Wuxi City Releases Regulation on Environmental Public Interest Litigation
Wuxi
The Wuxi Environmental Court, the first and only Environmental Protection court that has openly called for public interest cases brought by NGOs and individuals, was recently placed under the spotlight once again after Wuxi city released a regulation on environmental public interest litigation. This regulation is said to be the first local regulation of its kind in China and was warmly welcomed by environmentalists seeking to take environmental public litigation from theoretical discussion into reality.
The Wuxi regulation introduces a quite innovative system, by which the Procuratorate urges relevant government agencies to fulfill environmental protection responsibilities by bringing lawsuits before the court. Under this procedure, if an environmental protection department fails to respond to the actions that constitute violations of environmental laws, the procuratorate is entitled to send suggestion letters to the environmental protection department, urging them to take actions against the violations. If the procuratorate finds that the environmental protection department has taken administrative punishment measures, but the damages are not sufficiently addressed by these measures, the procuratorate is entitled to urge the environmental protection department to bring suits in court. Although news media reports have not clarified what kind of lawsuits these will be, at a minimum the lawsuits will be suits where the Environmental Protection Bureau are plaintiffs rather than defendants. In many of these new suits, the defendants will not be polluting enterprises.
Academics have submitted many proposals for implementing environmental public interest litigation over recent years, including ideas on the procedure to follow should the EPB fail to take action for violations of environmental laws. In particular, some academics have proposed that citizens or environmental groups should sue the local EPB in court. The Procuratorate’s urging of local environmental departments to bring suits achieves a similar effect by pushing EPBs to take action. However, we can notice at least two differences between these two designs. First, the Wuxi regulation only explicitly permits the Procuratorate to bring environmental public interest litigation; citizens and environmental groups are not included under the regulation. Second, the Wuxi regulation provides procedure for the Procuratorate to urge a local EPB to take administrative actions or to bring suit against the polluters through sending suggestion letters; the Procuratorate cannot bring suit against an EPB in the courts. From an article published in China Environmental News, it seems that the Procuratorate could also step in and sue the polluters when EPBs refuse to bring suits even after they are urged to do so. But even if this is true, the regulation still does not provide options to sue EPBs as one way to prompt them to fulfill their responsibilities.
It is also worth noting that, under the Wuxi regulation, the remedy awarded by the court is a monetary remedy measured by the amount of environmental damage, rather than an amount dictated by the court injunction. In contrast to the notion of citizen suits in the United States, in Chinese courts the victims are usually not considered to be legitimate plaintiffs for citizen suits, and no damages are awarded by courts. The Wuxi regulation, however, authorizes pollution victims to join environmental public interest litigation as third parties. Monetary damages for them will also be part of the judgment or settlement agreement of these suits. This reflects one of the differences in the basic legal systems of China and the U.S. While the U.S. system resolves the damage disputes brought by the pollution victims in common law suits and leaves the public interest litigation to citizen suits under statute, China needs to address both problems in a single system.
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