Provisions of the Supreme People’s Court on Trials Involving Compensation for Damage to the Ecological Environment (Trial Implementation) (Mainland China)

Di Wu

Recently, the Supreme People’s Court promulgated the Provisions on Trials Involving Compensation for Damage to the Ecological Environment (Trial Implementation) (the “Provisions”).  The Provisions primarily refine the categorization of the entities and jurisdiction of cases involving compensation for damages caused to the ecological environment.  The Provisions are highlighted below:

1. Clarification of the plaintiffs in cases involving damage to the ecological environment

The Provisions clarify that the people’s government at the provincial or prefecture city level, or the relevant department or institution designated by it or the department authorized by the State Council to exercise ownership of all natural resource assets, may file a lawsuit as the plaintiff to seek compensation for damage to the ecological environment in the following types of cases involving damage to the ecological environment: (1) a relatively serious, serious or particularly serious environmental emergency occurs; (2) an environmental pollution or ecological damage incident in a key ecological function zone or prohibited development zone as delineated in national and provincial main function zone plans; or (3) any other incident resulting in serious consequences affecting the ecological environment.  In addition, two scenarios are no longer excluded from the Provisions: (1) compensation for personal injury or loss of personal and collective property that is attributable to environmental pollution or damage to the environment (applying tort law and others); and (2) compensation is claimed for damage to the marine ecological environment (applying the Marine Environmental Protection Law and others).

2. Competent courts

The Provisions stipulate the competent courts.  First, the people’s court at or above the intermediate level in the place where the act damaging the ecological environment is conducted, where the resulting damage occurred or where the defendants are domiciled shall have jurisdiction.  A higher people’s court may, with the approval of the Supreme People’s Court, consolidate first instance lawsuits that are being collectively tried by the intermediate people’s court.  Finally, if it is deemed necessary by an intermediate people’s court, it may transfer, with the approval of the higher people’s court, a first instance case to a basic-level people’s court that is capable of adjudicating the matter.  Cases involving compensation for damage to the ecological environment shall be tried by the environmental resource tribunal of a people’s court or its specialized court.

If a civil public interest lawsuit is filed over the same alleged act of damaging the ecological environment, if the statutory conditions for filing a complaint are satisfied, such lawsuit shall be accepted by the people’s court that is trying the compensation case.

3. Clarification of the required materials for establishing the case and the burden of proof

In a case involving compensation for damage to the ecological environment, the plaintiff is required to submit the following materials to the court: (1) proof that the plaintiff is qualified to bring the lawsuit; (2) proof showing satisfaction of any one of the circumstances set forth in Article 1 of the Provisions; (3) explanation about failed negotiations with the defendant or the objective reasons for the failure to negotiate with the defendant; and (4) a complaint that meets the statutory requirements along with copies in a number equivalent to the number of the defendants.

The plaintiff shall assume the burden of proof for the following assertions and facts: (1) the defendant has engaged in an act that polluted the environment, damaged the ecology or any other action that is otherwise punishable pursuant to law; (2) the ecological environment has been damaged, and repair costs have been incurred; and (3) the defendant’s act is linked with the damage to the ecological environment.

Incident investigation reports, inspection reports, test reports, evaluation reports, monitoring data, etc., as prepared by environmental resource protection and supervision authorities or their entrusted institutions in the course of administrative law enforcement may be used as the basis for determining the facts of the case after the parties have cross-examined the evidence and the evidentiary standards are met.

4. Liabilities of the defendant

The people’s court shall, according to the litigation claims and the specific circumstances of case, render a judgment to compel the defendant to assume civil liabilities such as restoring the ecological environment, compensating the losses, stopping the infringement, eliminating the obstructions and hazards, and make apologies.  If the environment can be restored, a judgment shall be rendered to compel the defendant be responsible for the restoration, or if defendant fails to perform the restoration work, bear the costs of such restoration.  If restoration or complete restoration is not possible, the plaintiff may request the court to compel the defendant to compensate the losses caused by such permanent damage, and the people’s court shall render a judgment based on the circumstances of the specific case.  If the plaintiff requests that the following costs be borne by the defendant, the people’s court shall also render a judgment based on the circumstances of the specific case: (1) costs of implementing of emergency solutions, prevention of the occurrence and spread of environmental damage; (2) costs associated with the investigation, inspection, appraisal and assessment in connection with the compensation negotiations and litigation; or (3) reasonable attorney’s fees and other reasonable expenses expended for the litigation.

5. Other

If an agreement on the compensation for damage to the ecological environment is reached through negotiation, the parties may apply to the people’s court for judicial confirmation. After accepting the application, the people’s court shall announce the contents of the agreement, which shall be publicized for less than 30 days.  If, after the publication period, the people’s court concludes that the contents of the agreement do not violate mandatory provisions of laws and regulations and do not undermine national interest or the public interest, a ruling will be made to confirm the validity of the agreement.  The ruling should disclose to the public the basic facts about the case and the contents of the agreement.