Individual rights and the environmental public interest: A comparison of German and Chinese approaches to environmental litigation

Abstract

AbstractThis article compares the framework of environmental public interest litigation in China to the individualized system of judicial review in Germany. It shows that environmental reform requires modern States such as Germany and China to consider certain objective criteria related to the public interest. These criteria are objective insofar as they relate to certain empirically measurable conditions that have arisen in the context of industrialization, and they relate to the public interest insofar as their treatment requires substantial intervention from the State to ensure that economic practices do not endanger the basic natural preconditions of human life. Between the law's instrumentality to the ‘normal’ functioning of modern industrial society and reforms enacted in the public interest, environmental public interest litigation in Germany and China stands out as it implies a possibility for various stakeholders outside of the administrative structure to promote environmental interests. This returns a degree of agency to environmental stakeholders in helping to practically determine the transition towards sustainability. The substantiveness of environmental litigation is assessed, first, in relation to its openness, examining which social actors possess standing to litigate in the public interest, and, second, in relation to its scope, referring to which acts become contestable through the framework of public interest litigation. The court cases, academic debates and legislative reforms surrounding environmental public interest litigation in Germany and China reflect the decisive features of their respective legal ideologies, but they are also an area within which the limits of the dominant legal ideology are tested.