A comparative analysis of environmental courts in sweden and china pdf

2 The Characteristics of Swedish Environmental Courts 2.1 The Origin and Development of Swedish Environmental Courts In Sweden, courts are divided into general courts, administrative cou

O R I G I N A L P A P E R

A Comparative Analysis of Environmental Courts

in Sweden and China

Received: 8 January 2015 / Accepted: 30 May 2016

 Fudan University 2016

Abstract The numbers of environmental courts and tribunals have been increasing tremendously in the twenty-first century in various countries Facing with the challenges of environmental disputes explosion, China has to keep up with the trend A system of environmental courts from institution to procedure rules has been established according to the Swedish Environmental Code of 1999 In contrast, the environmental courts in China are far from perfect, and the reforms of the envi-ronmental courts lack unified legal grounds, specific structural design, and clear procedure rules An analysis concerning the origin and development, standing, the composition of judges, the litigation costs of the Sweden environmental courts will

be revealing and beneficial for the bettering of the Chinese environmental courts system

Keywords Environmental courts
Comparative analysis
Environmental dispute resolution system
Reform proposal

1 Introduction

The numbers of environmental courts and tribunals (ECTs) have been increasing tremendously in the twenty-first century in various countries More than three hundred and fifty ECTs have been established in 41 countries by 2009 (Pring and Pring 2009: xi) Facing with the challenges of environmental dispute explosion,

& Cuimin Wang

11110270009@fudan.edu.cn

1

KoGuan Law School, Shanghai Jiaotong University, Shanghai, China

2

Shandong Jianzhu University, Jinan, China

DOI 10.1007/s40647-016-0136-9

China has to keep up with the trend (Yang and Huang2012: 66).1Up to the year of

2014, three hundred and seventy-one environmental courts have been established in China However, environmental courts need reform due to the lack of basic legal grounds, specific institutions, and procedural rules Many environmental disputes especially those of group lawsuit and public interest litigation failed to be remedied

or failed to be remedied timely (Xiao2010: 32).2Therefore, it is of vital importance

to examine the judicial system concerning environmental litigation and to learn the successful experiences outside

The reasons for choosing Swedish environmental court system as the object of comparative study are threefold Firstly, Sweden and China both emphasize public enforcement rather than private enforcement in the field of environment protection Secondly, ECTs are a species of specialized courts and tribunals Types of ECTs vary depending on the legal culture and political situation of each country In essence, types of ECTs are similar in Sweden and China They all chose to set up a specialized chamber, bench, or panel of judges within the selected general court to hear environmental cases Finally, the environmental judicial system in Sweden is relatively mature after a long time development, with specialized environmental courts being established in the judicial system according to the Swedish Environmental Code (EC) of 1999 With a sound institutional and procedural basis, the system in Sweden has been very successful in preventing the environmental tort disputes Previous literature chiefly examines single ECT in depth or reports on multiple ECTs without evaluating and comparing their specific features until appearance of Green Justice: creating and improving ECTs written by George Pring and Catherine Pring It identified 12 critical characteristics and presented us with examples of successes and failures from around the world It provided a framework against which to assess existing or proposed institutions It is beneficial for overall construction of environment courts in China when we select two countries that are similar on the law enforcement model and the type of ECTs to compare on the basis of former studies

This thesis compares the setting structure of environmental courts and environmental dispute litigation resolution system mainly between the two countries The macro-comparative analysis and the micro-comparative analysis are used as the main research method It uses macro-comparative analysis method to dissert the origin and development of environmental courts and the setting structure for seeking applicable ways universally to improve dispute resolution efficiency It uses micro-comparative analysis method to explain the jurisdiction, standing, the composition of judges, and the litigation costs which are the basic core issues in the environmental dispute litigation resolution system for exploring the generally applicable rules Research dates about Swedish environmental courts are from the Swedish Environmental Code of 1999, related research achievement of Nordic scholars and representative cases Research dates about Chinese environmental

1 From 1980 of the twentieth century to the late 90’s, environmental complaints in China have been maintained at around one hundred thousand In 2003, environmental complaints reached nearly five hundred thousand and exceeded seven hundred thousand in 2008.

2 The Legal Aid Department of the All-China Environmental Federation (ACEF) provided litigation assistance for 22 cases in 2007 Thirteen cases were rejected or are resting.

courts originate from reform plan, judicial interpretation, and typical cases The status and characteristics of environmental courts between the two countries emerge

by using two kinds of research methods The party and the court are the basic role in litigation The assignment of right and obligation between the party and the judge is the basic issue of litigation mode The jurisdiction, standing, the composition of judges, the litigation costs, and the rules of the trial are the basic aspects of environmental litigation mode Comparative studies in respect of those aspects of the two judicial systems will be very revealing and beneficial for the expected reforms in China

2 The Characteristics of Swedish Environmental Courts

2.1 The Origin and Development of Swedish Environmental Courts

In Sweden, courts are divided into general courts, administrative courts, and special courts General courts are the District Courts, the Appellate Courts, and the Supreme Court The district courts are the courts of first instance, unless otherwise prescribed The principal tasks for the general courts are the resolution of adversarial disputes in private law and criminal cases (Lindel2013: 21, 39–40) In order to assure the effective protection of citizens in this administrative hierarchy,

an administrative court structure was established to handle public law disputes (Sterzel2004: 7) Sweden has administrative courts for the appeal (judicial review)

of administrative decisions, which are divided into three levels: the County Administrative Courts, the Administrative Courts of Appeal, and the Supreme Administrative Court

In 1999, the EC entered into force which replaced some 15 older pieces of legislation related to the environment and harmonized the general rules and principles in this field Most content of the EC is administrative law In addition, the

EC also contains rules of compensation, penalties, and the composition of the court (Darpo¨ 2009: 2) The aim of the Code was to harmonize and decentralize the entertainment of environmental disputes Following the presentation of the EC, Sweden also brought a new system for permits and appeals The Swedish Environmental Courts replaced the national licensing board (Koncessionsna¨mnden fo¨r miljo¨skydd), water courts, and the administrative courts in this respect (Darpo¨

environmental cases and to handle cases concerning matters of permits, appeals with respect to administrative decisions or administrative orders, as well as actions for injunctions and damages under the EC (Westberg 2010: 204) In fact, these

‘‘Land and Environmental Courts’’ (LEC) are the respective division within five district courts Land and Environmental Court of Appeal (LECoA) is a division within the Stockholm Court of Appeal In some cases, an appeal can even be heard

by the Supreme Court In the year of 2011, cases concerning the planning, the building, and the infrastructure that are expected to be heard by the administrative authorities in the first instance are allowed to be appealed to the LEC (Fig.1)

2.2 The Jurisdiction of Swedish Environmental Courts

In Sweden, environmental courts assume part of the administrative decision-making function, although the supervision is mainly exercised by the municipalities, namely the Municipal Environmental Boards (MEB) and the County Administrative Boards (CAB) (Darpo¨2009: 3).3Environmental courts as the first instance issue permits for environmentally hazardous activities of great importance and most water opera-tions, except for applications for land drainage that shall be considered by CAB In addition, environmental courts are in charge of the approval of alteration or repair work concerning the storage and release of water, extension of time limit for completion or commencement of an activity, withdrawal of a permit or prohibition

of continued activities

Swedish environmental courts essentially act as administrative courts for environmental cases, although Swedish environmental courts are divisions within the general courts (Darpo¨2009: 3) Environmental courts accept and hear the appeal against a supervisory decision made by the public authorities, while appeal against a supervisory decision made by the MEB is made to the CAB whose decisions in supervisory and permit cases are appealed to an Land and Environmental Court (LEC) and thereafter—if a leave to appeal is granted—to the Land and Environmental Court of Appeal (LECoA) A judgment from an environmental court as the first instance shall be appealed to the LECoA and thereafter—if a leave

General Court Administrative Court

The Supreme Court

The Appellate Court The Land-and Environmental Court of Appeal

The Land-and Environmental Court (5)

The Administrative Court of Appeal

The County Administrative Court

County Administrative Board (21)

Municipal Environmental Board (290)

The Supreme Administrative Court

The District Court

Fig 1 The structure of Swedish Environmental Courts

3 MEB is independent of the government and the central agencies Thus, no state agency can instruct them on how to apply the law against individual subjects, but their decisions can be appealed CAB is responsible for environmental monitoring and supervision of the air and water and is responsible for inspections and enforcement, mainly in the case of activities that entail a major environmental impact They are also engaged in nature conservation aimed at maintaining functional ecosystems and preserving biological diversity.

to appeal is granted—to the Supreme Court (Nilsson2010: 484) Cases that start in authority cannot be appealed beyond the LECoA, except in rare occasions when the court allows for such an appeal to be made All appeals of environmental decisions follow this route, although the starting point and the terminus differ Some cases are dealt with differently The government may decide to examine applications for operations that are considered to be of principal importance for the country as a whole, such as constructions for basic industry, energy production, and important communication links Government’s decisions cannot be appealed against by an ordinary procedure of appeal, but those people who are concerned and NGOs may apply for judicial review to the Supreme Administrative Court (Darpo¨2009: 3) Swedish environmental courts also have jurisdiction in cases concerning compensation, including compensation connected with public interventions and permit application procedures relating to water operations, compensation for certain kinds of environmental damage, such as loss suffered as a result of prohibition against fishing and other private claims, such as bodily injury, material damage, or pecuniary loss According to section 12, chapter 32 of the EC, a person can request the court to order the operator of an activity to take protective measures or other precautions to stop further activities However, this only applies to activities that operate without a permit according to the EC In this situation, the plaintiff can also ask for an injunction in accordance with the Code on judicial procedure Group actions in environmental law are tried by the Land and Environmental Courts (Lindblom2009: 13) For criminal case, the power of prosecution is the prerogative

of the Attorney General According to chapter 26 of the EC, the supervisory authorities have a duty to report to the police or the prosecution service when there

is a suspicion that a criminal offense has been committed When a suspected offense

is reported, this may lead to a criminal investigation on the part of the police, which may result in the issuance of a fine by the prosecutor or a prosecution through the court (Korsell2010: 142)

2.3 The Standing for Parties in Swedish Environmental Courts

In section 12, chapter 16 of the EC, individual standing is defined as: ‘‘any person who is the subject of a judgment or decision can appeal against judgment or decision.’’ To get a clear understanding of those who are entitled to appeal, cases have to be studied In administrative cases, any resident of a municipality who is concerned by the decision or judgment can challenge certain local decisions in court (Darpo¨2013: 31) For instance, people living in the vicinity of an activity or an area affected can be regarded as concerned by the administrative decision Individuals who face a risk for being affected can be regarded as concerned by the pollution discharge license issued by the competent department and can challenge it in court People who are the owners of land likely to be affected or have fishing right in the vicinity can be regarded as concerned by the water operation license or dam constructions license The appellant can plead any private or public interest in the case However, mere public interests do not suffice for standing, and private interests must be affected to gain admission to the court despite it is to be generous interpreted Individuals including close neighbors cannot gain admission to the court

at all This is true also with respect to omissions For example, the inhabitants living

on Hornsgatan, one of the main roads of Stockholm, have been challenging the local authorities’ negligence to enforce the air quality standards for particulate matters and oxides of nitrogen in accordance with the union law (Darpo¨2009: 6)

Administrative organs are parties without question The other parties who belong

to the ‘‘public concerned’’ are the applicant/addressee in a typical ‘‘two-party case.’’

If the appeal body subsequently alters the decision, the deciding body can appeal then When an administrative decision affects a wider range of people, there may appear as ‘‘third parties.’’ When someone is granted standing as a third party, he or she is not at all dependent on the primary parties to advocate his or her interest The time frame for the third-party intervention is the same as to all parties in the administrative procedure that is the time frame for appeal Normally, an appeal has

to be done within 3 weeks from publication or notification of the decision (Darpo¨

2009: 5) Sometimes, administrative authorities may appeal an administrative decision to a court, provided that the authority is considered ‘‘concerned’’ or the relevant legislation provides for a right of appeal (Anker et al.2009: 18)

Individuals can bring a suit to the environmental court for environmental damages caused by bodily injury, material damage, or pecuniary loss A private party can only rely on his or her own interests to bring a case Private actions for anything but damages are very rare in Sweden (Darpo¨2009: 8) A private group action may be initiated by a member of the group, who maybe a natural or a legal person The plaintiff must have standing to be a party to the proceedings with respect to one of the causes of action petition for injunctions as well as individual damages for injury suffered by individual members of the group Group members who have opted in are not parties However, a member of the group is equated with

a party when applying the rules of the Code of Judicial Procedure on disqualification situations, pending proceedings, a joiner of cases, examination during the proceedings and on other issues relating to the evidence (Lindblom2009: 14–15) According to section 13, chapter 16 of the EC in 1999, nonprofit associations whose purpose is to promote nature conservation or environmental protection interests may appeal concerning permits, approvals, and exemptions Additional restriction criteria are that the association has operated in Sweden for at least

3 years and has not less than two thousand members However, the legislation was amended in 2010 due to the judgment of the Court of Justice of the European Union (CJEU) in the DLV case (C-263/09) The criterion has turned into at least one hundred members or else, which can show that it has ‘‘support from the public.’’ In Sweden, most areas of environmental law allow environmental NGOs to appeal decisions taken under the EC including species and nature protection However, some areas of law are not included in the EC, even though it has a close connection

to the environment, such as forestry and hunting Environmental NGOs were therefore excluded from challenging administrative decisions relating to hunting or forest management even in matters clearly connected to species and nature protection This situation is changed through judicial precedents in 2013 The Stockholm Administrative Court of Appeal granted NGOs to challenge adminis-trative decisions that might contravene the hunting of species protected by EU law

(Yaffa and Darpo¨2013: 251–255) In early 2014, the Supreme Administrative Court confirmed this position.4

In practice, the national criterion clearly is in breach of the nondiscrimination clause of the Aarhus Convention This is not a problem when Nordic NGOs appeal a Swedish decision as it is equated to an internal organization in accordance with the

1974 Nordic Convention on environmental protection But if it is a Polish or German NGO, which appeals a Swedish permit for a combustion plant with far-ranging effects on the atmosphere or the Baltic Sea, it will not meet the national criterion (Darpo¨2012: 11) The success rate of NGO’s standing in environmental cases is reported to be almost 50 % in the environmental courts.5

Groups and NGOs also have a standing to start a civil action according to the Group Proceeding Act entering into force on January 1, 2003 The act provides for three forms of action: the private group action, the organization group action, and the public action An organization group action is restricted to two legal areas: the consumer protection and the environment protection In environmental law, nonprofit organizations dedicated to nature conservation and environmental protection are entitled to initiate group actions There are no restrictions concerning authorization by the government in respect of the size and the duration of the organization A new organization with a few members can be set up one day and sue the next day provided that the organization’s financial affairs are in good order and the court thinks the organization is a good representative of the group Finally, the Swedish Environmental Protection Agency may initiate group actions (Westberg

2010: 221–222) Only one private group action has been instituted with respect to the environment since enactment of the Group Proceeding Act The NGO’s group action has not been initiated yet (Lindblom2009: 20–23)

2.4 The Composition of Judges in Swedish Environmental Courts

Environmental cases usually involve complex technical and scientific problems In general, individuals therefore have no ability to prove that certain precautions or protective measures are required Thus, the decision-making body must include independent and impartial technicians (Darpo¨ 2009: 3) An environmental court consists of a chair, who shall be a legally qualified judge, one environmental technical judge and two expert members The court may also include an additional qualified judge and an additional environmental technician whom are nominated by the industrial authorities and national public authorities Environmental technicians shall have technical or scientific training and experience concerning environmental issues One of the expert members shall have the relative experience concerning matters falling within the area of responsibility of the Swedish Environmental Protection Agency The president of the court shall decide, with reference to the nature of the case, whether the other expert member shall have experience of

4

Ho¨gsta fo¨rvaltningsdomstolen in the A ¨ nok case Case No.5962-12 Judge on February 14, 2014.

5

MO ¨ D 2001:9, Land and Environmental Court of Appeal.

industry or of local government.6When a vote is taken, legally qualified judges shall first give their opinion followed by the environmental technician and lastly the expert members The chair has the casting vote except in cases relating to the award

of prospective fines, where the most lenient opinion shall prevail.7The Land and Environmental Court of Appeal shall also appoint a technician in addition to legally qualified judges It is competent when four members, at least three of whom shall be legally qualified judges and technical judge

2.5 The Litigation Costs in Swedish Environmental Courts

Costs of litigation tremendously limit the access to the courts Costs in environmental courts usually include application fees or administrative appeal fees, court fees and other court costs, lawyers’ fees, experts’ fees, witness’ fees, and bonds for obtaining injunction relief (also called securities or cross-undertakings in damages) (Darpo¨2013: 17) In Sweden, there is no cost barrier for the access to justice Except for civil cases—where there is a small application fee of SEK450— there are no court fees in environmental cases Appeals are free of charge (Anker

et al 2009: 19) There are no court fees, no obligation to pay costs for the opponents, no bonds to be paid for obtaining injunction relief or other costs to be paid, irrespective of whether the case is on administrative appeal or goes to the court The responsibility to investigate the case rests upon the administrative agency and the environmental courts according to the ‘‘ex officio principle.’’ Because technicians and experts participate in the decision making, the parties rarely need to retain an expert providing testimony If applicants want to be represented by counsel

or use an expert witness, they will have to pay out of pocket and the costs cannot be remunerated from a losing opponent Although there is not any mandatory requirement for using lawyers in the environmental court, inexperienced neighbors usually need lawyers in order to match the expertise of the operators (Darpo¨2013: 5–7)

3 The Characteristics of Chinese Environmental Courts

3.1 The Origin and Development of Chinese Environmental Courts

In China, courts are divided into general courts and special courts The general courts are divided into four levels: the District People’s Court, the Intermediate People’s Court, the High Provincial People’s Court, and the Supreme People’s Court Within each level, there are four divisions which separately entertain administrative, civil, commercial, and criminal cases In addition to the general courts, there are special courts including the Military Court, the Maritime Court, the Railway Transport Court, and the Forest Court Most environmental cases are under the jurisdiction of the general courts The Forest Courts only handle cases

6

20 Swedish Environment Code § 4 (1999).

7

20 Swedish Environment Code § 10 (1999).

concerning the protecting of the forest resources in the forest region The Maritime courts entertain cases concerning damages from marine pollution

In China, the reform of environmental courts can be divided into two phases: The first phase began in 1989 and was finished in 2008 Part of the District People’s Court established tribunals in the grassroots environmental protection agency or

establishing tribunals mentioned was to cooperate with the administrative enforce-ment of environenforce-mental protection The establishenforce-ment of all these tribunals is based neither on the authority issued by the superior court, nor on the internal working system or other normative documents In fact, the Supreme Court considered that the settings confounded the judicial function and administrative functions of the court On February 10, 1989, the Supreme Court denied the establishment of an environmental tribunal by Qiankou District People’s Court of Wuhan City As a result, most of these tribunals disappeared after a period of time (Wang2013: 37) The second phase of the reform started in 2007 and was finished in 2014 There are four types of reform in this phase: environmental divisions (shen pan ting), collegial panels (he yi ting), circuit courts (xun hui fa ting), and detached tribunals (ren min fa ting).8The occurrence of serious environmental pollution accidents has been deemed to be the direct reason for setting up environmental courts in some regions.9Up to December of the 2012, 88 District People’s Courts, 19 Intermediate People’s Courts, and two High Provincial People’s Courts have established environmental trial divisions, collegial panels, circuit courts or detached tribunals There are just 10 circuit courts and 2 detached tribunals in China in 2013 Circuit courts composed of the collegial panels travel around to examine environmental cases in its jurisdiction on site

The third phase of reform started in July 2014 The Supreme People’s Court established an environmental trial division At the same time, the Supreme People’s Court released a judicial guidance aiming at enhancing the environmental justice (Judicial Guidance) It is required by the judicial guidance that environmental trial division should be established in the each High Provincial People’s Court Meantime environmental divisions might be set up in the District People’s Courts and the Intermediate People’s Courts provided that the number of environmental disputes is large in that place Collegial panels can be used in the District People’s Courts provided that the number of environmental disputes is little in that place Up

to the year of the 2014, two hundred ninety-one District People’s Courts, 92 Intermediate People’s Courts, and 17 High Provincial People’s Courts have established environmental trial divisions or collegial panels China chose environ-mental trial divisions and environenviron-mental collegial panels as the type of reform Environmental trial divisions handle four types of cases which are criminal cases, administrative cases, private cases, and cases concerning the execution of

8 This phase uses ‘‘environmental court’’ as an umbrella term to cover four types of reformatory attempt, namely environmental divisions (shen pan ting), collegial panels (he yi ting), circuit courts, and detached tribunals (ren min fa ting) Detached tribunal is a branch of the District People’s Court at the grassroots level for the convenience of parties.

9 The pollution of ‘‘two lakes and one reservoir’’ in Guiyang City, the blue green algae incident in Taihu Lake is the main reason why these regions established the environmental court.

administrative orders.10Most of the collegial panels are composed of judges and expert jurors at present (Fig.2)

3.2 The Jurisdiction of Chinese Environmental Courts

In China, environmental courts do not assume any administrative decision-making function They only bear the role of trial Environmental divisions established within the general courts accept and hear administrative cases, private cases, and criminal cases With regard to illegal administrative acts, improper administrative action, or administrative omission made by the environmental public authority, public concerned parties have two ways to get relief in China They are administrative appeal and judicial review Counterpart or interested parties have freedom to select either If you choose administrative appeal firstly, you still own right to institute judicial review when you are not satisfied with the result of environmental administrative appeal Environmental administrative litigation, namely environmental administrative judicial review, is the final dispute resolution Chinese environmental courts are also given jurisdiction in cases concerning compensation, including ecological damage and other private claims, such as bodily injury, material damage, and pecuniary loss Interested person can ask for an injunction to stop further activities or make certain act prior to the litigation or during the court For criminal case, the power of prosecution is the people’s procuratorate authority Any unauthorized institutions and individuals have a duty to report to the police or the procuratorate authority when there is a suspicion that an environmental criminal offense has been committed

Judicial Guidance in July 2014 depicts the setting structure of environmental courts in China The Supreme People’s Courts and the High Provincial People’s Courts should establish environmental divisions However, the Intermediate

General Court Special Court

The Supreme People’s Court

17 High Provincial People’s Courts

establish the environmental courts The Provincial High People’s court

The Intermediate People’s Court The Maritime court

The District People’s Court

62 Intermediate People’s Courts

establish the environmental courts

291 Basic People’s Court establish

the environmental courts

Fig 2 The structure of Chinese Environmental Courts

10 In China, administrative authority can apply for a court to execute the administrative decision when natural persons, legal persons, or other organizations within the statutory period neither file the administrative lawsuit nor perform specific administrative decision.