The role of public interest litigation in enforcing environmental law in China

Published on October 14, 2016

One of the most significant developments in the context of the greater emphasis given by China on the environmental protection nowadays is the Supreme People’s Procuratorate (SPP) pilot program allowing prosecutors to initiate public interest litigation in cases of pollution, food safety, and other harms to public interests.

Chinese procuratorates, in general, have always had powers of legal supervision, which generally involve conducting criminal prosecutions. The power to initiate public prosecutions is, therefore, a new extension of this authority, which may be helpful in enhancing the enforcement of environmental laws in China.

Whereas under China’s 1989 Environmental Protection Law was difficult, if not impossible, for environmental protection groups or individuals to bring lawsuits against polluters because no aspect of the law allowed them to sue for environmental degradation, the 2015 version of the EPL partially addressed this deficiency with Article 58, which allows NGOs to file claims in the People’s Court as long as the NGO (1) is registered with the civil affairs department at or above the municipal level and (2) has been focused on environment-related public interest activities for five consecutive years or more. However, the restrictions are still fairly high as NGOs are also required not to have any “record of illegal activity”, being the formulation of the phrase really broad.

Given the persistent difficulties for these organizations to acquire a significant role in enforcing environmental law, and therefore to promote the achievement of environmental protection and standards, the Procuratorate’s program indeed acquires a special relevance to reach such goal.

The new public interest litigation pilot projects will proceed in 13 provincial level jurisdictions until 2017, including Inner Mongolia, Jilin, Jiangsu, Anhui, Fujian, Shandong, Hubei, Guangdong, Guizhou, Yunnan, Shaanxi, Gansu, and will include both administrative (i.e. against government organs and departments, or units authorized by them, that act wrongfully or fail to perform duties) and civil (i.e. against citizens, legal persons and other organizations) litigation.

At trial, the procuratorate can seek remedies in civil cases as stopping the harm, eliminating obstacles and hazards, restoring original conditions, and claiming compensation. In administrative cases, the procuratorate may seek to have unlawful actions annulled, or ask for a particular performance to be done within a fixed time period, or for a determination that conduct is null or unlawful.

The program has, at the present time, proved to be successful and private individuals acquired a fundamental role in reporting to the local protectorate relevant violations. Prosecutors thus filed a lawsuit which led the city court, in July 2016, to condemn the hospital to stop dumpling polluted water and to install a proper sewage treatment facility within three months. Following the trial, prosecutors also made suggestions to provincial health departments who later launched a thorough check of environment-polluting practices of hospitals.

At the present time, Chinese procuratorates had filed more than 30 public interest lawsuits to courts, which include 11 civil litigation cases, 18 administrative litigation cases and one with both civil and administrative litigation. The SPP further observed that there were 23 cases for environmental protection-related litigation, accounting for over 76 percent of the total.

Whereas, it still remains to be seen in which extent public interest litigation will help China advance in its environmental protection goals, those cases can nevertheless fundamentally change the environmental litigation in China.

Companies doing business in China, thus, would be wise to monitor the developments of this important area of law.