Field Notes From the Far East: China's New Public Interest Environmental Protection Law in Action

• Date: 01 September 2015

9-2015 NEWS & ANALYSIS 45 ELR 10855

Field Notes From the Far

East: China’s New Public

Interest Environmental

Protection Law in Action

by Yanmei Lin and Jack Tuholske

Yanmei Lin is an Associate Professor of Law and Associate Director at U.S.-Asia Partnerships for

Environmental Law at Vermont Law School. Jack Tuholske is Director of the Vermont Law School

Water and Justice Program and a Technical Advisor to the Partnerships program.

Judicial Interpretation on Environmental Civ il Public

Interest Liti gation, which is a powerfu l sword, ha s been

made. We hope this sword can cut through the dirty

stream and clean t he grey smog air. It will be like a sword

of Damocles that hangs ab ove the polluters.



Environment and Resources Law Tribunal,

Supreme People’s Court, January 7, 20151

I. Introduction

On May 15, 2015, the Nanping Intermediate People’s

Court in Fujian Province conducted the rst-ever Chi-

nese trial involving environmental civil public interest

litigation.2 e case, which concerned resource destruction

and environmental restoration related to an illega l mining

site, was heard under China’s new Environmental Protec-

tion Law (EPL),3 a strongly worded mandate that includes,

among other potentially far-reaching provisions, a right

of standing for nongovernmental organizations (NGOs)

to bring environmental cases. Whi le China’s long-term

commitment to environmental protection through judicial

action is not yet clear, t his case, and others still pending,

may one day be seen as a pivotal turning point in Chinese

1. See Zheng Xuelin, Spending Ten Years Polishing a Sword and Showing It To-

day, http://mp.weixin.qq.com/s?__biz=MzAxODA5MjIzNA==&mid=203

515662&idx=1&sn=2ad0d4217bfb1bb14355e52706d0f9fa#rd.

2. See Te-ping Chen,    ,

W S. J., May 18, 2015, available at http://www.wsj.com/articles/

environmental-trial-kicks-o-in-china-1431939272.

3. Environmental Protection Law (promulgated by the Standing Comm.

Nat’l People’s Congress on April 24, 2014, eective Jan. 1, 2015) (China),

available at http://www.npc.gov.cn/huiyi/lfzt/hjbhfxzaca/2014-04/25/con-

tent_1861320.htm.

environmental litigation, akin to landmark U.S. cases in

the 1960s and early 1970s such as Sierra Club v. Morton4

and Calvert Clis Coordinating Comm. v. Atomic Energ y

Comm’n5 that heralded a sea change in U.S. environmental

protection and established the role of the courts in enforc-

ing environmental laws.

e widespread failu re of Chinese environmental law

to stem pollution and destruct ion of nat ural resources

is well-documented.6 As one author notes, “China is

responsible for a third of the planet’s greenhouse gas

output a nd has sixteen of the world’s twenty most pol-

luted cities. L ife ex pectanc y in the north has decre ased

by 5.5 ye ars due to air pollution, and severe water con-

tamination and scarcity have compounded land dete-

rioration problems.”7 China h as allowed private tor t law

4. 405 U.S. 727, 2 ELR 20192 (1972). A classic “lose-the-battle-win-the-war”

paradigm, the decision opened the door to NGO standing to sue based

on noneconomic injury and gave litigants a simple road map for standing

that endures to this day, despite occasional attempts by more conservative

justices to rein in environmental litigation.

5. 449 F.2d 1109, 1 ELR 20346 (D.C. Cir. 1971). Circuit Judge J. Skelly

Wright’s admonishment that the National Environmental Policy Act

(NEPA) (42 U.S.C. §§4321-4370f, ELR S. NEPA §§2-209) “is not a

“paper tiger” and “promises a ood of litigation,” proved prescient. 449 F.2d

at 1111, 1114. Calvert Clis and a few other early decisions paved the way

for NEPA to become the backbone of U.S. environmental law, to serve as

a catalyst and conduit for public participation, and to foster far-reaching

judicial oversight of federal agency environmental review. Notwithstanding

a string of defeats at the hands of the U.S. Supreme Court, NEPA remains

a highly eective public interest litigation tool. See Michael C. Blumm &

Keith Mosman, 

, 2 W.

J. E. L  P’ 193 (2012).

6. See generally Erin Ryan, -

    , 23 D E. L  P’ F. 183

(2014).

7. Beina Xu, China’s Environmental Crisis, http://www.cfr.org/china/chinas-

environmental-crisis/p12608 (last visited Apr. 25, 2014).

Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.