The Impact and Prospect of the Court-centred

Environmental Movement in China

Qi Gao*
Environmental law enforcement and dispute settlement has been relied
on the executive branch of government in China and criticisms have been
made repeatedly regarding the marginalisation of courts in environmental
governance. Recent years have witnessed a series of legal and institutional
reforms promoting access to environmental justice. It is represented by the
establishment of environmental courts in various forms, the introduction
of public interest litigation and the more recent invention of the so-called
“environmental damage compensation litigation”. This court-centred
environmental movement, however, is rather controversial on its impact
and prospect. This article first provides an overview on this movement and
then explores the rhetoric and reality of this movement from three main
perspectives: the standing to sue expanded beyond individual rights, the
role of judiciary in environmental law enforcement and judicial innovations
regarding remedies and burden of proof. Finally, the key features of this
movements are concluded and potential risks are highlighted.

I. INTRODUCTION
The executive branch of the government has played a predominant role in settling environmental
disputes in China, especially in case of severe environmental damages.1 In contrast, the judicial process
is often regarded as costly, time-consuming, too complex, and less effective for environmental victims.
Meanwhile, environmental protection is mainly considered as an obligation of the State.2 Therefore,
environmental law enforcement relies on administrative authorities. In contrast, the potential of
civil society and the judiciary in environmental governance in China seems largely unexplored. As a
comparative example, grassroots civil society played a key role in court-centred environmental justice
movement in the United States.3
Recent years, however, have witnessed a profound legal and institutional reform towards empowering the
judiciary and facilitating access to justice to fill gaps exist in Chinese environmental regulatory system.
Unlike a rights-based paradigm, the so-called “public interest litigation” is introduced to improve the
adherence to environmental legal norms. It is also considered as a breakthrough in terms of the public’s
right of access to environmental justice. Nevertheless, the relatively weak civil society in China does not
seem to be capable of fully utilising this opportunity. Hence the procuratorates and local administrative
authorities are latter mobilised to participate in the litigation process as plaintiffs. Meanwhile, Chinese
courts show a strong tendency towards judicial activism in relation to environmental cases. This includes,
but not limited to, departures from accepted interpretive methodology, judicial legislation, taking an
active and predominate role in judicial proceedings and result-oriented judging in the pursuit of the
co-ordination of social, political and legal impacts.

* Associate Professor of Environmental Law at Koguan Law School, Shanghai Jiao Tong University, PRC. This work was
supported by The National Social Science Fund of China, grant number 21BFX188, 2021.
1
Youhai Sun, “Analysis and Suggestions on the Problems Currently Facing Environmental Courts”, People’s Court Daily (Beijing),
17 September 2014, 8 (in Chinese).
2
Most provisions of the Environmental Protection Law in China focus on elaborating the obligations of the government at various
levels to protect environment.
3
See Jian Ke, “Environmental Justice: Can an American Discourse Make Sense in Chinese Environmental Law” (2005) 24 Temple
Journal of Science, Technology and Environmental Law 253.

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Environmental protection is currently a high-profile government policy in China. This top-down

environmental movement also signals profound transitions in Chinese economy, moral expectations,
and social structure. It is therefore valuable to explore the court-centred environmental movement model
in China and its potential implications, both in theory and in practice. This article attempts to answer the
following key questions: (1) what are the unique features of the court-centred environmental movement
in China? (2) what legal and institutional reforms are made to add momentums for this movement? (3)
how is judicial activism reflected in environmental cases? (4) what is the impact of judicial activism on
environmental governance and the protection of individual rights?

II. OVERVIEW OF COURT- CENTRED ENVIRONMENTAL MOVEMENT IN CHINA

A. The Background of Court-centred Environmental Movement in China
The world has witnessed China’s economic growth miracle since the adoption of reform and opening-up
policy in 1978. Rapid industrialisation and urbanisation were accompanied with worrisome environmental
deterioration. Nevertheless, only less than 1% of environmental disputes were settled through judicial
process in 2013. Environmental victims usually prefer filing petitions or complaints to administrative
authorities as the primary tool for environmental dispute resolution. Statistics show that during 2006–
2010, over 0.3 million petitions were filed to environmental protection authorities. In contrast, only
980 cases were filed against environmental protection authorities and only 30 criminal cases were filed
against polluters.4 From 2003 to 2008, 12,278 civil cases were filed to seek environmental justice, only
account for 0.04% of all civil cases.5
The marginalisation of the judicial branch is also reflected in the fact that disputes regarding severe
environmental accidents were rarely dealt by the courts. For example, in 2011, ConocoPhillips oil spill
in China’s Bohai Bay polluted 840 km2 of water. Disputes regarding compensation for damages suffered
by fishermen was largely settled by the Ministry of Agriculture. In 2012, a compensation agreement
of ¥1 billion was signed between ConocoPhillips, China National Offshore Oil Corporation, and the
Ministry of Agriculture to compensate the damages suffered by fishermen.6 According to the agreement,
the Ministry was responsible for the distribution of the compensation.7 Another ¥0.1 billion were paid
to the Ministry to support environmental programs to improve fishery resources.8 Regarding marine
environmental damages of the Bohai Bay, ¥1.9 billion were paid to the State Oceanic Administration
and additional ¥0.113 billion were paid to State Oceanic Administration to strengthen environmental
protection measures.9 This government-led model and the total amount of compensation contrasts with
the BP oil spill in the Gulf of Mexico in 2010, which triggered a series of civil lawsuits in the United
States and finally led to a settlement for civil claims worth $20.8 billion.10
The preference of government-led environmental dispute resolution in China can be attributed to
many reasons. Avoiding lawsuits and settling arguments through mediation is a deep-rooted traditional

4
Chaofei Yang, Several Issues on Environmental Protection and Environmental Legal System (23 November 2012) (in Chinese)
<http://www.npc.gov.cn/npc/c541/201211/63ba26f719454bf1a673ac1762850c85.shtml>.
5
Yang, n 4.
6
Compensation was paid for fishermen in Hebei and Liaoning Provinces. But the agreement includes a provision to apply
the agreement to other areas polluted. Two hundred and five Fishermen in Shandong Province latter brought lawsuit against
ConocoPhillips and claimed ¥0.17 billion for monetary compensation. But these claims were not supported by the court, which
ruled that the plaintiffs failed to provide evidence on the relevance between their damages and the oil leak. See Liu Zhankuan v
ConocoPhillips, Supreme People’s Court, Civil Division, No 2069, Appeal, 8 July 2019 (in Chinese).
7
Ministry of Agriculture and Rural Affairs, Compensation Agreement Reached on ConocoPhillips Oil Spill through Administrative
Mediation (25 January 2012) (in Chinese) <http://www.moa.gov.cn/xw/zwdt/201201/t20120124_2470468.htm>.
8
Ministry of Agriculture and Rural Affairs, n 7.
9
Conocophillips, Agreement Reached between Conocophillips, China National Offshore Oil Corporation and State Oceanic
Administration (27 April 2012) (in Chinese) <http://static.conocophillips.com/files/resources/2012-04-27.pdf>.
10
See Department of Justice, U.S. and Five Gulf States Reach Historic Settlement with BP to Resolve Civil Lawsuit Over
Deepwater Horizon Oil Spill (5 October 2015) <https://www.justice.gov/opa/pr/us-and-five-gulf-states-reach-historic-settlement-
bp-resolve-civil-lawsuit-over-deepwater>.

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Chinese legal culture. Filing a representative action (like a class action) is often considered by the local
government as a sign of social instability,11 rather than a legal procedure to resolve mass disputes that
may causes social instability. Judicial resolution of environmental disputes under tort law is particularly
challenging regarding causality and damages. Due to notable legal, technical, and economic hurdles, it is
not surprising that the judicial process is considered time-consuming but less-effective for environmental
victims.
The situation began to change around 2014. Along the major revision of Environmental Protection Law
in 2013 (enter into force in 2014), the top-down reform to strengthen the role of courts in environmental
dispute resolution has been accelerated. In addition to command-and-control approaches authorised
to environmental administrative authorities, civil society, procuratorates and local governments were
eventually mobilised to hold polluters accountable for their behaviours through the judicial process.
Notably, institutional reforms of the judicial branch and the relaxation of standing to sue beyond
individual rights greatly facilitate the court-centred environmental movement in China. As a result, over
0.253 million environmental civil, administrative, and criminal cases were heard by the courts in 2020,12
which is a sharp contrast to the statistics before 2010.

B. Environmental Courts and Tribunals

A court with special expertise in environmental matters is considered as a key part of the solution to
strengthen the role of judiciary in the achievement of sustainable development.13 As a “one-stop shop”
for environmental dispute resolution, it is expected to take a holistic, multidisciplinary perspective
on environmental matters, to improve judges’ expertise in environmental law, to adopt rules allowing
for innovative and flexible procedures and remedies, and to promote effectiveness and consistency in
judicial decision-making.14
China’s reform towards judicial specification in environmental law can be traced back to 2007,15 but it
was not until 2014 when the top-down judicial reform finally gained momentums. By the mid-2014,
134 environmental courts and tribunals were established in China.16 The number rapidly raised to 456
by 1 November 2015, and then rocketed to 1993 by the end of 2020.17 The year 2014 also marked the
establishment a Division of Environment and Resources (civil only) in the Supreme People’s Court.18
The inspiring progress, however, have wrestled with several theoretical and practical controversies.
This includes, but not limited to, court models,19 jurisdiction,20 the difficulty in defining “environmental

11
See Yi Yang, Lawsuits on Lead Poisoning of Children in Hengyang, Hunan Province Were Withdrew Due to Constant
Communication with the Working Group (8 May 2015) (in Chinese) <http://news.hnr.cn/gnxw/201505/t20150508_1967210.html>.
Xinhua News Agency, Over 0.25 Million Environmental Cases Were Heard by the Courts Nationwide in 2020 (4 June 2021) (in
12

Chinese) <http://www.xinhuanet.com/2021-06/04/c_1127531182.htm>.
Brian J Preston, “Benefits of Judicial Specialization in Environmental Law: The Land and Environment Court of New South
13

Wales as a Case Study” (2012) 29 Pace Environmental Law Review 396, 398.
14
Preston, n 13, 402–403; UNEP, Environmental Courts and Tribunals: A Guide for Policy Makers (2016) ix<https://wedocs.unep.
org/handle/20.500.11822/10001>.
15
The environmental tribunal established in Qingzhen, Guizhou Province is the first environmental court in China. Feng Li,
A Decade Spent on Environmental Protection by the First Environmental Court (13 May 2017) (in Chinese) <http://www.
xinhuanet.com//legal/2017-05/13/c_1120965910.htm>.
16
Information Office of the State Council, Press Conference on Comprehensive Strengthening of Judicial Work on Environmental
Cases by Supreme People’s Court (4 July 2014) (in Chinese) <http://www.scio.gov.cn/xwfbh/qyxwfbh/Document/1374620/1374620.
htm>.
17
Xinhua News Agency, n 12; Juan Xu, Expert: Environmental Cases Should Be Heard by Specialized Courts (18 November 2015)
(in Chinese) <https://www.chinanews.com.cn/gn/2015/11-18/7629179.shtml>.
18
Information Office of the State Council, n 16.
19
Environmental courts in China are established in various forms, including courts, tribunals, collegiate panels and circuit courts.
See UNEP, n 14, 15.
20
UNEP, n 14, 48. Controversies still abound in the following aspects: (1) geographic jurisdiction, (2) subject matter jurisdiction,
(3) level of review and (4) appeal body. For example, some environmental courts in China have very comprehensive jurisdiction
over civil, criminal and administrative cases, which other have only 1 or 2 of those.

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cases”, insufficient caseload,21 training gap, judicial bias22 and judicial activism23. Nevertheless, the
judiciary in China seems rather keen on the institutional reform to advocate for environmental values.

C. Environmental Public Interest Litigation and Environmental Damage

Compensation Litigation
A rapid increase of environmental courts in China requires a justification of enough environmental cases.
Environmental victims, however, often fall short of enough resources and professional knowledge to
support them for seeking remedies through courts. This certainly calls for more legal reforms and more
flexible judicial interpretations to facilitate their access of environmental justice. But it is mainly the
introduction of environmental public interest litigation (EPIL) and environmental damage compensation
litigation (EDCL) that helps the judiciary build a high-profile in environmental law enforcement in
China.
Notably, the judiciary has actively promoted the court-centred environmental movement through judicial
legislation. Even before the formal recognition of EPIL by law in 2012, the judiciary has departed
from accepted interpretive methodologies in individual cases to relax the standing to sue, especially
if the plaintiff is a local government or a public prosecutor. In particular, national property rights,
administrative jurisdiction over natural resources and the procuratorate’s power of legal supervision are
used to justify their standing in civil proceedings.24 Quasi-legislative interpretation documents issued by
some local courts have expanded standing beyond individual rights at the risk of violating Art 8 of the
Legislative Law,25 which states that litigation and arbitration proceedings shall only be governed by laws.
Even when statutory laws granted standing to “relevant organizations and authorities prescribed by law”
in 2012, many legal issues remain unresolved for EPIL, especially regarding the burden of proof and the
rights of claims. Again, the Supreme Court in fact plays a legislative role on the above issues through
active judicial interpretation in individual cases or via general judicial interpretation documents, which
in turn has a strong impact on the statutory laws.26
What is more, the State Council issued the Reform Plan for the Compensation of Environmental Damages
in 2017 to local governments to bring EDCL against infringers to seek compensation for environmental
damages within their administrative jurisdictions. Controversies, however, still exist regarding whether
the standing to sue here is based on national property rights.27 A special judicial interpretation document
(for trial implementation) was then issued by the Supreme Court in 2019 to elaborate on procedural
arrangements.

21
Sun, n 1. Environmental courts in 11 provinces did not hear any cases in 2013. With 11 environmental courts and 24 specialised
judges equipped in Hebei Province (known for heavy industries), only 24 environment related cases in total are finalised in 2013.
22
Judges may be advocates and biased in favour of environmental protection, not balanced and comprehensive in their analysis.
23
Judges are encouraged to overstep their judicial authority and act like legislators and policy makers.
See Local People’s Government of Yexie Town, Songjiang District, Shanghai v Rongxiang Jiang and Shengzhen Dong, Basic
24

Court of Songjiang, Civil Division, First Instance, No 4022, 28 June 2012 (in Chinese); People’s Procuratorate of Haizhu District,
Guangzhou Municipality v Zhongming Chen et al, Maritime Court of Guangzhou, First Instance, No 382, 9 December 2008 (in
Chinese).
25
In 2011, the People’s Court of Kunming and the People’s Procuratorate of Kunming released a Joint Opinions on Several
Issues Regarding Civil EPIL, which granted standing to bring EPIL to procuratorate, environmental protection authorities and
environmental NGOs. Similar judicial document was released in Hainan in 2011 as well. See Fengzhen Xiao and Xiaohua Li, The
Procuratorate in Yunnan Brought EPIL for the First Time as a Plaintiff (12 October 2012) (in Chinese) <http://www.jcrb.com/
procuratorate/jckx/201210/t20121012_962935.html>; Na Hu, The High Court of Hainan Released Opinions for Trial on Civil
EPIL (2 August 2011) (in Chinese) <https://www.court.gov.cn/zixun-xiangqing-10918.html>.
26
A typical example is that the judicial interpretation on claims for damages in EPIL was later adopted in the Civil Code. See
Part V.
27
Divergent views exist on whether the standing to sue in EDCL is based on national property right. See Qi Gao and Sean
Whittaker, “Standing to Sue Beyond Individual Rights: Who Should Be Eligible to Bring Environmental Public Interest Litigation
in China?” (2019) 8(2) Transnational Environmental Law 327, 336.

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With regard to legislative enactment, the amendment of the Civil Procedure Law in 2012 grants standing
to “relevant organizations and authorities prescribed by law” to enhance environmental protection and
consumer protection (Art 55). The Environmental Protection Law was further revised in 2014 to set
threshold requirements on the standing of non-governmental organisations (NGOs). In addition, Art 89
of the Marine Environmental Protection Law has been considered as the statutory basis for public interest
litigation initiated by administrative authorities since 1999, although the nature of this provision is in fact
controversial. Moreover, after two years of a pilot practice, the procuratorates are formally authorised to
bring EPIL against both polluters and administrative decision-makers in 2017.28 Furthermore, following
five years of judicial practice, Arts 1234 and 1235 of the Civil Code (2020) formally recognises the right
of “relevant organizations and authorities prescribed by law” to claim environmental damages.
Statistically, the result of the above reforms is rather inspiring. In 2020, Chinese courts adjudicated 3,454
EPIL cases brought by procuratorates, 103 cases brought by NGOs and 62 EDCL cases brought by
administrative authorities.29 This is a remarkable increase compared to the statistics in 2015, according
to which only 53 cases were brought by NGOs and 12 case were brought by procuratorates.30 But as
you may have noticed, it is the procuratorates, instead of NGOs, that play a key role in promoting court-
centred environmental movement through EPIL.

III. STANDING TO SUE: PRIVATE ENFORCEMENT OR PUBLIC ENFORCEMENT OF

ENVIRONMENTAL LAW BEFORE COURTS
The initial intention of introducing EPIL is to empower civil society to act as environmental watchdogs,
which is expected to complement administrative enforcement of environmental law in China. The
relatively weak civil society in China, however, has been criticised for failure to tap the potential of the
procedure. Among 700 NGOs which claim to have standing in EPIL, only 25 of them have actually filed
such lawsuits between 2015 and 2017.31 Therefore, procuratorates and local governments are motivated
to enforce environmental law through courts. The court-centred environmental movement in China
eventually evolved into another kind of public enforcement which is more powerful but less restricted
than traditional administrative authorities. The questions remain, however, whether the old wine in a new
bottle can really make a change to environmental law enforcement in China and what are the potential
costs?

A. The Public’s Right of Access to Environmental Justice

Compare to the government and business, civil society has been the weakest among three social sectors
in China. Nevertheless, active civil society participation is a crucial element for environmental good
governance. Traditionally, environmental law enforcement in China heavily relies on the administrative
branch of the government. Nevertheless, government agencies were accused of unable or unwilling to
enforce regulatory laws as they should be enforced. Hence private enforcement in the form of EPIL
was envisioned to complement public enforcement against the polluters and to increase the influence of

The Civil Procedure Law of the People’s Republic of China, last revised on 27 June 2017, Art 55(2); The Administrative Litigation
28

Law of the People’s Republic of China, last revised on 27 June 2017, Art 25(4).
The Supreme People’s Court, Environment and Resources Adjudication in China (2020) (4 June 2021) (in Chinese) <https://
29

www.court.gov.cn/zixun-xiangqing-307471.html>.
30
The statistic here is the number of cases registered by court, not the cases adjudicated. It should be noticed that the procuratorates
were only allowed to bring EPIL in piloting areas since July 2015 and there was no EDCL case at the time. Supreme People’s
Procuratorate, The Work Report of the Supreme People’s Procuratorate (2015) (21 March 2016) (in Chinese) <https://www.spp.
gov.cn/spp/gzbg/201603/t20160321_114723.shtml>; Dun Li (ed), Review of Public Interest Litigation in Environmental Protection
2016 (Law Press China, 2017) 1.
31
Ministry of Civil Affairs, Hongyu Liu, The Member of the National Committee of CPPCC: Build Legal Capacity for
NGOs and Increase the Capacity to Sue (16 March 2019) (in Chinese) <http://mzzt.mca.gov.cn/article/zt_2019lh/dbwyhmz/
zxwy/201903/20190300015780.shtml>.

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NGOs. This is largely in line with the “private attorney general” theory which stimulates environmental
movement in the United States in the 1970s.32
The biggest legal obstacle was the individualistic feature of the legal regime, which precluded NGOs to
sue unless they have sustained or will sustain direct injury or harm. The Supreme Court in the United
States resolved this problem by expanding the categories of injury and allowing organisations to sue
on behalf of their members.33 China, however, expands standing to sue by abandoning the foundation
of individual rights under exceptional circumstances, which largely resembles the “association suits”
(Verbandsklage) in Germany.34
The legal breakthrough occurred in 2012, when the Civil Procedure Law granted standing to “relevant
organizations and authorities prescribed by law” to enhance environmental protection and consumer
protection (Art 55). This was followed by the revision of Environmental Protection Law in 2014 to set
threshold requirements on the standing of NGOs. Notably, the initial drafts of the amendment were very
conservative, restricting the standing to sue to only one or few nation-wide NGOs.35 It was criticised
for a lack of trust on NGOs and eventually lead to a relaxation of the standing rules in the final version.
According to Art 58 of the Environmental Protection Law, NGOs that fulfil the following requirements
are considered as eligible plaintiffs: (1) registered with the state at the municipal level or above in
accordance with law; (2) specialised in environmental protection public interest activities; (3) have no
record of administrative or punitive penalties for their activities in the past five consecutive years.
The above provisions can be analysed from several perspectives. First, it is prudent to apply some
threshold requirements on the standing of NGOs. As previously mentioned, individual rights are
considered superfluous in EPIL. Restrictions are therefore needed to ensure the professionalism of
NGOs and prevent frivolous lawsuits. The Civil Procedure Law is not explicit on this issue and resulted
in some divergent rulings in practice before the Environmental Protection Law entered into force in
2015.36 Second, NGOs are only allowed to bring civil EPIL against polluters, which is in a sharp contrast
to the situation in Germany, where environmental NGOs are only authorised to challenge the legitimacy
of administrative decisions.37 Environmental protection is an obligation of the State and it is therefore
believed that more attention should be paid to enhance government accountability. By targeting at
polluters directly, it is worried that EPIL diverts public attention from the crux of environmental law
enforcement.38 Finally, the current standing requirements of NGOs in EPIL are often criticised for been
too excessive giving China’s fledging civil society, especially with regard to the five-year existence

32
Associated Industries of New York v Ickes, 134 F 2d 694, 704 (2nd Cir, 1943); John C Coffee, Jr, “Understanding the Plaintiff’s
Attorney: The Implications of Economic Theory for Private Enforcement of Law through Class and Derivative Actions” (1986)
86(4) Columbia Law Review 669, 669.
33
See Sierra Club v Morton, 405 US 727, 738 (1972); Hunt v Washington State Apple Advertising Commission, 432 US 333 (1977).
34
Most states (provinces) in Germany have adopted association suit in the field of nature conservation since the early 1980s.
Eckard Rehbinder, “Collective Court Actions for Protecting the Environment in the EU and Germany” (Speech delivered at the
Counsellors’ Office of the Shanghai Municipal People’s Government, 30 October 2014); Bundesnaturschutzgesetz (BNatSchG)
[Federal Nature Conservation Act], s 63, 1 March 2010, Federal Law Gazette, 2009, Pt I, No 51, 2542, unofficial English version
available at <https://www.bmu.de/fileadmin/Daten_BMU/Download_PDF/Naturschutz/bnatschg_en_bf.pdf>.
35
Jost Wübbeke, The Three-year Battle for China’s New Environmental Law (25 April 2014) <https://www.chinadialogue.net/
article/show/single/en/6938-The-three-year-battle-for-China-s-new-environmental-law>; National People’s Congress, Second
Reading Draft for the Amendment of Environmental Protection Law (17 July 2013) (in Chinese) <http://www.npc.gov.cn/npc/
xinwen/lfgz/flca/2013-07/17/content_1801189.htm>; Dongyu Peng, Third Reading of Environmental Protection Law: Profound
and In-depth Changes (12 December 2013) (in Chinese) <http://www.npc.gov.cn/npc/zgrdzz/2013-12/12/content_1816460.htm>.
36
All-China Environment Federation v Hainan Tiangong Biological Engineering Co, Ltd, High Court of Hainan, Registration
Division, Second Instance, No 155, 16 December 2013 (in Chinese); Taizhou Environmental Protection Federation v Jiangsu
Chang Long Agrochemical Co, Ltd et al, High Court of Jiangsu, Environmental Public Interest Litigation, Appeal, No 00001, 30
December 2014 (in Chinese).
37
The association suit in Germany also expands standing beyond individual rights.
38
Rehbinder, n 34.

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standard.39 But it is also observed that Art 58 is not as strict as the association suit in Germany in terms
of the democratic element of the NGOs.40
In practice, the courts now show a tendency towards a relaxed interpretation of threshold requirements
in order to promote EPIL.41 Nevertheless, environmental NGOs in China are not as active as imagined
in initiating EPIL. There remains a long way to go to build capacity for NGOs. In the meanwhile, China
is eager in exploring the potentials of the judiciary in environmental law enforcement. This leads to the
authorisation of procuratorates to bring EPIL and the introduction of EDCL to allow local governments
to bring lawsuits against polluters.

B. The Power Expansion of Public Authorities in the Name of Standing

to Sue
1. Procuratorates
Compared to the weak civil society, procuratorates and local governments are considered more powerful
and resourceful to hold polluters pay for environmental damages through the judicial process. Meanwhile,
as a partial response to the criticism that the EPIL only targeted at polluters, the procuratorates are
allowed to bring EPIL to challenge the legitimacy of administrative decisions. After losing anti-
corruption authority to the National Supervision Committee system in 2018,42 EPIL is in fact considered
as an important approach for procuratorates to expand power and influences.
Although the role of procuratorates in civil EPIL is designed to be complementary,43 NGOs are in fact
marginalised in this court-centred environmental movement. As you can discern from the diagram below,
the number of EPIL cases brought by procuratorates rapidly increased since 2017,44 while the number
of EPIL cases brought by NGOs stagnated at a much lower level. In addition, a large amount of EPIL
cases brought by procuratorates is against administrative authorities,45 which NGOs are not yet allowed
to do so.

39
Even the most renowned environmental NGOs in China could be questioned on its standing to sue in EPIL. See Friends of Nature
and Fujian Green Home Environment Friendly Center v Zhijin Xie et al, Intermediate Court of Nanping, Civil Division, Appeal,
No 2060, 29 October 2015 (in Chinese).
40
Full voting rights and open membership are highlighted by German law. Rehbinder, n 34.
Friends of Nature and Fujian Green Home Environment Friendly Center v Zhijin Xie et al, Intermediate Court of Nanping, Civil
41

Division, Appeal, No 2060, 29 October 2015 (in Chinese).

42
Tobias Smith, Power Surge: China’s New National Supervisory Commission (2018) <https://www.thechinastory.org/yearbooks/
yearbook-2018-power/forum-absolute-power-corrupts-absolutely/power-surge-chinas-new-national-supervisory-commission/>.
43
Article 55(2) of Civil Procedure Law allows procuratorates to initiate EPIL if no organisations or authorities stipulated in
Art 55(1) exist or they refuse to file such cases (A 30-day pre-trial notification process is required).
44
The sharp increase of EPIL cases brought by procuratorates in 2017 was mostly motivated by political pressure from top-down
to deliver a good performance result at the end of the two-year pilot period. It was used to add momentum for the revision of
relevant legislation to formally recognise the standing of procuratorates in public interest litigation, which eventually came true in
July 2017. Zhongmin Zhang, “Observation Report on Environmental Public Interest Litigation Filed by Procuratorates in Piloting
Areas” (Speech delivered at Symposium on the Theory and Practice of Environmental Public Interest Litigation in China, Zhejiang
University, 10 June 2017) (in Chinese).
45
The number of administrative EPIL cases brought by procuratorates is almost eight times more than that of the civil EPIL cases.
Supreme People’s Procuratorate, The Work Report of the Supreme People’s Procuratorate (2022) (8 March 2022) (in Chinese)
<https://www.spp.gov.cn/spp/gzbg/202203/t20220315_549267.shtml>.

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TABLE 1. Number of Court-resolved EPIL Cases 2015–2020*

Year NGOs Procuratorates
2015 53 12
2016 68 77
2017 58 1,304
2018 65 1,737
2019 58 1,895
2020 103 3,454
* See The statistic here is the number of cases registered by court, not the cases adjudicated. It should be noticed that the
procuratorates were only allowed to bring EPIL in piloting areas since July 2015 and there was no EDCL case at the time.
Supreme People’s Procuratorate, The Work Report of the Supreme People’s Procuratorate (2015) (21 March 2016) (in Chinese)
<https://www.spp.gov.cn/spp/gzbg/201603/t20160321_114723.shtml>; Dun Li (ed), Review of Public Interest Litigation in
Environmental Protection 2016 (Law Press China, 2017) 1; The State Council Information Office, Supreme People’s Court
Press Conference on Adjudgment of Environmental Cases, the Development of Judiciary and Typical Cases (2 March 2019)
(in Chinese) <http://www.scio.gov.cn/xwfbh/gfgjxwfbh/xwfbh/44193/Document/1691730/1691730.htm>; Supreme People’s
Court, Adjudgment of Environmental Cases in China (2019) (8 May 2020) (in Chinese) <https://www.court.gov.cn/zixun-
xiangqing-228341.html>.

On the bright side, the court-centred environmental movement in China has certainly gained more
momentums since the involvement of procuratorates. The procuratorates have proved themselves as
more capable plaintiffs, at least statistically.46 With more EPIL cases brought to court, judges have more
opportunities to exercise their power broadly to ensure the realisation of a pro-environment policy.
With respect to potential risks, it is argued that the procuratorates’ right to sue falls short of enough
external constraints. They cannot be held responsible for inaction if they selectively ignored certain cases,
neither can they be punished for bringing frivolous lawsuits which waste judicial resources and endanger
individual rights. Under top-down internal performance evaluation pressure, many local procuratorates
are also struggling to find a case to sue, especially considering that they fall short of enough professional
knowledge compared to environmental protection authorities.
In addition, the form of checks and balances between public authorities is indeed a constitutional issue.
It is inappropriate to do so through a judicial process. As will be discussed in the next section, the court
is caught in the middle of a dilemma to resolve conflicts between two public authorities which both
alleged to represent public interests. In practice, many issues brought to court were simple and minor
legal violations, such as illegal dumping of garbage.47
2. Administrative Authorities
With regard to the standing of administrative authorities in EPIL and EDCL, two key questions remain
to be answered. The first one is whether the standing of administrative authorities is based on national
property rights. This fundamental question generates numerous theoretical and practical challenges
which are unable to be answered based on usual interpretive methodologies.
Administrative authorities in China can bring EPIL and EDCL based on the following provisions. First
of all, Art 89 of the Marine Environmental Protection Law authorises administrative authorities in charge
of marine environment protection to seek compensation from polluters on behalf of the State. This is
generally considered as a special provision on EPIL in practice and NGOs are precluded to bring EPIL

46
Although it is pointed out that NGOs are more likely to take on cases that are more challenging. See Lei Xie and Lu Xu,
“Environmental Public Interest Litigation in China: Findings from 570 Court Cases Brought by NGOs, Public Prosecutors and
Local Government” (2022) 34(1) Journal of Environmental Law 53.
47
“Administrative Public Interest Litigation Were Brought against Five Local Governments in Guizhou Province for Illegal
Dumping of Garbage”, Xinhua News, 24 June 2017 (in Chinese) <http://news.xinhuanet.com/legal/2017-06/24/c_1121203845.
htm>.

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with regard to marine environmental protection.48 But it is argued that the plaintiff here is actually suing
on behalf of the State to protect marine resources which according to the Constitution belongs to the
State.49 Therefore, in nature, it does not count as EPIL which expands standing beyond individual rights.
Before the above doubts can be settled, the innovation of EDCL makes the problem even more
complicated. Notably, Art 1 of the Judicial Interpretation on EDCL (For Trial Implementation) (2019)
authorises the following administrative authorities to sue in case they failed to reach an agreement with
polluters: the provincial and municipal governments, institutions and departments designated by them,
and departments authorised by the State Council to exercise state ownership.50
This provision reflects a mixed feature of both private and public law. On one hand, one could argue that
the departments authorised by the State Council to exercise state ownership seems to gain their standing
based on national property rights. On the other hand, the provincial and municipal governments seem
to gain their standing based on their administrative jurisdiction. As long as a pollution activity occurred
within their jurisdiction, they have the right to bring EDCL, even if it affects private or collective
property rights. The latter interpretation, in fact, reveals the truth of the EDCL. Namely, it is a quasi-
punitive measure against polluters in the disguise of tort claims. In fact, there are disputes on whether
administrative or criminal fines should be deducted when calculating environmental damages in EDCL
cases.51 While administrative and criminal punishments are subject to a range of strict substantive and
procedural restrictions, this quasi-punitive measure is free from the above restraints.
Although relatively speaking, the national property rights sound like a more solid foundation to justifying
the standing of administrative authorities, China’s recent judicial interpretation on punitive damages
(2022) generates further concerns for more negative impacts on individual rights. Article 12 of the
document allows the plaintiffs of EPIL and EDCL to claim for punitive damages on behalf of the injured
party. This liberal interpretation is considered in line with the Civil Code, which specifically restrains
the right to the injured party.52 But it is at least in contradiction with the theory of EPIL, which expands
standing beyond individual rights.
Since there is no way to find a sound legal explanation for the procedures largely driven by legal policies,
it is perhaps helpful to explore the question of necessity. Ockham’s Razor cautions us not to multiply
entities beyond necessity. This, however, seems to contradict with the direction of relevant legal policies.
A wide range of regulatory tools are already available for administrative authorities in China to enforce
environmental law. In particular, the revision of Environmental Protection Law in 2014 applies more
severe penalties (such as daily penalty and detention) for certain types of illegal activities.53 The failure
of the local governments to effectively enforce the environmental law through administrative approaches
cannot be corrected by giving them more unrestrained power in the form of standing to sue in EPIL and
EDCL. It diverts public attention from government accountability, increases the risk of rent-seeking and
raises genuine concerns for the protection of individual rights.

48
For example, in Dalian Environmental Protection Volunteers Association v PetroChina Fuel Oil Co, Ltd et al (2015), the court
ruled that the Marine Environmental Protection Law as a special law should be applied prior to the Environmental Protection
Law as a general law, therefore the standing can only be granted to administrative authorities in charge of marine environment
protection and the NGOs in this case were not qualified plaintiffs. See Dalian Environmental Protection Volunteers Association v
PetroChina Fuel Oil Co, Ltd et al, Dalian Maritime Court, Registration Division, First Instance, No 5, 17 June 2015 (in Chinese).
49
According to Art 9 of the Constitution, natural resources are mainly state-owned in China, with the exception of collective
ownership. The Constitution of People’s Republic of China, adopted on 4 December 1982, last revised on 11 March 2018, Art 9.
50
Judicial Interpretation on Environmental Damage Compensation Litigation (For Trial Implementation), No 8 [2019] of the
Supreme People’s Court, 20 May 2019, Art 1.
51
See People’s Procuratorate of Tongren v Guizhou Yuping Xiangsheng Chemical Co, Ltd, Intermediate People’s Court of Zunyi,
Civil Division, First Instance, No 520, 30 January 2018 (in Chinese).
52
The Civil Code of People’s Republic of China, adopted on 28 May 2020, 3rd Meeting of the 13th National People’s Congress,
Art 1235.
Environmental Protection Law of People’s Republic of China, adopted on 26 December 1989, last revised on 24 April 2014, 11th
53

Meeting of the National People’s Congress Standing Committee, Arts 59, 63 (in Chinese).

234 (2023) 39 EPLJ 226

 The Impact and Prospect of the Court-centred Environmental Movement in China

Environmental restoration can be achieved through administrative orders as well. In case the polluters
failed to fulfil their obligations to clean up, enforcement authorities could substitute the polluters to
perform the obligation in accordance to administrative orders.54 Reimbursement can be demanded from
the polluters for the necessary expenses.55 Many compulsory execution measures are already available
for the local governments to hold the polluters to pay. Although the polluter pays principle should be
applied when available, some environmental costs have to be borne by the society in case the polluters
no longer existed or did not have the capacity to pay. Moreover, industries which generate environmental
risks also lay the foundation for modern society. Environmental values are not absolute or superior
than other goals for sustainable development. Therefore, local administrative authorities should make
equitable decisions within limited government budgets. To a large extent, such discretion should be
better left to the administrative authorities than the courts, which will be discussed in detail in the next
section.

IV. THE ROLE OF JUDICIARY IN ENVIRONMENTAL LAW ENFORCEMENT IN CHINA

The judicial activism reflected in China’s court-centred environmental movement raises the question of
how to reshape the role of judiciary and administration in environmental law enforcement. In contrast to
a rather marginal role in the past, judges are increasingly encouraged to overstep their judicial authority
and act like environmental regulators. Although this is envisioned as a complement to administrative
law enforcement, the judicial intervention is increasingly doubted for taking precedence over the
administrative authorities in environmental law enforcement. It not only overburdens judges with extra
responsibilities which they are not familiar with, but also negatively affects the necessity of flexibility
and autonomy of the administrative authorities, which is essential to any regulatory scheme. This
section therefore attempts to reveal the gap between rhetoric and reality.

A. To Complement Administrative Law Enforcement?

While it is generally agreed that the role of the judiciary should be strengthened to promote environmental
justice, it is now criticised for being too active in a way that largely took over the responsibility of
administrative authorities.
This is partly attributable to the design of the EPIL process. As a similar example, the citizen suit in the
United States requires the plaintiff to give a 60-day notice of the alleged violation to the alleged violator,
the State and the Environmental Protection Agency (EPA) prior filing suit. In case the alleged violator
corrected the alleged behaviour, or the States and the EPA got involved in the issue within 60 days,
the case would not be brought to court. As a result, the administrative authority enjoys a precedence
in law enforcement and judicial resources can be saved. In China, however, the 60-day pre-trial notice
only applies to administrative EPIL.56 In case an EPIL was brought against a polluter, the judiciary can
directly hear the case to enforce environmental law.
Nevertheless, it often falls short of necessary professional knowledge and relevant capacities to play the
role of environmental regulator. In the end, the judiciary often still relies on the administrative authorities
to collect evidence and to enforce the judgment. According to Art 23 of the Judicial Interpretation on
EPIL, in case the environmental restoration costs were difficult to evaluate or the appraisal costs for
such evaluation were too expansive, the court can decide on restitution expanses by consulting with
environmental administrative authorities.57 Even if the polluters were ordered by the court to pay

54
Administrative Compulsion Law of People’s Republic of China, adopted on 30 June 2011, 21st Meeting of the Standing Committee
of the National People’s Congress, Art 50.
55
Administrative Compulsion Law of People’s Republic of China, adopted on 30 June 2011, 21st Meeting of the Standing Committee
of the National People’s Congress, Art 51.
56
Judicial Interpretation on Public Interest Litigation Brought by Procuratorates, No 6 [2018] of the Supreme People’s Court,
Art 21 (in Chinese).
See Judicial Interpretation on Environmental Public Interest Litigation, No 1 [2015] of the Supreme People’s Court, Art 23 (in
57

Chinese).

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Gao

for environmental restoration, the actual clean-up work is often still entrusted to or supervised by
environmental administrative authorities.58 In some cases, the monetary compensation is even directly
paid to the accounts of local environmental administrative authorities.59 Although polluters are required
to pay for environmental damages, the EPIL process is unable to prevent possible government failures
during clean-ups.

B. To Increase Supervision on Administrative Law Enforcement?

As a response to the criticism that the civil EPIL diverts attention from government accountability,
the procuratorates are allowed to bring EPIL against environmental administrative authorities.
Compared to civil EPIL, the administrative EPIL is considered as a simple, less expansive and direct
way to improve environmental governance, since it is mainly the responsibility of the government to
enforce environmental law. In practice, however, such supervision on administrative law enforcement is
questioned from several perspectives.
First of all, it is inappropriate for the judiciary to review the reasonableness of administrative environmental
decisions. This is particularly true in respect to public services provided by local governments, which
should enjoy enough discretion on making priority choices among public interests. A typical type of
EPIL cases against administrative authorities is with regard to the failure to provide adequate public
services in relate to environment. For example, in Dehui People’s Procuratorate, Jilin Province v The
Government of Chaoyang Town (2019), the local government is accused of failing to clean up household
garbage. As a township government of a less developed area, however, the fiscal budget of the defendant
is overwhelmed with numerous public services. A proper landfill for household garbage is not the
priority concern compared to pension, basic medical care and public education. Technically speaking,
the budget of the local government is decided by the local people’s congress. The unsatisfactory status of
public services, including but not limited to environmental protection, should not be supervised through
the judicial process. Instead, it is the political process and economic development that may contribute
more to the improvement of public services. The local government is more experienced in administrative
affairs and can make decisions based on more comprehensive information.
With regard to the legitimacy of administrative environmental decisions, it is argued that the potential
of traditional public law remains largely unexplored in holding administrative authorities accountable
for environmental decisions.60 For example, many decisions reviewed by the judiciary through EPIL
could be resolved through internal administrative appeals bodies.61 In addition, litigations brought by
individuals to protect their rights should play a key role in challenging the legitimacy of administrative
environmental decisions. More attention should be paid to theoretical and practical obstacles remain
exist in this aspect.
The checks and balances between public authorities are indeed a constitutional issue. More often than not,
the court is caught in the middle of a dilemma to resolve conflicts between two public authorities which
both alleged to represent public interests. For example, in the case of Hunchun People’s Procuratorate v
Hunchun Bureau of Land Resources (2018), the plaintiff alleged that the defendant failed to impose
penalties on illegal miners. The defendant, however, argued that the illegal mining activity in question
was under criminal investigation and the administrative procedure was pending on the result of the

58
For example, in Xishan People’s Procuratorate of Wuxi City v Li Huarong (2009), the court ordered local agriculture and forest
bureau to supervise the defendant to replant the trees that were illegally logged. Xishan People’s Procuratorate of Wuxi City v Li
Huarong , People’s Court of Xishan, First Instance, No 1216, 2009.
59
Jiangsu Environmental Protection Association v DyStar (Nanjing) Co, Ltd, Nanjing Intermediate People’s Court, Civil Division,
First Instance, No 1203, 26 July 2017.
60
Dehui People’s Procuratorate, Jilin Province v The Government of Chaoyang Town, Jilin People’s High Court, Appeal, No 21,
15 August 2019.
Helong Forest People’s Procuratorate, Jinlin Province v Forestry Administration of Yanbian, People’s Court of Helong Forest,
61

Administrative Division, No 1, 9 May 2017.

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 The Impact and Prospect of the Court-centred Environmental Movement in China

criminal procedure.62 As a result, the plaintiff lost the case in the first instance.63 In the appeal, however,
the defendant dramatically asked the court to withdraw written pleadings and admit the fact alleged by
the plaintiff.64 The court, however, found the admission in contradiction with the proofs in the initial
hearing and upheld the original judgment. The People’s Procuratorate of Jilin Province then protested the
case to Jilin High People’s Court and the court decided to rehear the case. The result remains unknown.
In practice, many issues brought to court were simple and minor legal violations. Only procuratorates are
allowed in China to bring EPIL to challenge the legitimacy of administrative environmental decisions.
While they are considered to be more powerful and resourceful than NGOs in China, the standing to
bring EPIL is not an obligation to sue, therefore the public cannot hold them responsible for inaction.
Meanwhile, no formal restrictions can be applied on procuratorates to prevent frivolous lawsuits. It is
therefore argued that the real effect of EPIL on supervising administrative law enforcement is rather
limited, but it significantly increases the leverage of procuratorates on daily administrative matters.
Last, but not the least, judicial review of administrative decisions in the form of EPIL could force the
administrative authorities to comply with the law that applies excessive or inappropriate regulation. For
example, in China, it is required that the effluent discharged from sewage treatment plants should comply
with emission standards.65 The law is ambiguous, however, on whether the sewage treatment plants
should be subject to administrative penalty in case the effluent discharged exceeded allowable limits.66
In many circumstances, this phenomenon cannot be blamed on the sewage treatment plants, since they
usually have to operate beyond their designed capacity due to rapid urbanisation and industrialisation.67
In practice, environmental protection authorities often avoid to apply administrative penalties on the
sewage treatment plants as long as the facilities operate normally, do not cause severe environmental
accidents and notice the authority in case severe pollution occurred.68 The resolution of this problem lies
in the improvement of municipal infrastructure, more scientific urban planning and legislative response to
balance the needs of sustainable development goals. The involvement of the judiciary can only aggravate
the tension between the sewage treatment plants and administrative authorities, since the administrative
authorities now face litigation risk for failure to correct and punish the sewage treatment plants.69

Hunchun People’s Procuratorate v Hunchun Bureau of Land Resources, Intermediate People’s Court of Yanbian, Administrative
62

Division, Appeal, No 104, 2018.

Hunchun People’s Procuratorate v Hunchun Bureau of Land Resources, Intermediate People’s Court of Yanbian, Administrative
63

Division, Appeal, No 104, 2018.

Hunchun People’s Procuratorate v Hunchun Bureau of Land Resources, Intermediate People’s Court of Yanbian, Administrative
64

Division, Appeal, No 104, 2018.

65
The Law on the Prevention and Control of Water Pollution of People’s Republic of China, adopted on 11 May 1984, last revised
on 27 Jun 2017, Art 50.
66
Wuhan Wotekeling Water Affairs Lt Co, Ltd v Wuhan Environmental Protection Bureau, Intermediate People’s Court, Civil
Division, First Instance, No 94, 15 August 2016.
67
“Chamber of Environmental Commerce: Excessive Emission Due to Excessive Sewage – the Unbearable Weight for Sewage
Plants”, Nandu News, 3 March 2021 (in Chinese) <https://www.sohu.com/a/453777720_161795>.
68
Ministry of Ecology and Environment, Notice on Environmental Management of Municipal (Industrial Park) Sewage Treatment
(No 71 of Aquatic Environmental Management, 14 December 2020) (in Chinese).
69
The People’s Procuratorate of Gongjing District, Zigong City v Water Authority of Gongjing District, Zigong City, People’s
Court of Gongjing District, Administrative Division, First Instance, No 4, 27 March 2019. The sewage treatment plants also
directly face litigation risks due to EPIL. Interestingly, the current judicial practice also reflects divergent views on this issue.
In Jinhua Green Ecology Culture Service Center v Huixing Water Supply and Sewage Lt Co, Ltd (2020), the court ordered the
defendant to stop illegal emission. In Friends of Environment Science and Technology Center of Chaoyang District, Beijing v
Dalian Qingben Recycled Water Lt Co, Ltd (2021), however, the court ruled in favour of the defendant. See Jinhua Green Ecology
Culture Service Center v Huixing Water Supply and Sewage Lt Co, Ltd (2020), Intermediate Court of Luoyang, Civil Division,
First Instance, No 26, 30 December 2020; Friends of Environment Science and Technology Center of Chaoyang District, Beijing v
Dalian Qingben Recycled Water Lt Co, Ltd, Intermediate Court of Dalian, Civil Division, First Instance, No 937, 15 June 2021.

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V. INNOVATIONS REGARDING REMEDIES AND BURDEN OF PROOF IN

ENVIRONMENTAL DISPUTES
Judicial activism in environmental movement in China is also reflected in retrofitting of various legal
theories to the facts of different cases, in particular with regard to remedies and burden of proof in
civil EPIL cases. To a large extent, relevant innovations are highly controversial due to departures from
accepted interpretive methodologies and result-oriented judging.

A. Remedies
Traditionally, remedies are awarded to compensate the injured party for loss or injury in Chinese civil
cases. Challenges, however, have long existed in environmental cases regarding the types of remedies and
the calculation of damages. The situation is further complicated since the tort law in China is expected
to not only protect individual rights, but to hold polluters pay for the clean-up and environmental losses
and improve the adherence to environmental law. Although the Civil Procedure Law and Environmental
Protection Law relaxed the standing rule, they do not specify on what claims can the plaintiffs file.
As a result, the court has increasingly derived from accepted legal interpretation methodologies to
expand the theory of remedies in favour of the plaintiffs, especially in EPIL and EDCL cases. This is
achieved through judicial interpretation documents and judges further make innovative interpretations in
individual cases, which eventually adopted by relevant legislation.70
The innovative interpretations on remedies can be justified, to some extent, by the fact that environmental
restoration in China has struggled with limited funding. It is the government who has been mainly
responsible for environmental restoration. In many cases, the polluters were not held to pay for
environmental damages due to historical and legal reasons. A lack of supervision on administrative
authorities also leaves plenty of rooms for rent-seeking. Under such circumstances, the EPIL and EDCL
are considered as important approaches to make polluters pay for the clean-up and environmental losses.
But as will be further discussed below, recovering restoration costs on a case-by-case basis is a rather
unstable, unpredictable and costly approach.
At the present, however, most attention is paid to making polluters pay, but less attention is paid to the
ownership of the payments, the responsibility for the clean-up and the supervision of relevant work.
Judicial practice reflects divert views on the above issues. For example, judgments has been made to
order the defendant to pay monetary compensation to the bank accounts of the procuratorates, the courts,
special environmental protection foundations and even local environmental protection authorities.71 With
regard to environmental restoration, the courts tend to order the defendants to pay for the clean-up
rather than engage in environmental restoration by themselves.72 As a result, the courts often have to
assign a qualified third party to clean-up and supervise the utilisation of monetary compensation paid
by the defendant. The judiciary, however, often falls short of professional knowledges to handle such
responsibility. In some other cases, the courts directly order local environmental authorities to engage in

70
Art 1235 of the Civil Code states that: relevant organisations and authorities prescribed by law may require the infringing party
to bear the potential losses and expenses to the ecological environment due to violation of relevant provisions: losses caused by
the loss of service functions during the period of completing the restoration of the ecological environment after the damage has
been caused; losses caused by permanent damages to ecological environment functions; costs of investigating and appraising the
damage to the ecological environment; costs of removing pollution or restoring the ecological environment; and reasonable costs
incurred to prevent the occurrence and expansion of the damage. The Civil Code of People’s Republic of China, adopted on 28 May
2020, 3rd Meeting of the 13th National People’s Congress, Art 1235.
71
People’s Procuratorate of Nanjing v Jiangsu Anwei Renewable Resources Lt Co, Ltd, Intermediate Court of Nanjing, Civil
Division, First Instance, No 1313, 15 March 2018; People’s Procuratorate of Xuzhou v Xuzhou Hongshun Papermaking Lt Co,
Ltd, People’s High Court of Nanjing, Appeal, No 1357, 23 December 2016; Jiangsu Environmental Protection Association v
DyStar (Nanjing) Co, Ltd, Nanjing Intermediate People’s Court, Civil Division, First Instance, No 1203, 26 July 2017; Ganyu
Environmental Protection Association of Lianyungang City v Shaocheng Gu, Intermediate Court of Lianyungang, Civil Division,
First Instance, No 00001, 9 September 2014.
The courts only order the defendants to clean-up themselves in a few cases, usually with minor environmental damages. All-
72

China Federation of Environmental Protection v Changjin Liangping Livestock Specialized Farmer Cooperative, Intermediate
Court of Wuxi, EPIL Division, First Instance, No 1, 2 June 2016.

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 The Impact and Prospect of the Court-centred Environmental Movement in China

environmental restoration or to supervise relevant work.73 But this again, has to face the same problem
of government failure in environmental governance.
With regard to the types of remedies, the most common ones are restitution and monetary compensation.
Monetary compensation to cover restoration expenses is also considered as a way of restitution.
Traditional tort law theory in China states that in case restitution is not feasible or not economically
reasonable, monetary compensation should be awarded instead. The court, however, took an innovative
interpretation on this issue and stated that restoration of environmental damage is preferred over
monetary compensation even if it is not economically reasonable, since environmental values cannot be
fully protected by monetary compensation alone.74 This is later recognised by Art 1234 of the Civil Law.
While it is true that environmental values can be better protected through environmental restoration,
pursuing restitution despite any cost-benefit consideration seems to have gone too far.
In fact, the administrative law in China already trusts the government to decide on whether certain
polluted area should be restored. As previously mentioned, in case the government made an administrative
decision to require a polluter to restore environmental damages and the polluter failed to perform their
duty within the prescribed time limit, the government could perform the duty on behalf of the polluter
or authorise a third party to do so.75 Relevant costs can be further claimed from the polluter. Here, the
government enjoys discretion on whether to clean up on behalf of the polluter. Giving the limited budget
of local governments and numerous other public services (education, health care, infrastructure etc)
that should be provided by local governments, it is reasonable for the local government to decide on
whether environmental restoration should be made a priority issue. If the government finds the damaged
environment should be restored, it can ask the polluter to pay for the costs afterwards. Under such
circumstances, the courts do not have to go through the trouble to estimate the costs, but can decide
on the case based on the costs that actually happened. Instead of wasting judicial resources for limited
success on a case-by-case basis through EPIL and EDCL, more attention should be paid to hold the
administration accountable for its implementation and enforcement behaviour.
In addition, instead of ordering the defendants to directly engage in clean-up activities, the courts
usually order the defendants to pay environmental restoration costs based on a variety of environmental
restoration evaluation approaches.76 These evaluation methods, however, are in fact highly controversial
both scientifically and legally.77 To some extent, it is considered as a technical detour to achieve de facto
punitive damages. In particular, the so-called “imputed abatement costs” has been frequently used in
EPIL and EDCL cases. It can be applied in case the restoration is not economically reasonable, or not
feasible, or the harm caused by the infringing activity is uncertain or the environment is already self-
healed.78 The defendant is often required to pay for the imputed abatement costs as a way of restitution.
But the application of this evaluation method is in fact in contradiction with tort law theories. For
example, in case the restoration is not economically reasonable, or not feasible, monetary compensation

73
For example, in the Procuratorate of Xishan District, Wuxi City v Huarong Li et al (2009), the court ordered responsible
administrative authority to oversee the defendants to engage in environmental restoration. Procuratorate of Xishan District, Wuxi
City v Huarong Li et al, People’s Court of Xishan District, Civil Division, First Instance, No 1216, 2009.
Judicial Interpretation on Environmental Public Interest Litigation, No 1 [2015] of the Supreme People’s Court, Arts 20, 21 (in
74

Chinese).
75
Administrative Compulsion Law of People’s Republic of China, adopted on 30 June 2011, 21st Meeting of the Standing Committee
of the National People’s Congress, Art 50.
76
See Ministry of Ecology and Environment, Recommended Evaluation Methods for Environmental Damages (2nd ed, 2014) (in
Chinese) <https://www.mee.gov.cn/gkml/hbb/bgt/201411/W020141105395741560668.pdf>.
77
The two editions of the Recommended Evaluation Methods have many differences. The second edition is still highly controversial
and leads to the release of an explanatory document on the application and calculation of imputed abatement costs. See Ministry of
Ecology and Environment, Recommended Calculation Methods for Environmental Pollution Damages (1st ed, 2011) (in Chinese)
<https://www.mee.gov.cn/gkml/hbb/bwj/201105/W020110530352486511962.pdf>. Ministry of Ecology and Environment,
Explanation on the Application and Calculation of Imputed Abatement Costs (2017) (in Chinese) <https://www.mee.gov.cn/gkml/
hbb/bgth/201709/W020170928498164923852.pdf>.
78
Ministry of Ecology and Environment, Explanation on the Application and Calculation of Imputed Abatement Costs, n 77.

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should be applied instead. Moreover, if the harm is uncertain or already self-healed, usually it is difficult
to be considered as an injury, not to mention compensation. With regard to illegal activities that lead
to such result, administrative penalties should be enough to punish such behaviours and prevent future
violations. The utilisation of the “imputed abatement costs” method in fact significantly relaxed the
threshold for the award of damages and increases the amount payable by the defendants. From 2016
to November 2021, damages claimed through EDCL has reached ¥9 billion.79 The highest amount of
compensation ordered in a single environment public interest litigation case is ¥2.96 billion.80
Another notable judicial innovation is the application of punitive damages in EPIL cases. Although
Art 1232 of the Civil Code restricts the right to claim punitive damages to environmental victims, the
Supreme People’s Court made a rather liberal interpretation in January 2022 to allow the plaintiffs of
EPIL and EDCL to claim for punitive damages on behalf of the infringed.81 But as explained in Part III,
the standing to sue of the plaintiffs is based on direct legal authorisation, rather than the authorisation
from environmental victims. Even before the release of this quasi-legislative document, local courts
have already supported the claim for punitive damages in several individual cases. But no explanation is
provided on why the plaintiffs of EPIL can make such a claim.82

B. Burden of Proof
The burden of proof is often considered as a main obstacle for the plaintiffs in environmental cases to
seek judicial remedies. As a result, the tort law in China has already shifted the burden of proof to the
defendant in environmental cases.83 But the plaintiff is still required to provide evidence on the following
matters: (1) the pollutant is discharged by the infringing party, (2) harm suffered by the injured party,
and (3) the relevance between the pollutant and harm.84 In practice, however, the burden of proof can be
further relaxed by the judiciary, especially in EPIL and EDCL cases.
This is represented by the abuse of presumption of fact. Article 10 of the Judicial Interpretation on
Evidence in Civil Proceedings states that facts that can be presumed based on known facts and daily
life experiences do not need to provide evidence.85 Usually, the presumption of fact should be used
prudently. But recent years have witnessed a tendency to use this rule to avoid providing evidence on
damages and causation. For example, in Jin Li v Chongqing China Resources (Holdings) Co, Ltd (2018),
the court rules that it is a known fact that long-time light pollution generated by the LED (light emitting
diode) penal will cause damage to people’s health, therefore the damage sustained by the plaintiff can
be presumed.86 Although the result of the case is largely commendable, the plaintiff in fact can utilise
the claims of real rights (immissio) to exclude light pollution and obtain indemnity.87 Common sense

79
“Environmental Damage Compensation System Should Play a Bigger Role”, Legal Daily, 8 December 2021 (in Chinese)
<https://www.chinacourt.org/article/detail/2021/12/id/6421467.shtml>.
80
. The defendants of the People’s Procuratorate of Shunde District, Foshan City v Lin Jingquan et al (2020) illegally mined 12.38
million m3 of river sands. The defendants are members of gangsters. See People’s Procuratorate of Shunde District, Foshan City v
Lin Jingquan et al (Unreported, Intermediate Court of Foshan, Appeal, Criminal Division, 20 February 2020).
Judicial Interpretation on the Application of Punitive Damages on Environmental Cases, No 1 [2022] of the Supreme People’s
81

Court, Art 12.

82
The People’s Procuratorate of Qingdao v Space Images Virtuosity Centre of Laoshan District, Qingdao, Intermediate Court
of Qingdao, Civil Division, First Instance, No 69, 29 January 2021; The People’s Procuratorate of Fuliang, Jiangxi Province v
Zhejiang Hailan Chemical Group Co, Ltd, People’s Court of Fuliang, Civil Division, First Instance, No 796, 4 January 2021.
83
The Civil Code of People’s Republic of China, adopted on 28 May 2020, 3rd Meeting of the 13th National People’s Congress,
Art 1230.
84
Judicial Interpretation on the Application of Law in Environmental Tort Cases, No 12 [2015] of the Supreme People’s Court,
1 June 2015, Art 6.
85
Judicial Interpretation on Evidence in Civil Proceedings, No 19 [2019] of the Supreme People’s Court, 25 December 2019,
Art 10.
Li Jin v Chongqing China Resources (Holdings) Co, Ltd, People’s Court of Jiangjin, Civil Division, First Instance, No 6093, 28
86

December 2018.
87
Jun Xiao, “The Study on the Claim of Real Rights of Immissio” (2016) 2 Journal of Comparative Law 49 (in Chinese).

240 (2023) 39 EPLJ 226

 The Impact and Prospect of the Court-centred Environmental Movement in China

and social rationality on environmental risk, damage and causation could be in contradiction with
professional knowledge. The abuse of presumption of fact could lead to procedural injustice and result-
oriented judging.
In addition, the judiciary is increasingly taking an active role in collecting evidence in EPIL and EDCL
cases. According to Art 14 of the Judicial Interpretation on EPIL, the court should collect evidence
that is necessary to adjudicate EPIL.88 Moreover, in case the restoration expenses were too hard to
calculate or relevant judicial expertise was too expensive to afford, the court itself is expected to play
the role of experts in deciding the amount of monetary compensation based on issues such as the range
and degree of environmental deterioration, the complexity to restore the environment, the costs to
prevent such pollution, the benefits gained by the defendant and the degree of negligence.89 But as
discussed before, the courts often need help from environmental protection authorities for professional
knowledge. The above rules are already used in many EPIL cases and significantly relax the burden of
proof on the plaintiffs.90 For example, in Beijing Fengtai Source Enthusiast Environmental Research
Institute v Shenzhen Changyuan Tefa Technology Co, Ltd (2019), court referred to Art 23 of the Judicial
Interpretation and ordered the defendant to pay ¥2 million as monetary compensation, although the
plaintiff cannot provide enough evidence on this issue.91

VI. CONCLUDING REMARKS

The court-centred environmental movement in China is a top-down social and legal reform. Although
initially it seems to promote private enforcement of environmental law, it is increasingly evolved
into another kind of public enforcement which is more powerful but less restricted than traditional
administrative approaches. The movement shows a strong feature of judicial activism. It opens the
door for judges to exercise their power broadly to ensure the realisation of a pro-environment policy.
But environmental protection is just one of the goals for sustainable development. It is argued that the
integration of competing values should be better left to the legislative and executive branches of the
government than the judiciary.
The court-centred environmental movement and relevant legal and institutional innovations certainly
have a positive impact on improving environmental law enforcement in China. But it is also criticised
for bring more problems than it really solves. In particular, the departure from accepted interpretive
methodologies and the active role played by the court in environmental cases raise serious concerns on
negative impacts on the protection of individual’s procedural and substantive rights.
China is in the process of profound structural reforms to achieve high-quality growth. Environmental
values are highlighted both politically and legally. This will have a notable impact on China’s economy.
But over the long term, environmental protection, economic development and individual rights protection
do not necessarily contradicts with each other.

88
Judicial Interpretation on Environmental Public Interest Litigation, No 1 [2015] of the Supreme People’s Court, Art 14 (in
Chinese).
89
Judicial Interpretation on Environmental Public Interest Litigation, No 1 [2015] of the Supreme People’s Court, Art 23 (in
Chinese).
90
Beijing Fengtai Source Enthusiast Environmental Research Institute v Shenzhen Changyuan Tefa Technology Co, Ltd, Shenzhen
Intermediate People’s Court, Civil Division, First Instance, No 3010, 21 December 2020.
91
Beijing Fengtai Source Enthusiast Environmental Research Institute v Shenzhen Changyuan Tefa Technology Co, Ltd, Shenzhen
Intermediate People’s Court, Civil Division, First Instance, No 3010, 21 December 2020.

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