List of Major Changes in Environmental Public Interest Litigation Interpretation from Draft

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This is done in great haste, but here’s a quick list of the major changes in the SPC interpretation on Environmental Public Interest Litigation versus the draft version released earlier in the order the appear, not the order of importance. There are of course many more minor linguistic changes.

Removal of “Polluters” in favor of “defendants” throughout.

Article 2: Change in reference for definition of social organizations from Civil Procedure Law Art. 55 to the Environmental Protection Law Art. 58.

Article 3: county level governments removed.

Article 4: Dropped mention of EPL requirement for social organizations continous engagement in public interest environmental activities. Duration requirement still in law, just doesn’t need interpretation- unlike ‘engage in public interest environmental activities.

Article 5: Language added to make clear that disqualifying past legal violations of a social organization should relate to its work.

Article 6: Added additional court jurisdiction category based on location of the defendant

Expressly states power of higher court to designate jurisdiction where it is contested.

Article7: Removed cap of 5 intermediate courts that may be appointed to have jurisdiciton of Environmental Public Interest cases within a jurisditional region, allowing that ‘some’ intermediate courts may be given the authority.

Article 8: Added additional requirements for social organizations filing public interest suits to provide proof of their registration, qualification under the law.

Article 9: Removed express mention of a courts’ conducting a review before determining that it will sua sponte add additional demands for relief against the defendants to protect the public interest.

Article 10: Added clause telling other plaintiffs seeking to join the suit as a result of their individual harms to separately file suit.

Article 11: Removed the clause calling for consulting entities to be listed as “supporters of the litigation “ (like Amicus) , but still allows for their consultation.

Article 13: Added clause calling for presumption against the defendant where defendant does not turn over documents they are legally required to retain , and plaintiff makes adverse allegations.

Article 15: New clause allowing for calling expert witnesses (persons with specialized knowledge) on specialized and scientific issues, and allowing that this may be relied on in findings of facts.

Article 16: Changed a “may” to “shall”.

Article 18: Added article on possible demands that may be made against the defendants.

Article 19: New language allowing compensation for preventative measures takend by plaintiff before or during litigation.

Article 20: New language allowing that the courts may determine costs of ecological restoration and use this as either a valuation of defendant’s failure to perform restoration or as a direct damages verdict.

Article 21: Allows compensation for lost use or services due to ecological harm, lasting until restoration is complete

Article 22: Allows compensation for costs of litigating.

Article 23: Added additional factors for consideration in determining value of ecological restoration, including the cost of operation equipment that would prevent pollution and the defendants’ degree of fault in creating harms, and also allows for consultation with relevant regulatory departments.

Removed consideration of the type of pollutant released (likely considered in degree of harm anyway).

Article 24: New article insisting that funds recovered from defendant shall be used for restoring the ecology.

And separately adding that some of the funds may be used to pay expenses incurred by plaintiffs in losing public interest law suits. This would seemingly encourage public interest litigation generally.

Article 25: Regarding settlements and mediation, made court announcement of agreement more immediate.

Added language that court should review settlements to ensure they are not against the public interest. Specifies content of court issued mediation document to ensure a clear understanding of harms and resolution.

Article 26: Inverted language so as to allow for greater preservation of public interest law suits: previously discussed that court may dismiss suits not withdrawn by plaintiffs whose demands have been met; now says that courts may approve plaintiffs’ application to withdraw suits in this situation. Same spirit, different emphasis.

Article 27: New language instructing courts to generally continue with suits that have already had in-court debate, even where the plaintiff seeks to withdraw.

Article 28: Allowing new litigation to be filed for newly discovered harms

Article 29: Change that clarifies that ‘relevant organizations’ means social organizations.

Article 30: Added opportunity for defendant to provide evidence refuting presumptive upholding determinations by courts in other cases relating to same incident;

Article 33: Added discussion of reducing the litigation fees of losing plaintiffs.

Article 34: Removes dismissal of the case from possible punishments for social organizations unlawfully profitting from public interest cases, in seeming recognition that the public interest might still benefit from the case.

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