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Is China Ready for Climate Litigation?

We believe China will soon witness a series of climate cases, despite the absence of a dedicated climate change law. The year 2021 has seen a series of concrete steps towards China’s carbon neutrality goal. Earlier on, the Chinese Ministry of Ecology and Environment (MEE) issued a series of carbon market regulations, a policy document on coordinating climate and environmental work, and another one on mobilizing climate finance. The State Council has issued a guiding opinion on building a low-carbon circular economy.

This momentum is keeping up. In May, a high-level Carbon Peaking and Carbon Neutrality Leadership Working Group was formed, led by Vice Premier Han Zheng. He asked to break down the climate targets and formulate action plans down to regional, sectoral, and enterprise-level, starting from state-owned enterprises.

Shortly after, the MEE issued the Guiding Opinion on Strengthening the Prevention and Control of High Energy-consuming and High-emission Construction Projects at the Source for Ecology and Environment. For the first time, carbon emissions must be factored in the environmental impact assessment (EIA) of high emission projects, in accordance with regional and sectoral peaking targets. This document imposes a hard legal obligation on local governments to tighten the EIA process and strengthen inspections against carbon-intensive industries. Importantly, it provides a legal hook for prosecutors and NGOs to bring climate change cases against emitters and relevant approval authorities. The upcoming amendment to the national EIA law is likely to explicitly incorporate climate change impacts now.

The role of the judiciary in tackling climate change was also emphasized in the World Judicial Conference, which was co-organized by China’s Supreme People’s Court and UNEP in Kunming in May. The resulting Kunming Declaration of the World Judicial Conference on Environment calls for courts to play a proactive role in tackling climate change, and envisages climate litigations involving carbon reduction, emission trading, green finance, etc. to contribute to this. A diversified array of judicial measures are advocated, including the use of preventive litigation, injunctions against harmful projects, restorative measures, and more.

With almost all the key pieces in place, China is poised to witness the first series of climate change litigations now. Political support is there – President Xi has pledged to achieve carbon neutrality by 2060; the Kunming Declaration highlights China’s judicial ambition, and the leadership has clearly emphasized that the climate transition must accelerate now. The institutional setup is there too – a top-level climate change working group was formed; China has specialized public interest prosecution departments at all levels, which can bring cases against the government and have brought over 80.000 environmental cases in 2020 alone. Just last week, the Supreme People’s Procuratorate agreed to publish an opinion piece which we drafted, which argues that China’s public interest prosecutors can and should bring climate change cases. We take this as a signal that the procuratorate is open to exploring such cases. The courts are ready too – China has established specialized environmental courts at all levels, and Chief Justice Zhou Qiang has long supported the idea that China’s courts should play an active part in the climate transition. The courts even have a definition of climate cases – in a white paper published last year, the Supreme People’s Court for the first time included a description of climate cases, including mitigation and adaptation cases that involve the emission of substances directly or indirectly impacting the climate.

Although China does not yet have a dedicated climate change law, vice-premier Han Zheng has instructed MEE to start working on a draft. And lots of climate litigation has been brought in countries around the world that don’t have a climate change law. With the right motivation and some creative thinking, China’s prosecutors and NGOs can bring all kinds of climate cases using existing statutes, such as the Civil Code, the Environmental Protection Law, the Environmental Impact Assessment Law, the Renewable Energy Law, the Atmospheric Pollution Prevention and Control Law, the National Carbon Market Regulation, the Pollution Permit Regulation, just to name a few.

In fact, climate cases have already been brought in China. The first climate change case brought by China’s prosecutors was resolved in March 2021. The Zhejiang People’s Procuratorate brought a climate change public interest litigation against a company illegally releasing ozone-depleting substances in the production of insulation materials and requested compensation for environmental damage.

An earlier case was brought by Friends of Nature, an environmental NGO against the State Grid in Gansu Province, claiming breach of the Renewable Energy Law because the grid had been buying coal power, forcing local wind power to be curtailed. While this case is yet to be resolved, it is widely considered to be China’s first major climate change case. Cases against government policies that encourage the curtailing of renewable energy, or which encourage fossil fuel consumption, such as fossil fuel subsidies, are clearly possible.

A very promising pathway is the use of EIA law to bring climate cases. For example, NGOs or prosecutors might be able to challenge the approval of a newly proposed, or recently approved, coal-fired power plant, if the environmental impact assessment was flawed in process or substance. The legal basis is boosted by the above policy document – to incorporate carbon emission in the EIAs for high emission projects. Insufficient information disclosure and public participation can also be feasible legal handles to bring a case.

Prosecutors might also be able to initiate public interest litigation against provincial government departments, if they fail to meet their legal mandate towards the low carbon transition, such as to formulate and implement regional carbon peaking targets, to control energy consumption and carbon emission, to reduce overcapacity, etc. For example, in late 2020 one of China’s regions was criticized by a Central Environmental Inspection for failure to lower energy consumption and intensity.

China is taking vigorous actions towards its carbon neutrality goal, with increasing emphasis on the role of the judiciary. The legal bases for bringing climate cases are being strengthened through the adoption of laws, regulations, and policy documents. With its huge GHG reduction potential, China’s determination to deepen the rule of law in tackling climate change is critical for the globe.

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