Examining the Judicial Guide” to Yunnan’s Breakthrough Regulations for Environmental Protection Cases
In a previous blog entry, we introduced the Yunnan Environmental Court Forum, held by the Yunnan High Court on May 13. In addition to a affirming a commitment to promoting environmental courts across Yunnan Province, the forum’s Minutes also act a judicial guide to environmental protection cases in Yunnan. In this article, we look at this new Judicial Guide and examine the breakthroughs made for environmental protection cases—especially environmental public interest litigation cases.
Standing: The issue of standing is the top concern addressed in the Minutes. According to the Minutes, “only the procuratorate and non-profit social organizations, who are both legally registered in China and committed to environmental protection, are allowed to file litigation to court as a plaintiff; environmental public interest cases lead by individual citizens shall, for the moment, not be accepted by the court.” The biggest improvement we have now is the ability for environmental protection organizations to have standing as plaintiffs.
Previously, the answer to the question of standing remained unclear; we noted in an earlier blog post about public interest litigation in Wuxi that there was much publicity regarding the possibility of permitting environmental organizations to act as plaintiffs when the Wuxi court just opened. But so far, there have been no environmental public interest cases accepted by Wuxi EP court, nor has there been clear affirmation in its regulations that such organizations are allowed to act as plaintiffs in public interest litigation cases. In addition, the Guiyang EP Court document neither denies nor affirms the standing of environmental protection groups. Therefore, the Yunnan court becomes the first court to issue legal documents affirming the standing of environmental protection organizations as plaintiffs.
This clarification, however, does not mean all problems have been solved, as the issue of individual citizens’ standing still exists with some people expressing the view that individuals’ standing as plaintiffs should not be denied. Another problem concerns the standing of Environmental Protection Bureaus (EPBs). Yunnan excluded EPBs from the plaintiff list, their reasoning being that, according to existing laws, the EPBs already have the authority and responsibility for environmental law enforcement. Thus the environmental protection authorities might actually end up being defendants in environmental public interest litigation rather than plaintiffs, which is not what the Kunming Environmental Court originally had in mind.
Types of Cases： The environmental protection court will accept multiple types of environmental cases. They could be criminal, civil, and administrative cases, including both administrative litigation and non-litigation administrative enforcement cases. However, the court will not accept civil and administrative litigation cases concerning natural resources. This regulation also authorized the “three-in-one” mode of trial. In addition, the explicit exclusion of natural resource cases demonstrates China’s serious lack of judicial resources, which means that the Yunnan Minutes will basically only deal in a step-by-step manner with the two issues of pollution prevention/control and ecological resources. The most urgent issue that must be addressed first, however, is the issue of water pollution.
Burden of Proof and Litigation Fees: Along with the issue of standing, the issues of burden of proof and litigation fees have also been discussed in the field of environmental litigation and environmental public interest litigation for many years. These two topics have been covered moderately in the Yunnan Minutes, which primarily reflects the mainstream views that have emerged in recent years. In other words, there have been clear regulations on the reversal of the burden of proof for normal cases of environmental damage. Because the effects of public interest litigation cases influence society as a whole, there will be no litigation fees for cases brought about by procuratorial authorities or environmental protection organizations.
We saw some extremely innovative judgments in Yunnan that were raised in the Minutes and are worth mentioning here. One type is the injunction judgment: when a polluting enterprise causes damage to the environment, the plaintiff can request that the court prohibit the defendant from taking certain actions. Another new type of judgment is tree replanting. As Xu Qianfei, the president of the Yunnan High Court introduced, the local courts in Yunnan shall be encouraged to explore new judgment mechanisms under the scope of what is allowed by the legal conditions. For example, a court could issue a decision ordering tree replanting by defendants (corporate or individual) in cases of forest damage.
These two types of judgment can easily be found in some international practices of environmental law. For example, the injunction judgment, the typical equity remedy method of the United States, aims to achieve the result that monetary compensation might not be able to reach. As for tree replanting, a very similar system can be found in the Supplementary Environmental Projects (SEP) prescribed in the environmental laws of the United States. These systems have proved effective in the international practice of environmental protection. The use of these legal mechanisms in Yunnan is really innovative, especially when there is still no regulation in place at the national legislative or judicial level.
News Links (Chinese):
“Establishment of Environmental Protection Tribunals in Yunnan Province’s Courts”
“Environmental Courts Come to Yunnan Yunnan Information News”
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[...] In addition to a common plaintiff, both cases are pending before newly created special environmental divisions within China’s judicial system. 1 These courts have developed special standing rules as has been very thoroughly detailed in a very helpful post by Greenlaw. [...]