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An Unlikely Duet: Public-Private Interaction in China's Environmental Public Interest Litigation

Published online by Cambridge University Press:  21 June 2023

Ying Xia  and
Yueduan Wang
Ying Xia
Affiliation:
Faculty of Law, The University of Hong Kong (Hong Kong SAR, China). Email: yingxia@hku.hk.
Yueduan Wang
Affiliation:
School of Government, Peking University, Beijing (China). Email: wangyueduan@gmail.com.
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Abstract

Increasing research has been devoted to examining collaborations between public and private actors in environmental regulation under neoliberal democracies. However, this public-private interaction in authoritarian regimes remains understudied. This article seeks to address this gap in the literature through an empirical examination of the interaction between environmental non-governmental organizations (NGOs) and procuratorates in China's environmental public interest litigation. We find emerging complementarity: NGOs focus on new issues and target high-profile defendants to increase the socio-legal impact of their civil litigation, whereas procuratorates increasingly engage in administrative litigation against government agencies. This complementarity is shaped by the different legal opportunities for Chinese NGOs and procuratorates, as well as their respective institutional objectives and capacities. Their divergent regulatory preferences have also fostered synergy between these two actors, allowing them to collaborate on legal experimentation and innovation.

Keywords

Environmental lawChinaAuthoritarian environmentalismEnvironmental public interest litigationPublic-private collaboration
Type
Article
Information
Transnational Environmental Law , Volume 12 , Issue 2 , July 2023 , pp. 396 - 423
Copyright
Copyright © The Author(s), 2023. Published by Cambridge University Press

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Footnotes

We are very grateful to the many anonymous procurators who candidly shared their opinions and the three anonymous professors who generously helped us to arrange the interviews. The study has benefited from the helpful comments of He Xin, Qiao Shitong, Liu Zhuang, Zeng Si, and Hu Shixue, and anonymous reviewers for TEL. The research project is generously supported by the Early Career Scheme of University Grants Committee of the Hong Kong government (Project no. 27613822). All errors remain our own. Competing interests: The authors declare none.

References

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12 Since 2012, China's Civil Procedure Law has allowed ‘social organizations as prescribed by law’ to bring EPIL cases. However, because of a lack of clarity about what constitutes ‘as prescribed by law’, much NGO-led EPIL has been rejected by courts for lack of standing. Art. 58 of the revised Environmental Protection Law specifies the legal requirements for an NGO to become an eligible EPIL plaintiff and has since been frequently cited by Chinese courts to determine environmental NGOs’ standing: Environmental Protection Law of the People's Republic of China, Order 9, 24 Apr. 2014.

13 Decision of the Standing Committee of the National People's Congress on Amending the Civil Procedure Law of the People's Republic of China and the Administrative Litigation Law of the People's Republic of China, Order 71, 27 June 2017.

14 Y. Ma, ‘Vindicating Environmental Public Interests in China: A Balanced Approach to Institutional Interaction in Public Interest Litigation System’ (2019) 21(4) Environmental Law Review, pp. 269–91, at 276–9; H. Zhuang & S.A. Wolf, ‘Environmental Public Interest Litigation: New Roles for Civil Society Organizations in Environmental Governance in China’ (2021) 7(4) Environmental Sociology, pp. 393–406, at 404–5. In addition, some scholars have questioned the opportunistic behaviour of NGOs in EPIL and highlighted the risk of duplicative enforcement; see, e.g., L. Xie & L. Xu, ‘Environmental Public Interest Litigation in China: A Critical Examination’ (2021) 10(3) Transnational Environmental Law, pp. 441–65, at 458–60.

15 Y. Shi & B. van Rooij, ‘Prosecutorial Regulation in the Global South: Environmental Civil Litigation by Prosecutors in China Compared to Brazil’ (2016) 10(1) Regulation & Governance, pp. 44–57, at 46–7; Q. Gao, ‘“Public Interest Litigation” in China: Panacea or Placebo for Environmental Protection?’ (2018) 16(4) China: An International Journal, pp. 47–75, at 59–63; T. Zhai & Y.C. Chang, ‘Standing of Environmental Public-Interest Litigants in China: Evolution, Obstacles and Solutions’ (2018) 30(3) Journal of Environmental Law, pp. 369–97, at 387–8; C. Ding & H. Xiao, ‘A Paper Tiger? Prosecutorial Regulators in China's Civil Environmental Public Interest Litigations’ (2020) 32(3) Fordham Environmental Law Review, pp. 323–78, at 366–7.

16 Q. Gao & S. Whittaker, ‘Standing to Sue Beyond Individual Rights: Who Should Be Eligible to Bring Environmental Public Interest Litigation in China?’ (2019) 8(2) Transnational Environmental Law, pp. 327–47, at 346.

17 L. Xie & L. Xu, ‘The Successes and Obstacles of Environmental Public Interest Litigation in China: Findings from 570 Court Cases Brought by NGOs, Public Prosecutors and Local Government’ (2022) 34(1) Journal of Environmental Law, pp. 53–81.

18 D. Stockman, Media Commercialization and Authoritarian Rule in China (Cambridge University Press, 2013), pp. 23–8; B. Dickson, The Dictator's Dilemma: The Chinese Communist Party's Strategy for Survival (Oxford University Press, 2016), pp. 45–50; B. van Rooij, R.E. Stern & K. Furst, ‘The Authoritarian Logic of Regulatory Pluralism: Understanding China's New Environmental Actors’ (2016) 10(1) Regulation & Governance, pp. 3–13, at 4–7.

19 T. Moustafa, ‘Law and Courts in Authoritarian Regimes’ (2014) 10 Annual Review of Law and Social Science, pp. 281–99, at 289–92. For further discussion on this issue, see Section 4.1 below.

20 For the general evolution of policy experimentation in China, see S. Heilman, ‘From Local Experiments to National Policy: The Origins of China's Distinctive Policy Process’ (2008) 59 The China Journal, pp. 1–30; J. Teets & R. Hasmath, ‘The Evolution of Policy Experimentation in China’ (2020) 13(1) Journal of Asian Public Policy, pp. 49–59.

21 J. Teets, R. Hasmath & O. Lewis, ‘The Incentive to Innovate? The Behavior of Local Policymakers in China’ (2017) 22(4) Journal of Chinese Political Science, pp. 509–10; G. Kostka & J. Nahm, ‘Central–Local Relations: Recentralization and Environmental Governance in China’ (2017) 231 The China Quarterly, pp. 575–8.

22 C.L. Hsu & Y. Jiang, ‘An Institutional Approach to Chinese NGOs: State Alliance versus State Avoidance Resource Strategies’ (2015) 221 The China Quarterly, pp. 100–22, at 112–3.

23 Art. 55 of the revised Civil Procedure Law allows social organizations and responsible state agencies to initiate PIL relating to violations of environmental protection and consumer rights: Civil Procedure Law of the People's Republic of China (2012 Amendment), Order 59, 31 Aug. 2012.

24 In China, local experimentation is frequently used to gather information and mitigate potential risk for future rule making at the national level. In 2015, the National People's Congress authorized procuratorates in 13 provinces and municipalities to conduct experiments on bringing PIL. In 2017, the Civil Procedure Law and Administrative Litigation Law were revised to provide official standing for procurator-led PIL.

25 For detailed discussion of the EEDC system and its relationship with the EPIL system in China, see Xie & Xu, n. 14 above and Xie & Xu, n. 17 above.

26 ‘CCPCC member Liang Congjie, ‘Public Interest Litigation is Needed to Protect the Environment’, Sina, 2005, available (in Chinese) at: http://finance.sina.com.cn/chanjing/b/20050307/10061408480.shtml.

27 For examples see ‘Six Law Professors and Students Sued CNPC for 10 Billion Yuan on behalf of Songhua River; Court Refused to Hear the Case’, Sina, 22 Dec. 2005, available (in Chinese) at: http://news.sina.com.cn/o/2005-12-22/05307769580s.shtml; S. Jiangto, ‘Residents Vow to Take Toxic Spill Suit to Top Court’, South China Morning Post, 17 Dec. 2005, available at: https://www.scmp.com/article/529691/residents-vow-take-toxic-spill-suit-top-court; A. Wang, ‘Environmental Protection in China: The Role of Law’, China Dialogue, 5 Feb. 2007, available at: https://chinadialogue.net/en/pollution/745-environmental-protection-in-china-the-role-of-law.

28 State Council, Decision on Implementing the Scientific Development Outlook and Strengthening Environmental Protection (2015).

29 A.L. Wang & J. Gao, ‘Environmental Courts and the Development of Environmental Public Interest Litigation in China’ (2010) 3(1) Journal of Court Innovation, pp. 37–50, at 45–7.

30 Ibid.

31 Zhai & Chang, n. 15 above, p. 376.

32 L. Zhang et al., ‘Power Politics in the Revision of China's Environmental Protection Law’ (2013) 22(6) Environmental Politics, pp. 1029–35, at 1032–3; X. Zhu & K. Wu, ‘Public Participation in China's Environmental Lawmaking: In Pursuit of Better Environmental Democracy’ (2017) 29(3) Journal of Environmental Law, pp. 389–416, at 400–2.

33 Interviews NCLAPV02; NCGDF02; NFON01.

34 E.g., Zhongmei Lv, an environmental law professor who has served as a member of the National People's Congress (NPC) and CPPCC, has been advocating the right of NGOs to bring EPIL against government agencies since the mid-2000s: Z. Lv, ‘More Precise Policy-Making is Needed to Promote NGO-led EPIL’, China Environment News, 14 Mar. 2018, available (in Chinese) at: http://gongyi.people.com.cn/n1/2018/0314/c151132-29866362.html.

35 Gao & Whittaker, n. 16 above, pp. 342–3.

36 China Biodiversity Conservation and Green Development Foundation v. Ningxia Ruitai Science and Technology Co. Ltd, 28 Jan. 2016, (2016) Zui Gao Fa Min Zai No. 47, Supreme People's Court.

37 Interviews NCLAPV01; NCGDF02; NFON03.

38 NPC, Decision to Authorize SPP to Undertake Pilot Projects on Procurator-Led Public Interest Litigation Work (2015).

39 Administrative Litigation Law (2017 Revision), Art. 25.

40 ‘Procurator-Led PIL To Be Scaled up Nationally upon the Expiration of Trial in Thirteen Provinces’, Beijing News, 23 June 2017, available (in Chinese) at: http://www.xinhuanet.com//politics/2017-06/23/c_1121195696.htm.

41 Ding & Xiao, n. 15 above, p. 372.

42 SPP, Report on the Implementation of Procurator-led Public Interest Litigation (2019).

43 SPC & SPP, Interpretation of the Application of Law in Public Interest Litigation (2018).

44 SPP, Interim Guidelines on Procurator-led Civil Public Interest Litigation Work (2018).

45 13 (out of 31) provincial-level administrative jurisdictions in mainland China participated in the pilot scheme.

46 Based on official Chinese statistics, the authors estimate that by 2020, Chinese courts had registered about 520 NGO-led EPIL cases. Official statistics are available (in Chinese) at: http://politics.people.com.cn/n1/2015/1230/c1001-27992631.html; http://jzlsfy.chinacourt.gov.cn/article/detail/2019/06/id/4003211.shtml; http://www.court.gov.cn/zixun-xiangqing-228351.html; and http://www.gongyishibao.com/html/yanjiubaogao/2021/06/17749.html.

47 Because of limited access, however, we were unable to corroborate all statements made by interviewees.

48 Interviews NFOG01; NACEF01; NFON02; NCGDF02.

49 Interview NFON02.

50 Interviews NCGDF02; NFOC02.

51 Interviews NACEF01; NCGDF02; CGZ01. The case in question is ACEF v. Dingba Paper Manufacturers Co., 20 Jan. 2011, (2010) Case No. Qing Civil 4, Court of Qingzhen Municipality.

52 SPC, Judicial Interpretation on Several Issues concerning the Application of Law in the Conduct of Environmental Civil Public Interest Litigations (2015), Arts 15, 22.

53 Interviews NFON01; NCGDF01; NLC01.

54 Art. 9 of the General Provisions of the 2020 Civil Code states that civil relations shall be conducted in a manner that facilitates conservation of resources and protection of the ecological environment, an approach also known as the ‘green principle’.

55 Interviews NCGDF01; NCGDF02.

56 China Biodiversity Conservation and Green Development Foundation v. Yalong River Hydropower Development Co., Ltd., Decision of 17 Dec. 2020, (2015) Case No. Gan Civil 45, Intermediate People's Court of Ganzi Tibetan Autonomous Prefecture, Sichuan Province.

57 Interview NCGDF02.

58 Interviews NFON01; NCGDF02.

59 Ding & Xiao, n. 15 above, p. 342.

60 Interview NFON02.

61 Interview NDB01.

62 Interviews NCGDF02; NFON03.

63 Interview LGZ01.

64 Interviews NCGDF01; NCGDF02.

65 Administrative Litigation Law, Art. 3: ‘The person in charge of the sued government agency should appear before court and respond to the claims’. In practice, the SPC has interpreted this article to include situations in which a government agency is listed as a third party: SPC, ‘Provisions on the Requirement for Head of Government Agencies to Appear before Court’, 23 June 2020, available (in Chinese) at: https://www.court.gov.cn/zixun-xiangqing-238121.html.

66 Interview NCGDF02.

67 Shi & van Rooij, n. 15 above, pp. 54–5; Ding & Xiao, n. 15 above, pp. 375–8.

68 SPP, Report on the Implementation of Procurator-Led Public Interest Litigation, n. 42 above.

69 For examples of this critique, see Shi & van Rooij, n. 15 above, p. 52; Ding & Xiao, n. 15 above, p. 342; R. Zhang & B. Mayer, ‘Public Interest Environmental Litigation in China’ (2017) 1(2) Chinese Journal of Environmental Law, pp. 202–28, at 217.

70 A. Lora-Wainwright et al., ‘Learning to Live with Pollution: The Making of Environmental Subjects in a Chinese Industrialized Village’ (2012) 68 The China Journal, pp. 106–24.

71 SPP, Report on the Implementation of Procurator-Led Public Interest Litigation, n. 42 above.

72 Interview NCDGF02.

73 Interviews PLJ04; PHB02; PBJ01.

74 Interview PJL02.

75 Interview PJL04.

76 Interviews PJL01; PSD01.

77 SPP, Report on the Implementation of Procurator-led Public Interest Litigation, n. 42 above.

78 SPP, Model Cases from the First Two Years’ Implementation of Procurator-Led Public Interest Litigation, 10 Oct. 2019, available (in Chinese) at: https://www.spp.gov.cn/spp/xwfbh/wsfbh/201910/t20191010_434047.shtml.

79 H. He, ‘Concurrent Review of Normative Documents by Chinese Courts’ (in Chinese) (2021) 3 China Legal Science, pp. 139–63, at 149–52.

80 SPP, Rules for the Handling of Public Interest Litigation Cases by People's Procuratorates (2021).

81 Interview PJL04.

82 Interview PHB08.

83 Interviews PSD01; PSD02.

84 Interview PHB01.

85 Interview PJL08.

86 Interview PJL02.

87 Interview PJL08.

88 Interviews PGZ01; PJL05.

89 G. Kostka, ‘Command Without Control: The Case of China's Environmental Target System’ (2016) 10(1) Regulation & Governance, pp. 58–74, at 64–5.

90 A. Mertha, ‘China's “Soft” Centralization: Shifting Tiao/Kuai Authority Relations’ (2005) 184 The China Quarterly, pp. 791–810, at 802–5; B. Wen, ‘Old Problems and New Dilemmas: The Conundrum of Environmental Management Reform in China’ (2020) 22(2) Journal of Environmental Policy & Planning, pp. 281–99, at 293–4.

91 Y. Wang & Y. Xia, ‘Judicializing Environmental Politics? China's Prosecutor-Led Public Interest Litigation against the Government’ (2023) 253 The China Quarterly, pp. 90–106.

92 Y. Sun & H. Fu, ‘Of Judge Quota and Judicial Autonomy: An Enduring Professionalization Project in China’ (2022) 251 The China Quarterly, pp. 1–22, at 13–7; Y. Wang, ‘Overcoming Embeddedness: How China's Judicial Accountability Reforms Make Its Judges More Autonomous’ (2019) 43(3) Fordham International Law Journal, pp. 737–66, at 754–60.

93 SPP, Report on the Implementation of Procurator-Led Public Interest Litigation, n. 42 above.

94 Interviews NCGDF02; NACEF01; NFON01.

95 Interview NACEF01; NFON02; NCGDF03.

96 Interviews NFON02; NACEF01.

97 Interviews NFON03; PJL05.

98 Interviews NFOG01; NLC01; NDB02.

99 Interviews NFON02; NGYEEC02; NLC02.

100 Interviews NCGDF02; NCLAPV02.

101 Interviews NCLAPV02; PBJ01.

102 Interviews PJL01; PJL06.

103 Interview PJL04.

104 Van Rooij, Stern & Furst, n. 18 above, p. 5.

105 Interviews PSD01; PHB04; PBJ02; PGZ03.

106 Interviews PBI02; PHB01; PJL03; PGZ01.

107 S. Lv, ‘Facilitate the Construction of an Accessible Environment with Procurator-Led Public Interest Litigation’, available (in Chinese) at: http://www.npc.gov.cn/npc/c30834/202105/5545e1bdf3bf4aeea2b3e402e2279791.shtml.

108 Interview PHB08.

109 Interviews PHB02; PSD01; PSD02

110 Interview PBJ01.

111 Interview NFON02.

112 Interview NFON03.

113 Gilley, n. 6 above, pp. 289–91; X. Gao & J. Teets, ‘Civil Society Organizations in China: Navigating the Local Government for More Inclusive Environmental Governance’ (2021) 35(1) China Information, pp. 46–66, at 50–1.

114 SPC, Judicial Interpretation on Several Issues concerning the Application of Law in the Conduct of Environmental Civil Public Interest Litigations (2015).

115 Although the 2020 Civil Code provides punitive damages as a remedy for environmental tort claims, whether this rule can be applied to EPIL remains debated. Professor W. Liming, a prominent scholar in the drafting of the Civil Code, is among those opposed to expanding the application of punitive damages; see W. Liming, ‘Punitive Damages Cannot Be Applied in Civil EPIL’ (2021), available (in Chinese) at: http://www.lawsky.org/show.asp?id=739. Others, however, have expressed support for applying punitive damages in EPIL; see Z. Lv et al., ‘How Punitive Damages Rules Can Be Applied in EPIL’, China Civil and Commercial Law, 2 Sept. 2021, available (in Chinese) at: https://www.civillaw.com.cn/bo/zlwz/?id=37956.

116 SPC, Interpretation concerning the Application of Punitive Damages in Ecological and Environmental Tort Dispute Litigation (2022).

117 Interview CGZ01.

118 ibid.

119 Interviews CGZ01; PBJ02.

120 ‘Jiangxi Explores a New Model of Judicial Protection of Ecological Environment’, available (in Chinese) at: http://rmfyb.chinacourt.org/paper/html/2022-01/13/content_212997.htm?div=-1.

121 So far, such cooperation and synergy is observed mainly in civil EPIL because of the legislative and political constraints on NGO engagement in administrative EPIL. Though our interviews did find some examples in which NGOs referred case leads on administrative EPIL to procurators and urged the latter to bring administrative litigation, there is no consistent evidence to suggest that procurators had responded to or complied with such requests.

122 Gilley, n. 6 above, p. 289; Teets & Hasmath, n. 20 above, pp. 51–3; Gao & Teets, n. 113 above, p. 59.

123 Wang, A., ‘Explaining Environmental Information Disclosure in China’ (2018) 44(4) Ecology Law Quarterly, pp. 865–924Google Scholar, at 886–9.

124 Interviews NACEF01; NCGDF01.

125 Rajah, J., Authoritarian Rule of Law: Legislation, Discourse and Legitimacy in Singapore (Cambridge University Press, 2012), pp. 7–13CrossRefGoogle Scholar; Zhang, T. & Ginsburg, T., ‘China's Turn Towards Law’ (2019) 59(2) Virginia Journal of International Law, pp. 306–89Google Scholar, at 313–4.

126 Moustafa, n. 19 above, pp. 289–92.

127 Kim, J., Stern, R.E. & Liebman, B.L., ‘Closing Open Government: Grassroots Policy Conversion of China's Open Government Information Regulation and Its Aftermath’ (2022) 50(2) Comparative Political Studies, pp. 319–47CrossRefGoogle Scholar, at 334–6.

128 Fu, H., ‘The July 9th (709) Crackdown on Human Rights Lawyers: Legal Advocacy in an Authoritarian State’ (2018) 27(112) Journal of Contemporary China, pp. 554–68CrossRefGoogle Scholar.

129 Interviews NCLAPV02; NGYEP03.

130 Interview NCGDF02.

131 Interview NFON02.

132 Cui, W., Cheng, J. & Wiesner, D., ‘Judicial Review of Government Actions in China’ (2019) 1 China Perspectives, pp. 35–44CrossRefGoogle Scholar, at 40.

133 Gao, n. 15 above, pp. 59–63; Ding & Xiao, n. 15, p. 361–2; Gao & Whittaker, n. 16 above, p. 346.

134 Interviews NDB01; NDB02; NCLAPV02.

135 Interviews CGZ01; PGZ01; NGYEP03.

136 Shi & van Rooij, n. 15 above, pp. 56–7.

137 Zhang & Ginsburg, n. 125 above; Geall, S. & Ely, A., ‘Narratives and Pathways Towards an Ecological Civilization in Contemporary China’ (2018) 236 The China Quarterly, pp. 1175–96CrossRefGoogle Scholar, at 1194–5.

138 Gilley, n. 6 above, pp. 289–92.

139 Zhu & Wu, n. 32 above; Xie, L., ‘Environmental Governance and Public Participation in Rural China’ (2016) 30(2) China Information, pp. 188–208CrossRefGoogle Scholar.

140 Shen & Jiang, n. 9 above, pp. 61–2; Wang & Xia, n. 91 above.