Fast development and many challenges

Recently, the General Office of the Central Committee of the Communist Party of China and the General Office of the State Council issued the "Guiding Opinions on the Construction of a Modern Environmental Governance System", which proposed how party committees, governments, enterprises, social organizations, and the public should each play their roles in building a modern environmental governance system. Social organization is an indispensable and important subject. It is an important way for social organizations to work to promote the advancement of social awareness by filing environmental impact lawsuits with greater influence.

On January 1, 2015, Beijing Chaoyang District Friends of Nature Environment Research Institute (hereinafter referred to as "Friends of Nature") and Fujian Green Home Environmental Friendly Center, as joint plaintiffs, filed a public interest in ecological damage caused by illegal mining in Nanping, Fujian. litigation. On this day, the revised Environmental Protection Law came into effect, making it clear that social organizations can be the subject of environmental civil lawsuits. In the same year, the Supreme People's Court issued the Interpretation on Several Issues concerning the Application of Law in the Trial of Environmental Civil Public Interest Litigation Cases, which stipulated the procedures for environmental civil public interest litigation.

"This is of significant significance for social organizations to initiate environmental civil lawsuits," said Wang Canfa, director of the Institute of Environmental Resources Law of China University of Political Science and Law. Before that, social organizations could only seek property compensation for personal damage caused by environmental problems, and could not solve the problem of violation of public interest. Since then, social organizations have successively brought lawsuits such as the Changzhou Foreign Language School Environmental Pollution Case, the Yunnan Hydropower Station Construction Threatened the Endangered Green Peacock Habitat Case, and other lawsuits, which have aroused greater social concern.

"The funding of social organizations, the independence of personnel, and the closeness to the public determine its unique role in environmental public interest litigation," said Wang Canfa. Liu Jinmei, legal adviser to Friends of Nature, believes that the funds of social organizations come from social donations and bear social responsibility. "Public interest litigation is a relatively new field. Social organizations are constantly trying to expand the types of environmental public interest litigations. For example, the Yunnan Hydropower Station Construction Threatened the Endangered Green Peacock Habitat is a preventive public interest litigation before damage occurs. There are many places that need improvement. "On March 20, the Kunming Intermediate People's Court ruled that the hydropower station construction project should be stopped immediately. The case was successful.

Difficulties remain after the threshold is lowered

According to the data of the Supreme People's Court, from January 2015 to December 2019, national courts heard a total of 330 environmental civil public interest lawsuits filed by social organizations. With the establishment of multi-regional environmental resource courts, environmental cases have become increasingly professional; the government has made greater efforts to disclose information on polluting companies, which has facilitated the investigation and evidence collection of social organizations; most of the social organizations have adopted off-site prosecution methods, reducing external pressure. Nevertheless, there are still many difficulties faced by social organizations.

Friends of Nature have brought a number of lawsuits, with trials lasting three to four years. "The case of soil pollution is particularly complicated. Because there may be problems left over from history, it is often difficult to identify the person responsible for the pollution, and there may even be a problem that the person responsible for the pollution changes or cannot be identified." Another important issue is the identification, identification and determination. After the person responsible for soil pollution is responsible, a large amount of testing and analysis is needed to find out the scope, extent, and pollution factors of soil pollution. The cycle is long and expensive. Wu Chunyuan, director of the Agricultural Environment Research Office of the Chinese Academy of Tropical Agricultural Sciences, who has participated in the appraisal, explained that doing an appraisal is equivalent to doing a project, and sometimes it takes one or two years to reach the appraisal conclusion, which costs millions of yuan.

In mid-2019, 58 environmental damage judicial appraisal agencies promised to appraise and pay for public interest lawsuits filed by procuratorates. This has released a positive signal in the field of identification. It can be seen from the judgment filed by the online social organization in the judgment document that the identification costs are borne by the losing party, so a losing case is fatal to the social organization.

Even if the case is won, "it can only recover about 60% of the cost. The defendant will be sentenced to pay our necessary legal fees and travel expenses. However, the full-time manpower and time costs involved in the complicated preparation work before the lawsuit can only be paid by themselves. In fact, Human costs can be calculated and should be supported. Only in this way can professional people continue to work in social organizations. "Deputy Secretary-General of China Biodiversity Conservation and Green Development Foundation (hereinafter referred to as" Green Development Council ") According to Ma Yong, even if the Green Development Council is a publicly funded foundation, the cost of public interest litigation is still a big issue. "The funds raised by the foundation have a clear purpose and direction, and not many people support public interest litigation. At the cognitive level, the government and society still often regard social organizations' filing of public interest lawsuits as a kind of antagonistic behavior. "

How Diverse Subjects Collaborate

In recent years, as the whole society attaches more and more importance to the construction of ecological civilization, the environmental protection systems that have been tried out and promoted have also increased. In addition to their own construction, how do social organizations collaborate with other diverse subjects?

In 2015, the procuratorial organs began the pilot work of public interest litigation, and it was fully implemented in 2017. Environmental public interest litigation is one of the important contents. Ma Yong believes that procuratorial organs and social organizations belong to the internal and external supervisory forces of the system and work in accordance with the legal provisions of environmental public interest litigation. After recent judicial practice, the two are well connected. In 2019, the Beijing People's Procuratorate and ten social organizations held a signing ceremony and symposium on "Opinions on Strengthening Cooperation and Cooperating to Promote Public Interest Litigation Work", further exploring the cooperation forms between the procuratorate and social organizations.

In response to the dilemma of “business pollution, mass damage, and government bills”, the trial of the ecological environment damage compensation system, which has been implemented since 2018, explicitly authorizes local governments to hold those responsible for damage to the ecological environment. However, the system has a problem of unclear boundaries with environmental public interest litigation. "Because the system is still in the trial stage, there is no higher-level law, and the legal relationship with the procuratorial organs and social organizations is not clear. The phenomenon of" crash "has occurred in practice." Ma Yong, for example, disposes of hazardous waste illegally in Zhangqiu District, Jinan, Shandong In the case of the Green Development Committee, the former Environmental Protection Department of Shandong Province filed a lawsuit for compensation for ecological environmental damage in the name of the provincial government, and the civil lawsuit of the social organization was "frozen". This increases the uncertainty of social organization's prosecution, and early preparation may be lost, which affects the enthusiasm of social organizations.

In Liu Jinmei's view, the more important issue is that the competent department has the responsibility for the supervision of the enterprise before and during the event, and the administrative force should focus more on administrative supervision and administrative law enforcement. Many ecological damage compensation cases have adopted consultation procedures before entering the litigation procedure, but the pre-litigation consultation process still needs to be strengthened in terms of information disclosure and public participation to ensure transparency. According to statistics, as of May 2019, national courts have accepted 30 cases of compensation for damage to the ecological environment filed by provincial, municipal and prefecture-level governments, including 14 lawsuits and 16 cases that were resolved through consultation instead of entering legal proceedings.

After the lawsuit is successful, how to supervise whether the polluting enterprises are repaired and compensated according to the judgment is another issue facing social organizations. "There is currently no clear law on what accounts, use procedures, and who to supervise for compensation, etc., and this issue needs to be resolved urgently." Ma Yong said.

(Reporter Chen Huijuan)