Written by Alba Iranzo Dosdad and Carlota Ruiz-Bautista
Environmental Public Interest Litigation has played an important role in the enforcement of environmental law across the world. In August 2016 we visited China in order to get a better insight into the opportunities and barriers that environmental and social organisations face when seeking access to justice.
On 25 June 1998, the UNECE Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters was adopted in Aarhus, becoming a unique and legally binding international instrument. The convention gives the general public specific rights on access to environmental information, participation in decision-making and access to justice with regards to environmental matters. This Convention, to which the European Union (EU) is a Party since 2005, lays the foundations of the so-called “Environmental Public Interest Litigation” (EPIL). The correct implementation and enforcement of the Aarhus Convention provisions has become a priority for many environmental organisations around the world, such as the International Institute for Law and the Environment (IIDMA), based in Spain, where we work as lawyers.
Even though we must take into account the particularities inherent in the social, political and economic context of each nation, when comparing EPIL systems, it is generally understood that even if certain environmental laws exist, they become meaningless if they are not backed with effective enforcement.
In China, on the other hand, there has not been a legal basis for Environmental Public Interest Litigation until very recently. The country’s urgency to address environmental problems, such as air and water pollution, led to the approval of the new Environmental Protection Law of the People’s Republic of China (EPL), which came into force on 1 January 2015. It revised, for the first time, the previous law enacted in December 1989. The 2015 EPL has entailed a significant step towards environmental protection in China, recognising NGOs as eligible parties to bringing a lawsuit before national courts. In particular, Article 58 of the EPL entitles Chinese NGOs to initiate legal proceedings against polluters on behalf of the public interest, even if they do not have a direct interest in the suit. However, such standing is subject to the fulfilment of specific conditions detailed below.
The timing of our exchange in Beijing through the Stiftung Asienhaus EU-China NGO Twinning programme was crucial. With less than a year having passed since the enactment of the Chinese EPL, this was a unique opportunity to research the EU’s EPIL system, identifying the key differences and challenges posed. There was no doubt that 2015 represented a turning point in China’s environmental protection journey. Just one year after the EPL had been approved, up to 42 cases were filed by Chinese NGOs before national environmental courts.
Understanding the functioning of EPIL systems in such different countries, with clearly distinguished legal systems, is not an easy challenge. EPIL systems in China and Europe operate under different legal proceedings; while EPIL is ruled by a civil judicial procedure in China, in Spain it follows an administrative judicial one. Nonetheless, our research visit to China, which included several meetings with Chinese environmental protection groups such as Friends of Nature (FON), or the Center for Assistance on Pollution Victims (CLAPV), allowed us to discover key differences in terms of the opportunities and barriers faced by NGOs when seeking access to justice in environmental related issues.
Firstly, as a result of our research we could clearly see that the standing requirements before courts for NGOs in China are more restrictive than in Europe. Rules on EPIL concerning who may qualify as a plaintiff were very vague under previous Chinese law. With the new 2015 EPL, Chinese NGOs seeking to file a suit before courts against acts that pollute the environment or cause ecological damage are required to be legally registered with the Civil Affairs Agencies. They must also have been engaged in public service activities in environmental protection for five consecutive years, without any record of having violated laws. It is worth noting that the EU and Spanish legislation also require NGOs to meet a series of requirements).
Another major challenge relates to the high costs of accessing justice. At the time of our visit, despite there being around 700 NGOs in China which are entitled to bring an action to the courts according to the Chinese plaintiff requirements, there are only about 30 which have the financial ability to do so. This differs from the EU, and particularly from Spain, where there is the possibility for NGOs who comply with the requirements of Article 23 of Law 27/2006 to be exempted from judicial costs and qualify for free access to justice. However, there is still much work to be done to achieve the full implementation of this right, as can be seen in the request made to Spain at the sixth session of the Meeting of the Parties to the Aarhus Convention.
Another clear difference between the two countries’ application of the EPIL system relates to the identity of the defendants. While EPIL cases in China are generally directed at suing private companies responsible for environmental damage, the EPIL system in Spain only allows it indirectly, by seeking the Public Administration to initiate in certain cases an environmental liability procedure against such corporations. As a matter of fact, EPIL cases in Spain are mainly aimed at suing the Public Administration for negligent acts or omissions regarding environmental matters. Such a possibility is not allowed for NGOs under Chinese law, since it has been left entirely in the hands of the procuratorates.
Even though we must take into account the particularities inherent in the social, political and economic context of each nation, when comparing EPIL systems, it is generally understood that even if certain environmental laws exist, they become meaningless if they are not backed with effective enforcement. There are still many barriers to accessing justice, both in China and in the EU, that need to be removed if there is a real willingness to protect the environment.