1. Introduction of EPIL

Environmental Public Interest Litigation (EPIL) in China permits qualified environmental non-governmental organizations (NGOs) to file litigation to protect the public interest in safeguarding the environment and natural resources from pollution and ecological destruction. It took China almost ten years to establish the EPIL scheme in law and may take several more years to fine-tune the EPIL system through practices.

[Author’s Note: This article was originally published in The Comparative Jurist, a William & Mary Law School’s International and Comparative Law Blog. The author would like to thank the editors of the Comparative Jurist for constructive comments and editing assistance.]

At the Third Session of the Tenth Chinese People’s Political Consultative Conference (CPPCC) held in March 2005, 28 members of the CPPCC, including Liang Congjie (梁从诫), an environmental activist in China who established the Friends of Nature in 1994 as the first environmental NGO to be officially recognized by China’s government, submitted a joint-proposal entitled “Proposal on Promptly Establishing and Improving the Environmental Protection Law for Public Interest Litigation.” (关于尽快建立健全环保公益诉讼法的提案) . The proposal “call[ed] for the establishment of a civil litigation system for environmental public interest as soon as possible, so as to guarantee environmental rights of the public and protect social public interest and state interest in a more effective way.”

Over the past decade, widespread and severe environmental pollution has continued to confront China and to threaten citizens’ health. Air pollution, especially the smog, plagued vast regions of China. Soil and water pollution have been linked to food safety concerns. These alarming levels of pollution provoked the public’s consciousness on environmental protection and pressed China’s new leaders to pay unprecedented attention to environmental protection issues. Moreover, administrative penalties were insufficient to deter pollution and ensure environmental compliance. It was then that the Chinese legislature started amending relevant laws to strengthen environmental law and law enforcement, which includes setting up a public interest litigation scheme. The goal of EPIL is to broaden the channels for public participation in environmental protection, strengthen monitoring and supervision of environmental pollution and ecological destruction behavior, increase the costs of environmental violations, and speed up the discovery and cessation of environmental pollution.

In 2012, the Standing Committee of the National People’s Congress (NPC) revised the Civil Procedure Law and set up a public interest litigation system. It allows organizations “prescribed by the law [to] bring a suit [against] environmental pollution [] and other acts that undermine the public interest.”

From 2011 to 2014, the NPC Standing Committee went through three reviews of draft amendments to the 1979 Environmental Protection Law (EPL) before finally adopting the amendment on April 24, 2014. The revised EPL went into effective on January 1, 2015. It is very unusual for an amendment of law to go through four rounds of deliberations within three years. The core issue behind these reviews is the NGO standing requirements. Under the new amended EPL, Article 58 sets forth rules for EPIL. It prescribes that “only social organizations that satisfy the following two requirements may file lawsuits with the courts against acts that pollute the environment, cause ecological damage, or harm the public interest: (1) Be registered with a government civil affairs department at or above the level of a city with districts; (2) Be engaged specifically in public service activities in environmental protection for five consecutive years without any record of violation of laws.”

To clarify and establish a framework for civil EPIL in the amended EPL, on January 6, 2015, China’s Supreme People’s Court (SPC) released a judicial interpretation on environmental civil public interest litigation (the Civil EPIL Interpretation). The SPC formulated its interpretation according to the 2012 revised Civil Procedure Law, the Tort Law, and the 2014 revised Environmental Protection Law. For example, it specifies the qualified plaintiffs, court of jurisdiction, and trial procedure in civil EPIL.

In addition, in July 2015, the Standing Committee of the NPC authorized the Supreme People’s Procuratorate to launch a pilot program for public interest litigation for ecological and resource protection and other fields.

2. Distinguish China’s EPIL from the U.S. Citizen Suit

EPIL in China bears stark differences in several respects from citizen suit provisions and concepts under the U.S. environmental statutes. First, in the U.S., the NGO plaintiffs are considered as “private attorney generals” – enforcing the law for the benefit of all of society. Citizen suit provisions allow NGOs to challenge both polluting industry for illegal pollution and government agencies for failure to perform mandatory duties. In the U.S., most enforcement actions of Environmental Protection Agency (EPA) are discretionary, but EPA has other nondiscretionary duties (like, in some cases, rulemaking) that citizens may sue to enforce.[1]

By contrast, China’s civil EPIL system is still largely based on the Tort Law and the idea of compensation for damages. Administrative enforcement actions are regarded mandatory in most instances, and the Procuratorate is authorized to file administrative cases against environmental agencies within 13 pilot regions for their failure to enforce the law.[2] However, many courts refused to accept administrative cases filed by NGOs.

In the U.S., most environmental statutes permitting citizen suits are “strict liability” laws. So in theory NGOs in citizen suits do not have to prove environmental damage, just legal violation. In comparison, because China’s EPIL system is based on tort liabilities, NGOs must prove and assess the damages, which can be difficult, particularly in air pollution cases, where the harm may be invisible, diffuse, and long-term.

In the U.S. citizen suits, NGO plaintiffs bear the burden of showing “injury in fact” in order to establish their standing.[3] By contrast, under China’s new EPL, NGOs do not need to show any injury or harm to themselves or their members to satisfy the standing requirement.[4] As a result, NGOs can file EPIL cases outside of their region against polluters anywhere in the country.

In the U.S., under the major environmental laws, courts can issue the following remedies for citizen suits: injunctive relief to stop harm and civil penalties up to $37,500 (USD) per day per violation.[5]A few U.S. environmental statutes permit natural resource damages, which may be sought and recovered only by government entities.[6] Courts have the discretion to determine the numeric penalty amounts. The EPA issued a “Guidance for Calculating the Economic Benefit of Noncompliance for a Civil Penalty Assessment,” which makes the process for calculating potential penalties relatively straightforward and simple. All civil penalties are paid to the general U.S. treasury, not earmarked for environmental pollution.

In comparison, Chinese courts can issue the following EPIL remedies, including but not limited to: “stopping the infringement, eliminating obstruction, removing danger, restoring original conditions, paying compensation and making formal apologies.[7] It is uncertain how the damages awarded by the court and fund received through settlement will be managed.

In the U.S., attorneys’ fees provisions in environmental laws allowing citizen suits typically state that “reasonable” attorney fees may be awarded to “any prevailing or substantially prevailing party”[8] or “any party, whenever the court determines such award is appropriate.”[9] In reality, the appropriateness standard has routinely justified awarding attorneys’ fees to prevailing NGOs, while prevailing defendants have commonly been awarded fees only when a suit is deemed frivolous, harassing, or without merit.

In China, article 22 of the Civil EPIL Interpretation allows courts to grant prevailing NGOs’ requests to reimburse a “reasonable attorney fee” for litigation. In practice, the “reasonableness” in the provision is restrained by article 34 of the Civil EPIL Interpretation and article 58 of the new EPL, which proscribe NGOs from seeking any “economic benefits” through EPIL.

3. Overview of Challenges and Controversies

From January 2015 when the new EPL entered into effect to June 2016, courts in China have accepted 93 civil EPIL cases filed by 11 NGOs and 21 civil and administrative EPIL cases initiated by the Procuratorate. The number of EPIL cases and the NGOs filing these cases are surprisingly low. Through these cases, different stakeholders, including NGOs, courts, and the Procuratorate, have encountered many challenges, such as high litigation costs for plaintiffs and lack of procedural guidance and requirements for courts to adjudicate environmental public interest cases.

At the same time, these initial EPIL cases have triggered several controversies, including double jeopardy faced by companies through both administrative penalties and tort-based damages, arbitrary calculation of environmental and ecological damages, unsettled management of damages and restoration fund, uncertain enforcement and monitoring of restoration actions, insufficient attorney fees for prevailing plaintiffs’ counsel, remedies of damages not serving the public’s long-term environmental protection goal beyond the litigation, and NGOs’ lack of power to file administrative EPIL against environmental agencies when they fail to fulfill their duties required by law.

Some solutions can include bifurcating cases into two stages–1^st stage for liability and 2^nd stage for remedies; establishing environmentally beneficial projects similar to the U.S. supplemental environmental projects (SEP) to protect and benefit the environment; setting up trust funds to manage damages compensation funds; engaging the public in enforcing court order and implementing environmentally beneficial projects; allowing frivolous lawsuit claims to prevent opportunists and irresponsible plaintiffs; and setting up an EPIL fund supporting mechanism to help NGOs file EPIL cases.

China’s 2014 revised EPL is an important stride towards environmental protection. The initial EPIL cases have already demonstrated that EPIL, although supplemental to government administrative enforcement, has an important role to play in environmental protection. At the same time, all the stakeholders of EPIL have encountered challenges in practicing EPIL. As the EPIL concept and practice are still evolving in China, we need to analyze and tackle these problems one by one in order to help China make the EPIL system more fair and effective to all stakeholders. In my next blog in this series, I will analyze the high upfront litigation costs and ensuing risks borne by NGOs, as well as proposed solutions. The litigation costs include case acceptance fees paid to courts and damage assessment fees. These costs and fees constitute a formidable barrier to environmental NGOs filing EPIL cases, because many of them operate on constrained budgets.

[1] See Dubois v. Thomas, 820 F.2d 943, 947 (1987) and Heckler v. Cheney, 470 U.S. 821 (1985).

[2] http://www.npc.gov.cn/npc/xinwen/2016-11/05/content_2001150.htm (reporting that in Guizhou province, a local procuratorate filed and won an administrative action challenging local EPB’s failure to enforce law upon finding a local company’s illegal pollution discharges).

[3] See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (holding that to establish standing, NGOs must prove these three elements. First, NGO members must have suffered an “injury in fact” —an invasion of a legally protected interest. Second, NGOs must prove that the injury is “fairly … trace[able] to the challenged action of the defendant.” Third, NGOs must prove that the injury will likely be “redressed by a favorable decision.”).

[4] Article 58 of the 2014 revised EPL.

[5] 33 USCA § 1365; 33 USCA § 1319; 42 USCA § 7604; 42 USCA § 7604; 42 USCA § 7413; 42 USCA § 6972; 42 USCA § 6928; 40 C.F.R. § 19.4.

[6] https://www.justice.gov/opa/pr/us-and-five-gulf-states-reach-historic-settlement-bp-resolve-civil-lawsuit-over-deepwater (stating that one of these laws is the Oil Pollution Act. The global settlement resolved civil lawsuit over Deepwater Horizon oil spill, including the governments’ civil claims under the Clean Water Act and natural resources damage claims under the Oil Pollution Act, as well as economic damage claims of the five Gulf states and local governments).

[7] Article 18 of the Civil EPIL Interpretation.

[8] 33 USCA § 1365.

[9] 42 USCA § 7604.