Chinese Environmental Tort

Environmental Tort under the Civil Code

Environmental tort liability in China is governed by Articles 1229 through 1235 of Book VII (Tort Liability) of the Civil Code of the People’s Republic of China, effective 1 January 2021. These provisions, carried forward from the Tort Liability Law of 2009 with modifications, establish a strict liability regime for environmental pollution and ecological damage.

Article 1229 provides the foundational rule: any person who pollutes the environment or damages the ecology and thereby causes harm to another person shall bear tort liability. The liability is strict — the plaintiff need not prove that the defendant acted negligently or intentionally, only that the defendant engaged in conduct capable of causing environmental harm and that the plaintiff suffered harm.

Pollution Liability

Pollution liability under the Civil Code covers: air pollution, water pollution, soil pollution, noise pollution, light pollution, radioactive pollution, electromagnetic radiation, and other forms of environmental pollution. The liability extends to the full range of environmental harms: harm to human health; harm to property (including damage to crops, livestock, and buildings); and harm to ecological systems (including damage to biodiversity, ecosystem services, and natural resources).

Article 1230 provides that the defendant bears the burden of proving the absence of causation between its conduct and the plaintiff’s harm — the burden of proof reversal. The plaintiff must prove only: (1) that the defendant engaged in conduct capable of causing environmental harm; (2) that the plaintiff suffered harm; and (3) that the defendant’s conduct could, in theory, cause the type of harm suffered. The presumption of causation shifts the burden to the defendant to disprove causation.

Polluter Pays

The polluter-pays principle (wuran zhe fuzhai) is codified in Article 1231, which provides that the polluter bears the costs of remediation and compensation. The principle applies to: remediation costs — the costs of cleaning up contaminated environmental media (soil, water, air); ecological restoration costs — the costs of restoring damaged ecosystems; and compensation — monetary compensation for harm to human health, property, and ecological systems.

Article 1232 provides for punitive damages where the polluter acted with “malice” or “gross negligence,” and the pollution caused serious harm to human health or to the ecology. The punitive damages may be up to twice the compensatory damages. The punitive damages provision was introduced by the Civil Code and represents a significant strengthening of environmental tort remedies.

Burden of Proof Reversal

The burden of proof reversal (juzheng zeren daozhi) in environmental tort is one of the most distinctive features of Chinese environmental law. The reversal operates in several dimensions:

Causation: As noted, the defendant bears the burden of proving the absence of causation. The plaintiff must establish only a prima facie case that the defendant’s conduct could have caused the harm. The defendant must demonstrate either that the conduct could not, on the basis of current scientific knowledge, cause the type of harm suffered, or that the harm was caused by a different source.

Fault: The strict liability standard means the plaintiff need not prove the defendant’s fault. The defendant may not avoid liability by demonstrating that it complied with applicable pollution standards or had taken all reasonable precautions.

Multiple defendants: Where multiple persons contributed to the pollution, they bear joint and several liability under Article 1231. Each defendant is liable for the entire harm, subject to contribution claims against co-defendants.

Causation Presumption

The causation presumption in Chinese environmental tort law is a rebuttable presumption. The Supreme People’s Court’s Interpretation on Environmental Tort Disputes (2015, revised 2020) provides that causation is presumed where the plaintiff establishes: (1) that the defendant discharged a pollutant or otherwise engaged in conduct that could cause environmental harm; (2) that the plaintiff suffered harm; and (3) that the pollutant or conduct is, based on scientific knowledge, capable of causing the type of harm suffered.

The defendant may rebut the presumption by proving: (1) that the defendant’s discharge could not reach the location of the plaintiff’s harm; (2) that the plaintiff’s harm could not be caused by the specific pollutant or conduct; (3) that the harm was caused by an intervening event (natural disaster, third-party conduct, the plaintiff’s own conduct); or (4) that the harm was caused by a pre-existing condition of the plaintiff or the environment.

The SPC’s interpretation also addresses the use of expert evidence in causation assessment. The court may appoint an expert to assess the probability of causation based on epidemiological evidence, toxicological studies, and environmental monitoring data. Where the expert concludes that causation is “highly probable” (kenengxing jiaoda), causation is presumed; where causation is merely “possible,” the court may require additional evidence.

Ecological Damage Compensation

Ecological damage compensation (shengtai sunhai peichang) under the Civil Code addresses harm to the environment itself — distinct from harm to persons or property. Article 1235 provides that the person who causes ecological damage must compensate for: (1) the cost of ecological restoration (restoring the damaged ecosystem to its baseline condition); (2) the loss of ecosystem services during the restoration period; (3) the cost of environmental monitoring and assessment; and (4) the cost of public notice and other expenses.

The ecological damage compensation action may be brought by: the procuratorate (under the environmental public interest litigation framework); qualified environmental social organisations (under the Civil Procedure Law Article 55); and state agencies (under the Measures for Ecological Damage Compensation).

Taizhou Water Pollution Cases

The Taizhou Water Pollution cases, decided by the Jiangsu Higher People’s Court in 2014 and affirmed by the Supreme People’s Court, are landmark environmental tort decisions. Six chemical companies in Taizhou had discharged wastewater containing toxic organic compounds into the Yangtze River, causing contamination of the water supply and harm to aquatic ecosystems.

The All-China Environment Federation brought a public interest environmental action against the six companies. The court found that the companies had caused environmental harm and ordered them to pay RMB 160 million (approximately USD 26 million) in ecological restoration costs. The judgment applied the burden of proof reversal, holding that the companies had failed to rebut the presumption of causation.

The Taizhou case established important precedents. The court recognised the standing of the ACEF to bring the action, despite the absence of a direct injury to ACEF. The court accepted the expert evidence on the causal link between the discharge and the environmental damage, applying the “highly probable” causation standard. The court ordered the establishment of an environmental restoration trust fund to manage the compensation funds.

Conclusion

Chinese environmental tort law under the Civil Code establishes a comprehensive strict liability regime with the polluter-pays principle at its centre. The burden of proof reversal and the causation presumption provide significant procedural advantages to plaintiffs in environmental cases. The ecological damage compensation framework recognises the intrinsic value of the environment. The Taizhou Water Pollution cases demonstrated the potential of environmental tort litigation to achieve substantial remediation outcomes.