In what may be the strongest backing yet for climate litigation, the Supreme People’s Court, China’s highest court, published a guidance document on the type of judicial services it would provide to assist the state in achieving its national decarbonisation targets in February this year. Observers say that the new move will encourage China’s public interest prosecutors to bring climate cases to court and pressure local governments and businesses to abide more strictly by emerging environmental laws.
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Describing the guidelines on climate change-related cases as a milestone for climate governance in China, Dimitri de Boer, Asia regional director of programmes for environmental law charity ClientEarth, told Eco-Business that climate litigation “has the potential” to be effective in helping the world’s top emitter achieve its dual carbon goals of peaking carbon emissions by 2030 and meeting full carbon neutrality by 2060. De Boer pointed to how public interest litigations for the environment in the past few years have pushed China closer to strictly enforcing its environmental laws and regulations.
“These cases across the country have changed the perception of what the environmental laws mean. They have made local governments and businesses realise that environmental laws are just as important as other laws, and can’t simply be ignored,” de Boer said.
Numbers also show that as climate litigation gains official support, more are taking businesses and local governments to task via the courts, on the grounds that they are disrespecting China’s policies on climate change.
De Boer said that “prosecutors around the country are encouraged” to think about climate litigation as an option. “There will be lots of litigations all around China, none of which will be particularly flashy, but their sheer volume will make a huge difference in aggregate,” he said.
NGOs to play a larger role in climate lawsuits
A recent study by United Nations Environment Programme and Columbia University’s Sabin Center highlights how climate-related legal cases have more than doubled globally since 2017, with developing Asia increasingly taking legal action over climate-related harm. The data shows the number of cases in China from 2017 to 2022 still lagging behind its Asian peers, but it is also the first time that climate change cases from China have been identified in the global climate litigation report, along with cases from South Korea and Papua New Guinea in Asia Pacific.
Over the past decade, environmental protection and climate change have become increasingly important priorities for the Chinese government.
The concept of “ecological civilisation”, long touted by the government and media, was officially enshrined into the country’s constitution in 2018. Serious efforts have been made to clean up the country’s water, air and land, which used to be among the most polluted in the world. Concrete policy targets have also been set, with the current 15th Five-Year Plan, which runs from 2021 to 2025, stating that China needs to see an 18 per cent reduction in carbon dioxide emissions per unit of gross domestic product (GDP) and an increase in the share of renewable energy in its energy mix from 15.9 per cent in 2020 to 20 per cent by 2025.
China’s courts of law are emerging as an important platform for the promotion of the central government’s environmental policies, especially when it needs to ensure that local governments abide by national environmental laws. In a country as vast as China, different provincial governments, to some extent, are empowered to set their own policies, and might be affected by clashing and entrenched interests supporting the use of coal and other fossil fuels, hence deviating from climate action.
Public interest litigations for environmental protection received the green light from the Chinese government in the middle of the last decade. For now, an amendment to its environmental protection law in 2015 has allowed environmental non-government organisations (NGOs) to initiatie public interest litigations, but this route is restricted to only local Chinese NGOs, not international ones with a presence in the country.
In practice, China has few NGOs with sufficient human and financial resources to carry out such litigations. On average, NGOs file a few dozen environmental public interest litigations a year, with mixed results.
NGO representatives hope that they can play a more important role in future climate litigations.
One NGO, albeit a state-backed one, which has accumulated a rich experience in dealing with public interest climate litigations is the China Biodiversity Conservation and Green Development Foundation (CBCGDF). Ma Yong, its deputy secretary general, told Eco-Business that the foundation has initiated over 150 litigations in the past few years, on topics ranging from air, water and land pollution to environmental destruction, deforestation and damage to wild animals and plants.
Ma is optimistic about what NGOs can do in climate lawsuits. He said that climate litigation is necessary and will be supported by the state, and noted that if China fails to achieve its dual carbon goals, that would affect its international reputation. The state is unlikely to allow this to happen, he said.
Compliance with carbon markets an emerging issue
Ma also predicts that there will be an increasing number of litigations related to companies failing to comply with the terms of China’s carbon market, which has been operational since 2021. “Public interest litigations are certainly an important choice for social organisations that want to encourage action on climate change,” he said.
In 2017, a seminal case which involved China’s state grid in Gansu Province being sued for its high abandonment rate of wind power, allegedly in contravention of the country’s renewable energy law was brought to court by a Chinese NGO. The NGO Friends of Nature (FON) had argued that the company’s failure to purchase all the electricity produced by wind and solar energy in the province went against the law which indicates that state grids need to purchase all electricity generated from renewable sources.
More broadly, the guidance document issued by the Supreme People’s Court in February highlight cases falling into categories of the green development transition, the restructuring of heavy industry, establishing a clean, low-carbon, safe and efficient energy system, as well as improving the carbon market. It also aims to enhance industrial restructuring, pollution control, and ecological protection, as well as balancing development and emissions reductions, short- and long-term carbon goals, and the relationship between the government and the market.
Observers note that in China, climate litigations are still mostly initiated by prosecutors, who are most able to litigate effectively in favour of the environment. New amendments to the Civil Procedure Law and the Administrative Procedure Law in 2017 had allowed procuratorial organs across China to launch public interest litigations.
Before filing an official case, the prosecutors first send a warning notice to the government agency, reminding it to fulfil its legal obligations and rectify the situation. Two months are usually given for the agency to make corrections, or 15 days in urgent cases. In most cases, the government body responds to the warning and takes corrective action, and the case does not go to court.
Since a pilot was started in 2015, Chinese prosecutors have filed thousands of environmental public interest litigations. They are increasingly seen as an important tool in the government’s efforts to curtail pollution and reign in environmentally harmful decisions at the local level.
De Boer believes that for real progress to be made, the legal system in China also needs to be strengthened to factor in climate-related issues. “Currently there is no real climate law,” he said. “Climate change is still not mentioned in a lot of laws.”
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