The city of Shenzhen has passed a new regulation that allows nonprofits to file lawsuits against polluters. The “Regulation of the Shenzhen Economic Special Zone on environmental public interest lawsuits” was passed by the Standing Committee of the Shenzhen Municipal People’s Congress, the city’s decision-making body, and is set to be enacted on the 1st of October 2020.
The 2015 amendment of the national Environmental Protection Law already allowed environmental nonprofits across China to initiate public interest litigations against polluting companies and bodies. For the time being however few such lawsuits have been unqualified successes. High costs and the possibility of being landed with exorbitant legal fees in case of defeat have deterred NGOs from going down this path.
The new Shenzhen regulation will make public interest litigations against polluters easier to carry out. It allows prosecutorial organs and relevant government organs, as well as social organisations, to file litigations in the environmental public interest. Importantly it also allow NGOs to defer or reduce their legal costs if they cannot afford them or if they lose the case. The newly-passed regulation is expected to reinforce the status of Shenzhen as a pilot city that will later become an example from which other cities in China can learn.
The new regulation sets seven categories for environmental public interest litigations: air pollution, water pollution, soil contamination, solid waste pollution, damage to the habitats of animals and plants and damage to marine ecosystems. The regulation allows for the prosecutorial organs, relevant administrative institutions and social organisations to all file litigations of environmental public interest. It also makes the rights and duties of the aforementioned three bodies clear: the prosecutorial organs should support or file environmental public interest lawsuits according to the laws and regulations; administrative institutions should file environmental public interest lawsuits that are related to their functions; and social organisations will be encouraged and supported to file environmental public interest lawsuits that are relevant to their mission and services.
Shenzhen has thus become a pilot city for allowing prosecutorial organs to institute litigations in the name of the public interest. Compared to the past, the new regulation is expected to further facilitate the work of the prosecutorial organs, including setting up a larger number of institutions to scrutinise and give recommendations for issues concerning the environmental public interest, allowing judicial police to assist the prosecutorial investigations and establishing a pre-litigation process for social organisations. It is also affirmed that prosecutorial organs can directly bring a lawsuit to the court if the case severely affects the environment and the public interest, even when the case is cross-practice and multi-jurisdictional in nature.
The original motivation behind the drafting of this regulation is to more effectively prevent existing and future pollution which will make it difficult to recover the damaged ecosystems. While the financial compensation that the courts can impose on polluters might be helpful to assist with ecosystem recovery, this will be insufficient to prevent similar cases from happening again. Inspired by the pollution control acts of countries in Western Europe and North America, the new regulation addresses this issue through a provision that, during the course of an environmental public interest litigation, the prosecutorial organs can appeal to the courts and relevant institutions to stop any actions that cause pollution and ecosystem damage immediately. In order to further reduce or prevent serious damage to the environment, activities that are at a significant risk of polluting the environment and damaging the ecosystem have been included into the realm of actions that can be stopped by order of the court.
The regulation also aims to strengthen the public’s right to know about environmental public interest litigations, and increase public participation in environmental issues and in the supervision of the government and legal mechanisms. It is stressed that once an environmental public interest lawsuit comes to a conclusion, the relevant information should be made available to the public. However, if within the term of the public announcement the plaintiff or the defendant consider the court’s judgement to be insufficient to protect the public and national interest, they will be able to make an appeal in written form.
Social organisations are another focus of the newly-passed regulation. Although the new rules make them one of the three main bodies that can institute environmental public interest litigations, social organisations have in fact frequently faced challenges when bringing cases to court. The reasons behind this include lack of experience with legal procedures, lack of legal experts, the high costs of litigations and lack of coordination between different actors. In order to support social organisations to play their role in defending the environmental public interest the regulation has adopted various measures, including allowing social organisations to seek legal assistance from prosecutorial organs and judicial administrative institutions in the process of drafting cases. If an organisation has difficulty affording the legal fees, the regulation allows it to postpone paying the fees. Social organisations that lose cases in court can request a reduction or a complete cancellation of the fees.
Moreover, the regulation establishes an environmental public interest fund to help repair ecosystems damaged by pollution, pay for investigations and evaluations of environmental damage and cover the litigation costs and contingent fees of the lawyers in environmental public interest cases. The funds will come from public donations and the compensation paid by polluters.