A comparative analysis of environmental courts in sweden and china pdf

Fudan J Hum Soc Sci DOI 10.1007/s40647-016-0136-9 ORIGINAL PAPER A Comparative Analysis of Environmental Courts in Sweden and China Cuimin Wang1,2 Received: January 2015 / Accepted: 30 May 2016 Ó 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 environmental 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 Á Comparative analysis Á Environmental dispute resolution system Á Reform proposal 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 KoGuan Law School, Shanghai Jiaotong University, Shanghai, China Shandong Jianzhu University, Jinan, China 123 C Wang China has to keep up with the trend (Yang and Huang 2012: 66).1 Up 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 (Xiao 2010: 32).2 Therefore, 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 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 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 123 A Comparative Analysis of Environmental Courts in Sweden… 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 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 (Lindel 2013: 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 (Sterzel 2004: 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¨ 2009: 2) There are five district courts which are expected to deal with 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) 123 C Wang General Court Administrative Court The Supreme Court The Supreme Administrative Court The Appellate Court The Land-and Environmental Court of Appeal The Administrative Court of Appeal The District Court The Land-and Environmental Court (5) The County Administrative Court County Administrative Board (21) Municipal Environmental Board (290) Fig The structure of Swedish Environmental Courts 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).3 Environmental courts as the first instance issue permits for environmentally hazardous activities of great importance and most water operations, 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 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 123 A Comparative Analysis of Environmental Courts in Sweden… to appeal is granted—to the Supreme Court (Nilsson 2010: 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 (Lindblom 2009: 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 (Korsell 2010: 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 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 123 C Wang 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 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 (Lindblom 2009: 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 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 administrative decisions that might contravene the hunting of species protected by EU law 123 A Comparative Analysis of Environmental Courts in Sweden… (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 farranging 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 (Lindblom 2009: 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 ¨ nok case Case No.5962-12 Judge on February 14, 2014 Ho¨gsta fo¨rvaltningsdomstolen in the A ¨ D 2001:9, Land and Environmental Court of Appeal MO 123 C Wang industry or of local government.6 When 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.7 The 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) 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 20 Swedish Environment Code § (1999) 20 Swedish Environment Code § 10 (1999) 123 A Comparative Analysis of Environmental Courts in Sweden… 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 within the law enforcement team (Wang 2013: 36) The main purpose of establishing tribunals mentioned was to cooperate with the administrative enforcement of environmental protection The establishment 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 (Wang 2013: 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 fa ting).8 The occurrence of serious environmental pollution accidents has been deemed to be the direct reason for setting up environmental courts in some regions.9 Up 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 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 environmental trial divisions and environmental 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 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 fa ting) Detached tribunal is a branch of the District People’s Court at the grassroots level for the convenience of parties 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 123 C Wang Special Court General Court The Supreme People’s Court 17 High Provincial People’s Courts establish the environmental courts The Provincial High People’s court 62 Intermediate People’s Courts establish the environmental courts The Intermediate People’s Court 291 Basic People’s Court establish the environmental courts The District People’s Court The Maritime court Fig The structure of Chinese Environmental Courts administrative orders.10 Most 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 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 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 123 A Comparative Analysis of Environmental Courts in Sweden… People’s Courts can decide whether or not to set up environmental divisions according to the number of environmental disputes Centralized jurisdiction across the region has not been achieved Judicial Guidance is a concept of reform of environmental judicial system How to go to the reform road of the future in the level of the intermediate court is unknown In 2015, the judicial interpretation of civil procedure stipulates the court of first instance is the intermediary people’s court for cases of environmental civil public interest litigation How to deal with level jurisdiction of other types of environmental cases? There are not any special provisions So exploring a unified judicial institution and jurisdiction rules for environmental cases is the core effort of the reform 3.3 The Standing for Parties of Chinese Environmental Court Access to justice is a fundamental issue in environmental law Aarhus Article contains elaborate access to justice provisions States must provide access to judicial or administrative forums to enforce environmental laws against both private persons and the government In China, the scope of standing for individuals in the administrative litigation has been expanded in judicial practice from the direct administrative counterpart to the third party who is affected by the administrative decisions or judgments Pan Zhizhong and other villagers initiated an environmental administration proceeding in 2011 and claimed that Hebei Province Department of Environmental Protection revoked the approval with respect to the environmental impact report of the Qinhuangdao western garbage incineration power generation projects, which were proposed by Zhejiang Weiming environmental protection company (Liang and Wang 2014) However, standing for individuals in the administrative appeal is limited to the administrative counterpart Other individuals, who appeal as the interested concerned, have no standing to file an administrative appeal In the field of environmental civil litigation, private group actions seldom get access to justice since the courts are unwilling to accept groups, sensitive and difficult cases or cases intervened by the local government Another reason is that judges usually deem that the court is not competent to examine complex environmental tort compensation cases For example, many Chinese fishermen from Shandong Province are shut out of the judicial gate by the Maritime Court and are forced to the USA to file a lawsuit for compensation in the case of Conocophillips oil spill pollution, although the damages occurred completely in China (Feng and Zhou 2012).11 In 2013, Shandong fishermen filed their claim to the Qingdao Maritime Court once again The prosecution is accepted in October 31, 11 Oil spill accident occurred at a drilling operation jointly owned by ConocoPhillips and state-run exploration giant CNOOC in the Bohai Bay The accident saw more than 500 cubic meters of oil and oilsoaked mud released into the sea, polluting 6200 square kilometer areas ConocoPhillips agreed to pay 1.1 billion Yuan to clean up the mess and another billion to compensate affected fishermen The agriculture ministry used the money to settle claims by fishermen in Hebei and Liaoning provinces, but refused to give money to the fishermen in Shandong In November 2011, Shandong fishermen take civil action to Qingdao maritime court But the court did not accept the case In July 2012, a group of 30 fishermen from Shandong Province filed their claim in a court in the US state of Texas seeking compensation from an oil spill 123 C Wang 2015 The change we have been looking forward to have happened in 2015 But this is only the beginning Environmental NGOs also had no standing to file an administrative appeal or administrative lawsuit for public interests before 2012, although in judicial practice some courts breached the legislation in individual cases and accepted administrative public interests litigation filed by NGOs (Zhang 2012: 60).12 Chinese Civil Procedure Law was amended in 2012 It permits the authorities that are allowed in the law and the relevant social organizations to initiate public interests litigation firstly.13 At present, there is no related provision to entitle affected individual’s standing in public interests litigation The new Civil Procedure Law has come into force, but the courts still refuse to accept the environmental litigation concerning public interest initiated by NGOs under the excuse that the courts need the Supreme People’s Court to make relevant judicial interpretations (Qie 2013).14 Thus, effective enforcement of environmental protection legislation is still facing big obstacles This situation has not changed until the new interpretation of civil procedure promulgated in 2015 3.4 The Composition of Judges in Chinese Environment Courts In China, there is no clear specification about the cultivation and selection of specialized adjudicatory personnel for environmental cases Established environmental courts are usually composed of judges that have special training experience concerning environmental law Some environmental courts select expert jurors as specialized adjudicatory personnel and qualified judges ad hoc to compose the bench (Shen and Shi 2012).15 Expert jurors who not work full-time and qualified judges determine issues of fact and law together and have equal voting rights Furthermore, in China there is no provision with respect to the proportion between judges and jurors in the environmental field According to the general rules, the proportion of jurors in the collegiate panel shall not be less than 1/3 In the second instance, litigation procedure does not permit jurors to participate in the collegiate panel An advisory committee of expert composed of 13 environmental protection specialists has been established in the Guiyang intermediate environmental Court These specialists are from the relevant departments of environmental protection agencies and responsible for providing professional advice for the trial (Liao 2014) 12 For example, All-China Environment Federation prosecutes Qingzhen Administration of Environmental Protection of Guizhou Province in 2009 13 In China, when Administrative Procedure Law has no related provision, it can refer to the provision of the Civil Procedure Law 14 In March 2013, All-China Environment Federation sues a farm discharging sewage and polluting the local residents Weifang City Intermediate People’s Court refuses to accept the case The reason is that the case need ask for the instruction of superior court 15 Nanjing Intermediate People’s Court employed the environmental experts as jurors in 2012 Guiyang Intermediate People’s Court and Qingzhen Basic People’s Court employed the environmental experts as jurors in 2007 123 A Comparative Analysis of Environmental Courts in Sweden… 3.5 Litigation Costs of Environmental Courts in China In China, we have no special provision concerning costs in environmental cases In administrative litigation or civil proceedings, it is provided that litigation costs include court acceptance fees, application fees, and other litigation costs paid to the witnesses, experts, translators, and adjuster for their transportation, accommodation, living expenses, and loss of income subsidies occurred and so forth Criminal proceedings are free of charges The plaintiff prepays, and the losing party covers all the cost finally Each party bears their own lawyer’s fee and cannot be remunerated from the losing opponent The identification fees, announcement fees, evaluation fees, and the like generally follow the rule that advocates prepays and the losing party pays finally The barrier to litigation mainly lies in the field of civil litigation The party who bears the burden of proof usually cannot afford the expensive identification fees, lawyer’s fees, and so forth.16 Meanwhile, China lacks alternative fund systems to provide assistance for the participants during the litigation Comparative Analysis of Environmental Courts in Sweden and China 4.1 The Type of Environmental Courts Between the Two Countries ECTs are a species of specialized courts and tribunals Types of ECTs vary according to the legal framework, political situations, and environmental goals for each country ECTs include judicial courts, administrative tribunals, and other dispute resolution forums Judicial courts exist in all standard court system—civil, criminal, administrative, and hybrids of those three Judicial models include freestanding specialized environmental courts, chambers, or panels of judges within a regular court, and designated green judges in a general court Administrative tribunals cover a number of options that are still specialized government bodies empowered to make binding decisions in environmental disputes Other ECTs include special commissions, ADR programs, ombudsman, and human rights bodies (Pring and Pring 2009: 21–24) In essence, types of ECTs are the same in Sweden and China They all chose to create a specialized chamber, bench, panel of judges within the selected general court to hear environmental cases 4.2 The Structure of Environmental Courts System Between the Two Countries Environmental courts in the two countries share the same characteristic of the comprehensive jurisdiction Swedish environmental courts have legal jurisdiction over both land use and environmental areas incorporating civil cases, administrative cases, and cases with some degree of enforcement power (administrative sanctions, 16 In the Conocophillips oil spill pollution case, professional appraisal agency fees are RMB one hundred and fifty Yuan per mu Five thousand mu is RMB seven hundred and fifty thousand Yuan The fishermen are hard to bear the costs 123 C Wang administrative fees, etc.) As mentioned earlier, Chinese environmental justice reforms in certain regions incorporate criminal cases, administrative cases, private cases, and execution of administrative orders into a ‘‘one stop shop.’’ This centralized system can reduce the referee conflict, avoid fragmentation of multiple and differing fora, the delay and costs of the litigation However, some differences concerning the structure of environmental courts system exist in the two countries Firstly, Swedish environmental courts exercise administrative powers In Swedish history, the role of the court has been constrained The historical fetters have been a mixture of political arguments for democracy and principles of equality, the firm belief in state supervision and control, instead of court actions However, the role of the Swedish courts has grown in importance during the last decade of the 1990s and the first years of the new millennium (Lindblom 2009: 8) The development of environmental courts has confirmed this trend Environmental courts act as permitting authorities and appellate courts for all kinds of decisions under the EC and the Planning and Building Act The district environmental courts are responsible for the 300–400 Class A activity permits.17 Environmentally hazardous activities of great importance must obtain a permit from the environmental court, as all kinds of water operations (Darpo¨ 2009: 2) At this point, China is different from Sweden There is a distinct demarcation of jurisdiction between the courts and the administrative authorities Administrative permissions can only be granted by the administrative organ Environmental courts not assume any administrative decision-making function They only bear the role of trial Secondly, the EC adopts an integrated and holistic approach when ruling on a case By placing the permit system for polluting activities in the MEB, CAB, and regional court in turn, Sweden has created a ‘‘one stop shop,’’ thereby avoiding two steps (Bja¨lla˚s 2010: 179–183) Administrative appeal and judicial review are integrated ‘‘in one line’’ in Sweden The person who is seeking relief needs not make a choice between administrative appeal and judicial review like those in China Instead, all types of cases are ultimately handled by the environmental courts (Darpo¨ 2009: 4) The scope of review is complete and reformatory Environmental courts as the appellate body have the authority to replace the administrative decision with a new one Most types of environmental cases are administrative behind the centralized jurisdiction Unlike Sweden, Chinese environmental courts not have administrative permit power Stakeholders have freedom to choose the way of relief between administrative appeal and judicial review Administrative appeal not only reviews the legality of administrative acts, but also reviews its reasonableness Administrative appeal has the right that the courts usually not have to change the specific administrative acts directly If the applicants are not satisfied with the result of administrative appeal, they can bring an administrative lawsuit Applicants certainly can apply administrative lawsuit directly without administrative reconsideration However, the court can only review the legality of specific administrative acts and is not entitled to review the 17 Class A refers to licensing of big pollution activities and most water operations Class B refers to other licensing, enforcement, certain physical planning A regional or a local authority is responsible for permitting Class B-type activities No permit is needed for the minor C-type activities 123 A Comparative Analysis of Environmental Courts in Sweden… reasonableness of administrative acts The court can quash the administrative decision and order the administrative organ to make a new decision In other words, the court has no right to change a wrong administrative decision directly The role of the court is constrained in China The judiciary lacks power to oversee executive decisions, which leave many disputes in lagging According to a survey, 93.27 % interviewees believe that the local government is the source of environmental pollution rather than the enterprises Many environmental administrative permits, which violate environmental law on land use or planning, cannot be timely corrected (Wang 2007: 735–747) Judicial review took place in less than % of environmental dispute all over the country each year Clearly, administrative proceedings fail to effectively prevent the occurrence of environmental damages Environmental damages are irreversible Administrative litigation is the first step to correct the illegal administrative acts and to avoid the occurrence of environmental damage It is unlike environmental civil litigation and criminal litigation, which usually provide a remedy after the damages occurred It is meaningless to provide access to justice after construction has started (Andrusevych et al 2011: 69) Therefore, it is very important to correct a wrong administrative act timely In other words, the efficiency of the environmental judicial review system is crucial for preventing the environmental disputes Sweden’s experience in this area gives us a good inspiration Unifying administrative relief procedure has been neglected for long in China 4.3 The Composition of Judges in Sweden and China Environmental cases involve complex scientific and technical questions when proving causation, damages, and prospects for environmental harm (Preston 2014: 386) The examination of environmental issues requires special knowledge and expertise to enhance the quality, effectiveness, and efficiency of the judgment In Sweden, the judges and the technical advisers are employed by the court and work full-time as environmental adjudicators These ‘‘internal’’ experts and judges determine the environmental cases together (Preston 2014: 386) The legally qualified judge, the technical judge, and the expert create a think tank to resolve complex environmental disputes and eliminate or at least reduce the testimony bias from the parties’ expert witnesses In China, the people’s juror system is applied in the first instance If an expert is needed, the court can choose one from the jurors’ list However, no further rules are provided to promote the specialization of the judges and other adjudicatory personnel It is necessary to stipulate the qualification and selection procedure of special judges and other specialized adjudicatory personnel, to promote training of judges in the environment cases and give environmental judges equal chance of advancement and a good salary (Wang 2013: 31) 4.4 The Standing of Environmental Courts in Sweden and China By contrast, the judicial interpretation of administrative cases as to who is concerned is generous in Sweden In addition to the immediate parties, all persons whose private environmental interests are affected are entitled to appeal People 123 C Wang may appeal because the administrative decision or administrative omission has affected people’s interests such as drinking, water safety, air quality, traffic, peace in a residential area Meanwhile, the environmental NGO’s standing in administrative cases has become more lenient However, there are still a number of blind spots in which NGOs as non-Nordic NGOs have no standing to appeal In private cases, NGO’s standing requirements are more relaxed Any nonprofit environmental NGOs have a right to initiate group actions There are no restrictions concerning the authorized institution, size, and duration of the organization However, until 2009, no cases of organization group actions had reached the court In addition, public authority can appeal an administrative decision or judgment and can initiate the public group action in Sweden According to the Aarhus Convention, standing criteria, if any, laid down in national law should be such so that the access to a review procedure is the presumption and not the exception Standing criteria, if any, laid down in national law should be such so that give the public concerned wide access to justice (Andrusevych et al 2011: 69, 81) A liberal construction of standing is the first step of access to justice In Sweden, individuals not have standing to initiate public interest litigation, if private environmental interests are not affected by the decision or infringement But what are the criteria of the affected private interest? Every country will shape their own standards of boundaries in the case when deciding standing for an individual Swedish judicial interpretation as to who is public concerned is generous Factors to be considered include distance to the activity, the nature of the emissions, and their likely effects and so forth (Darpo¨ 2009: 9).18 As long as administrative decisions or administrative omissions affect people’s interests such as drinking, water safety, air quality, traffic, peace, and the like in residential areas, people can appeal administrative authority’s decisions in Sweden All environmental disputes involve public interests, which are true even in environmental cases between private parties Thus, any public appeal concerning public interests may benefit both private and public interests In China, some private group environmental cases which especially involve socially sensitive problems are intervened by the local governments and access to justice is difficult The interpretation of the concerned person is more stringent The courts require the party to provide sufficient evidence for his claim at the acceptance stage It is well known that judicial independence is one of the preconditions in the access to justice process It should be independent of the executive branch and legislative branch It should have an identified and independent budget and not controlled by the agencies subject to its review It provides judges’ security of tenure The more independent a court is of the political progress and administrative pressure, the more likely its decisions are to be fair, equitable, and unbiased (Pring and Pring 2009: 22) In influential cases and political sensitive cases, the Chinese judge is more likely to comply with the political instructions regardless of the legal merits of those orders This situation is gradually changed Faced with the grim environmental situation, local officials have incentives to innovate Judges walk on the tendency to accept new types of claims to explain and create the law Before 2012, some courts began to accept the environmental public interests litigation brought by environmental 18 ¨ D 2003:98 and MO ¨ D 2003:99 MO 123 A Comparative Analysis of Environmental Courts in Sweden… NGOs, the competent government department, or the procurator However, there was no law which permits environmental NGOs to file administrative or civil lawsuits with respect to public interests in China.19 Chinese Civil Procedure Law was amended in 2012 and allows the authorities that are allowed in the law and the relevant social organizations to initiate public interests litigation firstly The latest judicial interpretation in 2015 admitted that the indirect interested party has plaintiff qualification in the environmental civil public interests litigation But there is no specification in the Administrative Procedure Law amended in 2015 4.5 Litigation Costs of Environmental Courts in Sweden and China According to the Aarhus Convention 9(4) and 9(5), adequate and effective remedy process should be fair, equitable, and not prohibitively expensive The parties should establish assistance mechanisms to remove or reduce financial and other barriers to access to justice (Darpo¨ 2013: 16) Like most of the countries in the world, there are no fees charged to launch an administrative appeal, but there are fees for going to the court In China, the acceptance fee for each administrative case is only 50 CNY Trademark, patents, maritime administrative cases charge a fee of 100 CNY per piece There is no economic barrier for access to justice in administrative cases In environmental private cases, court fees are calculated according to the economic value of the case If the plaintiff cannot afford the costs of litigation, he can apply for the less, deferment and exemption However, defer payment or exempted from payment does not include actual expenses in litigation, such as the appraisal fees, the lawyer’s fees The main barrier for private environmental cases is expensive appraisal fees These are costly for the plaintiffs who, in addition, typically have suffered economic losses already (Stern 2013: 60) Many victims in environmental disputes are not in a position to afford expensive appraisal fees Consequently, they have been forced to give up their lawsuit for compensation With regard to public interests litigation, some local environmental courts prescribe that if the plaintiff loses the litigation, the court will exempt the plaintiff from the litigation costs Some local environmental courts have established a public litigation fund Litigation costs are paid by the fund if the environmental NGOs or other legal body that does need to prepay However, these practices have not been transformed into effective legal rules, although attempts are being made in the individual areas 4.6 Other Characteristics of Environmental Courts Between Two Countries 4.6.1 Less Formality Numerous environmental courts throughout the world have created a number of flexible rules that cannot be adopted generally Employing informal, less 19 Guiyang Two Lakes and One Reservoir Management Bureau v Guizhou Tianfeng Chemical Ltd (Qingzhen Environmental Court, Dec 27, 2007) Guiyang Procuratorate v Xiong Jinzhi, Lei Zhang and Chen Tingyu (Qingzhen Environmental Court, Nov 26, 2008) Zhu Zhengmao and All-China Environmental Federation v Jiangyin Port Container Ltd (Wuxi Environmental Court, July 6, 2009) 123 C Wang intimidating proceeding is one approach (Pring and Pring 2009: 15) In Sweden, the proceeding of hearing at the environmental court of appeal in administrative cases is more like a general meeting than like an appellate court proceeding.20 The hearing often takes place in a conference room, and the testimony is conducted informally at a conference table The court normally travels to the site in dispute The parties are all allowed to represent themselves without attorneys The court can require the responsible local, regional, and central authorities to give comments on the case The court can also require independent technical institutes to comment on the case The hearing is conducted in a relaxing atmosphere not typical of a court proceeding (Bja¨lla˚s 2010: 182) In China, the above-mentioned institutional features have not been given enough attention in the current research literature, and similar rules are lacking in Chinese legal institution 4.6.2 More Inquisitorial Model The characteristic of inquisitorial model is that judges are not constrained by the fact advocated by the parties, and judges have dominant power to investigate and collect litigation data In Sweden, the ‘‘ex officio principle’’ is applicable to administrative cases The ultimate responsibility for the investigation of the case rests with the court However, such inquisitorial model has been debilitated due to contemporary judicial reform in civil cases in Sweden China is different from Sweden in this respect Whatever the administrative cases or civil cases, party is responsible for the evidence collection in China Judges shall investigate and collect evidences only in rare situations when the evidence is beyond the reach of a party for objective reasons or the court considers it is necessary for the trial of the case Accordingly, the court should investigate and collect evidence on its own motion if the case is related to the interests of the state, the public or third parties The court should investigate and collect evidence in accordance with the application if the parties have difficulties to collect evidence and apply for the court’s help For environmental decision making, administrative authorities are granted the power to investigate when fulfilling their duties within the permitted scope The authorities make the administrative decision on the premise of finding out the facts, regardless whether the parties claim and present evidence Therefore, the judicial and administrative branches are different in respect of the investigating power In Sweden, the environmental court system incorporates the administrative reconsideration and judicial review to one routine When the environmental court receives a permit application, the inquisitorial principle must be upheld (Darpo¨ 2009: 6) Therefore, it is necessary to include scientific or technical experts as judges alongside the law-trained judges in Swedish environmental courts If a Swedish environmental court receives an appeal from CAB, the inquisitorial principle will become easy to complement for reformatory review Special ‘‘in one shop’’ design of environmental court system requires more inquisitorial model to avoid disunity between MEB, CAB, and the court In China, there are no nonlawyer, scientific, or 20 This feature is only applicable to administrative cases and cases about permission, but not to civil cases 123 A Comparative Analysis of Environmental Courts in Sweden… technical experts as judges or commissioner alongside the law-trained judges to complete the investigation Inquisitorial investigation more depends on entrusting with appraisal and expert witness Conclusion Each country has its legal culture, unique political system, and different needs for environmental development But there is something in common that is suitable for reference by China In China, various reforms have been initiated But such reforms lack unified standards Centralized jurisdiction across the region has not been achieved at the grassroots court and the intermediate court The Swedish model of five district courts operating on regional levels has set an example for China when establishing environmental courts at the grassroots level Recently, most of the environmental disputes in China are about compensation for economic loss However, the prevention of environmental damages is more important because environmental damage is irreversible China does not only need to reform the jurisdiction integrating the private, criminal, and administrative cases into one, but also needs to focus on establishing a ‘‘one stop shop’’ administrative relief system for environmental protection Swedish environmental courts essentially act as administrative courts for environmental cases These provide enlightenment that how a court system can be developed in China Acknowledgments This thesis would not have been possible without the guidance and the help of several individuals My deepest gratitude goes first and foremost to my supervisors, Professor Jan Darpo¨ and Professor Bengt Lindell at the Uppsala University I would also like to acknowledge the financial support for my visiting research by Panacea Project of the Erasmus Mundus-External Cooperation Education, Audiovisual and Culture Executive Agency (EACEA) References Andrusevych, A., T Alge, and C Konrad (eds.) 2011 Case law of the Aarhus convention compliance committee (2004–2011) Lviv: RACSE Anker, Helle Tegner, Ole Kristian Fauchald, Annika Nilsson, and Leila Suvantola 2009 The role of courts in environmental law: a Nordic comparative study Nordic Environmental Law Journal 1: 18 Bja¨lla˚s, Ulf 2010 Experiences of Sweden’s environmental courts Journal of Court Innovation (winter) 3: 179–183 Darpo¨, Jan 2009 Justice through environmental courts? Lessons learned from the Swedish experience In Environmental law and justice, ed Jonas Ebbesson, and Phoebe Okawa Cambridge: Cambridge University Press Darpo¨, Jan 2012 A Environmental legislation, administration and courts 16 April http://www.jandarpo.se Darpo¨, Jan 2013 Effective justice? Synthesis report of the study on the implementation of articles 9.3 and 9.4 of the aarhus convention in seventeen of the member states of the european union EU Environment European Commission 11 Oct http://ec.europa.eu/environment/aarhus/pdf/ synthesis%20report%20on%20access%20to%20justice.pdf Feng, Jie, Zhou Qiongyuan 2012 The road of multinational recourse conocphillips Southern Weekly 20 July Khoday, Kishan 2011 Globalization and the evolution of environmental governance in China’s socialist market economy In Compliance and enforcement in environmental law: Toward more effective 123 C Wang implementation, ed Le Roy Paddock, Du Qun Louis J Kotze, David L Markell, Kenneth Markowitz, and Durwood Zaelke Cheltenham: Edward Elgar Korsell, Lars Emanuelsson 2010 Big stick, little stick: Strategies for controlling and combating environmental crime Journals of Scandinavian Studies in Criminology and Crime Prevention 12: 142 Liang, Jialin, and Wang Lu 2014 Farmers from Hebei Province sued the ministry of environmental protection to prevent Zhejiang Weiming Economic Information Daily May 2014 Liao, Bo 2014 Environmental experts as the jurors trial the cases Guizhou Metropolis Daily 13 June Lindblom, Per Henrik 2009 Group litigation in Scandinavia ERA Forum 10: 13 Lindel, Bengt 2013 Sweden In International encyclopedia of laws: Civil procedure, ed Piet Taelman, and Alphenaan den Rijin Netherlands: Kluwer Law International Nilsson, Annika 2010 Environmental law In Swedish Legal System, ed Michael Bogdan Stockholm: Elanders Sverige AB Preston, Brian J 2014 Characteristics of successful environmental courts and tribunals Journal of Environmental Law 3: 386 Pring, George, and Catherine Pring 2009 Greening justice: CreatIng and improving environmental courts and tribunals Washington: The Access Initiative Qie, Jianrong 2013 Public Interest Litigation Embarrassed Suited by All-China Environment Federation, Legal daily 27 Mar 2013 Shen, Ran, Shi Fa 2012 Nanjing court set up environmental trial divisions, and experts as jurors in the trial Chinanews.com 17 June 2009, Web June 2012 Stern, Rachel E 2013 Environmental litigation in China: A study in political ambivalence London: Cambridge University Press Sterzel, Fredrik 2004 Public administration In Swedish law: A survey, ed Hugo Tiberg, Pa¨r Cronbult, and Fredrik Sterzel Lund: Juristfo¨rlaget Wang, Jin 2007 The issues of implementing the Environmental Protect Laws in China: An analysis on the questionnaire survey of People’s court and People’s procuratorate in 30 provinces in China Peking University Law Journal 6: 735–747 Wang, Canfa 2013 The specialized reform of environmental justice in China China Science Legal 1: 37 Westberg, Peter 2010 The role and functions of courts in Sweden In Swedish legal system, ed Michael Bogdan Stockholm: Elanders Sverige AB Xiao, Ai 2010 On problems and countermeasures of filing in environmental tort civil litigation Journal of Kaili University 5: 32 Yaffa, Epstein, and Jan Darpo¨ 2013 The wild has no words: Environmental NGOs empowered to speak for protected species as Swedish courts apply eu and international environmental law JEEPL 10(3): 251–255 Yang, Zhaoxia, and Huang Jing 2012 How to deal with Chinese environmental disputes Environmental Protections 3: 66 Zhang, Lifeng 2012 The characteristics and enlightenment of the current environmental administrative litigation in China Journal of Huaibei Normal University (Philosophy and social sciences) 5: 60–61 Cuimin Wang , October 1, 1980, Female, Graduated from Fudan University, Doctor of Law Visiting scholar of Uppsala University from August 2013 to July 2014 Postdoctoral of Shanghai Jiaotong University Lecturer of Shandong Jianzhu University 123 [...]... Zhengmao and All -China Environmental Federation v Jiangyin Port Container Ltd (Wuxi Environmental Court, July 6, 2009) 123 C Wang intimidating proceeding is one approach (Pring and Pring 2009: 15) In Sweden, the proceeding of hearing at the environmental court of appeal in administrative cases is more like a general meeting than like an appellate court proceeding.20 The hearing often takes place in a conference... specialized adjudicatory personnel, to promote training of judges in the environment cases and give environmental judges equal chance of advancement and a good salary (Wang 2013: 31) 4.4 The Standing of Environmental Courts in Sweden and China By contrast, the judicial interpretation of administrative cases as to who is concerned is generous in Sweden In addition to the immediate parties, all persons... losing party pays finally The barrier to litigation mainly lies in the field of civil litigation The party who bears the burden of proof usually cannot afford the expensive identification fees, lawyer’s fees, and so forth.16 Meanwhile, China lacks alternative fund systems to provide assistance for the participants during the litigation 4 Comparative Analysis of Environmental Courts in Sweden and China. .. Administrative appeal not only reviews the legality of administrative acts, but also reviews its reasonableness Administrative appeal has the right that the courts usually do not have to change the specific administrative acts directly If the applicants are not satisfied with the result of administrative appeal, they can bring an administrative lawsuit Applicants certainly can apply administrative lawsuit directly... effort of the reform 3.3 The Standing for Parties of Chinese Environmental Court Access to justice is a fundamental issue in environmental law Aarhus Article 9 contains elaborate access to justice provisions States must provide access to judicial or administrative forums to enforce environmental laws against both private persons and the government In China, the scope of standing for individuals in the administrative... private environmental interests are affected are entitled to appeal People 123 C Wang may appeal because the administrative decision or administrative omission has affected people’s interests such as drinking, water safety, air quality, traffic, peace in a residential area Meanwhile, the environmental NGO’s standing in administrative cases has become more lenient However, there are still a number of. .. thereby avoiding two steps (Bja¨lla˚s 2010: 179–183) Administrative appeal and judicial review are integrated ‘ in one line’’ in Sweden The person who is seeking relief needs not make a choice between administrative appeal and judicial review like those in China Instead, all types of cases are ultimately handled by the environmental courts (Darpo¨ 2009: 4) The scope of review is complete and reformatory Environmental. .. Sverige AB Preston, Brian J 2014 Characteristics of successful environmental courts and tribunals Journal of Environmental Law 3: 386 Pring, George, and Catherine Pring 2009 Greening justice: CreatIng and improving environmental courts and tribunals Washington: The Access Initiative Qie, Jianrong 2013 Public Interest Litigation Embarrassed Suited by All -China Environment Federation, Legal daily 27 Mar 2013... Juristfo¨rlaget Wang, Jin 2007 The issues of implementing the Environmental Protect Laws in China: An analysis on the questionnaire survey of People’s court and People’s procuratorate in 30 provinces in China Peking University Law Journal 6: 735–747 Wang, Canfa 2013 The specialized reform of environmental justice in China China Science Legal 1: 37 Westberg, Peter 2010 The role and functions of courts in Sweden. .. needed for the minor C-type activities 123 A Comparative Analysis of Environmental Courts in Sweden reasonableness of administrative acts The court can quash the administrative decision and order the administrative organ to make a new decision In other words, the court has no right to change a wrong administrative decision directly The role of the court is constrained in China The judiciary lacks power