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 ear- lier 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. © koninklijke brill nv, leiden, 2017 | doi 10.1163/18786561-00702005Downloaded from Brill.com09/30/2021 03:17:14PM via free access <UN> 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 “ecologi- cal civilization” (生态文明). This effort has been embodied in the 2014 revi- sions 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 protec- tion), 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 <UN> 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 in- stitutional 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 envi- ronmental 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 <UN> 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 im- plementation, 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 “build- ing 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 reser- voir” 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 <UN> ENVIRONMENTAL PUBLIC-INTEREST LITIGATION IN CHINA 189 was no legal basis for action in national law, the Wuxi and Guiyang govern- ments had to find support for envpil in local legislation.