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I. Principles of Codification: Emphasis should be placed on realism, progress and people's subjectivity.

In the process of compiling the Ecological Environment Code, the author believes that three key principles should be highlighted, which should not only be embodied in the general provisions of the Code, but also throughout the specific articles.

First, the principle of realism should be adhered to. Where is the pain point of environmental rule of law? Why are there still many problems that need to be solved even though they are highly valued today? In the author's opinion, information disclosure and public participation is the real short board of ecological environmental protection and environmental rule of law, especially in the field of environmental justice. The current problem does not lie in the imperfection of the law, but in the lack of compliance with the law and the lack of strict law enforcement; does not lie in the weak legal awareness of the public, but in the failure of the administrative organs and the judiciary to administer and administer justice in strict accordance with the law. Taking the opportunity of the codification of the code, efforts should be made to make up for this shortcoming, to provide substantive impetus for the construction of the rule of law. Regrettably, this point has not been given sufficient attention in the current draft.

Secondly, the principle of progress should be adhered to. The ecological and environmental code should absorb the legislative and judicial achievements of environmental law that have been made, and on this basis, continue to move forward and resolutely not regress. We should guard the legislative and practical achievements since the promulgation and implementation of the Environmental Protection Law, especially since the promulgation and implementation of the new Environmental Protection Law in 2014. No regression, no rebound, forward development, which should be the bottom line of the compilation of this code, only in this way can we compile an environmental code that meets the requirements of the new era of socialism with Chinese characteristics, so that the environmental code will become a good law to escort the construction of ecological civilisation.

Finally, the principle of the people's main position should be adhered to. We should implement the "people's subject position" clearly stipulated in the Constitution and the Party's tenet of relying on the people and for the people. In the field of ecological environmental protection and resource utilisation, the people's subjective position must be fully embodied, and the public's right to participate in ecological environmental protection and resource utilisation, as well as the right to supervise the governmental organs, must be put into practice, not at the level of slogans, but rather in the provisions of the code. If the Code only provides for the right of public participation in general terms, but lacks specific provisions to ensure its implementation, it will be a departure from the original intention of the Party to serve the public and the State to serve the people.

II. Proposed amendments to specific articles of the draft

(I) Contradiction between Article 143 and Article 1068

"The original text of the draft:

Article 143 The State encourages social organisations and volunteers to engage in public welfare activities for ecological environmental protection in accordance with the law.

Where pollution of the environment or destruction of ecology harms the public interests of society, social organisations that meet the following conditions may bring civil lawsuits to the people's courts:

(a) registered in the civil affairs department of the people's government at or above the municipal level in the district according to law;

(B) specialising in ecological environmental protection activities for more than five consecutive years and no record of violations.

Social organisations that meet the requirements of the preceding paragraph shall file a civil lawsuit with the people's court, and the people's court shall accept the case in accordance with the law.

The social organisation bringing the lawsuit shall not seek economic benefits through the lawsuit.

Article 168 Where pollution of the environment or destruction of ecology damages the public interests of society, the people's procuratorate or a social organisation that meets the provisions of this Law may, in accordance with the law, institute a lawsuit in a people's court.

Problems:

Article 143 of the draft restricts social organisations to civil public interest litigation on the environment only, while the public interest litigation stipulated in Article 1068 does not exclude administrative public interest litigation on the environment in terms of the wording of the litigation, and there is a contradiction between the two articles.

Suggestion:

Combine Article 143 and Article 1068 into one article and directly adopt the formulation of Article 58 of the current Environmental Protection Law.

Reasons:

1. Article 143 restricts the right of environmental protection social organisations to carry out environmental administrative public interest litigation, and does not allow social organisations representing the public to supervise the administrative power through administrative litigation, which is contrary to the provisions of the Constitution;

2. in the field of environmental protection, allowing the public to exercise their right to participate and supervise in the form of environmental civil public interest litigation through social organisations, but not in the form of environmental administrative public interest litigation, is not justifiable in jurisprudence. Environmental organisations to participate in environmental protection through environmental administrative public interest litigation is the common practice of most countries under the rule of law, and has been tested in practice;

3. behind the large-scale environmental violation cases there are often malfeasance or internal and external collusion and other administrative violations, supervise the administration, prompting the administration of lawfulness should be the focus, in line with the reality of our country;

4. Although judicial practice actually restricts environmental organisations' environmental administrative public interest litigation, it is not explicitly prohibited by the current law, which not only ensures smooth jurisprudence, but also leaves room for future development.

(ii) Proposed amendments to Article 1066

The original text of the ‘draft’:

Article 1066 If, in violation of state regulations, pollution of the environment or damage to the ecology causes losses to the state, the people's government at or above the municipal level of an area or a department or agency designated by it shall consult with the enterprises, institutions and other production operators that have caused the environmental pollution and ecological damage, and request them to bear the responsibility for compensating for the ecological damage; if no agreement is reached, a lawsuit may be filed in a people's court. If no agreement is reached in the consultations, a lawsuit may be filed with the people's court.

If the relevant local people's government, relevant department or institution entitled to bring a lawsuit in accordance with the preceding paragraph does not bring a lawsuit, the people's procuratorate or the relevant social organisation may, in accordance with law, bring a lawsuit to the people's court.

Problems:

1. The concept of "loss" is not limited. 2;

2. Failure to clarify the order of precedence between consultation and litigation. 3;

3. Failure to legislate on the status quo. In practice, the consultation and litigation on compensation for ecological and environmental damages has been seriously abused, and has become a tool to block social organisations' environmental public interest litigation.

Recommendations:

1. limit the damages so that only "particularly significant damages" can be sued by the government. 2. clarify the order of action for government departments;

2. make it clear that governmental departments should be ranked after environmental protection organisations, and stipulate that the government should no longer carry out consultation and litigation after social organisations have filed lawsuits, but should join the existing lawsuits to support social organisations' environmental public welfare litigation.

Rationale:

1. after the government consultation and litigation is given priority, it is often used as a means to block environmental organisations' public interest litigation, and in practice, it is often reduced to a channel of "letting water out of the water" for polluting enterprises;

2. If the concept of "loss" is not limited, local governments will be forced to deal with a large number of cases, wasting administrative resources and increasing the burden on the judiciary. Litigation should not be the Government's main modus operandi, but should play more of a regulatory and safeguard function.

(III) Proposed amendments to Article 1069

The original text of the ‘draft’:

Article 1069 Where a people's procuratorate, in the course of performing its duties, finds that a department or organ with supervisory or management responsibilities in the field of ecological environmental protection has exercised its powers in violation of the law or has failed to act, it may, in accordance with the law, make a procuratorial recommendation or institute a lawsuit.

Issues:

1. failure to stipulate the ordinal position of procuratorial public interest litigation;

2. fails to specify the support of the procuratorate for public interest litigation by social organisations; in reality, when a social organisation takes over a public interest litigation case within the announcement period of the procuratorate, the procuratorate tends to withdraw from the litigation process altogether and no longer provides any support, leading to the environmental organisations facing great difficulties in the course of the subsequent litigation;

3. failing to specify that the same environmental offence shall not be subject to repeated litigation;

4. only administrative public interest litigation is provided for.

Suggestions:

1. amend Article 1069 to include both civil and administrative litigation;

2. continue the provisions and practices in judicial practice, clearly stipulate the pre-procedure for procuratorial public interest litigation, and retain the current public notice of more than 30 days, so that if a social organisation files a lawsuit, the social organisation will continue the work of the public interest litigation, and the procuratorate will participate in the subsequent litigation as a supporter;

3. to specify that where a social organisation has filed a lawsuit in respect of the same environmental offence, the procuratorate shall not repeat the lawsuit.

(IV) Proposed Amendments to Article 1072 on Evidence for Public Interest Litigation

Original text of the ‘Draft’:

Article 1072 An organ or organisation that files a lawsuit with a people's court in accordance with the provisions of Articles 1066, 1067 and 1068 of this Law shall provide the following proof:

(i) The perpetrator has committed an act of polluting the environment or damaging the ecology, and that the act is in violation of state regulations;

(ii) The ecological environment has been damaged or there is a significant risk of suffering damage;

(iii) the cost of ecological damage, the cost of ecological restoration and other costs.

Questions:

1. equalising the burden of proof for three different subjects, namely, social organisations, government departments and procuratorates, ignoring differences in actual capacity;

2. failing to retain the ‘prima facie evidence’ system that has been in place since the implementation of the Environmental Protection Law in 2014, i.e., environmental protection organisations are only required to submit prima facie evidence to prove the consequences of damages and significant risks of environmental infringement in environmental civil public interest litigation;

3. ignoring the special provisions on evidence in public interest litigation in the current law. The judge's ex officio access to ‘evidence necessary for the hearing of the case’ in public interest litigation is a legal obligation of the judge as stipulated in the current Civil Procedure Law, and the neglect of this obligation is one of the main reasons why social organisations have lost environmental public interest litigation in a large number of cases at the present time.

Suggestions:

1. add a provision in Article 1072 that the proof of ecological damage or risk of damage by social organisations in public interest litigation can reach the level of prima facie evidence;

2. the requirement for environmental organisations to prove the amount of damage and the cost of restoration should follow the existing provisions, i.e., as long as the environmental organisation states that the amount of damage and the cost of restoration are subject to appraisal and assessment, that part of the evidence can be subject to the appraisal and assessment conclusion reached by the court in the course of the litigation;

3. Clearly stipulate that the court in the hearing of environmental civil public interest litigation, must be in accordance with the law to access the ‘evidence needed to hear the case’.

Special Announcement:

This article was originally written by JIA LAWYER , only on behalf of the author's own views, and shall not be regarded as a formal legal opinion or advice issued by JIA LAWYER. If you need to reproduce or quote any of the content of this article, please specify the source.