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Chapter 9 examines environmental torts with a focus on the special rules and doctrines developed since the 1980s and under the Tort Law (2009) and relevant judicial interpretations of the SPC. Although most pollution-triggered disputes are resolved by mediation, courts offer the crucially important last resort for China’s most aggrieved and stubborn victims of pollution to seek remedies. Their efforts in seeking access to justice have helped shaping and reforming the rules and practice of environmental tort law to address the difficulties in the collection of evidence, assessment of damage, case acceptance by court, and enforcement of judgment. The chapter starts with exploration of the long journey to establish the rule of no-fault liability as an exception to the conventional fault-based liability by both judicial interpretation and legislation. It then examines the causal link between defendant’s acts and plaintiff’s loss or injury and the rule on the shift of burden of proof from plaintiff to defendant. As environmental torts often involve multiple tortfeasors and large number of victims, the chapter further investigates forms of liability among multiple tortfeasors, class action and remedies. It concludes with discussion of judicial mediation as a preferred option for settling disputes in court.
Chapter 11 examines environmental criminal law that aims to punish and deter unacceptable pollution to protect the environment and public health. Pollution used to be tolerated as a way of life. Now a distinction is drawn between ‘acceptable’ pollution by routine operation in compliance with state provisions and ‘unacceptable’ pollution in violation either intentionally or negligently committed to maximize financial gains. The latter is punished by administrative penalty or criminal sanction depending on the seriousness of circumstances. The chapter reviews early treatment of environmental crimes under the Criminal Law (1979), and examines the more sophisticated approach to environmental crimes under the Criminal Law (1997) including the crime of causing serious pollution accident, crimes relating to cross-border movement of waste and the crime of environmental dereliction of duty. It analyses the criminal law amendments on the crime of waste smuggling and the crime of environmental pollution. The chapter concludes with discussion of key issues of criminal law including legal person and natural person, fault-based liability, defences, sanctions balancing severe punishment with leniency, and liability of multiple parties jointly committing crimes.
Chapter 4 examines the development and operation of the environmental assessment legal regime, with a focus on the Environmental Impact Assessment Law (EIAL) (2018). Environmental impact assessment (EIA) evolved from a project-based pollution prevention instrument under EPL (for trial implementation) (1979) to a technical and statutory process that implements both the preventative principle and participatory principle for projects and plans under EIAL (2002). The chapter analyses project EIA, the statutory process that aims to incorporate both science-based evidence and public input for sound and well-informed decision making by the approval authorities. It further explores strategic environmental assessment (SEA) including the environmental assessment of government plans and policies. The importance of public participation in both EIA and SEA cannot be overstated and deserves in-depth examination for further improvement. The chapter concludes with comment on closer integration between SEA and project EIA to enhance both efficiency and effectiveness of the environmental assessment regime.
Chapter 7 examines waste management from collection, transport, storage to recovery and disposal under the Law on the Prevention and Control of Environmental Pollution by Solid Waste (SWL) (2016). Waste is potentially harmful to both the environment and human health if dumped or disposed of improperly without pollution control measures. But some waste may be recycled or recovered to become resources for production or consumption. The double nature of waste as environmental harm and potentially valuable resources has led to the waste management hierarchy, which gives priority to waste reduction, recycling and recovery over waste disposal by incineration and landfill. The chapter discusses key principles of waste management including the waste hierarchy, lifecycle management, proximity principle and polluter pays principle, and examines the command-and-control approach to waste management including standard-setting, monitoring, inspection and sanction. It further investigates different instruments to control pollution by industrial solid waste, municipal solid waste and hazardous waste respectively. The chapter concludes with discussion of waste import and China’s war against pollution by garbage import.
Chapter 1 introduces the environmental crisis in China including the scale and impact of its air pollution, water pollution, soil contamination and pollution by solid waste. The legal responses to the environmental challenge are discussed, focusing on key sources of environmental law including the Constitution; specialized environmental statutes that regulate and control pollution; civil, criminal, administrative and procedural laws that are of crucial relevance to environmental protection; state regulations and administrative rules that implement national laws; judicial interpretations that bind the courts and procuratorates in the adjudication and procuratorial work to ensure consistent application of environmental law; local regulations that implement national laws, regulations and plans at local levels; and international environmental treaties that China has ratified to become a party. The chapter concludes with an examination of the state and party policies and plans that have direct and authoritative influence on the development of Chinese environmental law.
Chapter 10 studies judicial review, widely known as administrative litigation in China, under the Administrative Litigation Law (ALL) (2017), which was first enacted in 1989. The command-and-control approach to pollution control grants wide-ranging powers to administrative agencies. They set standards, monitor performance and impose sanctions. Their acts or omissions directly determine the effectiveness of the environmental legal regime. Judicial review allows courts to check agency behavior to ensure good governance in pollution control and long-term sustainable development. While ALL (1989) has laid down the legal basis for injured parties to sue against unlawful agency acts or omissions, there have been tremendous obstacles for private parties to gain access to courts. The Law was amended in 2014 and 2017 to relax the statutory requirement on standing and expand the scope of judicial review. The chapter examines the issue of standing, the scope of judicial review, and judicial remedies. It concludes with discussion of the special challenges of administrative litigation in China.
Chapter 12 studies environmental public interest litigation (EPIL) including civil and administrative EPIL that aims to protect the public interest in a sound environment. It expands public participation in environmental governance and strengthens environmental law enforcement by allowing the public and procuratorates to play a more effective role in monitoring and supervising both polluters and agencies. The chapter starts with an examination of standing. That is, who are best suited to file EPIL to guard against environmental pollution and ecological destruction for public interest. It then explores China’s experiments with jurisdiction including the use of specialized maritime courts, newly established environmental tribunals, and jurisdiction by designation. It further analyzes the remedies including injunction of the polluting activities, elimination of harm, cleanup of contamination, compensation for loss of ecological function, compelling agency to perform statutory duties, and declaring agency’s acts or omission being unlawful. The chapter concludes with discussion of judicial mediation and the procedural guarantee to ensure the protection of public interest.
Chapter 2 examines key institutions involved in the making, implementation and enforcement of environmental laws, policies, regulations and plans. They are important players in the building and reform of environmental governance in China, which is a dynamic process involving interaction between the state and the civil society, and among different agencies, the procuratorates and the courts. This chapter investigates the evolving roles and functions of the people’s congress at national and local levels; the State Council and local governments; administrative agencies in charge of ecology and environment at national and local levels; other agencies involved in environmental protection and pollution control; the courts with a highlight of specialized environmental tribunals and judicial innovation to facilitate public interest litigation; the procuratorates and their new roles in environmental litigation beyond criminal prosecution; and environmental NGOs whose perseverance and commitment have made impact on public access to information and judicial redress.
Chapter 5 studies the regulatory control of air pollution under the Air Pollution Prevention and Control Law (APPCL) (2015) and relevant state plans and regulations including the 12th Five Year Plan on Prevention and Control of Air Pollution in Key Regions (2012), the Action Plan on Air Pollution Prevention and Control (2013), and the Three-Year Action Plan on Winning the Battle of Blue Sky Protection (2018). The chapter starts with a review of the statutory control of air pollution from APPCL (1987) and discusses fundamental principles and technical mechanisms. It examines the command-and-control approach to air pollution including standard-setting, government planning, and key mechanisms to prevent and control air pollution. It further investigates different tools targeting different sources of air pollution including stationary sources and mobile sources, highlighting the importance of regional cooperation and emergency response to heavy pollution weather conditions. The chapter concludes with discussion of strengthened environmental enforcement and sanction under APPCL (2015).