Abstract
This chapter reviews the historical developments of environmental public interest litigation within the context of soil pollution in China to identify what roles it has played in soil pollution prevention and remediation. Due to the complexity of land remediation, there is a heavy reliance on scientific evidence. A deficiency of EPIL exists especially in confirming compensation amounts, setting clean-up criteria and monitoring remediation process. With the commencement of the Law on Soil Pollution Prevention and Control in 2019, liability for land contamination is clearly stipulated as public liability, directly imposed by environmental agencies. This liability may include undertaking a site investigation, site risk assessment, risk control, remediation, evaluation of site risk control and remediation, and long-term stewardship. In view of the dominance of administrative power in soil pollution prevention and control, environmental public interest litigation should be reshaped by focusing on the preventive function, supplementing the responsibility of soil remediation with civil public interest litigation, and strengthening the supervision of administrative power with administrative public interest litigation.
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Notes
- 1.
State Council (2016) Action Plan on Prevention and Control of Soil Pollution. Available at: http://www.gov.cn/zhengce/content/2016-05/31/content_5078377.htm.
- 2.
See, for example, Article 2 of the Federal Soil Protection Act of Germany which defines ‘contaminated sites’ (‘Altlasten’ in German) to include closed-down waste management installations…that cause harmful soil changes or other hazards for individuals or the general public. See also, Section 78A(2) of Part 2A of Environmental Protection Act of 1990 from the United Kingdom which provides that ‘contaminated land’ is ‘Any land which appears to the local authority in whose area it is situated to be in such a condition, by reason of substances in, on or under the land that: (a) significant harm is being caused or there is a significant possibility of such harm being caused; or (b) significant pollution of controlled waters is being caused, or there is a significant possibility of such pollution being caused.’
- 3.
CERCLA in the U.S. stopped short of imposing liability for personal injury or economic losses due to land contamination. However, many states in the U. S. have enacted laws that go further than CERCLA. For example, in Minnesota, statutes impose liability for personal injuries and economic losses. Damages that can be recovered for the release of hazardous substances include a variety of economic losses, death, and personal injury or disease. See Minn. Stat. Ch. 115B (2018).
- 4.
The document for the Supreme Peoples’ Court (SPC) Judicial Interpretation on Application of Law on Environmental Civil Public Interest Litigation could be found at: https://www.court.gov.cn/fabu-xiangqing-13025.html.
- 5.
Liu (2021b), p. 40.
- 6.
Wang (2018a), p. 299.
- 7.
Article 55 of the Civil Procedure Law of the People’s Republic of China (amended in 2012) stipulates: ‘for acts that pollute the environment, infringe on the legitimate rights and interest of many consumers and damage the social and public interest, the organs and relevant organizations prescribed by law may bring a lawsuit to the people’s court.’ Later, the legislation further defines the ‘organizations’. Article 58 of the Environmental Protection Law of the People’s Republic of China(amended in 2014)provides that Chinese social organizations that meet the following two requirement requirements can bring suit on behalf of the public interest in cases involving pollution or ecological damage: (1) the organization has registered with the civil affairs departments at or above the municipal level within the district;(2) the organization has specialized in environmental protection public interest activities for five years and has no record of violating the law. The amended rule thus allowed broader standing in some respects than is allowed by U.S. courts under Article III of the U.S. Constitution. Chinese NGOs need not have members with a direct tie to the site of the pollution. See Sun and Jack (2017), p. 10499.
- 8.
In March 2017, the Beijing Chaoyang District Friends of Nature Environmental Research Institute filed an environmental public interest lawsuit with the Kunming intermediate people’s Court of Yunnan Province, claiming that the inundated area of the Jiasajiang I Hydropower Station on the mainstream of the Red River (Yuanjiang) is the habitat of the national first-class protected animal and the endangered species Green Peacock. Once the hydropower station is impounded, it will lead to the possibility of extinction of green peacocks in this area. The supporting project of the hydropower station will destroy the local precious seasonal rainforest ecosystem in the dry and hot valley. After hearing the case, the Kunming intermediate people’s court held that the case was a preventive environmental public interest litigation. The plaintiff Beijing Chaoyang District Friends of Nature Environmental Research Institute has provided evidence to prove that the inundation area of the hydropower station involved in the case is an area where green peacocks are frequently active and constitutes its biological habitat. Once inundated, it is likely to cause serious damage to the survival of green peacocks. At the same time, the environmental impact report of the Jiasajiang I Hydropower Station does not involve the protection of rare rainforest plants such as Cycas chenii. If the hydropower station continues to be constructed, the survival of rare animals and plants in the area will face major risks. The Kunming intermediate people’s court then ordered the defendant to immediately stop the construction project of the Jiasajiang I Hydropower Station Based on the existing environmental impact assessment, not to intercept and store water, and not to cut down the vegetation in the flooded area of the hydropower station. After completing the post environmental impact assessment and filing according to the requirements of the Ministry of ecology and environment, the relevant competent administrative department shall make a decision in conformity with legal provisions according to the specific situation. The court of second instance upheld the original judgment. See Cha and Yang (2022), pp. 1–2.
- 9.
Malte (2006), p. 256.
- 10.
Shen (2021), p. 33.
- 11.
Hu and Cui (2019), p. 14.
- 12.
On December 29, 2020, the Supreme People’s Court announced 19 revision decisions on judicial interpretations of civil litigation, including the civil EPIL Interpretation. The highlight of the revision of the judicial interpretation is reflected in recognized claim from the damaged parties, that is, ‘Request for restoration of the ecological environment’ replaces the expression of ‘Reinstatement’ (recovery to the initial status) in Article 20 and Article 21 of the civil EPIL Interpretation (formerly enacted in 2015). Its significance lies in, on the one hand, making it clear that the effect of ‘restoration of ecological environment’ is different from ‘Reinstatement’ in traditional civil law, while on the other, providing a clear basis for the comprehensive restoration of ecological environment. Specifically, Article 20 is amended as: ‘If the plaintiff requests to repair the ecological environment, the people’s court may, in accordance with the law, judge the defendant to repair the ecological environment to the state and function before the damage occurs. If it cannot be completely repaired, it may permit the use of alternative repair methods. The people’s court may, while judging the defendant to repair the ecological environment, determine the ecological environment repair costs that the defendant should bear if the defendant fails to perform the repair obligations; it may also directly judge the defendant to bear the ecological environment repair costs. The cost of ecological environment restoration includes the cost of formulating and implementing the restoration plan, the cost of monitoring and supervision during the restoration, the cost of acceptance after the restoration, the cost of post restoration evaluation, etc.; Article 21 is amended as: ‘if the plaintiff requests the defendant to compensate for the loss caused by the loss of service function during the period from the damage to the ecological environment to the completion of restoration, and the loss caused by the permanent damage to the ecological environment function, the people’s court may support it according to law.’ See Supreme People’s Court (2020) Decision of the Supreme People’s Court on Amending the Provisions of the Supreme People’s Court on Several Issues Concerning the Civil Mediation Work of the People’s Courts and Nineteen Other Judicial Interpretations of Civil Litigation Available at: https://www.court.gov.cn/fabu-xiangqing-282651.html.
- 13.
‘Restoring the ecological environment’ is different from ‘reinstatement’. From the perspective of environmental law, ‘Restoring the ecological environment’ is more applicable to the relief of public interests of the ecological environment, it cannot be simply equivalent to the ‘reinstatement’ of private interests. Judicial practice proves that although ‘restoration of the ecological environment’ and ‘reinstatement’ are seemingly identical, the differences between the two in terms of relief objects, restoration standards and relief methods are still evidential. Lv and Dou (2017), p. 141.
- 14.
The document for China’s Administrative Litigation Law could be found at: https://flk.npc.gov.cn/detail2.html?MmM5MDlmZGQ2NzhiZjE3OTAxNjc4YmY4NTg1NTBhMGY%3.
- 15.
The document for the SPC and SPP Interpretation on the Application of Laws in Procuratorial Public Interest Litigation could be found at: https://www.spp.gov.cn/zdgz/201803/t20180302_368570.shtml.
- 16.
In May 2016, Beijing Chaoyang District Friends of Nature Environmental Research Institute and China Biodiversity Conservation and Green Development Foundation, as plaintiffs, sued Jiangsu Changlong Chemical Company Limited, Changzhou Changyu Chemical Company Limited and Jiangsu Huada Chemical Group Company Limited as defendants to Changzhou Intermediate People’s Court. The plaintiffs proposed that the three defendant companies were all processing enterprises engaged in chemical products, which seriously polluted the land in question and the surrounding environment during their production and operation and the management of hazardous waste, and failed to remediate the polluted land after moving out, resulting many students in Changzhou foreign language school suffered health damage.
- 17.
Higher People’s Court of Jiangsu Province, Su Civil trial No. 232 (2017).
- 18.
Sun (2021), p. 169.
- 19.
Xu and Zhou (2017), p. 98.
- 20.
Sun (2021), p. 170.
- 21.
Tang (2019), p. 29.
- 22.
Dong (2019), p. 121.
- 23.
Fourth Medium People’s Court of Beijing City, Jing 04 Civil trial No.89 (2016).
- 24.
For example, ‘Yunnan Oil Refinery Case’ is the first case of preventive Civil EPIL against a large construction project in China. The main focus of the case is whether the defendant’s unapproved construction of the project poses a significant risk of damaging the public interest. According to the ruling of the second trial, the primary reason why the first and second trials were not accepted was that the court held that the plaintiff failed to prove that the defendant’s behavior had caused damage to the social and public interest or had a significant risk of damaging the social and public interest. The court’s determination of ‘significant risk’ is very different from the plaintiff’s understanding of ‘significant risk’, which was the first legal reason for the inadmissibility of this case. See Zhang and Wu (2020), p. 138.
- 25.
- 26.
Medium People’s Court of Zunyi City, Qian 03 Civil trial No.520 (2016).
- 27.
Wang (2016a), pp. 57–59.
- 28.
Above note 17.
- 29.
Sun (2021), p. 175.
- 30.
Jin (2021), p. 155.
- 31.
Medium People’s Court of Liaocheng City, Lu 15 Civil trial No.486 (2018).
- 32.
Medium People’s Court of Xian City, Shan 71 Civil trial No.4 (2017).
- 33.
In fact, the SPC may have taken into account the difficulty of the professionalism of environmental cases and issued a special judicial interpretation for this purpose, which provides a system tool for judges to adjudicate in environmental cases with the help of professional opinions. See Article 10 of SPC Interpretation on the Application of Laws in Adjudicating Environmental Tort Cases (2015) stipulates: ‘The investigation report, inspection report, test report, evaluation report or monitoring data of environmental pollution events issued by the Department responsible for the supervision and administration of environmental protection or its entrusted institution can be used as the basis for determining the facts of the case after cross examination by the parties.’ Article 23 of SPC Interpretation on Several Issues Concerning the Application of Law in Environmental Civil Public Interest Litigation (2015) stipulates: ‘If it is difficult to determine the cost of ecological environment restoration or the identification cost required to determine the specific amount is obviously too high, the people’s court may, in combination with factors such as environmental pollution, the scope and degree of ecological damage, the scarcity of ecological environment, the difficulty of ecological environment restoration, the operation cost of pollution prevention and control equipment, the benefits obtained by the defendant due to infringement and the degree of fault, it can also be reasonably determined by referring to the opinions and expert opinions of the Department responsible for environmental protection supervision and management.’
- 34.
Taking ‘administrative public interest litigation’ and ‘soil pollution’ as the key words, a comprehensive search has been carried out in the legal database Lawinfochina.com of Peking University, and no results have been found.
- 35.
Xie and Li (2010), p. 3. See Overview of the current situation on brownfield remediation and redevelopment in China. World Bank. Available at: https://documents.worldbank.org/en/publication/documents-reports/documentdetail/450251468024319815/overview-of-the-current-situation-on-brownfield-remediation-and-redevelopment-in-china.
- 36.
Former Ministry of Environmental Protection (MEP), Ministry of Land Resources, Report on National Land Contamination Investigation Survey, 2014, Available at: http://www.gov.cn/foot/site1/20140417/782bcb88840814ba158d01.pdf.
- 37.
Zhu (2018), p. 21.
- 38.
Dong and Wang (2022), p. 118.
- 39.
According to the survey data, at present, only 4% of the more than 700 social organizations that meet the legal prosecution conditions in China say that they are capable and willing to undertake this function. Therefore, the role of social organizations in environmental public interest litigation has not been maximized, which needs attention and support. See Zhou (2020), p. 50.
- 40.
Liu (2012), p. 237.
- 41.
Li and Wu (2021), pp. 53–58.
- 42.
Yu and Mu (2019), p. 29.
- 43.
As for the standards of proof of ‘significant risk’, China’s academic circles mainly have three views: ‘high degree of probability’, ‘general probability’ and ‘probability’ in the prosecution stage, ‘high degree of probability’ in the court trial stage. See respectively Zhang and Wu (2020), p. 141; Yu and Mu (2019), p. 31; Song (2021), p. 70.
- 44.
Article 35, Law on Prevention and Control of Soil Pollution of the P.R.C. For a more detailed discussion about risk control and remediation procedures in China’s soil pollution law, see Li et al. (2019), p. 556.
- 45.
Article 36, Law on Prevention and Control of Soil Pollution of the P.R.C.
- 46.
Soil Environmental Quality—Standard on Risk Control of Soil Pollution in Agricultural Land (GB 15618-2018) and Soil Environmental Quality - Standard on Risk Control of Soil Pollution in Constructional Land (GB- 36600-2018).
- 47.
Article 37, Law on Prevention and Control of Soil Pollution of the P.R.C.
- 48.
This assembles institutional control in, for instance, The Land Recycling and Environmental Remediation Standards Act in Pennsylvania of the U.S. which defines that, ‘institutional controls’ are ‘measure undertaken to limit or prohibit certain activities that may interfere with the integrity of a remedial action or result in exposure to regulated substances at a site. This includes, but not limited to, fencing or restrictions on the future use of the site.’ The National Action Plan on Land Contamination Prevention and Control enacted by the State Council in 2016 already clarified that the principle of risk management should be adopted to abate China’s land contamination.
- 49.
The law, as a matter of fact, provides no explanation on the scope of parties liable to land contaminations. According to the legislative document, the legislators intend to refer it as parties who caused the land contamination.
- 50.
China has a special land right regime of its own. Fundamentally, lands in urban area are largely owned by the State and those in rural areas are largely owned by the collective. Initially, use of state-owned land was directly granted by the state government, which was concretely implemented by governments at local levels above county at no cost. Since the 1980s, China has developed a real property right system with three main types: ownership rights, usufructuary rights and security rights. Amongst others, the owner of usufructuary rights, which might be entities like enterprises and individuals, has the right to possess, utilize and obtain profits from the land. Compared to ownership rights. Usufructuary rights are non-absolute rights, for example, right holders have no right to sell the land. As for collective-owned land, the right to land contractual management which allows contractor of agricultural land to possess, utilize and gain profits is created, correspond to usufructuary right of state-owned land.
- 51.
Article 45 and Article 46, Law on Prevention and Control of Soil Pollution of the P.R.C.
- 52.
The law immediately empowered the administrative agencies of the local government to identify parties liable for land contaminations through administrative procedures in Article 48.
- 53.
Article 71, Law on Prevention and Control of Soil Pollution of the P.R.C.
- 54.
Li (2020), p. 191.
- 55.
Wang (2020b), p. 188.
- 56.
Wang (2018b), p. 108.
- 57.
Juan (2018), p. 511.
- 58.
Gong (2018), p. 61.
- 59.
Liu (2021a), p. 40.
- 60.
Zou (2022), p.50.
- 61.
The general office of the CPC Central Committee and the general office of the State Council (2017) CCP Central Committee and State Council Reform Plan on the Compensation Regime for Eco-environmental Damage. Available at: http://www.gov.cn/zhengce/2017-12/17/content_5247952.htm.
- 62.
Provisions of the Supreme People’s Court on Trial of Cases of Compensation for Ecological Environment Damage (for Trial) (2019) could be found at: https://www.court.gov.cn/fabu-xiangqing-162322.html.
- 63.
Xi (2004), p. 81.
- 64.
Research group of Guangdong Provincial People’s Procuratorate and Huang (2019), p. 66.
- 65.
He (2016), p. 26.
- 66.
Wang (2020a), p. 2.
- 67.
Wang (2016a), p. 57.
- 68.
Zhang (2021), p. 47.
- 69.
Yue (2018), p. 133.
- 70.
In 2011, the government of Xinbei District of Changzhou planned to use the plot involved in the case for commercial residential development, but found that the pollution of soil and groundwater in the plot involved in the case was serious, so Changzhou Institute of Environmental Sciences was entrusted to prepare the technical scheme for remediation of soil and groundwater in the contaminated site of the plot of the original site of Changlong (Huada, Changyu) Company for remediation. Later, the secondary air odor during the repair process affected the teachers and students of Changzhou foreign language school and other sensitive people around, causing serious health damage, and the repair project was completely stopped. After the incident, the Education Steering Committee of the State Council sent a special steering group, the former Ministry of environmental protection (MEP) and the Jiangsu Provincial People’s Government jointly established an environmental investigation group, and the national health and Family Planning Commission and the Jiangsu Provincial Health and family planning commission established a medical and health expert group to carry out supervision, investigation, analysis and research in Changzhou. The investigation team believes that the campus environment of Changzhou Foreign Language School is safe, but there are problems with the construction and supervision of the restoration work of the land involved in the case, requiring the Changzhou Municipal People’s Government to urgently develop and implement a pollution prevention and control and restoration program for the land involved in the case. See Higher People’s Court of Jiangsu Province, Su Civil trial No. 232 (2017).
- 71.
According to Article 25 of the Administrative Litigation Law of the PRC as mended in 2017, a plaintiff other than a procuratorate must show a direct interest in the administrative action at issue. As a result, only procuratorates can initiate Administrative EPIL. See Richard and Benoit (2017), pp. 209–210.
- 72.
Wang (2016b), p. 66.
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Wang, H., Zhang, Z. (2023). Looking Backwards, Looking Forwards: Environmental Public Interest Litigation in Soil Pollution Law. In: Wang, X., Zhao, X., McNamara, N. (eds) Environmental Public Interest Litigation in China. Springer, Cham. https://doi.org/10.1007/978-3-031-26526-6_14
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