Environmental Public Interest Litigation in China

I. IntroductionPublic interest litigation is a special type of lawsuit which is brought to the court by an individual, organisation or agency to prevent harmful behaviour (including the behaviour of citizens, legal persons and organisations, government authorities, mass organisations, etc) which may unreasonably damage public social or personal interests and to investigate its corresponding liability. Public interest litigation aims to help some groups to sue when their fundamental rights are at risk and they cannot otherwise do so because of their incapability, poor financial state or unfamiliarity with the law.1The case of Scenic Hudson Preservation Conference v Federal Power2 may be considered the first case of this type. The court's ruling in that case opened the way for citizen standing and announced a set of environmental principles that were soon captured in legislation.3 The United States is thus considered to be the founder of modern public interest litigation.4 India, however, was the first country to introduce a public interest litigation system, which is considered to have achieved greater success than the United States and has its own characteristics.5In many countries, public interest litigation is currently an effective mechanism to suppress violations of environmental laws.6 By its very nature, American citizen litigation in environmental law is one kind of environmental public interest litigation.7 In India, any person or social organisation has the right to bring any public interest litigation without proving its direct relationship to environmental damage.8 Countries such as Germany and France often adopt class actions in public environmental lawsuits and grant various groups standing as plaintiffs.9At present, there is considerable discussion about the definition of environmental public interest litigation in China within academia and among practitioners. Several typical views are as follows. First, environmental public interest litigation is litigation that aims at protecting the environment. Environmental protection organisations dedicate themselves to fight against illegal activities of polluting factories that affect the environment.10 Second, the term 'environmental public interest litigation' means that any citizen, legal person, State organ or public organisation may bring a lawsuit to the court when the environmental public interest is damaged.11 Third, environmental public interest litigation is litigation in which the plaintiff is not self-serving but acts for the public interest, with the purpose of halting the damaging activities or invalidating the administrative permission, and in which the users or licensers of natural resources are defendants.12 Fourth, environmental public interest litigation is litigation in which any citizen, legal person, State organ or public organisation may sue, when they think there are activities that have caused or are likely to cause significant environmental harm, to protect the environment and natural resources by themselves, on behalf of the State, and to request the court to order an injunction or provide financial compensation for the environmental damage.13From the above definitions, the characteristics and nature of environmental public interest litigation can be observed. It is easy to see that the first opinion focuses on a typical type of environmental public interest litigation - the environmental NGO as plaintiff in the litigation - but it cannot cover all the issues of standing. The second view emphases the importance of plural standings, but it fails to consider the behaviour which threatens the environment. Although the particular purposes of environmental public interest litigation are emphasised by the third view, the damage which may be caused by abstract administrative actions is ignored. The fourth opinion attaches conditions or requirements for undertaking environmental public interest litigation (such as that the subject matter should be very serious and severely effects the environment and economic activities), but the limitation contained in the phrase 'have caused or are likely to cause significant environmental harm' cannot very well reflect the preventative nature of environmental public interest litigation. …