1. INTRODUCTION
Over the past decade, climate change litigation has emerged as an integral part of the overall climate change governance framework. According to the database developed by the Sabin Center for Climate Change Law at Columbia University,Footnote 1 more than one thousand climate change cases have been filed around the globe, with the legal basis of claims ranging from public trust, common law, human rights, to environmental impact assessment (EIA) law.Footnote 2 Alongside the increasing number of climate change lawsuits, there has been a considerable increase in scholarship that examines landmark climate change cases, such as Massachusetts v. Environmental Protection Agency (EPA)Footnote 3 and Urgenda v. The Netherlands,Footnote 4 analyzes the litigation profile in a particular jurisdiction or region,Footnote 5 and discusses the regulatory implications of climate change litigation for policy choices.Footnote 6
Empirical studies of litigation in the United States (US) and elsewhere reveal that climate change litigation is dominated by causes of action based on statutory law, in which the challenging party sues the government for its failure to take climate change factors adequately into account in decision-making processes or regulatory actions.Footnote 7 Litigation based on EIA-related laws constitutes the majority of the cases filed against governments. In the US, the percentage of cases brought under the National Environmental Policy Act (NEPA)Footnote 8 and state impact assessment laws ranks the highest in number.Footnote 9 Among non-US cases collected from more than 30 countries, EIA laws form the basis of climate litigation in more than half.Footnote 10 Most of these climate change lawsuits allege that environmental impact statements fail adequately to discuss impacts of climate change in terms of mitigation or adaptation. Their litigation goals are ‘to ensure that greenhouse gas emissions and climate change impacts are routinely taken into account and adequately evaluated in planning and environmental assessment processes’.Footnote 11
For China the picture is quite different. The Sabin Center for Climate Change Law records not a single case of climate change litigation in China. This is because the database includes only cases in which the court decision would have been different if the court had not cited a fact related to climate change or a legal obligation based on a changing climate.Footnote 12 Yet, if a broader scope is adopted, including contractual and tortious cases related to carbon emissions, energy conservation, green finance and biodiversity conservation, then cases run into thousands.Footnote 13 Wang Canfa, an established environmental law professor at the China University of Political Science and Law, regards the Gansu Grid caseFootnote 14 as China's first climate change case, even though neither the claimant nor the judicial decision mentioned climate change or greenhouse gas (GHG) emissions.Footnote 15
This leads us to the definition and scope of climate change litigation adopted in this article. Defining climate change litigation is of significance in that it will largely decide how we see the profile and future of climate change litigation in China.Footnote 16 In particular, the prospects of climate change litigation in China will be shaped by the discussion of the types of climate case that will emerge, how courts will respond to climate-related claims, and how litigation will affect regulatory development on climate change. However, defining climate change litigation is challengingFootnote 17 because climate change is a complicated and cross-cutting issue, which affects a broad range of legal areas, including EIA law, tort law, energy law, planning law, and administrative law.Footnote 18 Moreover, while some cases do not mention climate change either in the party filings or court decisions, they do appear largely motivated by concerns about climate change.Footnote 19 In other cases climate change is mentioned, but only incidentally and seemingly without a substantive impact on the outcome of the case.
This article argues that climate change litigation as a field of practiceFootnote 20 needs a threshold definition to distinguish itself from broader, climate change-related litigation. Therefore, the article adopts the comparatively narrow definition of climate change litigation originally proposed by Markell and Ruhl.Footnote 21 Climate change litigation in this article refers to any litigation in which the substance or policy of climate change causes and impacts are raised in issues of fact or law, either in the party filings or court decisions. Climate change issues (equivalent keywords include mitigation, adaptation, GHG emissions, sea level rise, and so on) do not have to be central to the dispute or argument, but need to be directly or expressly raised. This restricted definition helps us to focus on the core aspects of climate change litigation – namely, the legal arguments, the legal reasoning, and the influence on climate policy and regulatory development.Footnote 22 The mere mention of climate change or its equivalent keywords does not amount to a ‘climate change case’ if climate change issues do not inform the claims or court decisions. For example, an intellectual property dispute between a company holding a technology related to climate change and the intellectual property office does not count as ‘climate change litigation’.Footnote 23 Cases that seek results which can have beneficial climate change impact (such as developing renewable energies, reducing air pollution from coal-fired power plants, and improving adaptive capacity) but which do not refer to climate change or its equivalent keywords are also excluded.
While scholarship on climate litigation is concentrated principally in developed countries like the US, Australia and European states,Footnote 24 the scholarly discussion of the role of litigation in promoting China's climate change governance is emergent. This China-based study increases our understanding of how the role of domestic courts in transnational climate governance and the initial trends of climate litigation in China are different from those in other jurisdictions. The strategies and legal grounds developed in China's climate litigation practice might also be able to contribute to the burgeoning body of transnational climate change litigation. There are three different litigation pathways discussed by Chinese scholars: (i) tort liability litigation for compensation; (ii) public interest litigation against emitters of GHGs; and (iii) administrative litigation against the government for better climate regulation.Footnote 25 The first two types of litigation, both of which are tort-based, attract the most scholarly attention largely because of the prodigious legal developments and litigation in the area of environmental tort law and public interest litigation.Footnote 26 Scholars also regard tort-based climate litigation as the main prospect for the development of climate change litigation in China.Footnote 27 In contrast, I argue that Chinese climate change litigation on the basis of administrative law, especially EIA laws, is potentially a more productive pathway for climate litigation in China.
This article contends that significant legal and policy barriers to applying tort-based provisions to climate change make tort-based climate litigation in China elusive. It proposes that EIA-based climate litigation could serve as an alternative as a result of the flexibility of the legal framework of EIA. The interaction between regulation and litigation also indicates the important prospects of EIA-based litigation, which deserve more legal analysis. To reach that conclusion, Section 2 will first explain how climate change litigation and its role in Chinese climate governance should be examined. The status of climate legislation, the duty of environmental agencies, and the role of the courts are all distinctive in the Chinese context. Section 3 explores the potential of EIA-based climate litigation firstly by analyzing the legal possibility of regulating climate change through China's EIA-related laws. It then explains other crucial factors that contribute to the prospect of EIA-based climate litigation, such as relaxed standing requirements, emergent public interest litigation against government authorities, and numerous precedents for EIA-based litigation. In Section 4 the article analyzes the challenges faced by tort-based climate litigation in the form of the significant legal barriers to standing and proving causation, as well as policy barriers to suing state-owned enterprises. The final section concludes.
2. UNDERSTANDING CLIMATE CHANGE LITIGATION IN THE CHINESE CONTEXT
2.1. The Role of Climate Change Litigation in China's Climate Governance
As a global challenge, climate change is better addressed by a combination of international efforts based on enforceable legal agreements and the adoption of national legislation prescribing mitigation targets and government planning for climate change. Climate change is both a global and a small-scale, local and immediate issue.Footnote 28 It requires responses at all levels of government and produces legal disputes among individuals, emitters, and government entities that need to be resolved through an independent judiciary. Litigation was not regarded as a conventional approach to climate governance, yet its significance now receives increasing political and legal attention around the globe,Footnote 29 especially following some high-profile climate change cases, which have significantly reshaped the contours of climate change regulation.Footnote 30
Many scholars explain the emergence of climate change litigation as a response to the institutional failures associated with climate change legislation or regulation.Footnote 31 Courts, as forums for the interpretation and enforcement of the law, are either required to reinterpret long-standing environmental statutes to cover emerging climate change concerns, or are being used strategically for wider regulatory or policy change.Footnote 32 While the former development can be observed across different legal jurisdictions, the latter manifests mainly in political regimes that are characterized by adherence to the separation of powers doctrine and have an active, independent judiciary. In both the US and Australia, where climate change lawsuits have proliferated, the absence of comprehensive legislation on climate change has been a key driver for litigants to turn to the courts and seek redress for harm caused by climate change, or petition for more ambitious government action.Footnote 33 Citizens affected by climate change impacts go to court for redress or for more effective risk regulation.Footnote 34 Non-governmental organizations (NGOs) and activists may perceive the court as a battlefield to complement their lobbying campaigns in the hallways of legislative chambers and executive agencies.Footnote 35 For example, environmental NGOs in the US frequently sue governmental agencies for failing to exercise or inadequately exercising their authority to regulate for climate change.Footnote 36
However, the involvement of courts in climate governance is very different in China from that of courts in western countries. Firstly, in China the government at various levels steers climate governance by formulating climate policies, setting national and local mitigation targets, establishing regulatory frameworks, and supervising market activities.Footnote 37 This state-controlled, policy-oriented climate governance leaves courts, as judicial organs of the state, with comparatively less space for dispute settlement than is the case in the US or Australia. Nevertheless, this dynamic is changing because of the increasing involvement of market actors and civil society in climate governance in recent years.Footnote 38 Chinese courts will face the challenge of dealing with the legally disruptive nature of climate change,Footnote 39 and will need to adjudicate legal disputes on climate change without undermining legal stability and coherence.
Secondly, despite judicial reform and the progress made towards a more competent, professional and independent judiciary,Footnote 40 judicial power in China is still susceptible to the overarching authority of the Chinese Communist Party (CCP) in many respects.Footnote 41 Therefore, courts may have limited room to make new judicial interpretations or to steer regulatory change on climate issues unless their decisions accord with the political objectives and priorities of the CCP. Climate change claims in China are thus more likely to be brought by qualified parties on the basis of existing laws, which require the court to play its essential role of enforcing and interpreting the law and regulations.
Climate change litigation provides a vital opportunity for the courts to examine whether climate change actions can be justified on the basis of existing regulatory frameworks or use judicial review to examine whether administrative actions or decisions are climate-friendly.Footnote 42 In the climate change area, judicial review is essential to ensure that climate change-related actions do not undermine existing legal orders (for example, by infringing private property in the pursuit of carbon reduction goals), or that administrative decisions do not contravene predetermined goals of reducing GHG emissions and preventing climate change risks. In China, while government-made regulations and policies are exempt from the scope of judicial review,Footnote 43 courts can examine specific government decisions with reference to existing regulation and procedural law. For example, courts can check whether government authorities have facilitated the integration of GHG mitigation or adaptation while granting EIA approval for a proposed project. There are concerns that litigation against regulatory authorities is unrealistic because Chinese laws do not clearly stipulate a governmental duty to reduce GHG emissions or undertake certain adaptation measures, and because, generally, the judiciary is subservient to the executive.Footnote 44 This article argues that an obligation to reduce GHG emissions and adapt could be derived from laws such as the Law on Air Pollution Prevention and Control (LAPPC) and the Environmental Impact Assessment Law (EIA Law). With regard to concerns about judicial independence, I agree with Cohen that ‘judicial independence is not something that simply exists or does not exist’.Footnote 45 The degree of judicial independence is highly contingent on the case concerned and requires a more nuanced discussion, which disaggregates judicial independence into various subcomponents and examines each in turn.Footnote 46 As Stern's empirical study shows, Chinese judges enjoy a fluctuating degree of autonomy in environmental lawsuits.Footnote 47 In low-profile, run-of-the-mill cases their discretion stems from uneven application of the law, legal lacunas, and the ambiguity of underlying political goals.Footnote 48
2.2. The Role of the Supreme People's Court in Shaping the Prospects of Chinese Climate Change Litigation
The prospects, profile and development of climate change cases in China are also determined by how the Supreme People's Court (SPC), the highest court in China, issues judicial interpretations and guides cases. Over the past decade, the SPC has evolved into an increasingly influential political actor in national law and policymaking by being responsive to policy change and sensitive to lawmaking opportunities.Footnote 49 In response to the high levels of generality and ambiguity of national legislation, the SPC frequently exercises its judicial power by issuing judicial interpretation on particular questions arising out of the specific application of law in a high-profile manner.Footnote 50 As China undergoes unprecedented social and economic change, the Chinese judiciary is often required to play an active role by providing judicial services to help the government in achieving certain policy goals.Footnote 51 As a result, judicial interpretation often goes beyond the mechanical application of legal rules to cater for social needs.Footnote 52
In some areas the SPC alters the legal landscape and reshapes the relationship between state and society, and between diverse interests and values, by expanding or amending legal provisions.Footnote 53 For example, given the heavy burden of proof imposed on polluters in Chinese tort law,Footnote 54 the judicial interpretation of environmental tort liability shows efforts to alleviate this burden through changing rules of evidence, causation and liability.Footnote 55 The recent reform of the case-guidance system is another example of the SPC being judicially active. It shows very clear attempts ‘to summarize adjudication experiences, unify the application of law, enhance adjudication quality, and safeguard judicial impartiality’.Footnote 56 By implementing the principle of ‘treating like cases alike’ and regulating judicial discretion, case-guidance reform seeks to promote more adjudicative consistency, predictability, judicial efficiency and integrity.Footnote 57 Although not yet formally binding in China and not an independent source of law, the guiding cases serve as a necessary aid for judicial reasoning in lower courts.Footnote 58 Furthermore, the adjudication outcomes and legal rules derived from these cases deliver important messages to potential claimants with similar disputes.
The SPC, in 2016, issued a judicial policy that the judiciary should fully embrace its role of addressing climate change and advancing climate governance in areas of carbon emissions trading, energy conservation, green finance, and biodiversity conservation.Footnote 59 Although cases on these issues do not necessarily constitute climate change litigation as defined in this article, they show that legal disputes related to climate change are emerging and the SPC is desirous to make its judicial contribution to climate governance. When social, political or legal circumstances necessitate the adoption of judicial interpretations or case guidance to resolve climate change disputes, the SPC's vision will shape the profile of climate change litigation and pathways for addressing climate change. The SPC distinguishes between judicial citations of civil and administrative adjudication in one of its judicial interpretations.Footnote 60 Judges in an administrative court can cite comparatively more sources of law for judicial reasoning – including the interpretation of administrative rules or regulations promulgated by the State Council or its authorized departments – than can judges in civil disputes. Consequently, climate change-related claims will have a greater possibility of being fielded and proceeding to administrative litigation.
2.3. Using the Regulation-Litigation Linkage to Analyze Climate Litigation
The regulatory impact of climate lawsuits in other countries underlines the importance of analyzing the interaction between litigation and regulation, regardless of whether litigation is retrospective or constructive.Footnote 61 On the one hand, as a civil law system with a strong focus on implementing legislation, Chinese courts typically rely on positive law to decide whether they may hear specific claims and how they could adjudicate. As a result, the profile of climate change litigation will be decided largely by whether existing law and regulation favour claims against the government for regulatory change, or whether they favour claims against private parties for tortious liability. On the other hand, the judicial interpretation or application of existing law and regulation in the court's reasoning produces regulatory effects that could further reshape regulatory pathways for addressing climate change.Footnote 62
Firstly, this article argues that both civil liability litigation and public interest litigation against carbon emitters will encounter insurmountable legal barriers in the climate change arena in China. In contrast, the legal framework of EIA has greater potential as a basis for climate change cases in China. This is not simply because litigation against EIA for inadequate climate change consideration is becoming a global trend; rather, China's environmental law provides greater flexibility and legal potential for such claims to proceed. Litigation against government authorities to ensure that GHG and climate change impacts are routinely considered and adequately evaluated in their EIA decisions could stimulate more ex ante action by both improving governmental decision making and incentivizing emitters to adopt efficient preventive measures. Although the civil liability of GHG emitters ex post could potentially inspire corporate behavioural change in order to avoid unwelcome litigation consequencesFootnote 63 and, in some cases, civil liability may encourage further regulation,Footnote 64 litigation against the government could promote the adoption of a more proactive and efficient regulatory approach towards climate change.
3. LITIGATING CLIMATE CHANGE THROUGH EIA: FROM REGULATION TO LITIGATION
3.1. Regulating Climate Change through EIA: A Global Trend and National Practice
As a cross-cutting issue, climate change intersects with multiple levels of government and areas of environmental law and regulation. Therefore, it entails a mainstreaming approach that integrates climate change factors within ongoing planning and decision-making processes.Footnote 65 The advantages of adopting a mainstreaming approach to the implementation of climate change policy are apparent as it avoids policy decisions being subject to inevitable political compromise and judicial challenge.Footnote 66 The EIA, a well-established environmental decision-making tool designed to embed environmental stewardship within project development,Footnote 67 is a promising starting point for such a mainstreaming approach. Many development plans and projects are subject to EIA requirements, which underlines the significance of EIA in minimizing GHG emissions and adapting to the changing climate at the level of the specific plan or project.Footnote 68
The EIA regime is a particularly apposite place to discuss climate change and related litigation. A growing number of theoretical and empirical studies explore the potential of EIA both to assess the climate change impacts of a proposed project with regard to its GHG emissions (mitigation) and to gauge the impacts of climate change on a proposed project (adaptation).Footnote 69 This is significant given the multi-scalar nature of climate change. The causes of climate change are globally distributed and require multi-level responses at the international, national, local, and individual levels.Footnote 70 EIA is already a familiar process for many national governments, and the EIA of a proposed activity on climate change is an emerging norm of customary international law.Footnote 71 A focus on EIA therefore has great potential to build a bridge between global aspirations and local actions,Footnote 72 and to bring about global solutions by recasting existing international and domestic norms on climate change. Many jurisdictions also have extended the coverage of their EIA regime to include climate change factors through the interpretation and revision of existing EIA laws.Footnote 73 Canada, for example, adopted practical guidance in 2003 to advise on the consideration of climate change factors in the EIA process.Footnote 74 EU Directive 2014/52/EU clarifies that the information for the EIA report should include the impact of the project on the climate (such as the nature and magnitude of GHG emissions) and the vulnerability of the project to climate change.Footnote 75 The US Council on Environmental Quality (CEQ) issues guidance to federal agencies on how to assess GHG emissions and the effects of climate change in environmental reviews under the NEPA.Footnote 76 Several US courts have confirmed that climate change is a legitimate environmental issue which must be addressed by a government agency when conducting an environmental assessment required by the NEPA.Footnote 77
These legislative developments are also advocated by a number of international organizations. For example, the Organisation for Economic Co-operation and Development (OECD) has sought to develop climate-resilient projects by identifying the opportunities and challenges of incorporating adaptation within the EIA process.Footnote 78 The 2017 conference theme of the International Association of Impact Assessment (IAIA) was the contribution of EIA to global efforts in addressing climate change.Footnote 79 These developments show that climate change could be regulated by expanding or reinterpreting existing legal frameworks on EIA. This has become a global trend and, for many countries, now reflects national practice.
Furthermore, as a legal mechanism EIA has compelling advantages for regulating climate change. While most approaches to climate change focus exclusively either on mitigation or adaptation, EIA conducted at project level can combine both objectives in one decision-making process. Firstly, project proponents may be motivated to assess both the impacts on climate change and the impacts of climate change. As cases that challenge EIA decisions for failing to assess climate change factors or disclose such information to the public could significantly delay a project, proponents of the project may wish to take necessary measures to minimize the likelihood of litigation.Footnote 80 On the adaptation side, identifying and evaluating the changing environmental baseline and long-term environmental risks induced by climate change could generate more precise information for project proponents and lower the risk of maladaptation. Appropriate adaptive measures will make projects more resilient and save valuable financial resources in the event of extreme events caused by climate change.
Secondly, governmental authorities may be motivated to take climate change into consideration in their EIA decisions because climate change may either influence the achievement of designated mitigation goals or influence the surrounding environment in a way that undermines the purpose of the proposed project. The transparency and participation requirements of the EIA process also provide a collaborative mechanism through which other government agencies, stakeholders, and the public can learn about the impacts or risks of climate change and the necessity to adopt resilient solutions.Footnote 81
3.2. Regulating Climate Change through EIA Laws in China: Exploring the Legal Basis for EIA-based Climate Litigation
Exploring the legal potential of regulating climate change in China's EIA-related laws
EIA has served as a key regulatory instrument to prevent and mitigate negative environmental impacts in China. The concept and practice of EIA in China can be traced back to the 1970s. It was first articulated in the 1979 Environmental Protection Law (Trial Implementation) (EPL), and then restated in the 1989 EPL. China promulgated its first stand-alone EIA Law in 2002, a landmark for its EIA legal framework in terms of stipulating planning-level EIA and public participation. However, various legislative deficiencies in the 2002 EIA Law and the enforcement gap in practice meant that the EIA regime failed to prevent and mitigate environmental pollution.Footnote 82 In response to the poor efficacy of EIA, the Chinese government closed legislative loopholes, increased penalties, and improved public participation by amending the EPL in 2014 and the EIA Law in 2016 and 2018.Footnote 83
Climate change has been at the periphery of mainstream environmental law in China. Although there are regulations on specific issues like emissions trading or GHG reduction, most of them are of low priority and have little binding effect.Footnote 84 This is largely because addressing climate change requires the government to act now to address long-term and, in some cases, uncertain threats,Footnote 85 and also because the effects of climate governance have limited visibility for the public and therefore contribute little to the legitimacy of the Chinese government.Footnote 86 More specifically, although climate change is recognized as an environmental problem, neither the recently amended EPL nor the new EIA Law clarifies that climate change is a legitimate environmental issue that should be addressed by project proponents or government agencies in the EIA process. For example, the EPL does not extend the definition of ‘environment’ to cover climate change as the EU does in its Directive. As a result, projects that emit GHGs or are vulnerable to climate change are not directly subject to EIA requirements. However, this does not mean that China's regulatory framework of EIA provides no room for climate change considerations.
China's EIA laws do not traditionally consider climate change to be an ‘environmental impact’ that should be assessed, but they have the legal potential to be extended to climate change assessment. For example, Article 17 of the EIA Law stipulates that environmental impact statements are to include information about the surrounding environment of a proposed project.Footnote 87 Aiming to provide precise information about the environmental resilience of the proposed activity, this provision warrants an assessment of how this activity could be affected by the surrounding environment (such as hydrological, climatic and meteorological conditions, vegetation, and geology). This aspect of EIA is especially imperative when climate change profoundly changes the environmental baseline and threatens the existence and operation of the project.
Furthermore, technical guidance, related climate policies and EIA practices also demonstrate the possibility of and necessity for climate change assessment. China's technical guidance for reviewing project-level environmental impact statements requires that such statements should consider the feasibility and effectiveness of measures taken to conserve energy and reduce GHG emissions.Footnote 88 The technical guidance for planning-level EIA also requires an evaluation of the environmental benefits of plan implementation in terms of improving environmental quality, increasing the efficiency of resource utilization and reducing GHG emissions.Footnote 89 Both of these guidelines show that the Ministry of Ecology and Environment (MEE), which produced the technical guidance outlined above, recognizes the necessity of assessing the impact of GHG emissions in the EIA procedure. The 13th national economic and social development plan requires full consideration of climate change factors in developing urban and rural planning and building projects in order to adapt to climate change.Footnote 90 Despite the absence of legal requirements, there is a practice of climate change integration at the planning level in the EIA process. It has been found that planning sectors with clear emissions reduction tasks (such as energy planning) and those more vulnerable to climate change impacts (such as hydraulic engineering planning) have shown a higher degree of integration of climate change factors.Footnote 91 They indicate that integrating (both mitigation and adaptation) climate change factors in the EIA regime is not only necessary in practice but also possible in legal procedure.
Air pollution regulation and climate change regulation developed largely in isolation in ChinaFootnote 92 until the new LAPPC, as amended in 2015, for the first time integrated GHG reductions within the existing legal framework of air pollution control. The LAPPC requires coordinated control of atmospheric pollutants (such as particles, sulphur dioxide, nitrogen oxide, volatile organic compounds, and ammonia) and GHGs.Footnote 93 Synergetic control is expected to produce co-benefits in terms of reducing institutional and management costs, but this law does not clarify how this should occur. What is relatively clear is that the LAPPC indicates that GHGs and air pollutants have a different legal status and GHGs are not defined as air pollutants.Footnote 94 Therefore, many scholars conclude that this law could not be used directly to regulate GHG emissions.Footnote 95 However, as air pollutants and GHGs in many circumstances share the same emitting sources from fossil-fuel combustion, regulating conventional air pollutants actually contributes to GHG reductions, and vice versa.Footnote 96 Statistics also show that 90% of industrial emissions of CO2 in China come from high-polluting industries of thermal power, steel, and cement, which underscores the possibility of and necessity for co-regulation.Footnote 97 On the other hand, there are also trade-offs where reducing a particular pollutant emission through terminal management technology leads to an increase in energy consumption or climate warming.Footnote 98 Therefore, in order to produce synergetic effects it is essential to assess how air pollution control efforts and carbon reduction measures interact when making decisions on a proposed project. EIA, as a preventative regulatory tool, is the appropriate mechanism to implement this coordinated control. Institutional reform by way of transferring responsibilities for regulating climate change from the National Development and Reform Commission (NDRC) to the MEE would facilitate the integration of climate change considerations in the EIA process and eliminate institutional barriers.
Equally relevant are the ‘Measures for the Administration of Climate Feasibility Study’ promulgated by the China Meteorological Administration in 2008.Footnote 99 The objective of this regulation is to prevent or mitigate the impacts of meteorological disasters or climate change on planning or projects, or conversely the impacts of planning or projects on the local climate. The regulation requires plans and projects that are closely related to climate conditions to be subject to a climate feasibility study, which includes an evaluation of the probability of extreme weather events, the climate suitability of the proposed plan/project, climate risks and potential impacts on the local climate.Footnote 100 The government authority that is empowered to approve the proposed planning or project must consider the findings of the climate feasibility study, and reject those without such studies. However, because of the high reliance on existing basic data and historical records as the main sources of information for feasibility studies, this regulation focuses mainly on the assessment of climatic variability rather than on climate change.Footnote 101 Furthermore, it does not provide a monitoring mechanism or follow-up assessment, which is crucial for coping with climate change impacts.Footnote 102 Nevertheless, the measures to a large extent provide a legal basis for integrating mainly adaptation and some mitigation considerations within the decision-making process on planning and projects. This ensures that risks or impacts of climate change will have been considered by the meteorological administration before they are addressed in EIA-related laws.
Resolving the legal challenges of regulating climate change in EIA laws
Integrating climate change within the EIA process entails reviewing and reforming current EIA procedures, including the screening process for selecting projects, the scoping process for identifying relevant impacts, and the decision-making process to assess the project's costs and benefits. In the screening process, for example, the government needs to decide upon the category of climate-related project that should be subject to EIA obligations. Legal challenges may vary depending on the EIA legal framework and respective GHG emissions reduction commitments. In jurisdictions like the US, Australia and New Zealand, where environmental impacts caused by a proposed project need to be ‘significant’ to trigger the EIA procedure, a crucial challenge to the inclusion of climate change in the EIA process is the need to establish the significance of the GHG emissions of a proposed activity.Footnote 103 For instance, in the 2016 US draft guidance for climate change considerations in the EIA, a reference point of 25,000 metric tonnes or more of CO2 equivalent on an annual basis is recommended as a threshold for quantitative and qualitative analysis of GHG emissions.Footnote 104 However, defining the term ‘significant’ remains mathematically difficult, and it is often influenced by policy and political considerations.Footnote 105
China's EIA Law requires all proposed projects that may produce environmental impacts to go through the EIA process, with a classified management approach.Footnote 106 According to the MEE classification, projects must prepare different forms of EIA documents based on their level of environmental impacts: significant, modest or mild.Footnote 107 The more significant the environmental impacts, the more detailed the EIA documents. Therefore, the challenge for China is in determining how to categorize projects that emit GHGs and projects that are vulnerable to climate change impacts. The MEE is entrusted with formulating and amending this classification,Footnote 108 yet the assigned category of each project is heavily influenced not only by scientific input but also by political bargaining and economic implications. A possible solution for the categorization challenge might be to draw upon China's approaches to addressing climate change on other issues. For example, the obligation of reporting and verification of carbon emissions in China rests on key emissions industries such as petrochemicals, chemicals, building materials, steel, non-ferrous metals, paper manufacture, electric power, and aviation enterprises that emit 26,000 tonnes of CO2 equivalent or above.Footnote 109 A feasible suggestion for the purpose of EIA screening could be to categorize those key emissions industries as China's carbon majors and use 26,000 tonnes as a threshold for the climate change assessment requirement.
Another closely related challenge relates to determinations of whether the impact assessment and mitigation measures are sufficient for EIA approval at project level.Footnote 110 The EIA Law relies mainly on environmental standards to judge the adequacy of conventional pollution control, but offers no such reference point for GHG emissions. This article proposes a target-based model in which a carbon intensity (or carbon emissions based on gross domestic product) reduction target is used to evaluate the adequacy of climate change considerations. This model could be a promising choice for China because imposing carbon intensity reduction targets on carbon-intensive industries is a relatively mature practice.
3.3. The Prospects of EIA-Based Climate Change Litigation in China
The great regulatory flexibility to integrate climate change considerations within an EIA regime indicates the potential for a promising future in EIA-based climate change litigation in China. Relying on existing legal frameworks such as the EIA Law and the LAPPC, EIA-based litigation offers the benefit of maintaining the stability of legal systems in terms of adjudicative processes and the delivery of legally enforceable outcomes. There have been cases concerning the regulation of CO2 emissions through environmental laws, including those involving EIA laws and the LAPPC. In Kaibing v. Zhejiang Environmental Protection Bureau (EPB), for example, the Yichang Court was required to address whether a newly added facility, which increased the recycling of wood tar and, thus, reduced CO2 emissions, was subject to an EIA.Footnote 111 In Yongsheng v. Wafangdian EPB, one of the disputes between a cement manufacturing company and the local EPB involved the question of whether emissions of CO2 and nitrogen oxides during peak hours violated the LAPPC.Footnote 112 Moreover, the emergence of EIA-based climate change litigation is further bolstered by the trend of broadening standing qualifications in administrative litigation, as well as the advantageous role of the procuratorateFootnote 113 in supervising environmental authorities by bringing public interest litigation. Lastly, climate change claims could also take advantage of current EIA litigation practice to obtain judicial attention and settlement.
The Administrative Litigation Law (AL Law) and judicial experience show a clear trend in relaxing standing requirements for plaintiffs, which provides easier access for interested parties to bring climate change-related claims. Since the 1980s, grounds for standing in administrative litigation have expanded from ‘direct interest’ to ‘relating to administration’, and then from ‘legal rights and interests’ to ‘with an interest’.Footnote 114 For some time courts had relied on either direct contact theory or actual influence theory to judge whether the plaintiff has a stake in administrative action, and therefore standing.Footnote 115 To reduce the judicial discretion of lower courts when reviewing standing and to clarify the ‘with an interest’ standard, the SPC adopted the Schutznormtheorie (the theory of protective norms) in its judicial interpretation of the AL Law as well as in one of its recent high-profile administrative cases.Footnote 116
In Liu Guangming v. Zhangjiagang People's Government, the SPC delivered a very clear and influential message that ‘one important criterion for judging whether there is an interest in the administrative act is whether administrative organs are required to consider, respect and protect the substantive rights or legal interests of the plaintiff when making decisions according to related substantive administrative laws’.Footnote 117 Although it is contested whether this theory could apply to the protection of procedural rights, it does open up the possibility.Footnote 118 In fact, before this high-profile case, the SPC stated in an EIA case that ‘if the administrative body is required to solicit or hear the plaintiff's opinions in the administrative procedure according to substantive administrative law, it should be considered that the plaintiff has an interest in the administrative act being sued and therefore standing’.Footnote 119 Based on this understanding, what is crucial for standing justification in EIA litigation is to examine whether related laws obligate environmental authorities to seek opinions from the plaintiff.
Article 56 EPL stipulates that the environmental authority approving the EIA document is required to order the project developer to solicit public opinion if it discovers that the public has not been fully consulted over the project.Footnote 120 The MEE departmental rule on project-level EIA public participation clarifies that project proponents are required to seek the views of the public located within the geographical scope of the EIA by holding demonstration meetings, hearings, or by any other means before submitting the EIA reports for examination and approval.Footnote 121 Therefore, to determine whether the plaintiff is an interested party, the court could review whether the plaintiff is located within the geographical scope identified by the EIA reports. This criterion has been frequently adopted by judges in other cases.Footnote 122 Without the need to prove actual influence, citizens located within the geographical scope of a proposed project would find it easier to bring claims for insufficient consideration of climate change impacts, insufficient disclosure of climate change information, or poor public participation.
Furthermore, after the environmental authorities are entrusted with the responsibility of addressing climate change, one of the legal challenges for them is how to coordinate the responsibility of managing environmental issues and climate change.Footnote 123 This coordination requires the environmental authority to assess whether a proposed project under EIA approval is carbon-intensive or climate-vulnerable. The procuratorate has been empowered to bring litigation against government agencies on behalf of the public interest.Footnote 124 It is required to step in when an environmental authority violates EIA laws, violates the substantive or procedural obligations of addressing climate change, or is guilty of illegal administrative inaction.Footnote 125 Compared with lawsuits brought by individual citizens, the procuratorate has advantages in terms of its financial resources and expertise, as well as political support, which mitigates against the court's reluctance to accept cases that challenge governmental agencies.Footnote 126 More importantly, the requirement that administrative agencies rectify their omission or illegal behaviour before litigation commences not only protects the environmental public interest but also improves environmental law enforcement.Footnote 127
Conventional judicial practice in the area of EIA could be used as an avenue to deal with climate change claims. Empirical study shows that two types of EIA litigation account for the majority of cases.Footnote 128 The first type is litigation brought by project owners to challenge EIA enforcement by environmental authorities as being too strict or unlawful, especially where administrative penalties are concerned. The second type is litigation brought by local residents who are affected by the environmental impacts of projects and seek to annul decisions of environmental authorities on the basis of substantive or procedural violations of EIA law. Prominent examples of such litigation assert fraudulent public consultation, misleading or insufficient information disclosure, and lack of hearing.Footnote 129 Litigation against EIA approvals has provided an important channel for those affected to correct the unlawful decisions of environmental authorities.
In essence, the two categories of litigation represent two conflicting claims or interests embedded in the EIA regime: one trying to weaken EIA regulation, the other aiming to strengthen it. As project-related instances of climate change litigation, they are either brought by project developers to challenge environmental authorities on the ground of overly strict enforcement of mitigation or adaptation regulations, or they are brought by affected members of the public, or by the procuratorate, against environmental authorities for not adequately taking climate change risks into account in the decision-making process.Footnote 130 Hence, as with traditional EIA litigation, the categories include, respectively, anti-regulatory litigation and pro-regulatory litigation. It is therefore very plausible that climate change claims will be brought and litigated in the same way as traditional EIA claims.
4. TORT-BASED CLIMATE LITIGATION: IDENTIFYING LEGAL BARRIERS TO APPLYING TORT-BASED RULES TO CLIMATE CHANGE IN CHINA
The future of climate change litigation will be determined, at least partly, by how many legal barriers can be overcome without undermining existing legal orders and their coherence. This section argues that tort-based climate change litigation – including both public interest litigation and private litigation brought against GHG emitters – faces insurmountable litigation difficulties and political barriers in China. Thus, while some Chinese scholars remain hopeful that this type of litigation is the future of climate litigation in China,Footnote 131 this article calls for careful consideration of the legal difficulties involved.
Traditional rules on tort are developed to protect civil rights and interests, imposed on identified tortfeasors to impose liability, and implemented by the courts in individual cases. These rules encounter significant challenges when facing an issue as large-scale and complex as climate change, which still has many remaining scientific uncertainties in terms of its timeline and the manifestation of specific climate impacts.Footnote 132 Climate change is a collective action problem, diffuse and disparate in origin and lagging in impact. It has effects on an individual, local, state, national, and international level, which renders all of us and none of us responsible.Footnote 133 The cumulative nature of climate change also means that identifying defendants and measuring the proportion of damage caused by the emissions of a particular emitter is difficult. As a consequence, while the landscape of tort-based climate litigation is still evolving and there are some positive signs,Footnote 134 climate change litigation to impose legal liability or to seek compensation has so far encountered significant obstruction around the globe.Footnote 135 For example, tort-based climate change claims for liability and compensation for harm in the US have been largely unsuccessful, as courts are very reluctant to attribute particular harm to a particular emitter.Footnote 136 Australia, the country with the second highest number of climate change cases, has had the same experience with the result that prospects of success in tort actions are remote.Footnote 137 Two extremely challenging barriers for tort-based actions on climate change are standing and causation.Footnote 138 The following paragraphs explore whether the Chinese legal system facilitates tort claims.
The standing requirement is the key to identifying who is allowed to bring a claim before a court. Standing rules vary among different jurisdictions and different legal areas, depending on the extent to which legislators cede dispute-resolution responsibility to the judiciary. In China, standing is a significant issue for tort litigation because plaintiffs need to demonstrate direct interest in the lawsuits they file and satisfy the burden of proof for their claims.Footnote 139 In judicial practice, direct interest is present if the plaintiff's personal rights, property rights or other lawful rights and interests are infringed or affected by the person being sued.Footnote 140 This condition could be a meaningful legal hurdle for plaintiffs in climate change litigation in that they must demonstrate that their private rights have been directly affected by a particular defendant's GHG emissions.
As for public interest litigation, the 2014 EPL entrusts environmental NGOs to bring public interest litigation against ‘acts polluting the environment or causing ecological damage in violation of public interest’ without the requirement to prove standing.Footnote 141 Based on this relaxed standing threshold, genuine climate change litigation arguably could achieve a breakthrough via this type of litigation.Footnote 142 There is also the argument that the term ‘ecological damage’ could be reinterpreted to cover climate change, thereby providing a legal basis for NGOs to bring climate change litigation.Footnote 143 This article agrees that the empowerment of NGOs and the reinterpretation of ecological damage may provide an opportunity to bring public interest litigation in relation to GHG-emitting activities or activities that involve climate risks. However, as will be explained, the success of these types of claim depends on whether tort rules on environmental pollution could be applied to climate change. Furthermore, environmental NGOs have encountered various hurdles in proving their standing when bringing public interest litigation;Footnote 144 it could be even more difficult for them to prove standing when bringing climate change claims.
Secondly, establishing causation between carbon emissions and a particular alleged instance of climate damage represents an intractable barrier for claimants because of the multitude and highly dispersed nature of individual emitters responsible for the emission of GHGs.Footnote 145 As the court in the Kivalina case concluded, there was ‘no realistic possibility of tracing any particular alleged effect of global warming to any particular emissions by any specific person, entity, [or] group at any particular point in time’.Footnote 146 China's Tort Law and related judicial interpretation have developed favourable rules on causation for the plaintiff in environmental tort litigation in order to provide better access to courts for the victim-plaintiff.Footnote 147 For example, the Tort Law adopts strict liability so that the plaintiff does not need to prove that the defendant is at fault in causing damage. Most importantly, judicial interpretation on environmental tort also adopts the principle of presumed causation, where the burden of proof on causation shifts to the polluter-defendant after the plaintiff has shown that there is a connection between the discharged pollutants and the damage suffered, and the polluter-defendant bears the responsibility of producing substantial evidence in order to rebut causation.Footnote 148 However, these exceptional provisions are strictly pollution-based and rely heavily on environmental quality standards to determine causation.Footnote 149 Therefore, they could not simply be applied to climate change litigation, especially when CO2 is not defined as an air pollutant, and when no environmental standard exists against which to judge whether climate change goes beyond a certain threshold.
Tort Law is enacted by the legislature and involves complicated trade-offs of interests.Footnote 150 It is stringently code-based and therefore could not extend to climate change liability automatically in the absence of explicit provision.Footnote 151 Furthermore, judicial practice in environmental tort shows that while there is judicial divergence in the application of the rules governing burden of proof, the majority of judges require plaintiffs to prove causation in spite of the clear legal rules on the reversal of the burden of proof.Footnote 152 This serious departure from legislation and related judicial interpretation, together with strong judicial deference to science-based evaluation reports in proving causation,Footnote 153 cast serious doubt on the applicability of tort-based rules to climate change litigation. Moreover, if the rule of presumed causation and burden of proof were to apply to climate change claims, it would hardly be possible for alleged emitters to rebut causation by proving that their discharged GHGs could not possibly have caused the damage, which would render any targeted emitter accountable. This would result in a flood of claims, and the judiciary definitely does not want to open this Pandora's box.
In addition, in deciding whether to apply tort rules to climate change, Chinese courts will inevitably consider public policy concerns, including but not limited to the government's energy policy, economic concerns, the fairness of imposing liability, and the social burden. For example, most large energy producers and GHG emitters in China are state-owned enterprises (SOEs) – key actors in implementing the government's energy policy and GHG reduction goals.Footnote 154 SOEs and central and local governments work closely together such that SOEs rely on government for policy preference and government relies on SOEs to implement energy policy and improve international market competitiveness.Footnote 155 In many areas, centrally owned SOEs are a significant factor in making government policies, standards and decisions on climate change.Footnote 156 Therefore, it is easy to foresee that suing SOEs and holding them accountable for climate change harm would face challenging political barriers in China.
Admittedly, the difficulty in holding private entities accountable for their GHG emissions could be reduced as a result of developments in climate science. As argued, there have been great scientific advances in quantifying businesses’ historical emissions and attribution science, which ‘generates new opportunities for judges to rethink the interpretation of existing legal and evidentiary thresholds for claimants to meet the burden of proof and apply them in a way that will enhance the accountability of private greenhouse gas (GHG) emitters’.Footnote 157 Climate change cases in other countries also show that, in some instances, courts have actually responded to well-developed science on the impacts of climate change.Footnote 158 However, the emerging scientific development on ‘attribution science’ focuses primarily on the relationship between human activity on climate change and specific extreme weather events.Footnote 159 It does not respond directly to the key question of who caused those GHGs to be emitted into the atmosphere, who is the proximate cause of particular adverse climate change impacts, and therefore who should assume liability.Footnote 160 Plaintiffs in tort actions therefore will still find it difficult to trace alleged climate-related injuries or property damage to the actions of a particular defendant based on the currently available science.Footnote 161 This may change as climate science continues to advance, but the likelihood that this shift will occur in the near future is low.Footnote 162 A further challenge of tort-based litigation relying heavily on climate science is that it exposes courts to the conflict between science and causation, an issue that goes beyond the scope of judicial authority and competence.Footnote 163
5. CONCLUSION
Exploring the prospect of climate change litigation in China entails examining which part of environmental law provides greater potential, openness, and flexibility for the resolution of climate change disputes. The burgeoning developments in environmental tort law in China, and the numerous tort cases, do not necessarily signal a green light for climate change tort-based litigation. Current tort rules on environmental pollution are clearly designed for damage caused by traditional pollutants and could not apply directly to private claims relating to climate change. Even if tortious rules extend to climate change claims, the complexity and uncertainty inherent in climate change suggests that the challenge of proving standing and causation remains daunting. This article proposes that EIA, a well-established decision-making tool, could constitute the main pathway or approach for minimizing GHG emissions and adapting to climate risks at the plan or project level. Regulating climate change through EIA by interpreting or revising existing laws has been a global trend, and is reflected in national practice. Although China's EIA legal framework does not clarify that climate change is a legitimate environmental issue that should be addressed in the EIA process, it actually provides observable flexibility and possibilities for integrating both mitigation and adaptation. As a result, compared with tort-based litigation, EIA-based climate change lawsuits may encounter relatively fewer legal barriers, require less radical legal or institutional reform, and have greater potential to maintain existing legal orders.
Climate change litigation does not only take place retrospectively by reference to existing laws and regulations, but also could be constructed prospectively. The regulation-litigation interaction indicates that its profile and development could be framed or shaped in a certain way. Court rulings and judicial reasoning through the interpretation or application of existing laws will largely determine the flow of climate change lawsuits and map out subsequent regulatory pathways for addressing climate change. Compared with litigation against individual carbon emitters, this article finds that litigation against government authorities to ensure that climate change factors are adequately considered and evaluated in their EIA decisions could stimulate more proactive action by improving the decision-making procedures of both carbon emitters and government authorities. The emergence of a wave of EIA-based climate change litigation may also induce the MEE to enact stringent regulations to address climate change.
Despite the importance of climate change litigation as part of climate governance, its inherent constraints in addressing climate change need to be recognized. As argued by Peel, ‘the ad hoc nature of court proceedings, the expense involved in bringing them, and the uncertainty as to their results means that, in the long-term, litigation alone is unlikely to be an optimal approach for bringing about effective action to address climate change’.Footnote 164 Other criticisms include the limited capacity of the judiciary in adjudicating complex scientific issues embedded in climate cases, and the peril of issuing piecemeal or contradictory rulings.Footnote 165 These concerns also apply to China, especially when there is still much to do in improving climate change legislation. In the Chinese context, defects of the EIA regime also limit the regulatory influence of EIA-based climate change litigation. For instance, EIA at the planning level is exempted from judicial review, which indicates that the regulatory effects of EIA-based climate change litigation do not extend to government plans. Nonetheless, climate change litigation could serve as an instrument to enforce and reform existing climate and environmental regulation, or to debate and form consensus about the kind of climate legislation that is needed. Studies of climate change litigation will enrich our understanding of legal disputes engendered by climate change and the capacity of Chinese environmental laws to resolve these disputes, thereby contributing to the development of Chinese climate governance and offering a valuable comparator for climate litigation elsewhere.
