Zhu Mingzhe | How Judiciary Participates in Climate Governance——Observation from the Perspective of Comparative Law
*Author Zhu Mingzhe
Associate Professor and Doctoral Supervisor, Institute of Comparative Law, China University of Political Science and Law
Abstract: Facing the global challenge of climate change, many countries have lawsuits based on climate laws or policies, or with mitigation and response as the main goal, and my country is no exception. Looking at climate change litigation practices in various countries, the interactive relationship between justice and policy is particularly obvious. my country's judiciary has achieved the effect of reducing greenhouse gas emissions by using various policies in a large number of debt disputes, especially contract disputes. In contrast, whether in Europe, the United States or southern countries, climate change litigation has developed a model of using justice to promote the development of climate policy, which can be explained by "responsive justice". Whether it is to implement or promote climate policy, the judiciary also needs to use norms that are not legally binding, so as to have a basis for mutual promotion and mutual inspiration. my country's climate governance is characterized by the macroeconomic management department as the lead, and industrial and economic policies as the main means. Therefore, the future challenge of my country's climate change litigation also lies in how to apply these policies in the judiciary. Although climate policy cannot be used as a basis for judgment, it can be used as an argument to supplement the interpretation of contracts and laws. In addition, the procuratorate can also explore the use of public interest litigation to monitor the government's implementation of climate policies.
Key words: climate change litigation; climate policy; responsive justice; development path;
Since the 1980s, climate change lawsuits have emerged. After entering the new century, climate change lawsuits have gradually increased in various countries. According to statistics, more than 1,800 climate change lawsuits have entered the trial process. Recently, my country's Supreme People's Court also stated that it is necessary to guarantee the energy transition with the judiciary. The "China Environmental and Resources Trial (2019)" issued by the Supreme People's Court clearly puts the protection of climate change adaptation measures as the focus of judicial work in the next stage. It can be seen that climate change litigation will become an important part of my country's ecological justice. In recent years, new research on climate change litigation is no longer satisfied with the introduction of important cases, but has begun to focus on global trends. The focus of research includes the protection of the interests of future generations, the development of climate change litigation in developing countries, and the emission liability litigation against large-scale industrial and commercial enterprises. Interdisciplinary research is also gradually increasing. Among them, many scholars also expressed doubts about the source and application of law, the connotation of legal principles, and judicial functions in related cases. Research on the path of climate change litigation in my country has also appeared in Chinese academic circles, discussing different aspects such as public interest litigation, contract disputes, environmental impact assessment, and judicial application of climate policies.
With the deepening of climate change litigation practice, the relationship between justice and policy has entered the field of jurisprudence. Specifically, whether a country's judiciary is implementing climate policies or promoting legislation or executive agencies to formulate climate policies determines how climate policies are applied in the judiciary. In this article, the author empirically proposes two different types of the relationship between justice and climate policy, and then discusses how Chinese courts apply climate policy. Chen Yinke once said: "Academics of an era must have new materials and new problems. Using these materials to study problems is the new trend of academics in this era." Climate change litigation is a new strategic litigation , not only provides new materials for the dogmatics of various departments of law, but also provides new materials for the study of jurisprudence. Regardless of how the judiciary-policy relationship develops, new material on climate change litigation suggests that the judiciary is moving beyond its traditional function of setting the record and settling disputes, and is and will be more actively addressing climate change policy.
In the following, the author will first examine the existing climate change-related cases in my country, and analyze how the judiciary implements the climate policy through the trial of cases and the formulation of judicial policies. Although "policy-based justice" has always existed in my country, climate change litigation will strengthen the breadth and depth of judicial participation in social governance. The author then discusses global trends in climate change litigation, pointing out that a model of responsive justice is emerging with more and more successful cases, that is, the judiciary prioritizes ensuring the realization of substantive justice in the application and interpretation of the law. Pursue at the expense of consistency in the application of the law. This type of responsive justice tries more to promote the formulation and implementation of climate policies. Obviously, my country's judiciary has adopted a very unique model when participating in climate governance, and its future development and improvement must also be discussed under this premise. Finally, the author will point out that an important challenge in the future development of my country's climate change litigation lies in how to apply climate policies that do not have legal binding force into judicial practice.
2. Climate policy implementation-oriented justice
When thinking about my country's climate change litigation model, we must take into account the existing functional orientation of the judiciary. In addition to fixing points and stopping disputes, the policy implementation function of my country's judiciary is very important. This policy implementation function is not only reflected in specific cases, but also reflected in judicial policies.
(1) The practice of climate change litigation in my country
To discuss the practice of Chinese courts in responding to climate change litigation, the first thing that needs to be resolved is the problem of definition. Earlier studies focused on the use of discourse by litigants and judges, limiting climate change litigation to those "where legal or factual issues concerning the causes and effects of climate change are directly and explicitly raised in the claims or court decisions." the so-called "core circumstances". The mainstream view now is that the intentions and ideas of the relevant participants are more important than the words they use, and therefore they believe that climate change litigation should include those cases with climate change as the core or incidental claims, cases that are filed for the needs of climate governance but not Cases that deal directly with related issues, cases with “implications for climate change mitigation or adaptation”. As a result, the field of climate change litigation has been further expanded, and the material also includes many "marginal cases" that could not be included in the scope of core cases. There are a large number of cases in my country that are objectively beneficial to climate change mitigation or adaptation although they do not directly raise the issue of climate change. In this context, it is obviously not true to insist that there are no climate change lawsuits in China.
Judging from the cause of action, most climate change litigation in my country is concentrated in contract disputes, which is different from the practice of other countries in which infringement or environmental assessment is the approach. Judges use climate change policy as a factor supplementing contract interpretation and determining contract validity. In a commercial housing sales contract dispute, the judge decided that since the disclosure of energy-saving information in the annex of the contract is a requirement of national policy, it should not be interpreted as a technical standard, but a part of the developer’s contractual obligations, and required the developer to install solar energy for residents free of charge. water heater. Another sale contract dispute concerns whether a cement manufacturer, which has purchased a large amount of coal, can demand the return of unused coal due to changes in local air pollution prevention and control policies. In this case, the judge believed that the change of the local policy was only a specific implementation of the national policy, and did not set new restrictions, so it could not constitute a change of situation in the contract law, thus rejecting the plaintiff’s request. In a large number of disputes over taxi management contracts or transportation contracts involving high-polluting vehicles ("yellow label vehicles"), the courts refer to the notices of various ministries and commissions of the State Council and other policies to decide whether the vehicles involved in the case are prohibited from engaging in commercial transportation. In these cases, government policy became the object of application of Article 117 of the Contract Law. The judge is still in the electricity contract dispute, and according to the regulations of the government department, it is determined that for the purpose of promoting the technological upgrading of enterprises and promoting the innovation of industrial models, differential electricity prices can be implemented for enterprises with high energy consumption, high pollution and high waste.
Recently, Chinese courts are also trying to develop ways to deal with climate change litigation in fields other than contract disputes. Among them, the most noteworthy ones are the "Huzhou Air Pollution Case" and the "Gansu Abandoned Wind and Light Abandoned Case". In the "Huzhou Air Pollution Case", the procuratorate instituted a public interest lawsuit after the defendant Minghe Thermal Insulation Material Co., Ltd. had already received criminal punishment. The procuratorial agency believes that knowing that trichlorofluoromethane is a controlled ozone-depleting substance and that it is banned from production and use by the state, it still purchases a large amount to produce insulation materials, resulting in trichlorofluoromethane emissions. According to the Environmental Protection Law, the Tort Liability Law, and the Air Pollution Prevention and Control Law, the court judged the defendant to compensate for ecological and environmental damage, and cited the Montreal Protocol on Substances that Deplete the Ozone Layer in the reasoning. The reason why this case has attracted great attention is that, on the one hand, the Supreme People’s Court clearly regards ozone-depleting substance control cases as an integral part of climate change litigation in the white paper "China’s Environmental and Resource Trials (2020)", and on the other hand, it reflects the The possibility of the procuratorate intervening in the response to climate change through public interest litigation. In the "Gansu Abandoned Wind and Solar Energy Case", which has just resolved the issue of litigation eligibility and has not yet started the substantive trial procedure, the plaintiff believes that the State Grid Gansu Provincial Electric Power Company has not fully purchased all the wind power and photovoltaic power generation capacity within the coverage of its power grid, so it has not complied. Article 2 and Article 14 of the Renewable Energy Law. If the defendant fulfilled the corresponding statutory obligations, clean energy power generation could have replaced more thermal power, thereby reducing air pollutant emissions. Therefore, the defendant's failure to perform its obligations objectively led to the continued discharge of pollutants and destroyed the ecology. The potential significance of this case lies in activating relevant norms in the Renewable Energy Law on the premise that there is no precedent or judicial interpretation in my country that interprets greenhouse gases as "pollutants", thereby providing a legal basis for court decisions.
From the above-mentioned climate change litigation cases that have gradually appeared in my country's judicial practice, we can see that the main function of my country's courts in handling related cases is to implement the national climate policy, not to settle disputes based on individual cases. The focus of the court's work is to understand the country's policy goals through various documents, and comprehensively use legislation in different fields such as contract law, tort law, and environmental law as the basis for judgment, and use non-legally binding policies and international treaties As a material for contract interpretation or fact finding, so as to obtain results in favor of climate change mitigation or adaptation in individual cases. The above summary of factual experience is very important for understanding how Chinese courts implement climate policy.
(2) Judicial policies related to climate change litigation
The use of justice to achieve the national climate change response goals is not only reflected in the judgment of individual cases, but also has become a future-oriented and guiding judicial policy through various measures of the Supreme People's Court (hereinafter referred to as the Supreme Law). In the field of ecological and environmental governance, the Supreme People's Court is indeed actively creating new adjudication rules through judicial policies, so that courts at all levels can implement national policies that have not yet formed a legal text. The ecological environment damage compensation system is a typical example. After the General Office of the Central Committee of the Communist Party of China and the General Office of the State Council issued the "Reform Plan for the Compensation System for Ecological and Environmental Damage" in 2017, the Supreme People's Court issued the "Several Provisions on the Trial of Compensation for Ecological and Environmental Damage Cases (Trial)" in 2019. At this time, there has not been any legislative work to refine this system. It can be seen that it is entirely possible for the Supreme Court to promote environmental change in the field of climate in a more in-depth and lasting manner through judicial policies.
The 2021 State Council Government Work Report included the concepts of "carbon peak" and "carbon neutrality" (hereinafter referred to as "dual carbon") for the first time. Against this backdrop, the judiciary has shouldered the heavy responsibility of safeguarding the "double carbon" goal by trying cases. In the white paper "China's Environmental and Resources Judgment (2019)", the Supreme People's Court made "legal trial of climate change response cases" an independent section for the first time, and proudly stated: Or indirectly affect the cases arising from the process of climate change, including climate change mitigation cases and climate change adaptation cases. Pay attention to the use of various judicial methods to promote the implementation of mitigation and adaptation to climate change, and promote the construction of national climate change Respond to the governance system." In the white paper "China's Environmental and Resource Trials (2020)" released in June 2021, the Supreme People's Court further clarified that climate change cases can occur in the fields of "criminal, civil, administrative and public interest" litigation. However, the new white paper has deleted the expressions about promoting the implementation of countermeasures and promoting the construction of a governance system. In addition, the classification of mitigation cases in the white papers of the two years is generally consistent, including cases of new energy development and utilization, energy-saving services, energy-saving emission reduction, and control of ozone-depleting substances.
In 2021, the Supreme People's Court put forward "boosting the energy revolution and promoting the green and low-carbon transformation of the economy and society" as an independent part in its opinions on the trial of environmental resources. Among them, the two tasks of achieving the "double carbon" goal and serving the green upgrading of the industrial structure are particularly relevant to climate change response. In terms of assisting in the realization of the "dual carbon" goal, in addition to properly adjudicating cases, the Supreme Court is also determined to support and supervise administrative agencies in investigating and punishing illegal activities in carbon trading, helping to form a low-carbon energy-efficient system dominated by renewable energy, and increasing The trial of energy-related cases in key areas, the implementation of coordinated pollution reduction and carbon reduction, and the help to reduce non-carbon dioxide greenhouse gas emissions will ultimately achieve the goal of effectively responding to the global climate change crisis.
There are reasons to believe that the judicial policy of the Supreme Court to promote the realization of the dual carbon goals through judicial activities will further increase the activity of courts at all levels in our country in hearing climate change cases. In addition, once the relevant judicial interpretations under formulation are issued, they will further provide clear instructions to the court in terms of work priorities, case classification, normative basis, and evidence determination. The Supreme Court has long been a part of my country's overall governance structure, playing the role of integrating national policies into judicial work. In the process, the Supreme Court often needs to create new rules outside the existing system. On the one hand, the Supreme Court formulates judicial policy. On the other hand, courts at all levels implement governance goals in individual cases by implementing the judicial policies of the Supreme Court. Article 10 of the "People's Court Organization Law" stipulates: "The Supreme People's Court supervises the trial work of local people's courts at all levels and special people's courts, and the people's courts at higher levels supervise the trial work of people's courts at lower levels." Methods such as setting assessment indicators require lower courts to implement the judicial policies of the Supreme Court. Therefore, my country's judicial organization shows a high degree of bureaucracy. We have reason to believe that the judicial policy of the Supreme Court in the field of climate change can be implemented by courts at all levels, and eventually intervene in climate governance.
(3) New challenges for judicial implementation of climate policy
At first glance, our courts appear to be dealing with climate change in the same way as they do with other types of cases. Previous empirical research has long pointed out that the judiciary is an organic part of my country's national governance, and it is always in linkage with other state agencies to jointly ensure the development of national governance. Gu Peidong once highly summarized the role of justice in national governance into three points: integrating judicial functions into the political functions of national governance and social development; properly handling and resolving social contradictions and disputes in social transformation; constructing and shaping Social structure and social relations. Specific to different fields, in terms of economic development, the Supreme Court has been participating in the regulation of the economy through judicial policies formed by the deliberation system; in terms of grassroots governance, the judiciary is also implementing national policies to maintain stability through criminal judgments; In environmental public interest litigation, which is most relevant to climate change litigation, the interaction between judicial power and other state agencies is more obvious. The procuratorial organs extensively use national and local policies to refine the principled provisions in the legislative texts, conduct comprehensive supervision on the implementation of environmental policies by administrative organs, and even evaluate the effects of environmental governance. The courts have become the backing for the implementation of this legal supervision function, and the establishment of models and exemplary education have replaced dispute resolution and become the main function of the courts. In other words, my country's judiciary has always assumed the function of formulating and implementing judicial policies and implementing national policies in specific trial practices.
However, the way Chinese courts handle climate change litigation shows important differences on the basis of continuing the previous judicial functions. One of the most obvious features of climate change litigation is that it cannot be confined to a specific field. All aspects of socioeconomic life are relevant to climate change mitigation and adaptation. In addition to the operations of "yellow label vehicles" that I have already discussed in this article, coal consumption, ozone layer depletion, and solar water heater installations, climate change is involved in a large number of other cases. The impact of greenhouse gas emissions may be included in the environmental assessment index system, thus making climate change litigation from the environmental assessment approach possible. The homology between air pollution and greenhouse gas emissions makes lawsuits against polluting companies often have the synergistic effect of reducing greenhouse gas emissions. Even in disputes over usufruct rights that seem to have nothing to do with climate change, litigants will put forward their own arguments from the perspective of energy conservation and emission reduction. State Grid argued in a dispute over mining rights that when defining "public interest", it should take into account that the power grid project it is building can reduce carbon dioxide emissions by 44 billion tons per year after completion. This breadth means that climate change litigation cannot be considered a separate category of litigation, and in particular cannot be considered merely a subcategory of environmental justice. Instead, climate change considerations almost inevitably arise in criminal, administrative, and civil and commercial cases of all kinds. Thus, not a certain subset of judges will be dealing with climate-related cases, but all judges are likely to encounter relevant arguments.
Moreover, not only does climate change far exceed other policy areas in breadth, but it also has clear long-term policy goals. It is true that the State Council announces its economic growth targets every year, and there will be corresponding plans for stability maintenance and environmental governance. However, only in the field of climate change has the top leader promised to the world that my country will "peak carbon dioxide" by 2030 and that it will reach its peak by 2060. to achieve the goal of "carbon neutrality". This also means that there is stronger political impetus for the judicial implementation of climate policy. Therefore, although the judiciary has not completely changed its consistent mode of operation when implementing climate policies, the challenges it must respond to are different from the past. There will be new developments in my country's judiciary in response to climate change lawsuits. And it is likely to go in a different direction than climate change litigation practices in other countries. Once my country's practice is placed in the context of the development of global climate change litigation, it can reveal its commonality and individuality as reflective justice compared with other different programs.
3. Climate policy-driven justice
In order to highlight the characteristics of my country's judicial practice, it is necessary to understand the climate change litigation practices of other countries from the perspective of comparative law. Different from my country, climate policy-driven justice has appeared in climate change litigation in Europe, America and developing countries. In response to societal demands, courts have asked governments to implement existing policies or formulate new, more stringent climate policies. This high-stakes responsive justice requires courts to apply a combination of sources of law, including norms that are not legally binding.
(1) Environmental assessment, state responsibility and basic rights
In the early climate change lawsuits, the main claim was that the environmental impact assessment of large-scale construction projects did not consider the climate change impact of the project. The last decade has seen a flood of new types of lawsuits targeting states as defendants, demanding more effective government policies. In the earliest cases, the courts articulated climate change as an environmental issue, trying to govern it within the framework of existing environmental law. Such lawsuits, mostly in the UK, US and Australia, have involved plaintiffs demanding climate change be considered in environmental impact assessments used in the permitting process for large-scale projects. Among the more recent cases is the Heathrow Airport case. The plaintiffs argued that Heathrow's planned third runway to increase capacity would significantly increase the number of international flights and cause more greenhouse gas emissions, so the government should not have approved the project. While the Court of Appeal upheld the plaintiffs' claims, the UK Supreme Court ultimately held that the government had enacted a more stringent climate policy within the goals of the Paris Agreement and that environmental impacts had been adequately considered in project EIAs. The highlight of "climate as an environmental issue" is the "Massachusetts v. Federal Environmental Protection Agency" case in the United States. The plaintiff argued that the Federal Environmental Protection Agency must include greenhouse gases in the regulatory framework of air pollution legislation. This case breaks through the previous path of one-on-one discussion for individual project cases, and uses the power of government regulation to seek a broader solution to climate issues.
It has gradually become an obvious trend in recent years to review the implementation of the country's commitment to climate change within the framework of fundamental rights. In Pakistan, the Lahore High Court found that the government's delay in tackling climate change constituted a human rights violation. It can be seen that the "rights shift" in climate change litigation appeared no later than in developed countries in developing countries. Colombia's Supreme Court further discussed intergenerational justice and solidarity, the responsibility of private institutions in climate change, and humanity's reliance on ecosystems in a case that recognized the legal personality of the Amazon Basin. Courts in developing countries tend to link the locally marginal issue of climate change with broader issues of constitutional rights, environmental protection, land use, disaster prevention, natural resource conservation, and ethics.
This trend is characterized by interpreting the response to climate change as a legal obligation of the country, requiring the country to adopt a more active climate policy. The representative case at this time is the "Urgenda case" with a final judgment at the end of 2019. This case is the first case to make the country responsible for its emission reduction commitments through the judiciary. The plaintiff claimed that the Dutch government failed to fulfill the duty of care stipulated in the Dutch Civil Code due to its ineffective response to climate change, which resulted in a violation of the rights protected by Articles 2 and 8 of the European Convention on Human Rights. The court held that the "European Convention on Human Rights" is directly binding on the Dutch government, and the government's failure to achieve its emission reduction targets constituted a violation of its obligations under the convention, and ruled that the government must reduce carbon emissions to 1990 emissions by the end of 2020 less than 75% of the amount. Inspired by the judgment of the "Urgenda case", the courts of some other European countries have also set clear emission reduction targets for the country in the past two years. For example, in the "Climate Protection Act Partially Unconstitutional Case" ruled in March 2021, the German Constitutional Court held that the responsibility for ecological protection should be distributed in proportion among different generations, and should not cause future generations to pay the price of complete abstinence, and therefore The German "Climate Protection Act" was judged to be partially unconstitutional, and the legislature was required to further stipulate the emission reduction target before 2030 by the end of 2022.
Judging from the status quo of global climate governance, policy-driven justice has important practical significance. Countries announce one ambitious emission-reduction target after another at international conferences, only to renege on their promises without hesitation. It is this huge gap between the goal and reality that makes the determination of the legal binding force of the national emission reduction target one of the central issues. Judges are also assessing whether the country has fulfilled its promised emission reduction goals in the lawsuit, and through creative interpretation of the law, the emission reduction goals are legally binding. The two cases of the French Administrative Court in 2021 provide people with an opportunity to get a glimpse of the leopard. Among them, the administrative lawsuit brought by the municipality of Grand Saintes by the sea is believed to be the first climate change lawsuit in France. The city of Grande Saintes is suing France's highest administrative court over the central government's refusal to respond more effectively. The French Supreme Administrative Court not only confirmed that the local government can sue the central government when the central government delays in tackling climate change, but also confirmed that the French government's emission reduction targets are legally binding on the government itself, and the French government has not completed its emission reduction plan. In another case, the Paris Administrative Court ruled that the French government should be held liable for the ecological damage caused by climate change under the provisions of the French Civil Code on liability for ecological damage because it failed to fully achieve the greenhouse gas emission reductions it had set Target.
(2) The policy function of responsive justice
A form of responsive justice begins when courts decide to advance climate policy on a case-by-case basis. Compared with traditional autonomous justice, responsive justice has three main characteristics: first, legal norms are applied in the judiciary because they can guide judges to achieve the specific goals of individual citizens, public and private organizations, or society as a whole; second, normative There is no clear boundary between the application and formulation of the law; thirdly, if judges need to provide convenience for responding to social needs, then the core of their work is no longer to settle disputes, but to clarify the requirements of public interest, clarify or revise policies . Specific to the practice of climate change litigation, it is not difficult to see that in terms of the initiation of litigation, the plaintiffs are not satisfied with the resolution of individual disputes, but hope that the courts will apply the law creatively, thereby changing the meaning of existing norms and promoting wider society, policy change. In terms of litigation, legal and judicial procedures have become a means to achieve positive climate change response effects, and the role of the court is more like a promoter of social and policy change than a dispute resolver of specific disputes.
This kind of responsive justice is similar to what is traditionally called "active justice". In a broader sense, "judicial activism" refers to the general interpretation that courts can create new rules or change rules in terms of judicial policy, and in judicial philosophy refers to the belief that courts can actively promote social welfare. Using this definition, judicial activism and responsive law are not fundamentally different. However, we abandoned activism in favor of a responsive approach for three reasons. First of all, the concept of judicial activism and related discussions are inseparable from the practice of judicial review by the Supreme Court of the United States. When it is extended to discuss the judicial practice of other countries, misunderstandings will inevitably be amplified. Second, the various political controversies aroused by judicial activism in the United States have made precise definitions difficult. A highly politicized concept is not conducive to academic discussion. In contrast, responsive law is a descriptive academic concept from beginning to end, and people can use it to discuss the relationship between the judicial system and the social system, regardless of whether they agree with this model of the rule of law. Finally, the most substantive reason is that the responsive law emphasizes not only the role of the judiciary itself, but also the interaction between the judiciary and “society”.
From the perspective of responsive law, the success or failure of climate change litigation depends on whether judges can be persuaded to take responsibility for promoting climate policy change. Beginning with the earliest climate change lawsuits, judges have innovated the law by creatively interpreting terminology, legal norms, and employing legal techniques. This kind of creativity is undoubtedly displayed in the US Federal Supreme Court who interpreted greenhouse gases as a "harmful gas", the Dutch judges who held that the duty of care in the Dutch Civil Code included the obligation to deal with climate change, and the French Civil Code French administrative judges whose ecological damage also includes damages caused by climate change, and Colombian constitutional courts that recognize the legal personality of the Amazon basin through fictitious techniques. The text of existing norms has not changed, but the meaning of concepts, the scope of application of norms and the way legal techniques are used have changed. It is in this sense that climate change litigation provides an opportunity for judges who “don’t sue and ignore” judges to participate in the creation of norms beyond the position of deciding the dispute in individual cases. Even in those lawsuits in which judges ultimately did not side with plaintiffs, courts were still able to express the need for legal change or point to an alternative litigation strategy that was more likely to prevail.
The judiciary in responsive law must clarify the requirements of the public interest and use them to clarify or modify policy. In other words, justice drives policy in response to social change as it occurs. The methods, limits and terminology of a society's legal response to climate change reflect the choices and identities of public values in that society. “Our laws express what we believe in, what we stand for, and who we really are.” Litigation over climate-related legislation, executive decisions, and business practices can spark debates about values and identities in the courtroom and in the public sphere. public discussion. Public discussion will be most useful where the judiciary calls for further action by the legislative or executive. The world will not change because of climate change lawsuits. On the contrary, the world is changing, correspondingly, people in all countries are beginning to pay more attention to the value of ecology and realize the connection between human life and environmental change. "The climate change case is like a beacon telling us where this is going."
The role of the judiciary in driving policy change in the response to climate change has also been recognized by judges themselves. The Lahore High Court pointed out in the "Leghari Case" that the right to life, human dignity, and information as constitutional rights, together with political, economic, and social justice of constitutional value, allow the judiciary to handle and supervise the government's efforts to address climate change. Measures for change. Judge Preston of the New South Wales Land and Environment Court believes that courts can contribute to the response to climate change in nine ways: providing equal access to justice; adjudicating without prejudice to climate change claims; upholding the rule of law; requiring administrative Agencies, legislatures, and private organizations take climate change seriously; explain and uphold fundamental values in the law; promote environmental values and price environmental harm; make it easier for progressive, principled progress in climate change law and policy; Make reasoned, evidence-based judicial decisions. Even in the "Juliana case", which has not yet achieved favorable effects on climate response, the dissenting judge said: "Even if the case involves political issues that are fiercely debated, the judiciary, which has the same status as government agencies, cannot retreat." It can be seen that although it is not All courts are willing to deal with political issues, but at least a few justices are beginning to acknowledge that the judiciary should intervene in policy issues of climate change.
An autonomous judiciary that abandons formal stability in pursuit of substantive justice is also a high-risk judiciary, and its success or failure depends on the ability of judges to shape reasonable institutional tools in response to social needs. Compared with the autonomous rule of law that sacrifices the right to formulate norms in exchange for the independence of norm application, the responsive judiciary is more willing to create new norms through the creative application of norms according to changes in social consciousness. Climate change is clearly a political issue, but people's understanding of it is changing all the time. When society reaches a consensus on the urgency of addressing the climate, responsive justice can intervene in policy decisions in a timely manner in litigation. Beyond that, lawsuits themselves can spur social change. “Litigation is also an effective tool for stimulating social discussion. Even before a judgment is handed down, the high-profile publicity surrounding the case can lead to social discussion of responsibility for the dangers of climate change. Discussion can lead to acceptance of new legal positions and remove climate issues from The political realm is pulled into the legal realm.” Supporting legal decisions with publicly stated reasons is at the heart of the rule of law from the perspective of contemporary legal theory, and climate change litigation is no exception. Therefore, judges who are actively involved in climate governance must find sufficient evidence to support their own policy decisions. At this time, the flexible use of various norms is the key to the success or failure of this responsive justice.
(3) Promoting climate policy through multiple norms
Policy decisions in responsive justice differ from decisions in political institutions not because judicial decision-making does not deal with questions of value and morality, but because its argumentative process revolves around existing effective institutions. Because its argumentation process is still based on the determination of the source of law and the meaning of legal norms, it still belongs to a typical legal argumentation. In other words, for jurisprudence, the central issue is not whether judges make policy decisions, but how to justify such decisions. Needless to say, when judges choose to respond to social needs to promote policy changes rather than follow the established practice, they should bear a heavier burden of argument. Therefore, whether it is the definition of the duty of care in the "Urgenda case" and "Shell case", or the determination of ecological damage in the "Century Litigation", the judges fully cite various legal sources to support their legal application and interpretation. Among them, the "Urgenda case" position that civil law norms must be interpreted within the framework of the European Convention on Human Rights is already familiar to the academic circle; the judgment document of "Century Litigation" can provide people with an opportunity to observe the application of various norms.
In the "Century Litigation", the Paris Administrative Court's main judgment was based on the ecological damage compensation system stipulated in Article 1246 of the French Civil Code. It can be seen that, similar to the "Urgenda case", the judges in the "Century Action" case also tried to use the rules of civil law to judge whether the state fulfilled its obligations. Moreover, the French Administrative Court has long recognized the binding force of the French Civil Code in administrative proceedings. But unlike the Urgenda case, the French courts did not seek a legal basis by turning to the European Convention on Human Rights or other concepts of fundamental rights.
Judges in the "Litigation of the Century" case are to determine whether the administration has an overall obligation to address climate change. To this end, judges start from three perspectives: international law, EU law and domestic law. In terms of international law, the judge cited Articles 2 and 3, paragraph 1, of the United Nations Framework Convention on Climate Change (1992) and Articles 2 and 4 of the Paris Agreement (2015). These articles express the contracting goals of international climate law and the principle of "common but differentiated responsibilities". In terms of EU law, the judge pointed out that in 1993, the European Council had ratified and joined the United Nations Framework Convention on Climate Change on behalf of the European Community, which later became the European Union, and adopted the first "2020 Climate and Energy Package" in order to implement the above-mentioned international laws. Plan", which specifically stipulates that member states must make efforts to reduce greenhouse gas emissions, so emission reduction has become an EU legal obligation. After the EU joined the Paris Agreement, it notified the Conference of the Parties of the United Nations Framework Convention on Climate Change of the nationally determined contributions of the EU and its member states, promising to reduce emissions to 40% of 1990 levels by 2030. This was followed by the adoption in 2018 of a second Climate and Energy Package, which includes annual emission reductions binding on member states. Based on Article 3 of the Environmental Charter, Article L100-4 of the Energy Code and Article L222-1 of the Environmental Code, the judge stated that France committed itself to adopting a low-carbon development strategy, specifically by 2030 40% emission reduction and 2050 "carbon neutral" policy to prevent environmental damage. Therefore, the French government itself is aware of the importance of addressing climate change and has voluntarily set a series of emission reduction targets, which can prove the existence of the overall obligation to address climate change.
Next, the judge judges whether France's current climate policy constitutes a violation of its obligations from the three aspects of improving energy efficiency, increasing the proportion of renewable energy in final energy consumption, and reducing greenhouse gas emissions. France's energy efficiency and the proportion of renewable energy have increased slowly, but the energy policy itself is only an industrial policy that may be effective in improving energy efficiency, and its failure cannot be regarded as the failure of the entire climate policy. The crux of the matter is determining whether governments are effectively reducing carbon emissions. The judge pointed out that the "Environmental Code" stipulates an annual budget for carbon emissions generated on French territory, and this annual budget is reduced every five years. The actual carbon emissions generated between 2015 and 2018 exceeded the budget by 3.5%. Each year since then carbon emissions have not fallen as fast as government decree mandated. Therefore, although the country has set trajectories to complete the two carbon emission targets of 2030 and 2050, if it fails to advance steadily along the established guidelines and plans, it will cause more greenhouse gas emissions and thus aggravate ecological damage.
Although Article 55 of the "French Constitution" stipulates that "an international treaty or agreement adopted or acceded to in accordance with the law shall have the effect higher than the law once it is promulgated", but perhaps as the Minister of Ecological Transition stated in his reply, such treaties do not have the Direct effects on individual citizens. In fact, the judges did not directly use international treaties as the basis for adjudication, but further interpreted EU law and domestic law rules that are more binding in the context of treaty obligations. As for judging whether the government is at fault, only the "carbon budget" set by the government itself is used. Although the emission reduction targets embodied in the budget are now written in the Environmental Code, it is nothing more than a decree used by the government to enforce the law. In other words, its requirements are very specific and low-level normative.
The limited number of successful cases has demonstrated the importance of multiple sources of law in climate change litigation. Judges in the Netherlands and France have both used international rules, which are not legally binding in the relevant cases, as background for their interpretation when determining the state's responsibility to address climate change. It can be seen that even if some norms only stay at the level of "soft law", they may also play a role in individual cases because they are taken into consideration in legal interpretation. Nationally determined emission reduction plans and the extent to which they are implemented have become the criteria for judging whether they have fulfilled their responsibilities.
4. Improvement path for climate change litigation in my country
The purpose of using comparative law methods and foreign judicial materials is to highlight the characteristics of my country's judiciary in handling climate change litigation through comparison, and to discuss the challenges that all countries face under the premise of respecting these characteristics. Also in the face of climate litigation, my country has presented a strengthened policy-implementation judicial model, which is different from responsive justice in some key respects. But countries need to apply climate policies that are not legally binding in the judiciary. In my country, the judicial application of climate policy needs to be considered under the development model of climate governance.
(1) Differences and similarities of climate change litigation
The mode of my country's courts in handling climate change litigation is not the same as the responsive law. Responsive law in climate change litigation requires plaintiffs who try to use strategic litigation to promote social and policy changes and a judiciary that is willing to respond to the needs of social change. The two jointly urge public authorities to formulate or implement climate change policies, or investigate the historical responsibilities of large-scale emitters. However, in my country, except for a few cases such as the "Gansu Abandoned Wind and Light Case", most of the plaintiffs' motives for filing lawsuits are not strategic. They want their rights to be recognized and their interests protected, rather than trying to drive social change in a macro sense. my country's judiciary neither formulates climate policies on its own, nor urges administrative agencies to formulate climate policies. In this sense, our courts are far from the so-called "judicial initiative". In fact, since the publication of "China's Policies and Actions to Address Climate Change" in 2008, the Chinese government has been formulating various specific and operable climate policies, and the laziness of decision-making organs is actually impossible to talk about. As far as the implementation of climate goals is concerned, my country is at least very likely to achieve the nationally determined contribution targets promised at the Paris Climate Change Conference before the scheduled deadline. In addition, compared with climate change lawsuits outside the region, which usually go through repeated appeals before being finalized in the highest judicial authority, most climate change-related cases in my country are concluded in the court of first instance. If the Supreme Court makes it clear that public interest litigation can be brought against large-scale emission companies in the future, or if the procuratorial organs start to require administrative agencies to adopt more active response plans through administrative public interest litigation, then a responsive climate change judiciary may also appear in our country. However, at least for now, the most important feature of my country's climate change litigation is still that the judiciary implements climate policies in a large number of civil lawsuits.
Although there are many differences in case types, litigation claims, litigation procedures, etc., both responsive justice and policy implementation justice face similar challenges, and how to apply climate change policies is one of them. In relevant civil litigation cases in our country, judges use policies as supplementary materials for legal interpretation or contract interpretation, so as to implement the goals set by these policies in specific cases. In responsive justice, judges are also using various non-legally binding norms to update interpretations of existing rules. Not only that, judges can both examine whether policies are sufficient to meet international commitments, and use these climate policies as a basis for judging whether public powers implement policies adequately. All in all, regardless of the model, climate change litigation pushes the climate policy itself, which is only an administrative document, into the judicial field, forcing judges to consider the application of these policy documents. The following author will discuss the judicial application of climate policy under the constraints of my country's climate governance path.
(2) The developmentalist path of climate governance and its judicial significance
At the level of international law, climate change is a "common concern of mankind". However, when countries respond to this concern, at least three different paths have emerged. European countries tend to understand it as an environmental issue, the United States tends to see it in economic terms, and many developing countries understand climate politics as "part of a larger pattern of historical and economic injustice." China's climate governance relies on a developmentalist approach. It handed over the power to formulate and implement climate policy to government ministries that manage industrial affairs, and allowed them to change industry and energy structures by using macroeconomic measures to achieve climate goals.
First, this approach is reflected in my country's legal framework related to climate change: so far, the applicable norms mainly concern the industrial sector, scattered in the Energy Conservation Law, Circular Economy Promotion Law, Renewable Energy Law, Electric Power Law, Cleaner Production Promotion Law, and Air Pollution Prevention and Control Law. These laws define the normative framework within which various mitigation measures can be undertaken and largely determine the scope of our climate policy.
Second, from a historical perspective, my country's climate policy has been dominated by macroeconomic departments. In the early days of China's climate governance, relevant issues were indeed within the purview of the State Council's National Environmental Protection Commission. However, Song Jian, who was also chairman of the State Science and Technology Commission, chaired the State Environmental Protection Commission from 1988 to 1998. On March 17, 1989, Luo Jibin, deputy director of the National Meteorological Administration, submitted the first report related to climate change, which reported extensively on the scientific evidence of global warming, its consequences and impacts, greenhouse gases and the ozone layer, international concerns, Formation of the IPCC and some policy recommendations. Eleven months later, the National Climate Change Coordination Group was formed to coordinate actions across different ministries. Among them, the fourth working group responsible for preparing for the international climate conference is composed of staff from the Ministry of Foreign Affairs, the Science and Technology Committee, the Ministry of Energy, the Ministry of Communications, the Ministry of Agriculture, the Forestry Administration, the National Meteorological Administration, the Environmental Protection Administration and the State Oceanic Administration. It can be seen that the government at this time has realized that climate governance is not only a scientific issue, but also a political issue that needs to be coordinated among various ministries that manage the industrial sector. In the institutional reform of the State Council in 1998, the National Climate Change Countermeasure Coordination Group replaced the National Climate Change Coordination Group, and the higher-level management department also became the National Development and Reform Commission, the predecessor of the National Development and Reform Commission (National Development Planning Commission). Institutional reforms in 2003 changed the Planning Commission to the National Development and Reform Commission and authorized the National Climate Change Countermeasure Coordination Group led by it to coordinate the actions of 15 ministries. In 2007, the State Council established the National Leading Group for Addressing Climate Change and Energy Conservation and Emission Reduction, headed by the Prime Minister and headed by the National Development and Reform Commission. The following year, the Climate Change Division was established in the National Development and Reform Commission. Although the National Leading Group for Addressing Climate Change, Energy Conservation and Emission Reduction and the Department for Addressing Climate Change have been transferred to the Ministry of Ecology and Environment since 2018, the influence of the National Development and Reform Commission will continue to exist, because climate change as a need includes transportation, agriculture, finance, etc. The macro-control policies of the National Development and Reform Commission can play a relatively obvious synergistic effect in areas where various departments such as government, housing construction, and industry and information technology work together.
Understanding the development path of climate governance is of great significance to the development of climate change litigation in my country.
First, the characteristics of this path determine that the climate issue is a macroeconomic and industrial issue. Preventing air pollution can help reduce greenhouse gas emissions, but cannot explain greenhouse gases as pollutants. Paragraph 2 of Article 2 of the Air Pollution Prevention and Control Law authorizes the regime to strengthen “comprehensive prevention and control of air pollution from coal burning, industry, motor vehicles and ships, dust, agriculture, etc. … to particulate matter, sulfur dioxide, nitrogen oxides, volatile organic compounds, ammonia Coordinated control of air pollutants and greenhouse gases”. The literal interpretation of this clause shows that the law regards air pollutants and greenhouse gases as two different fields, and the norms applicable to the former do not necessarily apply to the latter. Similarly, even if "environmental rights" in the plural sense enter our legal system one day, I am afraid that "enjoying a stable climate" will not be able to become a sub-item. In this sense, not only will the "right shift" that is hotly discussed in the international environmental law circle not appear in our country, but it will also be difficult to establish a lawsuit based on climate change infringement.
Secondly, the development path also means that climate change policies will be released in the form of macro-control policies that are not legally binding, such as plans, roadmaps, and action plans. It only needs to take an overview of my country's climate change policies to see that although administrative agencies and people's congresses at all levels have the right to formulate various legally binding norms in terms of climate governance, there are very few truly binding norms , only Shanxi and Ningxia have enacted local regulations. If the absence of local legislation is justifiable, the absence of administrative norms can explain the problem even more. Article 65 of the "Legislation Law" stipulates that the State Council may formulate administrative regulations on the matters listed in Article 89 of the "Constitution". Therefore, the State Council can completely regulate the response to climate change through administrative regulations. In contrast, various policies without regulatory force abound, from the "National Climate Change Outline", "2014-2015 Action Plan for Energy Conservation, Emission Reduction and Low-Carbon Development", "National Plan for Addressing Climate Change (2014-2020)" , until the various temperature control and energy-saving work plans supporting the "Twelfth Five-Year Plan" and the "Thirteenth Five-Year Plan". As long as the development path continues, this phenomenon of "governance through planning" will continue to exist, and an important challenge in my country's climate change litigation will also be how to apply these climate policies.
(3) Judicial Applicability of Climate Policy
In the face of climate change, my country's judiciary will continue to function as a policy-implementing judiciary, but the scope will be wider, the goals will be clearer, and the means will be more diverse. Under the context of developmentalism in which my country's climate governance has been formed and will continue for a long time, one of the issues that the judiciary must solve is the application of macroeconomic plans in different cases. First of all, it needs to be clear that the existing climate change policy is not legally binding, that is, it cannot be used as a basis for judges to make judgments. Regarding this point, you only need to refer to the "Provisions of the Supreme People's Court on Citing Laws, Regulations and Other Normative Legal Documents in Judgment Documents" to understand at a glance. According to this provision, in addition to laws, legal interpretations or judicial interpretations, civil trials can only invoke administrative regulations, local regulations, autonomous regulations and separate regulations, and administrative judgment documents can also refer to administrative regulations issued by the State Council or departments authorized by the State Council. Interpretation or administrative regulations. Existing climate change policies are all formulated by administrative agencies, and in terms of their form, none of them belong to the above-mentioned normative documents that can be cited as the basis for judgment. But denying climate policies a legally binding force doesn't mean they can't play a role in adjudication. In fact, non-binding normative documents that are considered legal and valid by the court can be used as the basis for judgment. So, the real question is how to use climate policy in adjudication. The author has already pointed out the role of climate policy in civil adjudication as a supplementary material for contract interpretation. The following will only analyze the judicial application prospects of climate policy based on international experience and litigation practice in other fields.
Judging from international experience, climate policy can be used as a material to determine the interpretation of specific rules and concepts in legislation. In fact, the current successful climate change lawsuits are based on updated concepts and rule interpretations. The judge in "Urgenda" updated the interpretation of "duty of care" in civil law, and the administrative judge in "Litigation of the Century" updated the interpretation of "ecological damage". In these cases, non-legally binding norms such as the Paris Agreement provided the basis for the judge's reasoning. In our country, the "Civil Code" and other laws also contain a large number of uncertain concepts, which can be explained by citing policies, so that policy goals can be implemented in the process of civil and commercial trials. In the most general sense, the 11 "public interests" of the Civil Code can be supplemented by climate policy in specific judgments. More specifically, "resource conservation" in Article 9 of the Civil Code, "wasting resources" in Article 509, "resource conservation" and "protection of the ecological environment" in Article 619 can all be cited by reference to climate policies to gain concrete meaning in individual cases. Various state ownership clauses and provisions on neighboring relations in the property rights section of the Civil Code can also become a path for climate policy to play a role. In addition, from the Judicial White Paper on Environmental Resources issued by the Supreme Court, it can be seen that its judicial policies are in debt disputes involving new energy, environmental protection industries, and strategic emerging industries, as well as oil and gas resource development, clean energy alternative disputes, and green credit disputes. In all fields, the implementation of the "double carbon" goal needs to be considered. In the foreseeable future, my country's judiciary may need to frequently update legal concepts and rules based on climate policy.
In addition, in the development of procuratorial public interest litigation practice in our country, it is often seen that procuratorial organs use non-binding environmental policies as the basis for determining whether administrative organs are performing their duties in accordance with the law. The various energy-related laws mentioned by the author in this article have a large number of authorization clauses, which only stipulate the powers and powers of a certain administrative agency in its management field, but do not stipulate the specific way of performing duties, let alone stipulate when there is a defect in the performance of duties. legal responsibility. Such "incomplete laws" abound in environmental law texts. Faced with this imperfection, procuratorial organs often turn to various policy documents when supervising the government's performance of duties. For example, in the Cihu case, which was selected as a typical case by the Supreme People’s Procuratorate, the People’s Procuratorate of Xisaishan District, Huangshi City, Hubei Province, according to the Huangshi Municipal Government’s “Notice on Adjusting the Scope of Relatively Centralized Administrative Punishment Powers” and “Huangshi City’s Control and Investigation of Illegal Buildings” According to the Factual Measures (Implementation), the Urban Management Bureau of Xialu District, Huangshi City failed to fulfill its duty of investigating and punishing illegal buildings. Similar cases are not uncommon, and it can even be said that the method of "legal principles + local policies" to determine the statutory responsibilities of administrative departments has become a standard method of pre-litigation procedures. Although the author has emphasized in this article that the developmentalist approach of my country's climate policy makes climate change often belong to the field of macroeconomic policy or industrial policy, this does not mean that the procuratorate cannot use these policies in environmental public interest litigation.
In addition, various policies can also play a value-leading function in judgments, and administrative agencies can also cite various plans and roadmaps to explain the legitimacy of administrative actions. At present, these application scenarios have yet to be further explored, indicating that the judicial application of climate policy is still a field with great potential.
Discussing how China’s judiciary participates in climate governance does not need to dwell on the definition of “whether there are climate change lawsuits in China”. Regardless of whether scholars admit it or not, Chinese courts have already learned about national policies such as actively responding to climate change and further promoting low-carbon transformation, and are actively applying the national climate change policy to adjudicate cases. Most of these cases are various civil disputes, especially contract disputes. In these cases, the parties may not really have the subjective will to deal with climate change. However, it is in these inconspicuous daily private disputes that my country's judiciary has implemented the grand goal of global climate governance to the nerve endings of social life. In this sense, when my country’s judiciary updates existing interpretations of legal norms, it does not just respond to social changes, but also strives to promote social changes under the guidance of national policies.
The use of comparative law will help people realize the uniqueness of our country's practice on the one hand, and gain some inspiration from foreign experience on the other hand. The global trend in climate change litigation also reflects a clear shift from autonomous law to responsive law. From the well-known "Massachusetts v. Federal Environmental Protection Agency" and "Urgenda cases" to the "Century Litigation" and even the "Shell Case" that has not yet been finalized, judges from various countries have surpassed neutral referees in the face of strategic climate change litigation As a result, the role of climate changers has shifted to policy-determining actions in response to societal demands for more aggressive climate policies. The court provides equal and open communication opportunities for both sides of the defense, and the professionalism of judges also ensures that changes take place within the framework of the law and are confirmed in the form of law. As such, the judiciary plays an important role in shaping the climate rule of law. This high-risk judiciary puts higher demands on the judge's argumentation work. In terms of legal sources, judges from various countries have broken the boundaries between international law and domestic law, public law and private law, and tried to explain why the time for normative change is ripe through the expansion of multiple sources. Chinese courts can learn from this in the process of realizing the goal of national governance by adjusting social relations. After all, most of the policy documents that allow judges to identify governance goals are not legally binding, but they can be used as reasoning materials for judgments. Judges can use these policies to supplement the interpretation of contracts and laws, and procuratorial organs can also try to monitor the government's implementation of these policies in the pre-litigation process of procuratorial public interest litigation.