A Step Forward For Public Interest Litigation In China

China recently amended its Environmental Protection Law, the first amendment since the law was enacted in 1989.  My colleague Barbara Finamore has an overview of the amendments here.  I would like to focus on one of the new provisions that specifies what organizations have standing to bring environmental public interest litigation in China.

Here in the U.S. we are used to non-governmental organizations (NGOs) like NRDC bringing lawsuits in the public interest to clean up the air or water or to protect an endangered species.  However, this is unusual in China and the Chinese court system has been struggling with how to deal with litigation that reaches beyond the interests of a single plaintiff.  Some Chinese environmental NGOs have attempted to bring public interest cases but have been shut out of court.

The new law changes this.  Now, environmental NGOs registered with city-level or higher governments in China, with five years of experience in environmental matters and in good standing, will have the right to bring public interest litigation against polluting enterprises.  Our colleagues in NRDC’s Beijing office estimate that this will apply to about 300 NGOs in China.  This is a major improvement over the current system and over an earlier draft of the amendment which would have limited NGO standing to only one government-sponsored NGO, the All-China Environment Federation.

Some aspects of this new NGO standing provision remain to be worked out, for example what legal procedures will be in place for public interest lawsuits, and whether an NGO can bring a lawsuit against the government or a government-owned enterprise.  Likewise, it is not yet clear whether a public interest lawsuit can be brought to protect endangered habitat where pollution directly affecting public health is not at issue.

Time will tell how effective the new law is in promoting meaningful environmental litigation in China.  But the new amendments are a positive step.