Regulatory authorities

Regulatory authorities

Which authorities are responsible for the environment and what is the scope of each regulator’s authority?

Environmental protection supervision system in China is unified supervision combined with supervision by other departments. The environmental protection administrative department of the State Council generally supervises and administers the national environmental protection work, while the environmental protection administrative departments of the local people’s governments at and above the county level generally supervise and administer the environmental protection work within their respective administrative regions. The relevant departments of the people’s governments at and above the county level and the environmental protection departments of the armed forces supervise and administer resource protection, pollution prevention and control, and other environmental protection work in accordance with the provisions of the relevant laws.

Investigation

What are the typical steps in an investigation?

Environmental protection regulatory authorities have the power to conduct on-site inspections of enterprises, institutions and other producers and operators that discharge pollutants. The person under inspection shall truthfully report the situation and provide the necessary information. According to Measures for Environmental Administrative Punishment, when investigating and gathering evidence, there shall be at least two investigators who must show their Chinese environmental supervision certificates or other administrative law enforcement certificates and make on-the-spot inspection records and on-site inspection sampling, and produce a monitoring report.

Administrative decisions

What is the procedure for making administrative decisions?

The Measures for Environmental Administrative Punishment stipulate the general procedures of environmental administrative punishment, including case filing, investigation and gathering evidence, case examination, notification and hearing, and handling decisions. At the decision-making stage, the parties shall have the right to make statements and offer a defence, and to request a hearing. In making the final administrative penalty decision, it is also based on the Guidance on Further Normalising the Discretion of Environmental Administrative Punishment issued by the Ministry of Ecology and Environment. The ‘three systems’ – the administrative law enforcement publication system, the recording system of the whole process of law enforcement, and the legal review system of major law enforcement decisions – shall be fully implemented in administrative procedures.

Sanctions and remedies

What are the sanctions and remedies that may be imposed by the regulator for violations?

The Measures for Environmental Administrative Punishment stipulate that the types of environmental administrative punishment include: a warning; fines; an order to stop production for rectification; an order to stop production, business operation or close down; temporarily withholding or revoking a licence or other certificates that are in nature a licence; confiscating illegal gains or illegal properties; administrative detention; and any other type of administrative punishment as prescribed in any law or administrative regulation. The party concerned may legally apply for an administrative reconsideration or bring an administrative lawsuit against the administrative punishment decision if the party concerned refuses to accept the decision.

Appeal of regulators’ decisions

To what extent may decisions of the regulators be appealed, and to whom?

If the party concerned refuses to accept the decision, it may legally apply for an administrative reconsideration or bring an administrative lawsuit against the administrative decision or act. The reasons for the appeal include that the administrative decision made by the environmental administrative department is illegal, the administrative decision should be revoked or changed, and that the environmental administrative department is required to perform certain statutory duties. The provisions of the Administrative Litigation Law shall be applicable to the initiation, acceptance, jurisdiction and execution of environmental administrative litigation, including the procedures for filing a complaint, accepting a case, trial and judgment.

Judicial proceedings

Judicial proceedings

Are environmental law proceedings in court civil, criminal or both?

Environmental litigation includes civil and criminal proceedings. Environmental civil litigation is generally filed by the victim because of the damage caused by the defendant’s environmental infringement, demanding compensation for damages and stopping the infringement. The Civil Procedure Law also stipulates public interest lawsuits. For conduct that pollutes the environment, infringes upon the lawful rights and interests of large consumers or otherwise damages the public interest, an authority or relevant organisation as prescribed by law and procuratorate may institute an action in a people’s court. The reform plan establishing a compensation system for ecological environment damage stipulates that after damage to the ecological environment has occurred, the people’s government shall have the right to bring an action for compensation for damage to the ecological environment to the court. Environmental criminal litigation is initiated by the procuratorate organs in the name of the state to investigate the criminal liability for environmental pollution. Incidental civil lawsuits may also be filed in environmental criminal litigations.

Powers of courts

What are the powers of courts in relation to infringements of environmental law?

For violations of environmental law, the court has the power to: conduct criminal trials for environmental crimes; investigate the criminal liability of violators; conduct mediation or trial of environmental civil cases; promote the settlement of environmental civil disputes; adjudicate environmental administrative cases according to law; and supervise the law enforcement of administrative organs.

Civil claims

Are civil claims allowed regarding infringements of environmental law?

Laws in China stipulate civil claims against violations of environmental law. If damage is caused by environmental pollution or ecological damage, tort liability shall be borne in accordance with the provisions of the Tort Law. In addition to compensation for losses, the way to bear tort liability includes cessation of infringement, removal of obstruction, elimination of danger, restoration to the original status and so on. The Civil Code, which will come into force on 1 January 2021, stipulates that infringers who, in violation of the law, intentionally pollute the environment or damage the environment, causing serious consequences, the infringed shall have the right to claim corresponding punitive damages from the infringer or compensation from a third party.

Defences and indemnities

What defences or indemnities are available?

According to the Tort Law and Civil Code, which will come into force on 1 January 2021, where any dispute arises over environmental pollution, the polluter shall assume the burden to prove that it should not be liable, that its liability could be mitigated under certain circumstances as provided for by law or to prove that there is no causation between its conduct and the harm. Where the environmental pollution is caused by two or more polluters, the seriousness of liability of each polluter shall be determined according to the type of pollutant, volume of emission and other factors. Where any harm is caused by environmental pollution through the fault of a third party, the victim may require compensation from either the polluter or the third party. The Environmental Protection Law stipulates that the time limitation for instituting an environmental action for damages shall be three years, starting from the time when a party knows or should have known the harm caused to the party.

Directors’ or officers’ defences

Are there specific defences in the case of directors’ or officers’ liability?

According to Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues concerning the Application of Law in the Handling of Criminal Cases of Environmental Pollution, the offender can claim that they adopted timely measures to prevent the loss from expanding or to eliminate pollution; that they have made compensation for all damage; that they have vigorously repaired the eco-environment; that they committed the act for the first time; and that they repent of the offence as justification. They may be determined to fall under minor circumstances and be exempt from charges or criminal punishment. Where an entity commits any crime as specified in this Interpretation, persons who are directly in charge and other directly responsible persons of the entity shall be convicted and punished, and a fine shall be imposed on the entity.

Appeal process

What is the appeal process from trials?

According to the Civil Procedure Law, against a first instance judgment of a local people’s court, a party shall have the right to file an appeal with the people’s court at the next higher level within 15 days of the date of service of the written judgment. An appellant shall submit a written appeal through the original trial people’s court. In civil cases, the people’s courts shall apply the ‘final after two trials’ system in accordance with the provisions of the Civil Procedure Law. Apart from first instance judgment of the Supreme People’s Court, appeal may be made to a people’s court at a higher level at most once.