Abstract: An environmental damage litigation (EDL) is a litigation filed by a competent authority against a defendant directly responsible for an actual/potential environmental damage. In general, it is equivalent to civil environmental public interest litigation in a broad sense. In practice, EDLs account for a large proportion of environmental litigations and present a clear “tendency towards tort liability”, the manifestation of which includes regarding environmental damage determination as a factual determination issue and the widespread application of tort law norms and tort liabilities. Despite its specific practical rationality and certain positive effects, this tendency has led to undeniable problems such as confusion in the application of law, ambiguity of environmental damage, defunctionalization of judicial judgment, alienation of institutional purpose, and failure of liabilities. The integrity and systematicity of the environment lead to its diversity of benefits, difficulty in recognition, extensiveness, and non-exclusivity of impact in its interaction with human society. As a result, the rights and interests it carries are environmental public welfare, rather than civil rights or interests. Due to the uncertainty of environmental public welfare in terms of attribution, status of protection, and the circumstances and degree of damages, the remediation of environmental damages should be realized not by resorting to tort law directly, but by an interest-balancing pathway. What a court does in an EDL is not merely apply written laws but make an authorized judicial discretion within the framework of the rule of law. In the face of two typical scenarios of actual/potential environmental damage, a court should take the interest balancing framework established by the second-order justification theory as a reference, apply the rule of remediation or the rule of prevention under corresponding conditions, and exclude the application of the rule of compensation. In scenarios where environmental damage has already occurred, courts should apply the rule of remediation under the following conditions: (1) the environmental damage is substantial or delay in intervention would result in unacceptable losses; (2) the damage arises from wrongful acts attributable to the actor; (3) the remedial measures can achieve anticipated outcomes without exceeding the necessity to rectify distorted social relationships; (4) courts must rigorously scrutinize the plaintiff's standing in representing public interest and explicitly demonstrate the rule-formation process in judgments. In cases involving potential environmental damage, courts should adopt the rule of prevention under the following conditions: (1) the conduct poses a concrete and imminent threat to environmental public interests; (2) the risk involves unacceptable environmental damage; (3) the preventive measures are effective, necessary, and proportionate.

Author: LIN Xiaoxiao, assistant research fellow, CASS Institute of Law;

Source: 3 (2025) Global Law Review.