China

In China, there have been no cases brought against a private actor for allegedly breaching the law by carrying out operations that negatively contribute to climate change. A case could however be based on the following grounds:

• The Environment Protection Law. This covers a broad spectrum of environmental issues, ranging from protection against pollutants and control of pollutants to the protection of wildlife, and provides basic principles for both preventive and rehabilitative measures. The regulatory measures of this law address water, air, solid waste and noise pollution, and establish a system for environmental management, monitoring, liability and enforcement.
• The Air Pollution Prevention and Control Law. The statute addresses air pollution, including by corporations. There have been some recent changes that have included controlling the origin and whole process of pollution, regulating the concentration and total amount of pollutants and promoting clean production and circular economy by corporations. While the legislation does not regard GHGs as pollutants, climate change is strongly linked to air pollution and consequently, the legislation can form a basis for climate litigation against polluting corporations.

The Law of the People’s Republic of China on the Prevention and Control of Atmospheric Pollution. Entities are required to adopt measures to prevent or reduce atmospheric pollution (Art. 7) and to monitor their emissions. The national and subnational environmental authorities are mandated to set discharge standards and entities should not discharge pollutants in excess of the set standards (Art. 9 & 23). Project proponents are also required to assess and disclose impacts of the project on atmospheric environment and abide by the standards of discharge of atmospheric pollutants (Art. 18). Noncompliance with this law could lead to an order (by the competent environment authority) to rectify the violation, suspension of production or a fine of between RMB 100 000 and RMB 1 million (Art. 99). Where there is continued violation, a lawsuit can be filed in court against such entities and the court can grant various orders including compensation (All-China Environment Federation V Zhenhua Co, Ltd).

• Judicial Interpretation of Environmental Civil Public Interest Litigation. Pursuant to Article 18, where environmental pollution or ecological harm have already harmed or are likely to harm the public interest, the plaintiff may request that the defendant bears civil responsibilities, including halting the infringement, restoration to original state, compensation or making a public apology (All-China Environment Federation V Zhenhua Co, Ltd)

The remedies that could be granted by court and the environmental authority are:

• Restoration to the original state, compensation for loss of ecological and environmental damage and public apology (All-China Environment Federation V Zhenhua Co, Ltd; Art. 18 Judicial Interpretation of Environmental Civil Public Interest Litigation)
• Administrative authorities could also order a private actor found to have discharged atmospheric pollutants in excess of the prescribed standards or control indicators of total emissions of key pollutants to restrict production, to suspend production for correction and to pay a fine ranging from RMB 100,000 to RMB 1 million. If the damage is serious, the private actor could be ordered to suspend business or be shut down with the approval from the competent people’s government (Art. 99 The Law of the People’s Republic of China on the Prevention and Control of Atmospheric Pollution).

However, standing requirements are narrow with eligibility requirements limited to NGOs. Under the revised Civil Procedure Law and the Environmental Protection Law, environmental NGOs that have been registered with the civil administration department and operated in public environmental protection activities for over 5 years the right to sue polluters in the public interest. However, NGOs still face obstacles in having their cases filed in local courts, such as

• Assessment of damages: In most cases the burden of proof falls on the plaintiff but in some cases the courts will commission their own assessment (Tengger desert case brought by CBCGDF in 2017).
• The method of reasoning used by China’s tribunal is difficult to apply, as they do not use the ‘treatment cost estimate’ approach which would be more suitable to climate change litigation (All-China Environment Federation (ACEF) vs. Zhenhua 2015).

The absence of cases could be attributed to:

• China’s legal system does not allow individuals to bring a case against a public or private actor that allegedly does not comply with climate change obligations (national or international) on human rights grounds; and
• Environmental rights still have not been recognized by China’s Constitution, enabling citizens (or citizen groups) to rely on.