Empirical Analysis Of Preventive Environmental Civil Public Interest Litigation

Preventive environmental civil public interest litigation refers to the litigation against those actions related to environmental pollution and ecological destruction that may lead to significant risks of damaging social public interests in order to prevent environmental damage.Such lawsuits are of great value in preventing environmental damage.Although no relevant system has been established in China,some environmental protection organizations have started the practice of preventive environmental civil public interest litigation to prevent environmental damage.Through the analysis of the existing judicial practice,it can be seen that there are many highlights and deficiencies in the court’s acceptance,trial,and judgment of such cases,which are exactly related to the core issues of the construction of the preventive environmental civil public interest litigation system.In the practice of carrying out preventive environmental civil public interest litigation,the court has made some beneficial explorations,among which the highlights are mainly as follows.First,the identification path of major risks is reasonable.The court determines whether the construction project has a significant risk of damaging social and public interests in combination with the existing list of key protected wild animals and plants and the red list.It reflects the court has taken the probability and severity of the damage into account,which is reasonable.Second,the distribution of the burden of proof has its rationality.Court ordered the plaintiff sued behavior has a significant risk of burden of proof to achieve low probability of the preliminary proof standard,has no significant risk by the defendant to prove that follows,to achieve high probability of proof standard,it can avoid the loss of environmental groups bear the heavy burden of proof to Sue’s enthusiasm,a reasonable allocation of burden of proof.Third,the way of judgment is innovative.When the plaintiff’s claim involves the content of the administrative scope of the administrative organ,the court adopts an open judgment,which is no longer limited to the plaintiff’s claim but flexible.It not only ensures that the judgment achieves the litigation purpose as much as possible but also avoids going beyond the administrative power.Fourth,the conclusion of mediation demonstrates the cost-saving and preventive effect.The original defendant can directly reach a mediation agreement on how to eliminate major risks.Compared with the shorter time for the conclusion of the case,the timely conclusion of the case is helpful for the defendant to carry out the prevention work in time,saving time cost and reflecting economic efficiency.The agreement stipulates that the plaintiff can supervise the implementation of the agreement,which is conducive to the implementation of preventive measures and reflects the preventive effect.In addition to the above beneficial explorations,there are still many shortcomings in the practice of environmental civil public interest litigation in China.For example,first,the number of cases is small and the duration is too long.Second,the standards for accepting cases are inconsistent.Some courts think that the preliminary proof material can accept the case if it meets the low probability proof standard.Some courts have high standards for accepting cases and fail to accept them when the standards are met.Third,the courts,when determining major risks,rely too much on administrative agencies.Some courts view the attitude of the administrative agency towards the EIA document as the basis to judge whether the defendant’s action poses a significant risk.Fourth,there is a lack of connection with administrative supervision.This is mainly reflected in the failure of the court to inform the administrative authority that has the right to manage the facts involved in the trial of the case after the judgment,which may lead to the disconnection between the judiciary and the administration.In order to continue the beneficial practices of the court,make up for the shortcomings in practice,and fully realize the value of preventive environmental civil public interest litigation,the system of preventive environmental civil public interest litigation is constructed from the following six aspects.First,improve the identification of major risks.The concept of major risks,identification subject,basic object,and reference factors during identification,etc.,must be clearly defined to facilitate the acceptance and trial of cases.Second,clarify the conditions for accepting cases.By excluding some cases from the scope of acceptance,litigation overstepping the executive power can be avoided.Third,set up the procedure of notice before and during litigation.The priority exercise of executive power is fully guaranteed through this procedure.Fourth,determine the distribution of the burden of proof.Presumption principle of causality should be used to reasonably divide the burden of proof between the parties.Fifth,introduce the permanent ban and additional environmental plan as two preventive relief methods to ensure the realization of the purpose of litigation.Sixth,establish a sound judgment execution system.Through strengthening the supervision of the execution of the judgment and the establishment of multi-party linkage,the scientific implementation and execution of the judgment can be guaranteed.