China’s Public Interest Environmental Litigation and the U.S. Citizen Suit Model

Abstract

China’s economy has boomed as various industries have continued to develop, but this activity has been at the expense of environmental quality and public health that have resulted in severe problems for several decades. In addition to the establishment and adoption of mainstream environmental governance tools, Chinese attorneys and environmental NGO s (ENGO s) have consciously conducted Chinese-style citizen suit experiments since 2010 based on the fruitful private enforcement experience of ENGO s in the United States. These initiatives are known as the environmental public interest litigation (EPIL) mechanism in China. The ENGO EPIL mechanism was officially established in 2015 as a significant legal breakthrough that authorises ENGO s to file lawsuits to complement and improve environmental law enforcement. However, this article argues that the Chinese EPIL provisions include some unnecessarily stringent procedural requirements and lack some of the essential procedures compared with the United States archetype. Chinese ENGO s have not been authorised to take action to ensure that oversight by government agencies in their administrative actions is adequately undertaken. China’s forward-looking ENGO s have struggled to survive and have recently slowed down in their activities. Public participation and private enforcement have also become effectively powerless. Overall, it is argued that the Chinese ENGO EPIL system has created more problems than it has solved. After comparing the theoretical and procedural distinctions between China’s ENGO EPIL and the United States citizen suits in detail, the article presents some recommendations for specific legislation and implementation for the Chinese legislature. These include a comprehensive Environmental Public Interest Relief Law that integrates and compiles various applicable regulatory instruments. The recommendations are intended to assist in systematically realizing and regulating ENGO EPIL actions while at the same time promoting the primary role of the government in environmental administrative enforcement.