Download The Theoretical Basis of Environmental Public Interest Litigation

The Theoretical Basis of Environmental
Public Interest Litigation
--the Necessity and Obstacles to the Litigation by
ENGOs in China
Mingde Cao
Prof. Of China Univ. of Political Science and Law,
Beijing, executive editor-in-chief of journal of CUPL
Fengyuan Wang
PhD student in Southwest Univ. of Political Science
and Law, Chongqing
1
1 Outline
 The connotation of environmental public
interest litigation by ENGO ；
 The theoretical basis of environmental
public interest litigation by ENGO ；
 The necessity of environmental public
interest litigation by ENGO in China ；
 The case analysis;
 The major obstacles of ENGO
environmental public interest litigation in
China ；
 The conclusion.
2
2 Backgrounds
 Increasing the intensity of judicial settlement
to environmental problems is imperative, but
the theory of environmental public interest
litigation has not been studied sufficiently;
 In China, procuratorates' bringing environment
public interest litigation has its own
disadvantages in despite of theories or
practices;
 In China, both theory and judicial practice pay
little attention to ENGOs,but ENGOs have
absolute advantages that citizens, government,
procuratorate do not have in the environment
protection.
3
3 Objectives
 The Standing of ENGO in environmental
public interest litigation was proved from
theory to practice;
 To find out practical channels to fulfil goals
of environmental public interest litigation
by ENGO.
4
4 The connotation of environmental public
interest litigation by ENGO
 ENGO environmental public interest
litigation is an special litigation form,which
has its features in respects of the object-behaviors to threaten or damage public
environmental welfare, the purpose of
action--to reduce or stop the environmental
damage behavior and to investigate its
related legal liability, the plaintiff--ENGO. It
has at least two features:the public interest
purpose and prevention of environmental
damage.
5
5 The theoretical basis of environmental
public interest litigation by ENGO (I)
 The public trust doctrine means the
environment and natural resources belong
to the common property, which is being
held in trust by the trustee, the
government or some organizations. When
the trustee did not perform fiduciary duties
or any performance for fiduciary duties is
not accordance with requirements, in order
to protect the trust property, anyone can
sue the irresponsible trustee. ENGO
environmental public interest litigation fits
the public trust doctrine.
6
5 The theoretical basis of environmental
public interest litigation by ENGO (II)
 The theory of environmental right thinks
environment is the basis of our human
beings life, so protecting the environment
right of citizens is the premise of protecting
the right of citizens life, and so citizens
should have the right of litigating to protect
it. The ENGO’s standing to environmental
public interest suit is a precondition for the
citizens environmental right.
7
5 The theoretical basis of environmental
public interest litigation by ENGO (III)
 The theory of private attorney general
argues that man may exercise powers of
private attorney general as private plaintiffs
by protecting policy made by the
contemporary Congress.Because in
executing administrative law, there exists a
phenomenon of administrators indulge or
even enforce organs to violate the law,
citizens or their organization ENGOs should
have the power to enforce the law and to
supervise the government and enterprises.
8
5 The theoretical basis of environmental
public interest litigation by ENGO (IV)
 The due process theory holds that the
procedure which only satisfy requirements
of due process would be justified. In many
case government may not cause a person's
life and property damage, but may cause
harm to social order. Proper procedure may
make ENGOs become the subject of
environmental litigation,even if they may
have no substantive rights in the case.
9
5 The theoretical basis of environmental
public interest litigation by ENGO (V)
 The theory of judicial activism argues that
when a certain social conflict is in large
numbers it should be protected positively
by judicature to realize impartiality and
justice of judicature. Environmental public
interest litigation by ENGO is an effective
mechanism to suppress behaviors of
environmental damage.
10
6 The necessity of environmental public
interest litigation in China
 First,the analysis on non profit-driven of
environmental public interest litigation
shows ENGO should have the standing
when public interest is invaded.
Environmental public interest litigation
system is designed only for environmental
public interests.The nature and content of
environmental public interest litigation do
not correspond to the nature of
procuratorial organs and procuratorial
power.
11
6 The necessity of environmental public
interest litigation in China
 Second, the analysis on high-cost and high
techniques of the environmental public
interest litigation shows ENGOs can initiate
environmental public interest litigation on
its professional knowledges, skills and
financing ability. If there are only
potentially dangerous consequences to the
environment, the plaintiff will be faced with
a high degree of scientific uncertainty to
judge the long term environmental impacts,
which is advantages of the ENGOs.
12
6 The necessity of environmental public
interest litigation in China
 Third, the analysis on ENGOs selfdevelopment shows ENGOs are now in the
status of independent and self-governing
organizations. ENGOs are results of market
failure and government failure in
environmental protection. The function of
environmental public interest litigation by
ENGOs is not only to integrate the
government with the market, but also to
offset market failure and government
failure in environment protection. Chinese
ENGO starts late, but it develops fast.
13
7.The case analysis (I)
 The basic facts as follows: the prosecutor
was the people's procuratorate in Guiyang,
the defendants were XiongJinzhi, LeiZhang
and ChenTing, and the environmental court
of Qingzhen city as the judicatory court for
first trial. The claims as follows: (1) the
defendants should be ordered to stop the
infringement, eliminate danger and remove
the houses built illegally in aha lake tortoise
hill; (2) the defendants should be ordered
to restore more than 2000 square meters
vegetation coverage destroyed in this area;
(3) the costs should be paid by the accused.
14
7.The case analysis (II)
 The court found that the defendants
XiongJinzhi and ZhuLincun signed a barren
hills contract with villagers committee in
creek area on September 25th.The little
turtle mountain can be used as landscaping
byXiongJinzhi in the contract. The
contraced term is 50 years. The contractor
agreed not to damage the vegetation, only
to cultivate flowers and bonsai in the
contraced term. However,on September 28,
2006, the defendants XiongJinzhi, LeiZhang
and ChenTing decided by agreement to set
restaurants in
15
7.The case analysis (III)
 in GuiYang city. The partners have the
rights and bear the liabilities as prescribed
according to the partnership agreement.
Under the circumstances (eg no plans was
registered by any department,no
procedures for the grant of the land use
right,no procedures of construction), the
three defendants started the construction-buildng stone pavilion leading in ZhuLinCun
turtle mountain area to the island,
16
7.The case analysis (IV)
 houses and other facilities, which caused
more than 2000 square meters of mountain
vegetation to be destroyed. The island lies
in the firstgrade surface sources protection
zones in GuiYang city. They have violated
article 20 of the Water Pollution Control Act
and article 12 of the water source
protection regulations in source water
protection area made by environmental
protection agency, the ministry of
construction and the ministry of water
resources, and ministry of geology
17
7.The case analysis (V)
 and mineral resources. For the standing,
the environmental court think it is the
social and public interests that were
infringed in the case, rather than a specific
person interest.Moreover, the court took
the view that all state organs were
established for people's interests and what
reflected in the civil legal relationship was
that the procuratorate had direct stakes
with the cases resulted from public
interests violation. This is an
unquestionably reasons. The second reason
is that, article 5 of the Law of the
18
7.The case analysis (VI)
 Prevention and Treatment of Water
Pollution stipulates that all units and
individuals shall have the duty to protect
the water environment and the right to
supervise and inform against any pollution
or damage to the water environment. Here
“the right to supervise and inform against
any pollution or damage to the water
environment”includes to sue. In addition,
according to article 15 of China 's civil
procedure law, “organs, social organizations,
enterprises and public institution to sue
against acts harmful to legal rights and
19
7.The case analysis (VII)
 interests of the state”, the environmental
court in QingZhen city thought that the civil
public lawsuit taken by procuratorial organ
should be considered as legal authorization
and the procuratorate in GuiYang city was a
legitimate civil litigants. In the end the both
parties reached voluntarily the following
agreement in the court: the defendants
agreed to pull down all the illegally
constructed buildings in the hill and to
restore vegetatio within 30 days from the
date of signing agreement.
20
8 The major obstacles environmental
public interest litigation by ENGO in China
 Firstly, the legal systems concerning ENGO
participation in environmental public
interest litigation are absent. The ENGOs in
China are difficult to acquire enough
resource for their development.Today,
regulatory and political constitutional
restrictions show that there are still a
number of serious issues to be resolved in
the development of ENGOs in China.
21
8 The major obstacles environmental
public interest litigation by ENGO in China
 Secondly, the institutions to regulate the
activities of ENGO are absent. Today the
relevant regulations on ENGO
administration are just some simple
registration procedure. The position and
role of ENGO in the whole environmental
litigation status are not clearly defined. At
present, the ENGO registration
management has become one of the
bottlenecks unreasonably restricting
China's ENGO growth.
22
8 The major obstacles environmental
public interest litigation by ENGO in China
 Again, the phenomenon that many ENGOs
have lower social acceptance would cause
adverse effects on the development of
environmental public interest litigation also.
Being not using ecology benefit indicator as
the political performance criteria for local
officials, local governments in China have
always been ambivalent about ENGOs.
23
9 The conclusion
 ENGO environmental public interest
litigation will play an irreplaceable role in
the environmental public interest litigation;
 In China environmental public interest
litigation in the future should make ENGOs
as the main characters;
 In order to make environmental public
litigation by ENGO achieve positive result, it
needs a better condition of action;
 Environmental public interest litigation also
needs more support provided by legal
system and social environment.
24
25