Supreme Court Draft Interpretation Clarifies Environmental Public Interest Litigation

The Draft Interpretation and Its Potential

At the end of September 2014, the Supreme People’s Court (SPC) issued a draft judicial interpretation titled Interpretation Regarding Certain Issues Related to Application of the Law in Environmental Civil Public Interest Litigation (Draft for Comment).[1] The draft interpretation clarifies and expands on stipulations related to public interest lawsuits included in the revised PRC Civil Procedure Law[2] (CPL) and the recently revised Environmental Protection Law[3] (EPL). The draft interpretation clarifies which environmental organizations may file a public interest lawsuit and under what conditions they may do so.[4] It also stipulates which courts may hear these types of public interest cases and whether the plaintiff or the defendant shall bear the burden of proof.[5] It also stipulates that courts may play an active role in collecting evidence and may take action on its own in the name of protecting the interests of the public.[6] In addition, the draft specifies the remedies a court may impose, including the types and scope of allowable compensation, and the consequences for polluters if they do not disclose relevant information requested by the plaintiff.[7] The SPC received comments from the public about the draft during the month of October 2014,[8] including a letter with recommendations jointly written by a group of Chinese environmental non-governmental organizations (NGOs).[9] If the SPC incorporates the group’s recommendations and the judicial interpretation is duly implemented, the interpretation could make it easier for some environmental organizations to file public interest lawsuits.

New Language Regarding Litigation in Cases of Imminent Harm

The draft interpretation includes new language regarding litigation in cases of imminent environmental or ecological harm. It includes a stipulation that courts shall hear public interest cases, not only after harm has occurred, but also if polluting behavior poses a “major threat to the public interest,”[10] which expands on the provisions in the EPL.[11] The threat of lawsuits, especially prior to any harm being suffered, has the potential to strengthen incentives to comply with environmental laws.

Certain Environmental Organizations Qualify To File Public Interest Lawsuits

According to the revised EPL, environmental “social organizations” (shehui zuzhi) may bring public interest lawsuits if the group (1) is registered with a civil affairs bureau at a municipal-level city or above, (2) has been involved in environmental protection public interest activities continuously for five years, and (3) has not broken the law.[12] The draft judicial interpretation goes a step further to stipulate that environmental organizations must not have been subject to criminal or administrative punishment within five years of filing a lawsuit.[13] It also clarifies that groups must be registered at a civil affairs bureau at the municipal, prefectural city, provincial city district, or county level and above.[14] Several environmental groups expressed their approval in the joint NGO letter to the SPC regarding the expanded list of administrative jurisdictions within which environmental organizations may hold their registration, but suggested deleting the language regarding “administrative punishment.”[15]

The draft interpretation also allows for co-plaintiffs and “support organizations,” including procuratorates, environmental protection departments, social associations (shehui tuanti, a subset of social organizations), and enterprises.[16] Individuals directly harmed by polluting activities, however, must file a separate lawsuit.[17]

New Language Allocating Burden of Proof to Plaintiff Under Certain Conditions

According to Article 12 of the draft interpretation, the plaintiff has the responsibility to provide evidence of polluting or harmful acts as well as evidence of environmental or ecological harm. In addition, the plaintiff shall provide an explanation of the relationship between the polluting behavior and the environmental or ecological harm.[18] If there is a dispute, the defendant shall assume the burden to prove that it is not liable or its liability should be mitigated as provided for by law and to prove that there is no causal relationship between its conduct and the harm.[19]

On the other hand, according to paragraph three of Article 12, when the defendant holds a permit to discharge (or emit) pollutants and can prove that its discharges (or emissions) are in compliance with that permit, the plaintiff shall provide evidence of a cause and effect relationship between the defendant’s conduct and the environmental or ecological harm.[20] This language regarding shifting the allocation of burden of proof to the plaintiff in cases of environmental harm under the conditions specified in paragraph three of Article 12 is new.[21] The group of environmental organizations which sent a joint letter to the SPC suggested changes to this provision, including deleting paragraph three of Article 12 related to shifting the burden of proof to the plaintiff under the conditions specified in that paragraph.[22]

Information Disclosure Strengthened in Public Interest Lawsuits

According to the draft interpretation, the defendant should provide available information requested by the plaintiff including, data on the main pollutants emitted, emission pathways, emission concentrations and total volume, the status of emissions that exceed standards, and the construction and operations of pollution prevention and control facilities.[23] If the defendant refuses to provide such information, and the information held by the plaintiff that is associated with the claims is detrimental to the defendant, then a court may presume that the claims of the plaintiff have been established.[24] According to the EPL, “key” polluting enterprises are required to proactively disclose similar types of information but non-key enterprises are not bound by that requirement.[25] The information disclosure requirement in the draft interpretation applies to a defendant in an environmental public interest case, even if that defendant is not a “key” enterprise.

Jurisdiction and Designation of Courts

Article 6 of the draft interpretation indicates that intermediate people’s courts and above have jurisdiction to hear first instance environment public interest cases.[26] With the approval of the SPC, and according to the conditions of environmental and ecological protection in that location, a high people’s court may designate up to five specific intermediate courts within its jurisdiction to hear environmental public interest cases.[27] The joint NGO letter to the SPC recommended that the SPC reconsider this provision. In addition, the letter recommended adding a clause stipulating that in those locations where high courts have not yet designated specific courts, intermediate courts should be prohibited from refusing to take environmental public interest cases.[28]

Courts May Collect Evidence and Act Proactively To Protect the Public Interest

The draft interpretation stipulates that if a court finds it necessary, it may collect evidence in a public interest case.[29] If a court, after reviewing the demands of the plaintiff, determines that the demands are not sufficient to protect the public interest, then it may make interpretive changes or add other claims on its own.[30] The group of environmental organizations suggested deleting the language related to a court’s interpretive power, so as to prevent abuse of authority or the possibility that a court will use this provision as an excuse for not docketing a case.[31]

In addition, a court can also intercede if it determines that the contents of a settlement or mediation agreement between the defendant and plaintiff harm the national or public interest, or the rights of individuals. In such cases, the draft interpretation stipulates that a court should not uphold the agreement or it should not approve the plaintiff’s withdrawal of the lawsuit.[32]

Liability and Scope of Compensation

The draft interpretation provides for a variety of methods to hold polluters accountable for their conduct. For example, a court may rule that the polluter must cease actions causing harm, remove hindrances, reduce risk, restore the environment to its original condition, or compensate losses, depending on whether the polluter has already caused harm or not.[33] A court can also compel the polluter to make an apology, or it may impose other civil liabilities.[34] The draft interpretation outlines the types and scope of financial costs and compensation for which a polluter may be liable.[35]

For further information on the PRC revised Environmental Protection Law and environmental public interest litigation, see Section II—The Environment, in the CECC 2014 Annual Report, pp. 128–129.