[author]Zhu Mingzhe
[content]
Cooperative Pragmaticism in China's Climate Change Litigation
Abstract: Climate change represents one of the most significant challenges in global governance today. In the absence of comprehensive domestic legislation, judicial bodies around the world have become key driving forces in institutional transformation through climate change litigation — and China’s courts are no exception. When adjudicating climate change cases, unlike the adversarial and rule-based approaches prevalent in Europe and the United States, Chinese courts tend to exhibit a cooperative pragmatic behavioral model. Chinese judges supplement the relatively vague legal norms with climate policies and assume the task of implementing climate governance objectives. On one hand, they cooperate with other public authorities; on the other, they coordinate the decisions of various actors in numerous civil cases. China’s model facilitates coordination among different branches of public authority and exerts greater influence on private decision-making. However, this approach also presents shortcomings in practice, such as insufficiently precise legal interpretation and a lack of scientific validation regarding the practical effects of judicial decisions. From the dual perspectives of the rule of law and climate governance, Chinese courts should explore interpretative methods that effectively integrate legal principles, legal rules, and policy considerations, while also playing a more proactive role in the formation of scientific reasoning.
Keywords: climate change litigation; cooperative pragmatism; adversarial legal formalism; climate policy
1.Introduction
The phenomenon of advancing climate governance through litigation has become widespread across the world, posing new challenges for the judicial community in recent years. Since human-induced climate change is itself the cumulative result of complex, long-term, and globally interconnected activities, judicial participation in climate governance must also confront intricate issues such as territorial jurisdiction, standing to sue, causation, and even the absence of clear legal or policy frameworks. Consequently, climate change litigation has emerged as a focal topic in legal scholarship. China’s Supreme People’s Court has explicitly expressed its intention to use judicial means to support the country’s energy transition. In China’s Environmental and Resource Adjudication (2019), the Court clearly identified supporting adaptation measures to climate change as a key focus for the next phase of judicial work. In early 2023, Article 1 of the Opinions of the Supreme People’s Court on Fully and Accurately Implementing the New Development Philosophy and Providing Judicial Services for the Steady Advancement toward Carbon Peaking and Carbon Neutrality (hereinafter “the Opinions”) stated that courts at all levels should “provide judicial services to ensure the effective implementation of decision-making and deployment for achieving carbon peaking and carbon neutrality, and promote a Chinese-style modernization characterized by harmony between humanity and nature.” Evidently, climate change litigation will become an integral component of China’s ecological judiciary. Against this backdrop, exploring the model through which China’s judiciary engages in climate governance represents a meaningful attempt to ground legal development in China’s own rule-of-law realities, address indigenous legal challenges, and foster independent innovation in Chinese jurisprudence.
At present, many studies have explored the establishment and improvement of China’s climate change litigation mechanisms. However, theoretical research specifically analyzing the unique model of China’s climate change litigation remains insufficient. This article seeks to conceptualize the model that has emerged from past judicial practice and to explore its potential future trajectories. Analyzing China’s approach to climate change litigation not only deepens our understanding of domestic judicial practice but also offers intellectual insight—Chinese wisdom—to global academic discourse.
In contrast, climate change litigation in Europe and the United States generally manifests a pattern of “adversarial legalism.” This model has two main characteristics: first, all conflicts of interest must be translated into legal arguments articulated in technical legal language and resolved through judicial procedures; second, the control over evidentiary claims and legal arguments lies with the parties and their lawyers, rather than with judges or government officials. The adversarial legalism model in the West is rooted in existing mechanisms of public participation, particularly within judicial systems, allowing various interest groups to advance their arguments based on established legal rights. Through confrontation, these groups aim to achieve climate governance objectives. Before designing top-level climate laws and policies, governments in these jurisdictions primarily serve as arbiters among conflicting interests, providing an open platform for competing claims and reform demands.
By contrast, China’s climate change litigation exhibits a strong orientation toward policy implementation. Dispute resolution becomes an opportunity for public authorities to achieve comprehensive governance through the coordinated actions of multiple stakeholders. China’s model is “cooperative” because it emphasizes coordination and collaboration—rather than confrontation—among different public institutions and between courts and society. It is “pragmatic” because the judiciary’s principal function lies in realizing the practical effects and objectives of policy.
This paper focuses on the practice of climate change litigation in China and seeks to theorize the cooperative pragmatic model, which constitutes the article’s main contribution to existing scholarship. The following sections will summarize the defining features of this Chinese model in three dimensions—its goal orientation, the role of judges, and the application of climate policy—and will then analyze the challenges faced by cooperative pragmatism in practice and possible responses. The most critical challenge, given cooperative pragmatism’s pursuit of governance outcomes, lies in the judiciary’s limited capacity to concretely assess how different judgments may affect industrial upgrading or energy conservation and emissions reduction. Moreover, the Chinese model is often marked by insufficiently rigorous legal reasoning and overly simplistic scientific justification. To achieve better governance outcomes and uphold the requirement of adjudicating according to law, the future of China’s climate change litigation must integrate legal principles and policy considerations in judicial interpretation, while empowering judges to take a leading role in the use of scientific evidence and the formation of scientific reasoning.
2.The Main Characteristics of Cooperative Pragmatism in Climate Change Litigation in China
2.1 Purpose-Oriented Nature of Litigation
Several years ago, many scholars still believed that there was no such thing as climate change litigation in China. In fact, whether climate change litigation exists in a country is largely a matter of definition. Different definitions reflect the differing concerns of various legal communities toward the same phenomenon. Early studies focused on the language used by litigants and judges, defining climate change litigation as those cases in which “legal or factual issues directly and explicitly concerning the causes and impacts of climate change” were raised in the claims or judgments. The current mainstream view, however, argues that the intentions and perceptions of the participants matter more than the discourse they employ, emphasizing that climate change litigation should be categorized into different levels — including cases in which climate change is a core or ancillary claim, cases filed out of the need for climate governance but without directly addressing the issue, and cases that have “impacts on climate change mitigation or adaptation.”
However, this “subjective” approach, which is based on judicial practices in developed countries, may be far removed from the reality of developing nations. Courts in developing countries often handle a large number of cases where the litigants have no explicit awareness of climate change, yet the cases themselves significantly contribute to climate governance. Ignoring these cases would amount to an arbitrary denial of the contribution made by courts in developing countries to addressing a global issue like climate change. Consequently, a perspective emphasizing the actual functions of individual cases in climate governance has emerged and, in turn, has informed the study of climate change litigation in Europe and the United States. This perspective argues that numerous low-profile private law cases may influence climate change just as much as high-profile landmark cases (such as Urgenda), and therefore should also be included in the scope of legal research on climate change litigation. We may call this perspective the “objective” or “functional” approach.
When studying climate change litigation in China, it is more reasonable to adopt a definition emphasizing objective function. Compared with cases where the state and large enterprises are defendants, Chinese courts tend to promote national climate governance goals through civil litigation—mainly contractual disputes—or through the synergistic governance of air pollutants and greenhouse gases. In such cases, plaintiffs seldom directly raise policy objectives related to climate governance. Cases in which plaintiffs explicitly rely on climate change considerations as their main legal argument are extremely rare in China; thus far, only two cases concerning the curtailment of wind and solar power in Gansu and Ningxia are known. Following the introduction of the “dual carbon” goals, courts have begun to proactively invoke climate policy when addressing high-energy-consuming activities, reinforcing judicial reasoning and supplementing legal and contractual interpretation. By contrast, in many more cases, plaintiffs—recognizing that industrial production often entails both high pollution and high greenhouse gas emissions—have filed lawsuits against industrial enterprises for air pollution as a means of achieving emissions reduction goals. This litigation strategy also aligns with Article 2(2) of the Air Pollution Prevention and Control Law, which stipulates the synergistic effect of air pollution control. In hearing such cases, courts may rely directly on laws and regulations concerning environmental pollution control, but the ultimate consequence of the judgment will be the reduction of greenhouse gas emissions.
Moreover, the Supreme People’s Court (SPC) also adopts a functional rather than intentional criterion when counting climate change cases. It considers cases concerning energy conservation, emissions reduction, carbon sink trading, and even contractual disputes involving low-carbon technology enterprises as part of the judicial response to climate change. At the beginning of 2023, the SPC stated: “Since China signed the Paris Agreement, people’s courts at all levels nationwide have concluded 1.12 million first-instance cases related to carbon.” These astonishingly high figures include cases concerning social green transformation, industrial structure adjustment, energy structure adjustment, carbon market trading, and other carbon-related issues. This indicates that, according to the SPC’s definition, any case that objectively affects the achievement of the dual-carbon targets qualifies as a “carbon-related case.” Some of these cases might be recognized as “core cases” under the subjective definition if judges invoke climate policy, but in reality, judges rarely do so. At present, only a handful of these 1.12 million cases would fit the subjective definition.
Once we recognize that the objective approach is more suitable for examining climate change litigation in the Chinese context, we also note that the Chinese model places greater emphasis on objective outcomes. In fact, major climate change litigation databases still adopt the subjective definition when compiling statistics. The London School of Economics’ 2023 Global Climate Change Litigation Review announced with fanfare that climate change litigation had emerged in China, yet the cases cited were limited to the wind and solar curtailment cases and a Bitcoin-related case. Studies of climate change litigation from the subjective perspective tend to focus on litigation strategies and legal bases. Consequently, Western scholarship is primarily concerned with the various pathways of climate litigation, methods of legal interpretation, and the boundaries of judicial lawmaking. In contrast, Chinese judicial practice is characterized by strong purpose orientation, emphasizing the realization of practical outcomes rather than the integrity of the legal system. Litigation, as an instrument, serves macro-policy objectives such as “promoting carbon peaking and carbon neutrality in a proactive and prudent manner, coordinating industrial restructuring, pollution and carbon reduction, ecological protection, and climate change response.” This goal-oriented view, which prioritizes the governance function of litigation, sets Chinese climate change litigation apart from the adversarial models of separation and checks and balances emphasized in Western countries.
2.2 The Coordinating Function of Courts
Under such purpose orientation, the importance of resolving specific issues through judicial means to achieve energy-saving and emission-reduction effects outweighs that of merely settling disputes. The function of courts in climate governance is inherently auxiliary and cannot replace the leading role of administrative agencies. Article 26 of the Constitution—which provides for the state’s responsibility for environmental protection—and Article 89(6), which empowers the State Council to implement ecological civilization, together establish the government as the central actor in climate change governance. However, the government’s dominant role does not mean that other actors—such as procuratorates, courts, public and private enterprises, individual citizens, and social organizations—are confined to implementing and assisting roles. In fulfilling the purpose-oriented nature of litigation, courts play a role in penetrating social governance and coordinating the actions of various stakeholders.
In China, climate change litigation primarily arises between different state organs or between private entities; there have been no cases where local governments sued private enterprises or where civil society organizations sued public institutions. This highlights the cooperative nature of China’s climate change litigation model: while it does not exclude adversarial proceedings between parties, it emphasizes coordination among public institutions—judicial, prosecutorial, and administrative—as well as the collective intervention of state organs in the economy. Indeed, because China’s state-led model of climate governance presupposes that all actors work together under the guidance of supreme political authority to achieve localized solutions to global climate challenges, disputes requiring judicial resolution are exceptions rather than the norm. Yet since different actors inevitably make decisions based on their own short- and long-term interests, these may not always align with “overall strategic layouts” or the “domestic and international dual contexts,” meaning that disputes can never be permanently avoided. Courts therefore provide a venue for resolving conflicts that arise in the implementation of comprehensive climate response schemes. The SPC’s white papers on climate change cases emphasize that the judiciary “pays attention to employing a variety of judicial measures to promote the implementation of both mitigation and adaptation responses, and to advance the establishment of a national climate change governance system.” In other words, the most important function of the judiciary is no longer to resolve disputes in individual cases; rather, it has become an integral component of the national climate governance system. Within China’s state-led, network-based structure of comprehensive social governance, judges coordinate the decisions and actions of diverse social actors, thereby facilitating social cooperation.
Furthermore, cooperation exists not only among government agencies but also in the judiciary’s intervention in market choices and private decisions. The subsequent developments in the “Changdao Wind Power Case,” which ended in settlement, further revealed the judge’s role as a social coordinator. In that case, an environmental organization sued a wind farm for disrupting migratory bird routes. Seizing this opportunity, the Yantai Intermediate People’s Court actively communicated with other wind power companies, ultimately leading to the dismantling of over seventy wind turbines on Changdao Island. The practical outcome of judicial intervention far exceeded the scope of the claims raised in the case. This demonstrates that while Chinese judges value dispute resolution in individual cases, their foremost task is to coordinate actions across society to achieve optimal ecological outcomes. The role of judges thus extends beyond neutral arbiters of specific disputes—they have become vital coordinators in social life.
Unlike legalist judges who focus solely on determining the rights and obligations of the two parties, Chinese courts also take into account enterprises’ internal management and operational conditions in order to achieve tangible environmental results. Article 12 of the Opinions explicitly requires: “In hearing financial loan contract disputes involving enterprises engaged in clean energy, energy conservation and environmental protection, green transportation, green buildings, and carbon reduction technologies that have good development prospects but are temporarily facing operational or financial difficulties, courts shall fully consider the policy-based financial instruments announced by the People’s Bank of China—such as carbon-emission reduction support tools, green re-lending facilities, and carbon-reduction project pledge loans—to encourage financial institutions to provide long-term, stable financing support for enterprises’ green and low-carbon transition and reduce financing costs.” In Guiding Case No. 131 issued by the SPC, the court rejected the plaintiff’s request for the defendant to install additional air pollution control facilities—not only because such a request fell outside the legally prescribed forms of liability, but also because the defendant had already ceased using the original factory, rendering the measure meaningless. In the “Changdao Wind Power Case,” the judge reasoned that immediate dismantling of the turbines would impose excessive financial burdens on the company, which would in turn hinder its ability to restore forest vegetation. The court therefore ordered the suspension of operations and a gradual dismantling of the equipment.
Judicial proceedings, as venues for expressing and resolving conflicts arising from cooperative governance, also provide channels for enterprises, social organizations, and individuals to participate in climate governance. The wind and solar curtailment cases, the wind power case, and public interest lawsuits filed on the basis of air pollution were all initiated by environmental NGOs. In civil cases, litigants may not necessarily be concerned with emissions reduction, yet the ecological and environmental provisions in the Civil Code and the various non-binding emission reduction policies provide them with argumentative tools to link private interests with public interests—thus giving judges the opportunity to intervene in private arrangements. In the realm of climate change litigation, these civil cases vastly outnumber public interest lawsuits. In this sense, although individuals and small- and medium-sized enterprises occupy a lower position in the power structure of climate governance, they are by no means passive subjects of regulation. They have found and utilized opportunities to advance their own interests within the political determination and governance networks for global sustainable development. Their subjective initiative objectively contributes to the implementation of various climate change policies.
2.3 The Role of Climate Policy in Legal Interpretation
However, courts can only perform their coordinating function on the premise of adjudicating according to law. In terms of normative supply, the administrative dominance of China’s climate governance is manifested in the absence of legal norms but the abundance of policies. Therefore, climate policy is especially important for enabling Chinese courts to exercise their coordinating function. China has not yet enacted a specialized climate change law, and the existing laws related to climate governance are filled with incomplete provisions that stipulate patterns of behavior without specifying corresponding legal consequences. From the Air Pollution Prevention and Control Law to the Energy Conservation Law, the Renewable Energy Law, and the Cleaner Production Promotion Law, these laws grant local governments broad administrative authority in energy conservation and emission reduction but scarcely define the legal consequences of inaction. For instance, Article 18, Paragraph 3 of the Renewable Energy Law obliges governments at or above the county level to provide financial support, yet it does not specify the consequences of failing to fulfill this obligation. Of course, incomplete provisions do not necessarily constitute an obstacle to judicial involvement in climate governance. Judges can, through legal interpretation, determine the rights, obligations, and responsibilities of both parties in individual cases. However, citizens find it difficult to hold the government accountable under Article 12 of the Administrative Litigation Law for failing to formulate policies or provide financial support. Moreover, Articles 14 and 16(2)–(3) of the Renewable Energy Law, which impose obligations on electricity, gas, and heat network operators and petroleum sales enterprises, provide for compensation liability only when their failure causes economic losses to producers. Enterprises that have a statutory duty to purchase renewable electricity may even invoke the absence of corresponding local policies as a defense. As a result, these provisions are rarely applied in practice. Apart from local regulations on air pollution prevention enacted by provincial people’s congresses, there are almost no laws or regulations in China’s climate governance field that can directly serve as a basis for judicial decisions.
At the same time, administrative agencies have formulated a large number of climate change response policies under the names of “plans” and “programs.” At the national level, in addition to the “13th Five-Year” and “14th Five-Year” Plans that include energy conservation and emission reduction targets, the State Council has successively promulgated the National Climate Change Program, the 12th Five-Year Plan for Greenhouse Gas Emission Control, the 2014–2015 Energy Conservation, Emission Reduction, and Low-Carbon Development Action Plan, and the National Climate Change Plan (2014–2020), among others. At the local level, Shanxi and Ningxia have respectively enacted “Measures for Addressing Climate Change,” and other provinces and municipalities have issued corresponding policies. Considering the shared sources of greenhouse gas emissions and conventional pollutants, this list can also include policies such as the Action Plan for Air Pollution Prevention and Control. Collectively, these plans and programs form the core institutional framework for China’s climate response. However, their hierarchical position within the legal system is low—they function mainly through internal bureaucratic mechanisms such as performance evaluations, rarely serve as bases for administrative penalties, and cannot compel enterprises or individuals to proactively comply.
Therefore, in climate change litigation, Chinese judges need to employ climate policies to supplement legal interpretation. Public interest litigation in the field of air pollution offers a viable pathway for this practice. According to Article 2(2) of the Air Pollution Prevention and Control Law, and given the shared origins of conventional pollutants and greenhouse gases, both civil public interest suits against enterprises for excessive emissions and administrative public interest suits against government agencies for dereliction of environmental governance duties objectively contribute to emission reduction. In administrative public interest litigation, courts can effectively implement climate policies, granting substantive governance effect to otherwise nonbinding policies. Article 25(4) of the Administrative Litigation Law empowers procuratorates to issue procuratorial recommendations to administrative agencies on ecological and resource protection matters, urging them to “perform their duties according to law.” In practice, when assessing whether administrative agencies have fulfilled their legal obligations, procuratorates and courts often refer not only to legislative norms but also to lower-level normative documents. For example, the Taobei District Procuratorate in Baicheng held that the local Environmental Protection Bureau failed to demolish boilers that violated the Jilin Province Air Pollution Prevention and Control Regulations, thus neglecting its duty under Article 10(1) of the Environmental Protection Law; the court upheld this view. Higher-level laws impose administrative responsibilities, while local ordinances or nonbinding contingency plans provide practical standards for fulfilling those duties. Although lower-level norms do not directly alter the rights and obligations of administrative counterparts, they can serve as bases for courts and procuratorates to supervise administrative performance.
In recent years, new developments have emerged in China’s climate change litigation, featuring direct claims for energy conservation and emission reduction. In the “Ningxia Wind and Solar Curtailment Case,” the plaintiff argued that the State Grid Ningxia Power Company failed to fully purchase all wind and photovoltaic power within its coverage area, thereby violating Articles 2 and 14 of the Renewable Energy Law. Had the company fulfilled its statutory obligations, clean energy could have replaced more thermal power, reducing air pollutants. The defendant’s nonperformance thus resulted in continued greenhouse gas emissions and ecological harm. As noted earlier, under the Renewable Energy Law, compensation liability applies only to civil lawsuits filed by renewable energy enterprises for economic losses caused by incomplete purchases. In the absence of precedents or judicial interpretations recognizing greenhouse gases as “pollutants,” the plaintiff sought to activate the Renewable Energy Law through public interest litigation by emphasizing the shared sources of conventional pollutants and greenhouse gases. A similar case, the “Gansu Wind and Solar Curtailment Case,” was also filed by Friends of Nature.
Beyond supplementing legal interpretation, policy can also serve as reference material for judges interpreting contracts. For example, in numerous disputes over taxi operation or transport contracts involving high-emission vehicles (“yellow-label cars”), courts have referred to policies such as ministry-level circulars of the State Council to determine whether such vehicles were prohibited from commercial operation. In these cases, government policies became relevant under Article 117 of the Contract Law. In another electricity contract dispute, a court relied on Hainan provincial regulations to allow differential electricity pricing for energy-intensive and high-pollution enterprises, thereby encouraging technological upgrades and industrial innovation. Today, Article 9 of the Civil Code establishes environmental protection and resource conservation as fundamental civil law principles, while Article 509(3) requires parties to avoid wasting resources, polluting the environment, or damaging ecology when performing contracts. It can thus be expected that ecological considerations will become increasingly common in contract disputes. Moreover, given the Supreme People’s Court’s emphasis since 2018 on enhancing judicial reasoning and strengthening judicial support for ecological civilization, judges will inevitably invoke climate policies more actively in their reasoning. Consequently, nonbinding climate policies have, in practice, found application in the judiciary. Furthermore, in cases involving carbon emission trading, carbon sink trading contracts, or energy management service contracts for energy conservation, courts primarily rely on contract law to assess the parties’ rights and obligations, using “dual-carbon” policies to supplement reasoning without necessarily infringing on contractual freedom.
Contract law, as the institution that most strongly embodies private autonomy, is theoretically the area where public policy should remain most restrained. Yet judges’ willingness to treat policy as a key consideration in contractual disputes arises because they view themselves as coordinators of social life tasked with actively implementing policy objectives, rather than as neutral arbiters of specific disputes. In some cases, this self-perception has even led courts to deviate from strict legality. In a housing pre-sale contract dispute in Qinghai, a real estate company required buyers to pay an additional 3,200 yuan for solar energy facilities upon delivery. The buyer refused, citing the absence of such a clause in the contract. The developer argued that the installation of solar water heaters was mandated by the Qinghai Province Green Building Action Implementation Plan (2013). The court ruled in favor of the developer, treating the national policy as the normative basis for requiring payment not stipulated in the contract. In contrast, a Shandong court reached a more reasonable decision in a similar case, holding that under national policy, the energy information disclosure in the contract’s appendix was both a technical standard and part of the developer’s contractual obligation. The developer’s failure to install solar water heaters constituted incomplete performance, and the court ordered free installation for the plaintiff. In both cases, the judges referred to policy, but in entirely different ways: the Qinghai court treated policy as a direct legal basis, whereas the Shandong court used it merely as an interpretive aid.
In cases involving determinations of contractual validity, some judges have also invoked noncompliance with the “dual-carbon” goals or related administrative regulations and normative documents as grounds for invalidity. For instance, in a dispute over the validity of a Bitcoin mining service contract, the court cited the Notice on Rectifying Virtual Currency “Mining” Activities (NDRC Document No. 1283 [2021]) and the Provisional Regulations on Promoting Industrial Structure Adjustment (State Council Document No. 40 [2005]) as reasoning bases. Referring to the legislative spirit of Article 9 of the Civil Code, the court interpreted the high energy consumption of the contract as contrary to “public order and good morals,” thereby supporting the policy goal of promoting industrial restructuring.
Whether it is ministry-level circulars concerning “yellow-label cars,” the Qinghai Province Green Building Action Implementation Plan, or national and regional climate action plans, none of these are legally binding norms in China’s civil adjudication. While some judges mistakenly cite them as direct bases for rulings, most merely use them as reasoning aids to supplement the interpretation of legislative or contractual provisions. In this method of applying policy, the policy itself does not directly restrict individual rights; instead, the court uses it to supplement the interpretation of legal rules that already delimit those rights. Through existing legal techniques, Chinese courts have effectively resolved the practical difficulties posed by incomplete provisions in environmental adjudication—especially in climate change litigation—and enabled numerous nonbinding policies to function judicially as references for determining administrative duties or supplementing legal and contractual interpretation, thus achieving their intended regulatory effects.
3. Cooperative Pragmatism in Climate Change Litigation: Challenges and Responses
3.1 The Challenge of Promoting Industrial Upgrading through Judicial Decisions
China’s cooperative pragmatic model is capable of implementing climate change policies through the multitude of everyday cases handled by its courts. At the grassroots level, judicial institutions function like the capillaries of state power, transmitting the central and local governments’ decisions on industrial transformation and upgrading deep into the foundations of civil society. The strength of this cooperative pragmatic model lies in its ability to foster coordination among different branches of power—legislative, judicial, and administrative—while also mobilizing the initiative of private actors. However, it also exhibits significant shortcomings. Specifically, on the one hand, judicial intervention in private market arrangements in the name of public interest must be justified with strong reasoning, yet Chinese judges often lack sufficient argumentation in their legal interpretations. On the other hand, judges tend to handle scientific evidence carelessly, failing to anticipate the concrete consequences of their judgments, which diminishes the “pragmatic” effectiveness of their rulings.
According to the Supreme People’s Court’s Opinions, the judiciary must assist in achieving emission reduction goals through facilitating industrial upgrading. Ideally, the cooperative pragmatic model indeed serves this broader strategy: as coordinators, courts implement climate and industrial policies in judicial practice, promoting low-carbon transformation across society. However, ideals do not always translate into reality. While we may criticize adversarial legalism for its excessive focus on conceptual analysis and neglect of practical effects, we must also recognize that cooperative pragmatism can lead, in practice, to replacing explicit legal provisions with policy guidance and mistaking good intentions for genuine climate governance outcomes. This issue can be illustrated through two recent cases that have drawn significant academic attention: the Bitcoin mining case and the curtailment of wind and solar power case.
The first case to discuss is Qinju Co. v. Yuner Co., a contractual dispute selected by the Supreme People’s Court as a typical case in the “dual carbon” (carbon peak and neutrality) context. Shanghai Qinju Co., Beijing Yuner Co., and Kunying Co. signed a contract to jointly engage in Bitcoin “mining.” Under the agreement, Yuner Co. purchased professional computing servers from Kunying Co. through a conditional sales arrangement, and Kunying Co. authorized Qinju Co. to entrust Yuner Co. with the hosting of the “mining machines.” Should production incidents such as network failures or power outages occur, Yuner Co. was required to repair the issues promptly and compensate Qinju Co. for any resulting losses. During the contract’s performance, repeated power outages occurred during the “mining” process, causing Qinju Co. to suffer losses and claim 5.3 million yuan in compensation from Yuner Co. The judge held that Bitcoin “mining” violated the spirit of Article 9 of the Civil Code and contravened national energy conservation and emission reduction policies. Accordingly, pursuant to Article 153, Paragraph 2 of the Civil Code, the court declared the contract void for violating public order and good morals. In another similar case concerning virtual currency “mining,” the judge ruled that such activities were prohibited by national policy, contrary to the public interest, and thus invalid under Article 52, Paragraph 2 of the Contract Law.
Undoubtedly, Bitcoin “mining” consumes vast amounts of electricity and results in significant carbon emissions, wasting energy resources and undermining China’s goals of optimizing its industrial structure and promoting energy conservation and emission reduction. The judges’ findings in both cases—that the contracts were invalid for violating public order and the public interest—were legally justifiable. However, the reasoning in these judgments exhibited flaws. The courts relied on policy documents such as the Notice on Rectifying Virtual Currency “Mining” Activities issued by the National Development and Reform Commission (NDRC) and other agencies to deem “mining” illegal. Yet, under China’s civil adjudication system, only laws and administrative regulations can serve as legitimate bases for determining legality. The cited notices, which do not even qualify as ministerial regulations, cannot serve as grounds for determining legality, and whether they can be used to establish public interest remains questionable.
Beyond the issue of legal reasoning, simply prohibiting Bitcoin “mining” may not yield tangible results in energy conservation or emission reduction. In the two cases mentioned above, the computing servers were located in Zhaotong City, Yunnan Province, and Liangshan Prefecture, Sichuan Province—both regions rich in hydropower resources but constrained by topography, which makes grid integration difficult. Taking Liangshan as an example, its hydropower installed capacity currently stands at 36 million kilowatts, with a local government target of 43.318 million kilowatts by 2027. However, because most hydropower must be consumed locally, local hydropower plants began supplying electricity to “mining” operations in 2015 to remain profitable, turning Liangshan into a hub for virtual currency mining in China. In other words, even if all virtual currency activities were banned, the saved electricity might not be utilized by other industries. More broadly, most hydropower projects in Sichuan were built after 2000 as part of the “Western Development” strategy, driving infrastructure and industrialization. Yet, with the rise of ecological civilization policies, the environmental impact of small hydropower plants has drawn increasing government scrutiny. By the end of 2021, only 239 of Sichuan’s 5,131 small hydropower projects remained operational. Viewed against this energy structure background, it becomes evident that true energy conservation and emission reduction require a systemic renewable energy solution. While judicial decisions can have demonstrative and educational effects, their direct contribution to emission reduction remains uncertain.
When courts confront real issues of energy structure upgrading, they often prioritize industrial realities over emission reduction objectives. For instance, in the Ningxia Wind and Solar Curtailment Case, the court emphasized: “Wind and photovoltaic power generation are affected by weather conditions, characterized by randomness, intermittency, and volatility, with poor regularity. They cannot be adjusted flexibly to meet grid safety and market demands, and therefore require conventional power sources (thermal power) to bear additional balancing responsibilities to ensure national electricity supply security.” When facing monopolistic energy enterprises with actual capacity for grid upgrading, courts have shown an understanding of the practical realities of the energy structure and the operational needs of grid enterprises. Moreover, based on the NDRC’s policy notices concerning the acquisition of renewable energy power, the court held that such acquisitions were conditional on grid safety. It also relied on the response of the Ningxia Hui Autonomous Region Development and Reform Commission, which confirmed that the utilization hours for wind and solar power generation met regulatory targets. Accordingly, the court ruled that the State Grid Ningxia Electric Power Company did not exhibit inaction. In this instance, policy documents became the very basis for exempting the grid enterprise from responsibility.
Of course, judicial authorities cannot consider climate change factors in isolation when handling relevant cases. Nonetheless, considerations of industrial structure and the practical consequences of judgments should remain consistent and integrated. Therefore, China’s courts need to strengthen their capacity in both legal interpretation and scientific reasoning in order to enhance the governance quality of the existing cooperative pragmatic model. In fact, even in the study of European climate change litigation, scholars are beginning to move beyond defining legal rights and obligations and are instead focusing on whether specific rulings have substantively achieved positive climate governance outcomes. The use of empirical data and scientific modeling to evaluate the potential impacts of different laws, policies, and judicial decisions is becoming a new focus in legal academia. If Chinese judges can holistically consider the empirical effects of specific rulings, the practical experience thereby generated and accumulated could well become China’s unique contribution to the global judicial community.
3.2 The Challenge of Accurately Applying Different Legal Sources
Given the importance of policy in China’s climate change litigation, it is necessary to explore how climate policy can be judicially applied. In fact, how to incorporate policy into the interpretation of enacted law has long been a key issue in the study of climate change litigation. The “living law” encompasses not only statutes, judgments, customs, and legal doctrines as diversified legal sources, but also the habits of reasoning used by judges and scholars when conducting legal argumentation—that is, the methods of interpreting and applying the law. The rules of legal interpretation and application have both empirical and normative dimensions: on the one hand, they evolve from the accumulated experiences of past legal practice; on the other hand, they impose binding expectations on practitioners, providing guidance and constraints for future legal operations. As a result, a dynamic relationship exists between legal practice and methodological rules: existing rules are the product of past practices, which in turn determine the possible directions of future practice—and may themselves be modified by that future practice.
Because adversarial legalism emphasizes that judges must decide cases based on formally binding laws and cannot proactively pursue governance outcomes, it imposes higher demands on judges’ adherence to formal methodological rules. The use of specific legal techniques and doctrines has always been integral to Western studies of climate change litigation. In contrast, cooperative pragmatism’s focus on achieving substantive governance outcomes may, to some extent, lead to less rigorous judicial reasoning. This tendency is clearly reflected in the aforementioned Bitcoin cases: although judges declared the contracts void on grounds of violating public order and good morals or public interest, the judgments frequently used the word “illegal,” creating the impression that the contracts were invalid because they violated explicit legal prohibitions. In recent years, the Supreme People’s Court has sought to standardize judicial reasoning and enhance Chinese judges’ capacity for legal argumentation through a series of guiding opinions. Providing publicly stated reasons for legal decisions lies at the very core of the modern rule of law. While pursuing this universal goal, different judicial models may vary in their details of reasoning—for instance, in the threshold for going beyond literal interpretation, the relative importance of interpretive methods, or the limits of discussing policy considerations. Nonetheless, such differences do not prevent us from identifying a common structure of reasoning that allows judges to synthesize various legal sources in their judgments.
In climate change litigation, Western judges have developed a mature mode of legal reasoning that integrates legal principles, legal rules, and policy considerations. Specifically, this interpretive method focuses on concepts within legislative texts, considers public interest requirements when interpreting those concepts, and uses legal principles to justify the inclusion of policy considerations in legal reasoning. In Ronald Dworkin’s classic framework, legal principles protect individual rights, while policy considerations safeguard the public interest. Yet even within Dworkin’s framework, when facing climate change litigation, it is entirely reasonable for judges to justify policy considerations in legal interpretation through the ecological principle. First, legal principles themselves are generated and transformed over the course of legal practice. Once the importance of ecological protection is recognized by a legal community, it naturally becomes an independent legal principle, guiding judges toward the values protected by that legal system. Second, in many influential cases, judges are not merely choosing between “public interest” and “individual rights,” but rather balancing the rights of different subjects—for example, between one party’s right to operate its business as usual and another party’s right to maintain their quality of life in the face of climate change. Thus, when judges take policy factors into account, it is not that policy considerations override principle-based reasoning, but rather that they are integrated into principle-based reasoning itself.
Chinese judges can learn from this interpretive approach, applying principles, rules, and public policy both accurately and flexibly. In China’s context—where climate legislation remains sparse but climate policy is detailed—this approach can mitigate the inconvenience caused by the absence of concrete legal consequences in existing legal rules, while compensating for the fact that climate policy cannot itself serve as a direct norm of adjudication. It allows law and policy to complement and organically integrate within judicial practice. The ecological principle, which embodies the idea of risk prevention, has already entered China’s positive law through the ecological civilization clause in the Constitution and Article 9 of the Civil Code. In the law of obligations, because the Civil Code includes both a requirement to protect the environment and conserve resources during contract performance (Article 509, Paragraph 3) and an entire chapter on environmental liability, implementing this principle seems relatively straightforward. In property law, it is worth considering the application of existing provisions on the intrusion of intangible matter (Article 294 of the Civil Code) to regulate greenhouse gas emissions. Once climate change risk is included within the scope of ecological damage, it becomes possible to develop a tort law pathway for climate change litigation. Article 9 of the Civil Code may be interpreted as introducing the risk-prevention principle, requiring courts not to delay action on the grounds of insufficient scientific evidence or the absence of realized harm when potential ecological disasters could result in excessive damage. In fact, this reflects the position of the Supreme People’s Court in Guiding Case No. 128, where the judge held that the environmental damage provision in Article 66 of the Tort Liability Law should be interpreted systematically in light of Article 9 of the General Principles of Civil Law and Article 90 of the Property Law—an example of policy considerations supplementing legal interpretation under the guidance of principles.
At present, in China’s climate change–related judgments, the application of both various policies and Article 9 of the Civil Code remains overly arbitrary. While numerous non-binding climate or industrial policies may indeed be referenced in judicial reasoning, it must be made clear that policy considerations cannot exceed the limits of statutory texts or replace legal rules altogether. Moreover, courts must use legal terminology more precisely in their reasoning and should not readily deem certain behaviors “illegal” solely on the basis of low-level policy documents. The Supreme People’s Court has repeatedly emphasized the need to correctly understand Article 9 of the Civil Code. This principle is by no means the only one in civil law—it coexists with more traditional principles such as autonomy of will and good faith, together forming the value foundation of civil law. To correctly interpret and apply this principle means not only understanding its content and value orientation but also clarifying its relationship with other principles—particularly by demonstrating, in individual cases, how different principles are balanced and applied.
The virtual currency cases may serve as examples of how to improve the doctrinal application in judicial reasoning. First, the court should recognize that Article 9 of the Civil Code ought to serve as a factor in interpreting public order. Then, the court may emphasize that the high energy consumption of virtual currency “mining” has been categorized as an “eliminated industry” under the Industrial Structure Adjustment Catalog (2019 Edition)—a ministerial regulation—thus showing that it violates ecological public order. Furthermore, because this situation does not fall under the provisions governing contract validity in the contract section, the court may, pursuant to Article 153, Paragraph 2 of the Civil Code, determine that virtual currency “mining” contracts are invalid. Neither the various policies nor Article 9 of the Civil Code themselves possess direct normative force to invalidate a legal act; the ministerial notices concerning virtual currency may serve as reasoning references, but not as the legal basis for the judgment itself.
3.3 The Challenge of Prudently Adopting Scientific Reasoning
Judges in China often rather hastily treat policy targets set out in various climate change policies as scientific evidence, even in the absence of verification or adversarial examination. In one case concerning the construction of a power transmission and transformation grid and a dispute over mining rights, the defendant claimed that the grid project was one of twelve projects built to implement the National Air Pollution Prevention and Control Action Plan and that, once completed, it would reduce carbon dioxide emissions by 44 billion tons annually. The court accepted this scientific assertion without any questioning or verification—neither examining the calculation methods used to estimate emission reductions, nor exploring whether it was necessary for the grid to cross the disputed mining area, nor discussing the relationship between this assertion and the interpretation of specific legal concepts. Because courts habitually rely on scientific reasoning provided by the government, they often uncritically accept statements—typically from large state-owned carbon-emitting enterprises—about grid safety and energy structure, thereby missing valuable opportunities to press for ecological transformation. The “wind and solar curtailment” case discussed earlier is one such example. By contrast, one of the key aspects of climate change litigation practice in Europe and the United States from which China can learn is the deep involvement of judges in the formation of scientific reasoning. Judges in Europe and the United States assess the reliability of scientific reasoning in their own ways. Scientific reasoning is thus developed under judicial authority and serves the interpretation of legal concepts and causal relationships.
Scientific reasoning is not only crucial to climate change litigation but also of great importance to judicial practice in the era of ecological civilization. First, legal concepts related to the ecological environment often involve determining the consequences of damage, the degree of risk, and the temporal and spatial scope of harm; scientific knowledge is indispensable for interpreting these legal concepts. Particularly in the current context, where ecological justice emphasizes ecological restoration, scientific knowledge helps judges determine how restoration responsibilities should be borne. Second, scientific knowledge assists judges in assessing how different judgments may have different impacts on ecological protection, thereby helping them make informed choices among regulatory options. Scientific reasoning can serve as an important foundation when judges employ consequence-oriented judicial reasoning to explain the outcomes of their judgments. The Guiding Opinions of the Supreme People’s Court on Strengthening and Standardizing Legal Reasoning in Judicial Documents require judges to enhance the acceptability of their judgments through adequate reasoning. The participation of expert witnesses and the use of scientific evidence can help judges better fulfill this reasoning function. Third, in the specific context of China’s ecological justice—where circuit courts often conduct trials at the very sites where ecological damage has occurred—scientific knowledge can help judges convey the importance of ecological civilization and achieve better social outcomes.
Whether as procedural facilitators of neutral scientific assessment or as substantive evaluators of scientific reliability, judges’ participation in the formation of scientific reasoning is indispensable. First, the rule of law requires judges to adjudicate according to law, and scientific necessity cannot substitute for legal judgment. In judicial decisions, scientific reasoning can provide factual support: judges may use scientific evidence to determine causal relationships between facts, to consider new scientific developments when defining legal concepts, or even to incorporate scientific reasoning into their legal reasoning to explain how different allocations of rights and obligations may produce different environmental effects. However, even in climate change litigation that heavily depends on scientific evidence, the distributional outcomes of a case cannot be determined solely by meteorological science. The intrinsic requirement that judicial adjudication be “based on facts and guided by law” means that scientific evidence must be formed during the judicial process and presented in court as the basis for fact-finding. From this perspective, Chinese judges should maintain control over the formation and assessment of scientific evidence during trial, allowing both parties to submit their own scientific reasoning while neither favoring nor blindly following either side’s narrative.
From the standpoint of climate governance, judicial involvement in the formation of scientific evidence on climate change helps bridge the gap between abstract scientific knowledge and concrete lived experience. Climate change knowledge is often presented in highly abstract forms, relying on satellite data and complex computer modeling that detach it from everyday life. When the formation of climate policy knowledge is monopolized by experts, its feasibility can only be assessed in macro-level calculations. Ordinary members of the public, who cannot access or comprehend such macro data and complex formulas, are consequently excluded from participation in this process and deprived of opportunities to better understand climate change. At present, the Chinese public’s intuitive understanding of global issues remains strongly localized, often linking the risks of climate change to worsening air quality. This perception is closely related to China’s coal-dominated energy structure. The shared sources of conventional pollutants and greenhouse gases lead people to concretize the abstract notion of climate change into the tangible problem of air pollution. After all, scientific evidence and knowledge are not the only mediums through which people experience climate change. In addition to the neutral, apolitical, and universal imagination of climate change conveyed through complex models, there also exists a subjective, localized, and normative imagination generated by human actors who interact directly with nature. Especially in the Chinese context—where courts are expected to play a role in promoting industrial transformation—judges must not only have the ability to comprehend global scientific knowledge on climate change but also carefully consider the practical effects of their judgments. They must not mistake good intentions for reality.
In such circumstances, courts bear the responsibility of ascertaining facts and establishing causal relationships between the actions of different actors in individual cases. They must concretize abstract scientific knowledge within the context of each case. Litigation disaggregates macro-level ecological issues into specific effects on particular groups of people within definite temporal and spatial boundaries. The openness of judicial proceedings enables the discussions, information, and knowledge presented during the process to be communicated to the broader public.
In this sense, cases such as Kivalina v. ExxonMobil, Held v. State of Montana in the United States, and Lliuya v. RWE in Germany all transformed abstract scientific knowledge about climate change into concrete realities affecting specific communities directly threatened by climate change within defined time and space. In doing so, they effectively enhanced public understanding of climate change. Similarly, China’s ecological judicial practice has begun to show attempts to bridge the gap between macro-level knowledge and local experience. The widely discussed “Green Peacock Case” serves as a representative example. The judge in that case confirmed that the area to be submerged by the hydropower project was the habitat of green peacocks and home to numerous cycads. Allowing the project to proceed would have destroyed the region’s biodiversity. As a result, the abstract notions of “ecological diversity” and “habitat destruction” were concretized into specific species of plants and animals whose survival was directly threatened by a particular hydropower project. In the judicial governance of climate change, courts only need to incorporate and learn from the useful experiences of biodiversity litigation—allowing judges to engage in open and direct discussion of climate change issues during trials. Moreover, articulating the reasoning behind judgments has been a consistent requirement of judicial policy in recent years.
4. Conclusion
Driven by climate change litigation, courts in various countries and regions have created new rules, legal application techniques, and behavioral patterns. The judiciary has become more proactive and responsive. In many respects, judges are gradually deviating from the traditional principles of judicial neutrality and passivity. The task of social science is not to criticize practice according to fixed doctrines, but to capture, describe, understand, and interpret the constantly emerging new phenomena and patterns in political and social life. Under China’s cooperative pragmatism model, judges act as policy implementers within an active state, using individual case adjudication as a means to advance climate governance goals. In contrast, under the adversarial legalism model, judges remain primarily focused on resolving disputes within individual cases. The way judges incorporate policy considerations into legal reasoning differs across these models, resulting in varying degrees of judicial intervention in private decision-making. In the former model, climate-related public policy serves as an important starting point for judicial intervention in civil and commercial activities, whereas in the latter model, courts can only intervene in private autonomy once specific negative externalities have already occurred. This distinction stems less from differences in legal rules themselves than from divergent judicial habits of interpretation and application—or, more fundamentally, from differences in legal culture.
The advantage of China’s cooperative pragmatism model lies in its ability to give full play to coordination among public authorities and to actively, as a whole, adjust the market decisions and arrangements of private actors. At the same time, climate change litigation imposes higher demands on the judiciary. In terms of legal interpretation, since ecological principles have already been incorporated into positive law and a series of climate policies have been promulgated from the central to local levels, it is necessary to consider how to employ more refined legal methodologies in adjudication—using policy texts to enrich legal interpretation and define general legal concepts under the guidance of principles. In terms of scientific reasoning, judges should use evidence with greater caution and clarify, within judgments, the role of scientific reasoning in establishing causality, interpreting law, and explaining judicial outcomes, thereby meeting the dual demands of the rule of law and climate governance. If the Supreme People’s Court truly intends to enable the judiciary to play a greater role in climate governance, it may have to focus on strengthening judicial capacity in these two respects.
Originally published in the Journal of East China University of Political Science and Law, No. 1, 2024. Reprinted with permission from the WeChat public account “Journal of East China University of Political Science and Law.”