SPC Interpretation on Public Interest Environmental Litigation (comment draft)

The time for comments begins October 1, 2014 and will be for one month, all areas of the community may submit specific proposals for revising the 'Draft for Solicitation of Comments' by mail or email. Specific reasons should be given when making recommendations. Written comments may be sent to the Supreme People's Court Environmental Resources Division at 27 E. JiaoMin Lane, Dong Cheng District, Beijing China, 100745 [北京市东城区东交民巷27号，最高人民法院环境资源审判庭，邮编100745]; e-mails may be sent tozgfyhzt@sina.cn.

http://www.court.gov.cn/gzhd/zqyj/201409/t20140930_198250.htm

The Supreme People's Court Interpretation on Several Issues Regarding the Application of Law in Public Interest Environmental Civil Litigation

(Draft for solicitation of comments)

This interpretation is drafted on the basis of the "Civil Procedure Law of the People's Republic of China," "Environmental Protection Law of the People's Republic of China," "Tort Law of the People's Republic of China," "Marine Environmental Protection Law of the People's Republic of China," and other laws and regulations, so as to correctly hear civil cases of environmental public interest litigation.

Article 1: (Conditions for initiating litigation)
Where institutions and related organizations provided for by law file suit in accordance with the provisions of Article 55 of the Civil Procedure Law, Article 58 of the Environmental Protection Law or other laws, against actions polluting the environment or disrupting the ecology that have already harmed the public interest or have a significant risk of harming the public interest; and where the case meets provisions of article 119(2) and 119(3) of the Civil Procedure Law; the people's courts should accept it.

Article 2: (Types of social organizations)
Social organizations that are registered with the civil affairs departments in accordance with the provisions of laws and regulations; such as social groups, private non-enterprise units, and foundations; may be considered "relevant organizations" as provided for by Article 55 of the Civil Procedure Law.

Article 3: [The range of civil affairs departments at the sub-districted municipality level and above]
People's government Civil Administration departments of sub-districted municipalities, autonomous prefectures, leagues', regions or prefecture-level cities without sub-districts, counties, or higher of direct-controlled municipalities may be considered "people's government civil affairs departments at or above the sub-districted municipality level" as provided for in Article 58 of the Environmental Protection Law.

Article 4: (The definition of 'specially engaging in environmental protection public interest activities for five or more consecutive years')
Social organizations established five or more years ago whose articles of incorporation identify the primary objective and scope of the organization’s work to be protection of the public interest and performance of environmental protection public interest activities, they may be considered “specially engaging in the performance of public interest environmental activities for five or more continuous years” as provided for in Article 58 of the Environmental Protection Law .
The public interest involved in litigation initiated by social organizations should have a link to its objectives and operational scope.

Article 5: (Determination of having no record of illegal activity)
Where a social organizations have not been subject to administrative or criminal penalties as a result of violating laws or administrative regulations within five years, they may be considered as “having no record of legal violations” as provided for in Article 58 of the Environmental Protection Law.

Article 6: [Jurisdiction]
Civil environmental public interest cases of the first instance fall under the jurisdiction of the Intermediate People’s Court for the area where the polluting conduct or destruction of the ecology occurred or where its harmful consequences occurred.

Upon approval from the Supreme People’s Court, High People’s Courts may, on the basis of the actual situation of environmental and natural ecosystem protection in their jurisdictions, determine one to five Intermediate People’s Courts in their jurisdiction to accept civil environmental public interest cases. The jurisdiction regions for which the Intermediate People’s Courts handle civil environmental public interest cases is determined by the High People’s Court.

Where an Intermediate People’s Court determines there is a real need, after applying for approval to the High People’s Court, it may rule to transfer trial of a first instance civil environmental public interest case over which it has jurisdiction, to a basic level people's court.

Article 7: [Materials that should be provided by plaintiffs in initiating litigation]
The following documents shall be submitted in initiating environmental civil litigation:

1. A copy of the original complaint, in accordance with Article 121 of the Civil Procedure Law, with enough copies to be given to each of the defendants.

2. Evidence attesting that the defendants' behavior has already violated the public interest, or presents a great risk of violating the public interest.

Where social organizations initiate litigation, they should also submit to the People’s Courts the organization’s registration certificate, articles of incorporation, the organization's work reports or annual reviews from the continuous five-year period prior to filing the litigation, and declaration of having no record of legal violations during the past continuous five years signed and sealed by the organization’s legally-designated representative or responsible party.

Article 8: [ Court Interpretation]
Where following a people's court’s review of a plaintiff’s request, it finds that the plaintiff’s claims are not sufficient to protect the public interest, it may make interpretative changes or add claims such as for stopping the infringing behavior and restoring the environment to its original state.

Article 9: (Announcement of case acceptance and participation in the proceedings)
After accepting a civil environmental public interest case, the People’s Court should send a copy of the complaint to the defendant within five days of filing the case, and publicly announce the acceptance of the case.
Where other institutions and related organizations provided for by law apply to participate in the litigation within 30 days of the date of the public announcement, and upon review meet the statutory requirements, the people's court shall list them as a co-plaintiff; where applications are later than this period, they will not be approved.. Where citizens, legal persons, or other organizations apply to join the litigation on the grounds of harm to their person or property, inform them to file a separate action.

Article 10: (Supporters of the Action)
Where procuratorate organs and departments with responsibility for environmental protection oversight and management, as well as other government organs, social groups, enterprises or public institutions support social organizations initiating civil environmental public interest litigation by providing legal consultation, written opinions, assistance in the examination and collection of evidence or other mean; People’s Courts may list them as “supporters of the action.”

Article 11: [The Intersection of Public Interest Litigation and Administrative Oversight]
After accepting a civil environmental public interest lawsuit, the People's Court shall, within ten days, notify the governmental department responsible for environmental protection oversight and management of the defendant.

Article 12: [Burden of Presentation of Evidence]
The plaintiff shall have the burden of presenting evidence on the existence of conduct polluting the environment or destroying the ecology and its harms, and should explain the connection between the conduct and the harm.

The defendant shall be responsible for providing references to relevant laws and policies that demonstrate that the defendant does not bear responsibility, or mitigates the alleged responsibility. The defendant shall also be responsible for producing evidence that demonstrates that there is no relationship between the alleged environmental damage and the defendant's actions.

Plaintiffs shall bear the responsibility of producing evidence that demonstrates the causal link between acts of pollution and the harm caused to the natural environment when the defendant in an action possess a valid permit for discharge of pollutants and can produce evidence demonstrating the discharge levels are in accordance with the requirements of the permit.

Article 13: [Consequences for Refusal To Provide Environmental Information]
Where the plaintiff requests that the defendant provide environmental information such as the names of the primary pollutants discharged, the means of discharge, the concentration and quantity discharged, circumstances of excess discharge, equipment for preventing pollution and pollution transport, and the there is evidence showing that the defendant has it but refuses to provided it; then if the plaintiff makes assertions about this informational content adverse to the defendant, the people's court may make a presumption that the plaintiff's assertions have been established.

Article 14: (Ex officio evidence attainment and appraisal commission)
Where people's courts that find it is necessary, they shall investigate and gather evidence needed for trial of civil public interest environmental lawsuits.
Where it is truly necessary to conduct an appraisal of facts for which the plaintiff bears the burden of presentation of evidence, people's courts may retain a credentialed appraiser to conduct the appraisal.

Article 15: [Restrictions on Plaintiff Admissions]
Where, during the course of legal proceedings, the plaintiff affirms evidence or concedes adverse facts and the people's court finds it harmful to public interests, it may withhold confirmation of that evidence or facts.

Article 16: [Restrictions on Defendant Counterclaims]
Where in the course of civil environmental public interest lawsuit trials, the defendant submits a a claim as a counterclaim, the people's courts will not accept it.

Article 17: (Methods for Bearing Liability)
For actions polluting the environment or damaging the ecology which harm the public interest, people's courts may make judgments that the polluter undertake civil responsibility such as to stop the violation, clear obstructions, eliminate threats, restore original states, compensate losses and/or formally apologize.

Article 18: (Methods of Bearing Preventative Responsibility)
Where plaintiffs request a stop of the violation, clearing of obstructions or elimination of risks, so as to prevent the occurrence or expansion of ecological of environmental harm; people's courts may support it.

Article 19: (Methods of Bearing Restorative Liability)
Where the plaintiff requests a restoration to original states, the people's courts may make judgment in accordance with law that the polluter restore restore the environmental ecology to the state and function it was in before the harm occurred. Where full restoration is not possible, other substitute restorative means may be employed.

People's courts making a judgment to restore the original ecological state, may simultaneously confirm the costs for ecological restoration, and those costs include fees for formulating and implementing a restoration plan, and management fees.

Article 20: [Methods of Undertaking Compensatory Liability]
The range of losses compensated by polluters includes:

(1) loss of service functions during the period of ecological environmental restoration;
(2) emergency disposal costs;
(3) inspection and appraisal fees;
(4) costs such as reasonable attorney's fees and other litigation costs.

Article 21: [Methods for Undertaking Punitive Liability]

Where polluters show one of the behaviors provided for in Article 63 of the Environmental Protection Law but it does not constitute a crime, or where they are being pursued for criminal responsibility because of conduct polluting the environment or damaging the ecology, and the plaintiffs request they bear compensatory liability of less than 1 times the costs of environmental ecological restoration, the people's courts may support it.

Where polluters adopt effective measures for ecological restoration before the close of the first instance trial, the compensatory liability described in the paragraph above may be reduced or waived.

Article 22: (Discretionary circumstances of ecological restoration costs)

Where ecological restoration costs are difficult to determine or where the amount of the requisite assessment and appraisal costs are clearly excessive, the people's court may combine factors such as the scope and extent of environmental harm and ecological damage, the type of contaminants, ecological scarcity, the difficulty of ecological restoration, and the benefits gained by the polluter due to their injurious acts, and may also consult experts opinions, to make a reasonable determination.

Article 23: (Payment for loss of time and ecological restoration costs)
Where the people's court adjudicates ecological restoration costs and loss of services during ecological restoration assumed by the defendant as well as compensation provided under Article 21 of this Interpretation, the court shall order the defendant to pay those costs to a special funds account for environmental public interest litigation.

Article 24: [Review and Announcement of Withdrawal and mediation of Suits]
Where parties to civil environmental public interest litigation reach a mediation agreement through mediation, or reach a settlement agreement on their own, and apply to the people's court to issue a mediation certificate or to withdraw the case, the people's court should publicly announce the content of the agreement. The period for the announcement is at least 30 days.
Where people's courts find upon review that the content of the mediation agreement or settlement agreement harms the national interests, public interest, or the lawful rights and interests of others, it shall not confirm it or shall rule to not approve the withdrawal.

Article 25: [Handling when All of a Plaintiffs Claims are Realized]
If the department responsible for supervision and management of environmental protection fulfills its regulatory obligations in accordance with law, causing the demands of the plaintiff's suit to be fully realized, and the plaintiff does not request to withdraw the lawsuit, the people's court can reject the suit.

Article 26: [Disposition of Litigation Separately Initiated by Other Organs and Organizations]
In any of the following circumstances, where after the judgment of a civil environmental public interest lawsuit has taken effect, other government organs or relevant organizations separately initiate a suit about the same activities that pollute the environment or damage the ecology; the people's courts shall accept it:

(1) the lawsuit by the plaintiff in the proceeding case was rejected;
(2) The previous case's plaintiffs request to withdraw the case was approved;
(3) New evidence was discovered and is the basis for raising new claims.

Article 27: [The Relationship of Public Interest and Private Litigation]
Where legally designated organs or relevant organizations raise civil environmental public interest litigation, it does not impact civil litigation raised by citizens, legal persons or other organizations under articel 119 of the Civil Procedure Law over harms to person or property caused by the same conduct polluting the environment or damaging the ecology. Where plaintiffs initiating lawsuits under Civil Procedure Law article 119 request a suspension of the litigation, courts may approve it.

Article 28: [The influence of public-interest litigation judgments on private litigation]
Plaintiffs and defendants in civil litigation initiated under article 119 of the Civil Procedure Law do not need to raise evidence on facts that have already been ascertained in an effective judgment from a civil public interest environmental lawsuit arising from the conducts' environmental pollution or ecological harm; except where the plaintiff side objects and has evidence sufficient to overturn it.

When the plaintiff in civil litigation initiated under Civil Procedure Law article 119 advocates their application, people's courts should uphold all determinations by effective judgments from civil public environment lawsuits arising from the same acts of environmental pollution or ecological damage on issues such as whether the defendant bears legal responsibility or has circumstances lessening their liability, whether there is a causal connection between the conduct and the harms, and also the extent of the the polluter's responsibility. Where defendants advocate applying a determination in their favor, the people's courts will not support it and the defendant should still present evidence.

Article 29: [Payment Sequence for Public Interest and Private Litigation]
Where polluters, because of environmental pollution or ecological damage, are simultaneously judged to bear liability in a civil environmental public interest lawsuit and another civil lawsuit, and their assets are not sufficient to fulfill all of their obligations under the judgments, they shall first perform their obligations affirmed under the other civil judgment; except as provided elsewhere by law.

Article 30: [Transfer for Enforcement]
Where an effective judgment in a public interest environmental civil lawsuit requires compulsory enforcement measures, the people's courts shall transfer it for enforcement.

Article 31: [Judicial Assistance]
Where plaintiffs truly have difficulty in handing over litigation costs and lawfully apply to defer litigation costs, the people's courts should permit it.

Where plaintiffs losing a suit, or partially losing, apply for a reduction in litigation fees, the people's courts may make a decision looking to the plaintiff's economic state and the circumstances of the trial.

Article 32: [Disposition of Economic Benefits Acquired through Litigation]
Where social organizations unlawfully accept assets or otherwise acquire economic interests through litigation, people's courts should rule to reject their suits and may, based on the severity of the circumstances, confiscate their unlawful gains in accordance with law or give fines; and where a crime is constituted, transfer to the relevant authorities for disposition.

Where social organizations acquire economic interests through litigation, the people's courts should send a judicial recommendation to the department in charge of them or to their registration institution, and the relevant organs will give punishments in accordance with law.

Article 33: [Basic Concepts]
'Polluters' as used to in this interpretation refers to enterprises, public institutions and other producers that pollute the environment or damage the ecology.

Article 34: [Effective Period for the Judicial Interpretation]
This interpretation takes effect on _/__/2015; Where judicial interpretations and normative documents released by the Supreme People's Court before this interpretation is implemented are inconsistent with this interpretation, this interpretation is controlling.