Draft Tort Law now available for public comment
The 11th meeting of the 11th National People’s Congress Standing Committee has finished the third review of the draft Tort Law. The full text of the draft law has been put on the official website of NPC for public comment. Members of the public are welcome to submit their comments by logging on to www.npc.gov.cn or by sending the comments in hardcopy to the following address:
Law Office of National People’s Congress Standing Committee, No. 23 Xijiao minxiang, Xicheng District, Beijing, 100805.
The deadline for submission of comments is December 5, 2009. Please note that the Chapter 8 of the draft law deals with the environmental pollution liabilities. The full text of the draft law can be found here.
Links and Related News:
China Law Blog thinks the tort law revisions will have no impact.
NRDC’s GAO Jie comments on the proposed revisions in the Daily Environment Reporter:
Revised Version of Pollution Liability Law
Released for Review by Chinese Congress
BEIJING—A proposed final version of China’s Tort Liability Law, which includes four articles on environmental liability, was posted on the National People’s Congress website Nov. 6 and will be open to public comment until Dec. 5.
This would be the third version of the Tort Liability Law. In Chapter 8, the environment section, language from the previous version was dropped that said liability could be imposed even if an alleged pollution sources was in compliance with government standards. Since consideration of the law is part of the 11th Five-Year Plan (2006-2010), legal experts expect the revised version to be adopted within the next several months.
According to Chinese legal experts, during the review of the previous version it was suggested that Chapter 8 be removed and that provisions about compensation for environmental damages be moved to Chapter 4, the Special Provisions for Responsible Parties chapter. However, lawmakers decided Chapter 8 should remain a separate chapter.
“That the environmental tort still stands as a separate chapter shows that the importance and uniqueness of environmental tort is well-accepted by the legislative authorities,” said Gao Jie, a former Beijing municipal judge and now environmental law expert at the Natural Resources Defense Council in Beijing.
Language Revised
In Chapter 8, Article 65 states, “Polluters should take responsibility for damages caused by the pollution of the living environment and ecological environment.” This is an improvement on the last draft, experts said, since it elaborates on the term “environment” and could open up the possibility of adding cleanup costs and monetary damages to future environmental liability cases.
Article 66 is a “shifting of the burden of proof” provision that is virtually identical to Article 4 of the Supreme People’s Court (SPC) 2001 interpretation on civil evidence rules, and probably the most controversial provision in the environmental tort section, experts told BNA.
Under the provision, polluters are responsible for proving under the law that there are situations that would leave them with no liability or very little liability, and must prove that there is no causal link between the polluter’s actions and environmental damage caused.
Burden of Proof
Understanding and implementation of the high court’s interpretation of this provision has varied widely, experts said. Courts usually do not accept the verbal reading of the SPC’s interpretation because they “are concerned that any damage could be claimed to be caused by some pollution, even actions with the remotest connections to the harm caused, because the word-by-word reading of the provision will require the polluter or emitter to prove there is no linkage, and it is extremely difficult to provide that evidence,” Gao said.
“The courts tend to understand that the injured plaintiff should have responsibility for providing prima facie evidence about the likelihood that the polluter’s actions caused the damage and the polluters provide evidence to refute that link,” Gao said. “If the polluters fail to refute, then it is assumed their actions did cause the damage and they are liable for compensation.”
Article 67 is similar to Article 66, but refers to cases in which more than one polluter is identified and says they are liable if they “can’t prove there was no causal relationship between their actions and the environmental damage.” In these cases, the scope of liability would depend on what types and the amount of pollutants that were discharged.
Article 68 remains the same as in the previous version. It states that plaintiffs can claim compensation “from polluters or a third party, if the environmental damage was caused by a third party.” This article adopts strict liability in which polluters can be liable for damages even if those damages were not caused by their actions.
As with Article 66, legal experts are concerned about how Article 68 would be applied in practice, as it would increase liability for polluters and emitters. It might be “too innovative,” one legal analyst said.
The latest version, however, eliminated language that declared polluters could be held liable for damage from pollution releases even if those releases complied with government standards. Had that provision remained, compliance could only have been used as a defense against administrative penalties.
By Michael Standaert
Full text of the Tort Liability Law is available, in Chinese, at http://www.npc.gov.cn/npc/xinwen/lfgz/flca/2009-11/06/content_1525914.htm.
Xue Huifeng, NPC Environment and Resources Committee Director of Law, discusses air pollution prevention
China’s Atmospheric Pollution Prevention and Control Law is under review for amendment this year, the first amendment since 2000. Given the intense attention paid to air pollution in China in recent years and the urgent need to tackle climate change, the direction that China will take in this air pollution control law amendment will be of the utmost importance. We’ll be posting news and insight into the thinking of key players in China in the coming months as information becomes available. China Environmental News published an article on January 4, 2009 that took a deep and insightful look at air pollution prevention efforts in China. The article’s author was Xue Huifeng, the Director of the Department of Law for the National People’s Congress Environment and Resources Committee’s and also a professor and PhD adviser at Northwest Industrial University and Xi’an Science and Engineering University. Dr. Xue’s committee has been a leading proponent of stronger air pollution regulation. The article examines air pollution from four different aspects: the dangers of air pollution, the primary causes of air pollution, challenges to prevention efforts, as well as management of prevention strategies down the road.