As China's toxic air pollution once again surges off the charts, affecting every aspect of people's daily life [see this moving video just released by Greenpeace], China's highest court is taking action. On January 6th, the Supreme People's Court (SPC) issued an authoritative "Interpretation" that provides clarification and needed details to China's new public interest environmental litigation system (which went into effect on January 1st). These new rules appear to be designed, in many ways, to make it easier for Chinese NGOs to sue polluters, though many challenges still remain.
In her Supreme People's Court Monitor blog, Susan Finder provides an excellent summary of this Interpretation, along with more information about its background and significance. In reviewing the SPC rules, I was struck by several provisions that, if implemented fully, could go a long way to ease the considerable burdens that plaintiffs often face in bringing environmental litigation in China. Many of these provisions were strengthened in the final version of the SPC rules, reflecting the views of a number of NGOs, including NRDC, who submitted detailed comments on the draft during the public comment period.
- Standing: China's new Environmental Protection Law Amendments provide that Chinese NGOs meeting certain qualifications can bring environmental public interest litigation, and that courts must accept these cases. The most important requirement - and the one most difficult to meet - is that the NGO is registered with a civil affairs department of a municipal-level city or above. Although the SPC rules interpret this provision (and other standing requirements in the law) in a relative broad manner that would enable an estimated 700 of the 7,000 environmental NGOs in China to qualify, the vast majority would not qualify because of the difficulties in obtaining official NGO registration in China.
If an NGO meets the qualification requirements for bringing an environmental public interest lawsuit, it does not have to establish any "injury in fact" from defendant's actions in order to obtain standing to sue, although the type of public interest involved in the suit must be related to the NGO's stated objectives and operational scope.
- Types of Cases and Claims for Relief: The SPC rules permit NGOs to bring environmental lawsuits in cases where the environmental or ecological harm has not yet occurred, but where there is a significant risk of harming the public interest. This provision goes further than the language in the EPL Amendments. Plaintiffs may request that the court order defendants to stop the environmental violation, restore the damaged ecology and/or other types of injunctive relief. If the court, after reviewing the complaint, determines that the claims for relief are insufficient to protect the public interest, the court may suggest to the plaintiff that the requests can be amended or supplemented. Defendants are not permitted to submit any counterclaims.
- Evidence and Burden of Proof: The SPC rules include a number of provisions designed to ease the difficulties plaintiffs often encounter in providing evidence and meeting the burden of proof. Most notably, Article 13 states that if any defendant refuses to provide environmental information such as the type and amount of pollutants discharged, the pollution prevention equipment used or the circumstances of excess discharge, the court may presume that the plaintiff's adverse claims about these matters have been established. This provision is consistent with the strong emphasis on information disclosure and transparency in the EPL Amendments.
When the plaintiff bears the burden of proof on a specialized issue that is essential to the public interest, the court may retain a qualified appraiser/expert to evaluate the matter. The plaintiff may also call expert witnesses to testify on specialized and scientific issues, and the court may rely upon this testimony in findings of fact. If necessary, the court can investigate and gather evidence on its own.
Interestingly, if the plaintiff, during the course of the lawsuit, concedes adverse facts or accepts evidence that the court believes is harmful to the public interest, the court must withhold confirmation of that evidence or facts. The court must also reject a plaintiff's request to withdraw from the lawsuit after completion of the courtroom debate, unless the plaintiff's demands have been fully met. These provisions are apparently designed to address the problem of undue influence on NGO plaintiffs.
- Litigation Costs: The SPC rules not only allow winning plaintiffs to recover attorney's fees and other litigation costs from defendants; they also allow the court discretion to allow losing plaintiffs to recover necessary costs, such as for inspections and appraisals, from the other defendants' compensation or ecological restoration cost. In addition, if plaintiffs truly have difficulty paying their litigation costs, the court shall waive them, or, in the case of losing plaintiffs, consider whether to waive the fees in light of the plaintiff's economic situation, the circumstances of trial and applicable regulations.
As described in NRDC's 2010 report, Effective Environmental Compliance and Governance, we believe that public interest lawsuits are integral to the effective implementation of environmental laws in any country. NGOs can increase both the number and quality of enforcement actions against polluters, and (if administrative lawsuits are permitted) hold government agencies accountable for carrying out their responsibilities. Scholars have noted that public interest lawsuits are also important because they upset the dominant regulatory model, which is a two-way negotiation between regulated industries and their often captive regulatory agencies.
If environmental public interest lawsuits really gain a foothold in China, they can go a long way towards addressing the "environmental enforcement glitch" described by Elizabeth Economy, which is caused by the lack of funding and training for local environmental protection officials. NGOs, however, can add more than mere numbers to environmental enforcement. They often pioneer the types of cases that the government tends to ignore. NGOs can focus their efforts on different laws and activities than government prosecutors to ensure full coverage of environmental enforcement. In the U.S., many strategies first innovated in citizen suits have later been adopted by government officials in enforcement efforts.
Despite all the advances in the SPC rules, Chinese NGOs still face a host of challenges in bringing environmental public interest litigation, including serious limits on their capacity, personnel and funding. To help address this problem, NRDC has run a successful fellowship program since 2009 that places mid-career Chinese lawyers in local environmental NGOs for a year, to both offer litigation support and legal advice and to increase environmental knowledge for themselves. Through participating in this program, many of our fellows have become the pioneering practitioners of environmental litigation in China. We look forward to continuing our partnership with local NGOs in order to help them take full advantage of China's new environmental public interest litigation system.