For instance, in acef v. Tan and Fang (2014), the court supported environmental restoration but rejected damages.32 In Chongqing Green Volunteers Foundation v. Huangchangping Mining Indus- try (2014), the plaintiff claimed 19 million yuan compensation, but the court awarded 991,000 yuan.33

4.6 Trial-Mechanism Innovation Tested the Expert-Assistant System Damage assessment and its proof in environmental cases is a technical chal- lenge that environmental lawsuits are often confronted with. In recent years, China’s courts have used input from expert witnesses,34 expert consultative committees,35 and expert jurors.36 These practices were further developed in 2015. For example, in the case of fgev v. Xie, the Beijing Zhonglin Assets Appraisal Company was entrusted by the plaintiff to prepare an assessment report. A professor from the School of Environment and Ecology at Xiamen University also took part in this ecological damage assessment. The latter included an estimation of the cost of restoration of the woodlands in the case.37

4.7 Trans-Jurisdictional Issues Were Dealt With Environmental damage is often trans-jurisdictional. Pre-2015 envpil cases almost never dealt with issues crossing jurisdictional boundaries, in confor- mity with the Chinese principle of “administrative jurisdiction management”.

30 See . 31 See . 32 See . 33 See . 34 See, e.g., Panyu District Procuratorate v. Guangzhou City Panyu Xinzao Food Co. Ltd. (2012), . 35 See, e.g., Liability Disputes Case of acef and Guiyang Public Environment Education Center v. Guiyang City Wudang District Dingba Paper Mill (Water Pollution) (2011), . 36 See, e.g., Taizhou Environmental Protection Federation v. Jiangsu Changlong Agrochemical Co. Ltd., Taixing Jinhui Agrochemical Co. Ltd., et al. (2014), . 37 Pu Xiaolei, ‘Expert Assistants Boost Environment Public-Interest Litigation’, Legal Weekly, 4 November 2015, at L1.

climate law 7 (2017) 185-208 Downloaded from Brill.com09/30/2021 03:17:14PM via free access

202 Gong and An

However, in 2015, there were three cases involving trans-jurisdictional issues. In acef v. Xin’an, certain chemical enterprises in Jiande city, Zhejiang Province, lacking a disposal permit, delivered industrial waste-acid to an individual, who then transported it to Shandong Province and illegally disposed of it there.38 In the original criminal prosecution, these defendants were not held accountable for their civil liability for environmental damage in Shandong. They were consequently sued in the envpil case. The second such case was gdf v. Ningxia. Ningxia, in Longde County, dis- charged sewage and industrial wastewater into a river, causing contamination of the drinking water in Jingning County, Gansu Province. The matter remained unsettled for a long time.39 Litigation brought by the Green Develop- ment Foundation broke the deadlock of trans-jurisdictional pollution. A third case, Xiangtan v. Zhuzhou, was similar.

5 Problems and Shortcomings

5.1 Cases Were Both Rare and Unnaturally Concentrated While the 38 cases accepted in 2015 marked a significant increase in envpil cases compared with previous years, the number still bore no relationship to the actual breaches of environmental law. According to media reports, in 2015, China’s courts concluded 19,000 criminal environmental cases. As for civil and administrative matters related to environmental issues, the number of court cases was 78,000 and 27,000, respectively.40 The envpil caseload was minis- cule as a proportion. In addition, the distribution of cases by province was very uneven. Of the 38 cases, 25 were from the provinces of Guizhou, Ningxia, Jiangsu, and Shandong. About half of the remaining provinces did not give rise to a single accepted case. In provinces such as Henan (one envpil case in 2015) and Hebei (no such cases that year), environmental quality was (and still is) poor, and a multitude

38 Qie Jianrong, ‘All-China Environment Federation Filed Two Environment Public-Interest Lawsuits’, Legal Daily, 14 January 2015, at L8. 39 See Cui Feng, Huang Wenxin, and Wang Bo, ‘Water Source Region in Jingning, Gansu Was Polluted, There Were “Cyclopeses and Tubificidaes” Existing in Tap Water’, Xinhua Net, . 40 Qiao Wenxin, ‘Jiang Bixin Put Emphasis on Reinforcing the Judicial Protection of Environ- mental Resources and Maintaining the Environmental Rights and Interests of the Masses While Accepting an Interview From People’s Network’, People’s Court Daily, 12 March 2016, at L1.

climateDownloaded law from 7 Brill.com09/30/2021 (2017) 185-208 03:17:14PM via free access

ENVIRONMENTAL PUBLIC-INTEREST LITIGATION IN CHINA 203 of serious environmental problems were recorded at the time.41 By contrast, in Shandong (with five envpil cases), the environmental quality was relatively good. Shandong was among the first batch of pilot areas for “ecological province construction” approved by the former State Environmental Protection Administration. Guizhou, with the most envpil cases in 2015, has been at the forefront of innovation in environmental rule-of-law for years.42 It seems that local-government support, rather than the severity of environmental issues, was the major factor affecting the acceptance of envpil cases in 2015.

5.2 Minor Role of Environmental Protection Tribunals As a mechanism to support China’s construction of an ecological civilization, the environmental protection tribunals have been approved by the Supreme People’s Court and have received a positive response from local courts. Since the first environmental protection tribunal was established in 2007, 456 such tribunals have been set up across the country (as at November 2015), in 24 provinces, autonomous regions, and municipalities.43 However, among the 38 envpil cases of 2015, only eleven were heard in environmental protection tribunals, with no fewer than eight of these accepted by the tribunal of the

41 For example, Hebei was the province with the most cities required to participate in in- terviews due to environmental concerns in 2015. The air quality data of 74 cities collected by an environmental protection department showed that, in the list of the top ten areas with the worst air quality throughout China, Hebei had occupied half of the list over a long period of time, Xingtai and Baoding topped the list many times, and Henan and Gansu provinces followed close behind. See ‘Among the 20 Cities That Were Interviewed by an Environmental Protection Department Due to Environmental Issues, Prefecture- Level Cities Accounted for Six Out of Ten’, Beijing Times, 7 October 201, at L2; Chen Xiao, ‘Is There a Blue Called “Interview Blue”’, Legal Weekly, 13 January 2016, at L3. 42 It established “China’s first ecological protection tribunal”, set up ecological protection branches in procuratorates and public security bureaus, took the lead in founding an environmental protection adjudication tribunal in a higher court, and enacted China’s first provincial-level local laws and regulations regarding ecological civilization construction. Recently, it even provided environmental judicial opinions with direct policy support. For example, Guizhou Provincial Politics and Law Committee published Opinions Regarding Fully Playing the Functional Role of Political-Legal Organs in Order to Provide Law Guaran- tees for the First Demonstration Area of Building an Ecological Civilization; and Guizhou Pro- vincial Higher Court issued the Provisions Regarding Environmental Protection Cases Being Appointed Centralized Jurisdiction (Trial), and . 43 Luo Bin, ‘Environmental Resources Adjudication: Protect Beautiful China’, People’s Court Daily, 12 March 2016, at L5.

climate law 7 (2017) 185-208 Downloaded from Brill.com09/30/2021 03:17:14PM via free access

204 Gong and An

Guiyang Qingzhen Municipal People’s Court.44 While environmental protection tribunals were not established specifically for pil, this distribution seems abnormal.

5.3 Incentive to Litigate was Insufficient Among over 700 Chinese epos with standing to litigate, only nine took a case to court in 2015. Most cases were brought by one of four organizations: Green Development Foundation, Friends of Nature, acef, and Guiyang Public Envi- ronment Education Center. It is an indication that the existing system is still woefully deficient in stimulating action by epos. While the new legislation re- moves some barriers for lawsuits initiated by epos that possess a relatively high influence and ability (such as Friends of Nature) or have the tacit support of local courts (such as the Guiyang Public Environment Education Center), the law is not especially supportive of the average epo. Incentives are important for the effective implementation of pil. Most epos in China suffer from a shortage of funds, knowledge, and skills.

5.4 Deviation From Environmental Optimum With limited resources, ngos must choose which unlawful acts to pursue. Therefore, the question of which cases they do pursue is an important one. Two major features characterize the cases of 2015. One is that they targeted significant environmental events that attracted broad attention. Thus gdf v. Conoco concerned a major oil-spill in 2011; gdf v. Volkswagen came in the wake of ‘Dieselgate’ and the heavy fines imposed on the car manufacturer by the United States’ epa; and gdf v. Eight was triggered by a pollution incident that attracted President Xi Jinping’s attention. The second significant feature is that many of the cases were of long standing, the defendants having already been dealt with under administrative or even criminal law,45 meaning that the unlawful activities had ceased prior to

44 They were the environmental protection adjudication tribunal of the Dongying Eco- nomic and Technological Development Zone Court, the ecology circuit tribunal of the Zhangzhou Municipal Intermediate Court, and the environmental resources adjudication tribunal of the Garze Tibetan Autonomous Prefecture Intermediate Court. 45 For instance, in Fujian Green Earth Volunteers and Friends of Nature v. Xie Zhijin and Three Other Defendants, the defendants had been sentenced to between 12 to 18 months in jail and ordered to pay a fine of 50,000 yuan each: ; in acef v. Xin’an Chemical Industry and Five Other Defendants, the enterprises involved were fined 63,000,000 yuan, 13,000,000 yuan, and 2,400,000 yuan, and the two natural-person defendants were sentenced to a severe penalty of “five years and six months in prison and a 3,000,000 yuan fine” and “nine

climateDownloaded law from 7 Brill.com09/30/2021 (2017) 185-208 03:17:14PM via free access

ENVIRONMENTAL PUBLIC-INTEREST LITIGATION IN CHINA 205 the filing of the envpil cases. The advantages of this method of case selection are obvious. It increased the chances of acceptance and victory, saved on the cost of investigation and testimony collection, and garnered positive publicity. However, from the point of view of environmental protection, it is doubtful that this method makes the best use of envpil. After all, most problems had already been resolved and the defendants had been held accountable (to some extent). By contrast, a large number of harmful environmental violations were not litigated because they did not attract much media attention or were not first dealt with through administrative or criminal procedures.

5.5 Shortcomings in Plaintiffs’ Qualifications Even though epl article 58 and the Interpretation stipulate a plaintiff’s qualifications, disagreement on this point continues in practice. Under current law, envpil plaintiffs must “specialize in environmental protection”. The law does not further define this requirement. The situation led to the plaintiffs in gdf v. Eight at first being denied standing by the Zhongwei Intermediate People’s Court, and then by the Ningxia Higher People’s Court, on the grounds that the organization did not have the words “specializing in environmental protection” written into its articles of association. (The phrase “biodiversity protection and green causes” was deemed to be insufficient.) The case was thus blocked, un- til the Supreme People’s Court, in an uncommon occurrence, reheard it. The Court stated that “whether an organization is actually engaging with environmental protection” is to be “judged by the meaning rather than the words in its constitution”.46 Nonetheless, the relevant legal test remains undefined. In Friends of Nature v. Taizhou Rubber, the Taizhou Intermediate People’s Court denied standing to the plaintiffs on the grounds that Friends of Nature was a “research institute engaged in environmental research, rather than a social organization specializing in environmental protection”.47 The question went to the Jiangsu Higher People’s Court, which ruled that Friends of Nature was qualified. It said that “the Friends of Nature Research Institute, as a research institute engaged in environmental studies, was an organization

years in prison and a 5,000,000 yuan fine”: and . 46 Civil Written Verdict of the Supreme People’s Court (2016) Zuigaofaminzai No. 45; translation by the authors. 47 Civil Order of the Taizhou City Intermediate People’s Court (2015) Taizhonghuangong- minsuchuzi No. 1; translation by the authors.

climate law 7 (2017) 185-208 Downloaded from Brill.com09/30/2021 03:17:14PM via free access

206 Gong and An specializing in environmental protection”.48 However, the Court did not at- tempt to define the relevant notion. To date, there is no authoritative or clear elaboration of the requirements for standing. The meaning of the epl’s “for over five years in succession” test has also caused difficulty in practice. A typical case in this respect is fgev v. Xie. The filing date of this case was 1 January 2015, while the registration date of Friends of Nature, which was a co-plaintiff in the case alongside fgev, was 18 June 2010, less than five years before the court filing. As a result, the ngo’s standing qualification was questioned. Friends of Nature submitted that the starting point of the five-year period was not the registration date but the date on which its work on environmental protection commenced. The ngo’s predecessor, the Green Culture Branch of the Academy of Chinese Culture, was founded and began working on environmental protection in 1993. The court decided that, although Friends of Nature was registered only in June 2010, it “had already been engaged in environmental protection according to law before that for more than five years”, thus meeting the legal requirement. The court did not concede the point about Friends of Nature being a continuation of its predecessor. Thus, this decision leaves the matter essentially unsettled.

5.6 “Ecological Compensation” Abused Of the 38 envpil cases of 2015, 23 made a claim for restoration of the ecology or for payment of ecological remediation fees, whereas ten cases made a claim for payment for losses of eco-environmental service functions, echoing the guidance of the Interpretation, which affirmed the concept of ecological remediation and considered it to be a concrete form of restoration. Compared with traditional damage compensation, ecological compensation is calculated based on the ecological environment, instead of damage to individual elements and their remediation. Therefore, compensation costs tend to be very high. In terms of implementation, ordering ecological compensation can be more practicable than an order to cease infringements. Compulsory implementation can be carried out, if the defendant has verifiable assets, without necessarily requiring an enterprise to suspend its business or shut down. Another reason why ecological compensation is particularly welcomed is because both the courts and local governments can benefit from the poten- tially large amounts of money involved. In practice, courts frequently utilized this form of liability in the 2015 envpil cases. However, restoration, in a nar- row sense, is an institution designed to redress damage to traditional property,

48 Civil Order of the Jiangsu Provincial Higher People’s Court Civil Order (2015) Suhuan- gongminsuzhongzi No. 1; translation by the authors.

climateDownloaded law from 7 Brill.com09/30/2021 (2017) 185-208 03:17:14PM via free access

ENVIRONMENTAL PUBLIC-INTEREST LITIGATION IN CHINA 207 which is not identical with ecological remediation of “special property” (the ecological environment). It has been said that the Interpretation “mistakenly regarded ecological remediation as ecological restoration”, and “conceived of the responsibility for ecological remediation from the perspective of repristination”.49 This understanding has generated problems in practice. First, a court order for restoration implies that there is the possibility of restoration. However, the ecological environment exists on a vast scale and is subject to uncertain changes, which makes restoration difficult. In the envpil cases of 2015, it was difficult to give effect to restoration claims in most cases, except in those regarding afforestation and replanting. For example, in gdf v. Conoco, the plaintiff claimed that the defendant should “restore [the affected Bohai Sea area] back to the condition that it was in before the oil spill accident happened”. Given the openness of the Bohai Sea and the diversity of sources polluting it,50 this claim simply could not be given effect. Second, effective ecological remediation is a systematic project, which requires jurisdictional cooperation and a relatively long timeframe, so it is difficult to implement it case by case. Individual and trivial “remediation” may waste resources and make for futile efforts, just as in acef v. Zhang, in which the judge awarded compensation for ecological restoration of up to 100,000 yuan (about us$15,000). It is not hard to imagine the result of “ecological remediation” with so little money. Third, the cost of institutional implementation is high. Liability for repristination requires a court to make a decision after identifying the condition that an ecological environment was in prior to the damage. The court must also decide what amount of change is attributable to the defendants, as well as a feasible program and cost calculation for restoring the environment to its previous condition. These are not easy points to decide. Taking fgev v. Xie as an example, even though it was a comparatively straightforward case of damage, its remediation expense evaluation was still dubious.51 Implementation costs

49 Wu Peng, ‘Judicial Interpretation of the Supreme Judicial Court Misunderstands and Cor- rects the Ecological Remediation System’, 4 Journal of China University of Geosciences (So- cial Science Edition) 46 (2015). 50 See Li Shuwen, ‘Reason and Countermeasure of the Pollution Problem in Circum-Bohai- Sea Region’, 3 Economic Research Guide 159 (2007). 51 The preliminary ecological remediation cost estimate report of this case was issued by Beijing Zhonglin Assets Appraisal Co., Ltd. The defendants said that this company, as “an assets appraisal organ”, did not have the qualification of estimating ecological environment remediation expenses, the participants did not possess appraisal qualifications, and the estimation was the plaintiff’s unilateral commission without consulting the defendants’ opinion. Some defendants even questioned that the assessment was simply

climate law 7 (2017) 185-208 Downloaded from Brill.com09/30/2021 03:17:14PM via free access

208 Gong and An would further increase where scientific disputes are involved, or where the parties’ experts have different opinions. Lastly, how to ensure that the money be spent wisely? In some envpil cases, special accounts have been established with the support of local governments, while some are under the supervision of the national treasury, environmental protection bureaus, or the courts.52 Experts have advised establishing a consolidated and independent “special capital accounts for envpil” at the provincial level, or a national ecological damage remediation fund.53 Expend- ing these funds efficiently is crucial to the ultimate goal of envpil, whereas the present confusion indicates that many challenges still remain.

6 Conclusion

Our analysis of the 2015 envpil cases shows elements of progress as well as ongoing problems with China’s environmental public-interest litigation. Under the influence of the epl’s article 58 and the Interpretation, China’s envpil has made significant progress in matters such as the number of cases accepted, the types of cases accepted, the range of plaintiffs and defendants, the handling of cases, and the trial mechanism. However, there are still many shortcomings in the legal mechanism. From the perspective of legal system development, little more than the framework of envpil currently exists. Many elements remain unimplemented, and many controversial points remain to be clarified. Issues include how to ensure that envpil cases are smoothly accepted, how to give full play to the required functions of an environmental protection court, how to encourage litigation in deserving cases, and how to improve ecological compensation rules. Given that the basic framework has been set up, further developments are inevitable and worthy of our continued attention.

calculated based on the amount (1 mu =0.0667 hectares) of repurposed forestry land, and had not carried out fact-finding about the status and functions of the forest land involved before the change occurred; however, the court refuted this, citing the general reasons that the law did not ban unilateral commissions, the defendants did not apply for a reap- praisal, and the appraisers “were all experts with high professional titles and doctorates in the fields of ecology and environmental protection”, and admitted the assessment result: . 52 Zhang Sijia, ‘Supreme Law Clears up the Doubts as to Whom the Winning Compensation of envpil Belongs’, Beijing Times, 30 December 2016, at L6. 53 Tong Zhiwei, ‘How to Reasonably Use the Compensation of Public-Interest Litigation’, China Environment News, 15 March 2016, at L3.

climateDownloaded law from 7 Brill.com09/30/2021 (2017) 185-208 03:17:14PM via free access