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Standing to Sue Beyond Individual Rights: Who Should Be Eligible to Bring Environmental Public Interest Litigation in China?

Published online by Cambridge University Press:  27 May 2019

Qi Gao Open the ORCID record for Qi Gao [Opens in a new window]  and
Sean Whittaker
Qi Gao
Affiliation:
KoGuan Law School, Shanghai Jiao Tong University (China). Email: [email protected].
Sean Whittaker
Affiliation:
School of Social Sciences, University of Dundee (United Kingdom) Email: [email protected].
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Abstract

Formally adopted in 2012, environmental public interest litigation in China has expanded standing beyond individual rights by granting administrative authorities, procuratorates, and non-governmental organizations (NGOs) the ability to initiate environmental public interest litigation (PIL). However, the aims of enhancing the enforcement of environmental regulation and the development of the ‘objective legality’ model through civil society have not been met. This is as a result of administrative authorities and procuratorates being granted standing, which inhibits NGOs from initiating their own PIL in line with the aims of the ‘objective legality’ model. In order to promote participation by civil society and its actors in environmental law enforcement, NGOs should be granted preferential standing in environmental PIL. To this end, the current requirements for NGOs to be granted standing should be relaxed, and the standing granted to administrative authorities and procuratorates should be limited or removed.

Keywords

Public interest litigation (PIL)ChinaStandingNon-governmental organization (NGO)Administrative authorityProcuratorate
Type
Article
Information
Transnational Environmental Law , Volume 8 , Issue 2 , July 2019 , pp. 327 - 347
Copyright
Copyright © Cambridge University Press 2019 

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Footnotes

The authors would like to thank the anonymous reviewers and those who have commented on earlier drafts of this article. Any errors remain those of the authors alone.

References

1 ‘Beijing Starts 2017 under a Cloud of Thick Toxic Smog’, Hong Kong Free Press, 1 Jan. 2017, available at: https://www.hongkongfp.com/2017/01/01/beijing-starts-2017-cloud-thick-toxic-smog.

2 G. He, ‘China's Dirty Pollution Secret: The Boom Poisoned Its Soils and Crops’, 30 June 2014, available at: http://e360.yale.edu/feature/chinas_dirty_pollution_secret_the_boom_poisoned_its_soil_and_crops/2782.

3 Schall, C., ‘Public Interest Litigation Concerning Environmental Matters before Human Rights Courts: A Promising Future Concept’ (2008) 20(3) Journal of Environmental Law, pp. 417–53CrossRefGoogle Scholar, at 419.

4 Ibid., p. 444.

5 Rabkin, J.A., ‘The Secret Life of the Private Attorney General’ (1998) 61(1) Law and Contemporary Problems, pp. 179–203CrossRefGoogle Scholar.

6 A somewhat analogous term for procuratorates is public prosecutors. However, there are some distinctions between the two, so this article will refer to these bodies as procuratorates. See Constitution of the People's Republic of China, Art. 129; and Stahnke, G. Ginsburgs & A., ‘The Genesis of the People's Procuratorate in Communist China 1949–1951’ (1964) 20 The China Quarterly, pp. 1–37Google Scholar, at 1.

7 Henry, H.P., ‘A Shift in Citizen Suit Standing Doctrine: Friends of the Earth, Inc. v. Laidlaw Environmental Services’ (2001) 28(2) Ecology Law Quarterly, pp. 233–52Google Scholar, at 234. See also Walton v. The Scottish Ministers [2012] UKSC 44, para. 152.

8 Greve, M.S., ‘The Non-Reformation of Administrative Law: Standing to Sue and Public Interest Litigation in West German Environmental Law’ (1989) 22(2) Cornell International Law Journal, pp. 197–244Google Scholar.

9 Greve, ibid., p. 201; Rabkin, n. 5 above, p. 183; Henry, n. 7 above, p. 235.

10 Greve, ibid., p. 213.

11 Greve, ibid., p. 232.

12 Particularly with regard to nature conservation, see E. Rehbinder, ‘Collective Court Actions for Protecting the Environment in the EU and Germany’, speech delivered at the Counsellors’ Office of the Shanghai Municipal People's Government, 30 Oct. 2014.

13 Levy, R.E. & Glicksman, R.L., ‘Judicial Activism and Restraint in the Supreme Court's Environmental Law Decisions’ (1989) 42 Vanderbilt Law Review, pp. 343–430Google Scholar, at 346.

14 Greve, n. 8 above, p. 223.

15 Berman, A. Yakovlev & M., Striving for Law in a Lawless Land: Memoirs of a Russian Reformer (Routledge, 1995), p. 22Google Scholar.

16 Greve, n. 8 above, p. 220; Degenhart, C., Kernenergierecht: Schwerpunkte, Entscheidungsstrukturen, Entwicklungslinien (Heymanns, 1981), pp. 154–5Google Scholar.

17 Shavell, S., ‘Liability for Harm versus Regulation for Safety’ (1984) 13(2) The Journal of Legal Studies, pp. 357–74CrossRefGoogle Scholar, at 372–4.

18 Meidinger, B. Boyer & E., ‘Privatizing Regulatory Enforcement: A Preliminary Assessment of Citizen Suits under Federal Environmental Laws’ (1985) 34(3) Buffalo Law Review, pp. 834–964Google Scholar, at 836–7.

19 Ibid., p. 838, and Rabkin, n. 5 above, p. 179. Notwithstanding this, the enforcement of environmental law is conducted mainly through administrative action initiated by the Environmental Protection Agency (EPA) and judicial action brought by the Department of Justice on behalf of the US (cases are referred by the EPA).

20 Coffee, J.C. Jr., ‘Understanding the Plaintiff's Attorney: The Implications of Economic Theory for Private Enforcement of Law through Class and Derivative Actions’ (1986) 86(4) Columbia Law Review, pp. 669–727CrossRefGoogle Scholar, at 669.

21 Sierra Club v. Morton, 405 U.S. 727, at 738, 753 (1972).

22 See Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000). See also Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007).

23 See Lujan v. Defenders of Wildlife, 504 U.S. 555, at 560 (1992).

24 Rehbinder, n. 12 above.

25 Bundesnaturschutzgesetz (BNatSchG) [Federal Nature Conservation Act], s. 63, 1 Mar. 2010, Federal Law Gazette, 2009, Part I, No. 51, p. 2542, unofficial English version available at: https://www.bmu.de/fileadmin/Daten_BMU/Download_PDF/Naturschutz/bnatschg_en_bf.pdf.

26 NGOs that fulfil prerequisites stipulated by the Environmental Remedies Act should gain recognition from competent federal or state (provincial) environmental authorities. For a list of recognized NGOs, see German Environment Agency (UBA), ‘Recognition of Environmental and Nature Protection Associations’, 12 Apr. 2016, available at: http://www.umweltbundesamt.de/en/recognition-of-environmental-nature-protection.

27 See Z. Liang & W. Liang, ‘Collectivism of Mao Zedong and Its Practical Significance’, CCCPC Party Literature Research Office, 9 Jan. 2018, available at: https://www.wxyjs.org.cn/mzdsxyj_568/201801/t20180116_236466.htm (in Chinese).

28 S. Geall, ‘Interpreting Ecological Civilisation (Part One)’, chinadialogue, 6 July 2015, available at: https://www.chinadialogue.net/article/show/single/en/8018-Interpreting-ecological-civilisation-part-one.

29 Central Committee of the Communist Party of China and The State Council, ‘Opinions on Accelerating the Ecological Civilization Construction’, 25 Apr. 2015, available at: http://paper.people.com.cn/rmrb/html/2015-05/06/nw.D110000renmrb_20150506_3-01.htm (in Chinese).

30 See generally Fairbairn, W., ‘An Examination of Judicial Independence in China’ (2016) 23(4) Journal of Financial Crime, pp. 819–32CrossRefGoogle Scholar, at 819.

31 The judicial branch in China falls short of independence from the executive branch in terms of budget allocation and appointment of personnel: T. Yang, ‘The Success Rate of Administrative Actions Went Down Rather than Going Up’, China Youth News, 6 Nov. 2014, p. 2 (in Chinese).

32 Examples include Local People's Government of Lishu District, Jixi City v. Jixi Chemical Industry Bureau and Shenyang Smelting Plant (1995), Intermediate Court of Jixi, Civil Division, First Instance, No. 5, 15 Dec. 1995 (in Chinese); People's Procuratorate of Haizhu District, Guangzhou Municipality v. Zhongming Chen et al. (2008), Maritime Court of Guangzhou, First Instance, No. 382, 9 Dec. 2008 (in Chinese); and Local People's Government of Yexie Town, Songjiang District, Shanghai v. Rongxiang Jiang and Shengzhen Dong (2012), Basic Court of Songjiang, Civil Division, First Instance, No. 4022, 28 June 2012 (in Chinese). It should be noted that the plaintiffs in these cases are administrative authorities and procuratorates, and that the relaxation of standing in these cases is based on distorted doctrinal interpretations of national property rights and government powers.

33 X. Yang, ‘China's Green NGOs Fight for the Right to Sue’, chinadialogue, 9 Dec. 2013, available at: https://www.chinadialogue.net/blog/6560-China-s-s-green-NGOs-fight-for-the-right-to-sue/en.

34 National People's Congress Standing Committee, 27 June 2017 (in Chinese), Art. 55(1). In 2012, this stipulation was in Art. 55.

35 National People's Congress Standing Committee, Order No. 9, 24 Apr. 2014 (in Chinese). Another piece of notable legislation is the Marine Environmental Protection Law (MEPL), National People's Congress Standing Committee, 4 Nov. 2017, Art. 89 (previously Art. 90 until the revisions to the Law in 2016), which has been considered the statutory basis for PIL initiated by administrative authorities since 1999. This is discussed in more detail in Section 3 below.

36 On the topic of judicial interpretation, see generally Wang, C., ‘Law-making Functions of the Chinese Courts: Judicial Activism in a Country of Rapid Social Changes’ (2006) 3 Frontiers of Law in China, pp. 1–30CrossRefGoogle Scholar.

37 National People's Congress Standing Committee, 27 June 2017.

38 N. 35 above.

39 A public legal person can participate in civil procedures if its civil rights or interests have been harmed: see Zhou, C., ‘The Function and Procedure of the Civil Public Interest Litigation’ (2014) 5 Northern Legal Science, pp. 90–104Google Scholar (in Chinese).

40 See ‘Notice of the Supreme People's Court on Issuing Several Opinions on Providing Judicial Safeguard and Services for Accelerating the Transformation of Economic Development Mode’, No. [2010] 18, 29 June 2010 (in Chinese) (in which the Supreme People's Court urged local courts to accept environmental cases filed by environmental protection authorities on behalf of the state seeking compensation).

41 See State Council, ‘Reform Plan for the Compensation of Environmental Damages’, 17 Dec. 2017, available at: http://www.gov.cn/zhengce/2017-12/17/content_5247952.htm (in Chinese) (which authorizes provincial and municipal governments to bring lawsuits to claim compensation for environmental harm within their administrative jurisdictions).

42 The State Council is China's chief administrative authority.

43 E.g., in the case of marine environmental protection, the main responsibilities are distributed among the Ministry of Environmental Protection, the State Oceanic Administration, and the Ministry of Agriculture.

44 See Zhou, n. 39 above, p. 95.

45 See also Local People's Government of Lishu District, Jixi City, n. 32 above, and Local People's Government of Yexie Town, n. 32 above (examples of the Chinese judiciary relaxing the requirements for standing in a variety of cases for plaintiffs who claimed to represent the public interest).

46 Environmental Protection Bureau of Jiangyin v. Wenfeng Wang et al., Basic Court of Jiangyin, Civil Division, First Instance, No. 3, 4 Dec. 2013 (in Chinese); see also Local People's Government of Yexie Town, Songjiang District, Shanghai v. Rongxiang Jiang and Shengzhen Dong, n. 32 above.

47 ‘The Supreme People's Court Announces Nine Typical Environmental Cases’, 3 July 2014, available at: http://www.chinacourt.org/article/detail/2014/07/id/1329697.shtml (in Chinese).

48 Indeed, following the responsibilities of administrative authorities to enforce environmental laws, most provisions of the Environmental Protection Law (2014), n. 35 above, are devoted to enumerating the powers and obligations of the executive branch on environmental protection. See generally Wang, J., Environmental Law (Peking University Press, 2015), pp. 79–88Google Scholar (in Chinese).

49 See Wang, X., ‘The Legislative Priority of Environmental Public Interest Litigation’ (2016) 10(6) Tsinghua University Law Journal, pp. 101–14Google Scholar, at 107 (in Chinese).

50 Dalian Environmental Protection Volunteers Association v. PetroChina Fuel Oil Co. Ltd et al., Dalian Maritime Court, Registration Division, First Instance, No. 5, 17 June 2015 (in Chinese).

51 BNatSchG [Federal Nature Conservation Act], n. 25 above; Umwelt-Rechtsbehelfsgesetz (UmwRG) [Environmental Appeals Act], s. 3, 17 Dec. 2018, Federal Law Gazette, Part I, p. 2549; German Environment Agency (UBA), ‘Access to Justice’, 15 June. 2017, available at: http://www.umweltbundesamt.de/en/access-to-justice.

52 Rehbinder, n. 12 above.

53 Constitution of the People's Republic of China (1982), Art. 129.

54 People's Procuratorate of Haizhu District, Guangzhou Municipality v. Zhongming Chen et al., n. 32 above.

55 See further Law on the Organization of the People's Procuratorate, National People's Congress Standing Committee, Order No. 49, 2 Dec. 1986 (in Chinese), Art. 5.

56 Supreme People's Procuratorate, ‘National People's Congress Standing Committee Authorized Supreme People's Procuratorate to Initiate Pilot Practice on Public Interest Litigation’, 1 July 2015, available at: http://www.spp.gov.cn/xwfbh/wsfbt/201507/t20150701_100535.shtml (in Chinese); Procuratorial Committee of the Supreme People's Procuratorate, ‘Implementation Measures for Pilots on People's Procuratorates Initiating Public Interest Litigation’, 16 Dec. 2015, available at: http://www.spp.gov.cn/zdgz/201601/t20160107_110537.shtml (in Chinese).

57 Z. Zhang, ‘Observation Report on Environmental Public Interest Litigation Filed by Procuratorates in Piloting Areas’, speech delivered at Symposium on the Theory and Practice of Environmental Public Interest Litigation in China, Zhejiang University, 10 June 2017 (in Chinese).

58 One case involved administrative litigation with an incidental civil action.

59 Jauernig, O., Civil Procedure Law (Zhou, Cui trans., Law Press, 2003), p. 77Google Scholar (in Chinese).

60 Civil Procedure Law, n. 34 above, Art. 55(2).

61 Judicial Interpretation of Public Interest Litigation Cases Initiated by Procuratorates (2018), Art. 13.

62 Administrative Litigation Law, National People's Congress Standing Committee, 27 June 2017 (in Chinese), Art. 25(4).

63 Between 2013 and 2017, procuratorates brought 1,383 environmental PIL cases, while NGOs initiated only 252 cases: ‘Supreme People's Court Work Report’, 9 Mar. 2008, available at: http://www.court.gov.cn/zixun-xiangqing-87832.html (in Chinese).

64 S. Xing & Y. Jin, ‘According to the Supreme People's Court, more than 700 NGOs Have Standing in Environmental Public Interest Litigation’, 7 Jan. 2015, available at: http://news.xinhuanet.com/politics/2015-01/07/c_127364386.htm (in Chinese).

65 H. Chen, ‘Rethink the Nationalization of Public Interest Litigation’, 29 Aug. 2018, available at: http://news.cssn.cn/zx/bwyc/201808/t20180829_4550532.shtml (in Chinese).

66 F. Ge, ‘A Practical Perspective on Environmental Public Interest Litigation’, speech delivered at the Environmental and Resources Law Institute, 3 June 2017.

67 Zhang, n. 57 above.

68 J. Cui, ‘Case Accepted: The Procuratorate of Nanjing Brought Public Interest Litigation against the Release of Acid Waste into Yangtze River’, China News, 4 Jan. 2017, available at: http://www.chinanews.com/m/sh/2017/01-04/8113682.shtml (in Chinese).

69 Judicial Interpretation on Environmental Public Interest Litigation, No. 1 (2015) of the Supreme People's Court, Art. 28 (in Chinese).

70 Ke, J., Theory of Practical Reason in Environmental Law (Chinese Social Science Press, 2012)Google Scholar, p. 4 (in Chinese).

71 .

72 See H. Chen, ‘Rethink the Nationalization of Public Interest Litigation’, 29 Aug. 2018, available at: http://news.cssn.cn/zx/bwyc/201808/t20180829_4550532.shtml (in Chinese).

73 Similar issues can be identified in other states with developing civil societies, such as Brazil: see Mcallister, L.K., Making Law Matter: Environmental Protection and Legal Institutions in Brazil (Stanford University Press, 2008), p. 69CrossRefGoogle Scholar.

74 Chen, n. 72 above.

75 Rehbinder, n. 12 above.

76 Procuratorate of Xishan District, Wuxi City v. Huarong Li et al., Basic Court of Xishan, Civil Division, First Instance, No. 1216, 2009 (in Chinese).

77 Rehbinder, n. 12 above.

78 See Procuratorial Committee of the Supreme People's Procuratorate, Rules for the Supervision over Civil Proceedings by the People's Procuratorates (for Trial Implementation)’, 23 Sept. 2013 (in Chinese).

79 Ke, n. 70 above.

80 Sullivan, T.F.P., Environmental Law Handbook (Bernan Press, 2014), p. 96Google Scholar. Only in instances where the EPA seeks recovery of response costs or enforcement of an administrative order must it refer the case to the Department of Justice.

81 Naysnerski, W. & Tietenberg, T., ‘Private Enforcement of Federal Environmental Law’ (1992) 68(1) Land Economics, pp. 28–48CrossRefGoogle Scholar, at 42.

82 See ‘Communique of the 4th Plenary Session of the 18th Central Committee of Communist Party of China’, 23 Oct. 2014, available at: http://www.china.org.cn/china/fourth_plenary_session/2014-12/02/content_34208801.htm.

83 Schwartz, J., ‘Environmental NGOs in China: Roles and Limits’ (2004) 77(1) Pacific Affairs, pp. 28–49Google Scholar, at 36.

84 Aikawa, Y., Environmental Policy and Governance in China (Springer, 2017), p. 184Google Scholar.

85 Ibid., p. 178.

86 See generally ibid.

87 Rehbinder, n. 12 above.

88 See generally Landemore, H., ‘Deliberative Democracy as Open, Not (Just) Representative Democracy’ (2017) 146(3) Daedalus, pp. 51–63CrossRefGoogle Scholar.

89 Rehbinder n. 12 above.

90 Chen, n. 72 above.

91 Thibaut, J., ‘An Environmental Civil Society in China? Bridging Theoretical Gaps through a Case Study of Environmental Protest’ (2017) 42(1–2) Internationales Asienforum, pp. 135–63Google Scholar, at 157.

92 C. Chang, ‘20 Years of China's Public Voice’, chinadialogue, 2012, available at: https://www.chinadialogue.net/article/show/single/en/4994-2-years-of-China-s-public-voice.

93 X. Yang, ‘China's Green NGOs Fight for the Right to Sue’, chinadialogue 9 Dec. 2013, available at: https://www.chinadialogue.net/blog/6560-China-s-s-green-NGOs-fight-for-the-right-to-sue/en.

94 See J. Qie, ‘The First Environmental Public Interest Litigation Case after the Revised Civil Procedure Law Entered into Force Was Stuck in an Awkward Situation’, Legal Daily, 26 Mar, 2013, available at: http://www.legaldaily.com.cn/index_article/content/2013-03/26/content_4313129.htm?node=5955 (in Chinese).

95 Taizhou Environmental Protection Federation v. Jiangsu Chang Long Agrochemical Co., Ltd et al., Intermediate Court of Taizhou, Environmental Public Interest Litigation, First Instance, No. 00001, 10 Sept. 2014 (in Chinese); Taizhou Environmental Protection Federation v. Jiangsu Chang Long Agrochemical Co., Ltd et al., High Court of Jiangsu, Environmental Public Interest Litigation, Appeal, No. 00001, 30 Dec. 2014 (in Chinese).

96 See, e.g., Z. Cui & L. Kong, ‘Why the Number of Environmental Public Interest Litigation Cases Did Not Skyrocket’, 27 Nov. 2015, available at: http:m.weekly.caixin.com/m/2015-11-27/100878973_all.html (in Chinese).

97 Xin, C., Understanding the Environmental Protection Law of People's Republic of China (Law Press China, 2014), pp. 202–3Google Scholar (in Chinese); and Law Committee of the National People's Congress, ‘The Report on the Modification of the Draft Amendment of Civil Procedure Law’, 24 Apr. 2012, available at: http://www.npc.gov.cn/wxzl/gongbao/2012-11/12/content_1745522.htm (in Chinese).

98 Environmental Protection Law, n. 35 above, Art. 58. Additionally, organizations that initiate PIL may not seek financial benefit.

99 Judicial Interpretation on Environmental Public Interest Litigation, n. 69 above, Arts 2–5.

100 This is significant as the All-China Environment Federation is a ‘de facto government-owned organization’ subjugated to the Ministry of Environmental Protection: see J. Wübbeke, ‘The Three-Year Battle for China's New Environmental Law’, chinadialogue, 25 Apr. 2014, available at: https://www.chinadialogue.net/article/show/single/en/6938-The-three-year-battle-for-China-s-new-environmental-law; National People's Congress, ‘Second Reading Draft for the Amendment of Environmental Protection Law’, 17 July 2013, available at: http://www.npc.gov.cn/npc/xinwen/lfgz/flca/2013-07/17/content_1801189.htm (in Chinese).

101 Regulations on the Registration and Management of Social Organizations, State Council, Order No. 250, 25 Oct. 1998, Arts 9 and 11 (in Chinese).

102 This is not necessarily the case for all NGOs, such as environmental science institutes: see All-China Environment Federation, ‘2008 Report on the Development of Environmental NGOs in China’, 26 May 2009, available at: http://www.acef.com.cn/news/lhhdt/2009/0526/9394.html (in Chinese).

103 Judicial Interpretation on Environmental Public Interest Litigation, n. 69 above, Art. 4.

104 Environmental Protection Law 2014, n. 35 above, Art. 58.

105 UmwRG [Environmental Appeals Act], n. 51 above, s. 3.

106 Z. He, ‘Should Environmental Public Interest Litigation Find a New Path?’, 19 Dec. 2014, available at: http://www.cenews.com.cn/sylm/zdtj/201412/t20141219_785341.htm (in Chinese).

107 Southern Weekly, ‘Ten Years of Congjie Liang and Ten Years of Friends of Nature’, 17 Nov. 2007, available at: http://phtv.ifeng.com/hotspot/river/green/200711/1117_2348_301229.shtml (in Chinese).

108 Friends of Nature and Fujian Green Home Environment Friendly Center v. Zhijin Xie et al., Intermediate Court of Nanping, Civil Division, Appeal, No. 2060, 29 Oct. 2015 (in Chinese).

109 Ibid.

110 Ibid.

111 Ibid.

112 Friends of Nature brought 8 out of 37 PIL cases in China in 2015: Wang, S., ‘Observation Report on Environmental Public Interest Litigation’, in Li, D. (ed.), 2015 Observation Report on Environmental Public Interest Litigation (Law Press, 2015), pp. 251–82Google Scholar, at 263 (in Chinese).

113 E.g., violation of fire safety regulations.

114 Rehbinder, n. 12 above.

115 In 2015 there were 2,209 counties in China: see generally Li, M. et al. , ‘Study on Population Distribution Pattern at the County Level of China’ (2018) 10(10) Sustainability 3598CrossRefGoogle Scholar, available at: https://www.mdpi.com/2071-1050/10/10/3598.

116 Huang, X., Report on Chinese NGOs (2010–2011) (Social Sciences Academic Press, 2011), p. 5Google Scholar (in Chinese).

117 Either by allowing the local NGO to participate as co-plaintiff or contribute by dealing with local matters such as gathering information and evidence: see Ge, n. 66 above.