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| Ten Model Cases regarding Environmental Public Interest Litigations Published by the Supreme People's Court | | 最高人民法院发布十起环境公益诉讼典型案例 |
| (Mach 2017) | | （2017年3月7日） |
| 1. | | 一、 |
| Environmental Protection Association of Taizhou City, Jiangsu Province v. Taixing Jinhui Chemical Engineering Co., Ltd., et al. (Civil public interest litigation regarding water pollution) | | 江苏省泰州市环保联合会诉泰兴锦汇化工有限公司等水污染民事公益诉讼案 |
| [Basic Facts] | | 【基本案情】 |
| From January 2012 to February 2013, defendant Taixing Jinhui Chemical Engineering Co., Ltd. (hereinafter referred to as “Jinhui Company”) and other five enterprises delivered a total of over 25,000 tons of hazardous waste hydrochloric acid and waste sulfuric acid generated in the process of production to the relevant companies without the qualification for disposal of hazardous wastes at a price ranging from CNY20 to 100 per ton and such hazardous wastes were secretly discharged into Rutai canal of Taixing City and Guma dry river of Gaogang District, Taizhou City, causing serious water pollution. The Environmental Protection Association of Taizhou City requested the court to order that the six defendant enterprises should pay the environmental restoration fee of over CNY160 million and the appraisal and evaluation fee of CNY100,000. | | 2012年1月至2013年2月，被告锦汇公司等六家企业将生产过程中产生的危险废物废盐酸、废硫酸总计2.5万余吨，以每吨20至100元不等的价格，交给无危险废物处理资质的相关公司偷排进泰兴市如泰运河、泰州市高港区古马干河中，导致水体严重污染。泰州市环保联合会诉请法院判令六家被告企业赔偿环境修复费1.6亿余元、鉴定评估费用10万元。 |
| [Adjudication] | | 【裁判结果】 |
| After the trial of first instance, the Intermediate People's Court of Taizhou City, Jiangsu Province held that: As a legally-established non-profit organization engaging in the cause of environmental protection, the Environmental Protection Association of Taizhou City had the right to institute an environmental public interest litigation. The six defendant enterprises delivered the by-product acid to companies without the disposal qualification and capabilities and the payment made by them was far lower than the expense required by the legal disposal of such by-product acid, causing the dumping of a great volume of by-product acid into rivers and serious environmental pollution. Therefore, they should compensate for losses caused thereby and restore the ecological environment. The dumping of over 20,000 tons of by-product acid into rivers would inevitably cause serious environmental pollution. As the rivers flew, even though the water quality at the location of dumping took a turn for the better, it did not mean that the ecological environment of the rivers have been fully restored and it still required restoration. Under the circumstance where it was difficult to calculate the restoration costs, the ecological environment restoration costs should be calculated by adopting the virtual treatment costs method. Therefore, the court rendered a judgment that the six defendant enterprises should pay the environmental restoration costs of over CNY160 million in total and bear the appraisal and evaluation fee of CNY100,000 and the litigation costs. After the trial of second instance, the Higher People's Court of Jiangsu Province held that: The Environmental Protection Association of Taizhou City had the qualification for legally instituting an environmental public interest litigation as plaintiff and the trial procedure in the first instance was legal. There was causation between the disposal of by-product acid by the six defendant enterprises and the damage of environmental pollution to Guma dry river and Rutai canal. In the judgment of first instance, the amount of compensation determined was correct and the method for calculating the restoration costs was appropriate. The six defendant enterprises should legally assume the tortious liability for the damage of environmental pollution caused thereby. The judgment of second instance affirmed the item of the judgment rendered by the court of first instance that the six defendant enterprises should pay the environmental restoration costs of over CNY160 million and adjusted the methods for performance of obligations. If the six defendant enterprises could make cyclic utilization of by-product acids through technical transformation, significantly decrease environmental risks, and was not punished due to environmental violations within one year, the technical transformation costs they have paid may be deducted from the environmental restoration costs ordered to be compensated at not more than 40%. Three defendant enterprises have actively performed the entire judgment of second instance. Jinhui Company refused to accept the judgment of second instance and filed an application for retrial with the Supreme People's Court. The Supreme People's Court held that: In cases of environmental pollution, manufacturers of hazardous chemicals and chemical products should perform higher duties of care for their main products and by-products. They should comprehensively understand whether the main products and the by-products generated in the production of main products were highly hazardous and whether they would cause environmental pollution; make the manufacturing, sale, transportation, storage, and disposal of their main products comply with the relevant legal provisions and the manufacturing, sale, transportation, storage, and disposal of their by-products comply with the relevant legal provisions, and avoid damage to the ecological environment or major risks of damage to the ecological environment. Although rivers flowed and had the capabilities of self-purification, on the premise of limited environmental capacity, the dumping of a large volume of by-product acid to water bodies would inevitably cause severe damage to the water quality, aquatic animals and plants in rivers, riverbeds, river banks, and the ecological environment in the downstream rivers. If the restoration failed to be made in a timely manner, the accumulation of pollutants would inevitably exceed the environmental carrying capacity and finally cause irreversible environmental damage. Therefore, the polluters should not be exempted from liability of environmental restoration on the ground that the water quality of some water areas had been restored. The Supreme People's Court finally ruled to deny Jinhui Company's application for retrial. | | 江苏省泰州市中级人民法院一审认为，泰州市环保联合会作为依法成立的参与环境保护事业的非营利性社团组织，有权提起环境公益诉讼。六家被告企业将副产酸交给无处置资质和处置能力的公司，支付的款项远低于依法处理副产酸所需费用，导致大量副产酸未经处理倾倒入河，造成严重环境污染，应当赔偿损失并恢复生态环境。2万多吨副产酸倾倒入河必然造成严重环境污染，由于河水流动，即使倾倒地点的水质好转，并不意味着河流的生态环境已完全恢复，依然需要修复。在修复费用难以计算的情况下，应当以虚拟治理成本法计算生态环境修复费用。遂判决六家被告企业赔偿环境修复费用共计1.6亿余元，并承担鉴定评估费用10万元及诉讼费用。江苏省高级人民法院二审认为，泰州市环保联合会依法具备提起环境公益诉讼的原告资格，一审审判程序合法。六家被告企业处置副产酸的行为与造成古马干河、如泰运河环境污染损害结果之间存在因果关系。一审判决对赔偿数额的认定正确，修复费用计算方法适当，六家被告企业依法应当就其造成的环境污染损害承担侵权责任。二审判决维持一审法院关于六家被告企业赔偿环境修复费用共计1.6亿余元的判项，并对义务的履行方式进行了调整。如六家被告企业能够通过技术改造对副产酸进行循环利用，明显降低环境风险，且一年内没有因环境违法行为受到处罚的，其已支付的技术改造费用可经验收后在判令赔偿环境修复费用的40%额度内抵扣。六家被告企业中的三家在二审判决后积极履行了判决的全部内容。锦汇公司不服二审判决，向最高人民法院申请再审。最高人民法院认为，环境污染案件中，危险化学品和化工产品生产企业对其主营产品及副产品均需具有较高的注意义务，需要全面了解其主营产品和主营产品生产过程中产生的副产品是否具有高度危险性，是否会造成环境污染；需要使其主营产品的生产、出售、运输、储存和处置符合相关法律规定，亦需使其副产品的生产、出售、运输、储存和处置符合相关法律规定，避免对生态环境造成损害或者产生造成生态环境损害的重大风险。虽然河水具有流动性和自净能力，但在环境容量有限的前提下，向水体大量倾倒副产酸，必然对河流的水质、水体动植物、河床、河岸以及河流下游的生态环境造成严重破坏。如不及时修复，污染的累积必然会超出环境承载能力，最终造成不可逆转的环境损害。因此，不能以部分水域的水质得到恢复为由免除污染者应当承担的环境修复责任。最高人民法院最终裁定驳回了锦汇公司的再审申请。 |
| [Significance] | | 【典型意义】 |
| The public interest litigation regarding water pollution in Taizhou City is called a “sky-high price” environmental public interest litigation. In this case, a social organization served as plaintiff, the procuratorial organ upheld the action, the participants were special, multiple defendants were involved, the amount of compensation determined in the judgment was large, and there were explorations and innovations, and high reference value. The court of first instance properly identified the qualification of the Environmental Protection Association of Taizhou City as the subject, and determined that Jinhui Company and other five companies had the subjective intention of illegally disposing of hazardous wastes, they objectively caused the consequence of serious environmental pollution, and they should assume the liability of compensation for environmental pollution restoration. At the meantime, in light of the identification conclusion and the opinions of expert witnesses, the court of first instance determined the environmental restoration costs, and ordered that the six defendant enterprises should compensate the total environmental restoration costs of over CNY160 million. The court of second instance balanced the sound development of enterprises and the environmental protection targets, innovated in the payment method of restoration costs, and encouraged enterprises to make more efforts in technical transformation, properly handle the relations between overall interests and partial interests and between long-term interests and short-term interests, and assume their subject liability and social liability for environmental protection. The Supreme People's Court affirmed the court of second instance's innovation in the payment method of restoration costs, encouraged enterprises to actively carry out technical innovations and transformation, and promoted the improvement of regional ecological environmental quality. In the meantime, the Supreme People's Court specified that the manufacturers of hazardous chemicals and chemical products should perform higher duties of care in the process of manufacturing and assume more social liability. For river water, an environmental medium with fluidity and self-purification capability, the Supreme People's Court determined the treatment principle of water pollution environmental restoration. In other words, once pollution occurred, the restoration obligations assumed by the polluter should not be affected by the self-improvement of the water environment. This case was of some demonstration significance in the handling of waster pollution cases. | | 泰州水污染公益诉讼案被媒体称为“天价”环境公益诉讼案。该案由社会组织作为原告、检察机关支持起诉，参与主体特殊、涉案被告多，判赔金额大、探索创新多、借鉴价值高。一审法院正确认定泰州市环保联合会的主体资格，确认锦汇公司等六家公司主观上具有非法处置危险废物的故意，客观上造成了环境严重污染的结果，应该承担对环境污染进行修复的赔偿责任。同时，结合鉴定结论和专家证人意见认定环境修复费用，判令六家被告企业共计赔偿1.6亿余元环境修复费用。二审法院衡平企业良性发展与环境保护目标，创新了修复费用支付方式，鼓励企业加大技术改造力度，处理好全局利益与局部利益、长远利益与短期利益的关系，承担起企业环境保护主体责任和社会责任。最高人民法院肯定了二审法院创新修复费用支付方式的做法，鼓励企业积极开展技术创新和改造，促进区域生态环境质量改善。同时明确了危险化学品和化工产品生产企业在生产经营过程中应具有较高的注意义务，应承担更多的社会责任。对于河水这种具有流动性和自净能力的环境介质，确立了水污染环境修复责任的处理原则，即污染行为一旦发生，不因水环境的自净改善而影响污染者承担修复义务。本案对水污染案件的处理具有一定的示范意义。 |
| [Commentator] | | 【点评专家】 |
| Lv Zhongmei, deputy to the Twelfth National People's Congress, deputy director of the Committee for Social and Legal Affairs under the CPPCC, and special consultant of the Supreme People's Court | | 吕忠梅 十二届全国人大代表、全国政协社会和法制委员会驻会副主任、最高人民法院特邀咨询员 |
| [Comments] | | 【点评意见】 |
| The case regarding water pollution in Taizhou City has attracted people's attention due to special participants, complete judicial proceedings, determination of causation, identification and evaluation of environmental pollution damage, and innovations in the method of compensation performance. Although the ruling rendered upon retrial has mainly affirmed the judgments of first instance and second instance, as a final judgment of the nation's supreme judicial organ, it is a landmark decision for individual judgments and determination of judicial rules. The judicial logics for the fact-finding and presumption of causation are clear in this case. The Supreme People's Court has differentiated two kinds of situations for defendants including executors of direct dumping of pollutants and direct executors of non-dumping acts, adopted the “doctrine of breach of duty of care” and the rules for presumption of causation, clearly demonstrated the logic of “victims' proof that basic facts reaching the lower proof standard--judges' presumption for the existence of causation--counterevidence raised by the person subject to presumption.” In this way, the balancing between plaintiff and defendants in the action was properly realized. The determination of damage in this case distinctly reflects features of environmental tort. With respect to the serious divergence on whether there are damage consequences between both parties, on the basis of fully comprehending the duality of environmental tort consequences, judges have clearly demonstrated two types of consequences of pollution and ecological damage caused by the dumping of by-product acids and accurately determined damage to the ecological system of rivers and the rules. In this case, there are positive explorations to and innovations in the determination and calculation of environmental restoration costs and the performance methods. The judges have determined the damage consequences of dumping of by-product acids as hazards of ecological damage caused by pollution, introduced the calculation method of virtual treatment costs, adopted the liability-assuming method of paying environmental restoration costs, made explorations to the specific performance path, and effectively took consideration of the unity of judicial effect, social effect, and environmental effect. | | 泰州案因参与主体特殊、诉讼程序完整、因果关系判定、环境污染损害鉴定评估、赔付履行方式创新等，引人瞩目。再审裁定虽然主要是对一、二审判决的确认，但其作为国家最高司法机关的终审裁决，对今后的个案裁判乃至司法规则确立具有里程碑意义。该案的事实认定与因果关系推定法理十分清晰。区分该案被告有直接实施污染物倾倒行为和非倾倒行为直接实施人两类不同情况，采纳“违反注意义务说”及因果关系推定规则，清晰的展示“受害人证明基础事实达到低标准证明--法官推定因果关系的存在--被推定人提出反证证明”的逻辑，妥当实现原、被告间在诉讼中的平衡。该案损害后果的认定鲜明体现环境侵权特征。针对当事人双方就是否存在损害后果的严重分歧，法官基于对环境侵权后果二元性的充分认识，清晰的论证了倾倒副产酸这一污染行为所造成的污染与生态损害两种后果，正确认定河域生态系统损害及其规律。该案对环境修复费用的确定、计算以及履行方式积极探索创新。法官将倾倒副产酸的损害后果确定为污染导致的生态破坏危险，引入虚拟治理成本计算法，采用支付环境修复费用的责任承担方式并探索具体履行路径，较好考虑了司法效果、社会效果与环境效果的统一。 |
| 2. | | 二、 |
| China Biodiversity Conservation and Green Development Foundation v. Ningxia Ruitai Science and Technology Co., Ltd., et al. (A series of public interest litigations regarding pollution of the Tengger Desert) | | 中国生物多样性保护与绿色发展基金会诉宁夏瑞泰科技股份有限公司等腾格里沙漠污染系列民事公益诉讼案 |
| [Basic Facts] | | 【基本案情】 |
| In August 8, 2015, the China Biodiversity Conservation and Green Development Foundation (hereinafter referred to as the “CBCGDF”) filed an action in the Intermediate People's Court of Zhongwei City, Ningxia Hui Autonomous Region and alleged that: In the process of production, Ningxia Ruitai Science and Technology Co., Ltd. (hereinafter referred to as “Ruitai Company”) and other seven enterprises directly discharged sewage exceeding the prescribed standards to the evaporation pond in violation of regulations, causing severe pollution of the Tengger Desert. Up to the time of action, the rectification has not been completed yet. The CBCGDF requested the Court to order that Ruitai Company should (1) stop the illegal environmental pollution activities; (2) eliminate hazards causing the environmental pollution; (3) restore the ecological environment or establish a special fund for the restoration of the desert environment and entrust a qualified third party to make the restoration; (4) with respect to claims in items (2) and (3), request the Court to organize plaintiff, technicians, legal experts, NPC members, and CPPCC members to conduct a joint acceptance; (5) compensate for ecological function loss before the environmental restoration; and (6) extend a formal apology on national media. The CBCGDF submitted to the Court its foundation legal person registration certificate, which showed that it was a foundation legal person registered with the Ministry of Civil Affairs of the People's Republic of China. The annual inspection evidentiary materials from 2010 to 2014 submitted by the CBCGDF showed that it passed the annual inspections in five consecutive years before filing this public interest litigation. The CBCGDF also submitted a statement that it had no recorded administrative or criminal penalty due to its business activities in violation of the provisions of laws and regulations within five years. Besides, the articles of association of the CBCGDF provided that its tenets were to “widely mobilize the whole society to concern and support the cause of biodiversity protection and green development, protect the national strategic materials, promote the building of ecological civilization and harmony between man and nature, and build a better home for humanity.” The CBCGDF also submitted to the Court the relevant evidentiary materials that since its establishment, it has actually engaged in such activities as hosting environmental protection seminars, organizing ecological investigations, launching the environmental protection publicity and education, and filing environmental civil public interest litigations. | | 2015年8月，中国生物多样性保护与绿色发展基金会向宁夏回族自治区中卫市中级人民法院提起诉讼称：瑞泰公司等八家企业在生产过程中违规将超标废水直接排入蒸发池，造成腾格里沙漠严重污染，截至起诉时仍然没有整改完毕。请求判令：1.停止非法污染环境行为；2.对造成环境污染的危险予以消除；3.恢复生态环境或者成立沙漠环境修复专项基金并委托具有资质的第三方进行修复；4.针对第二项和第三项诉讼请求，由法院组织原告、技术专家、法律专家、人大代表、政协委员共同验收；5.赔偿环境修复前生态功能损失；6.在全国性媒体上公开赔礼道歉等。绿发会向法院提交了基金会法人登记证书，显示绿发会是在国家民政部登记的基金会法人。绿发会提交的2010至2014年度检查证明材料，显示其在提起本案公益诉讼前五年年检合格。绿发会提交了五年内未因从事业务活动违反法律、法规的规定而受到行政、刑事处罚的无违法记录声明。此外，绿发会章程规定，其宗旨为“广泛动员全社会关心和支持生物多样性保护和绿色发展事业，保护国家战略资源，促进生态文明建设和人与自然和谐，构建人类美好家园”。绿发会还向法院提交了其自1985年成立至今，一直实际从事包括举办环境保护研讨会、组织生态考察、开展环境保护宣传教育、提起环境民事公益诉讼等活动的相关证据材料。 |
| [Adjudication] | | 【裁判结果】 |
| In the trial of first instance, the Intermediate People's Court of Zhongwei City, Ningxia Hui Autonomous Region held that the CBCGDF could not be identified as a social organization “specially engaging in the public activities of environmental protection” as prescribed in Article 58 of the Environmental Protection Law. Therefore, it ruled to not accept the action filed by the CBCGDF. The CBCGDF refused to accept the ruling and appealed. After examination, the Higher People's Court of Ningxia Hui Autonomous Region ruled to dismiss the appeal and affirm the original ruling. The CBCGDF refused to accept the ruling of second instance and filed an application for retrial with the Supreme People's Court. The Supreme People's Court legally brought the case to trial and held that: Since environmental public interests were inclusive and sharable, there was no specific direct interested party legally. It was necessary to encourage, guide, and regulate a social organization to file an environmental public interest litigation according to the law, so as to bring the functions of an environmental public interest litigation into play. In accordance with the provisions of Article 58 of the Environmental Protection Law and Article 4 of the Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Environmental Civil Public Interests Litigations (hereinafter referred to as the “Interpretation”), whether the CBCGDF involved in this case may file an action as a social organization “specially engaging in public activities of environmental protection” should be examined mainly from three aspects, namely, whether its tenets and business scope included safeguarding the environmental public interests, whether it actually engaged in public activities of environmental protection, and whether the environmental public interests it safeguarded were related to its tenets and business scope. Whether the tenets and business scope of a social organization included safeguarding the environmental public interests should be judged on the basis of their connotation other than simply according to the literal expression. Even though the articles of association of a social organization did not specify safeguarding the environmental public interests, if the work content was within the scope of protecting various natural elements impacting the survival and development of mankind and those subject to artificial modification, it may be identified that the tenets and business scope included safeguarding the environmental public interests. The tenets in the articles of association of the CBCGDF conformed to the concepts of green development and were closely related to environmental protection, and they were within the scope of safeguarding the environmental public interests. Public activities of environmental protection not only included such activities of directly improving the ecological environment as forest planting, protection of endangered species, energy conservation and emission reduction, and environmental restoration, but environmental protection-related publicity and education, research and training, academic exchange, legal aid, public interest litigations, and other activities that were conducive to improving the environmental control system, enhancing the environmental control capacity, and promoting the formation of extensive consensus on environmental protection in the whole society. Although such relevant evidentiary materials submitted by the CBCGDF in the trial of first instance, trial of second instance, and retrial as historical evolution, photographs of public activities, and notice on case-filing and acceptance of an environmental public interest litigation were not cross-examined, at the stage of case-filing and examination, they were sufficient to show that since its establishment in 1985, the CBCGDF has been actually engaged in environmental protection activities, including hosting environmental protection seminars, organizing ecological investigations, launching environmental protection publicity and education, and filing environmental civil public interest litigations, for a long time and it complied with the provisions of the Environmental Protection Law and the Interpretation. In the meantime, the aforesaid evidence also proved that the duration in which the CBCGDF engaged in public activities of environmental protection has exceeded five years and it complied with the provisions of Article 58 of the Environmental Protection Law that a social organization should engage in public activities of environmental protection for five consecutive years or more. In accordance with the provisions of Article 4 of the Interpretation, the public environmental interests involved in the public interest litigation filed by a social organization should have certain relevance with the tenets and business scope of the social organization. Even though the matter instituted by the social organization did not have corresponding relationship with the tenets and business scope of the social organization, if such matter had certain relevance with the environmental elements or the ecological system under the protection of the social organization, the subject qualification of the social organization should be confirmed according to the standard of relevance. This environmental public interest litigation was filed due to pollution of the Tengger Desert. The complex and fragile desert ecological system formed in the interaction between desert biocenosis and the environment required much more cherishment and good care of the mankind in the utilization. In the action, the CBCGDF alleged that Ruitai Company discharged sewage exceeding the prescribed standards to the evaporation pond, which severely damaged the already fragile ecological system of the Tengger Desert. Safeguarding the environmental public interests involved was included in the tenets and business scope of the CBCGDF. In addition, the foundation legal person registration certificate, the annual inspection evidentiary materials, and the statement on no penalty recorded submitted by the CBCGDF showed that it satisfied other requirements for social organizations to file environmental public interest litigations as prescribed in Article 58 of the Environmental Protection Law and Articles 2, 3, and 5 of the Interpretation, and the CBCGDF had the subject qualification for filing an environmental civil public interest litigation. The Supreme People's Court rendered a retrial ruling to set aside the rulings of first instance and second instance and ordered the Intermediate People's Court of Zhongwei City to place the case on file and accept it. | | 宁夏回族自治区中卫市中级人民法院一审认为，绿发会不能认定为环境保护法第五十八条规定的“专门从事环境保护公益活动”的社会组织，对绿发会的起诉裁定不予受理。绿发会不服，提起上诉。宁夏回族自治区高级人民法院审查后裁定驳回上诉，维持原裁定。绿发会不服二审裁定，向最高人民法院申请再审。最高人民法院依法提审并审理认为，因环境公共利益具有普惠性和共享性，没有特定的法律上直接利害关系人，有必要鼓励、引导和规范社会组织依法提起环境公益诉讼，以充分发挥环境公益诉讼功能。依据环境保护法第五十八条和《最高人民法院关于审理环境民事公益诉讼案件适用法律若干问题的解释》第四条的规定，对于本案绿发会是否可以作为“专门从事环境保护公益活动”的社会组织提起本案诉讼，应重点从其宗旨和业务范围是否包含维护环境公共利益，是否实际从事环境保护公益活动，以及所维护的环境公共利益是否与其宗旨和业务范围具有关联性等三个方面进行审查。对于社会组织宗旨和业务范围是否包含维护环境公共利益，应根据其内涵而非简单依据文字表述作出判断。社会组织章程即使未写明维护环境公共利益，但若其工作内容属于保护各种影响人类生存和发展的天然的和经过人工改造的自然因素的范畴，均应认定宗旨和业务范围包含维护环境公共利益。绿发会章程中规定的宗旨契合绿色发展理念，亦与环境保护密切相关，属于维护环境公共利益的范畴。环境保护公益活动，不仅包括植树造林、濒危物种保护、节能减排、环境修复等直接改善生态环境的行为，还包括与环境保护有关的宣传教育、研究培训、学术交流、法律援助、公益诉讼等有利于完善环境治理体系，提高环境治理能力，促进全社会形成环境保护广泛共识的活动。绿发会在本案一审、二审及再审期间提交的历史沿革、公益活动照片、环境公益诉讼立案受理通知书等相关证据材料，虽未经庭审质证，但在立案审查阶段，足以显示绿发会自1985年成立以来长期实际从事包括举办环境保护研讨会、组织生态考察、开展环境保护宣传教育、提起环境民事公益诉讼等环境保护活动，符合环境保护法和环境公益诉讼司法解释的规定。同时，上述证据亦证明绿发会从事环境保护公益活动的时间已满五年，符合环境保护法第五十八条关于社会组织从事环境保护公益活动应五年以上的规定。依据环境公益诉讼司法解释第四条的规定，社会组织提起的公益诉讼涉及的环境公共利益，应与社会组织的宗旨和业务范围具有一定关联。即使社会组织起诉事项与其宗旨和业务范围不具有对应关系，但若与其所保护的环境要素或者生态系统具有一定的联系，亦应基于关联性标准确认其主体资格。本案环境公益诉讼系针对腾格里沙漠污染提起。沙漠生物群落及其环境相互作用所形成的复杂而脆弱的沙漠生态系统，需要人类的珍惜利用和悉心呵护。绿发会起诉认为瑞泰公司将超标废水排入蒸发池，严重破坏了腾格里沙漠本已脆弱的生态系统，所涉及的环境公共利益维护属于绿发会宗旨和业务范围。此外，绿发会提交的基金会法人登记证书、年度检查证明材料、无违法记录声明等，证明其符合环境保护法第五十八条，环境公益诉讼司法解释第二条、第三条、第五条对提起环境公益诉讼社会组织的其他要求，具备提起环境民事公益诉讼的主体资格。最高人民法院再审裁定撤销一审、二审裁定，指令本案由中卫市中级人民法院立案受理。 |
| [Significance] | | 【典型意义】 |
| Through the trial of a series of civil public interest litigations regarding pollution of the Tengger Desert and with respect to prominent problems related to the subject qualification of plaintiff in the trial of cases regarding environmental public interest litigations in various regions since the implementation of the newly-revised Environmental Protection Law, the Supreme People's Court determined and described the judicial rules for issues concerning the application of law in the subject qualification of plaintiff as prescribed in Article 58 of the Environmental Protection Law and the Interpretation. It was specified in the ruling rendered upon retrial that in respect of whether a social organization had the subject qualification for filing an environmental civil public interest litigation, the social organization should be examined mainly from three aspects, namely, whether its tenets and business scope included safeguarding the environmental public interests, whether it actually engaged in pubic activities of environmental protection, and whether the environmental public interests it safeguarded were related to its tenets and business scope. The ruling rendered upon retrial elaborated that whether the tenets and business scope of a social organization included safeguarding the environmental public interests should be judged on the basis of their connotation other than simply according to the literal expression; that public activities of environmental protection not only included activities of directly improving the ecological environment, but also activities conducive to improving the environmental control system, enhancing the environmental control capabilities, and promoting the whole society to form extensive consensus on environmental protection; and that even though the matter instituted by the social organization did not have corresponding relationship with its tenets and business scope, if such matter had certain relevance with the environmental elements or the ecological system under the protection of the social organization, the subject qualification of the social organization should also be affirmed according to the standard of relevance. In this series of cases, the Supreme People's Court specified the standards for judging the subject of an environmental civil public interest litigation at the judicial level through specific cases for the first time, which has promoted the development of the environmental public interest litigation system. These cases have been published by the Supreme People's Court as guiding cases and were of great guidance and demonstration roles in the trial of cases regarding environmental civil public interest litigations. | | 最高人民法院通过审理腾格里沙漠污染系列民事公益诉讼案，针对新环境保护法实施以来各地环境公益诉讼案件审理中出现的与原告主体资格有关的突出问题，就环境保护法第五十八条以及环境公益诉讼司法解释规定的环境公益诉讼原告主体资格相关法律适用问题，确立、细化了裁判规则。再审裁定明确对于社会组织是否具备提起环境民事公益诉讼的主体资格，应当重点从宗旨和业务范围是否包含维护环境公共利益，是否实际从事环境保护公益活动，以及所维护的环境公共利益是否与其宗旨和业务范围具有关联性等三个方面进行认定。再审裁定阐明了对于社会组织宗旨和业务范围是否包含维护环境公共利益，应根据其内涵而非简单依据文字表述作出判断；阐明了环境保护公益活动，不仅包括直接改善生态环境的行为，还包括有利于完善环境治理体系，提高环境治理能力，促进全社会形成环境保护广泛共识的活动；阐明了社会组织起诉事项与其宗旨和业务范围即便不具有对应关系，但若与其所保护的环境要素或者生态系统具有一定的联系，亦应基于关联性标准确认其主体资格。该系列案件是最高人民法院首次通过具体案例从司法层面就环境民事公益诉讼主体问题明确判断标准，推动了环境公益诉讼制度的发展，已作为最高人民法院指导性案例发布，对于环境民事公益诉讼案件的审理具有重要的指引和示范作用。 |
| [Commentator] | | 【点评专家】 |
| Wang Shuyi, professor of Wuhan University | | 王树义 武汉大学教授 |
| [Comments] | | 【点评意见】 |
| The qualification of plaintiff in an environmental civil public interest litigation is a practical problem that often troubles judges in the judicial practice of environmental civil public interest litigations in recent years. The problem is how to understand “specially engaging in public activities of environmental protection” in Article 58 of the Environmental Protection Law. As a matter of fact, Article 4 of the Interpretation has already given a clear explanation, but why is there still this kind of problems? The key is to make an accurate interpretation on “specially engaging in public activities of environmental protection.” How to identify whether a social organization is a social organization specially engaging in public activities of environmental protection, the following two aspects are investigated: the tenets as determined in the articles of association of the social organization and the scope of its main business. In this case, the CBCGDF specifies that its tenets are “to widely mobilize the whole society to concern and give support to the cause of biodiversity protection and green development, and safeguard the public's environmental rights and interests and public interests”; Article 7 of the articles of association prescribes that its business scope includes “(5) carrying out and subsidizing theoretical researches and practical activities for safeguarding the public's environmental rights and interests and the public interests in the field of environmental protection, and promoting the administration of environment by law”; and “(9) carrying out and subsidizing other projects and activities conforming to the tenets of the CBCGDF.” Seen from the tenets and main business scope of the CBCGDF, the CBCGDF should obviously be identified as a social organization “specially engaging in public activities of environmental protection” because protecting the biodiversity, promoting and supporting green development, and carrying out the practical activities of safeguarding the public's environmental rights and interests and the public interests in the field of environmental protection is a public activity for environmental protection and it is an important public activity for environmental protection that should be extensively advocated and promoted. Besides, there is corresponding relationship or relevance between the matter instituted by the CBCGDF and its tenets and business scope and its qualification as plaintiff is obvious. The ruling rendered by the Supreme People's Court upon retrial of the case is of good guidance and demonstration to similar cases. | | 环境民事公益诉讼的原告资格问题，是近几年来在环境民事公益诉讼司法实践中时常困扰法官们的一个实际问题。问题主要出在对环境保护法第五十八条中“专门从事环境保护公益活动”的理解。其实，《最高人民法院关于审理环境民事公益诉讼案件适用法律若干问题的解释》第四条已经解释得非常清楚，为何依然出现此类问题？主要还是涉及对“专门从事环境保护公益活动”的正确理解。如何认定一个社会组织是否属于专门从事环境保护公益活动的社会组织，主要考察两点：一是社会组织章程确定的宗旨；二是社会组织的主要业务活动范围。具体到本案，绿发会章程中明确规定，其宗旨是“广泛动员全社会关心和支持生物多样性保护与绿色发展事业，维护公众环境权益和社会公共利益”；第七条规定，其业务范围包括“（五）开展和资助维护公众环境权益和环境保护领域社会公共利益的理论研究和实践活动，推动我国环境法治”；“（九）开展和资助符合本基金会宗旨的其他项目和活动”。从绿发会的宗旨和主要业务范围看，绿发会显然应当被认定为“专门从事环境保护公益活动”的社会组织。因为，保护生物多样性、推动和支持绿色发展、开展维护公众环境权益和环境保护领域社会公共利益的实践活动，就是一种环境保护的公益活动，并且是一种重要的、应当广泛提倡和推动的环境保护公益活动。另外，绿发会起诉的事项与其宗旨及业务范围亦具有对应关系或关联性，其原告资格显而易见。最高人民法院对本案的再审裁定，对类似案件具有很好的指引和示范作用。 |
| 3. | | 三、 |
| All-China Environment Federation v. Shandong Dezhou Jinghua Group Zhenhua Co., Ltd. (Civil public interest litigation regarding air pollution) | | 中华环保联合会诉山东德州晶华集团振华有限公司大气污染民事公益诉讼案 |
| [Basic Facts] | | 【基本案情】 |
| Domiciled in Dezhou City, Shandong Province, Jinghua Group Zhenhua Co., Ltd. (hereinafter referred to as “Zhenhua Company”) was an enterprise engaging in the manufacturing of glass and highly-processed glass products. Although Zhenhua Company invested in the construction of desulfurization and dust removal facilities, there was still a long-term emission of pollutants by exceeding the prescribed standards through two chimneys, which caused air pollution and seriously affected the lives of surrounding residents. It was criticized by the Ministry of Environmental Protection by name and repeatedly penalized by the competent administrative department of environmental protection, but it still continued the emission of pollutants to the atmosphere. All-China Environment Federation (hereinafter referred to as “ACEF”) instituted an action in the Intermediate People's Court of Dezhou City and requested the Court to order that Zhenhua Company should immediately cease the emission of pollutants to the air by exceeding the prescribed standards and add more air pollution prevention and control facilities, and may engage in the production and operation activities after such facilities passed the acceptance of the competent administrative department of environmental protection and were put into use; Zhenhua Company should pay CNY20.4 million (changed to CNY27.46 million during litigation) as compensation for losses caused by the emission of pollutants by exceeding the prescribed standards and CNY7.8 million for losses caused by its refusal to correct the emission of pollutants by exceeding the prescribed standards, and pay the aforesaid sums of money to the special financial account of the local government for the air pollution control in Dezhou City; Zhenhua Company should extend a formal apology to the public on the media at or above the provincial level; and Zhenhua Company should bear the litigation fee, inspection fee, identification fee, witness fee, lawyers' fee, and other expenses paid for litigation. After accepting the case, the Intermediate People's Court of Dezhou City served the complaint for civil action and other materials on claim upon Zhenhua Company, make a public announcement on the case acceptance to the public, and inform the Environmental Protection Bureau of Dezhou City of the case acceptance. The People's Government of Dezhou City and the Environmental Protection Bureau of Dezhou City actively supported the trial of this case, provided their cooperation, and jointly held coordination meetings with the court of first instance. Through the linkage and coordination between the judicial organ and the competent administrative department of environmental protection, Zhenhua Company closed down all production lines, selected a new site in Tianqu Industrial Park far away from living quarters for residents, and constructed a new plant. In this way, the further expansion of pollution and damage was prevented and periodical success was achieved when the trial of the case was still pending. | | 振华公司是一家从事玻璃及玻璃深加工产品制造的企业，位于山东省德州市区内。振华公司虽投入资金建设脱硫除尘设施，但仍有两个烟囱长期超标排放污染物，造成大气污染，严重影响了周围居民生活，被环境保护部点名批评，并被山东省环境保护行政主管部门多次处罚，但其仍持续超标向大气排放污染物。中华环保联合会提起诉讼，请求判令振华公司立即停止超标向大气排放污染物，增设大气污染防治设施，经环境保护行政主管部门验收合格并投入使用后方可进行生产经营活动；赔偿因超标排放污染物造成的损失2040万元（诉讼期间变更为2746万元）及因拒不改正超标排放污染物行为造成的损失780万元，并将赔偿款项支付至地方政府财政专户，用于德州市大气污染的治理；在省级及以上媒体向社会公开赔礼道歉；承担本案诉讼、检验、鉴定、专家证人、律师及其他为诉讼支出的费用。德州市中级人民法院受理本案后，向振华公司送达民事起诉状等诉讼材料，向社会公告案件受理情况，并向德州市环境保护局告知本案受理情况。德州市人民政府、德州市环境保护局积极支持、配合本案审理，并与一审法院共同召开协调会。通过司法机关与环境保护行政主管部门的联动、协调，振华公司将全部生产线关停，在远离居民生活区的天衢工业园区选址建设新厂，防止了污染及损害的进一步扩大，使案件尚未审结即取得阶段性成效。 |
| [Adjudication] | | 【裁判结果】 |
In the trial of second instance, the Intermediate People's Court of Dezhou City, Shandong Province held that during litigation, Zhenhua Company drew off the water, suspended production, and ceased the use of the original plant and it may be identified that Zhenhua Company has ceased its infringement. Before ceasing the emission of pollutants, Zhenhua Company was not equipped with or did not run desulfuration and denitration control facilities, was not equipped with dust removal facilities or had dust removal facilities with insufficient processing capacity, and repeatedly emitted such pollutants as sulfur dioxide, nitric oxide, and smoke and dust to the air by exceeding the prescribed standards. In particular, sulfur dioxide and nitric oxide were precursors to acid rain. The acid rain formed by the excessive emission of sulfur dioxide and nitric oxide would bring personal injury and property damage to residents and the excessive emission of smoke and dust would affect the atmospheric visibility and air cleanliness. Since Zhenhua Company's emission of pollutants by exceeding the prescribed standards resulted in damage to the ecologic added-value of atmospheric environment, it should be liable for ecological environmental restoration and compensate for losses of service functions during the period from the ecological environment's suffering from damage to its restoration to the original state. In the meantime, Zhenhua Company's emission of pollutants to the atmosphere by exceeding the prescribed standards infringed upon the spiritual environmental rights and interests of the public and it should assume the civil liability for extending a formal apology. Therefore, the Intermediate People's Court of Dezhou City rendered a judgment that Zhenhua Company should pay CNY21.9836 million as compensation for losses caused by its emission of pollutants by exceeding the prescribed standards, which would be used for the atmospheric environmental quality restoration; and Zhenhua Company should extend a formal apology to the public on the media at or above the provincial level. After the judgment of first instance was pronounced, no party appealed and it has come into force.
．．．．．． | | 山东省德州市中级人民法院一审认为，诉讼期间振华公司放水停产，停止使用原厂区，可以认定振华公司已经停止侵害。在停止排放前，振华公司未安装或者未运行脱硫和脱硝治理设施，未安装除尘设施或者除尘设施处理能力不够，多次超标向大气排放二氧化硫、氮氧化物、烟粉尘等污染物。其中，二氧化硫、氮氧化物是酸雨的前导物，过量排放形成酸雨会造成居民人身及财产损害，过量排放烟粉尘将影响大气能见度及清洁度。振华公司超标排放污染物的行为导致了大气环境的生态附加值功能受到损害，应当依法承担生态环境修复责任，赔偿生态环境受到损害至恢复原状期间服务功能损失。同时，振华公司超标向大气排放污染物的行为侵害了社会公众的精神性环境权益，应当承担赔礼道歉的民事责任。遂判决振华公司赔偿超标排放污染物造成损失2198.36万元，用于大气环境质量修复；振华公司在省级以上媒体向社会公开赔礼道歉等。宣判后，双方当事人均未提起上诉，一审判决已生效。
．．．．．． |
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