Chinese environmental public interest litigation has assumed increasing attention and significance in recent years. By simply granting standing to public authorities and environmental groups to challenge “acts of polluting or damaging the environment that have harmed the public interest,” the amended Civil Procedure Law of 2012 and Environmental Protection Law of 2014 created an amorphous and ambiguous liability regime. In particular, the central questions about the permissible causes of action and remedies under this new framework remain unanswered. Western observers simply view environmental public interest litigation as the Chinese equivalent of the U.S.’s citizen suit, which provides private parties an avenue for enforcing existing environmental requirements. Some Chinese scholars examine environmental public interest litigation from a citizen suit perspective while others consider environmental public interest litigation as a tort liability regime, but many struggle to reconcile how the public interest nature can exist within the characteristically private nature of traditional tort claims. Surprisingly, scholars have failed to notice and discuss these two discourses as two competing models for environmental public interest litigation, let alone which discourse is a superior model.
The goal of this Article is to explore the fundamental theoretical justification of the emerging environmental public interest litigation by evaluating these discourses. This Article first critiques the reflexive acceptance of the citizen suit model. It concludes that while citizen suits may address the failure of governmental enforcement due to a lack of will or resources, it would be politically difficult to implement the idea of private enforcement of regulatory laws in China. Also, the role of citizen suit-style environmental public interest litigation will be greatly diminished due to inherent limitations of existing Chinese environmental laws.
This Article then introduces public nuisance law as a path forward in reconciling the struggles of the tort discourse. It demonstrates that by operating like public nuisance law, environmental public interest litigation in theory could overcome the limitations of the citizen suit model by encompassing a wide range of harms resulting from or left uncured by weak environmental regulation and enforcement. It further demonstrates how environmental public interest litigation has been used by litigators as a broad and flexible tool in practice. Ultimately, this Article argues that the emerging environmental public interest litigation should be embraced as a public nuisance-style framework that stands as an independent tool to vindicate public environmental interests when statutory laws have been inadequate to prevent or redress harm.