A new force in China’s environmental public interest litigation

There is a new force in China's burgeoning environmental public interest litigation. ClientEarth's Senior Lawyer, China office, Wanlin Wang  and Head of ClientEarth's China office Dimitri De Boer explore the impact of country's procuratorates on the country's environmental landscape.

China’s procuratorates (similar to state prosecutors) are playing an increasingly significant role in environmental public interest litigation. By the end of 2018, over 3,000 km² of damaged lands and water sources were restored, with over 10,000 polluted facilities ordered to be rectified or closed. China’s Supreme People’s Procuratotare held a press conference on the progress in this work right after the Chinese New Year, signalling that this continues to be a top priority.

The move was based on a successful pilot program started in July 2015, when the procuratorial organs in 13 provincial areas were authorised to initiate public interest litigation. During the two years of experiments and trials, the procuratorates launched over 2,000 public interest legal challenges in areas such as ecosystem and environment protection, natural resource protection, food and drug safety, and rights to use state-owned land.

The pilot program resulted in the revision of two fundamental codes in China (Civil Procedure Law and Administrative Procedure Law) in June 2017, in which the procuratorates’ right to launch such litigation was formally enshrined.

In July 2018, President Xi Jinping endorsed the establishment of specialised procuratorate departments to handle public interest litigation. This move will likely lead to a sustained volume of such cases in the coming years. Between January and November 2018, the public interest litigation handled by prosecutors numbered over 89,000, among which about 55% were environmental lawsuits. It marks an important step towards law-based governance.

There are about 700 environmental NGOs in China that are qualified to bring public interest litigation. However only a handful actually bring such cases, due to barriers of financial and human resources, perceived political risk, and lack of familiarity with legal tools. Also, Chinese law doesn’t allow NGOs to bring cases that target environmental violations by government (only companies).

Under such circumstances, the prosecutors serve as an important supplementary force – one of the key features for public interest litigation by procuratorates is that around 90% of cases were brought against government agencies, with the remainder against companies. This fits the unique role of the procuratorates.

Another feature of public interest lawsuits by prosecutors is the high rate of successful pre-litigation proceedings. Before a procuratorate can file a public interest case in court, they must first send a “warning notice” to the government agency, reminding the agency to fulfil its legal obligations and rectify the situation.

Two months are usually given to the authorities to make corrections, or 15 days for urgent cases. During the pilot program, over 75% of government agencies rectified their measures after receiving such warnings. For instance, in Asake, Gansu province, as soon as the procuratorates got involved, 17 industrial plants that had produced asbestos pollution for over 60 years were shut down by the local environment agency.

In the period of January to November 2018, the success rate of pre-litigation proceedings increased to over 94%. This helps to raise the efficiency of the system, because it means that prosecutors don’t need to take the case to court, which requires a lot of additional work. It also saves time for judges.

ClientEarth has worked with the Supreme People’s Procuratorate to support these reforms. Since 2016, we have jointly organised a series of overseas study visits, seminars, and training on environmental prosecution with the Supreme People’s Procuratorate. We have supported delegations of senior Chinese environmental prosecutors in annual exchanges with their European counterparts in 2016, 2017 and 2018.

In every case, the prosecutors made recommendations to their leadership on their return. We also jointly held several international seminars with the Procuratorate in China in 2016 and 2017, and jointly organised a high-level training seminar in Beijing in 2018.

Despite the rapid progress and impressive results, public interest litigation is still rather new to the procuratorates, and also to the government departments who are faced with legal warnings and court cases.

Although many prosecutors have enhanced their abilities in the past three years, further raising their overall capacity remains a priority. Having teams of prosecutors who specialise in environmental cases is a major opportunity to strengthen environmental rule of law. ClientEarth will continue to intensify its cooperation with the Supreme People’s Procuratorate.