Standing of Environmental Public-Interest Litigants in China: Evolution, Obstacles and Solutions

Standing of Environmental Public-Interest Litigants in China: Evolution, Obstacles and Solutions ABSTRACT This article studies the standing of environmental public-interest litigants in China. It first analyses the evolution and current status of the standing requirements. The article, then, examines major obstacles that exist in the current standing requirements from the perspective of different types of actors, including social organisations, environmental administrative organs and procuratorial organs. The corresponding solutions to the aforementioned obstacles are also explored. It is proposed that expansion of standing and the improvement of support mechanisms are two measures which might overcome the existing hurdles in environmental public-interest litigation in China. The standing of social organisations and environmental administrative organs should be further liberalised. The legal status of procuratorial organs is to be clarified. Granting individuals the standing to sue is also worth considering in the future. In addition, incentive mechanisms including reducing the financial and proof burden of the plaintiff and expanding its financial resources should be further explored to motivate disadvantaged plaintiffs, while the ‘losers pay principle’ and pre-trial notification procedure should be used as mechanisms to remove vexatious lawsuits. 1. INTRODUCTION China has been accelerating the construction of an ecological society, against the backdrop of the prioritisation of economic development and the ‘pollute first, control later’ model over the last four decades. Some aspects of economic development have resulted in a myriad of serious environmental problems. China’s legal response to environmental challenges mainly relies on the law enforcement activities of administrative organs1 and the traditional tort system. Decentralisation,2 however, allows local government substantial power to resist environmental policy enacted by the central government.3 As a result, China's environmental laws and regulations, although plentiful and powerful, are unevenly enforced and violation of environmental laws is a widespread phenomenon.4 The conventional tort-based approach, which aims to remedy damaged private interests, cannot make up for the damage to the environmental public interest. In contrast, environmental public-interest litigation is designed to enhance the protection of the environmental public interest and promote the sustainable development of China. It strengthens the effectiveness of environmental law enforcement activities and provides remedies for environmental damage where private tort litigation is not applicable due to a lack of direct stakeholders.5 Environmental public-interest litigation is occurring in China. Nonetheless, restrictive standing requirements and imperfect support mechanisms still hinder the full play of environmental public-interest litigation in addressing China’s ever-worsening environmental degradation. Therefore, this article, by providing a detailed overview of the evolution of standing requirements in China’s environmental public-interest litigation, points out both the progress that has been made and the major obstacles that exist in the current regime. Finally, this article will discuss a number of proposals to improve the environmental public-interest litigation system, including the expansion of standing and the improvement of support mechanisms. 2. OVERVIEW OF THE ESTABLISHMENT OF ENVIRONMENTAL PUBLIC-INTEREST LITIGATION IN CHINA The year 2005 was a landmark in terms of China’s environmental public-interest litigation. In December of that year, the State Council issued the Decision on the Implementation of the Outlook on Scientific Development and Strengthening Environmental Protection which called for strengthened enforcement of environmental law and emphasised ‘allowing social groups to play their role, encouraging reporting on and exposing illegal environmental acts, and promoting environmental public-interest litigation’.6 However, the 2007 amendments to the Civil Procedure Law did not include an environmental public-interest litigation provision,7 which was a setback for the development of environmental public-interest litigation. Despite lacking legislative support, local environmental courts were still established in such Provinces as Jiangsu, Yunnan and Guizhouto to undertake experimental practices in environmental public-interest litigation. The first environmental court was established in Qingzhen, Guihzou Province in 2007.8 Althoughthe local courts’ exploratory experiment achieved great success and accumulated valuable experience for China’s environmental public-interest litigation, it did not comply with the 1991 Civil Procedure Law and the 1990 Administrative Procedure Law which required that the plaintiff in civil or administrative litigation to ‘have a direct interest in the case’.9 Therefore, environmental public-interest litigation in China still lacked a legal basis, and the number of cases initiated was quite small. Against this background, in 2012, Article 55 of the revised Civil Procedure Law conferred standing on environmental public-interest litigants on ‘legally mandated administrative organs and relevant organizations’. Subsequently, Article 58 of the revised Environmental Protection Law in 201410 stipulated more specific and restrictive standing requirements for social organisations. Accordingly, the Supreme People’s Court (hereinafter the SPC), in order to resolve problems concerning the application of law in environmental public-interest litigation, released two judicial Opinions,11 one Interpretation12 and a series of model and guiding cases.13 Those judicial tools confirmed the supportive attitude of the SPC and further clarified some key points in environmental public-interest litigation, such as detailed standing requirements for social organisations as well as the operation of the burden of proof and the assumption of litigation costs. In July 2015, the Supreme People’s Procuratorate was authorised to carry out a two-year pilot project, which allowed procuratorial organs14 in 13 Provinces to institute environmental public-interest litigation, especially against the violations of the Environmental Protection Law by administrative organs.15 Subsequently, the Supreme People’s Procuratorate issued its plan and specific implementation measures for the pilot project.16 On 27 June 2017 when the two-year pilot project came to an end, the Standing Committee of the National People’s Congress passed the Decision on Amending the Civil Procedure Law and the Administrative Procedure Law of the People's Republic of China which empowers people’s procuratorates nationwide to file environmental public-interest litigation cases, both civil and administrative.17 The Decision came into force on 1 July 2017, and the procuratorate’s standing has been firmly established since then. To date, the environmental public-interest litigation system has been gradually formed in China. It can be categorised into civil cases and administrative cases. The former are against environmental injurers who damaged, or are at risk of damaging, the environmental public interest,18 while the latter are against administrative organs that are responsible for supervising and managing the environment and natural resources protection affairs but caused damage to the environmental public interest because of illegal administrative acts or administrative inaction.19 Civil environmental public-interest litigation can be filed by legally mandated administrative organs, social organisations and the procuratorate,20 while in administrative environmental public-interest litigation, people’s procuratorates are the only qualified plaintiff.21 Available remedies in civil environmental public-interest litigation include cessation of infringement, removal of obstruction, elimination of danger, restoration to the original state, compensation for losses, and apology.22 When it is impossible to restore the damaged environment to its pre-injury condition, the court may permit the adoption of alternative restoration methods.23 The losses to be compensated for may also include the loss of environmental service functions during the restoring process.24 In administrative environmental public-interest litigation, the procuratorate can claim for the revocation or part revocation of the illegal administrative acts, the performance by alleged administrative organs of their statutory duties, and the confirmation of the illegality or invalidity of the alleged administrative acts.25 3. EVOLUTION OF STANDING REQUIREMENTS 3.1. Having a Direct Interest in the Case According to the 1991 Civil Procedure Law, in order to establish standing, the plaintiff must meet the requirement of ‘having a direct interest in the case’.26 Although the meaning of ‘having a direct interest in the case’ is not legally specified, it is generally acknowledged that it requires the existence of causation between the legal rights and interest of the plaintiff and the wrongdoing of the person being sued.27 That is, in order to file a lawsuit, the plaintiff must have a personal or property interest that is or may be adversely affected by the person being sued. Similarly, the 1989 Administrative Procedure Law and its 2014 amendment, also place emphasis on the plaintiff’s duty to prove ‘having an interest in the administrative action’ and that ‘a specific administrative act has infringed upon his lawful rights and interest’.28 The ‘direct interest’ requirement precludes non-stakeholders from protecting public environmental interest by litigation, which keeps environmental public-interest litigation out of the courts and makes poor enforcement a greater issue for China’s environmental law. 3.2. Local Legislation and Environmental Courts Before the 2012 Civil Procedure Law first introduced public-interest litigation and conferred standing on ‘legally mandated administrative organs and relevant organizations’,29 local governments already took the initiative in providing an arena for environmental public-interest litigation by establishing specialised environmental courts to hear environmental cases.30 Attempts to establish environmental courts in China can be traced back to the 1980s.These, however, were vetoed by the SPC for lack of legal basis.31 In 2005, the State Council’s Decision32 reignited enthusiasm for environmental public-interest litigation in China. In 2007, the Environmental Court of Qingzhen was created as the first environmental court established in China33 and environmental courts have proliferated ever since and were officially recognised by the SPC in 2010 through the Notice of the SPC on Issuing the Several Opinions on Providing Judicial Guarantee and Services for Accelerating the Transformation of the Economic Development Mode.34 On 4 July 2014, the SPC established an environmental tribunal at its own level, specialising in hearing environmental cases of the first instance within its jurisdiction and appeals from lower people’s courts.35 By April 2017, 956 environmental courts have been established throughout the country, in the form of environmental resources divisions (huanbaoshenpanting), collegiate benches (heyiting) and circuit courts.36 Among the typical and influential cases dealt with by these environmental courts are: Guiyang Two Lakes and One Reservoir Management Bureau v Guizhou Tianfeng Chemical Ltd.(Qingzhen Environmental Court, 27 December 2007) with a government agency as the plaintiff; 37All-China Environmental Federation (hereinafter ACEF) v Jiangyin Port Container Ltd. (Wuxi Environmental Court, 6 July 2009), the first civil suit accepted by a Chinese court with an environmental NGO as the plaintiff;38 ACEF & Guiyang Public Environmental Education Center v Dingpa Paper Mill of Wudang District, Guiyang (Qingzhen Environmental Court, 1 January 2011), which was noteworthy for innovations in preserving evidence, a preliminary injunction, prepaid expenses by a foundation, and environmental expert consultation.39 The last two cases are included in the set of model environmental cases published by the SPC in 2014.40 Specialised environmental courts have provided an important forum for environmental public-interest cases, have carried out significant attempts in liberalising standing for public-interest litigation, and accumulated valuable experience and lessons for improving relevant legislation and judicial practice. 3.3. Conferral of Standing for Environmental Public-Interest Litigation upon Administrative Organs and Social Organisations 3.3.1. The 2012 Civil Procedure Law Article 119 of the 2012 Civil Procedure Law retained the strict standing requirements of the 1991 Civil Procedure Law41 but made a special exception for environmental public-interest litigation in Article 55. Article 55 stipulates that ‘for conduct that pollutes the environment and damages the public interest, legally mandated administrative organs and relevant organisations may institute an action in the court’. After more than a decade of practice, it was the first time that environmental public-interest litigation had been clearly stipulated in a law promulgated by the National People’s Congress42 and was regarded as a breakthrough in allowing administrative organs and social organisations to initiate a lawsuit, even without having a direct interest in the case.43 There was not, however, any further clarification on the scope of ‘legally mandated administrative organs and relevant organizations’. Most scholars agree that ‘legally mandated administrative organs’ refer to ‘departments responsible for supervising the marine environment’ as stipulated in the 1999 Marine Environmental Protection Law,44 but opinions still vary over the scope of ‘relevant organizations’: some may hold that ‘legally mandated’ only modifies ‘administrative organs’, and ‘relevant organizations’ remain to be interpreted by the judicial authority.45 Others contend that ‘legally mandated’ modifies both and clarification concerning ‘relevant organizations’ needs to be made by subsequent laws.46 The latter invalidates previous local administrative regulations conferring standing on social organisations, for ‘legally mandated’ means as prescribed by laws that are promulgated only by the National People’s Congress and its Standing Committee rather than local governments. In either case, the courts are perplexed as to the standing of social organisations. Consequently, although the 2012 Civil Procedure Law includes the environmental public-interest litigation standing provision which is a breakthrough, it did not succeed in expanding standing for environmental public-interest litigation. Rather, it adversely affected local governments’ previously flexible standing requirements and made it more difficult for social organisations to play a role in environmental public-interest litigation.47 Taking the practice of ACEF as an example, the most prominent environmental NGO in China, it brought at least eight cases under the new law in 2013. All these were rejected for lack of standing, which was in sharp contrast to its successful practices before the promulgation of the 2012 Civil Procedure Law.48 3.3.2. The new Environmental Protection Law of 2014 It is against such a background that the new Environmental Protection Law of 2014 was negotiated and promulgated. Article 58 of the new Environmental Protection Law further clarified the standing requirements of social organisations as stipulated in Article 55 of the 2012 Civil Procedure Law: Against acts which harm the public interest by polluting the environment and damaging the ecosystem, social organizations that meet the following requirements may bring lawsuits in the People’s Court: (1) legally registered with the civil affairs department of the people's government at the level of a city with districts or above; (2) specially engaging in environmental-protection public-interest activities for at least five consecutive years with no record of illegal activity. When a social organization which meets the above requirements brings a lawsuit to a People’s court, the People’s court shall accept it. A social organization which brings a lawsuit shall not use it for economic benefit.49 It seems that the above provision made social organisations’ standing requirements more specific than as indicated in the 2012 Civil Procedure Law. Problems still existed in application, however, due to ambiguities over the meaning of certain terms. For example, what is the scope of ‘the civil affairs department of the People’s government at the level of a city with districts or above’? What constitutes ‘environmental-protection public-interest activities’? What is the scope of ‘illegal activity’? 3.3.3. Judicial opinions, interpretations and model cases In order to address the ambiguities over certain terms in the new Environmental Protection Law and make further clarification as regards standing, the SPC then issued a series of judicial items, including two judicial Opinions,50one judicial Interpretation,51 and a series of model and guiding cases.52 Both the opinions and the model cases showed the supportive attitude of the SPC toward environmental public-interest litigation. In the 2014 Opinion, it encouraged courts to accept, on a timely basis, environmental public-interest litigation cases brought by legally mandated government organs and social organisations that meet the requirements of Article 58 of the new Environmental Protection Law,53 and emphasised judicial assistance to plaintiffs by helping to get evidence,54 allowing plaintiffs to postpone, reduce or be exempted from court fees.55 It is also suggested the establishment of an exclusive foundation,56 which could be used to cover the litigation costs of plaintiffs.57 The 2015 judicial interpretation of Article 55 provides a more detailed explanation of social organisation’s standing in environmental public-interest cases. NGOs that meet the registration requirements can be divided into three groups, namely, social associations, private non-enterprise units' and foundations.58 The Interpretation did not make the scope closed but rather left room for further supplements by administrative and local regulations.59 ‘Civil affairs departments of the People’s government at the level of a city with districts or above’ also include those in an autonomous prefecture, league or region, a prefecture-level city not divided into districts, and a municipal district directly under the Central Government.60 ‘No record of illegal activity’ means no administrative or criminal punishment has been imposed on the social organisation, which does not include any imposed upon its members or its legal representative.61 The 2015 Interpretation also distinguishes illegal activities conducted by organisations before and during the lawsuit. If there was record of illegal activities before the lawsuit, then the case will be rejected by the court. If they are conducted during the litigation, relevant illegal income will be confiscated and a fine will be imposed, but the case will continue to be heard.62 ‘Engaging in environmental-protection public-interest activities’ means it shall be specified in the bylaw of the social organisation that its target and main business scope is to protect the environmental public interest and it has indeed engaged in such activities. The public interest it aims to protect through the lawsuit should also have some connection with its target and main business scope.63 In addition to the above judicial documents, the SPC also released a series of model and guiding cases for the court’s reference. Through the Tengger Dessert Pollution Case, the guiding case released by the SPC in 2016, the SPC made a more extensive interpretation as regards ‘target and main business scope’ by stating that instead of being confined to the wording of an organisation’s bylaws, so long as the environmental public-interest protection activities conducted by the organisation include the protection of environmental elements and the ecological system, the court shall rule that its target and business scope has met the requirement of the 2015 Interpretation.64 In Friends of Nature & Green Home Environmental Friendly Center v ZhijinXie and others,65 the first environmental public-interest case after the implementation of the new Environmental Protection Law and one of the model cases released by the SPC in December 2015, both the courts of the first and second instance confirmed that ‘five-year working experience’ is calculated from the time when social organisations started to engage in environmental protection work, not from the time of registration. The 2012 Civil Procedure Law, the 2014 Environmental Law, and the relevant judicial documents from the SPC provides the legal basis for the standing of social organisations, and the model and guiding cases of the SPC further clarified these standing requirements. As a result, from the implementation of the new Environmental Law in January 2015 to June 2017, about 150 environmental public-interest litigation cases have been brought by social organisations,66 which is a sharp increase in comparison with only 17 cases from 1995–2014.67 3.4. Procuratorial Organs Obtain Standing for Environmental Public-Interest Litigation In China, procuratorial organs are considered to be the qualified representatives of the social public interest.68 The procuratorate’s standing as regards public-interest litigation is rooted in Article 129 of China’s Constitution69 and Article 1 of the Organic Law of the People’s Procuratorates,70 which provide that ‘the people’s procuratorates of the People’s Republic of China are state organs for legal supervision’. The supervision thereof is exerted not only on the performance of government organs and their personnel but also in relation to the general behaviour of individual citizens and social organisations. Instituting environmental public-interest litigation is the manifestation of the procuratorate’s status as the legal supervisor, whether the case is civil or administrative in nature. Allowing the procuaratorate to initiate public-interest litigation compensates for a social organisation’s lack of standing in administrative environmental public-interest cases in which administrative agencies are the defendant. Compared with individual citizens and social organisations, procuratorial organs have advantageous financial and human resources as well as appropriate political support. Such advantages mitigate against the court’s reluctance to accept a case and overcome difficulties in investigation so as to provide more likelihood of success in environmental public-interest cases. To be specific, the advantages of environmental public-interest litigant cases brought by the Procuratorate are as follows. First, local protectionism and the fact that local administrative agencies are also likely to be the defendant, render local governments resistant to environmental public-interest litigation.71 In addition, since local courts are financially responsible to local governments, they are vulnerable to the intervention of local governments and as a result, local courts can be under great pressure and have little incentive to accept an environmental public-interest case. The Tengger Desert Pollution Case was not accepted by either Zhongwei Intermediate People’s Court or the High People’s Court of Ningxia Hui Autonomous Region on the ground that the target and business scope of the plaintiff’s, China Biodiversity Conservation and Green Development Foundation, failed to meet the requirement prescribed in Article 58 of the new Environmental Protection Law. The verdict was finally overturned by the SPC.72 By contrast, if it is the procuratorate that institutes an environmental public-interest action, the situation is quite different. The procuratorate has supervisory power over the behaviour of courts and the latter are likely to be cautious when rejecting a case initiated by the former. Secondly, exclusive financial allocation, professional legal personnel, and the willingness of administrative organs73 to cooperate in collecting evidence make the procuratorate the most powerful actor in public-interest litigation, which helps to balance the powers of the two parties in the case. This is particular so when powerful enterprises or administrative agencies act as the defendant.74 Advantages in expertise also ensure that a prudent attitude will be taken and inappropriate lawsuits will be reduced to a great extent. Thirdly, compared with administrative organs which have standing, according to Article 55 of the 2012 Civil Procedure Law, the independence and neutrality of the procuratorate as the legal supervisory body75 guarantees that it is not susceptible to political intervention which will moderate local protectionism. In 2000, the Supreme People’s Procuratorate issued the Notice on Strengthening Procuratorial Function and Protecting State Assets According to Law, which emphasised that procuratorial organs should give full play to their procuratorial function by filing lawsuits against illegal activities in violation of the civil law.76 In 2003, the first environmental public-interest case brought by the procuratorate was heard when the Procuratorate of Leling District in Dezhou City filed a lawsuit against the Jinxin Chemical Plant for environmental pollution.77 In this case, the court supported all the claims of the procuratorate. Local regulations and directives are also supportive of the procuratorate’s role in environmental public-interest litigation.78 In October 2014, the Fourth Plenary Session of the Eighteenth Central Committee of the Chinese Communist Party emphasised the need to establish the system of environmental public-interest litigation brought by procuratorial organs, which provided important policy support for the procuratorate’s standing and further boosted their practice before their standing was legally authorised in July 2015 (see Table 1).79 Table 1. Typical environmental public-interest cases brought by procuratorial organs before July 2015 (case information comes from China Judgments Online) Time of case settlement Plaintiff Defendant Cause of action Way of case settlement November 2008 Procuratorate of Guiyang City, Guizhou Province XiongJinzhi, Lei Zhang and Chen Tingyu Removal of Obstacle, restitution Mediation June 2009 Procuratorate of Xishan District, Wuxi City Li Huarong and Liu Shimi Destruction of road traffic environment Court judgment January 2013 Environmental Protection Bureau and Procuratorate of Qingzhen, Guizhou Province Guizhou branch of a public company Water pollution Withdrawal of action October 2013 Procuratorate of Qingzhen, Guizhou Province Qingzhen branch of a ferroalloy limited company of Guizhou Air pollution Withdrawal of action 2014.4 Procuratorate of Qianxi County, Guizhou Province Forestry Bureau of Qianxi County Administrative inaction Court judgment November 2014 Procuratorate of Jinsha County, Guizhou Province Environmental Protection Bureau of Jinsha County Administrative inaction Withdrawal of action March 2015 Procuratorate of Qingzhen, Guizhou Province Urban Administrative Bureau of Qingzhen Administrative inaction Court judgment Time of case settlement Plaintiff Defendant Cause of action Way of case settlement November 2008 Procuratorate of Guiyang City, Guizhou Province XiongJinzhi, Lei Zhang and Chen Tingyu Removal of Obstacle, restitution Mediation June 2009 Procuratorate of Xishan District, Wuxi City Li Huarong and Liu Shimi Destruction of road traffic environment Court judgment January 2013 Environmental Protection Bureau and Procuratorate of Qingzhen, Guizhou Province Guizhou branch of a public company Water pollution Withdrawal of action October 2013 Procuratorate of Qingzhen, Guizhou Province Qingzhen branch of a ferroalloy limited company of Guizhou Air pollution Withdrawal of action 2014.4 Procuratorate of Qianxi County, Guizhou Province Forestry Bureau of Qianxi County Administrative inaction Court judgment November 2014 Procuratorate of Jinsha County, Guizhou Province Environmental Protection Bureau of Jinsha County Administrative inaction Withdrawal of action March 2015 Procuratorate of Qingzhen, Guizhou Province Urban Administrative Bureau of Qingzhen Administrative inaction Court judgment Table 1. Typical environmental public-interest cases brought by procuratorial organs before July 2015 (case information comes from China Judgments Online) Time of case settlement Plaintiff Defendant Cause of action Way of case settlement November 2008 Procuratorate of Guiyang City, Guizhou Province XiongJinzhi, Lei Zhang and Chen Tingyu Removal of Obstacle, restitution Mediation June 2009 Procuratorate of Xishan District, Wuxi City Li Huarong and Liu Shimi Destruction of road traffic environment Court judgment January 2013 Environmental Protection Bureau and Procuratorate of Qingzhen, Guizhou Province Guizhou branch of a public company Water pollution Withdrawal of action October 2013 Procuratorate of Qingzhen, Guizhou Province Qingzhen branch of a ferroalloy limited company of Guizhou Air pollution Withdrawal of action 2014.4 Procuratorate of Qianxi County, Guizhou Province Forestry Bureau of Qianxi County Administrative inaction Court judgment November 2014 Procuratorate of Jinsha County, Guizhou Province Environmental Protection Bureau of Jinsha County Administrative inaction Withdrawal of action March 2015 Procuratorate of Qingzhen, Guizhou Province Urban Administrative Bureau of Qingzhen Administrative inaction Court judgment Time of case settlement Plaintiff Defendant Cause of action Way of case settlement November 2008 Procuratorate of Guiyang City, Guizhou Province XiongJinzhi, Lei Zhang and Chen Tingyu Removal of Obstacle, restitution Mediation June 2009 Procuratorate of Xishan District, Wuxi City Li Huarong and Liu Shimi Destruction of road traffic environment Court judgment January 2013 Environmental Protection Bureau and Procuratorate of Qingzhen, Guizhou Province Guizhou branch of a public company Water pollution Withdrawal of action October 2013 Procuratorate of Qingzhen, Guizhou Province Qingzhen branch of a ferroalloy limited company of Guizhou Air pollution Withdrawal of action 2014.4 Procuratorate of Qianxi County, Guizhou Province Forestry Bureau of Qianxi County Administrative inaction Court judgment November 2014 Procuratorate of Jinsha County, Guizhou Province Environmental Protection Bureau of Jinsha County Administrative inaction Withdrawal of action March 2015 Procuratorate of Qingzhen, Guizhou Province Urban Administrative Bureau of Qingzhen Administrative inaction Court judgment The table shows that procuratorial organs had already instituted civil and administrative environmental public-interest cases before July 2015. Nonetheless, the legal basis for such litigation was still quite weak. First, the 2012 Civil Procedure Law, the 2014 Environmental Protection Law, and the 2014 Administrative Procedure Law did not stipulate procuratorial organs’ standing for environmental public-interest litigation. Secondly, relative provisions in the Constitution and Organic Law of the People’s Procuratorate are too generic. Thirdly, local administrative regulations are relatively lowly in the legal hierarchy, thus, lacking authority. In addition, support from the Notice issued by the Supreme People’s Procuratorate in 2000 was also rejected by the SPC in 2000 for lack of legal basis.80 As a result, doubt and controversy existed over the rationality of procuratorial organs’ standing for environmental public-interest litigation,81 which hindered further practice. Against this backdrop, on 1 July 2015, the Standing Committee of the National People’s Congress authorised the Supreme People’s Procuratorate to carry out a two-year pilot project, which conferred standing on procuratorial organs in 13 Provinces and autonomous regions (the 2015 Authorisation Decision).82 Following this, the Supreme People’s Procuratorate issued its plan and specific implementation measures for the pilot project,83 in which the objectives, principles, scope of cases, pre-trial proceeding, claims and other aspects of public-interest litigation filed by procuratorial organs, are explicitly provided for. Then in 2016, the SPC issued its corresponding trial measures84 and an Opinion85 in response to the pilot project, which aimed to ensure correct trial procedures. After the 2015 Authorisation Decision, environmental public-interest cases initiated by procuratorial organs proliferated. On 16 December 2015, the Procuratorate of Qingyun County of Dezhou, Shandong Province, filed a lawsuit against the Qingyun Environmental Protection Bureau for nonfeasance in dealing with water pollution caused by a chemical company, which was the first administrative public-interest litigation initiated by procuratorial organs after the authorisation.86 On 22 December 2015, the Procuratorate of Changzhou, Jiangsu Province filed the first civil environmental public-interest litigation after the authorisation, against two private bodies.87 On 4 January 2017, the Supreme People’s Procuratorate released five guiding cases on environmental public-interest litigation brought by procuratorial organs.88 Up to May 2017, procuratorial organs in the 13 pilot districts have dealt with 7886 environmental public-interest cases by means of litigation (934 cases) or pre-litigation procedures, in which procuratorial organs provided suggested opinions to urge relevant administrative organs to rectify their illegal behaviour and support social organisations in initiating civil public-interest litigation (6952 cases altogether).89 This success during the two-year pilot project proved the feasibility and effectiveness of procuratorate-brought environmental public-interest litigation in the protection of environmental public interest as well as enhancing environmental law enforcement.90 Therefore, after the first review on 22 June 2017 and the second review on 25 June 2017 of the draft amendments to the Administrative Procedure Law and the Civil Procedure Law submitted by the Supreme People’s Procuratorate, the Standing Committee of the National People’s Congress finally passed the Decision on Amending the Civil Procedure Law and the Administrative Procedure Law of the People's Republic of China on 27 June 2017. The amendments came into force on 1 July 2017. As a result, all the procuratorial organs in China now have obtained the standing to sue in environmental public-interest litigation, both civil and administrative. 4. OBSTACLES TO STANDING FOR ENVIRONMENTAL PUBLIC-INTEREST LITIGANTS Up to now, administrative organs, social organisations and procuratorial organs have successively obtained legal standing for environmental public-interest litigation in China. Despite substantial legislative progress, such hurdles as restrictive standing requirements and imperfect supporting mechanisms remain, which hampers the role of environmental public-interest litigation could have played in addressing China’s environmental problems. 4.1. Obstacles to Social Organisations’ Standing to Sue 4.1.1. Restrictions by legislation First of all, legislative restriction derives from the double-approval registration system. In order to meet the standing requirement, social organisations must be legally registered with the civil affairs department of the government at or above municipal levels.91 Furthermore, according to regulations on the registration of social organisations, before registration with a civil affairs department, social organisations must first obtain the approval of the relevant governing unit.92 The relevant governing unit refers to relevant departments within the State Council and the local governments at or above the county level, or the organisations authorised by the State Council and local governments.93 However, there are no systematic and clear instructions by the State Council and local governments on the governing units of certain social organisations. As a result, ascertaining a corresponding governing unit becomes very difficult especially for some grassroots social organisations, which precludes them from taking an active part in environmental public-interest litigation. It is also the case that approval by the relevant governing unit is not a necessary and logical requirement for the establishment of social organisations. Therefore, the double-approval registration requirement is an obstacle that needs to be reformed. Secondly, the requirement of ‘five years’ work experience’ constitutes an unjustifiable constraint on social organisations’ standing. There does not need to be a connection between the years of work experience and the capability of social organisations in environmental public-interest litigation. If there were a connection, why is the requirement for five years instead of for three or four years? There has been no convincing legal authority to justify this aspect of the standing requirement. Thirdly, social organisations lack standing in administrative environmental public-interest litigation. Different from a judicial body which only plays a supplementary and remedial role after environmental damage has already occurred, environmental protection agencies which are responsible for environmental law enforcement, play a leading role in safeguarding the environmental public interest.94 Furthermore, the responsibility of environmental protection agencies cannot be satisfactorily fulfilled without public supervision, and administrative environmental public-interest litigation is the last defence of such a supervisory right.95 Not surprisingly, environmental protection organisations are eager for the right to bring administrative public-interest litigation and are attempting this even without legal authorisation.96 At present, however, only procuratorial bodies are authorised to file environmental public-interest litigation against administrative organs.97 Social organisations lack standing because the Civil Procedure Law stipulates only civil public-interest litigation and whether administrative public-interest litigation is included in Article 58 of the Environmental Protection Law is subject to further clarification. There are also inconsistent provisions between the old law and the new environmental protection law. Article 90 of the Marine Environmental Protection Law provides that in response to marine environmental damage, only ‘departments responsible for supervising marine environment’ rather than social organisations are qualified to bring public-interest litigation. It conflicts with Article 58 of the Environmental Protection Law and has led to inconsistent application of law in judicial practice. For example, on 5 June 2015, the Dalian Environmental Protection Volunteers Association filed a lawsuit against the Petro China Fuel Oil Company for marine pollution caused by an oil spill, but this was rejected by the Dalian Maritime Court for lack of standing.98 Later that year, however, with the same cause of action, China Biodiversity Conservation and the Green Development Foundation brought an action against ConocoPhillips and Cnooc (China’s state-owned oil company) and were accepted by the Qingdao Maritime Court.99 Therefore, in order to unify the application of law, such discrepancy needs to be eliminated. 4.1.2. Lack of financial support and expertise is the biggest obstacle in practice The complexity of environmental public-interest cases requires sufficient financial support. Nonetheless, 76.1% of social organisations in China have no fixed source of funding, according to a survey by ACEF in 2005.100 According to another survey co-conducted by ACEF and the Natural Resources Defence Council (NRDC) in 2013, only 23% of environmental protection organisations have financial assets and membership dues as a relatively stable source of funding and nearly half have less than 500,000 Yuan as their annual budget.101 To further complicate the issue, the costs of environmental public-interest litigation frequently reaches six figures, which is far beyond the affordability of social organisations and precludes their active involvement. For example, in Taizhou Environment Federation v Jiangsu Changlong Agro Chemical Company (2014), which concerned environmental pollution, the litigation costs at the first instance were 973651.72 Yuan and 947298.28 Yuan at second instance.102 In addition to the case acceptance fee, attorney fees and damage assessment costs also account for a great part of the litigation costs. In 2010, the Kunming Environmental Protection Bureau brought environmental public-interest litigation against two husbandry companies for pollution of groundwater but was ultimately discouraged by the high estimated cost of 330,000 Yuan.103 Similarly, in Friends of Nature v Yunnan Luliang Chemical Limited Company in 2011, the damage assessment costs reached up to 7 million Yuan, which exceeded the plaintiff’s total spending for the whole year (5 million Yuan), thus raising a dilemma.104 High litigation costs, coupled with lack of sufficient financial support, impedes social organisations in taking an active part in environmental public-interest litigation, even if the standing requirement becomes as flexible as possible. Lack of expertise and legal professional expertise is another obstacle facing social organisations in public-interest litigation. According to a survey by ACEF and NRDC in 2013, the majority of legal professionals working for environmental protection organisations are part-time volunteers, instead of specialised full-time staff and 48% of the organisations surveyed had no legal department.105 Lack of funding and professional support has resulted in the reluctance and hesitancy of environmental protection organisations to file public-interest litigation. The survey in 2013 revealed that only 30% of environmental protection organisations would consider public-interest litigation as the primary means of protecting the environmental public interest and 57% stated they would be very cautious when deciding whether to file public-interest litigation, with 11% explicitly expressing a negative attitude.106 As far as practice is concerned, among more than 700 social organisations that had met the standing requirement in 2015, only nine of them were engaged in environmental public-interest litigation.107 It is, therefore, apparent that increasing financial and expertise support is needed to fully incentivise social organisations to be active players in environmental public-interest litigation. 4.2. Narrow Scope of Environmental Administrative Organs that Have Standing At present, environmental administrative organs mainly play their role in environmental protection by environmental law enforcement activities, through which polluters are punished by administrative fines which cannot be directly used to remedy the damaged environment public interest.108 Environmental administrative organs have fixed fiscal allocation from the central and local governments, environmental professionals and advanced environmental monitoring techniques. Therefore, they should be expected to make the best of such advantages in instituting environmental public-interest litigation.109 Standing of administrative organs for environmental public-interest litigation is provided in Article 55 of the Civil Procedure Law as ‘legally mandated administrative organs’, but as stated earlier, these ‘administrative organs’ are exclusively interpreted as departments responsible for supervising the marine environment stipulated in the 1999 Marine Environmental Protection Law.110 According to the Plan for the Pilot Project of the Communist Party and the State Council in 2015 and the Opinion of the SPC in 2016, provincial governments may bring a civil action against environmental law violators who cause damage to the ecological environment.111 Seven provincial governments were authorised in August 2016.112 However, this action differs from civil public-interest litigation in nature because the judicial Opinion clearly states that the standing is based upon state ownership of natural resources (rather than for the sake of the environmental public interest). Therefore, the Opinion classifies such action, public-interest litigation by organisations, and private-interest lawsuits, as ‘three different kinds of lawsuits’.113 In practice, although some administrative authorities and local governments have filed some public-interest litigation,114 lack of clarification to expand the scope of standing of such administrative organs in law still hinders their role in environmental public-interest litigation. 4.3. Ambiguity Concerning the Procuratorate’s Legal Status in Public-Interest Litigation The Implementation Measures for the Pilot Project issued by the Supreme People’s Procuratorate provide that the status of the procuratorate in environmental public-interest litigation is as ‘a party to public-interest litigation’ (gongyisusongren).115 It is an equivocal concept open to interpretation and currently there are mainly three ways to interpret it. The first one is that the status of the procuratorate in public-interest litigation is as an ordinary plaintiff who has equal status with the defendant. Such status is totally different from its status as a legal supervisor, as it cannot be a player and also an adjudicator, for fear that exercising legal supervision over the trial might interfere with the independence of the court.116 The second view is that the procuratorate takes part in public-interest litigation merely as the legal supervisor, which is a natural extension of its position in criminal procedure.117 Apart from the two opinions above, a more balanced view contends that the procuratorate acts as both plaintiff and legal supervisor in environmental public-interest cases.118 Different understandings of the procuratorate’s legal status can also be found in judicial materials respectively released by the SPC and the Supreme People’s Procuratorate.119 Although the Standing Committee of the National People’s Congress legally authorised the standing of people’s procuratorates nationwide through the new amendments to the Civil Procedure Law and the Administrative Procedure Law, it did not clarify the legal status of procuratorates during the litigation. As the procuratorate’s status in public-interest litigation matters concerning the distribution of rights and obligations of the two parties during the proceedings, further clarification is essential in future legislative interpretations. 5. OVERCOMING THE STANDING HURDLES Expansion of standing and improvement of support mechanisms are two alternative measures to break the bottleneck of environmental public-interest litigation. First, the standing requirements for environmental public-interest litigation should be as flexible as possible and further clarification is also needed in order to ensure the uniform judicial application of law. Secondly, support mechanisms are also of great necessity to prevent excessive and vexatious lawsuits, while giving qualified plaintiffs the strongest legal support as environmental public-interest protectors. 5.1. Expansion of Standing with Further Clarification 5.1.1. Expansion of standing for social organisations and administrative organs For social organisations and administrative organs to perform more effectively in environmental public-interest litigation, their standing needs to be further liberalised. In order to overcome the standing hurdles facing social organisations, efforts should be exerted in the following aspects. First, legislative amendment is necessary to abandon the double-approval registration system and adopt a direct registration system, in which as long as social organisations have registered with relevant civil affairs department of the government, registration is complete. Secondly, the requirement of five consecutive years’ work experience in environmental public-interest protection should be further justified. If such justification cannot be provided, loosening the requirement for the length of work experience would be a more appropriate approach. Thirdly, social organisations should gain standing for administrative public-interest litigation. That end can be achieved through judicial interpretation of Article 58 of the Environmental Protection Law and by revision to the Administrative Procedure Law. Fourthly, as to environmental organisations’ standing in cases related to marine environmental damage, Article 90 of the Marine Environmental Protection Law should be amended, to ensure its consistency with Article 58 of the Environmental Protection Law. In terms of the standing of administrative organs, legislative or judicial interpretation should broaden the scope of ‘legally mandated administrative organs’ in Article 55 of the Civil Procedure Law and to ensure that administrative organs that have the right to file public-interest litigation are not limited to ‘departments responsible for supervising the marine environment’. Modifications should also be made to the Environmental Protection Law and specific environmental regulations, such as the Water Pollution Prevention and Control Law, to stipulate environmental administrative authorities’ standing to sue in different environmental protection areas. 5.1.2. Further clarifications on procuratorial organs’ standing The legal status of procuratorial organs in environmental public-interest litigation is an issue that needs to be addressed at present, because it determines the rights of the two parties and relevant procedural requirements during the litigation. If procuratorial organs act as an ordinary plaintiff, they cannot appeal after the judgment of the court comes into force, and the defendant has the right to assert a counterclaim during the litigation. By contrast, if the procutorate acts as a legal supervisor akin to a prosecutor during criminal litigation, they can still seek a retrial of the case based on their legal supervision over the trial, and the defendant cannot counterclaim. For those supporting an ordinary plaintiff status, the main concern is that legal supervisory status may interfere with the independence of the court. Others who differentiate procuratorial organs from an ordinary plaintiff argue that the litigation is brought for the sake of public interest which is quite different from private-interest litigation brought by an ordinary plaintiff. Up to now, a consensus has not been reached, and there is no clear legal provision. Therefore, after the new amendments to the Civil Procedure Law and the Administrative Procedure Law, the Standing Committee of the National People’s Congress should provide legislative interpretation to make clear the legal status of procuratorial organs in public-interest litigation and to resolve the discrepancy between the understandings of the SPC and the Supreme People’s Procuratorate. 5.1.3. Individuals’ standing deserves further consideration Individuals’ standing for environmental public-interest litigation does not have any legal basis in China at present, and a consensus has not been reached in academia.120 Nonetheless, it may be feasible in the future, because granting individuals the right to sue in environmental public-interest litigation cases accords with the basic principle of the Environmental Protection Law. It also benefits personal and public interests as well as the interest of the environment itself. This can be seen by successful practice by other countries. First, individual’s standing accords with the public participation principle stipulated by Article 5 of the Environmental Protection Law, and it constitutes an effective way of exercising supervision over environmental affairs. Secondly, individual citizens bear the brunt of environmental deterioration and have much to lose from the poor enforcement of environmental law. Therefore, they have the incentive to take vigorous legal action to protect the environment.121 Thirdly, public-interest litigation brought by individual citizens can also play an important watchdog function in environmental governance, which serves as a necessary complement to government supervision and helps to maximise the use of governmental resources. Such citizen involvement is described by some scholars as bottom-up ‘fire alarm’ type monitoring, which is much less expensive and makes it possible to monitor on a far larger scale with fewer resources, as compared with top-down ‘police patrol’ regulation by environmental protection agencies.122 Furthermore, if individual citizens were given the right to sue in environmental public-interest cases, this might also have deterrent and educational effects, helping to arouse public awareness of environmental protection and contributing greatly to the improvement of China’s overall environmental conditions. From the international perspective, the rationality of individuals’ standing in environmental public-interest litigation has already been proved to some degree by the successful experiences in other countries, such as the citizen suit in the USA. The USA long ago recognised that citizen litigation could provide an indispensable supplement to scarce government enforcement resources and serves to supervise recalcitrant government agencies as well.123 A large number of scholars in China, thus, are supportive of individuals’ standing for environmental public-interest litigation.124 In practice, individuals’ attempts to bring a lawsuit for the sake of the environmental public interest in China started as early as the 2000s. The majority of cases brought, however, were rejected by courts for lack of standing. For instance, in 2002, a farmer in Hangzhou, Zhejiang Province accused the Environmental Protection Bureau of Yuhang District, Hangzhou of failing to deal with pollution caused by mining operations.125 In 2003, a lawyer in Hangzhou brought an action against the Planning Bureau because the latter’s administrative licensing damaged the environment surrounding the West Lake scenic spot.126 In 2005, three teachers and three postgraduates from the Law School of Peking University brought a suit to the High People’s Court of Heilongjiang Province as co-plaintiffs of the damaged sturgeons, Sun Island and Songhua River against the Jilin branch of Sinopec, regarding the pollution of the Songhua River.127 Therefore, the first step for individuals to play a role in protecting the environmental public interest is seeking the opportunity to stand before the court. Thus far, however, individuals have not been granted standing, and the requirement of ‘having a direct interest in the case’ still needs to be strictly complied with by individuals. At present, except for lack of money and expertise, the main concern about expanding individual’s standing in environmental public-interest litigation is that it may lead to excessive lawsuits, thus wasting already limited judicial resources.128 Although such concern has a degree of validity, if China’s current situation is carefully considered, it is likely that such pessimism is significantly overestimated. First, environmental public-interest litigation is a time-and-money-consuming process and based on the complexities of environmental cases, evidential proof constitutes a great burden for the plaintiff. When filing public-interest litigation, individuals are bound to be very prudent, so unrealistic lawsuits will be unlikely.129 Before public-interest litigation was clearly stipulated by the 2012 Civil Procedure Law, local governments had already made a series of incentive regulations and policies to encourage environmental public-interest litigation130 but the number of cases brought was still far below expectation.131 In addition, in terms of litigation, individuals are even less inclined than environmental organisations, possibly because of their poor financial position and their limited capability of obtaining evidence. Secondly, rooted in the traditional dispute resolution culture of Chinese society, people generally hesitate before bringing a lawsuit, as they are very wary of lawsuits and often have second thoughts when there are other dispute settlement methods. This is especially true when the litigation is not for the protection of a private interest, but for public interest.132 From their perspective, petitioning or protesting to the government may be more effective than litigation, based on the fact that government officials are evaluated by the senior levels of government on their ability to maintain social stability.133 Some scholars believe that considering the seriousness of China’s environmental problems and the fact that environmental public-interest litigation is still in its infancy, it is of major importance not to set barriers to individual’s standing. Instead, individual citizens should be encouraged to exercise their rights, thus contributing to the protection of the environmental public interest.134 Therefore, although individual’s standing for environmental public-interest litigation has no legal basis in China at present, it may be legally supported in China in the future. 5.2. Improvement of Support Mechanisms to Encourage Appropriate Lawsuits and to Curb Excessive Lawsuits Expansion of standing facilitates greater public participation in environmental public-interest litigation, while improvement of support mechanisms ensures the participation proceeds in an effective and orderly manner. 5.2.1. Improvement of incentive mechanisms to stimulate environmental public-interest litigation Compared with private-interest litigation, the more altruistic nature of environmental public-interest litigation determines that plaintiffs cannot gain direct economic benefits from such litigation, which together with the high costs and burden of proof, gives rise to a lack of motivation to participate in environmental public-interest litigation. Therefore, incentive mechanisms in terms of reducing the financial burden and burden of proof of plaintiffs, including those support mechanisms already provided in the judicial documents of the SPC,135 should be further emphasised and perfected to encourage actors to bring environmental public-interest litigation cases. At present, in the judicial materials released by the SPC, rules concerning the allocation of litigation costs are favourable to plaintiffs. Based on the application of a plaintiff who has difficulties in paying court fees, the court could approve the postponement of payment in accordance with the law.136 Where the plaintiff wins a lawsuit and requests the defendant to assume the assessment cost, a reasonable attorney’s fee and other reasonable expenses for litigation, the People’s Court could support such a request.137 Where the plaintiff that loses or partly loses the case applies for a reduction or exemption from paying court fees, the court should decide whether to grant permission or not in light of the plaintiff's economic situation and the trial details of the case.138 In judicial practice, there have already been cases applying such financial incentive rules. For instance, in ACEF v Zhenhua Co., Ltd. of Dezhou,139 in Shandong Province in 2015, the first air-pollution-related environmental public-interest case after the implementation of the new Environmental Protection Law, the Intermediate Court of Dezhou upheld the plaintiff’s request for payment of assessment fees by the defendant, although the claim for the defendant to pay the plaintiff’s attorney fee was overruled for lack of invoices and other payment certificates. Moreover, based on the complexity of environmental cases and the difficulties for disadvantaged plaintiffs in investigating and collecting evidence, appropriate litigation assistance has also been introduced to reduce the plaintiff’s burden of proof. The rule of ‘reversal of burden of proof’ in traditional environmental tort cases is also applied in environmental public interest litigation. That is, it is the defendant that shall assume the burden to prove that it should not be liable or its liability could be mitigated under certain circumstances as provided for by law or to prove that there is no causation between its conduct and the harm.140 In addition, the procuratorate, environmental protection agencies and capable social organisations could provide necessary assistance to the plaintiff, especially to individuals and social organisations by means of providing legal advice, submitting written opinions or helping with investigations and the gathering of evidence during the litigation.141 Such a litigation-support system would enhance the capability of disadvantaged plaintiffs in environmental public-interest cases. The great success of the significant award case (Taizhou Environmental Federation v Six Chemical Industries) discussed above, illustrates the efficacy of the procuratorate’s support in environmental public-interest litigation.142 For the protection of the environmental public interest, the courts should also be encouraged to help with investigation, collection of evidence and judicial identification when it deems necessary.143 Establishment of an exclusive fund for environmental public-interest litigation could constitute another source of strong financial support for the plaintiff, especially for social organisations without fixed sources of funding. The core funding may consist of damages paid by the losing defendants in environmental public-interest litigation, financial allocation from the government, and public donations. Local governments in Kunming City and Hainan Province have already established exclusive funds to support environmental public-interest litigation.144 In January 2015, with the support of the Alibaba Foundation, Friends of Nature also set up an exclusive fund, which effectively supported 10 environmental public-interest cases that year.145 The number of existing funds is, however, still very small and their sporadic and uneven geographic distribution limits the effectiveness of these funds in supporting public-interest litigation nationwide. Besides, the transparency and effective management of such funds is another issue remaining to be addressed. A unified environmental public-interest fund managed by a specialised foundation might be a better choice. Since the running of such foundations is subject to relevant laws and regulations, it can ensure the effective and transparent use of the fund in supporting plaintiffs during the lawsuit and in recovering the damaged environment after the lawsuit. In addition to the measures above, some other channels may also be explored to expand the financial resources of social organisations. For instance, social organisations that contribute greatly to the protection of environmental public interest can be rewarded from the coffers of the government. The government can also subsidize social organisations by purchasing services from them. Furthermore, local governments may consider incorporating environmental public-interest litigation into the legal aid system according to Article 10(2) of the Regulation on Legal Aid.146 5.2.2. Construction of excessive lawsuits preventive mechanisms Incentive mechanisms will motivate actors to bring environmental public-interest litigation, but they are not without their problems, because alleviation of the plaintiff’s burdens could also increase the likelihood of excessive and vexatious lawsuits. Such lawsuits will not only interfere with the work of environmental protection agencies and hamper the production of industries but also increase the court’s workload or even lead to a waste of judicial resources. As a result, a preventive mechanism adhering to the ‘losers pay principle’ and a pre-trial notification procedure has its appeal. According to the ‘losers pay principle’ as stipulated by the Measures on the Payment of Litigation Costs, the court fees of both parties will be borne by the party that loses the lawsuit, unless the party that wins the lawsuit bears the costs out of his/her own free will.147 This principle helps filter out vexatious lawsuits before coming to trial because it makes the potential plaintiff consider the likelihood of winning the case based upon such factors as the adequacy of the evidence and justifiability of his claims. Therefore, the ‘losers pay principle’ should continue to be the basic principle in environmental public-interest litigation. Out of the need to stimulate environmental public-interest litigation at present, judicial relief is provided to plaintiffs who have difficulties in paying court fees. For instance, postponement, reduction or exemptions of court fees are allowed, even when they lose the case.148 However, this will not lessen the efficacy of the ‘losers pay principle’ in preventing excessive lawsuits because when deciding whether to provide such judicial relief, the court will conduct a close examination at the trial of the case (such as the justifiability of the applicant’s claims) and the economic conditions of the applicant.149 A pre-trial notification procedure is another filter that could separate cases that could be settled before trial from those that should be taken to court. A pre-trial notification procedure requires that the plaintiff notify the alleged environmental protection agency or the polluter within a certain period before filing an environmental public-interest case,150 giving them a chance to to rectify their illegal activities and restore the damaged environment to its pre-injury condition, unless there is an emergency. Only when the latter fails to do so within the required period can the plaintiff bring litigation to the court. Such a mechanism substantially reduces the number of environmental public-interest cases pouring into the court, thus alleviating the workload of the court. In fact, a pre-trial notification procedure has already been applied in China before the procuratorate brings an administrative environmental public-interest litigation case151 and the relevant practices of procuratorates hitherto have already proved the efficacy of the pre-trial procedures.152 Under the circumstances that the standing for environmental public-interest litigation has been expanded to social organisations, administrative organs and procuratorial organs, and with the premise that incentive mechanisms have been well established, pre-trial notification procedure should not be limited to administrative public-interest litigation cases instituted by the procuratorial organs' but expanded to include all environmental public-interest cases whatever the plaintiff so as to prevent excessive lawsuits. 6. CONCLUSION Environmental public-interest litigation in China started as early as the beginning of the 2000s when local government took the initiative in establishing specialised environmental courts aiming to facilitate specialisation of the environmental judicature. But it was not until 2012 when the Civil Procedure Law of China was amended did it become the focus of the legislative process and arouse some public concern. Since then, a series of laws, regulations and judicial documents have been promulgated concerning the standing to sue. Article 55 of the 2012 Civil Procedure Law and Article 58 of the new Environmental Protection Law and subsequent materials of the SPC, conferred standing in environmental public-interest litigation cases upon social organisations and legally mandated administrative organs; the 2015 Authorisation Decision by the Standing Committee of the National People’s Congress rendered the procuratorial organs in 13 pilot regions eligible to institute environmental public-interest litigation. The standing of people’s procuratorate nationwide was finally established by the new amendments to the Civil Procedure Law and to the Administrative Procedure Law which came into force on 1 July 2017. So far, both the SPC and the Supreme People’s Procuratorate have released a series of model and guiding cases concerning environmental public-interest litigation as guidance to local courts, and the number of cases initiated has increased dramatically. However, there is no denying that environmental public-interest litigation in China at present is still at the preliminary stage. Several obstacles still exist in further liberalising the standing of social organisations and administrative organs, and the legal status of procuratorial organs in environmental public-interest litigation remains to be further clarified. Although individuals’ standing does not have any legal basis at present, for the sake of environmental protection and based on the successful practice in other countries, individuals may be authorised standing in China in these cases in the future. Several plaintiff-favorable incentive mechanisms have been adopted to reduce the financial and proof burden of plaintiffs, but there is room for further improvement. Lack of financial resources remains a big problem for social organisations at present. In addition, prevention of excessive and vexatious lawsuits is another issue that needs attention. This research, therefore, suggests that in order to encourage the role of environmental public-interest litigation in monitoring environmental law compliance and addressing China’s environmental crisis, the standing threshold is the issue that must first be dealt with and access to courts should be further expanded, not contracted. Specifically, the double-approval registration system, five consecutive years’ work experience, legislative inconsistency and other requirements that impede the functioning of social organisations should be suitably addressed. The scope of qualified administrative organs should be expanded from departments responsible for supervising the marine environment to all environmental administrative agencies responsible for environmental law enforcement so as to make the most of their financial, expertise and personnel support. Meanwhile, in order to fully motivate potential plaintiffs after access to environmental public-interest litigation has been granted, necessary support mechanisms must be further worked on. To be specific, except for the existing incentive mechanisms reducing the financial and proof burden of plaintiffs, various channels should be further explored to expand the financial resources of social organisations, such as the establishment of a nationwide public-interest litigation fund, government subsidies, or the government purchasing services from social organisations. In parallel with that, the ‘losers pay principle’ and pre-trial notification procedure should be applied to guard against excessive lawsuits. The field work is supported by the following projects: Science and Technology Project of State Grid Corporation of China, ‘Research on the Macro Strategy and the Key Issues of the Global Energy Network’ (Grant No SGSDDK00KJJS1600067); National Social Science Fundamental Project, ‘Research on the Sea Power Development Modes and the Strengthening of the Law of the Sea in China’(Grant No 17ZDA145). Footnotes 1 ‘Administrative organs’ in China, generally called ‘governments’, refer to the central and local governments and their subordinate functional departments. 2 Decentralisation means local governments are in charge of the environmental protection affairs within their jurisdiction. See Richard Ferris, Jr and Hongjun Zhang, ‘Reaching Out to the Rule of Law: China’s Continuing Efforts to Develop an Effective Environmental Law Regime’ (2003) 11 William & Mary Bill of Rights J569, 595 (discussing local protectionism that constitutes a challenge to the implementation of environmental law in China). 3 Daniel Carpenter-Gold, ‘Castles Made of Sand: Public-Interest Litigation and China’s New Environmental Protection Law’ (2015) 39 Harv Env L Rev 241, 243. See also Patti Goldman, ‘Public Interest Environmental Litigation in China: Lessons Learned from the U.S. Experience’ (2007) 8 Vermont J of Env L 251, 273 (stating that ‘inadequate financial resources, corruption, and unwillingness to confront local businesses may prevent governmental bodies from enforcing environmental laws against local enterprises that contribute to the local economy and wield political power’). 4 Goldman, ibid 253. 5 See Mingde Cao and Fengyuan Wang, ‘Environmental Public Interest litigation in China’ (2011) 19 Asia Pacific L Rev 217, 221. 6 Decision on the Implementation of the Outlook on Scientific Development and Strengthening Environmental Protection (State Council, 3 December 2005), art 27. 7 Civil Procedure Law of the People’s Republic of China (the Standing Committee of the National People’s Congress, 28 October 2007). 8 Zhiqiu Wang, ‘Environmental law Violations Leads to Both Civil and Criminal Liabilities: An Environmental Court Was Set Up in Guiyang’ (Official Website of the Ministry of Ecology and Environment of the People’s Republic of China, 22 November 2007). <http://www.zhb.gov.cn/hjyw/200711/t20071122_113254.htm> accessed 12 April 2018. 9 Civil Procedure Law of the People’s Republic of China (n 7) (the National People’s Congress, 9 April 1991), art 108(1); Administrative Procedure Law of the People’s Republic of China (the National People’s Congress, 4 April 1989), art 41(1). 10 Environmental Protection Law of the People’s Republic of China (2014 Revision) (the Standing Committee of the National People’s Congress, 24 April 2014). 11 Opinion of the SPC on Fully Strengthening Environmental Resources Trial Work to Provide Powerful Judicial Safeguards for Promoting Eco-Civilization Construction (the SPC, 23 June 2014); Opinion of the SPC on Giving Full Play to the Functions of Trial Work in Order to Provide Judicial Service and Safeguard for the Construction of Ecological Civilization and Green Development (the SPC, 26 May 2016). 12 Interpretation of the SPC on Several Issues Concerning the Application of Law in Civil Environmental Public-Interest Litigation (the SPC, 6 January 2015). 13 Up to June 2017, the SPC has released seven model cases and one guiding case on environmental public-interest litigation brought by social organisations. See Yongxiu Xue, ‘The SPC Publishes Nine Model Environmental Cases’ (China Court Net, 3 July 2014), including three cases brought by All-China Environmental Federation (hereinafter ACEF) <www.chinacourt.org/article/detail/2014/07/id/1329697.shtml> accessed 10 April 2018; ‘The SPC Released Model Cases on Environmental Tort’ (Official Website of the SPC, 29 December 2015), including three cases, respectively, brought by the ACEF, Friends of Nature and the Environmental Public-Interest Association of Changzhou City <http://www.court.gov.cn/zixun-xiangqing-16396.html> accessed 10 April 2018; ‘Model Cases on Environmental Criminal, Civil and Administrative Trial Work’ (Official Website of the SPC, 22 June 2017), including one case by the ACEF <http://www.court.gov.cn/zixun-xiangqing-48792.html> accessed 10 April 2018; ‘No. 75 Guiding Case of the SPC brought by China Biodiversity Conservation and Green Development Foundation’ (Official Website of the SPC, 3 January 2017) <http://www.court.gov.cn/fabu-xiangqing-34322.html> accessed 10 April 2018. 14 In this article, ‘procuratorial organs’ has the same meaning as ‘the procuratorate’, both of which refer to the prosecutor in criminal cases and the legally supervisory body of China. 15 See Decision of the Standing Committee of the National People's Congress on Authorizing the Supreme People's Procuratorate to Launch the Pilot Program of Initiating Public-Interest Actions in Certain Areas (the 15th Session of the Standing Committee of the Twelfth National People's Congress, 1 July 2015). 16 Plan for the Pilot Project of Reform of Instituting Public-Interest Litigation by the Procuratorial Organs (the Supreme People’s Procuratorate, 2 July 2015); Implementation Measures for the Pilot Program of Instituting Public-Interest Litigation Cases by Procuratorial Organs (the Supreme People’s Procuratorate, 24 December 2015). 17 Amendments were made to art 55 of the Civil Procedure law which includes the procuratorate’s standing in civil public-interest litigation, and to art 25 of the Administrative Procedure Law which provides the procuratorate’s standing in administrative public-interest litigation. 18 See art 55 of the new Civil Procedure Law (n 7); art 58 of the Environmental Protection Law (n 10); art 1 of the 2015 Interpretation (n 12); art 1 of the 2015 Implementation Measures (n 16). 19 See art 25 of the new Administrative Procedure Law (n 9); art 28 of the 2015 Implementation Measures (n 16). 20 See n 18. 21 See n 19. 22 The 2015 Interpretation (n 12) arts 18 and19; the 2015 Implementation Measures (n 16) art 16. 23 The 2015 Interpretation (n 12) art 20. 24 ibid art 21. 25 The 2015 Implementation Measures (n 16) art 43. 26 The 1991 Civil Procedure Law (n 9) art 108(1). 27 Wensong Zhang, ‘The Function Orientation and Rule Construction on Civil Environmental Public Interest Litigation Filed by Prosecutors: from the Perspective of Breaking the ‘Have a Direct Interest’ Rule’, (The Symposium of National Environmental and Resources Law Seminar, Shanghai, 17–20 July 2015) 345–52. 28 The 1989 Administrative Procedure Law (n 9) art 41(1); Administrative Procedure Law of the People’s Republic of China (2014 Amendment) (the Standing Committee of the National People’s Congress, 1 November 2014) art 25. 29 Civil Procedure Law of the People’s Republic of China (2012 Revision) (the Standing Committee of the National People’s Congress, 31 August 2012) art 55. 30 See English-language analysis of China’s environmental courts from Alex Wang and Jie Gao, ‘Environmental Courts and the Development of Environmental Public Interest Litigation in China’ (2010) 3 J Court Innov 377. 31 See Reply of the SPC with Regard to the ‘Report on the Circumstances of Establishing an Environmental Division by the People’s Court of Qiaokou District in the Wuhan Municipality’ (the SPC, 10 February 1989). 32 See n 6. 33 Qingzhen is a county-level city under the jurisdiction of Guiyang, the provincial capital of Guizhou Province. 34 See art 13 (stating that ‘courts with relatively high numbers of environmental protection dispute cases can establish environmental courts, to increase the specialization in adjudicating environmental protection cases and elevate the judicial capability for environmental protection’). 35 Hongjie Li, ‘The SPC Establishes Environmental Resources Division’ (People’s Court Daily, 4 July 2014) <www.court.gov.cn/zixun-xiangqing-6512.html> accessed 11 April 2018. 36 See China’s Environmental Resources Trial Work 2016-2017 (the White Paper) (the SPC, 13 July 2017). 37 See introduction of the case at ‘Guiyang Environmental Court adjudicated on the First Environmental Public Interest Litigation Case’<http://env.people.com.cn/GB/6731283.html> accessed 12 April 2018. 38 See the fifth of the nine typical environmental cases released by the Supreme People’s Court of China in July 2014 <http://legal.china.com.cn/2014-07/03/content_32847008_5.htm> accessed 12 April 2018. 39 See the first of the nine typical environmental cases released by the Supreme People’s Court of China in July 2014 <http://legal.china.com.cn/2014-07/03/content_32847008_5.htm> accessed 12 April 2018. For more discussion of the case from Jingjing Liu, ‘Environmental Justice with Chinese Characteristics: Recent Developments in Using Environmental Public Interest Litigation to Strengthen Access to Environmental Justice’ (2012) 7 Florida A & M Univ L Rev 229, 244–49. 40 Xue (n 13). 41 See n 29, art 119 (still requiring the plaintiff have a direct interest in the case). 42 There had already been some administrative regulations of the State Council and local governments mentioning environmental public-interest litigation, such as Decision on Implementing the Scientific Approach to Development and Strengthening Environmental Protection (the State Council, 3 December 2005), Guidance on Civil Environmental Public-Interest Litigation (For Trial Implementation) (the Environmental Protection Agency of Kunming City, 11 June 2011), and Guiyang Ecological-Civilization Regulations of 2010 (the Standing Committee of Guiyang People’s Congress, 14 January 2010). There were also some judicial documents concerning environmental public-interest litigation issued by local People’s Courts in Jiangsu, Yunnan and Guizhou Provinces. 43 Gang Qiao, ‘On the Qualified Plaintiffs in the Environmental Public-Interest Litigation’ (2013) 5 J of Political Science and L 71, 74. 44 Marine Environmental Protection Law of the People’s Republic of China (1999 Revision) (the Standing Committee of the National People’s Congress, 25 December 1999), art 90(2); Quanbing Xv, ‘Relative Issues Concerning the Procuratorate Bringing Environmental Public-Interest Litigation’ (2016) 3 J of National Prosecutors College 156, 168; Canfa Wang, ‘The Predicament Faced by Environmental Public-Interest Litigation and Solutions Thereof under the New Environmental Protection Law’(2014) 8 J of Law Application 46, 47. 45 For example, Minzhi Gao, ‘On the Interpretation and Application of Civil Public-Interest Litigation’ (People’s Court Daily, 7 December 2012) <www.chinacourt.org/article/detail/2012/12/id/799020.shtml> accessed 11 April 2018. 46 For example, Xiaoming Xi, Understanding and Application of Revised Articles in the Civil Procedure Law f China (People’s Court Press 2012) 94; Jinrong Huang, ‘Progress and Drawbacks on the Construction of Public-Interest Litigation System: Comments on art 55 of the Civil Procedure Law of 2012’ (2014) 2 Res Rule L 102, 103. 47 See Carpenter-Gold (n 3) 264 (taking as an example, Guiyang Ecological-Civilization Regulations of 2013 and Guizhou Province Regulations to Promote Ecological Civilization of 2014, to show that ‘jurisdictions that were previously very friendly to environmental public-interest litigation appear to be changing their regulations to match the new Civil Procedure Law’). 48 See ‘Environmental Federation’s Public-Interest Lawsuits Encounter an Awkward Position’ (China News Net, 3 April 2013) <http://news.xinhuanet.com/gongyi/2013-04/03/c_124537967.htm> accessed 11 April 2018. See also ‘Eight Environmental Public-Interest Cases Brought by Social Organizations Last Year Were All Rejected’ (China News Net, 28 February 2014) <www.chinanews.com/fz/2014/02-28/5897750.shtml> accessed 11 April 2018. 49 See n 10, art 58. 50 See n 11. 51 See n 12. 52 See n 13. 53 The 2014 Opinion (n 11) para 11. 54 ibid para 13. 55 ibid para 15. 56 ibid para 14. 57 The 2014 Opinion (n 11) para 15. 58 The 2015 Interpretation (n 12) art 2; art 2 of Regulation on the Administration of the Registration of Social Associations (2016 Revision) (the State Council, 6 February 2016) defines social associations as ‘voluntary groups formed by Chinese citizens in order to realise a shared objective according to their rules and to undertake non-profit activities’; art 2 of Interim Regulations on Registration Administration of Private Non-enterprise Units (the State Council, 25 October 1998) defines private non-enterprise units as ‘social organizations which are established by enterprises, institutions, associations or other civic entities as well as individual citizens using non-state assets and conduct non-profit social service activities’; art 2 of Regulation on Foundation Administration (the State Council, 8 March 2004) defines foundations as ‘the non-profit legal person established in accordance with this Regulation by using the property donated by natural persons, legal persons, or other organizations with the purpose of pursuing welfare undertakings’ . 59 Xuelin Zheng, Wenxue Lin and Zhanfei Wang, ‘Understanding and Application of Interpretation of the SPC on Several Issues Concerning the Application of Law in Civil Environmental Public-Interest Litigation’ (2015) 5 People Judicat 22, 24. 60 The 2015 Interpretation (n 12) art 3. 61 See n 59. 62 ibid. 63 The 2015 Interpretation (n 12) art 4. 64 No 75 Guiding Case of the SPC <http://www.court.gov.cn/shenpan-xiangqing-34322.html> accessed 11 April 2018. See civil retrial verdict of the case by the SPC <http://wenshu.court.gov.cn/content/content?DocID=76bd822b-0f85-4c65-a3a5-ccf40bb19a08&KeyWord=最高法民再47号> accessed 11 April 2018. 65 See civil judgment of the first instance of the case by the Intermediate People’s Court of Nanping City, Fujian Province, <http://wenshu.court.gov.cn/content/content?DocID=5cfeebbe-006b-463f-b12a-273a96d9ce94&KeyWord=福建省绿家园> accessed 11 April 2018; see civil judgment of the second instance of the case by the High People’s Court of Fujian Province, <http://wenshu.court.gov.cn/content/content?DocID=263d0415-cf8f-4839-ae8a-2493f4b7d4ec&KeyWord=福建省绿家园> accessed 11 April 2018. 66 The number of cases comes from China’s Environmental Resources Trial Work 2015-2016 (the White Paper) (the SPC, 27 July 2016) and China’s Environmental Resources Trial Work 2016-2017 (the White Paper) (the SPC, 13 July 2017) (n 36). 67 See Dun Li, Environmental Public-Interest Litigation Observation Report (Law Press of China 2015) 257. 68 Cao and Wang (n 5) 222; Feng Zhang, ‘Construction of the Subject Qualification of Procuratorial Organs in Environmental Public-Interest Litigation’ (2015) 1 J Pol Sci L 120, 120. 69 Constitution of the People’s Republic of China (2004 Amendment) (the National People’s Congress, 14 March 2004), art 129. 70 Organic Law of the People’s Procuratorates of the People’s Republic of China (1986 Amendment) (the Standing Committee of the National People’s Congress, 2 December 1986) art 1. 71 Jianguo Xiao and Zhongshun Huang, ‘On Basic Problems Concerning Environmental Public-Interest Litigation’ (2014) 4 J Law Appl 8, 9. 72 See n 64. See also ‘The Court Didn’t Accept Tengger Desert Pollution Public-Interest Litigation’ (China News Net, 21 August 2015) <www.chinanews.com/sh/2015/08-21/7480830.shtml> accessed 11 April 2018; ‘The Court Was Questioned for Not Accepting Environmental Public-Interest Litigation Case’ (Xinjing News, 22 August 2015) <http://gongyi.ifeng.com/a/20150822/41461594_0.shtml> accessed 11 April 2018. 73 For instance, local environmental protection agencies, which have the most detailed and accurate environmental protection data of a specific area. 74 For example, with the support of the Procuratorate, Taizhou Environment Federation instituted an environmental public-interest action against six chemical plants in Taizhou, Jiangsu Province in 2014, which were successful, resulting in punitive damages being awarded. This is one of the typical cases on environmental public-interest litigation in 2016 released by the SPC. See civil judgment of the second instance for Taizhou Environment Federation v Jiangsu Changlong Agrochemical Company and Others by the High People’s Court of Jiangsu Province <http://wenshu.court.gov.cn/content/content?DocID=cbccc8ce-76ac-49a4-a727-adcdc2053e24&KeyWord=泰州市环保联合会> accessed 11 April 2018. 75 Art 131 of China’s Constitution and art 9 of Organic Law of the People’s Procuratorates state that ‘the people’s procuratorates exercise procuratorial power independently in accordance with the provisions of the law, and are not subject to interference by any administrative organ, public organization or individual’. 76 Bo Han, ‘Combination of Strengths in Public-Interest Litigation System’ (2013) 1 Contemp L Rev 31, 36. 77 See ‘Civil Environmental Public Interest Litigation Is Rapidly Entering the Legal Society’ (Dazhong News Website, 12 June 2003) <http://www.dzwww.com/dazhongribao/shehuizhoukan/200306120166.htm> accessed 12 April 2018. 78 For instance, Opinion on Actively Performing Civil and Procuratorial Function to Strengthen Environmental Protection (the Procuratorate and Environmental Protection Bureau of Zhejiang Province, 27 August 2010). 79 See Communiqué of the Fourth Plenary Session of the Eighteenth Central Committee of the Chinese Communist Party (the Central Committee of the Chinese Communist Party, 23 October 2014). 80 See Reply to the Case of the Procuratorate of Hubei v Zhang Suwen for Return of State Assets (the SPC, 17 June 2004), which stated that it lacked the legal basis for the Procuratorate to file a civil suit for the protection of state assets and public interest. 81 Chengtang Chen, ‘Research on the Standing for Environmental Public Interest Litigation’ (2015) 2 Contemp L Rev 77, 84–85 (discussing conflicting views of Chinese scholars on procuratorial organs’ standing in environmental public interest litigation and contending that procuratorial organs should not be granted such standing). 82 See n 15. The13 pilot areas are Beijing, Inner Mongolia, Jilin, Jiangsu, Anhui, Fujian, Shandong, Hubei, Guangdong, Guizhou, Yunnan, Shaanxi and Gansu Provinces. 83 See n 16. 84 Notice of the SPC on Issuing the Measures for the Implementation of the Pilot Program of Trial by People's Courts of Public-Interest Litigation Cases Instituted by People's Procuratorates (the SPC, 25 February 2016). 85 The 2016 Opinion (n 11). 86 See judgment of the case by Dezhou Intermediate People’s Court <http://dzzy.sdcourt.gov.cn/dzzy/392189/392190/1446935/index.html> accessed 11 April 2018. 87 See judgment of the case from No 28 of the Supreme People’s Procuratorate’s Guiding Cases, <http://www.spp.gov.cn/zdgz/201701/t20170104_177546.shtml> accessed 11 April 2018. 88 See No 28-32 Guiding Cases of the Supreme People’s Procuratorate, <http://www.spp.gov.cn/jczdal/201701/t20170104_177552.shtml> accessed 11 April 2018. 89 See Jianming Cao, ‘Statement on the Draft Amendments to the Administrative Procedure Law and the Civil Procedure Law’ (at the 28th Plenary Session of the 12th Standing Committee of the National People’s Congress, 22 June 2017). <http://www.npc.gov.cn/npc/xinwen/2017-06/29/content_2024890.htm> accessed 19 July 2017. 90 ibid (through the efforts of procuratorial organs in pilot districts, 128,000 hectares of polluted or damaged farmland, forestland, wetland and grassland, and over 180 square kilometers of waters have been restored, over 1,400 polluting enterprises have been urged to rectify their business operations). 91 The 2014 Environmental Protection Law (n 10) art 58. 92 Regulations on the Administration of the Registration of Social Associations (n 58) arts 3(1) and 9(1); Interim Regulations on Registration Administration of Private Non-Enterprise Units (n 58) arts 3 and 8(1); Regulation on Foundation Administration (n 58) art 9(5). 93 Regulations on the Administration of the Registration of Social Associations (n 58) art 6(2); Interim Regulations on Registration Administration of Private Non-Enterprise Units (n 58) art5(2); Regulation on Foundation Administration (n 58) art7. 94 Mingyuan Wang, ‘On the Development Direction of China’s Environmental Public-interest Litigation: By Analyzing the Relationship Between the Administrative Power and the Judicial Power’ (2016) 1 China Legal Sci 49, 64–65; Xi Wang, ‘On the Legislation Order of Environmental Public-interest Litigation’ (2016) 6 Tsinghua Univ LJ 101, 106. 95 Xi Wang, ibid. 96 See Jianrong Qie, ‘Environmental NGOs May File an Administrative Environmental Public-Interest Action’, Legal Daily (Beijing, 21 March 2016) <http://news.xinhuanet.com/legal/2016-03/22/c_128820244.html> accessed 11 April 2018. 97 See n 19. 98 See Dalian Environmental Protection Volunteers Association, ‘The Marine Oil Pollution Case of 16th July Comes to an End’ (25 June 2015) <www.depv.org/index.php/qdhd/detail/item/1217.html> accessed 11 April 2018. 99 See ‘The First Maritime Public-Interest Litigation for Oil Spill in Bohai Bay Was Accepted and Finally Supported by the Court’ (29 July 2015) <www.jiemian.com/article/338574.html> accessed 11 April 2018. 100 ACEF, ‘Report on Chinese Social Organizations’ Development’ (2006) 10 Env Protect 60, 62. 101 ACEF and NRDC, ‘The Role and Function of social organizations in Environmental Public-Interest Litigation’ (China Development Brief, 11 November 2014) <www.chinadevelopmentbrief.org.cn/news-16773.html> accessed 11 April 2018. 102 See n 74. For a detailed analysis and commentary on the case, see Yijian Chen, ‘Promotion and Reflection on Environmental Public Interest Litigation: A Commentary on the Environmental Public Interest Case with Sky-High Award in Taizhou, Jiangsu Province’ (2016) 4 China Legal Sci 130. 103 See ‘Kunming: Social Organizations May Bring Environmental Public-Interest Litigation’ (People’s Daily Online, 26 November 2010) <http://politics.people.com.cn/GB/14562/13321426.html> accessed 11 April 2018. 104 See Huajun Yang, ‘Difficulties in Public-Interest Litigation’ China Weekly (Beijing, 4 April 2012) <http://chinaweekly.blog.sohu.com/248275977.html> accessed 11 April 2018. 105 See n 101. 106 ibid. 107 Dun Li (n 67) 262. 108 Different from damages collected from environmental public-interest litigation which are used for direct on-the-ground restoration, administrative fines are returned to the public coffers. See Law of the People’s Republic of China on Administrative Penalty (2009 Amendment) (the Standing Committee of the National People’s Congress, 27 August 2009) art 46 (3). 109 See n 43. 110 See n 44. 111 See Plan for the Pilot Project of Reform on Ecological and Environmental Damage Compensation System (the General Office of the Central Committee of the Communist Party and the General Office of the State Council, 3 December 2015), s 4(3) (stating that after being authorised by the State Council, provincial governments may claim for ecological and environmental damage compensation from violators); The 2016 Opinion (n 11) art 19. 112 See ‘Seven Provincial Governments Carried Out Pilot Program for Ecological and Environmental Damage Compensation System Reform’ <http://news.eastday.com/eastday/13news/auto/news/csj/20161109/u7ai6186991.html> accessed 11 April 2018. 113 The 2016 Opinion (n 11) art 19. 114 According to the 2015 Observation Report of Environmental Public-Interest Litigation by Friends of Nature, 25 administrative organs filed environmental public-interest litigation before 2015, see Dun Li (n 67) 244–45. 115 The 2015 Implementation Measures (n 16) art 15, 42. 116 For example, Feng Zhang (n 68) 126, Mingde Cao and Fengyuan Wang (n 5). 117 For example, Zhongle Zhan, ‘Promoting Environmental Public-Interest Litigation and Protecting Social Public-Interest Litigation’ <www.humanrights.cn/html/llyj/1/5/2017/0327/26571.html> accessed 11 April 2018; Hongkun Sun and Bojin Tao, ‘Two Perspectives on Procuratorial Organs Instituting Environmental Public-Interest Litigation’ (2013) 5 Oriental L 115, 121. 118 For example, Weijian Tang, ‘Analysis of Relevant Problems on the Pilot Project of Instituting Public-Interest Litigation by Procuratorates’ (2015) 8 Chinese Cadres Tribune 54, 54. 119 The wording in arts 18 and 25 of the 2015 Implementation Measures (n 16) shows the Supreme People’s Procuratorate regards procuratorial organs as a legal supervisor in public-interest litigation, while arts 10 and 23 of the Notice on Issuing the 2016 Measures (n 84) reflects the SPC considers procuratorial organs as ordinary plaintiffs having equal status with the defendant. See Zhongmei Lv, ‘Environmental Judicial Rationality Shall Not Be Limited to Shy-High Damages: Analysis of Taizhou Environmental Public-Interest Case’ (2016) 3 China Legal Sci 244, 249–50. 120 For examples supporting the standing of individual citizens, see Shijun Zhang, Standing for Environmental Public-Interest Litigation (Shandong Arts Press 2011) 269; Tao Bie, ‘Legislative Suggestions For China’s Environmental Public-Interest Litigation’ (2006) 6 J Chinese Univ Geosci (Social Science Edition) 4, 4; Shujie Qi and Yedan Li, ‘The Standing of the Plaintiff of US Citizen Suit and Its Inspiration’ (2009) 9 Hebei L Sci 161, 163–64; Zhiping Li, ‘Analysis on the Strength, Weakness and Order Selection of Plaintiffs in China’s Environmental Public-Interest Litigation’ (2010) 1 Hebei L Sci 21,21. For opposing opinions, see Rongxin Yang, Interpretation of the Civil Procedure Law of People’s Republic of China (Tsinghua University Press 2012) 96; Gaosheng Wu, Interpretation of and Application Guidance to the Civil Procedure Law of People’s Republic of China (China Democracy and Law Press 2012) 183. Yan Gao and Guilin Gao, ‘The Extension and Limitation of the Scope of Plaintiffs in Environmental Public-Interest Litigation’ (2011) 3 Hebei L Sci 153, 157. 121 Goldman (n 3) 269. 122 See Carpenter-Gold (n 3) 253–56. 123 Alex Wang, ‘The Role of Law in Environmental Protection in China: Recent Developments’ (2007) Vermont J Env L 195, 223. 124 For example, Shijun Zhang (n 120) 269; Tao Bi (n 120); Shujie Qi and Yedan Li (n 120) 4; Zhiping Li (n 120). 125 See Xiangfang Zhang and Huihuang Zhang, ‘Farmer Chen Faqing: A Virtuous Environmental Guardian Comparable to Don Quixote’ Youth Times (Hangzhou, 27 May 2005); Aqing, ‘Chen Faqing: A Farmer Trying to Awaken Environmental Awareness’ China Industry & Commerce News (Beijing, 31May 2005). 126 See Zhixiong Wu, ‘See Happiness and Anxiety over Public-Interest Litigation from Kuixi Jin Filing Against the Planning Bureau of Hangzhou’ (Nanfangnet, 29 November 2003) <http://www.chinacourt.org/article/detail/2003/11/id/93682.shtml> accessed 11 April 2018. 127 See ‘Teachers and Students from Pecking University Represented Songhua River to Filed Against Sinopec For 10 Billion Yuan, and the Court Did not Accept the Case’ (Sohu News, 22 December 2005), <http://news.sina.com.cn/o/2005-12-22/05307769580s.shtml> accessed 11 April 2018. See also the pleadings of the plaintiff at <http://green.sohu.com/20130718/n381992448.shtml> accessed 11 April 2018. 128 Rongxin Yang (n 120) 96; Gaosheng Wu (n 120); Yan Gao and Guilin Gao (n 120). See also Di Zhang, ‘Analysis of Individual Citizens’ Standing for Environmental Public-Interest Litigation’ (2013) 2 Academic Exchange 59, 61; 129 Wang (n 44) 49; Huang (n 46) 104. 130 For a practical example, see Interim Measures for Management of Kunming Environmental Public-Interest Litigation Fund (Municipal Government of Kunming, 1 December 2010). See also Wang (n 44) 49. 131 Just as some scholars said that there were no environmental public-interest litigation cases from which China’s environmental courts could fulfil their function. See Wanjun Liao, ‘What Do the Scarcity of Cases in Environmental Courts Indicate?’ (2011) 9 Environ Protect 20, 20. 132 Wang (n 44); Tao Bie, Environmental Public-interest Litigation (Law Press 2007) 89–91. 133 For instance, the Xiamen PX case in 2007, the Shanghai Maglev case in 2008 and the Panyu garbage incinerator case in 2009, well illustrated the effectiveness of organised protests in deterring undesirable projects and stopping ongoing environmental degradation. See ‘Xiamen Citizen Fought Against PX’ Sohu (Xiamen, 29 December 2012), <http://news.sohu.com/20071229/n254377491.shtml> accessed 11 April 2018; Royston Chan and Sophie Taylor,‘Hundreds Protest Shanghai Maglev Rail Extension’ Reuters (Shanghai, 13 January 2008) <www.chinapost.com.tw/china/local%20news/shanghai/2008/01/13/138821/Hundreds-protest.html> accessed 11 April 2018; ‘Is China’s Guangzhou Suspends Incinerator Project Until Environmental Assessments OK’ Xinhua (Beijing, 23 October 2009), <http://news.xinhuanet.com/english/2009-11/23/content_12524614.html> accessed 11 April 2018. Alex Wang, ‘China’s Environmental Tipping Point’ in Timothy Weston and Lionel Jensen (eds), China In and Beyond the Headlines (Rowman and Littlefield Publishers 2012) 125. See also Yan Fu, ‘Predicament and Solution: Functional Review of Allocation Rule of Environmental Public-interest Litigation Costs in China’ (2016) 5 J L Appl 80, 83. 134 See Zhang (n 120) 255. 135 The 2015 Interpretation (n 12) arts 11, 14, 22, 33; the 2014 Opinion (n 11) paras 13, 15. 136 The 2015 Interpretation (n 12) art 33(1); the 2014 Opinion (n 11) para 15. 137 The 2015 Interpretation (n 12) art22; the 2014 Opinion (n 11) para 15. 138 The 2015 Interpretation (n 12) art 33(2). 139 See civil verdict of the case by the Intermediate Court of Dezhou <http://wenshu.court.gov.cn/content/content?DocID=8904ca93-89c1-4c6b-bfb8-d21e15c91931&KeyWord=中华环保联合会> accessed 11 April 2018. 140 See art 66 of the Tort Law of China (the Standing Committee of the National People’s Congress, 26 December 2009, effective 1 July 2010). 141 The 2015 Interpretation (n 12) art 11; The 2012 Civil Procedure Law (n 29) art 15. 142 See n 75. See also Lv (n 119) 248 (emphasising the efficacy of procuratorial organs’ support for the plaintiff in terms of gathering of evidence and court argument during the litigation). 143 The 2015 Interpretation (n 12) art 14; the 2014 Opinion (n 11) para 13. 144 See Interim Measures for Management of Environmental Public-Interest Litigation Fund by Kunming Government (December 2010), and Interim Measures for Management of Environmental Public-Interest Litigation Fund co-established by the Finance Department and the High People’s Court of Hainan Province (September 2011). 145 Mingmin Zhang, ‘Dilemma of Public-interest Litigation to Break the Ice since the New Environmental Protection Law Came into Force Over One Year Ago’ Public-Interest Times (29 March 2016) <www.gongyishibao.com/html/yaowen/9505.html> accessed 11 April 2018. 146 Regulation on Legal Aid (the State Council, 16 July 2003) aims to provide legal aid to financially disadvantaged citizens by means of free legal services, including legal consultation, agency, criminal defense, etc. art 10(1) of the Regulation listed the situations where the legal aid can be applied for, and the second paragraph of this article authorises local governments to make supplementary provisions in terms of the legal aid matters. 147 Measures on the Payment of Litigation Costs (the State Council, 19 December 2006) art 29. 148 ibid arts 4, 44; nn 135–37. 149 See n 148, arts 48, 50; n 138. 150 For instance, in American citizen suit and in environmental public-interest litigation in Taiwan it is a 60 days’ period. See Clean Water Act of 1972 (US) [Pub L No 92-500, 86 Stat 816 (1972)], s 505(b)-(1); Air Pollution Protection Act of Taiwan (23 May1975) art 81; Waste Disposal Act of Taiwan (26 July 1974) art72. 151 The 2015 Implementation Measures (n 16) arts 40 and 41 (stating that ‘before the procuratorate institute an action against administrative agencies, they shall offer procuratorial suggestions to the relevant administrative agencies and urge them to rectify their illegal administrative acts or to perform their duties according to the law and only when the administrative organs refuse to rectify the illegal acts or perform their statutory duties within a month and public interest are still subject to infringement, may the procuratorate institute public interest litigation’). 152 See ‘The Supreme People’s Procuratorate Released Typical Case Concerning Pretrial Procedures for Environmental Public-Interest Cases Initiated by Procuratorial Organs’, The Procuratorate Daily (Beijing, 7 January 2016), <www.spp.gov.cn/zdgz/201601/t20160107_110536.shtml> accessed 11 April 2018. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of Environmental Law Oxford University Press

Standing of Environmental Public-Interest Litigants in China: Evolution, Obstacles and Solutions

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Abstract

ABSTRACT This article studies the standing of environmental public-interest litigants in China. It first analyses the evolution and current status of the standing requirements. The article, then, examines major obstacles that exist in the current standing requirements from the perspective of different types of actors, including social organisations, environmental administrative organs and procuratorial organs. The corresponding solutions to the aforementioned obstacles are also explored. It is proposed that expansion of standing and the improvement of support mechanisms are two measures which might overcome the existing hurdles in environmental public-interest litigation in China. The standing of social organisations and environmental administrative organs should be further liberalised. The legal status of procuratorial organs is to be clarified. Granting individuals the standing to sue is also worth considering in the future. In addition, incentive mechanisms including reducing the financial and proof burden of the plaintiff and expanding its financial resources should be further explored to motivate disadvantaged plaintiffs, while the ‘losers pay principle’ and pre-trial notification procedure should be used as mechanisms to remove vexatious lawsuits. 1. INTRODUCTION China has been accelerating the construction of an ecological society, against the backdrop of the prioritisation of economic development and the ‘pollute first, control later’ model over the last four decades. Some aspects of economic development have resulted in a myriad of serious environmental problems. China’s legal response to environmental challenges mainly relies on the law enforcement activities of administrative organs1 and the traditional tort system. Decentralisation,2 however, allows local government substantial power to resist environmental policy enacted by the central government.3 As a result, China's environmental laws and regulations, although plentiful and powerful, are unevenly enforced and violation of environmental laws is a widespread phenomenon.4 The conventional tort-based approach, which aims to remedy damaged private interests, cannot make up for the damage to the environmental public interest. In contrast, environmental public-interest litigation is designed to enhance the protection of the environmental public interest and promote the sustainable development of China. It strengthens the effectiveness of environmental law enforcement activities and provides remedies for environmental damage where private tort litigation is not applicable due to a lack of direct stakeholders.5 Environmental public-interest litigation is occurring in China. Nonetheless, restrictive standing requirements and imperfect support mechanisms still hinder the full play of environmental public-interest litigation in addressing China’s ever-worsening environmental degradation. Therefore, this article, by providing a detailed overview of the evolution of standing requirements in China’s environmental public-interest litigation, points out both the progress that has been made and the major obstacles that exist in the current regime. Finally, this article will discuss a number of proposals to improve the environmental public-interest litigation system, including the expansion of standing and the improvement of support mechanisms. 2. OVERVIEW OF THE ESTABLISHMENT OF ENVIRONMENTAL PUBLIC-INTEREST LITIGATION IN CHINA The year 2005 was a landmark in terms of China’s environmental public-interest litigation. In December of that year, the State Council issued the Decision on the Implementation of the Outlook on Scientific Development and Strengthening Environmental Protection which called for strengthened enforcement of environmental law and emphasised ‘allowing social groups to play their role, encouraging reporting on and exposing illegal environmental acts, and promoting environmental public-interest litigation’.6 However, the 2007 amendments to the Civil Procedure Law did not include an environmental public-interest litigation provision,7 which was a setback for the development of environmental public-interest litigation. Despite lacking legislative support, local environmental courts were still established in such Provinces as Jiangsu, Yunnan and Guizhouto to undertake experimental practices in environmental public-interest litigation. The first environmental court was established in Qingzhen, Guihzou Province in 2007.8 Althoughthe local courts’ exploratory experiment achieved great success and accumulated valuable experience for China’s environmental public-interest litigation, it did not comply with the 1991 Civil Procedure Law and the 1990 Administrative Procedure Law which required that the plaintiff in civil or administrative litigation to ‘have a direct interest in the case’.9 Therefore, environmental public-interest litigation in China still lacked a legal basis, and the number of cases initiated was quite small. Against this background, in 2012, Article 55 of the revised Civil Procedure Law conferred standing on environmental public-interest litigants on ‘legally mandated administrative organs and relevant organizations’. Subsequently, Article 58 of the revised Environmental Protection Law in 201410 stipulated more specific and restrictive standing requirements for social organisations. Accordingly, the Supreme People’s Court (hereinafter the SPC), in order to resolve problems concerning the application of law in environmental public-interest litigation, released two judicial Opinions,11 one Interpretation12 and a series of model and guiding cases.13 Those judicial tools confirmed the supportive attitude of the SPC and further clarified some key points in environmental public-interest litigation, such as detailed standing requirements for social organisations as well as the operation of the burden of proof and the assumption of litigation costs. In July 2015, the Supreme People’s Procuratorate was authorised to carry out a two-year pilot project, which allowed procuratorial organs14 in 13 Provinces to institute environmental public-interest litigation, especially against the violations of the Environmental Protection Law by administrative organs.15 Subsequently, the Supreme People’s Procuratorate issued its plan and specific implementation measures for the pilot project.16 On 27 June 2017 when the two-year pilot project came to an end, the Standing Committee of the National People’s Congress passed the Decision on Amending the Civil Procedure Law and the Administrative Procedure Law of the People's Republic of China which empowers people’s procuratorates nationwide to file environmental public-interest litigation cases, both civil and administrative.17 The Decision came into force on 1 July 2017, and the procuratorate’s standing has been firmly established since then. To date, the environmental public-interest litigation system has been gradually formed in China. It can be categorised into civil cases and administrative cases. The former are against environmental injurers who damaged, or are at risk of damaging, the environmental public interest,18 while the latter are against administrative organs that are responsible for supervising and managing the environment and natural resources protection affairs but caused damage to the environmental public interest because of illegal administrative acts or administrative inaction.19 Civil environmental public-interest litigation can be filed by legally mandated administrative organs, social organisations and the procuratorate,20 while in administrative environmental public-interest litigation, people’s procuratorates are the only qualified plaintiff.21 Available remedies in civil environmental public-interest litigation include cessation of infringement, removal of obstruction, elimination of danger, restoration to the original state, compensation for losses, and apology.22 When it is impossible to restore the damaged environment to its pre-injury condition, the court may permit the adoption of alternative restoration methods.23 The losses to be compensated for may also include the loss of environmental service functions during the restoring process.24 In administrative environmental public-interest litigation, the procuratorate can claim for the revocation or part revocation of the illegal administrative acts, the performance by alleged administrative organs of their statutory duties, and the confirmation of the illegality or invalidity of the alleged administrative acts.25 3. EVOLUTION OF STANDING REQUIREMENTS 3.1. Having a Direct Interest in the Case According to the 1991 Civil Procedure Law, in order to establish standing, the plaintiff must meet the requirement of ‘having a direct interest in the case’.26 Although the meaning of ‘having a direct interest in the case’ is not legally specified, it is generally acknowledged that it requires the existence of causation between the legal rights and interest of the plaintiff and the wrongdoing of the person being sued.27 That is, in order to file a lawsuit, the plaintiff must have a personal or property interest that is or may be adversely affected by the person being sued. Similarly, the 1989 Administrative Procedure Law and its 2014 amendment, also place emphasis on the plaintiff’s duty to prove ‘having an interest in the administrative action’ and that ‘a specific administrative act has infringed upon his lawful rights and interest’.28 The ‘direct interest’ requirement precludes non-stakeholders from protecting public environmental interest by litigation, which keeps environmental public-interest litigation out of the courts and makes poor enforcement a greater issue for China’s environmental law. 3.2. Local Legislation and Environmental Courts Before the 2012 Civil Procedure Law first introduced public-interest litigation and conferred standing on ‘legally mandated administrative organs and relevant organizations’,29 local governments already took the initiative in providing an arena for environmental public-interest litigation by establishing specialised environmental courts to hear environmental cases.30 Attempts to establish environmental courts in China can be traced back to the 1980s.These, however, were vetoed by the SPC for lack of legal basis.31 In 2005, the State Council’s Decision32 reignited enthusiasm for environmental public-interest litigation in China. In 2007, the Environmental Court of Qingzhen was created as the first environmental court established in China33 and environmental courts have proliferated ever since and were officially recognised by the SPC in 2010 through the Notice of the SPC on Issuing the Several Opinions on Providing Judicial Guarantee and Services for Accelerating the Transformation of the Economic Development Mode.34 On 4 July 2014, the SPC established an environmental tribunal at its own level, specialising in hearing environmental cases of the first instance within its jurisdiction and appeals from lower people’s courts.35 By April 2017, 956 environmental courts have been established throughout the country, in the form of environmental resources divisions (huanbaoshenpanting), collegiate benches (heyiting) and circuit courts.36 Among the typical and influential cases dealt with by these environmental courts are: Guiyang Two Lakes and One Reservoir Management Bureau v Guizhou Tianfeng Chemical Ltd.(Qingzhen Environmental Court, 27 December 2007) with a government agency as the plaintiff; 37All-China Environmental Federation (hereinafter ACEF) v Jiangyin Port Container Ltd. (Wuxi Environmental Court, 6 July 2009), the first civil suit accepted by a Chinese court with an environmental NGO as the plaintiff;38 ACEF & Guiyang Public Environmental Education Center v Dingpa Paper Mill of Wudang District, Guiyang (Qingzhen Environmental Court, 1 January 2011), which was noteworthy for innovations in preserving evidence, a preliminary injunction, prepaid expenses by a foundation, and environmental expert consultation.39 The last two cases are included in the set of model environmental cases published by the SPC in 2014.40 Specialised environmental courts have provided an important forum for environmental public-interest cases, have carried out significant attempts in liberalising standing for public-interest litigation, and accumulated valuable experience and lessons for improving relevant legislation and judicial practice. 3.3. Conferral of Standing for Environmental Public-Interest Litigation upon Administrative Organs and Social Organisations 3.3.1. The 2012 Civil Procedure Law Article 119 of the 2012 Civil Procedure Law retained the strict standing requirements of the 1991 Civil Procedure Law41 but made a special exception for environmental public-interest litigation in Article 55. Article 55 stipulates that ‘for conduct that pollutes the environment and damages the public interest, legally mandated administrative organs and relevant organisations may institute an action in the court’. After more than a decade of practice, it was the first time that environmental public-interest litigation had been clearly stipulated in a law promulgated by the National People’s Congress42 and was regarded as a breakthrough in allowing administrative organs and social organisations to initiate a lawsuit, even without having a direct interest in the case.43 There was not, however, any further clarification on the scope of ‘legally mandated administrative organs and relevant organizations’. Most scholars agree that ‘legally mandated administrative organs’ refer to ‘departments responsible for supervising the marine environment’ as stipulated in the 1999 Marine Environmental Protection Law,44 but opinions still vary over the scope of ‘relevant organizations’: some may hold that ‘legally mandated’ only modifies ‘administrative organs’, and ‘relevant organizations’ remain to be interpreted by the judicial authority.45 Others contend that ‘legally mandated’ modifies both and clarification concerning ‘relevant organizations’ needs to be made by subsequent laws.46 The latter invalidates previous local administrative regulations conferring standing on social organisations, for ‘legally mandated’ means as prescribed by laws that are promulgated only by the National People’s Congress and its Standing Committee rather than local governments. In either case, the courts are perplexed as to the standing of social organisations. Consequently, although the 2012 Civil Procedure Law includes the environmental public-interest litigation standing provision which is a breakthrough, it did not succeed in expanding standing for environmental public-interest litigation. Rather, it adversely affected local governments’ previously flexible standing requirements and made it more difficult for social organisations to play a role in environmental public-interest litigation.47 Taking the practice of ACEF as an example, the most prominent environmental NGO in China, it brought at least eight cases under the new law in 2013. All these were rejected for lack of standing, which was in sharp contrast to its successful practices before the promulgation of the 2012 Civil Procedure Law.48 3.3.2. The new Environmental Protection Law of 2014 It is against such a background that the new Environmental Protection Law of 2014 was negotiated and promulgated. Article 58 of the new Environmental Protection Law further clarified the standing requirements of social organisations as stipulated in Article 55 of the 2012 Civil Procedure Law: Against acts which harm the public interest by polluting the environment and damaging the ecosystem, social organizations that meet the following requirements may bring lawsuits in the People’s Court: (1) legally registered with the civil affairs department of the people's government at the level of a city with districts or above; (2) specially engaging in environmental-protection public-interest activities for at least five consecutive years with no record of illegal activity. When a social organization which meets the above requirements brings a lawsuit to a People’s court, the People’s court shall accept it. A social organization which brings a lawsuit shall not use it for economic benefit.49 It seems that the above provision made social organisations’ standing requirements more specific than as indicated in the 2012 Civil Procedure Law. Problems still existed in application, however, due to ambiguities over the meaning of certain terms. For example, what is the scope of ‘the civil affairs department of the People’s government at the level of a city with districts or above’? What constitutes ‘environmental-protection public-interest activities’? What is the scope of ‘illegal activity’? 3.3.3. Judicial opinions, interpretations and model cases In order to address the ambiguities over certain terms in the new Environmental Protection Law and make further clarification as regards standing, the SPC then issued a series of judicial items, including two judicial Opinions,50one judicial Interpretation,51 and a series of model and guiding cases.52 Both the opinions and the model cases showed the supportive attitude of the SPC toward environmental public-interest litigation. In the 2014 Opinion, it encouraged courts to accept, on a timely basis, environmental public-interest litigation cases brought by legally mandated government organs and social organisations that meet the requirements of Article 58 of the new Environmental Protection Law,53 and emphasised judicial assistance to plaintiffs by helping to get evidence,54 allowing plaintiffs to postpone, reduce or be exempted from court fees.55 It is also suggested the establishment of an exclusive foundation,56 which could be used to cover the litigation costs of plaintiffs.57 The 2015 judicial interpretation of Article 55 provides a more detailed explanation of social organisation’s standing in environmental public-interest cases. NGOs that meet the registration requirements can be divided into three groups, namely, social associations, private non-enterprise units' and foundations.58 The Interpretation did not make the scope closed but rather left room for further supplements by administrative and local regulations.59 ‘Civil affairs departments of the People’s government at the level of a city with districts or above’ also include those in an autonomous prefecture, league or region, a prefecture-level city not divided into districts, and a municipal district directly under the Central Government.60 ‘No record of illegal activity’ means no administrative or criminal punishment has been imposed on the social organisation, which does not include any imposed upon its members or its legal representative.61 The 2015 Interpretation also distinguishes illegal activities conducted by organisations before and during the lawsuit. If there was record of illegal activities before the lawsuit, then the case will be rejected by the court. If they are conducted during the litigation, relevant illegal income will be confiscated and a fine will be imposed, but the case will continue to be heard.62 ‘Engaging in environmental-protection public-interest activities’ means it shall be specified in the bylaw of the social organisation that its target and main business scope is to protect the environmental public interest and it has indeed engaged in such activities. The public interest it aims to protect through the lawsuit should also have some connection with its target and main business scope.63 In addition to the above judicial documents, the SPC also released a series of model and guiding cases for the court’s reference. Through the Tengger Dessert Pollution Case, the guiding case released by the SPC in 2016, the SPC made a more extensive interpretation as regards ‘target and main business scope’ by stating that instead of being confined to the wording of an organisation’s bylaws, so long as the environmental public-interest protection activities conducted by the organisation include the protection of environmental elements and the ecological system, the court shall rule that its target and business scope has met the requirement of the 2015 Interpretation.64 In Friends of Nature & Green Home Environmental Friendly Center v ZhijinXie and others,65 the first environmental public-interest case after the implementation of the new Environmental Protection Law and one of the model cases released by the SPC in December 2015, both the courts of the first and second instance confirmed that ‘five-year working experience’ is calculated from the time when social organisations started to engage in environmental protection work, not from the time of registration. The 2012 Civil Procedure Law, the 2014 Environmental Law, and the relevant judicial documents from the SPC provides the legal basis for the standing of social organisations, and the model and guiding cases of the SPC further clarified these standing requirements. As a result, from the implementation of the new Environmental Law in January 2015 to June 2017, about 150 environmental public-interest litigation cases have been brought by social organisations,66 which is a sharp increase in comparison with only 17 cases from 1995–2014.67 3.4. Procuratorial Organs Obtain Standing for Environmental Public-Interest Litigation In China, procuratorial organs are considered to be the qualified representatives of the social public interest.68 The procuratorate’s standing as regards public-interest litigation is rooted in Article 129 of China’s Constitution69 and Article 1 of the Organic Law of the People’s Procuratorates,70 which provide that ‘the people’s procuratorates of the People’s Republic of China are state organs for legal supervision’. The supervision thereof is exerted not only on the performance of government organs and their personnel but also in relation to the general behaviour of individual citizens and social organisations. Instituting environmental public-interest litigation is the manifestation of the procuratorate’s status as the legal supervisor, whether the case is civil or administrative in nature. Allowing the procuaratorate to initiate public-interest litigation compensates for a social organisation’s lack of standing in administrative environmental public-interest cases in which administrative agencies are the defendant. Compared with individual citizens and social organisations, procuratorial organs have advantageous financial and human resources as well as appropriate political support. Such advantages mitigate against the court’s reluctance to accept a case and overcome difficulties in investigation so as to provide more likelihood of success in environmental public-interest cases. To be specific, the advantages of environmental public-interest litigant cases brought by the Procuratorate are as follows. First, local protectionism and the fact that local administrative agencies are also likely to be the defendant, render local governments resistant to environmental public-interest litigation.71 In addition, since local courts are financially responsible to local governments, they are vulnerable to the intervention of local governments and as a result, local courts can be under great pressure and have little incentive to accept an environmental public-interest case. The Tengger Desert Pollution Case was not accepted by either Zhongwei Intermediate People’s Court or the High People’s Court of Ningxia Hui Autonomous Region on the ground that the target and business scope of the plaintiff’s, China Biodiversity Conservation and Green Development Foundation, failed to meet the requirement prescribed in Article 58 of the new Environmental Protection Law. The verdict was finally overturned by the SPC.72 By contrast, if it is the procuratorate that institutes an environmental public-interest action, the situation is quite different. The procuratorate has supervisory power over the behaviour of courts and the latter are likely to be cautious when rejecting a case initiated by the former. Secondly, exclusive financial allocation, professional legal personnel, and the willingness of administrative organs73 to cooperate in collecting evidence make the procuratorate the most powerful actor in public-interest litigation, which helps to balance the powers of the two parties in the case. This is particular so when powerful enterprises or administrative agencies act as the defendant.74 Advantages in expertise also ensure that a prudent attitude will be taken and inappropriate lawsuits will be reduced to a great extent. Thirdly, compared with administrative organs which have standing, according to Article 55 of the 2012 Civil Procedure Law, the independence and neutrality of the procuratorate as the legal supervisory body75 guarantees that it is not susceptible to political intervention which will moderate local protectionism. In 2000, the Supreme People’s Procuratorate issued the Notice on Strengthening Procuratorial Function and Protecting State Assets According to Law, which emphasised that procuratorial organs should give full play to their procuratorial function by filing lawsuits against illegal activities in violation of the civil law.76 In 2003, the first environmental public-interest case brought by the procuratorate was heard when the Procuratorate of Leling District in Dezhou City filed a lawsuit against the Jinxin Chemical Plant for environmental pollution.77 In this case, the court supported all the claims of the procuratorate. Local regulations and directives are also supportive of the procuratorate’s role in environmental public-interest litigation.78 In October 2014, the Fourth Plenary Session of the Eighteenth Central Committee of the Chinese Communist Party emphasised the need to establish the system of environmental public-interest litigation brought by procuratorial organs, which provided important policy support for the procuratorate’s standing and further boosted their practice before their standing was legally authorised in July 2015 (see Table 1).79 Table 1. Typical environmental public-interest cases brought by procuratorial organs before July 2015 (case information comes from China Judgments Online) Time of case settlement Plaintiff Defendant Cause of action Way of case settlement November 2008 Procuratorate of Guiyang City, Guizhou Province XiongJinzhi, Lei Zhang and Chen Tingyu Removal of Obstacle, restitution Mediation June 2009 Procuratorate of Xishan District, Wuxi City Li Huarong and Liu Shimi Destruction of road traffic environment Court judgment January 2013 Environmental Protection Bureau and Procuratorate of Qingzhen, Guizhou Province Guizhou branch of a public company Water pollution Withdrawal of action October 2013 Procuratorate of Qingzhen, Guizhou Province Qingzhen branch of a ferroalloy limited company of Guizhou Air pollution Withdrawal of action 2014.4 Procuratorate of Qianxi County, Guizhou Province Forestry Bureau of Qianxi County Administrative inaction Court judgment November 2014 Procuratorate of Jinsha County, Guizhou Province Environmental Protection Bureau of Jinsha County Administrative inaction Withdrawal of action March 2015 Procuratorate of Qingzhen, Guizhou Province Urban Administrative Bureau of Qingzhen Administrative inaction Court judgment Time of case settlement Plaintiff Defendant Cause of action Way of case settlement November 2008 Procuratorate of Guiyang City, Guizhou Province XiongJinzhi, Lei Zhang and Chen Tingyu Removal of Obstacle, restitution Mediation June 2009 Procuratorate of Xishan District, Wuxi City Li Huarong and Liu Shimi Destruction of road traffic environment Court judgment January 2013 Environmental Protection Bureau and Procuratorate of Qingzhen, Guizhou Province Guizhou branch of a public company Water pollution Withdrawal of action October 2013 Procuratorate of Qingzhen, Guizhou Province Qingzhen branch of a ferroalloy limited company of Guizhou Air pollution Withdrawal of action 2014.4 Procuratorate of Qianxi County, Guizhou Province Forestry Bureau of Qianxi County Administrative inaction Court judgment November 2014 Procuratorate of Jinsha County, Guizhou Province Environmental Protection Bureau of Jinsha County Administrative inaction Withdrawal of action March 2015 Procuratorate of Qingzhen, Guizhou Province Urban Administrative Bureau of Qingzhen Administrative inaction Court judgment Table 1. Typical environmental public-interest cases brought by procuratorial organs before July 2015 (case information comes from China Judgments Online) Time of case settlement Plaintiff Defendant Cause of action Way of case settlement November 2008 Procuratorate of Guiyang City, Guizhou Province XiongJinzhi, Lei Zhang and Chen Tingyu Removal of Obstacle, restitution Mediation June 2009 Procuratorate of Xishan District, Wuxi City Li Huarong and Liu Shimi Destruction of road traffic environment Court judgment January 2013 Environmental Protection Bureau and Procuratorate of Qingzhen, Guizhou Province Guizhou branch of a public company Water pollution Withdrawal of action October 2013 Procuratorate of Qingzhen, Guizhou Province Qingzhen branch of a ferroalloy limited company of Guizhou Air pollution Withdrawal of action 2014.4 Procuratorate of Qianxi County, Guizhou Province Forestry Bureau of Qianxi County Administrative inaction Court judgment November 2014 Procuratorate of Jinsha County, Guizhou Province Environmental Protection Bureau of Jinsha County Administrative inaction Withdrawal of action March 2015 Procuratorate of Qingzhen, Guizhou Province Urban Administrative Bureau of Qingzhen Administrative inaction Court judgment Time of case settlement Plaintiff Defendant Cause of action Way of case settlement November 2008 Procuratorate of Guiyang City, Guizhou Province XiongJinzhi, Lei Zhang and Chen Tingyu Removal of Obstacle, restitution Mediation June 2009 Procuratorate of Xishan District, Wuxi City Li Huarong and Liu Shimi Destruction of road traffic environment Court judgment January 2013 Environmental Protection Bureau and Procuratorate of Qingzhen, Guizhou Province Guizhou branch of a public company Water pollution Withdrawal of action October 2013 Procuratorate of Qingzhen, Guizhou Province Qingzhen branch of a ferroalloy limited company of Guizhou Air pollution Withdrawal of action 2014.4 Procuratorate of Qianxi County, Guizhou Province Forestry Bureau of Qianxi County Administrative inaction Court judgment November 2014 Procuratorate of Jinsha County, Guizhou Province Environmental Protection Bureau of Jinsha County Administrative inaction Withdrawal of action March 2015 Procuratorate of Qingzhen, Guizhou Province Urban Administrative Bureau of Qingzhen Administrative inaction Court judgment The table shows that procuratorial organs had already instituted civil and administrative environmental public-interest cases before July 2015. Nonetheless, the legal basis for such litigation was still quite weak. First, the 2012 Civil Procedure Law, the 2014 Environmental Protection Law, and the 2014 Administrative Procedure Law did not stipulate procuratorial organs’ standing for environmental public-interest litigation. Secondly, relative provisions in the Constitution and Organic Law of the People’s Procuratorate are too generic. Thirdly, local administrative regulations are relatively lowly in the legal hierarchy, thus, lacking authority. In addition, support from the Notice issued by the Supreme People’s Procuratorate in 2000 was also rejected by the SPC in 2000 for lack of legal basis.80 As a result, doubt and controversy existed over the rationality of procuratorial organs’ standing for environmental public-interest litigation,81 which hindered further practice. Against this backdrop, on 1 July 2015, the Standing Committee of the National People’s Congress authorised the Supreme People’s Procuratorate to carry out a two-year pilot project, which conferred standing on procuratorial organs in 13 Provinces and autonomous regions (the 2015 Authorisation Decision).82 Following this, the Supreme People’s Procuratorate issued its plan and specific implementation measures for the pilot project,83 in which the objectives, principles, scope of cases, pre-trial proceeding, claims and other aspects of public-interest litigation filed by procuratorial organs, are explicitly provided for. Then in 2016, the SPC issued its corresponding trial measures84 and an Opinion85 in response to the pilot project, which aimed to ensure correct trial procedures. After the 2015 Authorisation Decision, environmental public-interest cases initiated by procuratorial organs proliferated. On 16 December 2015, the Procuratorate of Qingyun County of Dezhou, Shandong Province, filed a lawsuit against the Qingyun Environmental Protection Bureau for nonfeasance in dealing with water pollution caused by a chemical company, which was the first administrative public-interest litigation initiated by procuratorial organs after the authorisation.86 On 22 December 2015, the Procuratorate of Changzhou, Jiangsu Province filed the first civil environmental public-interest litigation after the authorisation, against two private bodies.87 On 4 January 2017, the Supreme People’s Procuratorate released five guiding cases on environmental public-interest litigation brought by procuratorial organs.88 Up to May 2017, procuratorial organs in the 13 pilot districts have dealt with 7886 environmental public-interest cases by means of litigation (934 cases) or pre-litigation procedures, in which procuratorial organs provided suggested opinions to urge relevant administrative organs to rectify their illegal behaviour and support social organisations in initiating civil public-interest litigation (6952 cases altogether).89 This success during the two-year pilot project proved the feasibility and effectiveness of procuratorate-brought environmental public-interest litigation in the protection of environmental public interest as well as enhancing environmental law enforcement.90 Therefore, after the first review on 22 June 2017 and the second review on 25 June 2017 of the draft amendments to the Administrative Procedure Law and the Civil Procedure Law submitted by the Supreme People’s Procuratorate, the Standing Committee of the National People’s Congress finally passed the Decision on Amending the Civil Procedure Law and the Administrative Procedure Law of the People's Republic of China on 27 June 2017. The amendments came into force on 1 July 2017. As a result, all the procuratorial organs in China now have obtained the standing to sue in environmental public-interest litigation, both civil and administrative. 4. OBSTACLES TO STANDING FOR ENVIRONMENTAL PUBLIC-INTEREST LITIGANTS Up to now, administrative organs, social organisations and procuratorial organs have successively obtained legal standing for environmental public-interest litigation in China. Despite substantial legislative progress, such hurdles as restrictive standing requirements and imperfect supporting mechanisms remain, which hampers the role of environmental public-interest litigation could have played in addressing China’s environmental problems. 4.1. Obstacles to Social Organisations’ Standing to Sue 4.1.1. Restrictions by legislation First of all, legislative restriction derives from the double-approval registration system. In order to meet the standing requirement, social organisations must be legally registered with the civil affairs department of the government at or above municipal levels.91 Furthermore, according to regulations on the registration of social organisations, before registration with a civil affairs department, social organisations must first obtain the approval of the relevant governing unit.92 The relevant governing unit refers to relevant departments within the State Council and the local governments at or above the county level, or the organisations authorised by the State Council and local governments.93 However, there are no systematic and clear instructions by the State Council and local governments on the governing units of certain social organisations. As a result, ascertaining a corresponding governing unit becomes very difficult especially for some grassroots social organisations, which precludes them from taking an active part in environmental public-interest litigation. It is also the case that approval by the relevant governing unit is not a necessary and logical requirement for the establishment of social organisations. Therefore, the double-approval registration requirement is an obstacle that needs to be reformed. Secondly, the requirement of ‘five years’ work experience’ constitutes an unjustifiable constraint on social organisations’ standing. There does not need to be a connection between the years of work experience and the capability of social organisations in environmental public-interest litigation. If there were a connection, why is the requirement for five years instead of for three or four years? There has been no convincing legal authority to justify this aspect of the standing requirement. Thirdly, social organisations lack standing in administrative environmental public-interest litigation. Different from a judicial body which only plays a supplementary and remedial role after environmental damage has already occurred, environmental protection agencies which are responsible for environmental law enforcement, play a leading role in safeguarding the environmental public interest.94 Furthermore, the responsibility of environmental protection agencies cannot be satisfactorily fulfilled without public supervision, and administrative environmental public-interest litigation is the last defence of such a supervisory right.95 Not surprisingly, environmental protection organisations are eager for the right to bring administrative public-interest litigation and are attempting this even without legal authorisation.96 At present, however, only procuratorial bodies are authorised to file environmental public-interest litigation against administrative organs.97 Social organisations lack standing because the Civil Procedure Law stipulates only civil public-interest litigation and whether administrative public-interest litigation is included in Article 58 of the Environmental Protection Law is subject to further clarification. There are also inconsistent provisions between the old law and the new environmental protection law. Article 90 of the Marine Environmental Protection Law provides that in response to marine environmental damage, only ‘departments responsible for supervising marine environment’ rather than social organisations are qualified to bring public-interest litigation. It conflicts with Article 58 of the Environmental Protection Law and has led to inconsistent application of law in judicial practice. For example, on 5 June 2015, the Dalian Environmental Protection Volunteers Association filed a lawsuit against the Petro China Fuel Oil Company for marine pollution caused by an oil spill, but this was rejected by the Dalian Maritime Court for lack of standing.98 Later that year, however, with the same cause of action, China Biodiversity Conservation and the Green Development Foundation brought an action against ConocoPhillips and Cnooc (China’s state-owned oil company) and were accepted by the Qingdao Maritime Court.99 Therefore, in order to unify the application of law, such discrepancy needs to be eliminated. 4.1.2. Lack of financial support and expertise is the biggest obstacle in practice The complexity of environmental public-interest cases requires sufficient financial support. Nonetheless, 76.1% of social organisations in China have no fixed source of funding, according to a survey by ACEF in 2005.100 According to another survey co-conducted by ACEF and the Natural Resources Defence Council (NRDC) in 2013, only 23% of environmental protection organisations have financial assets and membership dues as a relatively stable source of funding and nearly half have less than 500,000 Yuan as their annual budget.101 To further complicate the issue, the costs of environmental public-interest litigation frequently reaches six figures, which is far beyond the affordability of social organisations and precludes their active involvement. For example, in Taizhou Environment Federation v Jiangsu Changlong Agro Chemical Company (2014), which concerned environmental pollution, the litigation costs at the first instance were 973651.72 Yuan and 947298.28 Yuan at second instance.102 In addition to the case acceptance fee, attorney fees and damage assessment costs also account for a great part of the litigation costs. In 2010, the Kunming Environmental Protection Bureau brought environmental public-interest litigation against two husbandry companies for pollution of groundwater but was ultimately discouraged by the high estimated cost of 330,000 Yuan.103 Similarly, in Friends of Nature v Yunnan Luliang Chemical Limited Company in 2011, the damage assessment costs reached up to 7 million Yuan, which exceeded the plaintiff’s total spending for the whole year (5 million Yuan), thus raising a dilemma.104 High litigation costs, coupled with lack of sufficient financial support, impedes social organisations in taking an active part in environmental public-interest litigation, even if the standing requirement becomes as flexible as possible. Lack of expertise and legal professional expertise is another obstacle facing social organisations in public-interest litigation. According to a survey by ACEF and NRDC in 2013, the majority of legal professionals working for environmental protection organisations are part-time volunteers, instead of specialised full-time staff and 48% of the organisations surveyed had no legal department.105 Lack of funding and professional support has resulted in the reluctance and hesitancy of environmental protection organisations to file public-interest litigation. The survey in 2013 revealed that only 30% of environmental protection organisations would consider public-interest litigation as the primary means of protecting the environmental public interest and 57% stated they would be very cautious when deciding whether to file public-interest litigation, with 11% explicitly expressing a negative attitude.106 As far as practice is concerned, among more than 700 social organisations that had met the standing requirement in 2015, only nine of them were engaged in environmental public-interest litigation.107 It is, therefore, apparent that increasing financial and expertise support is needed to fully incentivise social organisations to be active players in environmental public-interest litigation. 4.2. Narrow Scope of Environmental Administrative Organs that Have Standing At present, environmental administrative organs mainly play their role in environmental protection by environmental law enforcement activities, through which polluters are punished by administrative fines which cannot be directly used to remedy the damaged environment public interest.108 Environmental administrative organs have fixed fiscal allocation from the central and local governments, environmental professionals and advanced environmental monitoring techniques. Therefore, they should be expected to make the best of such advantages in instituting environmental public-interest litigation.109 Standing of administrative organs for environmental public-interest litigation is provided in Article 55 of the Civil Procedure Law as ‘legally mandated administrative organs’, but as stated earlier, these ‘administrative organs’ are exclusively interpreted as departments responsible for supervising the marine environment stipulated in the 1999 Marine Environmental Protection Law.110 According to the Plan for the Pilot Project of the Communist Party and the State Council in 2015 and the Opinion of the SPC in 2016, provincial governments may bring a civil action against environmental law violators who cause damage to the ecological environment.111 Seven provincial governments were authorised in August 2016.112 However, this action differs from civil public-interest litigation in nature because the judicial Opinion clearly states that the standing is based upon state ownership of natural resources (rather than for the sake of the environmental public interest). Therefore, the Opinion classifies such action, public-interest litigation by organisations, and private-interest lawsuits, as ‘three different kinds of lawsuits’.113 In practice, although some administrative authorities and local governments have filed some public-interest litigation,114 lack of clarification to expand the scope of standing of such administrative organs in law still hinders their role in environmental public-interest litigation. 4.3. Ambiguity Concerning the Procuratorate’s Legal Status in Public-Interest Litigation The Implementation Measures for the Pilot Project issued by the Supreme People’s Procuratorate provide that the status of the procuratorate in environmental public-interest litigation is as ‘a party to public-interest litigation’ (gongyisusongren).115 It is an equivocal concept open to interpretation and currently there are mainly three ways to interpret it. The first one is that the status of the procuratorate in public-interest litigation is as an ordinary plaintiff who has equal status with the defendant. Such status is totally different from its status as a legal supervisor, as it cannot be a player and also an adjudicator, for fear that exercising legal supervision over the trial might interfere with the independence of the court.116 The second view is that the procuratorate takes part in public-interest litigation merely as the legal supervisor, which is a natural extension of its position in criminal procedure.117 Apart from the two opinions above, a more balanced view contends that the procuratorate acts as both plaintiff and legal supervisor in environmental public-interest cases.118 Different understandings of the procuratorate’s legal status can also be found in judicial materials respectively released by the SPC and the Supreme People’s Procuratorate.119 Although the Standing Committee of the National People’s Congress legally authorised the standing of people’s procuratorates nationwide through the new amendments to the Civil Procedure Law and the Administrative Procedure Law, it did not clarify the legal status of procuratorates during the litigation. As the procuratorate’s status in public-interest litigation matters concerning the distribution of rights and obligations of the two parties during the proceedings, further clarification is essential in future legislative interpretations. 5. OVERCOMING THE STANDING HURDLES Expansion of standing and improvement of support mechanisms are two alternative measures to break the bottleneck of environmental public-interest litigation. First, the standing requirements for environmental public-interest litigation should be as flexible as possible and further clarification is also needed in order to ensure the uniform judicial application of law. Secondly, support mechanisms are also of great necessity to prevent excessive and vexatious lawsuits, while giving qualified plaintiffs the strongest legal support as environmental public-interest protectors. 5.1. Expansion of Standing with Further Clarification 5.1.1. Expansion of standing for social organisations and administrative organs For social organisations and administrative organs to perform more effectively in environmental public-interest litigation, their standing needs to be further liberalised. In order to overcome the standing hurdles facing social organisations, efforts should be exerted in the following aspects. First, legislative amendment is necessary to abandon the double-approval registration system and adopt a direct registration system, in which as long as social organisations have registered with relevant civil affairs department of the government, registration is complete. Secondly, the requirement of five consecutive years’ work experience in environmental public-interest protection should be further justified. If such justification cannot be provided, loosening the requirement for the length of work experience would be a more appropriate approach. Thirdly, social organisations should gain standing for administrative public-interest litigation. That end can be achieved through judicial interpretation of Article 58 of the Environmental Protection Law and by revision to the Administrative Procedure Law. Fourthly, as to environmental organisations’ standing in cases related to marine environmental damage, Article 90 of the Marine Environmental Protection Law should be amended, to ensure its consistency with Article 58 of the Environmental Protection Law. In terms of the standing of administrative organs, legislative or judicial interpretation should broaden the scope of ‘legally mandated administrative organs’ in Article 55 of the Civil Procedure Law and to ensure that administrative organs that have the right to file public-interest litigation are not limited to ‘departments responsible for supervising the marine environment’. Modifications should also be made to the Environmental Protection Law and specific environmental regulations, such as the Water Pollution Prevention and Control Law, to stipulate environmental administrative authorities’ standing to sue in different environmental protection areas. 5.1.2. Further clarifications on procuratorial organs’ standing The legal status of procuratorial organs in environmental public-interest litigation is an issue that needs to be addressed at present, because it determines the rights of the two parties and relevant procedural requirements during the litigation. If procuratorial organs act as an ordinary plaintiff, they cannot appeal after the judgment of the court comes into force, and the defendant has the right to assert a counterclaim during the litigation. By contrast, if the procutorate acts as a legal supervisor akin to a prosecutor during criminal litigation, they can still seek a retrial of the case based on their legal supervision over the trial, and the defendant cannot counterclaim. For those supporting an ordinary plaintiff status, the main concern is that legal supervisory status may interfere with the independence of the court. Others who differentiate procuratorial organs from an ordinary plaintiff argue that the litigation is brought for the sake of public interest which is quite different from private-interest litigation brought by an ordinary plaintiff. Up to now, a consensus has not been reached, and there is no clear legal provision. Therefore, after the new amendments to the Civil Procedure Law and the Administrative Procedure Law, the Standing Committee of the National People’s Congress should provide legislative interpretation to make clear the legal status of procuratorial organs in public-interest litigation and to resolve the discrepancy between the understandings of the SPC and the Supreme People’s Procuratorate. 5.1.3. Individuals’ standing deserves further consideration Individuals’ standing for environmental public-interest litigation does not have any legal basis in China at present, and a consensus has not been reached in academia.120 Nonetheless, it may be feasible in the future, because granting individuals the right to sue in environmental public-interest litigation cases accords with the basic principle of the Environmental Protection Law. It also benefits personal and public interests as well as the interest of the environment itself. This can be seen by successful practice by other countries. First, individual’s standing accords with the public participation principle stipulated by Article 5 of the Environmental Protection Law, and it constitutes an effective way of exercising supervision over environmental affairs. Secondly, individual citizens bear the brunt of environmental deterioration and have much to lose from the poor enforcement of environmental law. Therefore, they have the incentive to take vigorous legal action to protect the environment.121 Thirdly, public-interest litigation brought by individual citizens can also play an important watchdog function in environmental governance, which serves as a necessary complement to government supervision and helps to maximise the use of governmental resources. Such citizen involvement is described by some scholars as bottom-up ‘fire alarm’ type monitoring, which is much less expensive and makes it possible to monitor on a far larger scale with fewer resources, as compared with top-down ‘police patrol’ regulation by environmental protection agencies.122 Furthermore, if individual citizens were given the right to sue in environmental public-interest cases, this might also have deterrent and educational effects, helping to arouse public awareness of environmental protection and contributing greatly to the improvement of China’s overall environmental conditions. From the international perspective, the rationality of individuals’ standing in environmental public-interest litigation has already been proved to some degree by the successful experiences in other countries, such as the citizen suit in the USA. The USA long ago recognised that citizen litigation could provide an indispensable supplement to scarce government enforcement resources and serves to supervise recalcitrant government agencies as well.123 A large number of scholars in China, thus, are supportive of individuals’ standing for environmental public-interest litigation.124 In practice, individuals’ attempts to bring a lawsuit for the sake of the environmental public interest in China started as early as the 2000s. The majority of cases brought, however, were rejected by courts for lack of standing. For instance, in 2002, a farmer in Hangzhou, Zhejiang Province accused the Environmental Protection Bureau of Yuhang District, Hangzhou of failing to deal with pollution caused by mining operations.125 In 2003, a lawyer in Hangzhou brought an action against the Planning Bureau because the latter’s administrative licensing damaged the environment surrounding the West Lake scenic spot.126 In 2005, three teachers and three postgraduates from the Law School of Peking University brought a suit to the High People’s Court of Heilongjiang Province as co-plaintiffs of the damaged sturgeons, Sun Island and Songhua River against the Jilin branch of Sinopec, regarding the pollution of the Songhua River.127 Therefore, the first step for individuals to play a role in protecting the environmental public interest is seeking the opportunity to stand before the court. Thus far, however, individuals have not been granted standing, and the requirement of ‘having a direct interest in the case’ still needs to be strictly complied with by individuals. At present, except for lack of money and expertise, the main concern about expanding individual’s standing in environmental public-interest litigation is that it may lead to excessive lawsuits, thus wasting already limited judicial resources.128 Although such concern has a degree of validity, if China’s current situation is carefully considered, it is likely that such pessimism is significantly overestimated. First, environmental public-interest litigation is a time-and-money-consuming process and based on the complexities of environmental cases, evidential proof constitutes a great burden for the plaintiff. When filing public-interest litigation, individuals are bound to be very prudent, so unrealistic lawsuits will be unlikely.129 Before public-interest litigation was clearly stipulated by the 2012 Civil Procedure Law, local governments had already made a series of incentive regulations and policies to encourage environmental public-interest litigation130 but the number of cases brought was still far below expectation.131 In addition, in terms of litigation, individuals are even less inclined than environmental organisations, possibly because of their poor financial position and their limited capability of obtaining evidence. Secondly, rooted in the traditional dispute resolution culture of Chinese society, people generally hesitate before bringing a lawsuit, as they are very wary of lawsuits and often have second thoughts when there are other dispute settlement methods. This is especially true when the litigation is not for the protection of a private interest, but for public interest.132 From their perspective, petitioning or protesting to the government may be more effective than litigation, based on the fact that government officials are evaluated by the senior levels of government on their ability to maintain social stability.133 Some scholars believe that considering the seriousness of China’s environmental problems and the fact that environmental public-interest litigation is still in its infancy, it is of major importance not to set barriers to individual’s standing. Instead, individual citizens should be encouraged to exercise their rights, thus contributing to the protection of the environmental public interest.134 Therefore, although individual’s standing for environmental public-interest litigation has no legal basis in China at present, it may be legally supported in China in the future. 5.2. Improvement of Support Mechanisms to Encourage Appropriate Lawsuits and to Curb Excessive Lawsuits Expansion of standing facilitates greater public participation in environmental public-interest litigation, while improvement of support mechanisms ensures the participation proceeds in an effective and orderly manner. 5.2.1. Improvement of incentive mechanisms to stimulate environmental public-interest litigation Compared with private-interest litigation, the more altruistic nature of environmental public-interest litigation determines that plaintiffs cannot gain direct economic benefits from such litigation, which together with the high costs and burden of proof, gives rise to a lack of motivation to participate in environmental public-interest litigation. Therefore, incentive mechanisms in terms of reducing the financial burden and burden of proof of plaintiffs, including those support mechanisms already provided in the judicial documents of the SPC,135 should be further emphasised and perfected to encourage actors to bring environmental public-interest litigation cases. At present, in the judicial materials released by the SPC, rules concerning the allocation of litigation costs are favourable to plaintiffs. Based on the application of a plaintiff who has difficulties in paying court fees, the court could approve the postponement of payment in accordance with the law.136 Where the plaintiff wins a lawsuit and requests the defendant to assume the assessment cost, a reasonable attorney’s fee and other reasonable expenses for litigation, the People’s Court could support such a request.137 Where the plaintiff that loses or partly loses the case applies for a reduction or exemption from paying court fees, the court should decide whether to grant permission or not in light of the plaintiff's economic situation and the trial details of the case.138 In judicial practice, there have already been cases applying such financial incentive rules. For instance, in ACEF v Zhenhua Co., Ltd. of Dezhou,139 in Shandong Province in 2015, the first air-pollution-related environmental public-interest case after the implementation of the new Environmental Protection Law, the Intermediate Court of Dezhou upheld the plaintiff’s request for payment of assessment fees by the defendant, although the claim for the defendant to pay the plaintiff’s attorney fee was overruled for lack of invoices and other payment certificates. Moreover, based on the complexity of environmental cases and the difficulties for disadvantaged plaintiffs in investigating and collecting evidence, appropriate litigation assistance has also been introduced to reduce the plaintiff’s burden of proof. The rule of ‘reversal of burden of proof’ in traditional environmental tort cases is also applied in environmental public interest litigation. That is, it is the defendant that shall assume the burden to prove that it should not be liable or its liability could be mitigated under certain circumstances as provided for by law or to prove that there is no causation between its conduct and the harm.140 In addition, the procuratorate, environmental protection agencies and capable social organisations could provide necessary assistance to the plaintiff, especially to individuals and social organisations by means of providing legal advice, submitting written opinions or helping with investigations and the gathering of evidence during the litigation.141 Such a litigation-support system would enhance the capability of disadvantaged plaintiffs in environmental public-interest cases. The great success of the significant award case (Taizhou Environmental Federation v Six Chemical Industries) discussed above, illustrates the efficacy of the procuratorate’s support in environmental public-interest litigation.142 For the protection of the environmental public interest, the courts should also be encouraged to help with investigation, collection of evidence and judicial identification when it deems necessary.143 Establishment of an exclusive fund for environmental public-interest litigation could constitute another source of strong financial support for the plaintiff, especially for social organisations without fixed sources of funding. The core funding may consist of damages paid by the losing defendants in environmental public-interest litigation, financial allocation from the government, and public donations. Local governments in Kunming City and Hainan Province have already established exclusive funds to support environmental public-interest litigation.144 In January 2015, with the support of the Alibaba Foundation, Friends of Nature also set up an exclusive fund, which effectively supported 10 environmental public-interest cases that year.145 The number of existing funds is, however, still very small and their sporadic and uneven geographic distribution limits the effectiveness of these funds in supporting public-interest litigation nationwide. Besides, the transparency and effective management of such funds is another issue remaining to be addressed. A unified environmental public-interest fund managed by a specialised foundation might be a better choice. Since the running of such foundations is subject to relevant laws and regulations, it can ensure the effective and transparent use of the fund in supporting plaintiffs during the lawsuit and in recovering the damaged environment after the lawsuit. In addition to the measures above, some other channels may also be explored to expand the financial resources of social organisations. For instance, social organisations that contribute greatly to the protection of environmental public interest can be rewarded from the coffers of the government. The government can also subsidize social organisations by purchasing services from them. Furthermore, local governments may consider incorporating environmental public-interest litigation into the legal aid system according to Article 10(2) of the Regulation on Legal Aid.146 5.2.2. Construction of excessive lawsuits preventive mechanisms Incentive mechanisms will motivate actors to bring environmental public-interest litigation, but they are not without their problems, because alleviation of the plaintiff’s burdens could also increase the likelihood of excessive and vexatious lawsuits. Such lawsuits will not only interfere with the work of environmental protection agencies and hamper the production of industries but also increase the court’s workload or even lead to a waste of judicial resources. As a result, a preventive mechanism adhering to the ‘losers pay principle’ and a pre-trial notification procedure has its appeal. According to the ‘losers pay principle’ as stipulated by the Measures on the Payment of Litigation Costs, the court fees of both parties will be borne by the party that loses the lawsuit, unless the party that wins the lawsuit bears the costs out of his/her own free will.147 This principle helps filter out vexatious lawsuits before coming to trial because it makes the potential plaintiff consider the likelihood of winning the case based upon such factors as the adequacy of the evidence and justifiability of his claims. Therefore, the ‘losers pay principle’ should continue to be the basic principle in environmental public-interest litigation. Out of the need to stimulate environmental public-interest litigation at present, judicial relief is provided to plaintiffs who have difficulties in paying court fees. For instance, postponement, reduction or exemptions of court fees are allowed, even when they lose the case.148 However, this will not lessen the efficacy of the ‘losers pay principle’ in preventing excessive lawsuits because when deciding whether to provide such judicial relief, the court will conduct a close examination at the trial of the case (such as the justifiability of the applicant’s claims) and the economic conditions of the applicant.149 A pre-trial notification procedure is another filter that could separate cases that could be settled before trial from those that should be taken to court. A pre-trial notification procedure requires that the plaintiff notify the alleged environmental protection agency or the polluter within a certain period before filing an environmental public-interest case,150 giving them a chance to to rectify their illegal activities and restore the damaged environment to its pre-injury condition, unless there is an emergency. Only when the latter fails to do so within the required period can the plaintiff bring litigation to the court. Such a mechanism substantially reduces the number of environmental public-interest cases pouring into the court, thus alleviating the workload of the court. In fact, a pre-trial notification procedure has already been applied in China before the procuratorate brings an administrative environmental public-interest litigation case151 and the relevant practices of procuratorates hitherto have already proved the efficacy of the pre-trial procedures.152 Under the circumstances that the standing for environmental public-interest litigation has been expanded to social organisations, administrative organs and procuratorial organs, and with the premise that incentive mechanisms have been well established, pre-trial notification procedure should not be limited to administrative public-interest litigation cases instituted by the procuratorial organs' but expanded to include all environmental public-interest cases whatever the plaintiff so as to prevent excessive lawsuits. 6. CONCLUSION Environmental public-interest litigation in China started as early as the beginning of the 2000s when local government took the initiative in establishing specialised environmental courts aiming to facilitate specialisation of the environmental judicature. But it was not until 2012 when the Civil Procedure Law of China was amended did it become the focus of the legislative process and arouse some public concern. Since then, a series of laws, regulations and judicial documents have been promulgated concerning the standing to sue. Article 55 of the 2012 Civil Procedure Law and Article 58 of the new Environmental Protection Law and subsequent materials of the SPC, conferred standing in environmental public-interest litigation cases upon social organisations and legally mandated administrative organs; the 2015 Authorisation Decision by the Standing Committee of the National People’s Congress rendered the procuratorial organs in 13 pilot regions eligible to institute environmental public-interest litigation. The standing of people’s procuratorate nationwide was finally established by the new amendments to the Civil Procedure Law and to the Administrative Procedure Law which came into force on 1 July 2017. So far, both the SPC and the Supreme People’s Procuratorate have released a series of model and guiding cases concerning environmental public-interest litigation as guidance to local courts, and the number of cases initiated has increased dramatically. However, there is no denying that environmental public-interest litigation in China at present is still at the preliminary stage. Several obstacles still exist in further liberalising the standing of social organisations and administrative organs, and the legal status of procuratorial organs in environmental public-interest litigation remains to be further clarified. Although individuals’ standing does not have any legal basis at present, for the sake of environmental protection and based on the successful practice in other countries, individuals may be authorised standing in China in these cases in the future. Several plaintiff-favorable incentive mechanisms have been adopted to reduce the financial and proof burden of plaintiffs, but there is room for further improvement. Lack of financial resources remains a big problem for social organisations at present. In addition, prevention of excessive and vexatious lawsuits is another issue that needs attention. This research, therefore, suggests that in order to encourage the role of environmental public-interest litigation in monitoring environmental law compliance and addressing China’s environmental crisis, the standing threshold is the issue that must first be dealt with and access to courts should be further expanded, not contracted. Specifically, the double-approval registration system, five consecutive years’ work experience, legislative inconsistency and other requirements that impede the functioning of social organisations should be suitably addressed. The scope of qualified administrative organs should be expanded from departments responsible for supervising the marine environment to all environmental administrative agencies responsible for environmental law enforcement so as to make the most of their financial, expertise and personnel support. Meanwhile, in order to fully motivate potential plaintiffs after access to environmental public-interest litigation has been granted, necessary support mechanisms must be further worked on. To be specific, except for the existing incentive mechanisms reducing the financial and proof burden of plaintiffs, various channels should be further explored to expand the financial resources of social organisations, such as the establishment of a nationwide public-interest litigation fund, government subsidies, or the government purchasing services from social organisations. In parallel with that, the ‘losers pay principle’ and pre-trial notification procedure should be applied to guard against excessive lawsuits. The field work is supported by the following projects: Science and Technology Project of State Grid Corporation of China, ‘Research on the Macro Strategy and the Key Issues of the Global Energy Network’ (Grant No SGSDDK00KJJS1600067); National Social Science Fundamental Project, ‘Research on the Sea Power Development Modes and the Strengthening of the Law of the Sea in China’(Grant No 17ZDA145). Footnotes 1 ‘Administrative organs’ in China, generally called ‘governments’, refer to the central and local governments and their subordinate functional departments. 2 Decentralisation means local governments are in charge of the environmental protection affairs within their jurisdiction. See Richard Ferris, Jr and Hongjun Zhang, ‘Reaching Out to the Rule of Law: China’s Continuing Efforts to Develop an Effective Environmental Law Regime’ (2003) 11 William & Mary Bill of Rights J569, 595 (discussing local protectionism that constitutes a challenge to the implementation of environmental law in China). 3 Daniel Carpenter-Gold, ‘Castles Made of Sand: Public-Interest Litigation and China’s New Environmental Protection Law’ (2015) 39 Harv Env L Rev 241, 243. See also Patti Goldman, ‘Public Interest Environmental Litigation in China: Lessons Learned from the U.S. Experience’ (2007) 8 Vermont J of Env L 251, 273 (stating that ‘inadequate financial resources, corruption, and unwillingness to confront local businesses may prevent governmental bodies from enforcing environmental laws against local enterprises that contribute to the local economy and wield political power’). 4 Goldman, ibid 253. 5 See Mingde Cao and Fengyuan Wang, ‘Environmental Public Interest litigation in China’ (2011) 19 Asia Pacific L Rev 217, 221. 6 Decision on the Implementation of the Outlook on Scientific Development and Strengthening Environmental Protection (State Council, 3 December 2005), art 27. 7 Civil Procedure Law of the People’s Republic of China (the Standing Committee of the National People’s Congress, 28 October 2007). 8 Zhiqiu Wang, ‘Environmental law Violations Leads to Both Civil and Criminal Liabilities: An Environmental Court Was Set Up in Guiyang’ (Official Website of the Ministry of Ecology and Environment of the People’s Republic of China, 22 November 2007). <http://www.zhb.gov.cn/hjyw/200711/t20071122_113254.htm> accessed 12 April 2018. 9 Civil Procedure Law of the People’s Republic of China (n 7) (the National People’s Congress, 9 April 1991), art 108(1); Administrative Procedure Law of the People’s Republic of China (the National People’s Congress, 4 April 1989), art 41(1). 10 Environmental Protection Law of the People’s Republic of China (2014 Revision) (the Standing Committee of the National People’s Congress, 24 April 2014). 11 Opinion of the SPC on Fully Strengthening Environmental Resources Trial Work to Provide Powerful Judicial Safeguards for Promoting Eco-Civilization Construction (the SPC, 23 June 2014); Opinion of the SPC on Giving Full Play to the Functions of Trial Work in Order to Provide Judicial Service and Safeguard for the Construction of Ecological Civilization and Green Development (the SPC, 26 May 2016). 12 Interpretation of the SPC on Several Issues Concerning the Application of Law in Civil Environmental Public-Interest Litigation (the SPC, 6 January 2015). 13 Up to June 2017, the SPC has released seven model cases and one guiding case on environmental public-interest litigation brought by social organisations. See Yongxiu Xue, ‘The SPC Publishes Nine Model Environmental Cases’ (China Court Net, 3 July 2014), including three cases brought by All-China Environmental Federation (hereinafter ACEF) <www.chinacourt.org/article/detail/2014/07/id/1329697.shtml> accessed 10 April 2018; ‘The SPC Released Model Cases on Environmental Tort’ (Official Website of the SPC, 29 December 2015), including three cases, respectively, brought by the ACEF, Friends of Nature and the Environmental Public-Interest Association of Changzhou City <http://www.court.gov.cn/zixun-xiangqing-16396.html> accessed 10 April 2018; ‘Model Cases on Environmental Criminal, Civil and Administrative Trial Work’ (Official Website of the SPC, 22 June 2017), including one case by the ACEF <http://www.court.gov.cn/zixun-xiangqing-48792.html> accessed 10 April 2018; ‘No. 75 Guiding Case of the SPC brought by China Biodiversity Conservation and Green Development Foundation’ (Official Website of the SPC, 3 January 2017) <http://www.court.gov.cn/fabu-xiangqing-34322.html> accessed 10 April 2018. 14 In this article, ‘procuratorial organs’ has the same meaning as ‘the procuratorate’, both of which refer to the prosecutor in criminal cases and the legally supervisory body of China. 15 See Decision of the Standing Committee of the National People's Congress on Authorizing the Supreme People's Procuratorate to Launch the Pilot Program of Initiating Public-Interest Actions in Certain Areas (the 15th Session of the Standing Committee of the Twelfth National People's Congress, 1 July 2015). 16 Plan for the Pilot Project of Reform of Instituting Public-Interest Litigation by the Procuratorial Organs (the Supreme People’s Procuratorate, 2 July 2015); Implementation Measures for the Pilot Program of Instituting Public-Interest Litigation Cases by Procuratorial Organs (the Supreme People’s Procuratorate, 24 December 2015). 17 Amendments were made to art 55 of the Civil Procedure law which includes the procuratorate’s standing in civil public-interest litigation, and to art 25 of the Administrative Procedure Law which provides the procuratorate’s standing in administrative public-interest litigation. 18 See art 55 of the new Civil Procedure Law (n 7); art 58 of the Environmental Protection Law (n 10); art 1 of the 2015 Interpretation (n 12); art 1 of the 2015 Implementation Measures (n 16). 19 See art 25 of the new Administrative Procedure Law (n 9); art 28 of the 2015 Implementation Measures (n 16). 20 See n 18. 21 See n 19. 22 The 2015 Interpretation (n 12) arts 18 and19; the 2015 Implementation Measures (n 16) art 16. 23 The 2015 Interpretation (n 12) art 20. 24 ibid art 21. 25 The 2015 Implementation Measures (n 16) art 43. 26 The 1991 Civil Procedure Law (n 9) art 108(1). 27 Wensong Zhang, ‘The Function Orientation and Rule Construction on Civil Environmental Public Interest Litigation Filed by Prosecutors: from the Perspective of Breaking the ‘Have a Direct Interest’ Rule’, (The Symposium of National Environmental and Resources Law Seminar, Shanghai, 17–20 July 2015) 345–52. 28 The 1989 Administrative Procedure Law (n 9) art 41(1); Administrative Procedure Law of the People’s Republic of China (2014 Amendment) (the Standing Committee of the National People’s Congress, 1 November 2014) art 25. 29 Civil Procedure Law of the People’s Republic of China (2012 Revision) (the Standing Committee of the National People’s Congress, 31 August 2012) art 55. 30 See English-language analysis of China’s environmental courts from Alex Wang and Jie Gao, ‘Environmental Courts and the Development of Environmental Public Interest Litigation in China’ (2010) 3 J Court Innov 377. 31 See Reply of the SPC with Regard to the ‘Report on the Circumstances of Establishing an Environmental Division by the People’s Court of Qiaokou District in the Wuhan Municipality’ (the SPC, 10 February 1989). 32 See n 6. 33 Qingzhen is a county-level city under the jurisdiction of Guiyang, the provincial capital of Guizhou Province. 34 See art 13 (stating that ‘courts with relatively high numbers of environmental protection dispute cases can establish environmental courts, to increase the specialization in adjudicating environmental protection cases and elevate the judicial capability for environmental protection’). 35 Hongjie Li, ‘The SPC Establishes Environmental Resources Division’ (People’s Court Daily, 4 July 2014) <www.court.gov.cn/zixun-xiangqing-6512.html> accessed 11 April 2018. 36 See China’s Environmental Resources Trial Work 2016-2017 (the White Paper) (the SPC, 13 July 2017). 37 See introduction of the case at ‘Guiyang Environmental Court adjudicated on the First Environmental Public Interest Litigation Case’<http://env.people.com.cn/GB/6731283.html> accessed 12 April 2018. 38 See the fifth of the nine typical environmental cases released by the Supreme People’s Court of China in July 2014 <http://legal.china.com.cn/2014-07/03/content_32847008_5.htm> accessed 12 April 2018. 39 See the first of the nine typical environmental cases released by the Supreme People’s Court of China in July 2014 <http://legal.china.com.cn/2014-07/03/content_32847008_5.htm> accessed 12 April 2018. For more discussion of the case from Jingjing Liu, ‘Environmental Justice with Chinese Characteristics: Recent Developments in Using Environmental Public Interest Litigation to Strengthen Access to Environmental Justice’ (2012) 7 Florida A & M Univ L Rev 229, 244–49. 40 Xue (n 13). 41 See n 29, art 119 (still requiring the plaintiff have a direct interest in the case). 42 There had already been some administrative regulations of the State Council and local governments mentioning environmental public-interest litigation, such as Decision on Implementing the Scientific Approach to Development and Strengthening Environmental Protection (the State Council, 3 December 2005), Guidance on Civil Environmental Public-Interest Litigation (For Trial Implementation) (the Environmental Protection Agency of Kunming City, 11 June 2011), and Guiyang Ecological-Civilization Regulations of 2010 (the Standing Committee of Guiyang People’s Congress, 14 January 2010). There were also some judicial documents concerning environmental public-interest litigation issued by local People’s Courts in Jiangsu, Yunnan and Guizhou Provinces. 43 Gang Qiao, ‘On the Qualified Plaintiffs in the Environmental Public-Interest Litigation’ (2013) 5 J of Political Science and L 71, 74. 44 Marine Environmental Protection Law of the People’s Republic of China (1999 Revision) (the Standing Committee of the National People’s Congress, 25 December 1999), art 90(2); Quanbing Xv, ‘Relative Issues Concerning the Procuratorate Bringing Environmental Public-Interest Litigation’ (2016) 3 J of National Prosecutors College 156, 168; Canfa Wang, ‘The Predicament Faced by Environmental Public-Interest Litigation and Solutions Thereof under the New Environmental Protection Law’(2014) 8 J of Law Application 46, 47. 45 For example, Minzhi Gao, ‘On the Interpretation and Application of Civil Public-Interest Litigation’ (People’s Court Daily, 7 December 2012) <www.chinacourt.org/article/detail/2012/12/id/799020.shtml> accessed 11 April 2018. 46 For example, Xiaoming Xi, Understanding and Application of Revised Articles in the Civil Procedure Law f China (People’s Court Press 2012) 94; Jinrong Huang, ‘Progress and Drawbacks on the Construction of Public-Interest Litigation System: Comments on art 55 of the Civil Procedure Law of 2012’ (2014) 2 Res Rule L 102, 103. 47 See Carpenter-Gold (n 3) 264 (taking as an example, Guiyang Ecological-Civilization Regulations of 2013 and Guizhou Province Regulations to Promote Ecological Civilization of 2014, to show that ‘jurisdictions that were previously very friendly to environmental public-interest litigation appear to be changing their regulations to match the new Civil Procedure Law’). 48 See ‘Environmental Federation’s Public-Interest Lawsuits Encounter an Awkward Position’ (China News Net, 3 April 2013) <http://news.xinhuanet.com/gongyi/2013-04/03/c_124537967.htm> accessed 11 April 2018. See also ‘Eight Environmental Public-Interest Cases Brought by Social Organizations Last Year Were All Rejected’ (China News Net, 28 February 2014) <www.chinanews.com/fz/2014/02-28/5897750.shtml> accessed 11 April 2018. 49 See n 10, art 58. 50 See n 11. 51 See n 12. 52 See n 13. 53 The 2014 Opinion (n 11) para 11. 54 ibid para 13. 55 ibid para 15. 56 ibid para 14. 57 The 2014 Opinion (n 11) para 15. 58 The 2015 Interpretation (n 12) art 2; art 2 of Regulation on the Administration of the Registration of Social Associations (2016 Revision) (the State Council, 6 February 2016) defines social associations as ‘voluntary groups formed by Chinese citizens in order to realise a shared objective according to their rules and to undertake non-profit activities’; art 2 of Interim Regulations on Registration Administration of Private Non-enterprise Units (the State Council, 25 October 1998) defines private non-enterprise units as ‘social organizations which are established by enterprises, institutions, associations or other civic entities as well as individual citizens using non-state assets and conduct non-profit social service activities’; art 2 of Regulation on Foundation Administration (the State Council, 8 March 2004) defines foundations as ‘the non-profit legal person established in accordance with this Regulation by using the property donated by natural persons, legal persons, or other organizations with the purpose of pursuing welfare undertakings’ . 59 Xuelin Zheng, Wenxue Lin and Zhanfei Wang, ‘Understanding and Application of Interpretation of the SPC on Several Issues Concerning the Application of Law in Civil Environmental Public-Interest Litigation’ (2015) 5 People Judicat 22, 24. 60 The 2015 Interpretation (n 12) art 3. 61 See n 59. 62 ibid. 63 The 2015 Interpretation (n 12) art 4. 64 No 75 Guiding Case of the SPC <http://www.court.gov.cn/shenpan-xiangqing-34322.html> accessed 11 April 2018. See civil retrial verdict of the case by the SPC <http://wenshu.court.gov.cn/content/content?DocID=76bd822b-0f85-4c65-a3a5-ccf40bb19a08&KeyWord=最高法民再47号> accessed 11 April 2018. 65 See civil judgment of the first instance of the case by the Intermediate People’s Court of Nanping City, Fujian Province, <http://wenshu.court.gov.cn/content/content?DocID=5cfeebbe-006b-463f-b12a-273a96d9ce94&KeyWord=福建省绿家园> accessed 11 April 2018; see civil judgment of the second instance of the case by the High People’s Court of Fujian Province, <http://wenshu.court.gov.cn/content/content?DocID=263d0415-cf8f-4839-ae8a-2493f4b7d4ec&KeyWord=福建省绿家园> accessed 11 April 2018. 66 The number of cases comes from China’s Environmental Resources Trial Work 2015-2016 (the White Paper) (the SPC, 27 July 2016) and China’s Environmental Resources Trial Work 2016-2017 (the White Paper) (the SPC, 13 July 2017) (n 36). 67 See Dun Li, Environmental Public-Interest Litigation Observation Report (Law Press of China 2015) 257. 68 Cao and Wang (n 5) 222; Feng Zhang, ‘Construction of the Subject Qualification of Procuratorial Organs in Environmental Public-Interest Litigation’ (2015) 1 J Pol Sci L 120, 120. 69 Constitution of the People’s Republic of China (2004 Amendment) (the National People’s Congress, 14 March 2004), art 129. 70 Organic Law of the People’s Procuratorates of the People’s Republic of China (1986 Amendment) (the Standing Committee of the National People’s Congress, 2 December 1986) art 1. 71 Jianguo Xiao and Zhongshun Huang, ‘On Basic Problems Concerning Environmental Public-Interest Litigation’ (2014) 4 J Law Appl 8, 9. 72 See n 64. See also ‘The Court Didn’t Accept Tengger Desert Pollution Public-Interest Litigation’ (China News Net, 21 August 2015) <www.chinanews.com/sh/2015/08-21/7480830.shtml> accessed 11 April 2018; ‘The Court Was Questioned for Not Accepting Environmental Public-Interest Litigation Case’ (Xinjing News, 22 August 2015) <http://gongyi.ifeng.com/a/20150822/41461594_0.shtml> accessed 11 April 2018. 73 For instance, local environmental protection agencies, which have the most detailed and accurate environmental protection data of a specific area. 74 For example, with the support of the Procuratorate, Taizhou Environment Federation instituted an environmental public-interest action against six chemical plants in Taizhou, Jiangsu Province in 2014, which were successful, resulting in punitive damages being awarded. This is one of the typical cases on environmental public-interest litigation in 2016 released by the SPC. See civil judgment of the second instance for Taizhou Environment Federation v Jiangsu Changlong Agrochemical Company and Others by the High People’s Court of Jiangsu Province <http://wenshu.court.gov.cn/content/content?DocID=cbccc8ce-76ac-49a4-a727-adcdc2053e24&KeyWord=泰州市环保联合会> accessed 11 April 2018. 75 Art 131 of China’s Constitution and art 9 of Organic Law of the People’s Procuratorates state that ‘the people’s procuratorates exercise procuratorial power independently in accordance with the provisions of the law, and are not subject to interference by any administrative organ, public organization or individual’. 76 Bo Han, ‘Combination of Strengths in Public-Interest Litigation System’ (2013) 1 Contemp L Rev 31, 36. 77 See ‘Civil Environmental Public Interest Litigation Is Rapidly Entering the Legal Society’ (Dazhong News Website, 12 June 2003) <http://www.dzwww.com/dazhongribao/shehuizhoukan/200306120166.htm> accessed 12 April 2018. 78 For instance, Opinion on Actively Performing Civil and Procuratorial Function to Strengthen Environmental Protection (the Procuratorate and Environmental Protection Bureau of Zhejiang Province, 27 August 2010). 79 See Communiqué of the Fourth Plenary Session of the Eighteenth Central Committee of the Chinese Communist Party (the Central Committee of the Chinese Communist Party, 23 October 2014). 80 See Reply to the Case of the Procuratorate of Hubei v Zhang Suwen for Return of State Assets (the SPC, 17 June 2004), which stated that it lacked the legal basis for the Procuratorate to file a civil suit for the protection of state assets and public interest. 81 Chengtang Chen, ‘Research on the Standing for Environmental Public Interest Litigation’ (2015) 2 Contemp L Rev 77, 84–85 (discussing conflicting views of Chinese scholars on procuratorial organs’ standing in environmental public interest litigation and contending that procuratorial organs should not be granted such standing). 82 See n 15. The13 pilot areas are Beijing, Inner Mongolia, Jilin, Jiangsu, Anhui, Fujian, Shandong, Hubei, Guangdong, Guizhou, Yunnan, Shaanxi and Gansu Provinces. 83 See n 16. 84 Notice of the SPC on Issuing the Measures for the Implementation of the Pilot Program of Trial by People's Courts of Public-Interest Litigation Cases Instituted by People's Procuratorates (the SPC, 25 February 2016). 85 The 2016 Opinion (n 11). 86 See judgment of the case by Dezhou Intermediate People’s Court <http://dzzy.sdcourt.gov.cn/dzzy/392189/392190/1446935/index.html> accessed 11 April 2018. 87 See judgment of the case from No 28 of the Supreme People’s Procuratorate’s Guiding Cases, <http://www.spp.gov.cn/zdgz/201701/t20170104_177546.shtml> accessed 11 April 2018. 88 See No 28-32 Guiding Cases of the Supreme People’s Procuratorate, <http://www.spp.gov.cn/jczdal/201701/t20170104_177552.shtml> accessed 11 April 2018. 89 See Jianming Cao, ‘Statement on the Draft Amendments to the Administrative Procedure Law and the Civil Procedure Law’ (at the 28th Plenary Session of the 12th Standing Committee of the National People’s Congress, 22 June 2017). <http://www.npc.gov.cn/npc/xinwen/2017-06/29/content_2024890.htm> accessed 19 July 2017. 90 ibid (through the efforts of procuratorial organs in pilot districts, 128,000 hectares of polluted or damaged farmland, forestland, wetland and grassland, and over 180 square kilometers of waters have been restored, over 1,400 polluting enterprises have been urged to rectify their business operations). 91 The 2014 Environmental Protection Law (n 10) art 58. 92 Regulations on the Administration of the Registration of Social Associations (n 58) arts 3(1) and 9(1); Interim Regulations on Registration Administration of Private Non-Enterprise Units (n 58) arts 3 and 8(1); Regulation on Foundation Administration (n 58) art 9(5). 93 Regulations on the Administration of the Registration of Social Associations (n 58) art 6(2); Interim Regulations on Registration Administration of Private Non-Enterprise Units (n 58) art5(2); Regulation on Foundation Administration (n 58) art7. 94 Mingyuan Wang, ‘On the Development Direction of China’s Environmental Public-interest Litigation: By Analyzing the Relationship Between the Administrative Power and the Judicial Power’ (2016) 1 China Legal Sci 49, 64–65; Xi Wang, ‘On the Legislation Order of Environmental Public-interest Litigation’ (2016) 6 Tsinghua Univ LJ 101, 106. 95 Xi Wang, ibid. 96 See Jianrong Qie, ‘Environmental NGOs May File an Administrative Environmental Public-Interest Action’, Legal Daily (Beijing, 21 March 2016) <http://news.xinhuanet.com/legal/2016-03/22/c_128820244.html> accessed 11 April 2018. 97 See n 19. 98 See Dalian Environmental Protection Volunteers Association, ‘The Marine Oil Pollution Case of 16th July Comes to an End’ (25 June 2015) <www.depv.org/index.php/qdhd/detail/item/1217.html> accessed 11 April 2018. 99 See ‘The First Maritime Public-Interest Litigation for Oil Spill in Bohai Bay Was Accepted and Finally Supported by the Court’ (29 July 2015) <www.jiemian.com/article/338574.html> accessed 11 April 2018. 100 ACEF, ‘Report on Chinese Social Organizations’ Development’ (2006) 10 Env Protect 60, 62. 101 ACEF and NRDC, ‘The Role and Function of social organizations in Environmental Public-Interest Litigation’ (China Development Brief, 11 November 2014) <www.chinadevelopmentbrief.org.cn/news-16773.html> accessed 11 April 2018. 102 See n 74. For a detailed analysis and commentary on the case, see Yijian Chen, ‘Promotion and Reflection on Environmental Public Interest Litigation: A Commentary on the Environmental Public Interest Case with Sky-High Award in Taizhou, Jiangsu Province’ (2016) 4 China Legal Sci 130. 103 See ‘Kunming: Social Organizations May Bring Environmental Public-Interest Litigation’ (People’s Daily Online, 26 November 2010) <http://politics.people.com.cn/GB/14562/13321426.html> accessed 11 April 2018. 104 See Huajun Yang, ‘Difficulties in Public-Interest Litigation’ China Weekly (Beijing, 4 April 2012) <http://chinaweekly.blog.sohu.com/248275977.html> accessed 11 April 2018. 105 See n 101. 106 ibid. 107 Dun Li (n 67) 262. 108 Different from damages collected from environmental public-interest litigation which are used for direct on-the-ground restoration, administrative fines are returned to the public coffers. See Law of the People’s Republic of China on Administrative Penalty (2009 Amendment) (the Standing Committee of the National People’s Congress, 27 August 2009) art 46 (3). 109 See n 43. 110 See n 44. 111 See Plan for the Pilot Project of Reform on Ecological and Environmental Damage Compensation System (the General Office of the Central Committee of the Communist Party and the General Office of the State Council, 3 December 2015), s 4(3) (stating that after being authorised by the State Council, provincial governments may claim for ecological and environmental damage compensation from violators); The 2016 Opinion (n 11) art 19. 112 See ‘Seven Provincial Governments Carried Out Pilot Program for Ecological and Environmental Damage Compensation System Reform’ <http://news.eastday.com/eastday/13news/auto/news/csj/20161109/u7ai6186991.html> accessed 11 April 2018. 113 The 2016 Opinion (n 11) art 19. 114 According to the 2015 Observation Report of Environmental Public-Interest Litigation by Friends of Nature, 25 administrative organs filed environmental public-interest litigation before 2015, see Dun Li (n 67) 244–45. 115 The 2015 Implementation Measures (n 16) art 15, 42. 116 For example, Feng Zhang (n 68) 126, Mingde Cao and Fengyuan Wang (n 5). 117 For example, Zhongle Zhan, ‘Promoting Environmental Public-Interest Litigation and Protecting Social Public-Interest Litigation’ <www.humanrights.cn/html/llyj/1/5/2017/0327/26571.html> accessed 11 April 2018; Hongkun Sun and Bojin Tao, ‘Two Perspectives on Procuratorial Organs Instituting Environmental Public-Interest Litigation’ (2013) 5 Oriental L 115, 121. 118 For example, Weijian Tang, ‘Analysis of Relevant Problems on the Pilot Project of Instituting Public-Interest Litigation by Procuratorates’ (2015) 8 Chinese Cadres Tribune 54, 54. 119 The wording in arts 18 and 25 of the 2015 Implementation Measures (n 16) shows the Supreme People’s Procuratorate regards procuratorial organs as a legal supervisor in public-interest litigation, while arts 10 and 23 of the Notice on Issuing the 2016 Measures (n 84) reflects the SPC considers procuratorial organs as ordinary plaintiffs having equal status with the defendant. See Zhongmei Lv, ‘Environmental Judicial Rationality Shall Not Be Limited to Shy-High Damages: Analysis of Taizhou Environmental Public-Interest Case’ (2016) 3 China Legal Sci 244, 249–50. 120 For examples supporting the standing of individual citizens, see Shijun Zhang, Standing for Environmental Public-Interest Litigation (Shandong Arts Press 2011) 269; Tao Bie, ‘Legislative Suggestions For China’s Environmental Public-Interest Litigation’ (2006) 6 J Chinese Univ Geosci (Social Science Edition) 4, 4; Shujie Qi and Yedan Li, ‘The Standing of the Plaintiff of US Citizen Suit and Its Inspiration’ (2009) 9 Hebei L Sci 161, 163–64; Zhiping Li, ‘Analysis on the Strength, Weakness and Order Selection of Plaintiffs in China’s Environmental Public-Interest Litigation’ (2010) 1 Hebei L Sci 21,21. For opposing opinions, see Rongxin Yang, Interpretation of the Civil Procedure Law of People’s Republic of China (Tsinghua University Press 2012) 96; Gaosheng Wu, Interpretation of and Application Guidance to the Civil Procedure Law of People’s Republic of China (China Democracy and Law Press 2012) 183. Yan Gao and Guilin Gao, ‘The Extension and Limitation of the Scope of Plaintiffs in Environmental Public-Interest Litigation’ (2011) 3 Hebei L Sci 153, 157. 121 Goldman (n 3) 269. 122 See Carpenter-Gold (n 3) 253–56. 123 Alex Wang, ‘The Role of Law in Environmental Protection in China: Recent Developments’ (2007) Vermont J Env L 195, 223. 124 For example, Shijun Zhang (n 120) 269; Tao Bi (n 120); Shujie Qi and Yedan Li (n 120) 4; Zhiping Li (n 120). 125 See Xiangfang Zhang and Huihuang Zhang, ‘Farmer Chen Faqing: A Virtuous Environmental Guardian Comparable to Don Quixote’ Youth Times (Hangzhou, 27 May 2005); Aqing, ‘Chen Faqing: A Farmer Trying to Awaken Environmental Awareness’ China Industry & Commerce News (Beijing, 31May 2005). 126 See Zhixiong Wu, ‘See Happiness and Anxiety over Public-Interest Litigation from Kuixi Jin Filing Against the Planning Bureau of Hangzhou’ (Nanfangnet, 29 November 2003) <http://www.chinacourt.org/article/detail/2003/11/id/93682.shtml> accessed 11 April 2018. 127 See ‘Teachers and Students from Pecking University Represented Songhua River to Filed Against Sinopec For 10 Billion Yuan, and the Court Did not Accept the Case’ (Sohu News, 22 December 2005), <http://news.sina.com.cn/o/2005-12-22/05307769580s.shtml> accessed 11 April 2018. See also the pleadings of the plaintiff at <http://green.sohu.com/20130718/n381992448.shtml> accessed 11 April 2018. 128 Rongxin Yang (n 120) 96; Gaosheng Wu (n 120); Yan Gao and Guilin Gao (n 120). See also Di Zhang, ‘Analysis of Individual Citizens’ Standing for Environmental Public-Interest Litigation’ (2013) 2 Academic Exchange 59, 61; 129 Wang (n 44) 49; Huang (n 46) 104. 130 For a practical example, see Interim Measures for Management of Kunming Environmental Public-Interest Litigation Fund (Municipal Government of Kunming, 1 December 2010). See also Wang (n 44) 49. 131 Just as some scholars said that there were no environmental public-interest litigation cases from which China’s environmental courts could fulfil their function. See Wanjun Liao, ‘What Do the Scarcity of Cases in Environmental Courts Indicate?’ (2011) 9 Environ Protect 20, 20. 132 Wang (n 44); Tao Bie, Environmental Public-interest Litigation (Law Press 2007) 89–91. 133 For instance, the Xiamen PX case in 2007, the Shanghai Maglev case in 2008 and the Panyu garbage incinerator case in 2009, well illustrated the effectiveness of organised protests in deterring undesirable projects and stopping ongoing environmental degradation. See ‘Xiamen Citizen Fought Against PX’ Sohu (Xiamen, 29 December 2012), <http://news.sohu.com/20071229/n254377491.shtml> accessed 11 April 2018; Royston Chan and Sophie Taylor,‘Hundreds Protest Shanghai Maglev Rail Extension’ Reuters (Shanghai, 13 January 2008) <www.chinapost.com.tw/china/local%20news/shanghai/2008/01/13/138821/Hundreds-protest.html> accessed 11 April 2018; ‘Is China’s Guangzhou Suspends Incinerator Project Until Environmental Assessments OK’ Xinhua (Beijing, 23 October 2009), <http://news.xinhuanet.com/english/2009-11/23/content_12524614.html> accessed 11 April 2018. Alex Wang, ‘China’s Environmental Tipping Point’ in Timothy Weston and Lionel Jensen (eds), China In and Beyond the Headlines (Rowman and Littlefield Publishers 2012) 125. See also Yan Fu, ‘Predicament and Solution: Functional Review of Allocation Rule of Environmental Public-interest Litigation Costs in China’ (2016) 5 J L Appl 80, 83. 134 See Zhang (n 120) 255. 135 The 2015 Interpretation (n 12) arts 11, 14, 22, 33; the 2014 Opinion (n 11) paras 13, 15. 136 The 2015 Interpretation (n 12) art 33(1); the 2014 Opinion (n 11) para 15. 137 The 2015 Interpretation (n 12) art22; the 2014 Opinion (n 11) para 15. 138 The 2015 Interpretation (n 12) art 33(2). 139 See civil verdict of the case by the Intermediate Court of Dezhou <http://wenshu.court.gov.cn/content/content?DocID=8904ca93-89c1-4c6b-bfb8-d21e15c91931&KeyWord=中华环保联合会> accessed 11 April 2018. 140 See art 66 of the Tort Law of China (the Standing Committee of the National People’s Congress, 26 December 2009, effective 1 July 2010). 141 The 2015 Interpretation (n 12) art 11; The 2012 Civil Procedure Law (n 29) art 15. 142 See n 75. See also Lv (n 119) 248 (emphasising the efficacy of procuratorial organs’ support for the plaintiff in terms of gathering of evidence and court argument during the litigation). 143 The 2015 Interpretation (n 12) art 14; the 2014 Opinion (n 11) para 13. 144 See Interim Measures for Management of Environmental Public-Interest Litigation Fund by Kunming Government (December 2010), and Interim Measures for Management of Environmental Public-Interest Litigation Fund co-established by the Finance Department and the High People’s Court of Hainan Province (September 2011). 145 Mingmin Zhang, ‘Dilemma of Public-interest Litigation to Break the Ice since the New Environmental Protection Law Came into Force Over One Year Ago’ Public-Interest Times (29 March 2016) <www.gongyishibao.com/html/yaowen/9505.html> accessed 11 April 2018. 146 Regulation on Legal Aid (the State Council, 16 July 2003) aims to provide legal aid to financially disadvantaged citizens by means of free legal services, including legal consultation, agency, criminal defense, etc. art 10(1) of the Regulation listed the situations where the legal aid can be applied for, and the second paragraph of this article authorises local governments to make supplementary provisions in terms of the legal aid matters. 147 Measures on the Payment of Litigation Costs (the State Council, 19 December 2006) art 29. 148 ibid arts 4, 44; nn 135–37. 149 See n 148, arts 48, 50; n 138. 150 For instance, in American citizen suit and in environmental public-interest litigation in Taiwan it is a 60 days’ period. See Clean Water Act of 1972 (US) [Pub L No 92-500, 86 Stat 816 (1972)], s 505(b)-(1); Air Pollution Protection Act of Taiwan (23 May1975) art 81; Waste Disposal Act of Taiwan (26 July 1974) art72. 151 The 2015 Implementation Measures (n 16) arts 40 and 41 (stating that ‘before the procuratorate institute an action against administrative agencies, they shall offer procuratorial suggestions to the relevant administrative agencies and urge them to rectify their illegal administrative acts or to perform their duties according to the law and only when the administrative organs refuse to rectify the illegal acts or perform their statutory duties within a month and public interest are still subject to infringement, may the procuratorate institute public interest litigation’). 152 See ‘The Supreme People’s Procuratorate Released Typical Case Concerning Pretrial Procedures for Environmental Public-Interest Cases Initiated by Procuratorial Organs’, The Procuratorate Daily (Beijing, 7 January 2016), <www.spp.gov.cn/zdgz/201601/t20160107_110536.shtml> accessed 11 April 2018. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Journal of Environmental LawOxford University Press

Published: Jun 2, 2018

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