Climate Litigation in a ‘Developmental State’: The Case of China

Abstract

Despite the absence of a framework climate law, China’s judiciary has expressed its determination to take climate change litigation seriously. This article argues that the Chinese approach to climate change litigation can be better understood within China’s climate governance paradigm. Primarily understanding climate change as a matter of development instead of a matter of environment or human rights, the Chinese government believes that mitigation and adaptation can only be achieved through a smarter development strategy. The state entrusts the power of making and implementing climate policy to the developmental and industrial departments of the executive branch, allowing them to use macroeconomic measures to transform the structure of energy and industry. If this paradigm persists, Chinese judges are unlikely to condemn carbon majors or require the adaptation of more ambitious climate goals. Instead, the judiciary will interpret statutory law or contracts in light of the state’s climate goals, with the hope of incentivizing industrial upgrades. Despite this approach’s apparent advantages of mainstreaming climate considerations, judges are facing the challenge of employing more sophisticated legal techniques and empirical expertise in respect of the energy system.