Citizen Suits in China: How a U.S. Legal Tool Functions in Chinese Environmental Law
Finley F.R. Meng*
Introduction
China’s environmental pollution and ecological destruction have become major concerns since it chose the “Open Door” policy[1] in 1978 and rapidly developed into a major industrialized country. Over the past twelve years of President Xi Jinping’s rule, politically described as The New Era in China, one noticeable area of growth is its environmental protection movement, despite being criticized as the “Green Leap Forward.”[2] Driven by policies, the Chinese legislature enacted Environmental Civil Public Interest Litigation (EPIL) provisions in the revised Environmental Protection Law (CNEPL) in 2015, authorizing qualified environmental non-governmental organizations (ENGOs), public representatives, and some government agencies to commence EPIL actions.[3] This system follows the U.S. citizen suit model,[4] but has many modifications in line with Chinese political system and legal framework.[5] This blog first briefly introduces the U.S. citizen suit system and the Chinese EPIL framework, then emphasizes three of the key differences between them, which reveal the divergences between the two countries and implies some internal issues in China’s rule of law.
I. Citizen Suits and EPIL: U.S. Model and Chinese System
In 1968, University of Michigan Law School Professor Joseph Sax first put forward the term “citizen suit” in a draft of the Michigan Environmental Protection Act.[6] Following that, the Clean Air Act (CAA), the Clean Water Act (CWA), the Resource Conservation and Recovery Act (RCRA) and other statutes authorize citizen suits.[7] The citizen suit provisions “usually allow citizens to seek injunctions and penalties payable to the U.S. Treasury against alleged violators of the environmental statutes and to file suit against a federal agency for failing to perform a nondiscretionary duty.”[8] The purpose of establishing such a system is “to supplement the federal and state enforcement efforts” of environmental standards,[9] and to allow the private sector to enforce public laws, which can be regarded as “a privatization of regulatory enforcement.”[10]
The mechanisms established by CNEPL and the Interpretation of the Supreme People’s Court[11]are similar in many ways to the U.S. model.[12] The Chinese EPIL also supplements the government’s enforcement efforts, authorizes ENGOs to play a central role in bringing environmental lawsuits, and allows legal action against private polluters.[13] However, the Chinese EPIL System aims to “make private laws public.”[14] It has four essential factors: (1) it is a specialized form of environmental tort litigation; (2) it is initiated by public interest representatives; (3) it targets the ecological environment as a distinct type of property; and (4) it primarily relies on compensatory damages as the main remedy.[15]
II. Key Divergences
The following table reveals the key differences between the U.S. citizen suit and the Chinese EPIL system. This section further discusses three major divergences between them.
| Aspect | U.S. Citizen Suit | China’s EPIL |
| Who Can Sue? | Any individual, NGO, or business | Only government-approved NGOs |
| Who Can Be Sued? | Private entities & government agencies | Only private polluters; government agencies are immune |
| Standing Requirements | Broad (anyone with a legitimate environmental interest) | Strict (only NGOs with 5+ years of environmental work) |
| Remedies | Injunctive relief, penalties, compensation, enforcement of laws | Environmental restoration only; no compensation for private losses |
| Judicial Independence | Strong; courts can hold government accountable | Weak; courts have limited power over government agencies |
Table 1: Major Differences between Two Systems[16]
- Issues of Plaintiff Qualification: “Citizen” and Standing
The first obvious difference is the scope of plaintiffs and related standing requirements. Under the U.S. citizen suit provisions, “any person” or “any citizen” may serve as the plaintiff.[17] For example, the CWA defines that the “citizen” who can commence a citizen suit as “a person or persons having an interest which is or may be adversely affected.”[18] By contrast, the Chinese EPIL excludes individual citizens, regional government agencies, and companies from the scope of plaintiffs.[19] Only those ENGOs fulfilling two requirements can file EPIL suits. First, they are legally registered with the civil affairs department of a municipal-level or higher people’s government.[20] Second, they have been engaged in environmental protection public welfare activities for at least five consecutive years and have no record of legal violations.[21] Additionally, the ENGOs initiating lawsuits “shall not seek economic benefits through litigation.”[22] The scope of plaintiffs in Chinese EPIL is relatively narrow.
Standing is a significant issue in the U.S. legal system. It is proclaimed in Article III of the U.S. Constitution and interpreted by the U.S. Supreme Court as consisting of three requirements: injury-in-fact, causation, and redressability.[23] In China, when ENGOs are filing EPIL suits, they do not need to prove these standing requirements. In practice, they only need to submit evidence for their plaintiff qualification requirements, no matter how removed they seem to be from the facts of the cases.[24] This might partly be explained by a fundamental difference between two countries’ legal systems: the U.S. legal system is based on constitutionalism, while China “has a constitution without constitutionalism”[25] and does not address the concept of standing in its constitution.[26]
2. Protection of Public Interest
While the citizen suit system does not explicitly mention “public interest” in its name, it is ultimately designed to protect the public interest.[27] In contrast, as is plainly shown, EPIL aims to protect the environmental public interest and excludes remedies for private interests.[28] However, in Chinese law, there is no clear definition or interpretation of “public interest.”[29] According to the Chinese Constitution, all natural resources “are owned by the State, that is, by the whole people,” except those “owned by collectives.”[30] Either the State or the collectives can represent the “public,” so EPIL may be regarded as a mechanism used by private parties to protect the public interest.[31] Some scholars claim that EPIL reveals a trend of “making private law public,” as it is based a property law perspective to interpret public interest.[32]
3. “Civil” vs. “Procurator- Led”
Unlike citizen suits, where the scope of plaintiffs is limited to private entities, there is another mechanism accompanying EPIL, which is called Procuratorator-led Environmental Public Interest Litigation (PEPIL). The Chinese Civil Litigation Law authorizes the procuratorates to bring PEPIL lawsuits against polluters, and “support the lawsuit” when ENGOs have already initiated EPIL procedure.[33] According to the statute, PEPIL is supposed to be supplementary. But in practice, PEPIL cases far outnumbered EPIL lawsuits,[34] which makes the procuratorates, a branch of government, the dominant power in environmental public interest litigation. This might reflect China’s trend of “the State expands, while the civil society retreats” as the government seeks to enhance its power.[35]
Conclusion
As a young system that has only existed for about a decade, the influence and future of Chinese EPIL still needs to be observed. Although it has many similarities with the U.S. citizen suit model, given the totally different social, political, and legislative background of the two countries, it is hard to predict whether the EPIL will replicate the citizen suit model in successfully and continuously protecting environmental public interests. Considering that China has not chosen the path of constitutionalism, separation of powers, and other systems that are rooted in the U.S., other legal mechanisms, like PEPIL, might be more likely to be effective in China in the long run.
* LL.M. Candidate of University of Michigan Law School, Class of 2025; Contributing Editor, Michigan Journal of Environmental and Administrative Law, Vol. 14.
[1] Officially called “reform and opening up.” See Stephen S. Roach, Reform and Open Up, N.Y. Times (Nov. 8, 2012), https://www.nytimes.com/2012/11/09/opinion/china-should-reform-and-open-up.html.
[2] Genevieve Donnellon-May & Mark Yoalin Wang, Xi Jinping’s ‘Green Leap Forward’ will shape China’s environmental future,South China Morning Post (Nov. 2, 2022, 4:30 PM), https://www.scmp.com/comment/opinion/article/3197956/xi-jinpings-green-leap-forward-will-shape-chinas-environmental-future.
[3] Huanjing Baohu Fa (环境保护法) [Environmental Protection Law] art. 3 (promulgated by the Standing Comm. Nat’l People’s Cong., Apr. 24, 2014, effective Jan. 1, 2015), 2014 Standing Comm. Nat’l People’s Cong. Gaz. 332, 338 (China).
[4] U.S. citizen suit provisions grant members of the public the ability to enforce most federal antipollution laws directly against violators. See Adam Babich, Citizen Suits: The Teeth in Public Participation, 25 Env’t. L. Rep. 10,141, 10,142 (1995).
[5] Huishihan WANG, China’s Public Interest Environmental Litigation and the U.S. Citizen Suit Model, 6 Chinese Journal of Environmental Law 17 (2022).
[6] Joseph L. Sax & Joseph F. DiMento, Environmental Citizen Suits: Three Years’ Experience Under the Michigan Environmental Protection Act, 4 Ecology L. Q. 1, 2 (1974).
[7] See Clean Air Act § 304, 42 U.S.C. § 7604 (2021); Federal Water Pollution Control Act § 505, 33 U.S.C. § 1365 (2023); Resource Conservation and Recovery Act § 7002, 42 U.S.C. § 6972 (2021).
[8] Richard L. Revesz, Michael A. Livermore, Caroline Cecot & Jayni Hein, Environmental Law and Policy 1332 (4th ed. 2019).
[9] Id.
[10] Barry Boyer & Errol Meidinger, Privatizing Regulatory Enforcement: A Preliminary Assessment of Citizen Suits Under Federal Environmental Law, 34 Buff. L. Rev. 833, 836–38 (1985).
[11] Zuigao Renmin Fayuan Guanyu Sifa Jieshi Gongzuo de Guiding (最高人民法院关于司法解释工作的规定) [Provisions of the Supreme People’s Court on the Work of Judicial Interpretation] art. 4 (promulgated by the Sup. People’s Ct., Mar. 23, 2007, effective Apr. 1, 2007) (China).
[12] WANG, supra note 5, at 21.
[13] Id. at 33.
[14] Id. at 24.
[15] GONG Gu, Da Tong Xiao Yi Yihuo Mao He Shen Li? Zhong-Mei Huanjing Gongyi Susong Bijiao Yanjiu [大同小异抑或貌合神离？中美环境公益诉讼比较研究] (Just Looks like Twins: Comparative Research on Environmental Public Interest Litigation between China and U.S.)], 2 Bijiao Fa Yanjiu [比较法研究] 106, 117 (2017) (China).
[16] WANG, supra note 5, ch. 2.
[17] Id. at 36.
[18] 33 U.S.C. § 1365(a), (g) (2018).
[19] WANG, supra note 5, at 36.
[20] Environmental Protection Law, supra note 3, art. 58.
[21] Id.
[22] Id.
[23] Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992).
[24] GONG, supra note 15, at 107.
[25] See Evelyn Li Wang, Environmental Constitutionalism in China: A Constitution without Constitutionalism?, 36 J. Env’t. L. 187 (2024).
[26] Standing issues are regulated by specific laws and statutes. This is because courts in China have no power of judicial review and cannot interpret the constitution. See Mariia Safronova, The Power of Judicial Review in the People’s Republic of China, Wm. & Mary L. Sch.(July 18, 2021),https://law.wm.edu/academics/intellectuallife/researchcenters/postconflictjustice/internships/internship-blogs/2021/mariia-safronova/the-power-of-judicial-review-in-the-peoples-republic-of-china.php.
[27] WANG, supra note 5, at 23.
[28] Id. at 30.
[29] GONG, supra note 15, at 117.
[30] Xianfa art. 9, § 1 (1982) (China).
[31] WANG, supra note 5, at 30.
[32] GONG, supra note 15, at 117.
[33] Minshi Susong Fa (民事诉讼法) [Civil Procedure Law] (promulgated by the Nat’l People’s Cong., Apr. 9, 1991, amended Sept. 1, 2023, effective Jan. 1, 2024) 2023 Standing Comm. Nat’l People’s Cong. Gaz. 1117, 1129 (China).
[34] For instance, in the three-year period from 2020 to 2022, there were 192 published court decisions on PEPIL cases throughout China, compared to only 21 EPIL cases. Jiachun Bian, Woguo Huanjing Minshi Gongyi Susong de Sifa Xianzhuang Jianshi he Wanshan Weidu [我国环境民事公益诉讼的司法现状检视和完善维度] (Review and Improvement Dimensions of the Judicial Status Quo of Environmental Civil Public Interest Litigation in China), 4 Falv Yanjiu Jikan [法律研究集刊] 259, 267 (2023) (China).
[35] See generally Li Yuan, ‘Moving Backward’: In Xi’s China, Some See an Era of Total Control, N.Y. Times (Oct. 17, 2022), https://www.nytimes.com/2022/10/17/business/china-xi-jinping-governance.html.