Hostname: page-component-78c5997874-g7gxr Total loading time: 0 Render date: 2024-11-16T11:17:09.116Z Has data issue: false hasContentIssue false
  • English
  • Français

Mitigation and Adaptation through Environmental Impact Assessment Litigation: Rethinking the Prospect of Climate Change Litigation in China

Published online by Cambridge University Press:  19 May 2021

Xiangbai He
Xiangbai He*
Affiliation:
Zhejiang University Guanghua Law School, Zhejiang (China). Email: [email protected].
Get access Rights & Permissions [Opens in a new window]

Abstract

There are two general pathways towards climate change litigation in China: tort-based litigation to hold carbon emitters accountable in civil law, and administrative litigation against the government to demand better climate regulation. While the first pathway is gaining momentum among Chinese scholars, this article argues that legal barriers to applying tort-based rules to climate change should be fairly acknowledged. The article argues that China's legal framework for environmental impact assessment (EIA) provides more openness and flexibility for the resolution of climate change disputes. Therefore, EIA-based climate lawsuits, which challenge environmental authorities for not adequately taking climate change factors into account in decision-making processes, encounter relatively fewer legal barriers, require less radical legal or institutional reform, and have greater potential to maintain existing legal orders. The regulatory effects produced by EIA-based litigation suggest that the scholarship on climate change litigation in China should take such litigation seriously because it could influence both governments and emitters in undertaking more proactive efforts. This China-based study, with a special focus on judicial practice in the largest developing country, will shine a light on China's contribution to transnational climate litigation.

Keywords

Tort-based litigationEIA-based climate litigationRegulation-litigation interactionChinese judicial practiceClimate change disputes
Type
Article
Information
Transnational Environmental Law , Volume 10 , Issue 3 , November 2021 , pp. 413 - 439
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press.

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

I am grateful to Hao Zhang for reading this article and providing useful suggestions. Special thanks go to Dan Cho and Jessica Ginsberg for the constructive suggestions when editing this article. I also would like to thank four anonymous reviewers for their valuable comments. This research is funded by the Young Scholars Program of the National Social Science Fund of China (Grant No. 20CFX063) and Major Projects of the Key Research Institute of Humanities and Social Sciences of the Ministry of Education (Grant No. 19JJD820004).

References

1 United Nations Environment Programme (UNEP) & Sabin Center for Climate Change Law at Columbia Law School, The Status of Climate Change Litigation: A Global Review (UNEP, 2017), p. 4.

2 Sabin Center for Climate Change Law, Climate Change Litigation Databases, available at: http://climatecasechart.com.

3 Massachusetts v. EPA, 549 U.S. 497 (2007).

4 Stichting Urgenda v. Government of the Netherlands (Ministry of Infrastructure and the Environment), ECLI:NL: HR:2019:2006, Hoge Raad [Supreme Court], C/09/456689/HA ZA 13-1396. See also van Zeben, J., ‘Establishing a Governmental Duty of Care for Climate Change Mitigation: Will Urgenda Turn the Tide?’ (2015) 4(2) Transnational Environmental Law, pp. 339–57CrossRefGoogle Scholar, and Mayer, B., ‘The State of the Netherlands v. Urgenda Foundation: Ruling of the Court of Appeal of The Hague (9 October 2018)’ (2019) 8(1) Transnational Environmental Law, pp. 167–92CrossRefGoogle Scholar.

5 Markell, D. & Ruhl, J.B., ‘An Empirical Assessment of Climate Change in the Courts: A New Jurisprudence or Business as Usual?’ (2012) 64(1) Florida Law Review, pp. 15–87Google Scholar; Setzer, J. & Benjamin, L., ‘Climate Litigation in the Global South: Constraints and Innovations’ (2020) 9(1) Transnational Environmental Law, pp. 77–101CrossRefGoogle Scholar.

6 J. Peel & H. Osofsky, Climate Change Litigation: Regulatory Pathways to Cleaner Energy (Cambridge University Press, 2015), pp. 14–5.

7 Markell & Ruhl, n. 5 above; J. Setzer & R. Byrnes, ‘Global Trends in Climate Change Litigation: 2019 Snapshot’, Grantham Research Institute on Climate Change and the Environment, July 2019, p. 4, available at: https://www.lse.ac.uk/granthaminstitute/wp-content/uploads/2019/07/GRI_Global-trends-in-climate-change-litigation-2019-snapshot-2.pdf; Wilensky, M., ‘Climate Change in the Courts: An Assessment of Non-U.S. Climate Litigation’ (2015) 26(1) Duke Environmental Law and Policy Forum, pp. 131–79Google Scholar, at 131, 134.

8 Sabin Center, n. 2 above.

9 Ibid.

10 Ibid.

11 Peel & Osofsky, n. 6 above, p. 376.

12 Keele, D., ‘Climate Change Litigation and the National Environmental Policy Act’ (2018) 30(2) Journal of Environmental Law, pp. 285–309Google Scholar, at 295.

13 A preliminary search of key words ‘carbon emissions’, ‘energy conservation’, ‘green finance’ and ‘biodiversity conservation’ in China Judgment Online (available at: http://wenshu.court.gov.cn (in Chinese)) shows there are about 7,200 cases; see Zhao, Y., Lyu, S. & Wang, Z., ‘Prospects for Climate Change Litigation in China’ (2019) 8(2) Transnational Environmental Law, pp. 349–77CrossRefGoogle Scholar, at 354.

14 Friends of Nature (FON) v. State Grid Gansu Electric Power Co (北京市朝阳区自然之友环境研究所与国网甘肃省电力公司二审民事裁定书), Final Civil Judgment No. 679, Higher People's Court of Gansu Province, 2018. Interestingly, interviews with FON members reveal that one of the motivations for FON to bring this lawsuit was concern about climate change and GHG emissions reduction through developing renewables.

15 China Biodiversity Conservation and Green Development Foundation, ‘Results of the Eighth “Top Ten Public Interest Lawsuits in China” Came Out’, 22 Apr. 2019, available at: http://www.cbcgdf.org/NewsShow/4856/8369.html (in Chinese).

16 E.g., if a broad definition is adopted, including climate-driven claims, there are thousands of contract-based climate cases: Zhao, Lyu & Wang, n. 13 above, p. 354.

17 J.B. Ruhl, ‘What is Climate Change Law?’, OUPblog, 22 Aug. 2015, available at: http://blog.oup.com/2015/08/what-is-climate-change-law.

18 Peel, J. & Osofsky, H., ‘Climate Change Litigation's Regulatory Pathways: A Comparative Analysis of the United States and Australia’ (2013) 35(3) Law and Policy, pp. 150–83CrossRefGoogle Scholar, at 150, 153.

19 E.g., FON v. State Grid Gansu Electric Power Co., n. 14 above, and FON v. State Grid Ningxia Electric Power Co. (pending) are related to renewable energy law.

20 Setzer & Byrnes, n. 7 above; Nosek, G., ‘Climate Change Litigation and Narrative: How to Use Litigation to Tell Compelling Climate Stories’ (2018) 42(3) William & Mary Environmental Law and Policy Review, pp. 733–803Google Scholar, at 798; Peel, J., ‘Issues in Climate Change Litigation’ (2011) 5(1) Carbon & Climate Law Review, pp. 15–24CrossRefGoogle Scholar, at 17.

21 Markell and Ruhl define climate change litigation as ‘any piece of federal, state, tribal, or local administrative or judicial litigation in which the party filings or tribunal decisions directly and expressly raise an issue of fact or law regarding the substance or policy of climate change causes and impacts’: Markell & Ruhl, n. 5 above, p. 27.

22 J. Lin, ‘Climate Change Litigation in Asia and the Pacific’, in G. Van Calster, W. Vandenberghe & L. Reins (eds), Research Handbook on Climate Change Mitigation Law (Edward Elgar, 2015), pp. 578–600, at 579.

23 E.g., Chen Xijun v. National Intellectual Office Patent Reexamination Board (陈希军与国家知识产权局专利复审委员会二审行政判决书), Final Administrative Judgment No. 2968, 2018, Higher People's Court of Beijing.

24 J. Setzer & L. Vanhala, ‘Climate Change Litigation: A Review of Research on Courts and Litigants in Climate Governance’ (2019) 10(3) WIREs Climate Change online articles, pp. 1–19, at 5, available at: https://onlinelibrary.wiley.com/doi/abs/10.1002/wcc.580.

25 Zhao, Lyu & Wang, n. 13 above; B. Tan, ‘The Institutional Construction of China's Administrative Litigation on Climate Change: Climate Governance through Litigation’ (我国气候变化行政诉讼制度之构建——通过司法的气候治理) (2017) 4 Dong Yue Tribune, pp. 161–70; Q. Zhang, ‘Towards a Breakthrough in China's Climate Change Litigation: Environmental Public Interest Litigation Filed by NGOs’, in X. He, H. Zhang & A. Zahar (eds), Climate Change Law in China in Global Context (Routledge, 2020), pp. 162–87; C. Zhou, ‘Addressing Dilemmas over Climate Change Litigation in China’ (2019) 49(2) Hong Kong Law Journal, pp. 719–48.

26 Since 2013 there has been significant development in these two areas. The Civil Procedure Law amended in 2013 granted related authorities and organizations the standing to bring civil public interest litigation. Environmental non-governmental organizations (NGOs) are legally entitled to bring actions against polluters in the environmental public interest under the 2014 Environmental Protection Law. This follows two instances of judicial interpretation in environmental tort litigation and environmental public interest litigation respectively. There are also legal developments in public interest litigation brought by the procurators. Academic research on this is thriving: e.g., X. Wang, ‘The Legislative Order of Environmental Public Interest Litigation’ (论环境公益诉讼制度的立法顺序) (2016) 6 Qinghua Faxue, pp. 101–14; R. Zhang & B. Mayer, ‘Public Interest Environmental Litigation in China’(2017) 1(2) Chinese Journal of Environmental Law, pp. 202–28.

27 Zhao, Lyu & Wang, n. 13 above; Zhang, n. 25 above; Zhou, n. 25 above.

28 K. Bouwer, ‘The Unsexy Future of Climate Change Litigation’ (2018) 30(3) Journal of Environmental Law, pp. 483–506, at 486.

29 E.g., Peel & Osofsky, n. 6 above, pp. 9–15 (filling regulatory gaps; as an element of multidimensional climate governance; shaping smaller-scale decision making); E. Fisher, ‘Climate Change Litigation, Obsession and Expertise: Reflecting on the Scholarly Response to Massachusetts v. EPA’(2013) 35(3) Law and Policy, pp. 236–60 (a response to institutional failure; judicial reasoning provides authority for acting in response to climate change problems; and litigation is a forum for co-producing a physical and social understanding of climate change); B. Preston, ‘The Contribution of the Courts in Tackling Climate Change’ (2016) 28(1) Journal of Environmental Law, pp. 11–7 (providing equal access to justice; determining and not deferring climate change claims; upholding the rule of law; taking action and forcing the executive, legislature and private sector to take climate change seriously; explaining and upholding the fundamental values underpinning the law; promoting environmental values and putting a price on them; assisting the progressive and principled development of climate change law and policy; and making reasoned and evidence-based decisions).

30 E.g., in Massachusetts v. EPA, n. 3 above, the Supreme Court ruled that the EPA has authority under the Clean Air Act to regulate vehicle tailpipe GHG emissions. In Urgenda, n. 4 above, the Hague District Court ordered the Dutch state to limit GHG emissions to 25% below 1990 levels by 2020, finding the government's existing pledge to reduce emissions by 17% insufficient to meet the state's fair contribution towards the UN goal of keeping global temperature increases within 2 degrees Celsius of pre-industrial levels. The Court concluded that the state has a duty to take climate change mitigation measures on the ground of the ‘severity of the consequences of climate change and the great risk of climate change occurring. This is the first decision by any court in the world in which a state was ordered to limit GHG emissions for reasons other than statutory mandates.

31 H.M. Osofsky, ‘The Continuing Importance of Climate Change Litigation’ (2010) 1 Climate Law, pp. 3–29, at 5; Fisher, n. 29 above, p. 236.

32 Peel & Osofsky, n. 6 above, p. 30.

33 T. Okonkwo, ‘Protecting the Environment and People from Climate Change through Climate Change Litigation’ (2017) 10(5) Journal of Politics and Law, pp. 66–77, at 67–8.

34 P. Luff, ‘Risk Regulation and Regulatory Litigation’ (2011) 64(1) Rutgers Law Review, pp. 73–115, at 79.

35 J. Lin, ‘Climate Change and the Courts’ (2012) 32(1) Legal Studies, pp. 35–57, at 37.

36 D. Markell & J.B. Ruhl, ‘An Empirical Survey of Climate Change Litigation in the United States’ (2010) 40(7) Environmental Law Reporter, pp. 10644–55, at 10649.

37 P. Wang, L. Liu & T. Wu, ‘A Review of China's Climate Governance: State, Market and Civil Society’ (2018) 18(5) Climate Policy, pp. 664–79, at 665.

38 Ibid.

39 E. Fisher, E. Scotford & E. Barritt, ‘The Legally Disruptive Nature of Climate Change’ (2017) 80(2) The Modern Law Review, pp. 173–201, at 174.

40 F. Lin, ‘The Future of Judicial Independence in China’, Centre for Judicial Education and Research, City University of Hong Kong Working Paper Series No. 2, May 2016, pp. 1–2, available at: https://www.cityu.edu.hk/cjer/lib/doc/paper/WK2_The_Future_of_Judicial_Independence_in_China.pdf.

41 L. Li, ‘The Chinese Communist Party and People's Courts: Judicial Dependence in China’ (2016) 64(1) The American Journal of Comparative Law, pp. 37–74, at 72.

42 J. Ye, Climate Change Governance and Law (气候变迁治理与法律) (National Taiwan University Press, 2015), p. 402.

43 According to Art. 13 of the Administrative Litigation Law (amended in 2017), laws, regulations and departmental rules are exempt from judicial review in China.

44 Zhao, Lyu & Wang, n. 13 above, p. 365.

45 J. Cohen, ‘The Chinese Communist Party and “Judicial Independence”: 1949–1959’ (1969) 82(5) Harvard Law Review, pp. 967–1006, at 972.

46 R. Peerenboom, ‘Judicial Independence in China: Common Myths and Unfounded Assumptions’, in R. Peerenboom (ed.), Judicial Independence in China: Lessons for Global Rule of Law Promotion (Cambridge University Press, 2010) pp. 69–94, at 70.

47 R. Stern, ‘On the Frontlines: Making Decisions in Chinese Civil Environmental Lawsuits’ (2010) 32(1) Law and Policy, pp. 79–103, at 84.

48 Ibid., p. 85.

49 E.C. Ip, ‘The Supreme Court and the Making of Public Policy in Contemporary China’ (2010) 7 Michigan Journal of Public Affairs, pp. 1–15, at 1.

50 C. Ding, ‘Judicial Activism of Provincial Courts in China: Medical Negligence Law as a Case Study’ (2019) 7(3) The Chinese Journal of Comparative Law, pp. 505–36, at 506.

51 Q. Li, ‘Judicial Restraint or Judicial Initiative: China's Judicial Initiative under the Guidance of Public Policy’ (司法克制抑或司法能动——兼论公共政策导向下的中国司法能动) (2012) 3(19) Studies in Law and Business, pp. 85–93, at 87.

52 C. Wang, ‘Law-Making Functions of the Chinese Courts: Judicial Activism in a Country of Rapid Social Changes’ (2006) 1(4) Frontiers of Law in China, pp. 524–49, at 524.

53 Y. Song, ‘How Does Public Policy Enter the Judging Process: The Example of SPC's Judicial Interpretation’ (公共政策如何进入裁判过程——以最高人民法院的司法解释为例) (2009) 6 Studies in Law and Business, pp. 111–21, at 114.

54 According to the 2009 Tort Law, the polluter assumes the burden of proving that there is no causation between its conduct and the harm: Tort Law, 2009, Art. 66. The same rule relating to burden of proof is stipulated in China's Civil Code, enacted in 2021. To avoid confusion, this article still uses the Tort Law for analysis.

55 SPC, Interpretation of the Supreme People's Court of Several Issues on the Application of Law in the Trial of Disputes over Liability for Environmental Torts (最高人民法院关于审理环境侵权责任纠纷案件适用法律若干问题的解释), Interpretation No. 12, 2015.

56 SPC, Adjudication Committee, Provisions of the Supreme People's Court concerning Work on Case Guidance (最高人民法院关于案例指导工作的规定), 26 Nov. 2010.

57 M. Jia, ‘Chinese Common Law? Guiding Cases and Judicial Reform’ (2016) 129(8) Harvard Law Review, pp. 2213–34, at 2233; J. Deng, ’The Guiding Case System in China's Mainland’ (2015) 10(3) Frontiers of Law in China, pp. 449–74, at 454; V.I. Lo, ’Towards the Rule of Law: Judicial Lawmaking in China’ (2016) 28(2) Bond Law Review, pp. 149–68, at 155.

58 Jia, ibid., p. 2224.

59 SPC, Opinions on Giving Full Play to the Role of Judicial Functions to Provide Judicial Services and Guarantees for Promoting Ecological Civilization Construction and Green Development (关于充分发挥审判职能作用为推进生态文明建设与绿色发展提供司法服务和保障的意见), 2016.

60 SPC, The Regulation on Citation of Law, Regulations and other Normative Documents in Judgments (最高人民法院关于裁判文书引用法律、法规等规范性法律文件的规定), 2009.

61 Peel & Osofsky, n. 18 above, p. 151.

62 Peel & Osofsky, n. 6 above, pp. 35–53.

63 S. Hsu, ‘A Realistic Evaluation of Climate Change Litigation through the Lens of a Hypothetical Lawsuit’ (2008) 79(3) University of Colorado Law Review, pp. 701–66, at 717.

64 K. Viscusi, ‘Regulation of Health, Safety, and Environmental Risks’, in A.M. Polinsky & S. Shavell (eds), Handbook of Law and Economics (Elsevier, 2007) pp. 591–645, at 594.

65 R.J.T. Klein et al., ‘Portfolio Screening to Support the Mainstreaming of Adaptation to Climate Change into Development Assistance’ (2007) 84 Climatic Change, pp. 23–44.

66 C.W. Christopher, ‘Success by a Thousand Cuts: The Use of Environmental Impact Assessment in Addressing Climate Change’ (2008) 9 Vermont Journal of Environmental Law, pp. 549–613, at 604.

67 Established by the US 1969 NEPA, EIA serves as a systematic and integrative system that requires federal agencies to analyze and disclose the significant environmental impacts of proposed actions and the comparative impacts associated with reasonable alternatives to proposed actions. It forces agencies to integrate environmental concerns in decision making, facilitates public participation in governmental decision making, and encourages mitigation and self-policing. The influence of EIA is far-reaching, and its basic principles have been adopted extensively in the rest of the world, although with divergent legislation, institutional arrangements and implementation; see J.B. Ruhl et al., The Practice and Policy of Environmental Law, 4th edn (Foundation Press, 2017), p. 472; L.G. Wishnie, ‘NEPA for a New Century: Climate Change and the Reform of the National Environmental Policy Act’ (2008) 16(3) New York University Environmental Law Journal, pp. 628–54, at 629.

68 M.T.J. Kok & H.C. Coninck, ‘Widening the Scope of Policies to Address Climate Change: Directions for Mainstreaming’ (2007) 10(7/8) Environmental Science and Policy, pp. 587–99.

69 E.g., Christopher, n. 66 above; Wishnie, n. 67 above; D. Owen, ‘Climate Change and Environmental Assessment Law’ (2008) 33(1) Columbia Journal of Environmental Law, pp. 57–119; K.T. Haroff & K.K. Moore, ‘Global Climate Change and the National Environmental Policy Act’ (2007) 42(1) University of San Francisco Law Review, pp. 155–84.

70 Peel & Osofsky, n. 6 above, p. 13.

71 B. Mayer, ‘Climate Assessment as an Emerging Obligation under Customary International Law’ (2019) 68(2) International and Comparative Law Quarterly, pp. 271–308, at 274.

72 Christopher, n. 66 above, p. 606.

73 Mayer, n. 71 above, p. 282.

74 The Federal-Provincial-Territorial Committee on Climate Change and Environmental Assessment, Incorporating Climate Change Considerations in Environmental Assessment: General Guidance for Practitioners (Canadian Environmental Assessment Agency, 2003).

75 Directive 2014/52/EU amending Directive 2011/92/EU on the Assessment of the Effects of Certain Public and Private Projects on the Environment [2014] OJ L 124/1, Art. 3(1)c.

76 CEQ, ‘Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews’, 81 Federal Register 51866 (5 Aug. 2016). Under the Trump Administration, the CEQ issued a new draft guidance: ‘Draft National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions’, 84 Federal Register 30097 (26. June 2019).

77 Border Power Plant Working Group v. DOE, 260 F. Supp. 2d 997 (S.D. Cal. 2003); Sierra Club v. Federal Energy Regulatory Commission, 867 F.3d 1357 (D.C. Cir. 2017); Center for Biological Diversity v. U.S. Bureau of Land Management, No. 3:17-cv-00553, (D. Nev. Aug. 23, 2017); High Country Conservation Advocates v. U.S. Forest Service, 52 F. Supp. 3d 1174, 1192 (D. Colo. 2014).

78 S. Agrawala et al., Incorporating Climate Change Impacts and Adaptation in Environmental Impact Assessments: Opportunities and Challenges (OECD, 2011).

79 IAIA17, ‘Impact Assessment's Contribution to the Global Efforts in Addressing Climate Change’, 4–7 Apr. 2017, available at: https://conferences.iaia.org/2017/index.php.

80 Peel & Osofsky, n. 6 above, p. 45.

81 J. Wentz, Assessing the Impacts of Climate Change on the Built Environment under NEPA and State EIA Laws: A Survey of Current Practices and Recommendations for Model Protocols (Sabin Center for Climate Change Law, 2015), p. i.

82 The 2002 EIA Law allowed project developers to supplement EIA if they were found not to have had an assessment before project construction. This was as a major weakness in the EIA regime in that it undermined the whole logic behind the EIA process.

83 For more detailed discussion of EIA laws and their recent reform see X. He, ‘In the Name of Legitimacy and Efficiency: Evaluating China's Legal Reform on EIA’ (2020) 32(3) Journal of Environmental Law, pp. 441–69.

84 Some key examples are National Development and Reform Commission of the State Council (NDRC), ‘The Working Plan of Controlling GHGs Emission during the 13th Five-Year Plan’(十三五”控制温室气体排放工作方案), No. 61, 2016; NDRC, ‘Interim Measures for the Administration of Carbon Emission Trading’ (碳排放权交易管理暂行办法), No. 17, 2014; NDRC, The Plan for Constructing the National Emissions Trading Scheme (Electricity Generation Sector)’ (全国碳排放权交易市场建设方案（发电行业）), No. 2191, 2017; NDRC, ‘National Strategy of Climate Change Adaptation’ (国家适应气候变化战略), No. 2252, 2013; NDRC, ‘National Climate Change Program (2014–2020)’ (国家应对气候变化规划（2014–2020年）), No. 2347, 2014.

85 D. Bodansky, J. Brunnée & L. Rajamani, International Climate Change Law (Oxford University Press, 2017), p. 3.

86 A. Wang, ‘Symbolic Legitimacy and Chinese Environmental Reform’ (2018) 48(4) Environmental Law, pp. 699–760, at 726; According to Pew research, climate change has not been perceived by the Chinese government and the public to be as serious as air pollution, water pollution or energy security. This survey shows that about three-quarters (76%) of people in China regard air pollution as a big problem, of which 35% regard it as a very big problem. Just 18% think climate change is a ‘very serious’ problem – a much lower number than the 54% median level in 40 countries surveyed. Similarly, while 40% of the world populations are very concerned that global warming will harm them personally, just 15% in China share this fear: Pew Research Center, Global Concern about Climate Change, Broad Support for Limiting Emissions, available at: http://www.pewglobal.org/2015/11/05/global-concern-about-climate-change-broad-support-for-limiting-emissions.

87 EIA Law, 2018, Art. 17.

88 Ministry of Environmental Protection (MEP), Guideline for Technical Review of Environment Impact Assessment (建设项目环境影响技术评估导则), HJ616-2011 (2011), para 6.3.2.8.

89 MEP, Technical Guidelines for Strategic Environmental Assessment: General Principles (规划环境影响评价技术导则总纲), HJ 130-2019 (2019), para. 9.2.3.

90 National People's Congress, 13th Five Year Plan of National Economic and Social Development (中华人民共和国国民经济和社会发展第十三个五年规划纲要), 2016, Ch. 46.

91 J. Wu & Y. Zhang, ‘Integrating Climate Change Factors in China's EIA’ (关于中国将气候变化因素融入环境影响评价的探讨) (2011) 33(9) Environmental Pollution and Prevention, pp. 91–4; Y. Wu & J. Ren, ‘Integrating Climate Change Factors in Planning EIA: Status Quo Investigation and Analysis’ (规划环评中纳入气候变化因素的现状调查与分析). Annual Conference of Chinese Society for Environmental Science, 2014.

92 Y. Yamineva & Z. Liu, ‘Cleaning the Air, Protecting the Climate: Policy, Legal and Institutional Nexus to Reduce Black Carbon Emissions in China’ (2019) 95 Environmental Science and Policy, pp. 1–10, at 8.

93 LAPPC, 2018, Art. 2.

94 W. Gong, ‘Cooperative Control of Air Pollutants and GHGs: Challenges and Responses from the Perspective of Enforcement’ (大气污染物与温室气体协同控制面临的挑战与应对——以法律实施为视角) (2017) 1 Journal of Southwestern University for Nationalists (Humanities and Social Science Edition), pp. 108–13.

95 Y. Li & Z. Zhang, ‘The Legal Status of CO2 and Regulatory Choice of Emission Control’ (二氧化碳的法律定位及其排放规制立法路径选择) (2015) 2 Social Science Research, pp. 30–4.

96 Y. Zhao, ‘Climate Change Litigation in China: Empirical Analysis of 41 Air Pollution Public Interest Cases’ (气候变化诉讼在中国的路径探究——基于41个大气污染公益诉讼案件的实证分析) (2019) 6 The Journal of Shandong University (Philosophy and Social Science), pp. 26–35, at 29; A. Gu, F. Teng & X. Feng, ‘Analysis and Evaluation of Greenhouse Gas Synergies of Pollutant Control Policies in Major Sectors’ (主要部门污染物控制政策的温室气体协同效果分析与评价) (2016) 26(2) Chinese Population, Resources and Environment, pp. 10–7, at 10.

97 Y. Chen et al., ‘Policy Suggestions of Responding to Climate Change by Institutional Innovation of EIA’ (通过环评制度创新应对气候变化的对策建议) (2016) 41(2) Environment and Sustainable Development, pp. 17–20, at 18.

98 Gu, Teng & Feng, n. 96 above, p. 15.

99 China Meteorological Administration, Measures for the Administration of Climate Feasibility Study (气候可行性论证管理办法), No. 18, 2008.

100 Art. 4 lists ‘plans and projects closely related to climate conditions’, which include urban and rural planning, regional development planning, major infrastructures, public facilities and large-scale projects, and large-scale projects which develop and utilize climate resources, such as solar energy and wind energy.

101 Climate variability is defined as the variation in the mean state and other statistics of the climate on all temporal and spatial scales, beyond individual weather events. Climate change is ‘a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods’: World Meteorological Organization, Frequently Asked Questions, available at: http://www.wmo.int/pages/prog/wcp/ccl/faqs.php.

102 Q. Gao, ‘Mainstreaming Climate Change into the EIA Procedures: A Perspective from China’ (2018) 10(3) International Journal of Climate Change Strategies and Management, pp. 342–58, at 343.

103 Mayer, n. 71 above, pp. 293–4; Lin, n. 22 above, p. 591.

104 J.A. Wentz, ‘Draft NEPA Guidance Requires Agencies to Consider both GHG Emissions and the Impacts of Climate Change on Proposed Actions’ (2015) 26(4) Environmental Law in New York, pp. 57–63, at 57.

105 Christopher, n. 66 above, p. 566; M. Jones & A. Morrison-Saunders, ‘Making Sense of Significance in Environmental Impact Assessment’ (2016) 34(1) Impact Assessment and Project Appraisal, pp. 87–93, at 87.

106 EIA Law, 2018, Art. 16.

107 The catalogue here refers to the ‘Catalogue for the Classified Administration of Environmental Impact Assessments for Construction Projects’ (建设项目环境影响评价管理名录), which is formulated by the MEE based on project features, size, output, environmental sensitivity, and other related environmental parameters.

108 EIA Law, 2018, Art. 16.

109 MEE, Notice on Completing the Carbon Emission Report and Verification in 2019 and Submitting the List of Key Emission Units in the Power Generation Industry (关于做好2019年度碳排放报告与核查及发电行业重点排放单位名单报送相关工作的通知), MEE Order No. 943, 2019.

110 For governmental planning in China, EIA is a procedural requirement and does not bind the planning authorities as to the outcome. For projects, developers need to obtain EIA approval from competent environmental agencies before project construction.

111 Kaibing Artificial Environmental Protection Carbon Plant in Zhijiang City v. Zhijiang EPB (枝江市开兵人造环保炭厂、枝江市环境保护局环境保护行政管理(环保)二审行政判决书), Final Administrative Judgment No. 74, 2018, Intermediate Court of Yichang, Hubei Province (Kaibing).

112 Yongsheng Cement Manufacturing Co. Ltd v. Wafangdian EPB and Wafangdian People's Government (大连永盛水泥制造有限公司与瓦房店市环境保护局、瓦房店市人民政府环境保护行政管理(环保)一审行政判决书), First Instance Judgment No. 54, 2019, Primary Court of Zhuanghe, Liaoling Province (Yongsheng).

113 The procuratorate is traditionally regarded as a legal supervisory body in China's judicial system. For an introduction to the procuratorate, see Ministry of Foreign Affairs of the People's Republic of China, People's Procuratorates, available at: https://www.fmprc.gov.cn/mfa_eng/ljzg_665465/zgjk_665467/3579_665483/t17849.shtml.

114 On standing, the AL Law, Art. 25, provides that ‘a person subject to an administrative act or any other person who is a citizen, a legal person, or any other organization with an interest in the administrative act shall have the right to file a complaint against the administrative act’. J. Zhang, ‘Judgment Criteria of the “Stake” of the Standing of Administrative Litigation’ (行政诉讼原告资格中“利害关系”的判断结构) (2019) 4 Chinese Legal Science, pp. 244–64, at 249, 250.

115 Ibid., p. 256.

116 Ibid., p. 253.

117 Liu Guangming v. Zhangjiagang People's Government (刘广明与张家港市人民政府行政复议再审案), Retrial Administrative Case No. 169, Supreme People's Court, 2017.

118 T. He, ‘The Introduction and Problems of the Theory of Protection Norm’ (保护规范理论的引入与问题) (2019) 4 Jiaoda Fxue, pp. 132–45, at 141.

119 Wang Chun et al. v. MEE (王春等与中华人民共和国环境保护部环境保护行政纠纷再审案), Retrial Administrative Case No. 172, Supreme People's Court, 2016.

120 EPL, 2014, Art. 56.

121 EIA Law, 2018, Art. 21; MEE, Measures of Public Participation in the Project Level EIA (环境影响评价公众参与办法), No. 4, 2018, Art 5. According to this regulation, public participation is obligatory only for those preparing EIA reports.

122 See Wang Cuixiang et al. v. Shanxi EPB and MEE (王翠香等诉山西省环境保护厅等复议案), Final Administrative Judgment No. 952, 2017, Higher People's Court of Shanxi Province. Cases collected by the author also confirm the importance of these two points; for example, in Chenjiatang Group of Villagers in Wujin District Changzhou v. Changzhou EPB (常州市武进区雪堰镇新康村陈家塘村民小组等诉常州市环境保护局批准案), Final Administrative Judgment, No. 98, 2017, Intermediate Court of Changzhou, Jiangsu Province, the focus of disputes was whether the plaintiffs have standing to bring an action against the environmental authority's EIA approval. The court found that the EIA assessment scope of the project in question should be not less than 3,000 metres away from the source point according to technical guidance. As the plaintiffs were about 4,400 metres away, they did not have a legal interest in the case. The same adjudication and judicial reasoning prevailed in Zhou Ruimin et al. v. Beijing EPB & Beijing People's Government (周睿敏等与北京市环境保护局等复议决定上诉案), Final Administrative Judgment No. 866, 2017, Second Intermediate People's Court of Beijing.

123 The MEE has performed this duty through evaluating the progress of addressing climate change (GHG reduction or carbon intensity reduction) in its annual Bulletin on the State of Environmental Quality since 2017. Yet, this Bulletin does not analyze how the dual responsibility of the MEE is coordinated.

124 AL Law, 2017, Art. 25. According to the 2017 AL Law, the procuratorate could bring litigation on behalf of the public interest against an administrative authority if it fails to perform its supervisory duty in the protection of the ecological environment and natural resources.

125 Tan, n. 25 above, p. 168.

126 T. Zhai & Y. Chang, ‘Standing of Environmental Public-Interest Litigants in China: Evolution, Obstacles and Solutions’ (2018) 30(3) Journal of Environmental Law, pp. 369–97, at 379–80.

127 Ibid., p. 383.

128 The author has collected about 180 cases released by an online database, and summed up these two types of litigation.

129 Z. Jin & L. Liu, ‘Judicial Review of Public Participation in the EIA Procedure’ (环境影响评价公众参与的司法审查机制完善) (2017) 2 Academic Journal of Zhongzhou, pp. 57–60, at 57–8.

130 This is very similar to the US experience where ‘[the] majority of them are claims brought by NGOs to challenge agency permits and agency environmental impact assessments to ensure that GHG emissions and climate change impacts are routinely taken into account and adequately evaluated’: Markell & Ruhl, n. 5 above, p. 24.

131 Zhao, Lyu & Wang, n. 13 above, p. 349.

132 Editorial, ‘Scientific Uncertainty’ (2019) 9 Nature Climate Change, p. 797.

133 D.A. Kysar, ‘What Climate Change Can Do about Tort Law?’ (2011) 41(1) Environmental Law, pp. 1–71, at 4.

134 G. Ganguly, J. Setzer & V. Heyvaert, ‘If at First You Don't Succeed: Suing Corporations for Climate Change’ (2018) 38(4) Oxford Journal of Legal Studies, pp. 841–68.

135 Lin, n. 35 above, p. 38.

136 L. Butti, ‘The Tortuous Road to Liability: A Critical Survey on Climate Change Litigation in Europe and North America’ (2011) 11(2) Sustainable Development Law & Policy, pp. 32–6, at 33.

137 N. Durrant, ‘Tortious Liability for Greenhouse Gas Emissions: Climate Change, Causation and Public Policy Considerations’ (2007) 7(2) Law and Justice Journal, pp. 403–24, at 404.

138 Hsu, n. 63 above, p. 704.

139 Civil Procedure Law, 2017, Art. 119; Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law (最高人民法院关于适用《中华人民共和国民事诉讼法》的解释), 2014, Art. 91.

140 D. Tang, Legislation and Application of Civil Procedure Law (民事诉讼法立法与适用) (China Legal Publishing House, 2002) p. 185; Y. Cao, ‘The Construction of Judgment Standard of Interested Party in Civil Litigation’ (民事诉讼正当当事人判断标准的建构——兼谈起诉条件的“双重高阶化) (2017) 5 Northern Legal Science, pp. 87–96.

141 EPL, 2014, Art. 58.

142 Zhao, Lyu & Wang, n. 13 above, p. 369; Zhang, n. 25 above.

143 J. Li, ‘Climate Change Litigation: A Promising Pathway to Climate Justice in China?’ (2019) 37(2) Virginia Environmental Law Journal, pp. 132–70, at 146.

144 D. Boer & D. Whitehead, ‘Opinion: The Future of Public Interest Litigation in China’, China Dialogue, 11 Aug. 2016, available at: https://www.chinadialogue.net/article/show/single/en/9356-Opinion-The-future-of-public-interest-litigation-in-China.

145 P. Cashman & R. Abbs, ‘Liability in Tort for Damage Arising from Human-Induced Climate Change’, in R. Lyster (ed.), In the Wilds of Climate Law (Australian Academic Press, 2010), pp. 235–72, at 235.

146 Kivalina v. ExxonMobil Corporation et al., 696 F.3d 849, 2012 WL 4215921 (9th Cir 2012).

147 Tort Law, 2009, Ch. 8.

148 Interpretation of the Supreme People's Court of Several Issues on the Application of Law in the Trial of Disputes over Liability for Environmental Torts (最高人民法院关于审理环境侵权责任纠纷案件适用法律若干问题的解释), 2015, Arts 6 and 7.

149 For polluters to bear tort liability for environmental pollution, they need to prove that the environment (air, water or land) is polluted by the violation of certain environmental quality standards: W. Chen, ‘The Application of Environmental Quality Standard to Tort Law’ (环境质量标准的侵权法适用研究) (2017) 1 China Legal Science, pp. 209–29, at 209.

150 X. Zhang, ‘The Balancing of the Interest in the Legislation of the Tort Liability Law’(侵权责任立法的利益衡量) (2009) 4 China Legal Science, pp. 176–90, at 176.

151 H. Deng, ‘China’, in R. Lord et al. (eds), Climate Change Liability: Transnational Law and Practice (Cambridge University Press, 2012), pp. 112–38, at 112.

152 Yang, F., Zhang, T. & Zhang, H., ‘Adjudicating Environmental Tort Cases in China: Burden of Proof, Causation, and Insights from 513 Court Decisions’ (2018) 21(2) Asia Pacific Journal of Environmental Law, pp. 171–89CrossRefGoogle Scholar, at 180.

153 Ibid., pp. 180, 183.

154 Mayer, B. & Rajavuori, M., ‘State Ownership and Climate Change Mitigation: Overcoming the Carbon Curse?’ (2017) 11(3) Climate and Carbon Law Review, pp. 223–33CrossRefGoogle Scholar, at 231.

155 L. Williams, China's Climate Change Policies: Actors and Drivers (Lowy Institute Analyses, 2014), p. 13.

156 Ibid.

157 Ganguly, Setzer & Heyvaert, n. 134 above, p. 842.

158 McCormick, S. et al. , ‘Science in Litigation, the Third Branch of U.S. Climate Policy’ (2018) 357(6355) Science, pp. 979–80CrossRefGoogle Scholar.

159 Marjanac, S. & Patton, L., ‘Extreme Weather Event Attribution Science and Climate Change Litigation: An Essential Step in the Causal Chain? (2018) 36(3) Journal of Energy & Natural Resources Law, pp. 265–98CrossRefGoogle Scholar, at 278.

160 Ibid.

161 McCormick et al., n. 158 above, p. 980.

162 Ibid.

163 Bergkamp, L. & Hanekamp, J.C., ‘Climate Change Litigation against States: The Perils of Court-Made Climate Policies’ (2015) 24(5) European Energy and Environmental Law Review, pp. 102–14Google Scholar, at 102.

164 Peel, J., ‘The Role of Climate Change Litigation in Australia's Response to Global Warming’ (2007) 24(2) Environmental and Planning Law Journal, pp. 90–105Google Scholar, at 103.

165 Peel & Osofsky, n. 6 above, p. 34.