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).

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

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.

In China, there have been no cases where citizens (on citizen groups) think that their state is breaching the law because it has authorised a project leads to increased emissions or ineffective adaptation. Nevertheless, a case could be based on the following grounds:

  • Non-compliance with constitutional obligations. Like scenario 1 above, project approval could be challenged on the basis of constitutional obligation, particularly Articles 9 and 26 of the Constitution. They mandate the state to protect the environment and prevent pollution (Art. 26) and requires the state to ensure that damage to natural resource is prohibited (Art. 9). Since climate is a very crucial element for the ‘living environment and the ecological environment’, these provisions could form a basis of a suit challenging projects that lead to increased GHG emissions or impact on features that are crucial for adaptation.

However, standing requirements are narrow with eligibility requirements limited to NGOs. Under the revised Civil Procedure Law in 2013 and the Environmental Protection Law in 2014, environmental NGOs that have been registered with the civil administration department and operated in public environmental protection activities for over 5 years the ability to sue polluters in the public interest.

The absence of cases could be attributed to:

  • A lack of strong legislative and constitutional basis such as no specific climate legislation;
  • Non-recognition of environmental rights in the Constitution and non-recognition of GHGs as air pollutants in the Pollution prevention and control legislation; and
  • Restrictive standing requirements where individuals cannot file environmental cases against public actors and only a small number of NGOs are qualified to file public interest environmental cases.

In China, no case has been brought by citizens (or citizen groups) against the state for ineffective climate action.

However, a case was filed against the State Grid Corporation for failure to purchase clean energy. In the case of Friends of Nature v State Grid Gansu Electric Power Co, Friends of Nature alleged that the defendants (a local unit of the state grid corporation) violated the Renewable Energy Law. The law requires grid firms to “fully acquire” all power and buy all power generated by renewable sources that meet grid connection standards (Art. 14 RE law). The plaintiffs therefore claim that the defendant’s refusal to purchase all grid power generated from wind and solar led to abandonment of 18.6 billion kwh grid power between January 2015 and June 2016, which was equivalent to burning 5.88 million tons of standard coal in vain and consequently discharged, among others, about 15.54 million tons of carbon dioxide into the atmosphere, thus seriously damaging social public interests. As a result, the plaintiffs are seeking orders that the defendant buys all on-grid power and financial damages to remedy the environmental loss. The case was dismissed in 2018 by the court of first instance on procedural grounds (that the defendant neither caused environmental damages nor directly exacerbated climate change. On appeal, the High Court of Gansu set aside the decision and ordered the District Court of Mining to hear the case. The case has entered substantive trial and a decision is yet to be made.

Additionally, citizens (or citizen groups) can challenge the government’s climate policy on the following grounds:

  • Non-compliance with constitutional obligations: Article 26 states that ‘the state protects and improves the living environment and the ecological environment and prevents and remedies pollution and other public hazards.’ Article 9 also states that ‘the state ensures the rational use of natural resources and protects rare animals and plants; the appropriation or damage of natural resources by any organization or individual by whatever means is prohibited’. Climate is a very crucial element for the ‘living environment and the ecological environment’ and consequently, the Constitution establishes the basic framework for addressing climate change, providing guidelines for the future climate legislation and a legal basis for current climate mitigation/adaptation.

However, standing requirements are narrow with eligibility limited to NGOs. The revision of the Civil Procedure Law in 2013 and the Environmental Protection Law in 2014 granted environmental NGOs that have been registered with civil administration department and operating for over 5 years the ability to sue polluters in the public interest.

The absence of cases could be attributed to

  • Lack of strong legislative and constitutional basis such as no specific climate legislation;
  • Non-recognition of environmental rights in the Constitution and non-recognition of GHGs as air pollutants in the Pollution prevention and control legislation; and
  • Restrictive standing requirements and a small number of NGOs qualified to file public interest environmental cases.