On June 27th, the third meeting of the Standing Committee of the 14th National People's Congress conducted group deliberation on the second draft of the revised Marine Environmental Protection Law. Several members of the Standing Committee of the National People's Congress proposed to increase the relevant provisions for social organizations to file public interest lawsuits.
As early as 2015, China Biodiversity Conservation and Green Development Foundation (CBCGDF) sent a letter to the National People's Congress on the problem that a maritime court ruled that commonweal organizations were not qualified to file public interest lawsuits in marine environment. Since 2015, the CBCGDF has repeatedly raised the issue of adding social organizations as the subject of marine environmental public interest litigation in the Marine Environmental Protection Law in proposals and suggestion meetings. However, as of now, multiple social organizations have been dismissed from prosecution due to their inadequacy of the subject of marine environmental public interest litigation.
At the beginning of 2023, CBCGDF once again proposed suggestions on the draft of “the Marine Environmental Protection Law (Revised Draft)” for soliciting opinions, adding provisions for social organizations to participate in marine environmental public interest litigation, and suggested the establishment of a pre procedure, which is to add a paragraph as the third paragraph in Article 107 of the Revised Draft, that is, when social organizations discover illegal acts that harm the marine ecological environment, they should firstly reported to the department of marine environmental supervision and management; if the illegal issue is not resolved within 60 days and the marine environmental supervision and management department has not initiated public interest litigation procedures, social organizations can file public interest litigation. Adding the above provisions can maintain the current litigation order, and on the other hand, adding supplementary public interest litigation can prevent a vacuum in the relief of public interest damage, and protect China's marine ecological environment more effectively.
Now it is good to see that experts in the review group of the second revised draft of the Marine Environmental Protection Law have put forward suggestions to support social organizations in filing public interest lawsuits for marine environmental damage, and we sincerely hope that this proposal can be confirmed by legislation.
Editor: Richard
Checked by Sara
Contact: v10@cbcgdf.org; +8617319454776
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Attachment - Members of the Standing Committee of the National People's Congress Propose Amendment to the Marine Environmental Protection Law, Supporting Social Organizations to File Public Interest Lawsuits for Marine Environmental Damage
The report of the 20th National Congress of the Communist Party of China made the strategic deployment of "developing the marine economy, protecting the marine ecological environment, and speeding up strengthening China’s maritime construction", taking the strengthening China’s maritime construction as an organic component and an important task to promote Chinese path to modernization.
Marine environmental protection is an important foundation for strengthening China’s maritime construction. Since its implementation in 1982, the Marine Environmental Protection Law has played an important role in the protection of China's marine environment. With the acceleration of ecological civilization construction, amending the Marine Environmental Protection Law is of great significance for protecting and improving the marine environment, safeguarding national marine rights and interests, building a strong maritime country, and promoting ecological civilization construction.
On June 27th, the third meeting of the Standing Committee of the 14th National People's Congress conducted group deliberation on the second draft of the revised Marine Environmental Protection Law. Participants believe that the second revised draft further consolidates departmental and local responsibilities, improves measures for marine environmental supervision and management, strengthens measures for marine ecological protection and restoration, clarifies responsibilities for marine environmental pollution damage, with a substantial and scientific content of arrangements.
Participants proposed suggestions on changing the name of the Marine Environmental Protection Law, strengthening extraterritorial application regulations, and improving the public interest litigation system.
The law name should add the word "ecology"
During the group review, several members of the Standing Committee of the National People's Congress proposed revisions to the name of the Marine Environmental Protection Law.
Vice Chairman Hao Mingjin pointed out that since the 20th CPC National Congress, higher requirements have been put forward for the Harmony Between Man and Nature. Currently, the Ministry of Environmental Protection has been renamed as the Ministry of Ecology and Environment, and a "National Ecological Day" has been established. It is suggested that the law name can be changed to something like "Marine Ecology and Environment".
Jiang Yunzhong, a member of the Environmental and Resource Protection Committee of the National People's Congress, noted that Article 1 of the General Provisions of the Law not only mentions the protection of the marine environment, but also mentions the need to protect marine resources. There is also a special chapter in the law on ecological protection. So the name only involves environmental protection and cannot cover all protection content, it is recommended to change the name to "Marine Ecology and Environment Protection Law", or it can be directly changed to "Marine Protection Law", which will have a higher degree of compatibility with the content, referred to the Yangtze River Protection Law and the Yellow River Protection Law.
Extraterritorial application regulations should be further strengthened
The protection of the marine environment is the common responsibility of people all over the world, which is also to protect the common interests of all mankind, as an important aspect of promoting building a community with a shared future for mankind. Committee member Huang Ming suggested adding relevant expressions of "protecting the common interests of all mankind" or "promoting building a community with a shared future for mankind" to Article 1.
During the group review, several members of the Standing Committee of the National People's Congress believed that the Marine Environmental Protection Law is a law with extraterritorial nature and should further strengthen its relevant provisions for extraterritorial application.
Article 29 of the second revised draft stipulates that if the sea area out of the jurisdiction of the China causes or is likely to cause pollution and ecological damage in the sea area under the jurisdiction of the China, the relevant departments and institutions have the right to take necessary measures. Vice Chairman Wang Dongming believed that it is necessary to add this provision, but the current provisions are relatively principled and lack of operability. He suggested adding corresponding provisions to this article to further clarify the specific responsibilities, means and possible measures of relevant departments and institutions in extraterritorial application, so as to further improve the effectiveness and operability of extraterritorial application of laws, thus reflecting the strengthening of marine environmental protection according to law, and a clear position to promote the construction of a community with a shared future for mankind.
Article 2 of the second revised draft clearly stipulates that the relevant provisions of this Law shall apply to the pollution and ecological damage caused to the sea areas under the jurisdiction of the China from the sea areas outside the jurisdiction of the China. National People's Congress representative Li Shiliang noticed that there is no corresponding provision in the legal liability clause. He suggested adding corresponding content and providing legal basis to address situations where certain actions of other countries have caused or may cause losses in the sea areas under our jurisdiction.
Article 106 of the second revised draft stipulates that transporting and dumping waste from outside the China into the sea areas under the jurisdiction of the China is a violation of the provisions of this law, the maritime police authorities shall order the cessation of the illegal act, make corrections within a time limit, and impose a fine of not less than 500,000 yuan but not more than 5 million yuan according to the harm consequences caused or likely to be caused. Li Jihui, a representative of the National People's Congress, believes that such behavior like transporting and dumping waste poses great harm to the waters under national jurisdiction and may be used to dump toxic and harmful substances. The cost of punishing crimes in this clause is relatively low, and it is recommended to add the phrase "criminal responsibility shall be pursued in serious cases".
Public interest litigation for marine environmental protection should be strengthened
Article 110 of the second revised draft stipulates that for those who pollute the marine environment or damage the marine ecology, causing significant losses to the state, the department of marine environmental supervision and management in accordance with the provisions of this law shall, on behalf of the state, request compensation for damages from the responsible party. If the department specified in the preceding paragraph does not file a lawsuit, the People's Procuratorate may file a lawsuit to the People's Court.
Participants believe that this provision provides a legal basis for the People's Procuratorate to exercise its legal supervision function and carry out public interest litigation in the field of marine environmental protection.
"In practice, strengthening cooperation between relevant government functional sections and relevant departments such as the procuratorate will be more conducive to promoting the protection of the marine ecological environment.” Li Yuefeng, a member of the committee, gave an example that since the implementation of the procuratorial public interest litigation system in 2017, the procuratorial institution of a city in the eastern region have conscientiously fulfilled their responsibilities and completed 27 civil public interest litigation cases involving illegal fishing of aquatic products in the field of marine ecological environment resources, and a total of over 11.7 million yuan in ecological damage compensation was requested to the infringer. The successful handling of these cases is the result of collaborative cooperation between the procuratorial institutions and relevant government functional departments, forming a joint force for public welfare protection, and more effectively serving and ensuring the construction of marine ecological civilization. He suggested further refining and improving the relevant provisions of the litigation cooperation mechanism for marine ecological environment protection, improving the coordination and cooperation between legal and procuratorial institution and relevant government functional departments, and enhancing the joint force of law enforcement and judiciary.
Member Lv Shiming suggested to amend Paragraph 3, Article 110 of the revised draft to: "The People's Procuratorate may urge the departments specified in the preceding paragraph to file ecological and environmental damage compensation lawsuits in accordance with the law. If the departments specified in the preceding paragraph file lawsuits, the People's Procuratorate may support the lawsuits. If the departments specified in the preceding paragraph do not file lawsuits, the People's Procuratorate may file public interest lawsuits in accordance with the law." This statement is more in line with "the Reform Plan for the Compensation System for Ecological and Environmental Damage" issued by the General Office of the Communist Party of China Central Committee and General Office of the State Council of China, and the judicial interpretations issued by the Supreme People's Court and the Supreme People's Procuratorate.
Supplementing a supporting supervision and prosecution mechanism between "requesting compensation for damages" and "filing a lawsuit" is more conducive to implementing the Party Central Committee's deployment of reform of the procuratorial public interest litigation and ecological environment damage compensation system, improving the linkage and coordination mechanism, and enhancing law enforcement and judicial cooperation. The program design from supervising and supporting prosecution by procuratorial institutions to subrogation prosecution is also more in line with the rules of litigation and the needs of judicial practice.
Several members of the Standing Committee of the National People's Congress have also proposed adding relevant regulations for social organizations to file public interest lawsuits.
Hao Mingjin pointed out that Article 58 of the Environmental Protection Law established the system for social organizations to file environmental public interest litigation, which should also be applied to the field of marine environmental protection. It is suggested to increase the provision that social organizations specializing in environmental protection public interest activities can file public interest litigation on marine environmental damage. Relevant departments, especially the People's Procuratorate, should support public welfare organizations in filing public interest lawsuits for marine environmental damage.
Committee member Ouyang Changqiong suggested adding provisions for the state to support the public, industry associations, social organizations, etc. in filing public interest litigation, which can provide strong legal support. In the event of marine environmental problems, relevant regulatory authorities can take measures in accordance with the law, and the public can also protect their rights through public interest litigation.
(Reporter Zhao Chenxi from Legal Daily)
Executive Editor: Zhu Ling
Original Link: https://www.spp.gov.cn/zdgz/202307/t20230704_620564.shtml