Restorative Justice Takes Root in China’s Environmental Litigation

China’s Supreme People’s Procuratorate (SPP) has provided some insights into where the country stands in prosecutions for environmental pollution. The SPP is China’s highest body responsible for prosecutions and investigations and is responsible for handling illegal activities that undermine the interests of the Communist Party of China.

A recent statement signalled that environmental litigation in China is increasingly taking a restorative justice approach, stating this is needed to “improve the ecological environment governance system”. Restorative justice focuses on repairing harm rather than punishing an offender. In the context of environmental pollution, restorative justice can indeed foster accountability and rehabilitation of ecosystems, which ultimately promotes a healing relationship between society and the environment. China’s approach to restorative justice has its roots in Confucian theory, where harmony is fundamental to society and punishment should be a last resort to prevent crime.

Between January and June 2024, Chinese courts prosecuted 1,597 defendants for polluting offences. The procuratorate identified persistent issues such as illegal cross-regional disposal of hazardous waste, significant pollution from traditional industries, fraudulent monitoring data, and third-party agencies concealing pollution. Notable incidents include illegal hazardous waste dumping, unlicensed battery processing, and fraudulent environmental monitoring.

Since 2018, China’s Constitution promoted an “ecological civilisation”, which implied that environmental protection became key to its national strategy. By extension, this imbued an increased role in public environmental interest litigation. Public interest litigation in China is usually initiated by the procuratorate. There is no legal route for individuals to bring these cases, and non-governmental organisations are subjected to stringent requirements in order to qualify as plaintiffs. This system of the procuratorate is unique to China. It may even be more effective in prompting governmental entities to take action. However, the system has its shortcomings too, as vulnerable groups may not feel represented by the SPP which prevents the attainment of true justice.

Developing Climate and Environmental Litigation in China

China has a strong history in environmental public interest litigation, and this momentum is expected to extend to climate litigation as well. In February 2023, the Supreme People’s Court issued new guidance specifically addressing climate cases. The guidance provided instructions for courts on handling climate disputes. The guidance also encouraged the public interest prosecutors to include climate litigation in their efforts. This strategic move aims to leverage judicial power to support China’s ambitious dual goals of carbon peaking and carbon neutrality.

Despite being in its early stages, China’s climate change litigation is evolving through various legal channels. While the primary focus has largely been on remedial measures – such as public interest litigation – there is a growing body of cases addressing climate-related concerns. For instance, notable litigation has included disputes over greenhouse gas emissions and air pollution, exemplified by a case where the NGO Friends of Nature sued Hyundai for exceeding emission standards. According to recent research on climate litigation, climate litigation in China also encompasses issues related to industrial restructuring, including energy substitution and green finance.

Furthermore, there is significant judicial activity concerning the development of a clean energy system, involving conflicts over coal use and renewable energy projects. In line with the burgeoning carbon trading market, courts are increasingly involved in disputes related to carbon emission quotas and voluntary reduction certifications. However, China has yet to see cases that are explicitly based on constitutional or human rights arguments related to climate change.