Guiding Case No. 127

Lu Jinkui and 79 others v. Shanhaiguan Shipbuilding Industry Co., Ltd. Maritime Pollution Damage Liability Dispute Case

(Discussed and approved by the Adjudication Committee of the Supreme People's Court, issued on December 26, 2019)

Keyword   Civil/Maritime Pollution Damage Liability/Pollutant Emission Standards

Key points of judgment

According to the relevant provisions of the Marine Environmental Protection Law, etc., the "pollutants" in marine environmental pollution are not limited to the substances explicitly listed in national or local environmental standards. If a polluter discharges sewage containing iron and other substances that are not included in national or local environmental standards into seawater areas, causing damage to the aquaculture products of fishery producers, the polluter shall bear environmental tort liability.

Relevant legal provisions

1. Articles 65 and 66 of the Tort Liability Law of the People's Republic of China

2. Article 94, Item 1 of the "Marine Environmental Protection Law of the People's Republic of China" (2017 Amendment) (This case applies Article 95, Item 1 of the "Marine Environmental Protection Law of the People's Republic of China" amended in 2013)

Basic Case Information

On the morning of August 2, 2010, abnormal seawater appeared in the eastern sea area of Laolongtou, Shanhaiguan, Qinhuangdao. At 11:30 a.m. on the same day, the Qinhuangdao Environmental Protection Bureau received a report and arranged for environmental supervision and monitoring personnel, together with relevant personnel such as the deputy secretary and secretary of the Discipline Inspection Commission of Bohai Township, Shanhaiguan District, Qinhuangdao City, to arrive at the scene to inspect the coastal situation. According to the on-site inspection, the seawater was reddish-brown and turbid. Staff from the Qinhuangdao Environmental Protection Bureau also took samples of the seawater for monitoring and issued a "Monitoring Report" on August 3 to analyze the seawater quality. The analysis results showed that the seawater had a pH of 8.28, suspended solids of 24mg/L, petroleum of 0.082mg/L, chemical oxygen demand of 2.4mg/L, nitrite nitrogen of 0.032mg/L, ammonia nitrogen of 0.018mg/L, nitrate nitrogen of 0.223mg/L, inorganic nitrogen of 0.273mg/L, reactive phosphate of 0.006mg/L, and iron of 13.1mg/L.

The Maritime Judicial Appraisal Center of Dalian Maritime University (hereinafter referred to as the Judicial Appraisal Center) was entrusted by the court to conduct an appraisal of the pollution status of the sea area involved and the aquaculture losses caused by the pollution. The main contents of the "Appraisal Opinion" are: (1) Appraisal of marine pollution. 1. The appraiser adopted satellite remote sensing technology and selected two images from the NOAA satellite at 5:44 and 9:51 Beijing time on August 2, 2010. The 5:44 image showed that there was an abnormal area of polluted seawater near Shanhaiguan Shipbuilding Heavy Industry Co., Ltd. (hereinafter referred to as Shan Chuan Heavy Industry Company), with an area of about 5 square kilometers; the 9:51 image showed that there was an abnormal area of polluted seawater about 4 kilometers south of Shan Chuan Heavy Industry Company, with an area of about 10 square kilometers. 2. Analyze the source of pollution, and determine that the abnormal area of polluted seawater on the satellite image should be caused by large-scale enterprise sewage discharge or leakage by excluding red tides, large-scale marine oil spills and other pollution accidents. According to Shan Chuan Heavy Industry Company, the only large-scale enterprise near the sea near Shanhaiguan Laolongtou, shipbuilding and repairing will produce a large amount of sewage, and the iron content in the rust removal sewage of the dock is very high. Once leaked, it will seriously pollute the nearby sea area. It is speculated that the source of polluted seawater is Shan Chuan Heavy Industry Company, and the leakage time is between 00:00 and 04:00 Beijing time on August 2, 2010. 3. Analyze the polluted seawater in the aquaculture area, determine the geographical coordinates of the aquaculture area of Wang Lirong and other 21 people, and display the geographical coordinates of the aquaculture area of the above-mentioned parties and the geographical coordinates of the polluted water area on the electronic chart, and draw the conclusion that the polluted water area covers all the aquaculture areas. (2) Analysis of aquaculture losses. The appraiser evaluated the water quality environment and concluded that the content of suspended solids, iron and petroleum in the water quality of the sea area involved was high, which has far exceeded the "Fishery Water Quality Standard" and the "Seawater Quality Standard". The most serious pollution factor is iron, which is more harmful to fishery and aquaculture water areas. At the same time, it was determined that Lv Jinguo and others had aquaculture losses.

Shanchuan Heavy Industry Company expressed its opinions on the aquaculture loss portion of the 'Appraisal Opinion,' mainly arguing that the conclusion that the seawater contained excessive iron levels was based on no factual or evidentiary basis. 1. The only basis for the appraiser's evaluation of the water quality environment in the aquaculture area was the 'Monitoring Report' issued by the Qinhuangdao Environmental Protection Bureau, but this report did not meet the requirements of the 'Marine Monitoring Specification' in terms of format and content. The standard used for analyzing iron content was for surface water, groundwater, and industrial wastewater. The 'Monitoring Report' does not provide any proof of pollution; 2. The 'Fishery Water Quality Standard' and 'Seawater Quality Standard' used in the 'Appraisal Opinion' do not have any regulations or restrictions on iron content in seawater. Therefore, iron content is not an indicator for judging marine fishery water quality standards. Even if iron content is one of the indicators, there is no relevant standard for how much it must reach to constitute pollution damage.

It was also found that one of the appraisers of the 'Appraisal Opinion' submitted an 'Analysis Report' during the court's trial, the main content of which was: (1) Introducing the analysis method. (2) Analyzing the sewage pollution accident in the sea area involved. 1. Analysis and interpretation of satellite images of the Shanhaiguan Laolongtou sea area. 2. Analysis of the drift and diffusion of polluted seawater. 3. Analysis of pollution sources. Because the gray value of the abnormal area of polluted seawater on the satellite image is slightly lower than that of the surrounding seawater, the possibility of red tide is excluded; because there are no oil well platforms in the Shanhaiguan Laolongtou sea area, and no large ship collisions, stranding accidents occurred around August 2, the possibility of marine oil spills is excluded. Based on this, it is speculated that the polluted seawater area should be caused by the discharge or leakage of sewage from large enterprises. Shanchuan Heavy Industry Company is the only large enterprise near the coast of Shanhaiguan Laolongtou. Shipbuilding and repair will produce a large amount of sewage. The iron content in the rust removal sewage from the dock is high, and leakage to the outside will cause serious pollution to the nearby sea area. 4. Analysis of polluted seawater in the aquaculture area. Displaying the geographic coordinates of the aquaculture area and the geographic coordinates of the polluted water area together on the electronic chart, the conclusion is that the polluted water area covers the entire aquaculture area.

Lü Jinkui and 79 others sued the court, claiming that the large amount of red sewage discharged by Shanchuan Heavy Industry Company caused a large number of scallops to die, causing them significant economic losses, and requested the court to order Shanchuan Heavy Industry Company to compensate them.

Judgment Result

The Tianjin Maritime Court made a civil judgment on December 9, 2013, ((2011) Jin Hai Fa Shi Chu Zi No. 115): 1. The lawsuit request of the plaintiffs Lü Jinkui and 50 others is rejected; 2. The lawsuit request of the plaintiffs Lü Jinguo and 29 others is rejected. After the judgment was pronounced, Lü Jinkui and 79 others appealed. The Tianjin Higher People's Court made a civil judgment on November 11, 2014, ((2014) Jin Gao Min Si Zhong Zi No. 22): 1. The civil judgment ((2011) Jin Hai Fa Shi Chu Zi No. 115) made by the Tianjin Maritime Court is revoked; 2. Shanhaiguan Shipbuilding Heavy Industry Co., Ltd. shall compensate Wang Lirong and 21 others for aquaculture losses totaling 1,377,696 yuan within fifteen days from the date of service of this judgment; 3. The other litigation requests of Lü Jinkui and 79 others are rejected.

Reasons for the Judgment

The court's effective judgment held that Article 66 of the 'Tort Liability Law of the People's Republic of China' stipulates that in the event of a dispute due to environmental pollution, the polluter shall bear the burden of proof for circumstances where the law stipulates that they are not liable or their liability is mitigated, and that there is no causal relationship between their actions and the damage. Lü Jinkui and 79 others shall bear the burden of proof for the fact that Shanchuan Heavy Industry Company carried out pollution activities and that they suffered damage as a result, and submit preliminary evidence that there may be a causal relationship between the pollution activities and the damage; Shanchuan Heavy Industry Company shall bear the burden of proof for circumstances where the law stipulates that they are not liable or their liability is mitigated, and that there is no causal relationship between their actions and the damage.

Regarding whether Shanchuan Heavy Industry Company carried out pollution activities. Lü Jinkui and 79 others submitted the 'Appraisal Opinion,' 'Analysis Report,' 'Monitoring Report,' and a letter issued by the Qinhuangdao Environmental Protection Bureau to prove the occurrence of the pollution. Regarding the probative force of the above evidence on the pollution facts involved in the case, the original trial court entrusted the Judicial Appraisal Center to conduct an appraisal based on the application of Lü Jinkui and 79 others. The business scope of the Judicial Appraisal Center includes maritime judicial appraisal, and the three appraisers all have corresponding appraisal qualifications, and the qualifications of the appraisal unit and the appraisers are confirmed. Moreover, the 'Analysis Report' can corroborate the statements in the 'Inquiry Record' of Qinhuangdao Shanhaiguan District and the letter issued by the Qinhuangdao Environmental Protection Bureau. The above evidence can prove that pollution occurred in the Laolongtou sea area of Qinhuangdao Shanhaiguan on August 2, 2010. Article 95, Paragraph 1 of the 'Marine Environmental Protection Law of the People's Republic of China' stipulates: 'Marine environmental pollution damage refers to the direct or indirect introduction of substances or energy into the marine environment, resulting in harmful effects such as damage to marine biological resources, harm to human health, hindrance to fisheries and other legitimate activities at sea, damage to the quality of seawater use, and reduction of environmental quality.' The 'Appraisal Opinion' excludes the possibility of red tide based on the phenomenon that the gray value of the abnormal area of polluted seawater is slightly lower than that of the surrounding seawater; it excludes the possibility of marine oil spills through the fact that there are no oil well platforms in the Shanhaiguan Laolongtou sea area and that no large ship collisions or stranding occurred on August 2, 2010; furthermore, based on the monitoring results in the 'Monitoring Report' that the seawater was reddish-brown, turbid, and the iron content was 13.1mg/L, it was concluded that the pollution accident involved was caused by serious sewage discharge or leakage. At the same time, based on the fact that Shanchuan Heavy Industry Company is the only large enterprise near the coast of Shanhaiguan Laolongtou and that the company's main business is ship repair and construction, it is concluded that the pollution was caused by the company's leakage of rust removal sewage with high iron content during the repair and construction of large ships. Although Shanchuan Heavy Industry Company does not recognize the above conclusions of the 'Appraisal Opinion,' it failed to provide sufficient contrary evidence and reasons to refute it. Therefore, the probative force of the pollution source analysis part of the 'Appraisal Opinion' is confirmed, and it is determined that Shanchuan Heavy Industry Company carried out pollution activities by leaking sewage with high iron content into the seawater.

Regarding whether Lü Jinkui and 79 others suffered damage. The marine pollution appraisal part of the 'Appraisal Opinion' further determined that the pollution seawater area completely covered the aquaculture area by displaying the geographic coordinates of the aquaculture area and the geographic coordinates of the polluted seawater area together on the electronic chart based on determining the aquaculture area of Wang Lirong and 21 others. Based on this, it was determined that Wang Lirong and 21 others were engaged in aquaculture and that the aquaculture area was polluted.

Regarding the causal relationship between pollution behavior and damage. In addition to completing the aforementioned burden of proof, Wang Lirong and 20 others shall also submit preliminary evidence proving the possible causal relationship between the pollution behavior and the damage. The 'Appraisal Opinion' analyzes the water quality of the Laolongtou sea area in Shanhaiguan, and its evaluation of the water quality in this sea area based on the 'Monitoring Report' issued by the Qinhuangdao Environmental Protection Bureau is that the content of suspended matter, iron, and petroleum is high, and the most serious pollution factor is iron, which is harmful to fisheries and aquaculture waters. Up to this point, Wang Lirong and 20 others have completed the burden of proof for maritime pollution damage compensation disputes. Shanchuan Heavy Industry Company claims that it is a non-tortious actor and shall bear the burden of proof for circumstances where it is not liable or the liability is mitigated as stipulated by law, and that there is no causal relationship between the behavior and the damage. Shanchuan Heavy Industry Company claims that because the evaluation criteria used in the 'Appraisal Opinion' do not have regulations and restrictions on the iron content in seawater, iron is not a standard for evaluating seawater quality; and even if the iron content is one of the standards, there are no relevant indicators for how much it must reach to constitute pollution damage. In this regard, the People's Court believes that: First, the 'Marine Environmental Protection Law of the People's Republic of China' clearly stipulates that as long as the actor introduces substances or energy into the ocean and causes damage, it shall be regarded as pollution; Article 65 of the 'Tort Liability Law of the People's Republic of China' does not limit environmental pollution liability to discharge exceeding national or local standards. Therefore, regardless of whether national or local standards stipulate emission control requirements for a certain type of substance, or whether the discharge meets national or local standards, as long as it can be determined that the pollution behavior causes environmental damage, the actor shall bear the liability for compensation. Second, the current effective 'Fishery Water Quality Standard' and 'Seawater Water Quality Standard' for evaluating seawater quality in China have not been revised for a long time after their implementation, and the items listed therein are not sufficient to cover all substances that may cause pollution today. Accordingly, the 'Fishery Water Quality Standard' and 'Seawater Water Quality Standard' are not the only basis for judging whether a certain type of substance causes pollution damage. Third, the Qinhuangdao Environmental Protection Bureau also stated in the 'Review Opinion of Qinhuangdao Environmental Protection Bureau' that because the state has not clearly stipulated pollutant emission standards for the iron content in seawater, whether it affects marine aquaculture needs further demonstration by experts from relevant departments. In this case, the appraiser who issued the 'Appraisal Opinion' has professional knowledge of marine pollution appraisal, and through analyzing and judging relevant background materials, made an evaluation that the iron substance in the water quality of the sea area involved has a greater degree of harm to fisheries and aquaculture waters, which is scientific and should be used as the basis for determining that the sea area involved is polluted by iron substance.

(Effective judgment trial personnel: Geng Xiaoning, Tang Na, Li Shanchuan)

Guiding Case No. 128

Li Jin v. China Resources Land (Chongqing) Co., Ltd. Environmental Pollution Liability Dispute Case

(Discussed and approved by the Adjudication Committee of the Supreme People's Court, issued on December 26, 2019)

Keyword   Civil/Environmental Pollution Liability/Light Pollution/Damage Assessment/Tolerability

Key points of judgment

Because the harm of light pollution to the human body has the characteristics of potentiality, concealment, and individual differences, the people's court shall comprehensively determine light pollution damage based on national standards, local standards, industry standards, whether it interferes with others' normal life, work, and study, and whether it exceeds public tolerability. For public tolerability, it can be judged based on the reactions of surrounding residents, actual feelings on the scene, and expert opinions.

Relevant legal provisions

1. Articles 65 and 66 of the Tort Liability Law of the People's Republic of China

2. Article 42, Paragraph 1 of the 'Environmental Protection Law of the People's Republic of China'

Basic Case Information

The plaintiff Li Jin purchased a residential house located at ×-×-×, Building ×, × Community, Xiejiawan Zheng Street, Jiulongpo District, Chongqing City, and has lived there since 2005. The Vientiane City shopping center developed and constructed by the defendant China Resources Land (Chongqing) Co., Ltd. is separated from the plaintiff's residence by a two-way six-lane road, with a light rail line in the middle of the two-way six-lane road. There are no other obstructions between the Vientiane City shopping center and the plaintiff's residence. An LED display screen is installed on the outer wall of the Vientiane City shopping center facing the plaintiff's residence to play advertisements, etc. The LED display screen advertisement position has been put into operation since it was built in 2014. It plays promotional materials and video advertisements every day, etc. The strong light it generates directly shines into the plaintiff's residential room, which has an impact on the plaintiff's normal life.

In May 2014, the owners of the plaintiff's community complained to the government's public mailbox: Since May 3, the giant LED screen of Vientiane City in China Resources Twenty-Four City, Xiejiawan, has started working. The strong light from the giant LED screen directly shines into their room, causing serious light pollution, and the volume of the promotional film is huge, which affects their daily life. They hope that relevant departments will reduce the volume of Vientiane City and lower the brightness of the LED screen. In September 2014, residents of × Community, Huangyang Road, complained to the government's public mailbox: Vientiane City has a giant LED screen that plays information advertisements all night, producing too much light, which makes it impossible to sleep and rest normally at night. The light pollution from the Vientiane City screen at night seriously affects high-rise residents in surrounding communities. Please ask relevant departments to solve the problem, prohibit playing at night, or prohibit playing all night, and only allow playing before 8 pm, and lower the brightness. In February 2018, residents of the plaintiff's community complained to the government's public mailbox: The outdoor advertising screen of Vientiane City is the nightmare of the residents. The advertising screen plays video advertisements every day, the light is extremely strong and flashes frequently. The homes of the owners living opposite are like daytime at night, which seriously affects the rest of the elderly and children. They hope that relevant departments will rectify it as soon as possible.

During the trial of this case, the People's Court organized the plaintiff and defendant to conduct an on-site inspection on the evening of August 11, 2018. An LED display screen facing the plaintiff's residence was playing advertising videos, and the light produced was strong and could directly shine into the plaintiff's residential room. The LED display screen was turned off at 20:58 that night. An employee of the defendant company stated that the area of the LED display screen was 160㎡.

Regarding the issue of whether environmental monitoring can be carried out for the light pollution problem involved in the case, the People's Court consulted the Chongqing Jiulongpo District Ecological Environment Monitoring Station. The person in charge of the station stated that there are no national or Chongqing standards and technical indicators for light pollution environmental monitoring, so the monitoring station cannot carry out environmental monitoring for light pollution problems. Experts from the Chongqing Court's Expert Database for Environmental Resources Adjudication and the Deputy Director of the Chongqing Yongchuan District Ecological Environment Monitoring Station also stated that there are no specific standards for light pollution from the perspective of environmental protection, but from the perspective of civil legal relations, it can be judged whether light pollution has been caused by comprehensively considering other evidence. From the evidence submitted by the plaintiff in this case, the damage caused by the Vientiane City electronic display screen to the plaintiff objectively exists, mainly manifested as affecting the plaintiff's normal rest. Regarding the light radiation-related issues generated by the LED display screen, the court consulted professors from the School of Architecture and Urban Planning of Chongqing University, vice chairman of the China Illuminating Engineering Society, and senior engineers from the School of Architecture and Urban Planning of Chongqing University, directors of the China Illuminating Engineering Society, and other experts. The experts stated that the light radiation of LED has two effects on people: one is visual impact, in which disability glare and discomfort glare have an impact on people's eyes; the other is biological impact: when people go to bed at night, as the light intensity decreases, they gradually fall asleep, which is the result of the action of two hormones, melatonin and cortisol - melatonin rises at night and decreases during the day, and cortisol is the opposite. If the light radiation is too strong, it will disrupt people's biological clock, and there will be long-term effects. In addition, the white light of LED contains blue light components, and blue light has damage to the human retina, which is irreparable. However, outdoor blue light hazards are difficult to detect, and the standards for time and intensity need to be determined when standards are issued. Regarding the impact of light intensity on people, research conclusions believe that the impact on people will be smaller when it is generally below 400cd/㎡, but it is difficult to apply to dynamic advertising screens. For the specification of brightness, the limit values of brightness are different in the specifications compiled by different departments, but there is still a difference between LED display screens and direct lighting, and it is more appropriate to determine it according to the relevant national standards of LED display screens.

Judgment Result

The People's Court of Jiangjin District, Chongqing City, made the judgment (2018) Yu 0116 Min Chu No. 6093 on December 28, 2018: 1. Defendant China Resources Land (Chongqing) Co., Ltd. shall, from the date this judgment takes effect, immediately cease its light pollution infringement on the plaintiff Li Jin caused by running an LED display screen on the outer wall of the residence of the plaintiff Li Jin located in Building ×, × residential area, Xiejiawan Zheng Street, Jiulongpo District, Chongqing City, which faces the MixC shopping center on Xiejiawan Zheng Street, Jiulongpo District, Chongqing City: 1. The aforementioned LED display screen shall be turned on after 8:30 and turned off before 22:00 from May 1 to September 30; it shall be turned on after 8:30 and turned off before 21:50 from October 1 to April 30. 2. The brightness value of the aforementioned LED display screen shall not be higher than 600cd/㎡ after 19:00 every day. 2. Reject the other litigation claims of the plaintiff Li Jin. After the first instance judgment, neither party appealed, and the judgment has become legally effective.

Reasons for the Judgment

The effective court ruling holds that: Protecting the environment is a basic national policy of China, and all units and individuals have the obligation to protect the environment. Article 9 of the "General Principles of the Civil Law of the People's Republic of China" stipulates: "When engaging in civil activities, civil subjects shall be conducive to saving resources and protecting the ecological environment." Article 90 of the "Property Law of the People's Republic of China" stipulates: "Real right holders shall not violate national regulations to dispose of solid waste or discharge harmful substances such as air pollutants, water pollutants, noise, light, and electromagnetic radiation." Paragraph 1 of Article 42 of the "Environmental Protection Law of the People's Republic of China" stipulates: "Enterprises, institutions and other producers and operators that discharge pollutants shall take measures to prevent and control air pollution, water pollution, solid waste, medical waste, dust, malodorous gases, radioactive substances, noise, vibration, light radiation, electromagnetic radiation, etc. generated during production, construction or other activities." This case is a dispute over environmental pollution liability. According to Article 65 of the "Tort Liability Law of the People's Republic of China": "If damage is caused by environmental pollution, the polluter shall bear the tort liability." Environmental pollution tort liability is a special tort liability, and its constituent elements include the following three aspects: First, the polluter has an act of polluting the environment; second, the infringed person has damage facts; third, there is a causal relationship between the polluter's act of polluting the environment and the infringed person's damage.

1. Whether the defendant has an act of polluting the environment

As the developer and operator of the MixC shopping center, the defendant China Resources Land (Chongqing) Co., Ltd. has set up an LED display screen on the outer wall of the shopping center facing the plaintiff's residence to play advertisements and promotional materials, etc., and the strong light generated directly enters the plaintiff's residential room. According to the photos, video materials and other evidence provided by the plaintiff, as well as the on-site inspection organized by both parties, it can be determined that the strong light generated by the defendant's use of the LED display screen to play advertisements and promotional materials has exceeded the scope generally tolerable by the general public. In terms of the public's cognitive laws and personal feelings, the strong light will seriously affect the normal work and study of neighboring people and interfere with the normal life and rest of surrounding residents, and has constituted light pollution caused by strong light. The defendant's act of using the LED display screen to play advertisements, promotional materials, etc. causing light pollution has constituted an act of polluting the environment.

2. Regarding the damage facts of the infringed person

The damage facts of environmental pollution mainly include the facts that the act of polluting the environment causes damage to the property and personal safety of the parties and damage to the environment. The damage consequences of environmental pollution infringement are different from the damage consequences of general infringement, including not only obvious and measurable damage results, but also those damage results that are not obvious or temporarily asymptomatic and cannot be reflected by measurement methods for the time being. This case is a light pollution dispute. The personal injury caused by light pollution has the characteristics of potentiality and concealment. The infringed person often does not show obvious symptoms of damage at the beginning of the injury, and the damage they suffer is often temporarily unable to be reflected by accurate measurement methods. However, as time goes by, the damage will gradually become apparent. Referring to the expert opinions in this case, in addition to the perceptible impact on vision, too strong light radiation can cause people's biological clock to be disrupted. The impact is not visible in a short period of time, but it will have a long-term impact. In this case, the strong light generated by the defendant's use of the LED display screen to play advertisements, promotional materials, etc. has exceeded the degree tolerable by ordinary people and has affected the normal life and rest of the plaintiff and other residents living nearby. According to the rules of daily life experience, the light pollution generated by the defendant's operation of the LED display screen will inevitably cause damage to the physical and mental health of the plaintiff and others, which is also generally recognized by the public. In summary, the light pollution generated by the defendant's operation of the LED display screen has caused damage to the plaintiff's residential environmental rights and has caused damage to the plaintiff's physical and mental health.

3. Whether the defendant should bear the tort liability for polluting the environment

Article 66 of the "Tort Liability Law of the People's Republic of China" stipulates: "In the event of a dispute due to environmental pollution, the polluter shall bear the burden of proof for the circumstances under which the law stipulates that they are not liable or the liability is mitigated, and that there is no causal relationship between their behavior and the damage." In this case, the plaintiff has provided evidence to prove that the defendant has an act of polluting the environment and the plaintiff's damage facts. The defendant needs to bear the burden of proof for the circumstances in which the law stipulates that they are not liable or the liability is mitigated, or that there is no causal relationship between the defendant's pollution behavior and the damage. However, the defendant did not submit evidence to prove the aforementioned circumstances. The defendant should bear the adverse consequences of failing to provide evidence and should bear the tort liability for polluting the environment. According to Article 13 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Environmental Tort Liability Dispute Cases": "The people's court shall, based on the plaintiff's litigation claims and the specific circumstances of the case, reasonably determine that the polluter shall bear civil liabilities such as ceasing infringement, removing obstacles, eliminating dangers, restoring to the original state, making an apology, and compensating for losses." The damage of environmental tort is different from general personal injury and property damage, and there are unique requirements for the tort liability borne by the tortfeasor. Because environmental tort infringes on the personal and property rights and interests of an indefinite number of people in a certain area through the medium of the environment, and once damage that can be reflected by measurement methods occurs, its consequences are often irreparable and cannot be eliminated. Therefore, in environmental tort, if the tortfeasor has committed an act of polluting the environment, even if there are no measurable damage consequences, they should bear the corresponding tort liability. In this case, judging from the complaints from citizens, as the operator and manager of the MixC shopping center, the defendant should have realized that the strong light emitted from the use of LED display screens to play advertisements, promotional materials, etc. would have an impact on the plaintiff and others living in the opposite and surrounding residential areas, and has the obligation to take necessary measures to reduce the impact on the plaintiff and others. However, the defendant has been using LED display screens to play advertisements, promotional materials, etc., and the strong light generated is obviously beyond the degree tolerable by ordinary people, constituting light pollution, seriously interfering with the normal life of the surrounding people, causing damage to the environmental rights and interests of the plaintiff and others, and thus damaging the physical and mental health of the plaintiff and others. Therefore, even if the plaintiff has not shown obvious symptoms, the fact that their life is disturbed by light pollution and their environmental rights and interests are damaged is also an objective fact. Therefore, the defendant should bear civil liabilities such as ceasing infringement and removing obstacles.

(Effective judgment trial personnel: Jiang Ling, Luo Jing, Zhang Zhigui)

Guiding Case No. 129

Jiangsu Provincial People's Government v. Anhui Hyde Chemical Technology Co., Ltd. Ecological Environment Damage Compensation Case

(Discussed and approved by the Adjudication Committee of the Supreme People's Court, issued on December 26, 2019)

Keyword   Civil/Ecological Environment Damage Compensation Litigation/Installment Payment

Key points of judgment

Enterprises, institutions, and other producers and operators that transfer hazardous waste generated during production and operation to enterprises or individuals without hazardous waste disposal qualifications for disposal, causing environmental pollution, shall bear the responsibility for ecological and environmental damage. The people's court may comprehensively consider the subjective fault, business conditions, and other factors of the enterprises, institutions, and other producers and operators, and rule that they pay the compensation in installments after the responsible person provides effective guarantee.

Relevant legal provisions

1. Article 65 of the Tort Liability Law of the People's Republic of China

2. Article 64 of the Environmental Protection Law of the People's Republic of China

Basic Case Information

On April 28, 2014, Yang Feng, the marketing manager of Anhui Hyde Chemical Technology Co., Ltd. (hereinafter referred to as Hyde Company), handed over 29.1 tons of waste alkali liquor generated by the company in the production process to Li Hongsheng and others who did not have the qualification for hazardous waste disposal for disposal. Li Hongsheng and others handed over the above-mentioned waste alkali liquor to Sun Zhicai, who did not have the qualification for hazardous waste disposal, for disposal. On April 30, 2014, Sun Zhicai and others dumped the waste alkali liquor into the Yangtze River, causing serious environmental pollution. On May 7, 2014, Yang Feng handed over 20 tons of waste alkali liquor from Hyde Company to Li Hongsheng and others for disposal, and Li Hongsheng and others handed over the above-mentioned waste alkali liquor to Sun Zhicai for disposal. Sun Zhicai and others dumped the waste alkali liquor into the Yangtze River in two times on May 7, 2014 and June 17 of the same year, causing the centralized drinking water source in Jingjiang City, Jiangsu Province to be interrupted for more than 40 hours from May 9 to 11. From May 8 to 9, 2014, Yang Feng handed over 53.34 tons of waste alkali liquor to Li Hongsheng and others for disposal, and Li Hongsheng and others handed over the above-mentioned waste alkali liquor to Ding Weidong for disposal. Ding Weidong and others dumped the waste alkali liquor into the Xintongyang Canal on May 14, 2014, resulting in the interruption of centralized drinking water source in Xinghua City, Jiangsu Province for more than 14 hours. After the above-mentioned pollution incident occurred, the Jingjiang Environmental Protection Bureau and the Jingjiang People's Procuratorate jointly entrusted the Jiangsu Environmental Science Society to assess the pollution damage. After investigation and evaluation, the Jiangsu Environmental Science Society issued an "Assessment Report" in June 2015. The People's Government of Jiangsu Province filed a lawsuit with the Intermediate People's Court of Taizhou City, Jiangsu Province, requesting the court to order Hyde Company to compensate 36.379 million yuan for ecological environment restoration costs, 18.1895 million yuan for ecological environment service function losses, and bear 260,000 yuan for assessment costs and litigation costs.

Judgment Result

The Intermediate People's Court of Taizhou City, Jiangsu Province made a civil judgment (2017) Su12 Minchu No. 51 on August 16, 2018: 1. The defendant Anhui Hyde Chemical Technology Co., Ltd. shall compensate 36.379 million yuan for environmental restoration costs; 2. The defendant Anhui Hyde Chemical Technology Co., Ltd. shall compensate 18.1895 million yuan for ecological environment service function losses; 3. The defendant Anhui Hyde Chemical Technology Co., Ltd. shall compensate 260,000 yuan for assessment costs. After the judgment was pronounced, Anhui Hyde Chemical Technology Co., Ltd. appealed, and the Jiangsu Higher People's Court made a civil judgment (2018) Su Minzhong No. 1316 on December 4, 2018: 1. Maintain the civil judgment (2017) Su12 Minchu No. 51 of the Intermediate People's Court of Taizhou City, Jiangsu Province. Anhui Hyde Chemical Technology Co., Ltd. shall pay the compensation of 54.8285 million yuan to the Taizhou Environmental Public Interest Litigation Fund Account within 60 days from the date of this judgment. 2. After providing effective guarantee to the Intermediate People's Court of Taizhou City, Jiangsu Province, Anhui Hyde Chemical Technology Co., Ltd. may pay 20% (10.9657 million yuan) of the above-mentioned amount within 60 days from the date of this judgment, and pay 20% (10.9657 million yuan per period) of the above-mentioned amount before December 4, 2019, December 4, 2020, December 4, 2021, and December 4, 2022. If one period is not fulfilled on time, the People's Government of Jiangsu Province may apply to the court for compulsory execution of all unpaid amounts. If Anhui Hyde Chemical Technology Co., Ltd. fails to fulfill the payment obligation within the time limit specified in this judgment, it shall pay double the interest on the debt for the delayed performance period in accordance with the provisions of Article 253 of the Civil Procedure Law of the People's Republic of China.

Reasons for the Judgment

The effective judgment of the court held that Hyde Company, as a chemical enterprise, has the obligation to prevent pollution of the environment for the hazardous waste alkali liquor generated in its production and operation process. Hyde Company allowed Yang Feng, the head of the company's marketing department, to hand over the waste alkali liquor to individuals who did not have the qualification for hazardous waste disposal for disposal, resulting in the waste alkali liquor being dumped into the Yangtze River and the Xintongyang Canal, which seriously polluted the environment. Article 64 of the Environmental Protection Law of the People's Republic of China stipulates that those who cause damage due to pollution of the environment and destruction of ecology shall bear tort liability in accordance with the relevant provisions of the Tort Liability Law of the People's Republic of China. Article 65 of the Tort Liability Law of the People's Republic of China stipulates that those who cause damage due to pollution of the environment shall bear tort liability. Article 15 of the Tort Liability Law of the People's Republic of China defines restoring to the original state and compensating for losses as the ways to bear responsibility. Environmental restoration costs, ecological environment service function losses, and assessment fees are all specific manifestations of legal responsibilities such as restoring to the original state and compensating for losses. In accordance with Article 15, Paragraph 1, Item 6 and Article 65 of the Tort Liability Law of the People's Republic of China, Article 1, Paragraph 1 and Article 13 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in Adjudicating Cases of Disputes over Environmental Tort Liability, it is not inappropriate to rule that Hyde Company shall bear tort liability for compensation.

Hyde Company applied for payment of compensation in installments on the grounds that the company's burden was too heavy and its funds were tight, and that full payment of compensation in the short term would lead to the company's bankruptcy. In order to ensure the effective connection between protecting the ecological environment and economic development, the People's Government of Jiangsu Province stated after the court hearing that if Hyde Company can provide evidence to prove that it meets the direction of national economic restructuring and can achieve green production transformation, and under the condition of providing effective guarantee, it agrees that Hyde Company shall pay the compensation in five installments in accordance with the provisions of Article 231 of the Civil Procedure Law of the People's Republic of China.

(Effective judgment trial personnel: Chen Ying, Zhao Li, Wu Xiaoling)

Guiding Case No. 130

Chongqing Municipal People's Government, Chongqing Liangjiang Volunteer Service Development Center v. Chongqing Cangjingge Property Management Co., Ltd., Chongqing Shouxu Environmental Protection Technology Co., Ltd. Ecological Environment Damage Compensation, Environmental Civil Public Interest Litigation Case

(Discussed and approved by the Adjudication Committee of the Supreme People's Court, issued on December 26, 2019)

Keyword   Civil/Ecological Environment Damage Compensation Litigation/Environmental Civil Public Interest Litigation/Entrusted Sewage Discharge/Joint Infringement/Ecological Environment Restoration Costs/Virtual Governance Cost Method

Key points of judgment

1. An enterprise that has obtained a sewage discharge permit has the statutory obligation to ensure that its sewage treatment equipment is operating normally and that the emissions meet national and local emission standards. If it entrusts other units to handle it, it shall perform the supervision obligation to the entrusted unit; if it knows that the entrusted unit is illegally discharging sewage and fails to stop it or even provides convenience, it shall bear joint and several liability for environmental pollution damage.

2. If the polluter discharges sewage into the water area and causes ecological environment damage, and the ecological environment restoration cost is difficult to calculate, the damage consequences can be quantified by using the virtual governance cost method in accordance with the relevant regulations of the environmental protection department on ecological environment damage assessment, and the quantitative amount of ecological environment damage can be calculated according to the pollutant types, sewage discharge amount, and pollution source exclusivity of illegal sewage discharge.

Relevant legal provisions

Article 8 of the Tort Liability Law of the People's Republic of China

Basic Case Information

Chongqing Cangjingge Electroplating Industrial Park (also known as Cangjingge Electroplating Industrial Center) is located in Gangcheng Industrial Park, Jiangbei District, Chongqing. It is the only electroplating industrial park in the industrial park, and there are several electroplating enterprises in the park. Chongqing Cangjingge Property Management Co., Ltd. (hereinafter referred to as Cangjingge Company) provides property management services for enterprises in the park and is responsible for treating the waste water generated by the enterprises. Cangjingge Company has obtained a permit to discharge pollutants and has facilities and equipment for waste water treatment. On December 5, 2013, Cangjingge Company and Chongqing Shouxu Environmental Protection Technology Co., Ltd. (hereinafter referred to as Shouxu Company) signed a 4-year "Electroplating Waste Water Treatment Entrusted Operation Contract Management Operation Agreement" (hereinafter referred to as the "Entrusted Operation Agreement"). Shouxu Company undertook the waste water treatment project of Cangjingge Electroplating Industrial Center. The waste water of the electroplating industrial center was handed over to Shouxu Company by Cangjingge Company for treatment using the waste water treatment equipment owned by Cangjingge Company. On April 21, 2016, law enforcement officers of the Chongqing Environmental Supervision Detachment conducted an on-site inspection of the waste water treatment station of Cangjingge Company and found that two total chromium reactors and one comprehensive reactor facility in the waste water treatment station were not in operation, and the production waste water was discharged into the external environment without treatment. From April 22 to 26, 2016, sampling and monitoring analysis by law enforcement officers found that the heavy metals in the discharged waste water exceeded the standard, and the concentration of total chromium in the illegally discharged waste water was 55.5mg/L, the concentration of total zinc was 2.85x102mg/L, the concentration of total copper was 27.2mg/L, and the concentration of total nickel was 41mg/L, which exceeded the prescribed standards of the "Electroplating Pollutant Discharge Standard" (GB21900-2008) by 54.5 times, 189 times, 53.4 times, and 81 times respectively, causing serious impact and damage to the ecological environment. On May 4, 2016, law enforcement officers conducted another on-site inspection and found that the heavy metal-containing waste water in the No. 1 comprehensive waste water regulating pool of Cangjingge waste water treatment station was directly discharged into the external environment through a 120mm diameter pipe network on the pool wall without normal treatment, and then flowed into the municipal pipe network of Gangcheng Park and then into the Yangtze River. According to monitoring, the concentration of hexavalent chromium in the waste water leaking from the No. 1 pool was 6.10mg/L, and the concentration of total chromium was 10.9mg/L, which exceeded the national standard by 29.5 times and 9.9 times respectively. A total of 145,624 tons of waste water was illegally discharged from September 1, 2014 to May 5, 2016. It was also found that in August 2014, Cangjingge Company transformed the original waste acid collection pool into the No. 1 comprehensive waste water regulating pool, and the waste water transmission was also changed from underground pipe network to high-altitude pipe network operation. There were originally one 110mm and one 120mm diameter pipe network on the pool wall. Only the 110mm diameter pipe network was closed during the transformation, but the 120mm diameter pipe network was not closed. The unclosed pipe network was an underground dark pipe. Since September 2014, Shouxu Company has been directly discharging untreated heavy metal-containing waste water into the external environment through the pipe network, knowing that there is a 120mm pipe network in the pool that can connect to the external environment.

Entrusted by the Chongqing Municipal People's Government, the Chongqing Academy of Environmental Science conducted an assessment of the ecological and environmental damage caused by the illegal discharge of excessive waste water by Cangjingge Company and Shouxu Company, and issued an "Assessment Report" in April 2017. The assessment report stated that: the pollution behavior in this event is clear, the pollutant migration path is reasonable, the pollutants in the pollution source and the waste water illegally discharged into the external environment are homologous, and the pollution source is exclusive. The duration of the pollution behavior was from September 1, 2014 to May 5, 2016, and a total of 145,624 tons of waste water was illegally discharged. The main pollution factors were hexavalent chromium, total chromium, total zinc, total nickel, etc., which caused serious damage to the Yangtze River water body. The "Assessment Report" quantifies the ecological and environmental damage by using the virtual treatment cost method recommended by the "Technical Guidelines for Assessment of Ecological and Environmental Damage" and the "Recommended Methods for Environmental Damage Assessment (Version II)". The actual treatment cost of 22 yuan/ton is used as the unit virtual treatment cost, and then multiplied by the amount of illegally discharged waste water to calculate the virtual treatment cost of 3,203,728 yuan. The illegal discharge point of waste water is the main urban area section of the Yangtze River trunk stream, and the applicable functional category is Class III water body. According to the "Principles for Determining Pollution Remediation Costs" of the virtual treatment cost method, the multiple range of Class III water body is 4.5-6 times the virtual treatment cost. This assessment selects the lowest multiple of 4.5 times, and the final assessment of the quantitative amount of ecological and environmental pollution damage caused by the illegal discharge of waste water by the two defendants is 14,416,776 yuan (i.e., 3,203,728 yuan × 4.5 = 14,416,776 yuan). Chongqing Academy of Environmental Science is an assessment institution confirmed in the "Notice of the Ministry of Environmental Protection on Issuing the List of Recommended Institutions for Environmental Damage Assessment (First Batch)".

On June 30, 2016, the Chongqing Environmental Supervision Detachment made an administrative penalty decision on Cangjingge Company for directly discharging heavy metal-containing waste water into the Yangtze River through the 120mm diameter pipe network in the No. 1 comprehensive regulating pool from September 1, 2014 to May 5, 2016 without passing through the total discharge outlet of the waste water treatment station, and fined Cangjingge Company 5,807,200 yuan. Cangjingge Company applied for administrative reconsideration, and the Chongqing Environmental Protection Bureau made a reconsideration decision to maintain the administrative penalty decision. Later, Cangjingge Company sued to the Yubei District People's Court of Chongqing, requesting the revocation of the administrative penalty decision and the administrative reconsideration decision. The Yubei District People's Court of Chongqing made an administrative judgment No. (2016) Yu0112 Xingchu 324 on February 28, 2017, rejecting Cangjingge Company's claim. After the judgment, Cangjingge Company did not file an appeal, and the judgment became legally effective.

On November 28, 2016, the Yubei District People's Procuratorate of Chongqing filed a public prosecution with the Yubei District People's Court of Chongqing, accusing Shouxu Company and Cheng Long (the legal representative of Shouxu Company) of constituting the crime of polluting the environment and should be held criminally liable in accordance with the law. The Yubei District People's Court of Chongqing made a criminal judgment No. (2016) Yu0112 Xingchu 1615 on December 29, 2016, sentencing Shouxu Company, Cheng Long and others to the crime of polluting the environment. After the judgment, no protest or appeal was filed, and the judgment became legally effective.

Judgment Result

The First Intermediate People's Court of Chongqing made a civil judgment No. (2017) Yu01 Minchu 773 on December 22, 2017: 1. The defendants Chongqing Cangjingge Property Management Co., Ltd. and Chongqing Shouxu Environmental Protection Technology Co., Ltd. shall be jointly and severally liable for the ecological environment restoration cost of 14,416,776 yuan, which shall be paid to the special account of the Chongqing Municipal Finance Bureau within ten days after this judgment becomes effective, and shall be used by the plaintiff Chongqing Municipal People's Government and its designated departments and the plaintiff Chongqing Liangjiang Volunteer Service Development Center to carry out alternative restoration in combination with the ecological environment damage in this area; 2. The defendants Chongqing Cangjingge Property Management Co., Ltd. and Chongqing Shouxu Environmental Protection Technology Co., Ltd. shall publicly apologize to the society in provincial or above media within ten days after this judgment becomes effective; 3. The defendants Chongqing Cangjingge Property Management Co., Ltd. and Chongqing Shouxu Environmental Protection Technology Co., Ltd. shall pay the plaintiff Chongqing Municipal People's Government an appraisal fee of 50,000 yuan and a lawyer fee of 198,000 yuan within ten days after this judgment becomes effective; 4. The defendants Chongqing Cangjingge Property Management Co., Ltd. and Chongqing Shouxu Environmental Protection Technology Co., Ltd. shall pay the plaintiff Chongqing Liangjiang Volunteer Service Development Center a lawyer fee of 80,000 yuan within ten days after this judgment becomes effective; 5. Reject the other claims of the plaintiffs Chongqing Municipal People's Government and Chongqing Liangjiang Volunteer Service Development Center. After the judgment, all parties did not file an appeal within the statutory period, and the judgment became legally effective.

Reasons for the Judgment

According to the effective judgment of the court, Chongqing Municipal People's Government is entitled to file a lawsuit for compensation for ecological environment damage according to the provisions of the "Pilot Plan for Reforming the Ecological Environment Damage Compensation System", and Chongqing Liangjiang Volunteer Service Development Center has the legal subject qualification for environmental public interest litigation. The two plaintiffs enjoy their respective rights of action based on different regulations, which should be protected according to law. Considering that the plaintiffs in the two cases filed lawsuits against the same defendant based on the same pollution facts and the claims are basically the same, the two cases are heard together.

The focus of the dispute in this case is:

1. Whether the pollutant types, the exclusivity of pollution sources, the measurement of illegally discharged wastewater, and the amount of damage quantified in the "Appraisal Report" are accurate

First of all, regarding the accuracy of the pollutant types, the exclusivity of pollution sources, and the measurement of illegally discharged wastewater as determined in the "Appraisal Report". The pollutant types, the exclusivity of pollution sources, and the measurement of illegally discharged wastewater have been directly or indirectly confirmed by the Administrative Judgment No. 324 of Yu 0112 Xingchu (2016). The two defendants in this case did not provide any contrary evidence to overturn the original judgment. Therefore, the above-mentioned environmental pollution facts on which the "Appraisal Report" is based are confirmed. Specifically, one is the issue of pollutant types. In addition to the total chromium and hexavalent chromium identified in the effective criminal judgment, the wastewater illegally discharged by the two defendants also contains heavy metal substances such as total zinc and total nickel. This fact has been confirmed by the environmental monitoring reports issued by Jiangbei District Environmental Monitoring Station and Chongqing Environmental Monitoring Center, as well as the effective Administrative Judgment No. 324 of Yu 0112 Xingchu (2016), and has also been confirmed by Cheng Long, the legal representative of Shouxu Company, in the investigation and inquiry. The second is the issue of the exclusivity of pollution sources. The two defendants argued that the sampling points W4 and W6 determined by the Jianghuan (Jian) Zi [2016] No. JD009 analysis report issued by the Jiangbei District Environmental Monitoring Station are located higher than the Cangjingge wastewater treatment station. Therefore, the excessive pollutants detected at these two locations could not have been caused by the actions of the two defendants. Because the polluted water area has the characteristics of fluidity and self-purification function, the water quality has been restored to a certain extent. The appraisal agency objectively could no longer extract the wastewater samples discharged during the continuous illegal discharge of wastewater around the wastewater treatment station during the appraisal. Therefore, it can only be based on the illegal discharge wastewater samples fixed by the environmental administrative law enforcement department during the investigation of the illegal acts of the two defendants. In the process of environmental protection law enforcement on the wastewater treatment of Cangjingge, several monitoring samples were taken at multiple sampling points. In addition to the Jianghuan (Jian) Zi [2016] No. JD009 analysis report, Jiangbei District Environmental Monitoring Station and Chongqing Environmental Monitoring Center also issued several monitoring reports. The administrative penalty decision of Chongqing Environmental Supervision Team and the reconsideration decision of Chongqing Environmental Protection Bureau were made on the basis of comprehensive evaluation of the above-mentioned monitoring reports, not solely based on one analysis report or monitoring report. The legality and rationality of the environmental protection department's entire administrative law enforcement process, including sampling and other preliminary law enforcement processes, have been confirmed by the effective administrative judgment. At the same time, the above-mentioned monitoring and analysis results show that the pollutants in the wastewater are heavy metal wastewater discharged from the electroplating industry. The evidence on file proves that Cangjingge is the only electroplating industrial park in the area involved, and the environmental monitoring results are consistent with the types of wastewater illegally discharged from the Cangjingge wastewater treatment station. The above facts prove that the source of wastewater discharged from the above-mentioned water intake points can only come from the Cangjingge wastewater treatment station. Therefore, it can be determined that the source of pollutants is exclusive. The third is the issue of illegal sewage measurement. According to the confirmation of the effective criminal judgment and administrative judgment, and in conjunction with the investigation and inquiry records during the administrative law enforcement process, it can be determined that the basic fact that the wastewater in the chromium adjustment tank enters the No. 1 comprehensive wastewater adjustment tank and uses the 120mm diameter pipe network installed in the No. 1 tank to directly discharge the heavy metal-containing wastewater into the external environment and enter the municipal pipe network. After the trial, it was found that the "Appraisal Report" comprehensively used evidence and calculated the amount of illegally discharged wastewater by using the total amount of water used minus the amount of consumption, the water content of sludge, the amount of online drainage, and the amount of drainage during holidays. The evidence and facts on which it is based have either been recognized by the defendant or confirmed by the effective judgment, or the legality of the relevant administrative act has been reviewed through administrative litigation procedures, and the measurement method it adopts is scientific and reasonable. In summary, the objections raised by Cangjingge Company and Shouxu Company regarding the misidentification of pollutant types, the amount of illegally discharged wastewater, and the exclusivity of pollution sources cannot be established.

Secondly, regarding the accuracy of the amount of damage quantified in the "Appraisal Report". The plaintiff entrusted Chongqing Institute of Environmental Science to conduct an appraisal of the ecological environment damage in this case and issued the "Appraisal Report", which determined that the amount of ecological environment damage caused by the illegal discharge of pollutants by the two defendants was 14,416,777.6 yuan. After investigation, Chongqing Institute of Environmental Science is an appraisal institution established in the "Notice of the Ministry of Environmental Protection on Issuing the List of Recommended Institutions for Environmental Damage Appraisal (First Batch)". Entrusting it to conduct the ecological environment damage appraisal in this case complies with the provisions of the judicial interpretation, and it has the corresponding appraisal qualifications. According to the "General Outline of Technical Guidelines for Ecological Environment Damage Appraisal" and "Recommended Methods for Environmental Damage Appraisal (Version II)" organized and formulated by the Ministry of Environmental Protection, the virtual governance cost method can be used to quantify the ecological environment damage caused by the event, and the quantification result can be used as the basis for ecological environment damage compensation. Considering that the illegal discharge of pollutants in this case lasted for a long time, the amount of illegal discharge was large, and the Yangtze River water body was in a flowing state, it is difficult to directly calculate the cost of ecological environment restoration. Therefore, it is not inappropriate for the "Appraisal Report" to use the virtual governance cost method to quantify the damage result. The "Appraisal Report" determined 22 yuan/ton as the unit actual governance cost, which was determined based on the on-site verification of the financial vouchers of Cangjingge Company by the Chongqing Environmental Supervision Team and in conjunction with the investigation and inquiry records of Sun Qiliang, the legal representative of Cangjingge Company. According to the "Recommended Methods for Environmental Damage Appraisal (Version II)", the determination principle of the Class III surface water pollution restoration cost is 4.5-6 times the virtual governance cost. Combining with the pollution facts in this case, the minimum multiple, that is, 4.5 times, is used to calculate the damage quantification amount as 3,203,728 yuan × 4.5 = 14,416,777.6 yuan, which is also not inappropriate.

In summary, the appraisal institution and appraiser qualifications of the "Appraisal Report" are qualified, the appraisal entrustment procedure is legal, the person in charge of the appraisal project also appeared in court at the request of the court to accept inquiries, the facts on which the appraisal is based are supported by effective legal documents, and the calculation methods and conclusions adopted are scientific and well-founded. Therefore, the "Appraisal Report" and the relevant evidence on which it is based are adopted.

2. Whether Cangjingge Company and Shouxu Company constitute joint infringement

Shouxu Company is the direct implementation subject who knew that there was a 120mm diameter pipe network on the wall of the No. 1 wastewater adjustment tank and deliberately used it to illegally discharge pollutants. It should undoubtedly bear the liability for compensation for the damage consequences. The core issue of this dispute is how to evaluate the behavior of Cangjingge Company and whether it constitutes joint infringement with Shouxu Company. The court held that Cangjingge Company and Shouxu Company constituted joint infringement and should bear joint and several liability.

First, China implements a pollutant discharge permit system, which is a means for the state to effectively manage polluters. An enterprise that obtains a pollutant discharge permit is a discharging unit and has the obligation to discharge pollutants according to the law; otherwise, it will bear corresponding legal responsibilities. Cangjingge Company holds a pollutant discharge permit and must ensure that it discharges in accordance with the provisions and requirements of the permit. Cangjingge Company entrusts the wastewater treatment to Shouxu Company, which specializes in environmental management business (including industrial wastewater operation), in the form of a commissioned operation agreement, which is not prohibited by law. However, whether it discharges by itself or entrusts others to discharge, Cangjingge Company must ensure that its wastewater treatment station operates normally and that the emissions meet national and local emission standards. This is the statutory responsibility of an enterprise that obtains a pollutant discharge permit, and this responsibility cannot be relieved by civil agreement. In other words, Cangjingge Company, as the main body of pollutant discharge, has the statutory responsibility to supervise Shouxu Company's legal discharge of pollutants, and according to the "Commissioned Operation Agreement", it also has the obligation to supervise Shouxu Company's daily discharge of pollutants. The illegal discharge behavior in this case lasted for 1 year and 8 months, and Cangjingge Company obviously failed to fulfill its supervision obligations.

Second, whether as the property owner of the sewage discharge equipment and the statutory responsibility of the sewage discharge entity, or in accordance with the agreement between the two parties, Cangjingge Company shall ensure that the wastewater treatment facilities and equipment are normal and intact. In August 2014, when Cangjingge Company transformed the waste acid pool into No. 1 wastewater regulating pool and changed the underground pipe network to high-altitude pipe network operation, it did not close the 120mm diameter dark pipe in the pool according to normal treatment methods, and Cangjingge Company also failed to provide evidence to prove the rationality and legality of not closing the dark pipe, while Shouxu Company implemented illegal discharge through the dark pipe. That is to say, Cangjingge Company knew that the wastewater treatment equipment provided for Shouxu Company had a pipe network that could implement illegal discharge, and it can be determined that it had illegal intent, and objectively provided conditions for the completion of the illegal discharge behavior.

Third, the wastewater to be treated is provided by Cangjingge Company to Shouxu Company, so Cangjingge Company knows the amount of wastewater to be treated. At the same time, Cangjingge Company, as the main body of pollutant discharge, is responsible for paying pollutant discharge fees to the environmental protection department, and it also knows the amount of legally discharged wastewater. In addition, as the property management department, it is also clear about the actual water consumption generated by enterprises in the park. By combining these data, the existence of illegal discharge behavior can be determined. Therefore, it can be determined that Cangjingge Company knew that Shouxu Company was implementing illegal discharge of pollutants, but it allowed Shouxu Company to illegally discharge wastewater, and continued to hand over the wastewater to Shouxu Company for treatment, which can be regarded as a tacit understanding between it and Shouxu Company, with the intention of joint infringement, and jointly caused pollution consequences.

Fourth, environmental tort cases have the characteristics of composite infringement methods, complex infringement processes, and concealment and long-term nature of infringement consequences. The difficulty of proof, especially the difficulty of proving the subjective intention of illegal discharge of pollutants by polluting enterprises, is high, and this case also involves the infringement of environmental public interest. Therefore, the particularity of such cases should be fully considered, and the responsibility for proof and the principle of attribution should be accurately grasped to avoid responsibility evasion and damage to public interest. In summary, according to the facts and evidence of this case, the evidence that Cangjingge Company and Shouxu Company constitute joint infringement of environmental pollution has reached the civil proof standard of a high degree of probability, and it should be determined that Cangjingge Company and Shouxu Company have a subjective common intention and an objective common behavior for illegal discharge of pollutants, and the two defendants constitute joint infringement and should bear joint and several liability.

(Effective judgment adjudicators: Qiu Xiaoyin, Jia Ke, Zhang Li)

Guiding Case No. 131

China Environmental Protection Federation v. Dezhou Jinghua Group Zhenhua Co., Ltd. Atmospheric Pollution Liability Civil Public Interest Litigation Case

(Discussed and approved by the Adjudication Committee of the Supreme People's Court, issued on December 26, 2019)

Keyword   Civil/Environmental Civil Public Interest Litigation/Atmospheric Pollution Liability/Damage to Social Public Interest/Major Risk

Key points of judgment

If an enterprise, institution, or other producer or operator repeatedly discharges pollutants exceeding the pollutant discharge standards or the total emission control targets of key pollutants, and fails to correct it after the environmental protection administrative department has imposed administrative penalties, and the plaintiff files an environmental civil public interest lawsuit against it based on Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Environmental Civil Public Interest Litigation Cases, which stipulates "polluting the environment and destroying the ecology with a major risk of harming the public interest", the people's court shall accept it.

Relevant legal provisions

1. Article 55 of the Civil Procedure Law of the People's Republic of China

2. Article 58 of the Environmental Protection Law of the People's Republic of China

Basic Case Information

The defendant, Dezhou Jinghua Group Zhenhua Co., Ltd. (hereinafter referred to as Zhenhua Company), was established in 2000 and its business scope includes power production, flat glass, glass hollow bricks, glass deep processing, and glass product manufacturing. In December 2002, the company's 600T/D high-quality ultra-thick glass project passed the environmental impact assessment approval, and in November 2003, it passed the "three simultaneous" acceptance. In November 2007, the company's high-grade high-quality automotive original sheet project passed the environmental impact assessment approval, and in February 2009, it passed the "three simultaneous" acceptance.

According to the monitoring of Dezhou Environmental Protection Monitoring Center Station, Zhenhua Company's waste gas emissions could meet the standards in March, May, August, and December 2012, and January, May, and August 2013. In November 2013, January, May, June, and November 2014, and February 2015, there were cases of excessive emissions of sulfur dioxide, nitrogen oxides, and smoke and dust. Dezhou Environmental Protection Bureau imposed administrative penalties on Zhenhua Company in December 2013, September 2014, November 2014, and February 2015, with a penalty amount of 100,000 yuan each time. In December 2014, Shandong Provincial Environmental Protection Department imposed an administrative penalty on it, with a penalty amount of 100,000 yuan. On March 23, 2015, Dezhou Environmental Protection Bureau ordered Zhenhua Company to immediately stop production for rectification, and all production was stopped before April 1, 2015, and the emission of excessive waste gas pollutants was stopped. After the plaintiff, China Environmental Protection Federation, filed a lawsuit, on March 27, 2015, all production lines of Zhenhua Company were shut down and production was stopped, and a new factory site was selected in Yangma Village, north of Tianqu Industrial Park in Decheng District, and the original factory area was prepared for relocation.

During the trial stage of this case, to prove the losses caused by the defendant Zhenhua Company's excessive emissions, in December 2015, the plaintiff, All-China Environment Federation, entered into a technical consulting contract with the Environmental Planning Institute of the Ministry of Environmental Protection, entrusting it to assess the amount of losses suffered by public and private property due to Zhenhua Company's emissions of air pollutants, including property damage and reduced actual value directly caused by the pollution, as well as the costs incurred for necessary and reasonable measures taken to prevent the expansion of pollution and eliminate pollution. In May 2016, the Environmental Risk and Damage Assessment Research Center of the Environmental Planning Institute of the Ministry of Environmental Protection issued an assessment opinion based on the evidence collected by the People's Court that had been cross-examined by both parties. The assessment results were: Zhenhua Company is located in the urban area of ​​Dezhou City, Dezhou District, surrounded by residential areas. It originally had three float glass production lines. The No. 1 float glass production line was completely shut down in October 2011. The No. 2 production line, a 600t/d high-quality ultra-thick glass production line, and the No. 3 production line, a 400t/d high-grade high-quality automotive glass raw sheet production line, are still in production. 1. The nature of pollutants is mainly smoke and dust, sulfur dioxide, and nitrogen oxides. According to the relevant information in the "Situation Report on Implementing Rectification Work of Dezhou Jinghua Group Zhenhua Co., Ltd.": As of March 17, 2015, Zhenhua Company's float line 2 had not installed or operated desulfurization and denitrification treatment facilities; the dust removal and desulfurization facilities for float line 3 were put into operation in September 2014; 2. Confirmation of the period of excessive pollutant emissions: the period of excessive sulfur dioxide emissions was from June 10, 2014 to August 17, 2014, a total of 68 days; the period of excessive nitrogen oxide emissions was from November 5, 2013 to June 23, 2014, and from October 22, 2014 to January 27, 2015, a total of 327 days; the period of excessive smoke and dust emissions was from November 5, 2013 to June 23, 2014, a total of 230 days; 3. Pollutant emissions: During the assessment period, the excessive emissions of sulfur dioxide directly into the atmosphere due to the company's failure to install desulfurization facilities were 255 tons, the emissions of nitrogen oxides directly into the atmosphere due to the company's failure to install denitrification facilities were 589 tons, and the emissions of smoke and dust partially directly into the atmosphere due to the company's failure to install dust removal facilities or the insufficient treatment capacity of the dust removal facilities were 19 tons; 4. Unit pollutant treatment cost: According to database information, the unit treatment cost of sulfur dioxide is 0.56 million yuan/ton, the unit treatment cost of nitrogen oxides is 0.68 million yuan/ton, and the unit treatment cost of smoke and dust is 0.33 million yuan/ton; 5. Virtual treatment cost: According to the "Environmental Air Quality Standard", "Recommended Methods for Environmental Damage Assessment (Version II)", and "Technical Specifications for Environmental Damage Assessment in the Emergency Response Stage of Sudden Environmental Incidents", the environmental function area of ​​this project is a Class II area, and the amount of ecological and environmental damage is 3-5 times the virtual treatment cost. This report takes the parameter 5. The total virtual treatment cost of sulfur dioxide is 7.13 million yuan, the virtual treatment cost of nitrogen oxides is 20.02 million yuan, and the virtual treatment cost of smoke and dust is 310,000 yuan. Assessment conclusion: During the assessment period, the defendant company emitted a total of 255 tons of sulfur dioxide, 589 tons of nitrogen oxides, and 19 tons of smoke and dust into the air in excess of the standards. The unit treatment costs are calculated at 0.56 million yuan/ton, 0.68 million yuan/ton, and 0.33 million yuan/ton, respectively. The virtual treatment costs are 7.13 million yuan, 20.02 million yuan, and 310,000 yuan, respectively, totaling 27.46 million yuan.

Judgment Result

The Dezhou Intermediate People's Court made a civil judgment No. 1 of Dezhong Huanmin Chu Zi (2015) on July 20, 2016: 1. The defendant, Dezhou Jinghua Group Zhenhua Co., Ltd., shall compensate 21.9836 million yuan for the losses caused by excessive emissions of pollutants within 30 days from the date of this judgment, and pay it to the special fund account of Dezhou City for the restoration of the atmospheric environment quality of Dezhou City; 2. The defendant, Dezhou Jinghua Group Zhenhua Co., Ltd., shall publicly apologize to the public in media above the provincial level; 3. The defendant, Dezhou Jinghua Group Zhenhua Co., Ltd., shall pay the plaintiff, All-China Environment Federation, the assessment fee of 100,000 yuan within 10 days from the date of this judgment; 4. Reject other litigation claims of the plaintiff, All-China Environment Federation.

Reasons for the Judgment

The effective judgment of the court held that, according to Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in Environmental Civil Public Interest Litigation Cases, the organs and relevant organizations prescribed by law file a lawsuit against the acts of polluting the environment and destroying the ecology that have damaged the public interest or have a significant risk of damaging the public interest, in accordance with the provisions of Article 55 of the Civil Procedure Law and Article 58 of the Environmental Protection Law, etc., and meet the provisions of Items 2, 3, and 4 of Article 119 of the Civil Procedure Law, the people's court shall accept it; Article 18 stipulates that for acts that pollute the environment and destroy the ecology, which have damaged the public interest or have a significant risk of damaging the public interest, the plaintiff may request the defendant to bear civil liabilities such as stopping the infringement, removing the obstruction, eliminating the danger, restoring the original state, compensating for losses, and making an apology. The court held that the act of enterprises, institutions, and other production and business operators discharging pollutants exceeding the pollutant discharge standards or the total control targets of key pollutant discharge can be regarded as an act with a significant risk of damaging the public interest. The excessive emissions of sulfur dioxide, nitrogen oxides, and smoke and dust by the defendant Zhenhua Company will affect the service value function of the atmosphere. Among them, sulfur dioxide and nitrogen oxides are precursors of acid rain, and excessive emissions can lead to acid rain, thereby causing property and personal injury. Excessive emissions of smoke and dust will affect the visibility and cleanliness of the atmosphere, and will also cause property and personal injury. Since November 2013, the defendant Zhenhua Company has repeatedly discharged pollutants such as sulfur dioxide, nitrogen oxides, and smoke and dust into the atmosphere in excess of the standards, and has not corrected it despite repeated administrative penalties by the environmental protection administrative department. Its behavior belongs to the "act with a significant risk of damaging the public interest" as stipulated in the judicial interpretation. Therefore, the defendant Zhenhua Company is a qualified defendant in this case.

(Trial personnel of the effective judgment: Liu Libing, Zhang Xiaoxue, Gao Xiaomin)

Guiding Case No. 132

China Biodiversity Conservation and Green Development Foundation v. Qinhuangdao Fangyuan Packaging Glass Co., Ltd. Atmospheric Pollution Liability Civil Public Interest Litigation Case

(Discussed and approved by the Adjudication Committee of the Supreme People's Court, issued on December 26, 2019)

Keyword   Civil/Environmental Civil Public Interest Litigation/Atmospheric Pollution Liability/Reducing Environmental Risks/Mitigating Liability for Compensation

Key points of judgment

During the environmental civil public interest litigation, if the polluter takes the initiative to improve environmental protection facilities and effectively reduces environmental risks, the people's court may comprehensively consider the illegality of the excessive discharge of pollutants, the degree of fault, the operating costs of pollution control facilities, and the effective measures taken to prevent pollution, and appropriately reduce the polluter's liability for compensation.

Relevant legal provisions

Articles 1, 4, and 5 of the Environmental Protection Law of the People's Republic of China

Basic Case Information

The defendant, Qinhuangdao Fangyuan Packaging Glass Co., Ltd. (hereinafter referred to as Fangyuan Company), is an enterprise mainly engaged in the production and processing of various glass packaging bottles, and currently has four glass kilns. In the production process, it has been subject to multiple administrative penalties by the Qinhuangdao Haigang District Environmental Protection Bureau (hereinafter referred to as Haigang District Environmental Protection Bureau) for excessive discharge of pollutants. On February 12, 2015, Fangyuan Company signed a "General Contract for Denitrification, Desulfurization and Dust Removal of Glass Kilns" with Wuxi Green Environmental Protection Technology Co., Ltd., to carry out denitrification, desulfurization and dust removal transformation of Fangyuan Company's four kilns, with a total contract amount of 36.17 million yuan.

In 2016, after the China Biodiversity Conservation and Green Development Foundation (hereinafter referred to as CBCGDF) filed an environmental public interest lawsuit against Fangyuan Company, Fangyuan Company accelerated the process of upgrading its denitrification, desulfurization, and dust removal systems. On June 15, 2016, Fangyuan Company passed the environmental protection acceptance of the Haigang District Environmental Protection Bureau. On July 22, 2016, CBCGDF organized relevant experts to investigate the operation of Fangyuan Company's denitrification, desulfurization, and dust removal equipment and put forward relevant suggestions. On June 17, 2016, and June 17, 2017, the environmental protection department issued the "Hebei Province Pollutant Discharge Permit" to Fangyuan Company. On December 2, 2016, Fangyuan Company invested another 19.65 million yuan to add a set of spare denitrification, desulfurization, and dust removal equipment for the four kilns.

Fangyuan Company paid an administrative fine of 80,000 yuan on March 18, 2015. After CBCGDF filed a public interest lawsuit in 2016, Fangyuan Company paid a total of 12.81 million yuan in administrative fines in 24 installments from April 13, 2016, to November 23, 2016.

On July 25, 2017, CBCGDF submitted the "Explanation on Litigation Claims and Evidence" to the court, confirming that the damage to the environment caused by Fangyuan Company's illegal discharge of air pollutants lasted from the time when the administrative penalty determined the damage until the environmental protection department passed the acceptance. The court entrusted the Environmental Risk and Damage Assessment Research Center of the Chinese Research Academy of Environmental Sciences to assess the amount of damage caused to the environment by Fangyuan Company's discharge of air pollutants and the cost of taking alternative restoration measures to restore the polluted atmospheric environment. The start and end dates were October 28, 2015 (the date when the administrative penalty determined the damage occurred) to June 15, 2016 (the date of environmental compliance).

In November 2017, the appraisal institution issued the "Appraisal Opinion on Environmental Damage Caused by Excessive Emission of Air Pollutants by Fangyuan Company". According to the virtual cost method, the total amount of particulate matter discharged by Fangyuan Company exceeding the standard during the appraisal period was about 2.06t, the total amount of sulfur dioxide discharged exceeding the standard was about 33.45t, and the total amount of nitrogen oxides discharged exceeding the standard was about 75.33t. The Qinhuangdao area where Fangyuan Company is located is a Class II air function zone. According to regulations, the amount of ecological damage in the Class II environmental air zone is 3-5 times the virtual treatment cost. The appraisal report calculates the damage to the atmospheric environment at about 0.74 million yuan, 271,000 yuan, and 1.2712 million yuan, respectively, totaling 1.5496 million yuan, calculated at 3 times.

It was also found that in March 2015, the webpages of Hebei Broadcasting Network and Yanzhao Metropolis Daily showed that the appellant Fangyuan Company was fined more than 2 million yuan per day for exceeding the standard in discharging air pollutants without installing dust removal, denitrification, and desulfurization facilities. The appellant Fangyuan Company recognized the authenticity of the content displayed on the webpage, so it is confirmed that it had exceeded the standard in discharging pollutants before October 28, 2015.

Judgment Result

The Intermediate People's Court of Qinhuangdao City, Hebei Province, made a civil judgment ([2016] Ji 03 Min Chu No. 40) on April 10, 2018: 1. Qinhuangdao Fangyuan Packaging Glass Co., Ltd. shall compensate 1,549,600 yuan for the losses caused by excessive emissions of air pollutants. The above expenses shall be paid in three installments to the special fund account of Qinhuangdao City (516,500 yuan per installment, the first installment shall be paid within 7 days from the date when the judgment takes effect, and the second and third installments shall be paid before December 31 of the second and third years after the judgment takes effect) for environmental restoration in Qinhuangdao. 2. Qinhuangdao Fangyuan Packaging Glass Co., Ltd. shall publish an apology statement for polluting the atmospheric environment in the national media within 30 days after the judgment takes effect (the content shall be published after being reviewed by the court of first instance). If Qinhuangdao Fangyuan Packaging Glass Co., Ltd. fails to perform the above obligations, the Intermediate People's Court of Qinhuangdao City, Hebei Province, will publish the content of this judgment in the national media, and the relevant expenses shall be borne by Qinhuangdao Fangyuan Packaging Glass Co., Ltd. 3. Qinhuangdao Fangyuan Packaging Glass Co., Ltd. shall pay 30,000 yuan for the reasonable expenses incurred by the China Biodiversity Conservation and Green Development Foundation for this case within 15 days after the judgment takes effect. 4. Reject other litigation claims of the China Biodiversity Conservation and Green Development Foundation. The case acceptance fee of 80 yuan shall be borne by Qinhuangdao Fangyuan Packaging Glass Co., Ltd., and the appraisal fee of 150,000 yuan shall be borne by Qinhuangdao Fangyuan Packaging Glass Co., Ltd. (already paid). After the judgment was pronounced, the China Biodiversity Conservation and Green Development Foundation filed an appeal. The High People's Court of Hebei Province made a civil judgment ([2018] Ji Min Zhong No. 758) on November 5, 2018: the appeal was rejected and the original judgment was upheld.

Reasons for the Judgment

The effective judgment of the court held that Article 23 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in Adjudicating Environmental Civil Public Interest Litigation Cases stipulates that if the ecological environment restoration cost is difficult to determine, the people's court may reasonably determine it by combining factors such as the scope and degree of pollution and damage to the ecological environment, the operating cost of pollution prevention equipment, the benefits obtained by the polluting enterprise due to the tort, and the degree of fault. In this case, Fangyuan Company signed the "General Contract for Denitrification, Desulfurization and Dust Removal of Glass Kilns" with Wuxi Green Environmental Protection Technology Co., Ltd. in February 2015 to upgrade the environmental protection facilities equipped for its four kilns. The total contract amount was 36.17 million yuan, which reflects the company's awareness of complying with the law in preventing pollution and rectification. Fangyuan Company had excessive emissions of pollutants during the upgrading and transformation of environmental protection facilities. Although the behavior was illegal, Fangyuan Company actively paid administrative fines totaling more than 12.8 million yuan after being subject to administrative penalties for excessive emissions of pollutants, and its excessive emissions of pollutants were subject to administrative sanctions. After the public interest litigation in this case was filed, Fangyuan Company accelerated the upgrading and transformation of environmental protection facilities, and after the environmental protection facilities passed the acceptance, it invested another 19.65 million yuan to build a set of spare pollution discharge equipment, making it the first enterprise in Qinhuangdao to realize the opening of two and preparation of one environmental protection equipment for air pollution control.

Articles 1 and 4 of the Environmental Protection Law of the People's Republic of China stipulate the legislative purpose of protecting the environment, preventing pollution, and promoting sustainable economic development, which reflects the principle of giving equal importance to protection and development. Environmental public interest litigation should not only emphasize environmental damage relief but also take into account the principle of prevention. During the litigation process in this case, Fangyuan Company accelerated the progress of rectification of environmental protection facilities, actively assumed administrative responsibility, and after the environmental protection facilities installed by it passed the acceptance, it invested nearly 20 million yuan to equip a set of environmental protection facilities to ensure the stable operation of environmental protection facilities during the production process, which greatly reduced the risk and possibility of causing environmental pollution again. Fangyuan Company voluntarily invested huge sums of money in pollution prevention and control, which is an act of maintaining public welfare implemented outside the scope of the litigation claim of "environmental damage compensation and environmental restoration costs" filed by CBCGDF in the first instance, and realized the legislative intention of "giving priority to protection and prevention first" stipulated in Article 5 of the Environmental Protection Law of the People's Republic of China, as well as the risk prevention function of environmental civil public interest litigation, which has a good social guiding role. The people's court comprehensively considered the illegality, degree of fault, operating cost of pollution control, and active measures taken to prevent pollution of Fangyuan Company's excessive emissions of pollutants during the enterprise production process, and offset the damage caused by Fangyuan Company's excessive emissions of pollutants before the time period of environmental damage assessed in the first instance, and upheld the amount of environmental damage compensation and restoration costs judged by the court of first instance based on the assessment opinion.

(Effective judgment trial personnel: Dou Shuxia, Li Xuejing, Xing Huili)

Guiding Case No. 133

Shandong Yantai Municipal People's Procuratorate v. Wang Zhendian, Ma Qunkai Environmental Civil Public Interest Litigation Case

(Discussed and approved by the Adjudication Committee of the Supreme People's Court, issued on December 26, 2019)

Keyword   Civil/Environmental Civil Public Interest Litigation/Water Pollution/Ecological Environment Restoration Responsibility/Self-cleaning Function

Key points of judgment

The People's Court will not support a polluter's claim for exemption or reduction of ecological environment restoration liability on the grounds that the polluted water area has self-purification function and the water quality has been restored, where the polluter violates national regulations and discharges pollutants into the water area, causing damage to the ecological environment.

Relevant legal provisions

1. Article 4, Paragraph 1, Article 8, Article 65, and Article 66 of the Tort Liability Law of the People's Republic of China

2. Article 64 of the Environmental Protection Law of the People's Republic of China

Basic Case Information

From February to April 2014, Wang Zhendian and Ma Qunkai engaged in a project of cleaning feldspar particles with hydrochloric acid in the workshop on the north side of the sand court in Xiaoshuizhuang Village, Zhaocun Town, Laizhou City, without going through any registration, safety inspection, environmental assessment, or other procedures. Wang Zhendian provided the site, personnel, and some funds, while Ma Qunkai funded the construction of the reaction pool, imparted technology, provided equipment, purchased raw materials, and sold finished products. During the operation, approximately 60 tons of waste acid liquid were produced, which Wang Zhendian first stored in a waste water pool outside the north wall of the factory. There were obvious signs of leakage during the storage of waste acid liquid in the waste water pool, and the leaked waste acid liquid polluted the surrounding soil and groundwater. The waste acid liquid was then discharged into the Xiaoshui River north of the village through drainage ditches outside the east and west walls of the factory, causing pollution to the water in the Xiaoshui River. At the end of April 2014, the operation of cleaning feldspar particles with hydrochloric acid by Wang Zhendian and Ma Qunkai was investigated and shut down by the Laizhou Public Security Bureau. The remaining 20-odd tons of waste acid liquid from cleaning feldspar particles with hydrochloric acid were buried by Wang Zhendian in the reaction pool. After monitoring by the Laizhou Environmental Monitoring Station and identification by the Laizhou Environmental Protection Bureau, the PH value of the waste acid liquid was less than 2. According to the National Hazardous Waste List and the Identification Standards and Identification Methods for Hazardous Waste, it belongs to the hazardous waste with the waste category of “HW34 waste acid with the code 900-300-34”. On June 1, 2016, the defendant Ma Qunkai was sentenced to one year and six months of imprisonment with a two-year reprieve and fined RMB 20,000 (the fine has been paid) for the crime of polluting the environment; the defendant Wang Zhendian was sentenced to one year and two months of imprisonment with a two-year reprieve and fined RMB 20,000 (the fine has been paid) for the crime of polluting the environment.

In the case of Wang Zhendian's crime of polluting the environment handled by the Laizhou Public Security Bureau, the "On-site Survey and Inspection Work Record" of the Food and Drug Environmental Investigation Brigade of the Laizhou Public Security Bureau records that "the central site is located in an abandoned workshop on the north side of the Xiaoshui Sand Court. Inside the workshop, there are two reaction pools arranged in the north-south direction on the west side, 20m long, 6m wide, and 1.5m average depth, with slopes at the bottom. On the north side of the workshop, there is a passage with three cement pools 15m long, 2.6m wide, and 2m deep." Currently, the waste acid liquid in the north pool on the west side of the workshop has been backfilled with sand, and the total weight of the contaminated sand is 223 tons.

On November 27, 2015, the Food, Drug, and Environmental Crime Investigation Brigade of the Laizhou Public Security Bureau commissioned the Environmental Risk and Pollution Damage Assessment Center of the Shandong Provincial Academy of Environmental Science and Design to conduct an assessment of the degree and amount of environmental damage caused by the Wang Zhendian and Ma Qunkai pollution environment case in Laizhou. The institution issued an environmental damage inspection report on the Wang Zhendian and Ma Qunkai pollution environment case in Laizhou in February 2016, determining that: the quantifiable environmental damage in this assessment is the emergency disposal cost and the ecological environment damage cost. The emergency disposal cost is 56,000 yuan for the disposal of contaminated sand in the acid washing pool, and the ecological environment damage cost is 720,000 yuan for the ecological damage restoration cost caused by the unauthorized discharge of acid washing wastewater, totaling 776,000 yuan.

On April 6, 2016, the Laizhou People's Procuratorate issued the Laizhou Procuratorial Civil (Administrative) Administrative Supervision [2016] No. 37068300001 Procuratorial Recommendation to the Laizhou Environmental Protection Bureau, "recommending a comprehensive investigation of the sewage discharge of other enterprises and small workshops in the Xiaoshui River basin to see if there are still any behaviors of discharging pollutants into the Xiaoshui River basin." The Laizhou Environmental Protection Bureau replied on May 3 of the same year, "After receiving the Procuratorial Recommendation from the Laizhou People's Procuratorate, our bureau immediately organized law enforcement personnel to conduct a comprehensive investigation of the sewage discharge of enterprises and small workshops in the Xiaoshui River basin. After strict law enforcement, no environmental violations such as the discharge of waste acid and other hazardous wastes into the Xiaoshui River basin were found."

On February 8, 2017, the Yantai Intermediate People's Court of Shandong Province, together with the public interest litigant and Wang Zhendian, Ma Qunkai, Yantai Environmental Protection Bureau, Laizhou Environmental Protection Bureau, and Xiaoshuizhuang Village Committee, conducted an on-site survey and sampling of the pollution area caused by the infringement of Wang Zhendian and Ma Qunkai, including the sand in the acid washing pool and the groundwater in some residents' wells in the surrounding residential area, and took 22 photos of the evidence collection site. The environmental protection department submitted to the People's Court the water quality monitoring compliance report on February 13, 2017 (the water quality monitoring results of all 8 monitoring points were up to standard) and the solid waste test report of the acid washing pool issued by Shandong Hengcheng Testing Technology Co., Ltd. on February 14, 2017 (South pool of acid washing reaction -40㎝ PH value=9.02, -70㎝ PH value=9.18, North pool -40㎝ PH value=2.85, -70㎝ PH value=2.52). The public interest litigant submitted to the People's Court the test report of the waste pool of Wang Zhendian's acid washing pool entrusted by the Laizhou Environmental Protection Bureau to Shandong Hengcheng Testing Technology Co., Ltd. on March 3, 2017, stating: South pool of reaction pool -1.2m PH value=9.7, North pool -1.2m PH value＜2. The public interest litigant believes that the "Identification Standard for Hazardous Waste Leaching Toxicity Identification GB5085.3-2007" and the "Technical Specification for Soil Environmental Monitoring" (HJ/t166-2004) stipulate that PH value≥12.5 or ≤2.0 is corrosive hazardous waste. The National Hazardous Waste List (2016 Edition) HW34 waste acid item 900-300-34 is "waste acid liquid generated by cleaning with acid"; HW49 other waste item 900-041-49 is "waste packaging, containers, and filter adsorption media containing or contaminated with toxic and infectious hazardous waste". The contaminated sand in the acid washing pool involved in the case belongs to hazardous waste, and the total amount of contaminated sand in the acid washing pool should be disposed of as hazardous waste.

Expert opinions from the consultation report submitted by Liu Weijin, a senior engineer of hydrogeology and environmental protection at the Shandong Provincial Geological Environment Monitoring Station, on the evolution of groundwater pollution, state: 1. The pollution development process of the groundwater environment. 1. Pollutants enter the saturated zone through surface infiltration (the stratum above the groundwater level of the phreatic aquifer to the surface), and enter the aquifer through leakage to the groundwater level. 2. After entering the aquifer, it initially diffuses around under the action of water head pressure to form a circular pollution area extending along the groundwater flow direction. 3. When pollutants continue to infiltrate, under the action of groundwater hydrodynamics, the pollutants diffuse downstream with the groundwater runoff, generally expanding downstream in a fan shape or ellipse from the initial pollution area as the starting point. 4. As the pollution area formed by groundwater runoff continues to expand, the pollution area continues to expand, and the concentration of pollutants continues to increase, causing pollution to the groundwater environment. If the pollution source is not cut off, the pollution area will continue to expand along the groundwater runoff direction. 2. The evolution process of the pollution area and the evolution process of groundwater pollution are closely related to factors such as the persistence of pollution, the permeability of the vadose zone, the permeability of the aquifer, the adsorption of soil and aquifer rock and soil, and groundwater runoff conditions. 1. Long-term pollution evolution process. In the process of pollutants entering the surface and seeping downward through the saturated zone, some are adsorbed by the rock and soil in the saturated zone, polluting the rock and soil layer in the vadose zone; the concentration of pollutants initially entering the aquifer is low. When the concentration of pollutants entering the aquifer gradually approaches or reaches the concentration of sewage after a period of leakage and adsorption to saturation. In the process of entering the aquifer and expanding downstream, it will gradually decrease through groundwater dilution and aquifer adsorption. After reaching saturation, as pollutants continue to be injected, a pollution area reaching a certain concentration will continue to expand downstream, and the pollution area will continue to expand. 2. Short-term pollution evolution process. Short-term pollution refers to the change process of pollutants and pollution areas that have entered the groundwater environment after sewage enters the groundwater environment for a certain period of time and the pollution source is eliminated. ① The evolution process of pollutants. In the case of eliminating the pollution source and blocking the entry of pollutants into the groundwater environment, the groundwater concentration in the polluted water area will gradually decrease and the water quality will gradually improve with the dilution of the upstream groundwater runoff and the groundwater in the expanded area of the pollution area, as well as the adsorption of the aquifer rock and soil. ② Changes in the pollution area. After the pollution source is eliminated and sewage is prevented from entering the aquifer, the groundwater pollution area will gradually move and expand downstream under the action of groundwater runoff hydrodynamics over time. As the pollution area expands and the adsorption of rock and soil is strengthened, the groundwater quality in the aquifer will gradually improve. After a certain period of time, the pollutants will be adsorbed in the rock and soil layer and diluted in the groundwater, improving the groundwater environment in the pollution area, and finally making the original pollution area meet the relevant water quality requirements.

Judgment Result

The Yantai Intermediate People's Court of Shandong Province made a civil judgment ([2017] Lu 06 Min Chu No. 8) on May 31, 2017: 1. The defendants Wang Zhendian and Ma Qunkai shall dispose of 223 tons of contaminated sand and soil in the pickling tank in accordance with the disposal requirements for hazardous waste under the supervision of the Yantai Environmental Protection Bureau within 30 days from the date of this judgment taking effect to eliminate the danger; if they cannot dispose of it by themselves, the environmental protection authority shall entrust a third party to dispose of it, and the defendants Wang Zhendian and Ma Qunkai shall compensate the disposal cost of pickling hazardous waste of 56,000 yuan and pay it to the Yantai Environmental Public Interest Litigation Fund account. 2. The defendants Wang Zhendian and Ma Qunkai shall formulate and implement a restoration plan for the pollution treatment of groundwater, soil and water in the Xiaoshui River around the workshop on the north side of the sand field compound in Xiaoshuizhuang Village, Zhaicun Town, Laizhou City within 90 days from the date of this judgment taking effect. If they fail to fulfill the restoration obligation or the restoration fails to meet the standards for protecting the ecological environment and social public interests, they shall compensate the ecological damage restoration cost of 720,000 yuan caused by their illegal discharge of pickling wastewater and pay it to the Yantai Environmental Public Interest Litigation Fund account. After the judgment was pronounced, neither party filed an appeal, and the judgment has become legally effective.

Reasons for the Judgment

The court's effective judgment holds that:

1. On the issue of determining the tort liability of Wang Zhendian and Ma Qunkai

(1) On the issue of determining the quantity of hazardous waste involved and the disposal cost

During the trial, the test report issued by Shandong Hengcheng Testing Technology Co., Ltd. pointed out that the pH values of the pickling reaction south pool -40cm, -70cm and -1.2m depths were all within the normal range; the pH value of the north pool -1.2m < 2 belongs to hazardous waste. The north pool of the pickling tank involved was originally used by Wang Zhendian and Ma Qunkai to clean feldspar particles with hydrochloric acid to produce waste acid liquid, and then they filled it with sand and soil. According to the National Hazardous Waste List (2016 Edition) HW34 waste acid 900-300-34 and HW49 other waste item 900-041-49 regulations, the sand and soil filled in the entire pool now adsorbs the waste acid liquid in the pool and becomes hazardous waste containing or contaminated with corrosive toxicity. The Environmental Damage Inspection Report issued by the Environmental Risk and Pollution Damage Assessment Center of Shandong Provincial Academy of Environmental Science and Design takes the total amount of 223 tons of contaminated sand and soil in the north pool of the pickling tank as the amount of hazardous waste, referring to the unit treatment cost of the cleaning method of "land resources referring to unit restoration and treatment cost" given in the Recommended Method for Calculating the Amount of Environmental Pollution Damage, which is 250-800 yuan/ton. In this case, the value of 250 yuan/ton is taken to calculate the disposal cost of 56,000 yuan, which has factual and legal basis and is appropriate and should be adopted. (The specific calculation method is: 20m×6m×average depth 1.3m×density 1.3t/m3=203t sand and soil+20t waste acid=223t×250 yuan/t=56,000 yuan)

(2) On the issue of determining the ecological damage restoration cost of soil, surface water and groundwater pollution involved

The monitoring report of Laizhou Environmental Monitoring Station shows that the PH value of the residual wastewater in the wastewater pool is < 2, which belongs to strong acidic wastewater. The pickling wastewater discharged by Wang Zhendian and Ma Qunkai through the wastewater pool and drainage ditch is hazardous waste and also a toxic substance that pollutes the environment, causing the color of the water wells in some residents' homes to turn yellow and the taste to be pungent, making it impossible to drink. Monitoring found that the PH value of the well water in some residents' homes was lower than the background value, and the chloride and total hardness were much higher than the background value and significantly exceeded the standard. The wastewater leaked during storage in the wastewater pool permeated into the surrounding soil and groundwater, and the wastewater discharged into the ditch flowed into the Xiaoshui River. There are no other similar pollution sources around the pollution area involved, and it can be determined that the polluted groundwater is yellow, has a pungent odor, and has a high concentration of chloride, that is, caused by the environmental pollution behavior implemented by Wang Zhendian and Ma Qunkai.

The water quality monitoring report on February 13, 2017, showed that the water quality monitoring results of some monitoring points within the original water quality monitoring range met the standards. According to the opinions issued by geological environment monitoring experts, it is known that in the case of eliminating pollution sources and blocking pollutants from entering the groundwater environment, with the upstream groundwater runoff and the groundwater dilution in the expanded area of the pollution area and the adsorption of aquifer soil, the groundwater concentration in the polluted water area will gradually decrease, and the water quality will gradually improve. The groundwater pollution area will gradually move downstream and expand under the action of groundwater runoff dynamics over time. After a certain period of time, the original polluted area may meet the relevant water quality requirements, but this does not mean that the regional ecological environment has improved or been restored. Wang Zhendian and Ma Qunkai should still bear the responsibility for the environmental and ecological damage restoration of their polluted areas. In the event that the defendant cannot repair it by himself, according to the "Recommended Method for Calculating the Amount of Environmental Pollution Damage" and the "Recommended Method for Environmental Damage Assessment in the Emergency Response Stage of Sudden Environmental Incidents", the virtual treatment cost method is used to estimate the ecological damage restoration cost caused by Wang Zhendian and Ma Qunkai's illegal discharge of waste water. Virtual treatment cost refers to the cost that industrial enterprises or sewage treatment plants should spend to treat the same amount of pollutants discharged into the environment, that is, the product of pollutant discharge and virtual treatment cost per unit of pollutant. The virtual treatment cost per unit of pollutant refers to the average cost of pollutant treatment per unit of pollutant in industrial enterprises or sewage treatment plants at the site of a sudden environmental incident. When quantifying ecological and environmental damage, the amount of environmental damage can be multiplied by a multiple of 1.5-10 according to the environmental function sensitivity of the polluted area as the upper and lower limits of the amount of environmental damage. In this case, the environmental damage inspection report issued by the Environmental Risk and Pollution Damage Assessment Center of Shandong Provincial Academy of Environmental Science and Design takes 6 times the virtual treatment cost for the ecological damage restoration cost of soil, Class III groundwater and Class V surface water of Xiaoshui River in the polluted area. According to the amount of 60 tons of pickling waste water illegally discharged as determined in the effective Laizhou People's Court (2016) Lu 0683 Criminal Initial No. 136 criminal judgment, the ecological damage restoration cost caused is 720,000 yuan, that is, the unit virtual treatment cost of 2,000 yuan/t×60t×6 times=720,000 yuan has factual and legal basis and is not inappropriate.

2. Issues Concerning Tort Liability

Article 65 of the "Tort Liability Law of the People's Republic of China" stipulates that "If damage is caused by environmental pollution, the polluter shall bear tort liability." Article 66 stipulates that "In the event of a dispute arising from environmental pollution, the polluter shall bear the burden of proof that the circumstances under which the law does not assume or mitigate liability and that there is no causal relationship between its behavior and the damage." The (2016) Lu 0683 Criminal Initial No. 136 criminal judgment made by the People's Court of Laizhou City, Shandong Province, determined that there was a causal relationship between the environmental pollution behavior implemented by Wang Zhendian and Ma Qunkai and the resulting environmental pollution damage consequences. Wang Zhendian and Ma Qunkai have no objection to this and it has already taken legal effect. According to Article 64 of the "Environmental Protection Law of the People's Republic of China", Article 8, Article 65, Article 66 of the "Tort Liability Law of the People's Republic of China", and Article 14 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in Adjudicating Cases of Environmental Tort Liability Disputes", Wang Zhendian and Ma Qunkai shall bear tort liability for their acts of polluting the environment and causing damage to the public interest.

(Effective Judgment Judges: Qu Zhentao, Lu Xiaohui, Sun Bo)

Guiding Case No. 134

Chongqing Green Volunteer Association v. Enshi Autonomous Prefecture Jianshi Huangchangping Mining Co., Ltd. Water Pollution Liability Civil Public Interest Litigation Case

(Discussed and approved by the Adjudication Committee of the Supreme People's Court, issued on December 26, 2019)

Keyword   Civil/Environmental Civil Public Interest Litigation/Cessation of Infringement/Resumption of Production/Conditional/Environmental Impact Assessment

Key points of judgment

In environmental civil public interest litigation, where the people's court orders the polluter to stop the infringement, it may order it to re-conduct an environmental impact assessment, and the polluter shall not resume production until the environmental impact assessment document has been examined and approved and the supporting environmental protection facilities have been accepted.

Relevant legal provisions

1. Article 24, Paragraph 1 of the "Environmental Impact Assessment Law of the People's Republic of China"

2. Article 17, Paragraph 3 of the "Water Pollution Prevention and Control Law of the People's Republic of China"

Basic Case Information

The plaintiff, Chongqing Green Volunteer Association (hereinafter referred to as Chongqing Green Association), filed an environmental civil public interest lawsuit against the defendant, Enshi Autonomous Prefecture Jianshi Huangchangping Mining Co., Ltd. (hereinafter referred to as Jianshi Huangchangping Mining Company), requesting the court to order the defendant to stop the infringement and assume responsibility for ecological environment restoration. The Second Branch of the Chongqing Municipal People's Procuratorate supported the prosecution.

The court found that the Qianzhangyan Reservoir is located in the border area of Wushan County and Fengjie County in Chongqing and Jianshi County in Hubei Province. The reservoir has a designed storage capacity of 4.05 million cubic meters. It started construction in 2008 and was confirmed by the Chongqing Municipal People's Government on December 6, 2013 as a centralized drinking water source protection area, supplying domestic drinking and production water for more than 50,000 people in the surrounding area. Jianshi County, Hubei Province, is adjacent to Wushan County, Chongqing. The concentrator of the defendant Jianshi Huangchangping Mining Company is located in Guojiatang State-owned Gaoyanzi Forest Farm, Yezhou Town, Jianshi County, about 2.6 kilometers away from the Qianzhangyan Reservoir in Wushan County. The area is a mountainous area with karst landforms, with underground fissures and many underground rivers. Jianshi Huangchangping Mining Company compiled a feasibility study report for the pyrite beneficiation project in 2009, and obtained approval from the Development and Reform Commission of Enshi Tujia and Miao Autonomous Prefecture on April 23, 2010. Environmental impact assessment work was carried out in July 2010, and the environmental impact assessment approval was obtained from the Environmental Protection Bureau of Enshi Tujia and Miao Autonomous Prefecture on May 16, 2011. Construction started in 2012 and was basically completed in June 2014, but water pollution prevention facilities were not built. The Jianshi Huangchangping Mining Company's concentrator pyrite production has waste water and tailings discharge, which belongs to the construction project that discharges pollutants. The feasibility study report of the project clearly pointed out that the tailings dam area is a karst depression formed naturally, and the karst in the dam area is manifested as karst fissures and caves. At the same time, the safety pre-evaluation report of the tailings dam project stated: "It is recommended that the evaluation report make the following revisions and supplements: 1. Evaluate the leakage of the dam area by unit and propose countermeasures; 2. Supplementally evaluate the flood discharge and drainage problems that may exist after the tailings dam is put into operation." However, Jianshi Huangchangping Mining Company did not actually fulfill the revision and supplementary measures.

On August 10, 2014, Jianshi Huangchangping Mining Company's concentrator used about 500 tons of pyrite ore, ethyl sodium xanthate, and No. 2 oil for illegal production. The waste water and tailings generated were discharged into the nearby natural depression with karst funnel development without treatment. On August 12, 2014, villagers in Hongchun Township, Wushan County, reported that the water quality of the drinking water source intake of Qianzhangyan Reservoir was abnormal, and Wushan County launched an emergency plan for major environmental emergencies. Emergency monitoring results showed that the polluted water body was free of heavy metal toxicity, but had organic toxicity. COD (chemical oxygen demand) and Fe (iron) exceeded the standard by 0.25 times and 30.3 times respectively, and suspended solids were as high as 260mg/L. Relevant departments in Chongqing sealed the polluted water in the reservoir and implemented emergency measures such as drug purification of the polluted water.

After the Qianzhangyan Reservoir water pollution incident, the Ministry of Environmental Protection clarified that the incident constituted a major environmental emergency. The Environmental Risk and Damage Assessment Research Center of the Chinese Research Academy of Environmental Planning made the 'Environmental Damage Assessment Report on the Sudden Environmental Incident in Qianzhangyan Reservoir, Hongchun Township, Wushan County, Chongqing'. The report assesses the pollutants of this environmental pollution, the direct economic losses caused by the sudden environmental incident, and the evaluation of the impact of this pollution on the ecological environment of the reservoir. It also determined that the incident did not have a long-term adverse impact on the aquatic ecological environment of the reservoir, no follow-up ecological environment restoration is required, and no further medium and long-term damage assessment is required. On September 4, 2014, the Hubei Provincial Department of Environmental Protection made an administrative penalty decision, determining that the pyrite beneficiation project of Huangchangping Mining Company had not completed the construction of water pollution prevention and control facilities, and put it into production without authorization, illegally discharging and dumping the waste water and tailings generated from production into the depression below the plant, causing waste water and waste residue to seep through the cracks at the bottom of the depression, resulting in water pollution in the Qianzhangyan Reservoir. It ordered to stop production until the acceptance is qualified, ordered to take treatment measures to eliminate pollution within a time limit, and imposed a fine of 1,000,000 yuan. After the administrative penalty decision was made, JianShi Huangchangping Mining Company only paid a fine of 1,000,000 yuan, but did not take effective treatment measures to eliminate pollution.

On April 26, 2015, the court, upon the plaintiff's application, entrusted Beijing Normal University to identify the ecological restoration and its costs of the Qianzhangyan environmental pollution incident. Beijing Normal University identified that: 1. JianShi Huangchangping Mining Company is the only source of pollution for the ecological and environmental damage of Qianzhangyan Reservoir, the responsible subject is clear, and the causal relationship of environmental damage is clear. 2. The conclusion of the 'Environmental Damage Assessment Report on the Sudden Environmental Incident in Qianzhangyan Reservoir, Hongchun Township, Wushan County, Chongqing' that the ecological environment of the reservoir has not caused long-term adverse effects, no follow-up ecological environment restoration is required, and no medium and long-term damage assessment is required is recognized. 3. The ecological and environmental damage assessment of the polluted soil is determined that: After 9 months, the ethyl sodium xanthate in the soil in the incident area has been degraded, and it will not cause damage to the local ecological environment again, but the Fe pollutants in the depression soil have not been naturally degraded, exceeding the local ecological baseline, and cannot be naturally restored in the short term, which will bring potential pollution risks to the Qianzhangyan Reservoir and the surrounding ecological environment, and ecological restoration needs to be carried out by artificial intervention. According to the 'Recommended Methods for Environmental Damage Assessment in the Emergency Response Stage of Sudden Environmental Incidents' [Huan Ban (2014) No. 118], the virtual treatment cost method is used to calculate the ecological restoration cost of the depression soil, which is about 991,000 yuan. 4. It is recommended to further formulate a detailed ecological restoration plan, carry out the restoration of ecological and environmental damage in the accident area, and do a good job in post-supervision to ensure the drinking water safety and surrounding ecological environment safety of Qianzhangyan Reservoir. During the trial of the case, Chongqing Green Association applied to notify the appraiser to appear in court to accept inquiries and put forward opinions on ecological restoration. The appraiser, Professor Wang Jinsheng, believes that the soil element itself is not a control index. In terms of drinking water safety, Fe in the depression soil is higher than the drinking water safety standard; the defendant JianShi Huangchangping Mining Company's concentrator is located in a place with many underground dark rivers and heavy rainfall, and the risk of polluting drinking water is high.

Judgment Result

The People's Court of Wanzhou District, Chongqing City, made a civil judgment No. (2014) Wan Fa Huan Gong Chu Zi 00001 on January 14, 2016: 1. Enshi Autonomous Prefecture JianShi Huangchangping Mining Co., Ltd. shall immediately stop the infringement of the drinking water source of Qianzhangyan Reservoir in Wushan County, re-conduct an environmental impact assessment, and shall not produce without approval and acceptance of environmental protection facilities; 2. Enshi Autonomous Prefecture JianShi Huangchangping Mining Co., Ltd. shall formulate an ecological restoration plan for the depression soil of the concentrator of Guojiatang State-owned Gaoyanzi Forest Farm in Yezhou Town, Jianshi County, Enshi Autonomous Prefecture within 180 days after the judgment takes effect. If it fails to perform the restoration obligation or the restoration is unqualified, Enshi Autonomous Prefecture JianShi Huangchangping Mining Co., Ltd. shall bear the restoration cost of 991,000 yuan and pay it to the designated account; 3. Enshi Autonomous Prefecture JianShi Huangchangping Mining Co., Ltd. shall apologize for its behavior of polluting the ecological environment and harming the public interest in the national media; 4. Enshi Autonomous Prefecture JianShi Huangchangping Mining Co., Ltd. shall pay Chongqing Green Volunteer Association a total of 150,000 yuan for reasonable expenses and attorney fees incurred for the litigation of this case; 5. Reject other litigation requests of Chongqing Green Volunteer Association. After the first instance judgment, Enshi Autonomous Prefecture JianShi Huangchangping Mining Co., Ltd. refused to accept the appeal and filed an appeal. The Second Intermediate People's Court of Chongqing Municipality made a civil judgment No. (2016) Yu 02 Min Zhong 77 on September 13, 2016: rejected the appeal and upheld the original judgment.

Reasons for the Judgment

The effective judgment of the court believes that one of the focus issues in this case is whether it is necessary to order to stop the infringement and re-make an environmental impact assessment.

Environmental torts often have irreversible effects on environmental pollution and damage to ecological resources. The polluted environment and damaged ecological resources are often difficult to restore. Simple economic compensation after the fact is not enough to compensate for the losses caused to the ecological environment. Therefore, environmental torts should focus on prevention in order to truly achieve the purpose of environmental protection. In this case, JianShi Huangchangping Mining Company only temporarily stopped the production behavior, and its illegal circumstances such as the serious lag of the 'three simultaneous' work and the failure to complete the construction of environmental protection facilities have not been actually eliminated, and illegal production may be resumed at any time. Due to the previous pollution behavior of JianShi Huangchangping Mining Company, some ecological indicators in the soil in the relevant area exceeded the ecological baseline. Because the local rainfall is large and it is located in a karst landform mountain area, there are many cracks and caves, and dark rivers are vertical and horizontal, and the dark river water source is the water source of Qianzhangyan Reservoir, the risk of pollution is obvious. Considering that the illegal circumstances of JianShi Huangchangping Mining Company have not been eliminated and the geological and geographical conditions of the project area are complex and special, it should be prohibited from resuming production under the premise that it cannot be ensured that resuming production will not cause environmental pollution again, so as to effectively avoid the local ecological environment from being polluted and damaged again, and also avoid the risk of having to file another lawsuit after discovering that JianShi Huangchangping Mining Company has resumed illegal production, reduce the burden of litigation on the parties and save judicial resources. Therefore, although JianShi Huangchangping Mining Company has stopped production before the lawsuit, it should still be ordered to stop the infringement of the drinking water source of Qianzhangyan Reservoir.

In addition, the Qianzhangyan Reservoir began construction in 2008, while the environmental impact assessment of the Jianshi Huangchangping Mining Company project was carried out in July 2010 and only obtained approval from the local environmental administrative department on May 16, 2011. Article 23 of the "Environmental Impact Assessment Law of the People's Republic of China" stipulates that "If a construction project may cause adverse environmental impacts across administrative regions, and the relevant environmental protection administrative departments have disputes over the environmental impact assessment conclusions of the project, the environmental impact assessment documents shall be approved by the common higher-level environmental protection administrative department." Considering the nature of the project, the relative location to the reservoir, and the special local geological and geographical conditions, the impact on the Qianzhangyan Reservoir should have been emphasized in the environmental impact assessment of the project at that time. However, because the two are located in different provincial administrative regions, the environmental impact assessment at that time did not involve the Qianzhangyan Reservoir, indicating that the environmental impact assessment was incomplete and had obvious shortcomings. Due to the addition of the Qianzhangyan Reservoir as a key environmental protection target that needs to be considered, the original environmental impact assessment basis has changed. In the reality of a major environmental emergency that has already occurred, the measures for preventing pollution and ecological damage in the project involved obviously also need to be significantly changed. According to Article 24, Paragraph 1 of the "Environmental Impact Assessment Law of the People's Republic of China", "If major changes occur in the nature, scale, location, production process, or measures for preventing pollution and ecological damage of a construction project after the environmental impact assessment document of the construction project is approved, the construction unit shall re-submit the environmental impact assessment document of the construction project for approval" and Article 17, Paragraph 3 of the "Law of the People's Republic of China on the Prevention and Control of Water Pollution", "Water pollution prevention facilities for construction projects shall be designed, constructed, and put into use simultaneously with the main project. Water pollution prevention facilities shall be inspected and accepted by the environmental protection department. If the acceptance is unqualified, the construction project shall not be put into production or use." Given the importance of the Qianzhangyan Reservoir, the environmental sensitivity of being a primary drinking water source protection area, and the huge potential pollution risk of the project involved to the reservoir, in the case where it should have been included in the environmental impact assessment of the construction project as a key environmental protection target but was not included and has objectively caused a major environmental emergency, considering that the original environmental impact assessment basis has changed, for the protection of key environmental protection targets and the maintenance of public interests, Jianshi Huangchangping Mining Company should re-conduct the environmental impact assessment of the project and perform statutory approval procedures based on considering the environmental impact on the Qianzhangyan Reservoir, and shall not produce without approval and acceptance of environmental protection facilities.

(Adjudicators of the effective judgment: Wang Jianbo, Yang Chao, Shen Ping)

Guiding Case No. 135

Xuzhou Municipal People's Procuratorate of Jiangsu Province v. Su Zhou Qi'an Arts & Crafts Co., Ltd. Environmental Civil Public Interest Litigation Case

(Discussed and approved by the Adjudication Committee of the Supreme People's Court, issued on December 26, 2019)

Keyword   Civil/Environmental Civil Public Interest Litigation/Environmental Information/Adverse Inference

Key points of judgment

In environmental civil public interest litigation, where the plaintiff has evidence to prove that the defendant generated hazardous waste and implemented pollutant disposal activities, and the defendant refuses to provide environmental information such as the disposal of pollutants, resulting in the inability to ascertain the whereabouts of the pollutants, the people's court may presume that the environmental pollution facts claimed by the plaintiff are established.

Relevant legal provisions

Articles 55, 57, and 59 of the "Law of the People's Republic of China on the Prevention and Control of Environmental Pollution by Solid Waste"

Basic Case Information

In May and June 2015, Suzhou Qi'an Arts & Crafts Co., Ltd. (hereinafter referred to as Qi'an Company) handed over 83 barrels of waste sulfuric acid generated from its industrial production activities to Huang Kefeng for disposal at a price ranging from 1,300 to 3,600 yuan per barrel. Huang Kefeng transported the above-mentioned waste sulfuric acid to a yard he rented in Suzhou City, and then entrusted He Chuanyi to dispose of it at a price of 2,000 yuan per barrel. He Chuanyi then entrusted Wang Keyi to dispose of it at a price of 1,000 yuan per barrel. Wang Keyi randomly contacted owners or drivers of trucks with license plates from other places at the roadside of the logistics park, and transported the above-mentioned 83 barrels of waste sulfuric acid directly from Huang Kefeng's storage place in multiple batches, asking them to take them out of Suzhou and dispose of them at will, spending a total of 43,000 yuan in transportation fees. Among them, Wei Yidong transported 15 barrels of waste sulfuric acid from Suzhou to the Peixian Economic Development Zone, dumped 3 barrels in farmland, and the remaining 12 barrels were discarded at a construction site. In addition to the above 15 barrels, Wang Keyi could not explain the whereabouts of the remaining 68 barrels of waste sulfuric acid. In December 2015, the Peixian environmental protection department discovered 12 barrels of waste sulfuric acid during an inspection. After identification, it was determined that the waste sulfuric acid was hazardous waste. In October 2016, Qi'an Company legally disposed of 12 barrels of waste sulfuric acid, paying a fee of 116,740.08 yuan.

On August 2, 2017, the Peixian People's Procuratorate of Jiangsu Province filed a public prosecution against Qi'an Company, Jiang Xiaoming, Huang Kefeng, He Chuanyi, Wang Keyi, Wei Yidong, etc., to the Xuzhou Railway Transportation Court. After the second instance trial by the Xuzhou Intermediate People's Court of Jiangsu Province, the final judgment found Qi'an Company, Jiang Xiaoming, Huang Kefeng, He Chuanyi, Wang Keyi, Wei Yidong, etc., guilty of the crime of polluting the environment.

After discovering the above-mentioned acts of destroying the ecological environment in the performance of its duties, the Xuzhou Municipal People's Procuratorate of Jiangsu Province legally announced the relevant circumstances of preparing to file a lawsuit in this case. During the announcement period, no organs or relevant organizations stipulated by law filed a lawsuit. In May 2018, the Xuzhou Municipal People's Procuratorate of Jiangsu Province filed a lawsuit in this case with the Xuzhou Intermediate People's Court of Jiangsu Province, requesting the court to order Qi'an Company, Huang Kefeng, He Chuanyi, Wang Keyi, and Wei Yidong to jointly and severally compensate for the ecological environment restoration costs caused by dumping 3 barrels of waste sulfuric acid and illegally disposing of 68 barrels of waste sulfuric acid, and to pay the expert assistant consultation fees and announcement fees paid by it for this case, and to require the five defendants to jointly make a public apology in the provincial media.

Judgment Result

The Xuzhou Intermediate People's Court of Jiangsu Province made a civil judgment No. (2018) Su03 Minchu 256 on September 28, 2018: 1. Suzhou Qi'an Arts & Crafts Co., Ltd., Huang Kefeng, He Chuanyi, Wang Keyi, and Wei Yidong shall jointly and severally compensate for the ecological environment restoration costs of 204,415 yuan incurred due to the dumping of 3 barrels of waste sulfuric acid within thirty days after the judgment takes effect, and pay it to the special fund account for environmental protection public welfare funds in Xuzhou City; 2. Suzhou Qi'an Arts & Crafts Co., Ltd., Huang Kefeng, He Chuanyi, and Wang Keyi shall jointly and severally compensate for the ecological environment restoration costs of 4,630,852 yuan incurred due to the illegal disposal of 68 barrels of waste sulfuric acid within thirty days after the judgment takes effect, and pay it to the special fund account for environmental protection public welfare funds in Xuzhou City; 3. Suzhou Qi'an Arts & Crafts Co., Ltd., Huang Kefeng, He Chuanyi, Wang Keyi, and Wei Yidong shall jointly and severally pay the reasonable expenses of 3,800 yuan paid by the Xuzhou Municipal People's Procuratorate of Jiangsu Province for this case within thirty days after the judgment takes effect; 4. Suzhou Qi'an Arts & Crafts Co., Ltd., Huang Kefeng, He Chuanyi, Wang Keyi, and Wei Yidong shall jointly make a public apology in the provincial media for the illegal disposal of waste sulfuric acid within thirty days after the judgment takes effect. After the first instance judgment was pronounced, all parties did not appeal, and the judgment has become legally effective.

Reasons for the Judgment

The court's effective judgment holds that:

1. Regarding the ecological environment damage caused by dumping 3 barrels of waste sulfuric acid in the Peixian Economic Development Zone, whether the five defendants should bear joint and several liability for compensation and how to determine the amount of compensation

Article 55 of the "Law of the People's Republic of China on the Prevention and Control of Environmental Pollution by Solid Waste" (hereinafter referred to as the Solid Waste Law) stipulates: "Units that generate hazardous waste must dispose of hazardous waste in accordance with relevant national regulations and must not dump or pile it up without authorization." Article 57 stipulates: "Units engaged in the collection, storage, and disposal of hazardous waste must apply to the environmental protection administrative department of the people's government at or above the county level for an operating license... It is forbidden to engage in the business activities of collecting, storing, using, and disposing of hazardous waste without an operating license or in violation of the provisions of the operating license." In this case, Qi'an Company knew that Huang Kefeng did not have a hazardous waste business license, but still handed over the hazardous waste sulfuric acid waste liquid to him for disposal; Huang Kefeng, He Chuanyi, Wang Keyi, and Wei Yidong knew that they did not have a hazardous waste business license, but still received Qi'an Company's sulfuric acid waste liquid and illegally disposed of it. Qi'an Company, Huang Kefeng, He Chuanyi, Wang Keyi, and Wei Yidong each carried out illegal activities, obtaining illegal profits at each level, which ultimately led to the illegal disposal of hazardous waste. They should bear the liability for compensation for the ecological and environmental damage caused thereby. The actions of the five defendants are all necessary conditions for the damage to the ecological environment, constitute joint infringement, and should bear joint and several liability within the scope of the amount of hazardous waste they each participated in the illegal disposal of.

In this case, the fact that the dumping of 3 barrels of sulfuric acid waste liquid polluted the soil is objectively present, but the pollution has occurred for more than three years, and the dumping site has been used for industrial construction, and it is currently impossible to completely restore the damaged soil. According to the "Recommended Methods for Assessment of Environmental Damage (Version II)" and the former Ministry of Environmental Protection's "Explanation on the Applicable Scenarios and Calculation Methods of the Virtual Governance Cost Method" (hereinafter referred to as the "Virtual Governance Cost Method Explanation"), the ecological and environmental restoration costs incurred by dumping 3 barrels of sulfuric acid waste liquid can be determined by applying the "Virtual Governance Cost Method", and its calculation formula is: pollutant discharge × unit pollutant treatment cost × environmental sensitivity coefficient. The opinion put forward by the technical expert entrusted by the public interest litigation plaintiff that the ecological and environmental restoration cost caused by dumping 3 barrels of sulfuric acid waste liquid is 204415 yuan (4.28×6822.92×7) is well-founded and should be adopted. This ecological and environmental damage was caused by the joint illegal acts of the five defendants, Qi'an Company, Huang Kefeng, He Chuanyi, Wang Keyi, and Wei Yidong, and the five defendants should be jointly and severally liable for the compensation of 204415 yuan.

2. Whether the five defendants should bear the liability for ecological and environmental damage compensation for the remaining 68 barrels of sulfuric acid waste liquid, and how to determine the amount of compensation

According to laws and regulations such as the Solid Waste Law, China implements a hazardous waste transfer manifest system, declaring and registering the flow and disposal of hazardous waste, etc., which is the statutory obligation of the hazardous waste generating unit; truthfully recording the source, destination, and disposal of hazardous waste, etc., is the statutory obligation of the hazardous waste operating unit; units and individuals that generate, collect, store, transport, use, and dispose of hazardous waste should all set up hazardous waste identification signs, and all have the statutory obligation to take measures to prevent hazardous waste from polluting the environment. In this case, Qi'an Company failed to fulfill the obligation of declaration and registration of sulfuric acid waste liquid, and failed to apply for a hazardous waste transfer manifest in accordance with the law. The three defendants, Huang Kefeng, He Chuanyi, and Wang Keyi, illegally engaged in hazardous waste business activities and did not record the flow and disposal of sulfuric acid waste liquid. The four defendants, Qi'an Company, Huang Kefeng, He Chuanyi, and Wang Keyi, evaded state supervision and illegally transferred hazardous waste, failed to explain the disposal of 68 barrels of sulfuric acid waste liquid, and did not take measures to prevent sulfuric acid waste liquid from polluting the environment, and all 68 barrels of sulfuric acid waste liquid were not provided with hazardous waste identification signs, and the containers were left with water outlets, even if they were discarded as a whole after being transported out of Suzhou, there is a great risk of liquid outflow polluting the environment and even endangering personal and property safety. Therefore, according to Article 13 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Environmental Civil Public Interest Litigation Cases", "If the plaintiff requests the defendant to provide environmental information such as the name of the main pollutants discharged, the discharge method, the discharge concentration and total amount, the situation of exceeding the standard discharge, and the construction and operation of pollution prevention facilities, and the laws, regulations, and rules stipulate that the defendant should hold or have evidence to prove that the defendant holds it but refuses to provide it, if the plaintiff claims that the relevant facts are not conducive to the defendant, the people's court may presume that the claim is established", in this case, it should be presumed that the fact that the remaining 68 barrels of sulfuric acid waste liquid were illegally disposed of and polluted the environment is established.

Regarding the amount of compensation for this damage. According to the "Virtual Governance Cost Method Explanation", the specific circumstances of this damage are unclear, and the ecological and environmental restoration costs incurred can also be determined by applying the "Virtual Governance Cost Method". As mentioned above, the weight of 68 barrels of sulfuric acid waste liquid should still be calculated at 1.426 tons per barrel, totaling 96.96 tons; the unit treatment cost should still be determined as 6822.92 yuan. Regarding the environmental sensitivity coefficient of the damaged environment. In this case, the actual damaged environmental media and environmental functional area categories of the illegal disposal of 68 barrels of sulfuric acid waste liquid are unknown, and the possible damaged environmental media include one or more of soil, surface water, or groundwater. Different environmental media and different environmental functional area categories have different environmental functional area sensitivity coefficients, and there are many possibilities such as 2-11. The coefficient 7 advocated by the public interest litigation plaintiff is in the middle of the environmental sensitivity coefficient, corresponding to Class II surface water, Class II soil, and Class III groundwater, and the environmental medium actually polluted by the 3 barrels of sulfuric acid waste liquid that have been found in this case is Class II soil. At the same time, the four defendants also failed to provide evidence to prove that the 68 barrels of sulfuric acid waste liquid actually polluted environmental media with lower sensitivity coefficients. Therefore, the plaintiff's claim in the public interest litigation is reasonable, and it also reflects the moderate punishment for illegal acts of evading state supervision and illegally transferring and disposing of hazardous waste, and should be adopted. In summary, the ecological and environmental restoration cost claimed by the public interest litigation plaintiff for the illegal disposal of 68 barrels of sulfuric acid waste liquid is 4630852 yuan (96.96×6822.92×7), which should be supported. At the same time, if it is found in the future that the 68 barrels of sulfuric acid waste liquid actually polluted environmental media with higher sensitivity coefficients, and the above restoration costs are not enough to compensate for the ecological and environmental damage, the organs and relevant organizations stipulated by law can still make another claim to the defendant based on the newly discovered facts. This ecological and environmental damage was caused by the joint illegal acts of the four defendants, Qi'an Company, Huang Kefeng, He Chuanyi, and Wang Keyi, and the four defendants should be jointly and severally liable for the compensation of 4630852 yuan.

In summary, the construction of ecological civilization is a fundamental plan related to the sustainable development of the Chinese nation. There is no substitute for the ecological environment, and everyone is responsible for protecting the ecological environment. Units and individuals that generate, collect, store, transport, use, and dispose of hazardous waste must strictly fulfill their legal obligations and take effective measures to prevent hazardous waste from polluting the environment. The defendants Qi'an Company, Huang Kefeng, He Chuanyi, Wang Keyi, and Wei Yidong failed to fulfill their legal obligations, evaded state supervision, illegally transferred and disposed of hazardous waste, and allowed hazardous waste to pollute the environment. They should bear tort liability for the ecological and environmental damage caused thereby in accordance with the law.

(Effective judgment trial personnel: Ma Rong, Li Juan, Zhang Yanliang, Chen Hu, Fei Yan, Han Zhengjuan, Wu De'en)

Guiding Case No. 136

Public Interest Litigation Case of the People's Procuratorate of Baishan City, Jilin Province v. Baishan City Jiangyuan District Health and Family Planning Bureau, Baishan City Jiangyuan District Central Hospital

(Discussed and approved by the Adjudication Committee of the Supreme People's Court, issued on December 26, 2019)

Keyword   Administrative/Environmental Administrative Public Interest Litigation/Environmental Civil Public Interest Litigation/Separate Filing/Trial Together

Key points of judgment

When hearing environmental administrative public interest litigation cases filed by the People's Procuratorate, the People's Court may, with respect to environmental civil public interest litigation filed by the People's Procuratorate for the same pollution act, refer to the provisions of the Administrative Procedure Law and its judicial interpretations, and adopt the method of separate filing, joint trial, and separate judgment.

Relevant legal provisions

Article 61 of the Administrative Procedure Law of the People's Republic of China

Basic Case Information

When the Zhongyi Hospital in Jiangyuan District, Baishan City, built a new comprehensive building, it was put into use without building sewage treatment facilities that met environmental protection requirements. After discovering this clue, the People's Procuratorate of Baishan City, Jilin Province, conducted an investigation. The investigation found that the Zhongyi Hospital in Jiangyuan District, Baishan City, discharged medical sewage through seepage wells and pits. Samples of the medical sewage discharged and the soil around the seepage wells were taken for testing, and the chemical oxygen demand, five-day biochemical oxygen demand, suspended solids, total residual chlorine, etc. all exceeded national standards. It was also found that the Health and Family Planning Bureau of Jiangyuan District, Baishan City, approved the 'Medical Institution Practice License' of the Zhongyi Hospital in Jiangyuan District, Baishan City, without submitting a qualified environmental assessment report, and failed to stop its illegal discharge of medical sewage in a timely manner, which constituted illegal acts. After fulfilling the pre-procedure for filing a public interest lawsuit, the procuratorial organ sued the court, requesting: 1. Confirm that the act of the Health and Family Planning Bureau of Jiangyuan District, Baishan City, on May 18, 2015, to verify the 'Medical Institution Practice License' of the Zhongyi Hospital in Jiangyuan District, Baishan City, as illegal; 2. Order the Health and Family Planning Bureau of Jiangyuan District, Baishan City, to perform its statutory supervision responsibilities and order the Health and Family Planning Bureau of Jiangyuan District, Baishan City, to rectify the medical sewage purification and treatment facilities of the Zhongyi Hospital in Jiangyuan District, Baishan City, within a time limit; 3. Order the Zhongyi Hospital in Jiangyuan District, Baishan City, to immediately stop the illegal discharge of medical sewage.

Judgment Result

On July 15, 2016, the Intermediate People's Court of Baishan City issued Administrative Judgment No. (2016) Ji 06 Xing Chu 4, confirming that the administrative act of the Health and Family Planning Bureau of Jiangyuan District, Baishan City, on May 18, 2015, to verify the 'Medical Institution Practice License' of the Zhongyi Hospital in Jiangyuan District, Baishan City, was illegal; ordering the Health and Family Planning Bureau of Jiangyuan District, Baishan City, to perform its supervisory duties and supervise the Zhongyi Hospital in Jiangyuan District, Baishan City, to complete the rectification of the medical sewage treatment facilities within three months. On the same day, the Intermediate People's Court of Baishan City issued Civil Judgment No. (2016) Ji 06 Min Chu 19, ordering the Zhongyi Hospital in Jiangyuan District, Baishan City, to immediately stop the illegal discharge of medical sewage. After the first instance judgment was pronounced, all parties did not appeal, and the judgment has become legally effective.

Reasons for the Judgment

The effective court ruling held that, according to Articles 5 and 40 of the 'Regulations on the Administration of Medical Institutions' of the State Council, the Health and Family Planning Bureau of Jiangyuan District, Baishan City, has the statutory duty to supervise and manage medical institutions within its jurisdiction. Article 44 of the 'Implementation Measures for the Approval and Management of Medical Institutions in Jilin Province (Trial)' stipulates that medical institutions should submit verification applications, changes in registration items, rectification acceptance, qualified environmental assessment reports, and other materials when applying for verification. The Health and Family Planning Bureau of Jiangyuan District, Baishan City, verified the 'Medical Institution Practice License' of the Zhongyi Hospital in Jiangyuan District, Baishan City, as qualified without submitting a qualified environmental assessment report, which violated the above regulations, and the verification act was illegal. The Zhongyi Hospital in Jiangyuan District, Baishan City, illegally discharged medical sewage, resulting in significant pollution risks to the surrounding groundwater and soil. The Health and Family Planning Bureau of Jiangyuan District, Baishan City, as the health administrative department, failed to stop it in a timely manner, and its failure to perform its supervisory duties was illegal. The Zhongyi Hospital in Jiangyuan District, Baishan City, illegally discharged medical sewage through seepage wells and pits, and the construction of sewage treatment facilities and environmental assessment acceptance require a certain amount of time. Therefore, the Health and Family Planning Bureau of Jiangyuan District, Baishan City, should continue to perform its supervisory duties, urge the Zhongyi Hospital in Jiangyuan District, Baishan City, to complete the sewage treatment project in a timely manner, meet the environmental assessment requirements and put it into use, and meet the conditions for verifying the medical institution practice license stipulated in Article 44 of the 'Implementation Measures for the Approval and Management of Medical Institutions in Jilin Province (Trial)'.

Articles 65 and 66 of the 'Tort Liability Law of the People's Republic of China' stipulate that if damage is caused by environmental pollution, the polluter shall bear tort liability. If a dispute arises due to environmental pollution, the polluter shall bear the burden of proof for circumstances where they are not liable or their liability is mitigated as prescribed by law, and that there is no causal relationship between their actions and the damage. In this case, according to the evidence presented by the public interest litigant and the relevant facts found, it can be determined that the Zhongyi Hospital in Jiangyuan District, Baishan City, did not install sewage treatment equipment that met environmental protection requirements, and implemented the act of discharging medical sewage through seepage wells and pits. From the test results and test opinions of the testing agency, it can be seen that the medical sewage it discharged poses a significant environmental pollution risk to the nearby groundwater and surrounding soil. Although the Zhongyi Hospital in Jiangyuan District, Baishan City, argued that its failure to build pollution discharge equipment that met environmental protection requirements was due to insufficient government investment in public hospitals, this reason cannot negate the basic fact that it objectively implemented the pollution discharge act, resulting in the damage result of significant environmental pollution risks to the surrounding groundwater and soil, and that there is a causal relationship between the pollution discharge act and the damage result. Moreover, environmental pollution has irreversible characteristics, so a judgment was made to immediately stop the illegal discharge of medical sewage.

(Adjudicators of the effective judgment: Zhang Wenkuan, Wang Hui, Li Yanfei)

Guiding Case No. 137

Environmental Administrative Public Interest Litigation Case of the People's Procuratorate of Jianchuan County, Yunnan Province v. the Forest Public Security Bureau of Jianchuan County for Neglecting to Perform its Statutory Duties

(Discussed and approved by the Adjudication Committee of the Supreme People's Court, issued on December 26, 2019)

Keyword   Administrative/Environmental Administrative Public Interest Litigation/Neglecting to Perform Statutory Duties/Review Standards

Key points of judgment

In environmental administrative public interest litigation, the People's Court shall take whether the illegal acts of the counterparty have been effectively stopped, whether the administrative organ has taken sufficient, timely, and effective statutory regulatory measures, and whether the national interest or social public interest has been effectively protected as the standard for reviewing whether the administrative organ has performed its statutory duties.

Relevant legal provisions

1. Article 13 and Article 20 of the Forest Law of the People's Republic of China

2. Article 43 of the Implementation Regulations of the Forest Law of the People's Republic of China

3. Article 70 and Article 74 of the Administrative Procedure Law of the People's Republic of China

Basic Case Information

In January 2013, Wang Shouquan, a resident of Jianchuan County, was entrusted by Yuxin Company to excavate a road in a state-owned forest area. He was discovered and stopped by forest rangers from the Hongqi Forestry Bureau of Jianchuan County. After receiving the report, the Forestry Bureau of Jianchuan County handed it over to the Forest Public Security Bureau of Jianchuan County for investigation and handling. On February 20, 2013, the Forest Public Security Bureau of Jianchuan County served Wang Shouquan with a notice of the right to a forestry administrative penalty hearing, and on February 27 of the same year, served Wang Shouquan with the Forestry Administrative Penalty Decision No. Jianlin Fa Shu Zi (2013) No. (288) of the Forestry Bureau of Jianchuan County. The administrative penalty decision stated that Yuxin Company, without obtaining legal procedures for the requisition and occupation of forest land, entrusted Wang Shouquan to excavate a road between the 21st and 22nd plots of the 13th forest class from January 13 to 19, 2013, with a length of 494.8 meters, an average width of 4.5 meters, and an area of 2226.6 square meters, totaling 3.34 acres. According to Article 43, Paragraph 1 of the Implementation Regulations of the Forest Law of the People's Republic of China, it was decided to impose the following administrative penalties on Wang Shouquan and Yuxin Company: 1. Order to restore the original state within a time limit; 2. Impose a fine of 10 yuan per square meter of illegally changed forest land, i.e., 22266.00 yuan. On March 29, 2013, after Yuxin Company paid the fine, the Forest Public Security Bureau of Jianchuan County closed the case. Thereafter, until November 9, 2016, the Forest Public Security Bureau of Jianchuan County did not urge Yuxin Company and Wang Shouquan to fulfill the administrative obligation of 'restoring the original state within a time limit', and the damaged forest vegetation has not been restored to this day.

On November 9, 2016, the Jianchuan County People's Procuratorate issued a procuratorial recommendation to the Jianchuan County Forest Public Security Bureau, suggesting that it perform its duties in accordance with the law, earnestly implement the administrative penalty decision, and take effective measures to restore forest vegetation. On December 8, 2016, the Jianchuan County Forest Public Security Bureau replied that after receiving the 'Procuratorial Recommendation', it immediately conducted serious research, took active measures, and sent police to Wang Shouquan's home to urge the first item of the Jianlin Fa Shu Zi (2013) No. (288) penalty decision to restore the original state within a time limit. In view of Wang Shouquan's death, the execution was terminated. The Jianchuan County Forest Public Security Bureau did not issue a reminder to Yuxin Company.

It was also found that the Jianchuan County Forest Public Security Bureau is a sub-department-level institution affiliated to the Jianchuan County Forestry Bureau. At the beginning of 2013, the Jianchuan County Forestry Bureau authorized it to handle all forestry and forest land penalty cases involving forestry and forest land within the county. On September 27, 2013, the Yunnan Provincial People's Government approved the 'Work Plan for Relatively Centralized Forestry Administrative Penalty Power of Yunnan Forestry Departments', authorizing forest public security organs at all levels to carry out the relatively centralized forestry administrative penalty power work throughout the province. On November 20 of the same year, authorized by the Yunnan Provincial People's Government, the Legislative Affairs Office of the Yunnan Provincial People's Government announced the administrative law enforcement subject qualification units and law enforcement authority of the forest public security organs. The Jianchuan County Forest Public Security Bureau is also one of the units with administrative law enforcement subject qualification and law enforcement authority. On December 11 of the same year, the Yunnan Provincial Forestry Department issued a notice deciding that from January 1, 2014, forest public security organs at all levels would exercise 62 forestry administrative penalty powers and 11 administrative coercive powers approved by the provincial government in accordance with the law.

Judgment Result

The People's Court of Jianchuan County, Yunnan Province, made Administrative Judgment (2017) Yun 2931 Xingchu No. 1 on June 19, 2017: 1. Confirming that the defendant, Jianchuan County Forest Public Security Bureau, failed to perform the first item of the Jianlin Fa Shu Zi (2013) No. (288) penalty decision was illegal; 2. Ordering the defendant, Jianchuan County Forest Public Security Bureau, to continue to perform its statutory duties. After the judgment was pronounced, the parties accepted the judgment and did not appeal. The judgment has become legally effective, and the Jianchuan County Forest Public Security Bureau has also actively implemented the judgment.

Reasons for the Judgment

The effective court judgment held that the public interest litigant's filing of this case complies with the scope of administrative public interest litigation cases stipulated in the Supreme People's Court's 'Implementation Measures for People's Courts Hearing People's Procuratorates' Public Interest Litigation Pilot Work' and the Supreme People's Procuratorate's 'Implementation Measures for People's Procuratorates' Public Interest Litigation Pilot Work', and meets the conditions for filing a lawsuit. Article 26, Paragraph 6 of the 'Administrative Procedure Law of the People's Republic of China' stipulates: 'If the administrative agency is revoked or its functions are changed, the administrative agency that continues to exercise its functions shall be the defendant.' On September 27, 2013, the Yunnan Provincial People's Government's 'Approval of the Work Plan for Relatively Centralized Forestry Administrative Penalty Power of Yunnan Forestry Departments' authorized forest public security organs at all levels to exercise part of the administrative penalty power of forestry administrative departments in a relatively centralized manner. Therefore, according to regulations, the Jianchuan County Forest Public Security Bureau exercises the forestry administrative penalty power originally exercised by the Jianchuan County Forestry Bureau and is a qualified defendant. In this case, after the Jianchuan County Forest Public Security Bureau found out that Yuxin Company and Wang Shouquan had changed the forest land without authorization, it made an administrative penalty decision in the name of the Jianchuan County Forestry Bureau ordering Yuxin Company and Wang Shouquan to restore the original state within a time limit and fining them 22266.00 yuan, which complied with the law. However, for more than three years after Yuxin Company paid the fine, it did not urge Yuxin Company and Wang Shouquan to restore the damaged forest land, nor did it perform it on its behalf, resulting in the fact that the forest land changed by Yuxin Company and Wang Shouquan without authorization has not been restored to its original state, and it has not provided evidence to prove that there are relevant legal and reasonable reasons. Its behavior is obviously inappropriate and is a failure to perform its statutory duties. If the administrative penalty decision has not been executed, the Jianchuan County Forest Public Security Bureau should continue to perform its statutory duties in accordance with the law and take effective measures to urge the administrative counterpart to restore the changed forest land to its original state within a time limit.

(Effective judgment adjudicators: Zhao Xinke, Bai Canshan, Zhang Jiyuan)

Guiding Case No. 138

Chen Delong v. Chengdu Chenghua District Environmental Protection Bureau Environmental Administrative Penalty Case

(Discussed and approved by the Adjudication Committee of the Supreme People's Court, issued on December 26, 2019)

Keyword   Administrative/Administrative Penalty/Environmental Protection/Private Installation of Dark Pipes/Evasion of Supervision

Key points of judgment

If enterprises, institutions, and other producers and operators discharge water pollutants by means of evading supervision such as private installation of dark pipes, they shall be given administrative penalties in accordance with the law; if the polluter claims that they should not be subject to administrative penalties on the grounds that the water pollutants they discharge meet the standards and have not caused damage to the environment, the people's court shall not support it.

Relevant legal provisions

Article 39 and Article 83 of the 'Law of the People's Republic of China on the Prevention and Control of Water Pollution' (2017 Amendment) (This case applies Article 22, Paragraph 2 and Article 75, Paragraph 2 of the 'Law of the People's Republic of China on the Prevention and Control of Water Pollution' amended in 2008)

Basic Case Information

Chen Delong is the owner of Delong Processing Factory in Damian Street Office, Longquanyi District, an individual industrial and commercial household, and has been processing and producing tempered glass since March 2011. On November 2, 2012, the Chengdu Chenghua District Environmental Protection Bureau (hereinafter referred to as the Chenghua District Environmental Protection Bureau) inspected the factory building of Delong Processing Factory located at B-10, Group 1, Tian'e Community, Baohe Street Office, Chenghua District, Chengdu, and found that the factory was suspected of secretly setting up dark pipes to discharge sewage. After investigation and filing, the Chenghua District Environmental Protection Bureau made the Chenghua Environmental Protection Penalty No. [2012] 1130-01 administrative penalty decision on December 11, 2012, in accordance with relevant legal procedures, and determined that Chen Delong's behavior violated Article 22, Paragraph 2 of the 'Law of the People's Republic of China on the Prevention and Control of Water Pollution' (hereinafter referred to as the Water Pollution Prevention and Control Law). Therefore, according to Article 75, Paragraph 2 of the Water Pollution Prevention and Control Law, it made a penalty decision ordering the immediate demolition of the dark pipes and imposing a fine of 100,000 yuan. Chen Delong refused to accept it and filed a lawsuit with the court, requesting the revocation of the penalty decision.

Judgment Result

On May 21, 2014, the People's Court of Chenghua District, Chengdu City, made the Administrative Judgment No. (2014) Chenghua Xingchu No. 29, ruling: to reject the plaintiff Chen Delong's claim. Chen Delong refused to accept it and filed an appeal with the Intermediate People's Court of Chengdu City. On August 22, 2014, the Intermediate People's Court of Chengdu City made the Administrative Judgment No. (2014) Chenghangzhongzi No. 345, ruling: to reject the plaintiff Chen Delong's claim. On October 21, 2014, Chen Delong applied to the Intermediate People's Court of Chengdu City for a retrial of the case, and the court made the Ruling No. (2014) Chenghangjianzi No. 131, ruling that Chen Delong's application for retrial would not be accepted.

Reasons for the Judgment

The effective court judgment held that although the place of industrial and commercial registration of Delong Processing Factory is in Longquanyi District, Chengdu City, the specific location where the environmental violation facts were formed is in Chenghua District, Chengdu City. According to Article 20 of the 'Administrative Penalty Law of the People's Republic of China' and Article 17 of the 'Measures for Environmental Administrative Penalties', the Chenghua District Environmental Protection Bureau has the administrative power to make the disputed penalty decision; although the 'Inspection Report' issued by the Chengdu Chenghua District Environmental Monitoring Station on May 22, 2012, believes that the wastewater discharged by Delong Processing Factory meets the relevant standards for discharging sewage, the sewage discharged by Delong Processing Factory through private installation of dark pipes still belongs to sewage, which violates Article 22, Paragraph 2 of the Water Pollution Prevention and Control Law; Delong Processing Factory has been subject to administrative penalties for the illegal act of 'putting into production without completing environmental assessment procedures and without acceptance of environmental protection facilities'. The illegal act in this case is a secondary illegal act. The Chenghua District Environmental Protection Bureau comprehensively considered the fact that Delong Processing Factory is a secondary illegal act within the scope stipulated in Article 75, Paragraph 2 of the Water Pollution Prevention and Control Law, and it is not inappropriate to impose an administrative penalty of 100,000 yuan on Delong Processing Factory.

(Effective judgment adjudicators: Li Weidong, Yu Xiaomin, Qiu Fangli)

Guidance Case No. 139

Shanghai Xinjingshan Building Materials Development Co., Ltd. v. Shanghai Jinshan District Environmental Protection Bureau Environmental Administrative Penalty Case

(Discussed and approved by the Adjudication Committee of the Supreme People's Court, issued on December 26, 2019)

Keyword   Administrative/Administrative Penalty/Air Pollution Prevention and Control/Solid Waste Environmental Pollution Prevention and Control/Application of Law/Exceeding Emission Standards

Key points of judgment

If the odor concentration generated by the stacking and disposal of solid waste by enterprises, institutions, and other producers and operators exceeds the atmospheric pollutant emission standards, and the environmental protection authorities apply the 'Air Pollution Prevention and Control Law of the People's Republic of China,' which imposes a heavier penalty, to punish them, the people's court will not support the claim of enterprises, institutions, and other producers and operators that the 'Law of the People's Republic of China on the Prevention and Control of Environmental Pollution by Solid Waste' should be applied to punish them.

Relevant legal provisions

1. Article 10 of the 'Environmental Protection Law of the People's Republic of China'

2. Articles 18 and 99 of the 'Air Pollution Prevention and Control Law of the People's Republic of China'

3. Article 68 of the 'Law of the People's Republic of China on the Prevention and Control of Environmental Pollution by Solid Waste'

Basic Case Information

The plaintiff, Shanghai Xinjingshan Building Materials Development Co., Ltd. (hereinafter referred to as Xinjingshan Company), filed an administrative lawsuit against the administrative penalty imposed by the Shanghai Jinshan District Environmental Protection Bureau (hereinafter referred to as Jinshan Environmental Protection Bureau), claiming that the Jinshan Environmental Protection Bureau's application of the 'Air Pollution Prevention and Control Law of the People's Republic of China' (hereinafter referred to as the Air Pollution Prevention and Control Law) to punish the company for the excessive odor concentration of sludge piled up in its factory area was inappropriate, and that the 'Law of the People's Republic of China on the Prevention and Control of Environmental Pollution by Solid Waste' (hereinafter referred to as the Solid Waste Pollution Prevention and Control Law) should be applied for punishment, requesting its revocation.

The court found after hearing the case that, due to public complaints, on August 17, 2016, law enforcement officers from the defendant, Jinshan Environmental Protection Bureau, went to Xinjingshan Company for inspection, and staff from the Jinshan Environmental Monitoring Station sampled the company's boundary odor and waste gas emission outlets. On August 26 of the same month, the Jinshan Environmental Monitoring Station issued a 'Test Report' numbered XF26-2016. The 'Monitoring Report' in the report showed that, according to the 'Odor Pollutant Emission Standard' (GB14554-93), the secondary standard value for odor concentration at the factory boundary is 20. After collecting three samples from each of the four monitoring points at the plaintiff's factory boundary for testing, the maximum one-time value of odor concentration at monitoring point 3# was 25. On September 5, 2016, the defendant received the aforementioned 'Test Report' and filed a case on the same day. After investigation, the defendant prepared a 'Notice to Correct' (Jin Huan Bao Gai Zi [2016] No. 224) and a 'Notice of Administrative Penalty Hearing' on November 9, 2016, and served them on the plaintiff. At the plaintiff's request, the defendant organized a hearing on November 23, 2016. On December 2, 2016, the defendant issued an 'Administrative Penalty Decision' No. 2020160224, determining that on August 17, 2016, the defendant's law enforcement officers inspected and monitored the plaintiff's unorganized emission of malodorous pollutants. After sampling at the plaintiff's factory boundary and testing by the Jinshan Environmental Monitoring Station, the maximum one-time value of odor concentration at monitoring point 3# was 25, exceeding the emission limit of 20 stipulated in the 'Odor Pollutant Emission Standard' (GB14554-93). This behavior violated Article 18 of the Air Pollution Prevention and Control Law. According to Article 99, Paragraph 2 of the Air Pollution Prevention and Control Law, the defendant decided to fine the plaintiff 250,000 yuan.

It was also found that on November 13, 2009, the defendant approved the 'Environmental Impact Report Form for the Technical Transformation Project of Multi-Specification Environmentally Friendly Sintered Porous Bricks from Sludge' submitted by the plaintiff, and the aforementioned technical transformation project passed the defendant's completion acceptance on December 5, 2012. At the same time, since 2015, the plaintiff has received dozens of complaints from the public, reflecting environmental problems such as the emission of irritating odors by the company. On September 9, 2015, because the maximum measured value of odor concentration at two sampling points at the plaintiff's factory boundary on July 20 of the same year exceeded the standard, the defendant issued a 'Notice to Correct' (Jin Huan Bao Gai Zi [2015] No. 479) to the company, and on September 18 of the same year, issued an 'Administrative Penalty Decision' No. 2020150479, deciding to fine the plaintiff 35,000 yuan.

Judgment Result

The Shanghai Jinshan District People's Court made an administrative judgment ([2017] Hu 0116 Xing Chu No. 3) on March 27, 2017: rejecting the lawsuit request of the plaintiff, Shanghai Xinjingshan Building Materials Development Co., Ltd. After the judgment was pronounced, the parties accepted the judgment and did not appeal, and the judgment has become legally effective.

Reasons for the Judgment

The court's effective judgment held that the core point of contention in this case is whether the defendant's application of the Air Pollution Prevention and Control Law to punish the plaintiff's involved behavior is correct. This involves the issue of selective application between Article 68, Paragraph 1, Item 7 and Paragraph 2 of the Solid Waste Pollution Prevention and Control Law and Article 99, Paragraph 2 of the Air Pollution Prevention and Control Law. The former stipulates that if corresponding preventive measures are not taken, causing industrial solid waste to be scattered, lost, leaked, or causing other environmental pollution, a fine of between 10,000 yuan and 100,000 yuan shall be imposed; the latter stipulates that if air pollutants are discharged exceeding the atmospheric pollutant emission standards or exceeding the total emission control targets for key atmospheric pollutants, the environmental protection authorities of the people's government at or above the county level shall order correction or restrict production or suspend production for rectification, and impose a fine of between 100,000 yuan and 1,000,000 yuan; if the circumstances are serious, the people's government with the power of approval shall be reported to order closure. The former regulates the behavior of causing environmental pollution by industrial solid waste without taking preventive measures, while the latter regulates the behavior of discharging air pollutants exceeding standards; the former can be constituted as long as there is a behavior of not taking preventive measures and there are certain environmental pollution consequences, while the latter requires that the air pollutants discharged by the discharging unit must exceed the emission standards or the total emission control targets for key atmospheric pollutants to be constituted. In this case, there is no evidence to prove whether the odor comes from any industrial solid waste, and the defendant conducted law enforcement inspections after receiving public complaints about the plaintiff's emission of odor, and the inspection and monitoring object was the plaintiff's emission of air pollutants, which is more matched with the Air Pollution Prevention and Control Law in terms of applicable objects; the 'Monitoring Report' shows that the odor concentration exceeds the atmospheric pollutant emission standards, and the application of Article 99, Paragraph 2 of the Air Pollution Prevention and Control Law is more accurate in terms of behavioral consequences, so the application of law in the sued administrative penalty decision is not inappropriate.

(Effective judgment trial personnel: Xu Yue, Xu Ying, Cui Shengdong)