Climate litigation could boost China’s transition to a low-carbon economy

China’s unique position in climate litigation

Several factors distinguish China from the global climate litigation trend. First, climate cases are concentrated primarily in the Global North, with leading numbers from the United States (about 70% of the total), Australia, and Europe. In the groundbreaking case Held v State, filed in 2020, 16 young environmental activists sued the state of Montana for violating their constitutional right to a clean and healthy environment—and won. In August 2023, Judge Seeley ruled that regulators must assess the effects of greenhouse gas emissions before issuing fossil fuel permits. The suit is notable for its proactive approach to holding government agencies accountable not only to current but also future generations and ecosystems.

Unlike preventive and forward-looking litigation in the Global North, climate litigants in developing countries operate with limited regulatory instruments to combat environmental degradation and neglect of government policies at more local levels. Climate litigation in the Global South, including in China, is growing steadily. This is driven by global trends, the expansion of environmental legislation, the strengthening of national environmental institutions, and increasing vulnerability to increasingly adverse climates. Despite significant improvement in recent years, Asian courts have the lowest backlog of cases after Africa and the Caribbean.

Moreover, unlike foreign climate litigants who target diverse entities including governments, companies, and municipalities, Chinese courts focus on enforcing government policies between corporations and local authorities. Ruling a case against the central government for inadequate climate measures would be impossible in most countries in the Global South, including China, where environmental and decarbonization policies supersede a comprehensive climate change law. Therefore, a different approach involving the proactive role of state agencies and transparency among all domestic actors could prove more effective for China. Climate litigation can serve as the mechanism to gain official support for the climate agenda across industries and jurisdictions, galvanizing existing regulatory systems to promote climate mitigation.

Legal transformation in China empowers climate litigants

China’s environmental legal system has been gradually transforming over the past decade. This was triggered by unprecedented levels of air pollution between 2008 and 2014, which caused respiratory illnesses and even impacted traffic safety. When public awareness reached a tipping point, the government was forced to allow public interest lawsuits brought by NGOs against polluters.

Opportunities for public environmental litigation expanded further in 2018. China’s concept of “ecological civilization” was officially proclaimed in the constitution, and a set of 10 typical public interest litigations was published by the supreme procuratorate.

In 2020, the Supreme Court issued an initial classification of climate cases. The following year, China included decarbonization goals in its five-year economic plan for the first time, the most influential tool for national regulations. This inclusion recognized the importance of climate and sustainability goals within a national economic model. Last year, the Supreme Procuratorate published a set of cases on carbon peaking and carbon neutrality, and the Supreme Court issued guidance on climate governance and promoting dual carbon goals. These various developments have empowered prosecutors to bring claims that recognize global standards in climate litigation.

This legal improvement signals the central government’s dedication to fulfilling its double carbon promise by empowering climate litigants, although challenges remain in public interest litigation brought by environmental NGOs.

The role of environmental NGOs in climate litigation

Only a small proportion of registered civil society organisations in China focus on the environment. Far fewer initiate climate litigation cases, as most are discouraged by restrictive regulations and the cost of legal fees. Despite a 2015 law allowing environmental NGOs to initiate public interest climate litigation, few in China are willing to take this risk. Among the most prominent are the state-backed China Foundation for Biodiversity Conservation and Green Development and Friends of Nature, an NGO. The latter recently won a case against Gansu State Grid, forcing the state-owned company to invest and transition to renewable energy. However, the general reluctance of environmental NGOs demonstrates the limitations of the climate litigation field in China. Most cases are settled at the legal warning stage, when prosecutors send a notice before submitting the case to the court. This allows time and space for corrective action by defendants and requires less funding from plaintiffs.

Moreover, if climate litigation is supported by efficient monitoring of pollution data, China’s climate litigation system could create a global precedent. Indeed, this opportunity already exists thanks to the Blue Map platform. Blue Map was launched by the non-profit research organization Institute of Public and Environmental Affairs (IPE). It provides real-time data on environmental and climate compliance and can facilitate lawsuits against polluters.

Financial aid, central government support and streamlining of regulations could unlock the true potential of climate litigation as a powerful oversight and transparency tool, with NGOs playing a more proactive role at the local level.

Lessons from other Asian countries could strengthen climate litigation in China

Of course, China has other priorities as well. One of the biggest potential obstacles to achieving dual carbon goals is the prioritization of economic development over strict environmental law enforcement. Other Asian countries that are balancing economic development with improvements to their climate litigation framework could offer valuable insights for China. Although legal systems may differ dramatically, cross-border lessons should strengthen China’s existing climate jurisdiction and environmental courts.

Indonesian litigants file more climate lawsuits than those of any other Asian nation. Like China, Indonesia has no explicit law on climate change. Instead, it focuses on government support and political will. Thus, its ministry of environment and forestry has acted as a plaintiff in several cases against polluting and harmful industries and companies. Similarly, China’s ministry of ecology and environment could use its reports to emphasize the role that environmental courts and climate litigation can play, and provide advisory support.

India, despite setting a net-zero emissions target for 2070 (10 years later than China), also presents a valuable case study. It has a specialised body, the National Green Tribunal, to deal with environmental cases. It provides both judicial and technical expertise, minimising the audit burden. For example, in the hearing on the Vizhinjam International Port, the body appointed a committee of experts to assess the environmental impact of the port’s construction on coastal erosion.

Last month, India’s Supreme Court recognised the constitutional right to be free from the impacts of climate change. India is the world’s third-largest carbon emitter and this decision will strengthen its climate litigation field.

Both the Indonesian and Indian examples could benefit China’s litigation framework, ultimately narrowing the gap in implementing China’s net-zero emissions commitments.

Navigating China’s transition to a low-carbon economy

By improving environmental legislation and climate litigation, strengthening the framework for civil society participation, and following regional developments, China will not miraculously achieve carbon neutrality while maintaining its economic growth rate. However, the global trend of climate litigation sets a vital example for China to ensure compliance with environmental policies and national guidelines at the local level. Using more litigation to drive climate compliance also supports the transition to a low-carbon economy. The guidance promoted by the supreme procuratorate and the supreme court should be translated into national legislation, enforcing China’s green and environmental regulations.

Even with persistent challenges, a revised climate litigation in China could set a precedent for developing economies and reinforce their role in driving low-carbon efforts in the Global South.

Note: This article is republished from Dialogue Earth through a cooperation agreement between both parties for the dissemination of journalistic content. Original link.