Research On The Standing Of The Environmental Public Interest Litigation

Though it started late in China, present environmental law has been formulated to be a relatively adequate system after hard work in legislation for more than 20 years. However, environmental pollution and ecological damage were aggravated seriously without effective controls. The formulated environmental statues couldn't be well enforced, which is one of main reasons to falling into the predicament. This situation has close relationship to the intrinsic defects within the environmental law enforcement system. Chinese environmental laws are mostly implemented by the authorities in environmental administration and execution, which lacks effective public involvement .The public who are tightly interrelated with environment matters are actually eliminated from the environmental law enforcing subject.The public has many ways to participate in the enforcement of environmental law. They could do that by means of advocating environmental protection, taking part in environmental influential assessment, bringing administrative complains to appropriate authority, suing to the court, etc. In these means, the most important one by which the public enforce environmental laws should be the public's right to sue for environmental matters. In democratic countries, the public's participation in the enforcement of environmental laws through environmental suit has changed the "single-direction" form in environment administration of the government, and the "double-direction" pattern would more effectively promote the implement of environmental laws. In the whole environmental constitutionality, the effective enforcement of environmental laws is in fact the key part and the essential requirement is to achieve the well compliance with formulated statutes.But the present Chinese environmental tort litigation system is defective in protection for public environmental right and interests. According to our present litigation legal system, both environment administrative litigation and civil litigation are in fact private prosecutions. Initiation of tort litigation takes the prerequisite for substantial personal injury or property damage of the prosecution, thus this kind of proceedings provides only afterward and individual remedy, and it could not preventthe occurrence of environmental pollution and damage. What's more important, in traditional tort proceedings, protection of environmental public interest is excluded from both the plaintiffs' motive in initiating a lawsuit and the defendant's purpose of defense, thus it is always neglected and even became a victim in the litigation. In a word, environment due to its nature of public goods is difficult to be comprehended by the present litigation legal system. For this reason, it is necessary to expand the present environmental litigation system, that is, to design a new system framework in which individuals in the society could initiate directly environmental public interest litigation for environmental damages. The present litigation legal system limits environmental public interest litigation mainly in aspect of the provision of standing and installation of standing relates tightly to the exercise of public right to litigate, thus the definition of "standing" is really the crucial and core issue in environmental public interest litigation. Initiation of the plaintiff is the prerequisite for courts to startthe judicial review process------"No plaintiff, no judge". This thesis examines thedevelopment of standing in environmental public interest litigation in legislation and in judicial practice, and also analyzes the doctrinal development of standing in the hope of framing our environmental public interest litigation system.The first chapter expounds some basic definitions related to environmental public interest litigation, and introduces its origin and growth in foreign countries, as well as the present environment litigation situation in China. In the United States and Japan, where have long history of constitutionality, the degree of activation of citizen environmental litigation and the quantity of cases before the court using environmental laws has been taken as a symbol for judging the degree of then-environmental enforcement. In order to enhance environmental public interest litigation these countries have liberalized standing upon citizens to bring environmental public interest litigation in the aspects of environmental legislation and judicial proceeding practice. On the contrary, in China present litigation legal system restricts standing in environmental public interest litigation, which causes some acts damaging environment excluded from judicial remedy, and further causes ineffectiveprotection towards environmental public interests.In- the second chapter, the author examines the development of standing in environmental public interest litigation in common law system countries, such as the United States, the United Kingdom, Australia and India, including their legislation and their judicial practice. Examining their experience in environmental public interest litigation,, it could be demonstrated that main countries of this system generally tend to hold a relatively open attitude towards standing in environmental public interest litigation after passing through a hard developing course. In common law system countries, one characteristic in the development of standing is that the breakout of legislative limitation in standing happened originally in case law, while development in statute was always somehow dragging. Modern environmental public interest litigation originated from the U.S., thus no matter in the area of environmental case law, or in environmental legislation in environmental public interest litigation, the U.S. is the most developed. This chapter stresses thus environmental case law function in the development of determining "citizen suit" standing, as well as introducing the development of statutes in standing, and it has also tried to analyze the hard developing of standing and its doctrinal and practical reasons.The third chapter is about the development of standing in some countries of continental law system, including Germany, the European Union and Japan. Compared with the common law system countries, plaintiffs' rights to sue are limited in a small scope in environmental public interest litigation in the continental law system, which could be seen from two aspects. Firstly, the scope of plaintiff has been imposed strict limitation, especially in some countries, which have strictly limited the right to prosecution of environmental groups. For example, in Germany, only those Non-Governmental Originations (NGOs) recognized by the government could be regarded as legal subjects to bring a lawsuit. But the suspending case of Stitchting Greenpeace Council v. Commission has brought a chance for EU courts to liberalize the environmental groups standing at the EU level. Secondly, the allegedenvironmental violations were limited. Environmental public interest litigation in most continental law system were confined only to the statutory unlawful issue, meanwhile, it has been confined only to administrative acts.The fourth chapter is about the doctrinal foundation for environmental public interest litigation. Public Trust Theory, Environmental Right Theory and Private Prosecutor Theory have provided the right basis for plaintiff of environmental public interest to come to the court. But the show out of right will not certainly bring the enforcement of right. For the various environmental rights in the mood of natural rights and the ought-to-have rights to be recognized as legal rights and finally as substantial rights, it still requires a key "joint" for the right to be realized -right to prosecution in environmental public interest. The importance of right to prosecution for the realization of right could be seen from the following" one hand, it can ensure the realization of right and the stability of the right system, on the other hand, it could help the whole right system to perfect itself in the dynamic state by means of promoting the birth of concrete rights. In the dynamic process in which public environmental right to prosecution realizes, using the right of prosecution to initiate the sword of justice, and to knock the "cheer of law" is a necessary access to realize rights. Methods of ensuring citizen's right of prosecution mainly include requirement of prosecution, installation of professional courts, proceeding fee system, legal aids system and proceeding insurance, etc. The core concepts should be the ensuring of requirement of prosecution (that is standing). This thesis has just started from the requirement of prosecution to research environmental public interest litigation system, with the purpose of analyzing the exercising of right of prosecution. From examination to standing legislation and judicial practice in environmental public interest litigation in both common law system and continental law system, the opinion in the thesis is that liberalizing environmental standing and lowering down the "threshold" for judicial review to administrative acts is the necessary prerequisite for improving the implementing prerequisite for improving the enforcing effect and realizing environmental rule of law.The last chapter presents systematic propositions to build our plaintiff types in environmental public interest litigation. The design of environmental public interest litigation system involves many problems, including how to grant standing to the suitable plaintiff in environmental public interest litigation, how to control overflowing suits, and how to bear the proceeding fees, etc. But the thesis is limited by its length and emphasis of the discussion, and it has just discussed the installation of the types of standing in environmental public interest litigation. In the design for Chinese environmental litigation system, we should combine it to our nation's situation, and also do some consideration of proceeding economy and preventing overflowing the right of prosecution. Thus we should permit the government, prosecutor's office and relating environmental groups and other public interest groups to bring environmental public interest litigation, and "the right to initiate" the machine of environmental public interest litigations should be handed out to general citizens.