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The Role of NGOs in China’s Environmental Public Interest Litigation

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Environmental Public Interest Litigation in China

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Abstract

As a major legal development in China’s environmental law, public interest litigation (hereinafter PIL) has achieved impressive progress in boosting public participation and enhancing environmental law enforcement. This chapter aims to offer a rigorous discussion and analysis on the role of NGOs in China’s EPIL. It argues that this topic deserves more attention due to the increasing importance of environmental groups in China’s judicial system and the relative lack of relevant studies in this domain. More particularly, the rise and fall of NGOs in vindicating public environmental interest is worth further study. This chapter contributes to the current discussion of EPIL, by exploring the reasons behind the rise and fall of the rule of NGOs in EPIL from theoretical and empirical perspectives.

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Notes

  1. 1.

    See Economy (2014), pp. 184–197.

  2. 2.

    The year of 2019 marked the 40th anniversary of the implementation of the Environmental Protection Law in China, when the first nationwide legislation on environmental protection (for trial implementation) was enacted in 1979.

  3. 3.

    The author counted the number of environmental laws issued by the Standing Committee of the National People’s Congress, environmental regulations issued by the State Council and the Ministry of Environment and Ecology, interpretations issued by the Supreme People’s courts and the Supreme People’s Procuratorate.

  4. 4.

    Report on National Environmental Condition (2020), pp. 18–19.

  5. 5.

    According to the Environmental Standards for Surface Water (GB3838-2002) issued by the MEE, the quality of surface water is categorized into classes I to V, arranged from the highest standard to the lowest. Class I represents the highest water standard that is applied to the source of water and national nature reserve areas.

  6. 6.

    Report on National Environmental Condition (2016), p. 14.

  7. 7.

    Report on National Environmental Condition (2017), p. 14.

  8. 8.

    See Wang (2007b), pp. 159–193; Wang (2007a), pp. 196–223; Khan and Chang (2018), p. 2547.

  9. 9.

    See Wang (2007b).

  10. 10.

    See Gao and Whittaker (2019), p. 342; Economy (2014), p. 190.

  11. 11.

    See Gao and Whittaker (2019), p. 328.

  12. 12.

    Reform Plan on an Ecological Environmental Damage Compensation System (2017).

  13. 13.

    In the official document, the concept of ecological environmental damage (shengtai huanjing sunhai) is used. In some studies concepts like environmental damage or ecological damage are also employed. To avoid confusion, the concepts of ecological damage and environmental damage will be interchangeably used in this article. See Zhang and Mayer (2017), pp. 207–208.

  14. 14.

    Reform Plan on Ecological Environmental Damage Compensation System (2017).

  15. 15.

    Several concepts are interchangeably used in official documents and in the literature, such as environmental damage, ecological damage, and ecological environmental damage. To avoid potential confusion, ecological damage is used throughout this article.

  16. 16.

    Lu and Faure (2020), pp. 136, 153.

  17. 17.

    Faure and Partain (2019), p. 188.

  18. 18.

    Goldman (2007), p. 255.

  19. 19.

    Xi (2017).

  20. 20.

    Guttman et al. (2018), pp. 126–135.

  21. 21.

    Guiding Opinions on Establishing Modern Environmental Governance System (2020).

  22. 22.

    Hu (2016), p. 173.

  23. 23.

    Civil Procedure Law (2017 amendments), Chairman Order No. 71, 1 July 2017, art. 55.

  24. 24.

    Administrative Procedure Law (2017 amendments), Chairman Order No. 71, 1 July 2017, art. 25, para. 3.

  25. 25.

    Environmental Protection Law (2014 amendments), Chairman Order No. 9, 1 January 2015, art. 58.

  26. 26.

    Civil Code, Chairman Order No. 45, 1 January 2021, art. 1234 and 1235.

  27. 27.

    See Table 9.1.

  28. 28.

    General Office of the CPC Central Committee and General Office of the State Council (2020).

  29. 29.

    Cao and Wang (2011), pp. 217, 211.

  30. 30.

    Friends of Nature (FON) and China Biodiversity Conservation and Green Development Foundation (CBCGDF) v. Jiangsu Changlong Chemical Ltd. and Changzhou Changyu Chemical Ltd, Second Instance, Jiangsu High People’s Court, (2017) SuMinzhong No. 232.

  31. 31.

    See Wang (2016), pp. 49–68.

  32. 32.

    In China’s legal and policy documents, China has several types of organizations referred to as NGOs in English, such as social organizations, foundations, and non-enterprise units. To avoid confusion, the concept of NGOs is used in this chapter.

  33. 33.

    Simon (2013).

  34. 34.

    Percival and Zhao (2014), p. 146.

  35. 35.

    Simon (2013).

  36. 36.

    Percival and Zhao (2014), p. 152.

  37. 37.

    See Schwartz (2007), pp. 28–49. In some literature, China’s first environmental NGOs is regarded to be the Chinese Society for Environmental Sciences, founded in 1978, which is a research-oriented institution rather than an activity-oriented organization.

  38. 38.

    Percival and Zhao (2014), p. 146.

  39. 39.

    State Administration of Environmental Protection (2007), p. 23.

  40. 40.

    People’s Daily (2013).

  41. 41.

    Percival and Zhao (2014), p. 146.

  42. 42.

    State Council, Decision on the Implementation of the Outlook on Scientific Development and Strengthening Environmental Protection, 3 December 2005, art 27.

  43. 43.

    Wang et al. (2008), pp. 273–290.

  44. 44.

    Wang et al. (2008). It was reported that this case was quickly refused by the High People’s Court of Heilongjiang Province on the ground that the plaintiffs did not have direct interests, but this decision was delivered orally, not in a written statement.

  45. 45.

    Capenter-Gold (2015), pp. 258–260.

  46. 46.

    According to the report on Environmental and Resources Adjudication in China (2019), by the end of 2019, there were 1353 specified environmental adjudication organs in China, including 513 environmental tribunals, 749 collegial panels and 91 environmental courts.

  47. 47.

    Wang and Gao (2010), p. 377.

  48. 48.

    Zhu and All-China Environment Federation (ACEF) v. Jiangyin Port Container Ltd., www.chinacourt.org, https://www.chinacourt.org/article/detail/2014/07/id/1329692.shtml.

  49. 49.

    Stern (2014), p. 64.

  50. 50.

    Interpretations of the SPC on Several Issues concerning the Application of Law in the Conduct of Environmental Civil Public Interest Litigations (first issued in 2015 and revised in 2020), Interpretation No. 20 of the SPC.

  51. 51.

    Li (2016), p. 258.

  52. 52.

    Capenter-Gold (2015), p. 264.

  53. 53.

    Ibid.

  54. 54.

    Zhu and Wu (2017), pp. 389, 395.

  55. 55.

    National People’s Congress (2013).

  56. 56.

    Percival and Zhao (2014), p. 174.

  57. 57.

    Gong and An (2017), pp. 189–190.

  58. 58.

    Xing and Jin (2015).

  59. 59.

    See Sects. 9.3.2 and 9.5.

  60. 60.

    Interpretations of the SPC on Several Issues concerning the Application of Law in the Conduct of Environmental Civil Public Interest Litigations (first issued in 2015 and revised in 2020), Interpretation No. 20 of the SPC, 1 January 2021, arts. 1–5.

  61. 61.

    Wang (2020), pp. 137–169.

  62. 62.

    Gao and Whittaker (2019), pp. 345–346.

  63. 63.

    Zhu and Wu (2017), p. 389.

  64. 64.

    Ma (2019), pp. 269–291.

  65. 65.

    The data of court decisions is publicly available on the China Judgments Online. https://wenshu.court.gov.cn.

  66. 66.

    Li (2016), p. 257.

  67. 67.

    Zhang and Mayer (2017), pp. 213–216.

  68. 68.

    Gong (2019), p. 20.

  69. 69.

    Li (2016), p. 335.

  70. 70.

    Xie and Xu (2021), pp. 22–23.

  71. 71.

    Zhang and Mayer (2017), pp. 217–219.

  72. 72.

    According to Article 2 of the EPL 2014, natural and cultural heritage are also defined as components of the environment. Therefore, the protection of cultural heritage can be classified in the broad category of environmental interest.

  73. 73.

    Zhao (2019), pp. 167, 190.

  74. 74.

    This case is still under consideration and no judgement has yet been rendered by the end of May 2021.

  75. 75.

    SPC, CBCGDF v. Shenzhen Sumei Environmental Protection Ltd and Zhejiang Taobao Network Ltd, 8 May 2021, https://www.chinacourt.org/article/detail/2020/05/id/5195797.shtml.

  76. 76.

    Ibid. Hangzhou Intermediate People’s Court of Zhejiang decided the case as follow: Sumei had to pay the amount of 3.5 million RMB for remedying air pollution, to cover the amount of 150,000 RMB for attorney fees, travel expenses and was forced to apologize to the public via national media. The court decided that Taobao had fulfilled its due diligence duties and therefore did not assume joint responsibility with Sumei.

  77. 77.

    SPC (2020).

  78. 78.

    Ibid.

  79. 79.

    In 2019, 1642 incidental (civil) PIL of criminal cases were accepted by the courts and 1370 were closed.

  80. 80.

    SPC (2020). It was reported that in 2019, 277 of 355 administrative cases were closed, and 248 of 312 civil PIL cases were closed.

  81. 81.

    Chen and Zhou (2019), pp. 70–79.

  82. 82.

    See Sect. 9.2.

  83. 83.

    Gao and Whittaker (2019), p. 335.

  84. 84.

    Lu (2021), pp. 133–151.

  85. 85.

    Ma (2019).

  86. 86.

    Constitution Law of China, art. 26.

  87. 87.

    Lu (2021), pp. 133–151.

  88. 88.

    Ibid, pp. 141–142.

  89. 89.

    SPC, Several Provisions of the SPC on Trying Ecological Compensation Cases (for trial implementation).

  90. 90.

    Chen and Zhou (2019), pp. 70–79.

  91. 91.

    Interpretations of the SPC on Several Issues concerning the Application of Law in the Conduct of Environmental Civil Public Interest Litigations (first issued in 2015 and revised in 2020), Interpretation No. 20 of the SPC, 1 January 2021, art. 12.

  92. 92.

    Lu (2021), p. 147.

  93. 93.

    Zhai and Chang (2018), p. 383; Simon (2013).

  94. 94.

    Hsu and Jiang (2015), pp. 100–122.

  95. 95.

    Regulation on the Administration of the Registration of Social Organizations, Order No. 666 of the State Council, 6 February 2016, art. 6, para 1.

  96. 96.

    Ibid, art. 6, para 2.

  97. 97.

    Gao and Whittaker (2019), p. 344.

  98. 98.

    Law on the Administration of Activities of Overseas NGOs, Chairman Order No. 81, 5 November 2017, art. 6, para 1.

  99. 99.

    Ibid, art. 6, para 2.

  100. 100.

    Simon (2013).

  101. 101.

    According to Article 10 of Regulation on the Administration of the Registration of Social Organizations, the financial requirement for establishing a national NGO is above 100,000 RMB and for a local or trans-administrative regions NGO is above 30,000 RMB.

  102. 102.

    Zhu et al. (2018), pp. 1176–1189.

  103. 103.

    ACEF and NRDC (2014).

  104. 104.

    Civil Procedure Law, art. 118.

  105. 105.

    Measures on the Payment of Litigation Cost, Order of State Council No. 481, 19 December 2006, art. 13.

  106. 106.

    FON and CBCGDF v. Jiangsu Changlong Chemical Ltd. and Changzhou Changyu Chemical Ltd, Second Instance, Jiangsu High People’s Court, (2017) SuMinzhong No. 232.

  107. 107.

    Measures on the Payment of Litigation Cost, Order of State Council No. 481, 19 December 2006, art. 29.

  108. 108.

    FON and CBCGDF v. Jiangsu Changlong Chemical Ltd. and Changzhou Changyu Chemical Ltd, Second Instance, Jiangsu High People’s Court, (2017) SuMinzhong No. 232.

  109. 109.

    Gao and Whittaker (2019), p. 341.

  110. 110.

    Civil Code of China, Art. 1235.

  111. 111.

    Hu and Cui (2019), p. 14.

  112. 112.

    EPL 2015, art. 58.

  113. 113.

    Hu and Cui (2019), p. 16.

  114. 114.

    Capenter-Gold (2015), p. 241.

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Acknowledgements

This contribution builds further on Mengxing Lu, “The Dilemma of NGOs in Vindicating Environmental Interests before the Courts: Normative and Empirical Observations from China”, The Chinese Journal of Comparative Law (2022) Vol.2 No.2, pp.222-245. The author would like to acknowledge the funding support provided by the Ministry of Justice of China (21SFB3028).

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  1. Civil Commercial and Economic Law School, China University of Political Science and Law in Beijing, Beijing, China

    Mengxing Lu

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  1. Law School of Kunming University of Science and Technology, Kunming, China

    Xi Wang

  2. School of Law & Justice, University of Southern Queensland, Ipswich, QLD, Australia

    Xiaobo Zhao

  3. School of Law and Justice, University of Southern Queensland, Ipswich, QLD, Australia

    Noeleen McNamara

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Lu, M. (2023). The Role of NGOs in China’s Environmental Public Interest Litigation. 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_9

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