A comparative analysis of environmental courts in sweden and china pdf

Fudan J. Hum. Soc. Sci.
DOI 10.1007/s40647-016-0136-9
ORIGINAL PAPER

A Comparative Analysis of Environmental Courts
in Sweden and China
Cuimin Wang1,2

Received: 8 January 2015 / Accepted: 30 May 2016
Ó Fudan University 2016

Abstract The numbers of environmental courts and tribunals have been increasing
tremendously in the twenty-first century in various countries. Facing with the
challenges of environmental disputes explosion, China has to keep up with the
trend. A system of environmental courts from institution to procedure rules has been
established according to the Swedish Environmental Code of 1999. In contrast, the
environmental courts in China are far from perfect, and the reforms of the environmental courts lack unified legal grounds, specific structural design, and clear
procedure rules. An analysis concerning the origin and development, standing, the
composition of judges, the litigation costs of the Sweden environmental courts will
be revealing and beneficial for the bettering of the Chinese environmental courts
system.
Keywords Environmental courts Á Comparative analysis Á Environmental dispute
resolution system Á Reform proposal

1 Introduction
The numbers of environmental courts and tribunals (ECTs) have been increasing
tremendously in the twenty-first century in various countries. More than three
hundred and fifty ECTs have been established in 41 countries by 2009 (Pring and
Pring 2009: xi). Facing with the challenges of environmental dispute explosion,

& Cuimin Wang

1

KoGuan Law School, Shanghai Jiaotong University, Shanghai, China

2

Shandong Jianzhu University, Jinan, China

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China has to keep up with the trend. (Yang and Huang 2012: 66).1 Up to the year of
2014, three hundred and seventy-one environmental courts have been established in
China. However, environmental courts need reform due to the lack of basic legal
grounds, specific institutions, and procedural rules. Many environmental disputes
especially those of group lawsuit and public interest litigation failed to be remedied
or failed to be remedied timely (Xiao 2010: 32).2 Therefore, it is of vital importance
to examine the judicial system concerning environmental litigation and to learn the
successful experiences outside.
The reasons for choosing Swedish environmental court system as the object of
comparative study are threefold. Firstly, Sweden and China both emphasize public
enforcement rather than private enforcement in the field of environment protection.
Secondly, ECTs are a species of specialized courts and tribunals. Types of ECTs
vary depending on the legal culture and political situation of each country. In
essence, types of ECTs are similar in Sweden and China. They all chose to set up a
specialized chamber, bench, or panel of judges within the selected general court to
hear environmental cases. Finally, the environmental judicial system in Sweden is

relatively mature after a long time development, with specialized environmental
courts being established in the judicial system according to the Swedish
Environmental Code (EC) of 1999. With a sound institutional and procedural
basis, the system in Sweden has been very successful in preventing the
environmental tort disputes. Previous literature chiefly examines single ECT in
depth or reports on multiple ECTs without evaluating and comparing their specific
features until appearance of Green Justice: creating and improving ECTs written by
George Pring and Catherine Pring. It identified 12 critical characteristics and
presented us with examples of successes and failures from around the world. It
provided a framework against which to assess existing or proposed institutions. It is
beneficial for overall construction of environment courts in China when we select
two countries that are similar on the law enforcement model and the type of ECTs to
compare on the basis of former studies.
This thesis compares the setting structure of environmental courts and
environmental dispute litigation resolution system mainly between the two
countries. The macro-comparative analysis and the micro-comparative analysis
are used as the main research method. It uses macro-comparative analysis method to
dissert the origin and development of environmental courts and the setting structure
for seeking applicable ways universally to improve dispute resolution efficiency. It
uses micro-comparative analysis method to explain the jurisdiction, standing, the
composition of judges, and the litigation costs which are the basic core issues in the
environmental dispute litigation resolution system for exploring the generally
applicable rules. Research dates about Swedish environmental courts are from the
Swedish Environmental Code of 1999, related research achievement of Nordic
scholars and representative cases. Research dates about Chinese environmental
1

From 1980 of the twentieth century to the late 90’s, environmental complaints in China have been
maintained at around one hundred thousand. In 2003, environmental complaints reached nearly five
hundred thousand and exceeded seven hundred thousand in 2008.

2

The Legal Aid Department of the All-China Environmental Federation (ACEF) provided litigation
assistance for 22 cases in 2007. Thirteen cases were rejected or are resting.

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A Comparative Analysis of Environmental Courts in Sweden…

courts originate from reform plan, judicial interpretation, and typical cases. The
status and characteristics of environmental courts between the two countries emerge
by using two kinds of research methods. The party and the court are the basic role in
litigation. The assignment of right and obligation between the party and the judge is
the basic issue of litigation mode. The jurisdiction, standing, the composition of
judges, the litigation costs, and the rules of the trial are the basic aspects of
environmental litigation mode. Comparative studies in respect of those aspects of
the two judicial systems will be very revealing and beneficial for the expected
reforms in China.

2 The Characteristics of Swedish Environmental Courts
2.1 The Origin and Development of Swedish Environmental Courts
In Sweden, courts are divided into general courts, administrative courts, and special
courts. General courts are the District Courts, the Appellate Courts, and the
Supreme Court. The district courts are the courts of first instance, unless otherwise
prescribed. The principal tasks for the general courts are the resolution of
adversarial disputes in private law and criminal cases (Lindel 2013: 21, 39–40). In
order to assure the effective protection of citizens in this administrative hierarchy,
an administrative court structure was established to handle public law disputes

(Sterzel 2004: 7). Sweden has administrative courts for the appeal (judicial review)
of administrative decisions, which are divided into three levels: the County
Administrative Courts, the Administrative Courts of Appeal, and the Supreme
Administrative Court.
In 1999, the EC entered into force which replaced some 15 older pieces of
legislation related to the environment and harmonized the general rules and
principles in this field. Most content of the EC is administrative law. In addition, the
EC also contains rules of compensation, penalties, and the composition of the court
(Darpo¨ 2009: 2). The aim of the Code was to harmonize and decentralize the
entertainment of environmental disputes. Following the presentation of the EC,
Sweden also brought a new system for permits and appeals. The Swedish
Environmental Courts replaced the national licensing board (Koncessionsna¨mnden
fo¨r miljo¨skydd), water courts, and the administrative courts in this respect (Darpo¨
2009: 2). There are five district courts which are expected to deal with
environmental cases and to handle cases concerning matters of permits, appeals
with respect to administrative decisions or administrative orders, as well as actions
for injunctions and damages under the EC (Westberg 2010: 204). In fact, these
‘‘Land and Environmental Courts’’ (LEC) are the respective division within five
district courts. Land and Environmental Court of Appeal (LECoA) is a division
within the Stockholm Court of Appeal. In some cases, an appeal can even be heard
by the Supreme Court. In the year of 2011, cases concerning the planning, the
building, and the infrastructure that are expected to be heard by the administrative
authorities in the first instance are allowed to be appealed to the LEC (Fig. 1).

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General Court

Administrative Court

The Supreme Court

The Supreme Administrative Court

The Appellate Court

The Land-and Environmental Court of
Appeal

The Administrative Court of Appeal

The District Court

The Land-and Environmental Court (5)

The County Administrative Court

County Administrative Board (21)

Municipal Environmental Board (290)

Fig. 1 The structure of Swedish Environmental Courts

2.2 The Jurisdiction of Swedish Environmental Courts
In Sweden, environmental courts assume part of the administrative decision-making
function, although the supervision is mainly exercised by the municipalities, namely
the Municipal Environmental Boards (MEB) and the County Administrative Boards

(CAB) (Darpo¨ 2009: 3).3 Environmental courts as the first instance issue permits for
environmentally hazardous activities of great importance and most water operations, except for applications for land drainage that shall be considered by CAB. In
addition, environmental courts are in charge of the approval of alteration or repair
work concerning the storage and release of water, extension of time limit for
completion or commencement of an activity, withdrawal of a permit or prohibition
of continued activities.
Swedish environmental courts essentially act as administrative courts for
environmental cases, although Swedish environmental courts are divisions within
the general courts (Darpo¨ 2009: 3). Environmental courts accept and hear the appeal
against a supervisory decision made by the public authorities, while appeal against a
supervisory decision made by the MEB is made to the CAB whose decisions in
supervisory and permit cases are appealed to an Land and Environmental Court
(LEC) and thereafter—if a leave to appeal is granted—to the Land and
Environmental Court of Appeal (LECoA). A judgment from an environmental
court as the first instance shall be appealed to the LECoA and thereafter—if a leave
3

MEB is independent of the government and the central agencies. Thus, no state agency can instruct
them on how to apply the law against individual subjects, but their decisions can be appealed. CAB is
responsible for environmental monitoring and supervision of the air and water and is responsible for
inspections and enforcement, mainly in the case of activities that entail a major environmental impact.
They are also engaged in nature conservation aimed at maintaining functional ecosystems and preserving
biological diversity.

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A Comparative Analysis of Environmental Courts in Sweden…

to appeal is granted—to the Supreme Court (Nilsson 2010: 484). Cases that start in

authority cannot be appealed beyond the LECoA, except in rare occasions when the
court allows for such an appeal to be made. All appeals of environmental decisions
follow this route, although the starting point and the terminus differ. Some cases are
dealt with differently. The government may decide to examine applications for
operations that are considered to be of principal importance for the country as a
whole, such as constructions for basic industry, energy production, and important
communication links. Government’s decisions cannot be appealed against by an
ordinary procedure of appeal, but those people who are concerned and NGOs may
apply for judicial review to the Supreme Administrative Court (Darpo¨ 2009: 3).
Swedish environmental courts also have jurisdiction in cases concerning
compensation, including compensation connected with public interventions and
permit application procedures relating to water operations, compensation for certain
kinds of environmental damage, such as loss suffered as a result of prohibition
against fishing and other private claims, such as bodily injury, material damage, or
pecuniary loss. According to section 12, chapter 32 of the EC, a person can request
the court to order the operator of an activity to take protective measures or other
precautions to stop further activities. However, this only applies to activities that
operate without a permit according to the EC. In this situation, the plaintiff can also
ask for an injunction in accordance with the Code on judicial procedure. Group
actions in environmental law are tried by the Land and Environmental Courts
(Lindblom 2009: 13). For criminal case, the power of prosecution is the prerogative
of the Attorney General. According to chapter 26 of the EC, the supervisory
authorities have a duty to report to the police or the prosecution service when there
is a suspicion that a criminal offense has been committed. When a suspected offense
is reported, this may lead to a criminal investigation on the part of the police, which
may result in the issuance of a fine by the prosecutor or a prosecution through the
court (Korsell 2010: 142).
2.3 The Standing for Parties in Swedish Environmental Courts
In section 12, chapter 16 of the EC, individual standing is defined as: ‘‘any person
who is the subject of a judgment or decision can appeal against judgment or

decision.’’ To get a clear understanding of those who are entitled to appeal, cases
have to be studied. In administrative cases, any resident of a municipality who is
concerned by the decision or judgment can challenge certain local decisions in court
(Darpo¨ 2013: 31). For instance, people living in the vicinity of an activity or an area
affected can be regarded as concerned by the administrative decision. Individuals
who face a risk for being affected can be regarded as concerned by the pollution
discharge license issued by the competent department and can challenge it in court.
People who are the owners of land likely to be affected or have fishing right in the
vicinity can be regarded as concerned by the water operation license or dam
constructions license. The appellant can plead any private or public interest in the
case. However, mere public interests do not suffice for standing, and private
interests must be affected to gain admission to the court despite it is to be generous
interpreted. Individuals including close neighbors cannot gain admission to the court

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at all. This is true also with respect to omissions. For example, the inhabitants living
on Hornsgatan, one of the main roads of Stockholm, have been challenging the local
authorities’ negligence to enforce the air quality standards for particulate matters
and oxides of nitrogen in accordance with the union law (Darpo¨ 2009: 6).
Administrative organs are parties without question. The other parties who belong
to the ‘‘public concerned’’ are the applicant/addressee in a typical ‘‘two-party case.’’
If the appeal body subsequently alters the decision, the deciding body can appeal
then. When an administrative decision affects a wider range of people, there may
appear as ‘‘third parties.’’ When someone is granted standing as a third party, he or
she is not at all dependent on the primary parties to advocate his or her interest. The
time frame for the third-party intervention is the same as to all parties in the

administrative procedure that is the time frame for appeal. Normally, an appeal has
to be done within 3 weeks from publication or notification of the decision (Darpo¨
2009: 5). Sometimes, administrative authorities may appeal an administrative
decision to a court, provided that the authority is considered ‘‘concerned’’ or the
relevant legislation provides for a right of appeal (Anker et al. 2009: 18).
Individuals can bring a suit to the environmental court for environmental
damages caused by bodily injury, material damage, or pecuniary loss. A private
party can only rely on his or her own interests to bring a case. Private actions for
anything but damages are very rare in Sweden (Darpo¨ 2009: 8). A private group
action may be initiated by a member of the group, who maybe a natural or a legal
person. The plaintiff must have standing to be a party to the proceedings with
respect to one of the causes of action petition for injunctions as well as individual
damages for injury suffered by individual members of the group. Group members
who have opted in are not parties. However, a member of the group is equated with
a party when applying the rules of the Code of Judicial Procedure on disqualification
situations, pending proceedings, a joiner of cases, examination during the
proceedings and on other issues relating to the evidence (Lindblom 2009: 14–15).
According to section 13, chapter 16 of the EC in 1999, nonprofit associations
whose purpose is to promote nature conservation or environmental protection
interests may appeal concerning permits, approvals, and exemptions. Additional
restriction criteria are that the association has operated in Sweden for at least
3 years and has not less than two thousand members. However, the legislation was
amended in 2010 due to the judgment of the Court of Justice of the European Union
(CJEU) in the DLV case (C-263/09). The criterion has turned into at least one
hundred members or else, which can show that it has ‘‘support from the public.’’ In
Sweden, most areas of environmental law allow environmental NGOs to appeal
decisions taken under the EC including species and nature protection. However,
some areas of law are not included in the EC, even though it has a close connection
to the environment, such as forestry and hunting. Environmental NGOs were
therefore excluded from challenging administrative decisions relating to hunting or

forest management even in matters clearly connected to species and nature
protection. This situation is changed through judicial precedents in 2013. The
Stockholm Administrative Court of Appeal granted NGOs to challenge administrative decisions that might contravene the hunting of species protected by EU law

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A Comparative Analysis of Environmental Courts in Sweden…

(Yaffa and Darpo¨ 2013: 251–255). In early 2014, the Supreme Administrative Court
confirmed this position.4
In practice, the national criterion clearly is in breach of the nondiscrimination
clause of the Aarhus Convention. This is not a problem when Nordic NGOs appeal a
Swedish decision as it is equated to an internal organization in accordance with the
1974 Nordic Convention on environmental protection. But if it is a Polish or
German NGO, which appeals a Swedish permit for a combustion plant with farranging effects on the atmosphere or the Baltic Sea, it will not meet the national
criterion (Darpo¨ 2012: 11). The success rate of NGO’s standing in environmental
cases is reported to be almost 50 % in the environmental courts.5
Groups and NGOs also have a standing to start a civil action according to the
Group Proceeding Act entering into force on January 1, 2003. The act provides for
three forms of action: the private group action, the organization group action, and
the public action. An organization group action is restricted to two legal areas: the
consumer protection and the environment protection. In environmental law,
nonprofit organizations dedicated to nature conservation and environmental
protection are entitled to initiate group actions. There are no restrictions concerning
authorization by the government in respect of the size and the duration of the
organization. A new organization with a few members can be set up one day and sue
the next day provided that the organization’s financial affairs are in good order and
the court thinks the organization is a good representative of the group. Finally, the
Swedish Environmental Protection Agency may initiate group actions (Westberg

2010: 221–222). Only one private group action has been instituted with respect to
the environment since enactment of the Group Proceeding Act. The NGO’s group
action has not been initiated yet (Lindblom 2009: 20–23).
2.4 The Composition of Judges in Swedish Environmental Courts
Environmental cases usually involve complex technical and scientific problems. In
general, individuals therefore have no ability to prove that certain precautions or
protective measures are required. Thus, the decision-making body must include
independent and impartial technicians (Darpo¨ 2009: 3). An environmental court
consists of a chair, who shall be a legally qualified judge, one environmental
technical judge and two expert members. The court may also include an additional
qualified judge and an additional environmental technician whom are nominated by
the industrial authorities and national public authorities. Environmental technicians
shall have technical or scientific training and experience concerning environmental
issues. One of the expert members shall have the relative experience concerning
matters falling within the area of responsibility of the Swedish Environmental
Protection Agency. The president of the court shall decide, with reference to the
nature of the case, whether the other expert member shall have experience of

4
5

¨ nok case. Case No.5962-12. Judge on February 14, 2014.
Ho¨gsta fo¨rvaltningsdomstolen in the A
¨ D 2001:9, Land and Environmental Court of Appeal.
MO

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industry or of local government.6 When a vote is taken, legally qualified judges shall
first give their opinion followed by the environmental technician and lastly the
expert members. The chair has the casting vote except in cases relating to the award
of prospective fines, where the most lenient opinion shall prevail.7 The Land and
Environmental Court of Appeal shall also appoint a technician in addition to legally
qualified judges. It is competent when four members, at least three of whom shall be
legally qualified judges and technical judge.
2.5 The Litigation Costs in Swedish Environmental Courts
Costs of litigation tremendously limit the access to the courts. Costs in
environmental courts usually include application fees or administrative appeal
fees, court fees and other court costs, lawyers’ fees, experts’ fees, witness’ fees, and
bonds for obtaining injunction relief (also called securities or cross-undertakings in
damages) (Darpo¨ 2013: 17). In Sweden, there is no cost barrier for the access to
justice. Except for civil cases—where there is a small application fee of SEK450—
there are no court fees in environmental cases. Appeals are free of charge (Anker
et al. 2009: 19). There are no court fees, no obligation to pay costs for the
opponents, no bonds to be paid for obtaining injunction relief or other costs to be
paid, irrespective of whether the case is on administrative appeal or goes to the
court. The responsibility to investigate the case rests upon the administrative agency
and the environmental courts according to the ‘‘ex officio principle.’’ Because
technicians and experts participate in the decision making, the parties rarely need to
retain an expert providing testimony. If applicants want to be represented by counsel
or use an expert witness, they will have to pay out of pocket and the costs cannot be
remunerated from a losing opponent. Although there is not any mandatory
requirement for using lawyers in the environmental court, inexperienced neighbors
usually need lawyers in order to match the expertise of the operators (Darpo¨ 2013:
5–7).

3 The Characteristics of Chinese Environmental Courts

3.1 The Origin and Development of Chinese Environmental Courts
In China, courts are divided into general courts and special courts. The general
courts are divided into four levels: the District People’s Court, the Intermediate
People’s Court, the High Provincial People’s Court, and the Supreme People’s
Court. Within each level, there are four divisions which separately entertain
administrative, civil, commercial, and criminal cases. In addition to the general
courts, there are special courts including the Military Court, the Maritime Court, the
Railway Transport Court, and the Forest Court. Most environmental cases are under
the jurisdiction of the general courts. The Forest Courts only handle cases
6

20 Swedish Environment Code § 4 (1999).

7

20 Swedish Environment Code § 10 (1999).

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A Comparative Analysis of Environmental Courts in Sweden…

concerning the protecting of the forest resources in the forest region. The Maritime
courts entertain cases concerning damages from marine pollution.
In China, the reform of environmental courts can be divided into two phases: The
first phase began in 1989 and was finished in 2008. Part of the District People’s
Court established tribunals in the grassroots environmental protection agency or
within the law enforcement team (Wang 2013: 36). The main purpose of
establishing tribunals mentioned was to cooperate with the administrative enforcement of environmental protection. The establishment of all these tribunals is based
neither on the authority issued by the superior court, nor on the internal working

system or other normative documents. In fact, the Supreme Court considered that
the settings confounded the judicial function and administrative functions of the
court. On February 10, 1989, the Supreme Court denied the establishment of an
environmental tribunal by Qiankou District People’s Court of Wuhan City. As a
result, most of these tribunals disappeared after a period of time (Wang 2013: 37).
The second phase of the reform started in 2007 and was finished in 2014. There
are four types of reform in this phase: environmental divisions (shen pan ting),
collegial panels (he yi ting), circuit courts (xun hui fa ting), and detached tribunals
(ren min fa ting).8 The occurrence of serious environmental pollution accidents has
been deemed to be the direct reason for setting up environmental courts in some
regions.9 Up to December of the 2012, 88 District People’s Courts, 19 Intermediate
People’s Courts, and two High Provincial People’s Courts have established
environmental trial divisions, collegial panels, circuit courts or detached tribunals.
There are just 10 circuit courts and 2 detached tribunals in China in 2013. Circuit
courts composed of the collegial panels travel around to examine environmental
cases in its jurisdiction on site.
The third phase of reform started in July 2014. The Supreme People’s Court
established an environmental trial division. At the same time, the Supreme People’s
Court released a judicial guidance aiming at enhancing the environmental justice
(Judicial Guidance). It is required by the judicial guidance that environmental trial
division should be established in the each High Provincial People’s Court.
Meantime environmental divisions might be set up in the District People’s Courts
and the Intermediate People’s Courts provided that the number of environmental
disputes is large in that place. Collegial panels can be used in the District People’s
Courts provided that the number of environmental disputes is little in that place. Up
to the year of the 2014, two hundred ninety-one District People’s Courts, 92
Intermediate People’s Courts, and 17 High Provincial People’s Courts have
established environmental trial divisions or collegial panels. China chose environmental trial divisions and environmental collegial panels as the type of reform.
Environmental trial divisions handle four types of cases which are criminal cases,
administrative cases, private cases, and cases concerning the execution of

8

This phase uses ‘‘environmental court’’ as an umbrella term to cover four types of reformatory attempt,
namely environmental divisions (shen pan ting), collegial panels (he yi ting), circuit courts, and detached
tribunals (ren min fa ting). Detached tribunal is a branch of the District People’s Court at the grassroots
level for the convenience of parties.

9

The pollution of ‘‘two lakes and one reservoir’’ in Guiyang City, the blue green algae incident in Taihu
Lake is the main reason why these regions established the environmental court.

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C. Wang

Special Court

General Court

The Supreme People’s Court
17 High Provincial People’s Courts
establish the environmental courts

The Provincial High People’s court

62 Intermediate People’s Courts
establish the environmental courts

The Intermediate People’s Court

291 Basic People’s Court establish
the environmental courts

The District People’s Court

The Maritime court

Fig. 2 The structure of Chinese Environmental Courts

administrative orders.10 Most of the collegial panels are composed of judges and
expert jurors at present (Fig. 2).
3.2 The Jurisdiction of Chinese Environmental Courts
In China, environmental courts do not assume any administrative decision-making
function. They only bear the role of trial. Environmental divisions established
within the general courts accept and hear administrative cases, private cases, and
criminal cases. With regard to illegal administrative acts, improper administrative
action, or administrative omission made by the environmental public authority,
public concerned parties have two ways to get relief in China. They are
administrative appeal and judicial review. Counterpart or interested parties have
freedom to select either. If you choose administrative appeal firstly, you still own
right to institute judicial review when you are not satisfied with the result of
environmental administrative appeal. Environmental administrative litigation,
namely environmental administrative judicial review, is the final dispute resolution.
Chinese environmental courts are also given jurisdiction in cases concerning
compensation, including ecological damage and other private claims, such as bodily
injury, material damage, and pecuniary loss. Interested person can ask for an
injunction to stop further activities or make certain act prior to the litigation or
during the court. For criminal case, the power of prosecution is the people’s

procuratorate authority. Any unauthorized institutions and individuals have a duty to
report to the police or the procuratorate authority when there is a suspicion that an
environmental criminal offense has been committed.
Judicial Guidance in July 2014 depicts the setting structure of environmental
courts in China. The Supreme People’s Courts and the High Provincial People’s
Courts should establish environmental divisions. However, the Intermediate
10
In China, administrative authority can apply for a court to execute the administrative decision when
natural persons, legal persons, or other organizations within the statutory period neither file the
administrative lawsuit nor perform specific administrative decision.

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A Comparative Analysis of Environmental Courts in Sweden…

People’s Courts can decide whether or not to set up environmental divisions
according to the number of environmental disputes. Centralized jurisdiction across
the region has not been achieved. Judicial Guidance is a concept of reform of
environmental judicial system. How to go to the reform road of the future in the
level of the intermediate court is unknown. In 2015, the judicial interpretation of
civil procedure stipulates the court of first instance is the intermediary people’s
court for cases of environmental civil public interest litigation. How to deal with
level jurisdiction of other types of environmental cases? There are not any special
provisions. So exploring a unified judicial institution and jurisdiction rules for
environmental cases is the core effort of the reform.
3.3 The Standing for Parties of Chinese Environmental Court
Access to justice is a fundamental issue in environmental law. Aarhus Article 9
contains elaborate access to justice provisions. States must provide access to judicial
or administrative forums to enforce environmental laws against both private persons

and the government. In China, the scope of standing for individuals in the
administrative litigation has been expanded in judicial practice from the direct
administrative counterpart to the third party who is affected by the administrative
decisions or judgments. Pan Zhizhong and other 3 villagers initiated an environmental administration proceeding in 2011 and claimed that Hebei Province
Department of Environmental Protection revoked the approval with respect to the
environmental impact report of the Qinhuangdao western garbage incineration
power generation projects, which were proposed by Zhejiang Weiming environmental protection company (Liang and Wang 2014). However, standing for
individuals in the administrative appeal is limited to the administrative counterpart.
Other individuals, who appeal as the interested concerned, have no standing to file
an administrative appeal. In the field of environmental civil litigation, private group
actions seldom get access to justice since the courts are unwilling to accept groups,
sensitive and difficult cases or cases intervened by the local government. Another
reason is that judges usually deem that the court is not competent to examine
complex environmental tort compensation cases. For example, many Chinese
fishermen from Shandong Province are shut out of the judicial gate by the Maritime
Court and are forced to the USA to file a lawsuit for compensation in the case of
Conocophillips oil spill pollution, although the damages occurred completely in
China (Feng and Zhou 2012).11 In 2013, Shandong fishermen filed their claim to the
Qingdao Maritime Court once again. The prosecution is accepted in October 31,
11
Oil spill accident occurred at a drilling operation jointly owned by ConocoPhillips and state-run
exploration giant CNOOC in the Bohai Bay. The accident saw more than 500 cubic meters of oil and oilsoaked mud released into the sea, polluting 6200 square kilometer areas. ConocoPhillips agreed to pay 1.1
billion Yuan to clean up the mess and another 1 billion to compensate affected fishermen. The agriculture
ministry used the money to settle claims by fishermen in Hebei and Liaoning provinces, but refused to
give money to the fishermen in Shandong. In November 2011, Shandong fishermen take civil action to
Qingdao maritime court. But the court did not accept the case. In July 2012, a group of 30 fishermen from
Shandong Province filed their claim in a court in the US state of Texas seeking compensation from an oil
spill.

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2015. The change we have been looking forward to have happened in 2015. But this
is only the beginning.
Environmental NGOs also had no standing to file an administrative appeal or
administrative lawsuit for public interests before 2012, although in judicial practice
some courts breached the legislation in individual cases and accepted administrative
public interests litigation filed by NGOs (Zhang 2012: 60).12 Chinese Civil
Procedure Law was amended in 2012. It permits the authorities that are allowed in
the law and the relevant social organizations to initiate public interests litigation
firstly.13 At present, there is no related provision to entitle affected individual’s
standing in public interests litigation. The new Civil Procedure Law has come into
force, but the courts still refuse to accept the environmental litigation concerning
public interest initiated by NGOs under the excuse that the courts need the Supreme
People’s Court to make relevant judicial interpretations (Qie 2013).14 Thus,
effective enforcement of environmental protection legislation is still facing big
obstacles. This situation has not changed until the new interpretation of civil
procedure promulgated in 2015.
3.4 The Composition of Judges in Chinese Environment Courts
In China, there is no clear specification about the cultivation and selection of
specialized adjudicatory personnel for environmental cases. Established environmental courts are usually composed of judges that have special training experience
concerning environmental law. Some environmental courts select expert jurors as
specialized adjudicatory personnel and qualified judges ad hoc to compose the
bench (Shen and Shi 2012).15 Expert jurors who do not work full-time and qualified
judges determine issues of fact and law together and have equal voting rights.
Furthermore, in China there is no provision with respect to the proportion between
judges and jurors in the environmental field. According to the general rules, the
proportion of jurors in the collegiate panel shall not be less than 1/3. In the second

instance, litigation procedure does not permit jurors to participate in the collegiate
panel. An advisory committee of expert composed of 13 environmental protection
specialists has been established in the Guiyang intermediate environmental Court.
These specialists are from the relevant departments of environmental protection
agencies and responsible for providing professional advice for the trial (Liao 2014).

12
For example, All-China Environment Federation prosecutes Qingzhen Administration of Environmental Protection of Guizhou Province in 2009.
13
In China, when Administrative Procedure Law has no related provision, it can refer to the provision of
the Civil Procedure Law.
14
In March 2013, All-China Environment Federation sues a farm discharging sewage and polluting the
local residents. Weifang City Intermediate People’s Court refuses to accept the case. The reason is that
the case need ask for the instruction of superior court.
15
Nanjing Intermediate People’s Court employed the environmental experts as jurors in 2012. Guiyang
Intermediate People’s Court and Qingzhen Basic People’s Court employed the environmental experts as
jurors in 2007.

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3.5 Litigation Costs of Environmental Courts in China
In China, we have no special provision concerning costs in environmental cases. In
administrative litigation or civil proceedings, it is provided that litigation costs
include court acceptance fees, application fees, and other litigation costs paid to the
witnesses, experts, translators, and adjuster for their transportation, accommodation,

living expenses, and loss of income subsidies occurred and so forth. Criminal
proceedings are free of charges. The plaintiff prepays, and the losing party covers all
the cost finally. Each party bears their own lawyer’s fee and cannot be remunerated
from the losing opponent. The identification fees, announcement fees, evaluation
fees, and the like generally follow the rule that advocates prepays and the losing
party pays finally. The barrier to litigation mainly lies in the field of civil litigation.
The party who bears the burden of proof usually cannot afford the expensive
identification fees, lawyer’s fees, and so forth.16 Meanwhile, China lacks alternative
fund systems to provide assistance for the participants during the litigation.

4 Comparative Analysis of Environmental Courts in Sweden and China
4.1 The Type of Environmental Courts Between the Two Countries
ECTs are a species of specialized courts and tribunals. Types of ECTs vary
according to the legal framework, political situations, and environmental goals for
each country. ECTs include judicial courts, administrative tribunals, and other
dispute resolution forums. Judicial courts exist in all standard court system—civil,
criminal, administrative, and hybrids of those three. Judicial models include
freestanding specialized environmental courts, chambers, or panels of judges within
a regular court, and designated green judges in a general court. Administrative
tribunals cover a number of options that are still specialized government bodies
empowered to make binding decisions in environmental disputes. Other ECTs
include special commissions, ADR programs, ombudsman, and human rights bodies
(Pring and Pring 2009: 21–24). In essence, types of ECTs are the same in Sweden
and China. They all chose to create a specialized chamber, bench, panel of judges
within the selected general court to hear environmental cases.
4.2 The Structure of Environmental Courts System Between the Two
Countries
Environmental courts in the two countries share the same characteristic of the
comprehensive jurisdiction. Swedish environmental courts have legal jurisdiction
over both land use and environmental areas incorporating civil cases, administrative

cases, and cases with some degree of enforcement power (administrative sanctions,
16
In the Conocophillips oil spill pollution case, professional appraisal agency fees are RMB one hundred
and fifty Yuan per mu. Five thousand mu is RMB seven hundred and fifty thousand Yuan. The fishermen
are hard to bear the costs.

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C. Wang

administrative fees, etc.). As mentioned earlier, Chinese environmental justice
reforms in certain regions incorporate criminal cases, administrative cases, private
cases, and execution of administrative orders into a ‘‘one stop shop.’’ This
centralized system can reduce the referee conflict, avoid fragmentation of multiple
and differing fora, the delay and costs of the litigation.
However, some differences concerning the structure of environmental courts
system exist in the two countries. Firstly, Swedish environmental courts exercise
administrative powers. In Swedish history, the role of the court has been
constrained. The historical fetters have been a mixture of political arguments for
democracy and principles of equality, the firm belief in state supervision and
control, instead of court actions. However, the role of the Swedish courts has grown
in importance during the last decade of the 1990s and the first years of the new
millennium (Lindblom 2009: 8). The development of environmental courts has
confirmed this trend. Environmental courts act as permitting authorities and
appellate courts for all kinds of decisions under the EC and the Planning and
Building Act. The district environmental courts are responsible for the 300–400
Class A activity permits.17 Environmentally hazardous activities of great importance must obtain a permit from the environmental court, as do all kinds of water
operations (Darpo¨ 2009: 2). At this point, China is different from Sweden. There is a
distinct demarcation of jurisdiction between the courts and the administrative

authorities. Administrative permissions can only be granted by the administrative
organ. Environmental courts do not assume any administrative decision-making
function. They only bear the role of trial.
Secondly, the EC adopts an integrated and holistic approach when ruling on a case.
By placing the permit system for polluting activities in the MEB, CAB, and regional
court in turn, Sweden has created a ‘‘one stop shop,’’ thereby avoiding two steps
(Bja¨lla˚s 2010: 179–183). Administrative appeal and judicial review are integrated ‘‘in
one line’’ in Sweden. The person who is seeking relief needs not make a choice
between administrative appeal and judicial review like those in China. Instead, all
types of cases are ultimately handled by the environmental courts (Darpo¨ 2009: 4). The
scope of review is complete and reformatory. Environmental courts as the appellate
body have the authority to replace the administrative decision with a new one. Most
types of environmental cases are administrative behind the centralized jurisdiction.
Unlike Sweden, Chinese environmental courts do not have administrative permit
power. Stakeholders have freedom to choose the way of relief between administrative
appeal and judicial review. Administrative appeal not only reviews the legality of
administrative acts, but also reviews its reasonableness. Administrative appeal has the
right that the courts usually do not have to change the specific administrative acts
directly. If the applicants are not satisfied with the result of administrative appeal, they
can bring an administrative lawsuit. Applicants certainly can apply administrative
lawsuit directly without administrative reconsideration. However, the court can only
review the legality of specific administrative acts and is not entitled to review the
17
Class A refers to licensing of big pollution activities and most water operations. Class B refers to other
licensing, enforcement, certain physical planning. A regional or a local authority is responsible for
permitting Class B-type activities. No permit is needed for the minor C-type activities.

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reasonableness of administrative acts. The court can quash the administrative decision
and order the administrative organ to make a new decision. In other words, the court
has no right to change a wrong administrative decision directly.
The role of the court is constrained in China. The judiciary lacks power to
oversee executive decisions, which leave many disputes in lagging. According to a
survey, 93.27 % interviewees believe that the local government is the source of
environmental pollution rather than the enterprises. Many environmental administrative permits, which violate environmental law on land use or planning, cannot be
timely corrected (Wang 2007: 735–747). Judicial review took place in less than 1 %
of environmental dispute all over the country each year. Clearly, administrative
proceedings fail to effectively prevent the occurrence of environmental damages.
Environmental damages are irreversible. Administrative litigation is the first step to
correct the illegal administrative acts and to avoid the occurrence of environmental
damage. It is unlike environmental civil litigation and criminal litigation, which
usually provide a remedy after the damages occurred. It is meaningless to provide
access to justice after construction has started (Andrusevych et al. 2011: 69).
Therefore, it is very important to correct a wrong administrative act timely. In other
words, the efficiency of the environmental judicial review system is crucial for
preventing the environmental disputes. Sweden’s experience in this area gives us a
good inspiration. Unifying administrative relief procedure has been neglected for
long in China.
4.3 The Composition of Judges in Sweden and China
Environmental cases involve complex scientific and technical questions when proving
causation, damages, and prospects for environmental harm (Preston 2014: 386). The
examination of environmental issues requires special knowledge and expertise to
enhance the quality, effectiveness, and efficiency of the judgment. In Sweden, the
judges and the technical advisers are employed by the court and work full-time as
environmental adjudicators. These ‘‘internal’’ experts and judges determine the
environmental cases together (Preston 2014: 386). The legally qualified judge, the

technical judge, and the expert create a think tank to resolve complex environmental
disputes and eliminate or at least reduce the testimony bias from the parties’ expert
witnesses. In China, the people’s juror system is applied in the first instance. If an
expert is needed, the court can choose one from the jurors’ list. However, no further
rules are provided to promote the specialization of the judges and other adjudicatory
personnel. It is necessary to stipulate the qualification and selection procedure of
special judges and other specialized adjudicatory personnel, to promote training of
judges in the environment cases and give environmental judges equal chance of
advancement and a good salary (Wang 2013: 31).
4.4 The Standing of Environmental Courts in Sweden and China
By contrast, the judicial interpretation of administrative cases as to who is
concerned is generous in Sweden. In addition to the immediate parties, all persons
whose private environmental interests are affected are entitled to appeal. People

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may appeal because the administrative decision or administrative omission has
affected people’s interests such as drinking, water safety, air quality, traffic, peace in
a residential area. Meanwhile, the environmental NGO’s standing in administrative
cases has become more lenient. However, there are still a number of blind spots in
which NGOs as non-Nordic NGOs have no standing to appeal. In private cases,
NGO’s standing requirements are more relaxed. Any nonprofit environmental
NGOs have a right to initiate group actions. There are no restrictions concerning the
authorized institution, size, and duration of the organization. However, until 2009,
no cases of organization group actions had reached the court. In addition, public
authority can appeal an administrative decision or judgment and can initiate the
public group action in Sweden.

According to the Aarhus Convention, standing criteria, if any, laid down in national
law should be such so that the access to a review procedure is the presumption and not
the exception. Standing criteria, if any, laid down in national law should be such so that
give the public concerned wide access to justice (Andrusevych et al. 2011: 69, 81). A
liberal construction of standing is the first step of access to justice. In Sweden,
individuals do not have standing to initiate public interest litigation, if private
environmental interests are not affected by the decision or infringement. But what are
the criteria of the affected private interest? Every country will shape their own
standards of boundaries in the case when deciding standing for an individual. Swedish
judicial interpretation as to who is public concerned is generous. Factors to be
considered include distance to the activity, the nature of the emissions, and their likely
effects and so forth (Darpo¨ 2009: 9).18 As long as administrative decisions or
administrative omissions affect people’s interests such as drinking, water safety, air
quality, traffic, peace, and the like in residential areas, people can appeal administrative authority’s decisions in Sweden. All environmental disputes involve public
interests, which are true even in environmental cases between private parties. Thus,
any public appeal concerning public interests may benefit both private and public
interests. In China, some private group environmental cases which especially involve
socially sensitive problems are intervened by the local governments and access to
justice is difficult. The interpretation of the concerned person is more stringent. The
courts require the party to provide sufficient evidence for his claim at the acceptance
stage. It is well known that judicial independence is one of the preconditions in the
access to justice process. It should be independent of the executive branch and
legislative branch. It should have an identified and independent budget and not
controlled by the agencies subject to its review. It provides judges’ security of tenure.
The more independent a court is of the political progress and administrative pressure,
the more likely its decisions are to be fair, equitable, and unbiased (Pring and Pring
2009: 22). In influential cases and political sensitive cases, the Chinese judge is more
likely to comply with the political instructions regardless of the legal merits of those
orders. This situation is gradually changed. Faced with the grim environmental
situation, local officials have incentives to innovate. Judges walk on the tendency to

accept new types of claims to explain and create the law. Before 2012, some courts
began to accept the environmental public interests litigation brought by environmental
18

¨ D 2003:98 and MO
¨ D 2003:99.
MO

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NGOs, the competent government department, or the procurator. However, there was
no law which permits environmental NGOs to file administrative or civil lawsuits with
respect to public interests in China.19 Chinese Civil Procedure Law was amended in
2012 and allows the authorities that are allowed in the law and the relevant social
organizations to initiate public interests litigation firstly. The latest judicial
interpretation in 2015 admitted that the indirect interested party has plaintiff
qualification in the environmental civil public interests litigation. But there is no
specification in the Administrative Procedure Law amended in 2015.
4.5 Litigation Costs of Environmental Courts in Sweden and China
According to the Aarhus Convention 9(4) and 9(5), adequate and effective remedy
process should be fair, equitable, and not prohibitively expensive. The parties should
establish assistance mechanisms to remove or reduce financial and other barriers to
access to justice (Darpo¨ 2013: 16). Like most of the countries in the world, there are no
fees charged to launch an administrative appeal, but there are fees for going to the
court. In China, the acceptance fee for each administrative case is only 50 CNY.
Trademark, patents, maritime administrative cases charge a fee of 100 CNY per piece.
There is no economic barrier for access to justice in administrative cases. In

environmental private cases, court fees are calculated according to the economic value
of the case. If the plaintiff cannot afford the costs of litigation, he can apply for the less,
deferment and exemption. However, defer payment or exempted from payment does
not include actual expenses in litigation, such as the appraisal fees, the lawyer’s fees.
The main barrier for private environmental cases is expensive appraisal fees. These are
costly for the plaintiffs who, in addition, typically have suffered economic losses
already (Stern 2013: 60). Many victims in environmental disputes are not in a position
to afford expensive appraisal fees. Consequently, they have been forced to give up
their lawsuit for compensation. With regard to public interests litigation, some local
environmental courts prescribe that if the plaintiff loses the litigation, the court will
exempt the plaintiff from the litigation costs. Some local environmental courts have
established a public litigation fund. Litigation costs are paid by the fund if the
environmental NGOs or other legal body that does need to prepay. However, these
practices have not been transformed into effective legal rules, although attempts are
being made in the individual areas.
4.6 Other Characteristics of Environmental Courts Between Two
Countries
4.6.1 Less Formality
Numerous environmental courts throughout the world have created a number of
flexible rules that cannot be adopted generally. Employing informal, less
19

Guiyang Two Lakes and One Reservoir Management Bureau v. Guizhou Tianfeng Chemical Ltd
(Qingzhen Environmental Court, Dec. 27, 2007). Guiyang Procuratorate v. Xiong Jinzhi, Lei Zhang and
Chen Tingyu (Qingzhen Environmental Court, Nov. 26, 2008). Zhu Zhengmao and All-China
Environmental Federation v. Jiangyin Port Container Ltd. (Wuxi Environmental Court, July 6, 2009).

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C. Wang

intimidating proceeding is one approach (Pring and Pring 2009: 15). In Sweden, the
proceeding of hearing at the environmental court of appeal in administrative cases is
more like a general meeting than like an appellate court proceeding.20 The hearing
often takes place in a conference room, and the testimony is conducted informally at
a conference table. The court normally travels to the site in dispute. The parties are
all allowed to represent themselves without attorneys. The court can require the
responsible local, regional, and central authorities to give comments on the case.
The court can also require independent technical institutes to comment on the case.
The hearing is conducted in a relaxing atmosphere not typical of a court proceeding
(Bja¨lla˚s 2010: 182). In China, the above-mentioned institutional features have not
been given enough attention in the current research literature, and similar rules are
lacking in Chinese legal institution.
4.6.2 More Inquisitorial Model
The characteristic of inquisitorial model is that judges are not constrained by the
fact advocated by the parties, and judges have dominant power to investigate and
collect litigation data. In Sweden, the ‘‘ex officio principle’’ is applicable to
administrative cases. The ultimate responsibility for the investigation of the case
rests with the court. However, such inquisitorial model has been debilitated due to
contemporary judicial reform in civil cases in Sweden. China is different from
Sweden in this respect. Whatever the administrative cases or civil cases, party is
responsible for the evidence collection in China. Judges shall investigate and collect
evidences only in rare situations when the evidence is beyond the reach of a party
for objective reasons or the court considers it is necessary for the trial of the case.
Accordingly, the court should investigate and collect evidence on its own motion if
the case is related to the interests of the state, the public or third parties. The court
should investigate and collect evidence in accordance with the application if the
parties have difficulties to collect evidence and apply for the court’s help.
For environmental decision making, administrative authorities are granted the

power to investigate when fulfilling their duties within the permitted scope. The
authorities make the administrative decision on the premise of finding out the facts,
regardless whether the parties claim and present evidence. Therefore, the judicial
and administrative branches are different in respect of the investigating power. In
Sweden, the environmental court system incorporates the administrative reconsideration and judicial review to one routine. When the environmental court receives a
permit application, the inquisitorial principle must be upheld (Darpo¨ 2009: 6).
Therefore, it is necessary to include scientific or technical experts as judges
alongside the law-trained judges in Swedish environmental courts. If a Swedish
environmental court receives an appeal from CAB, the inquisitorial principle will
become easy to complement for reformatory review. Special ‘‘in one shop’’ design
of environmental court system requires more inquisitorial model to avoid disunity
between MEB, CAB, and the court. In China, there are no nonlawyer, scientific, or
20
This feature is only applicable to administrative cases and cases about permission, but not to civil
cases.

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technical experts as judges or commissioner alongside the law-trained judges to
complete the investigation. Inquisitorial investigation more depends on entrusting
with appraisal and expert witness.

5 Conclusion
Each country has its legal culture, unique political system, and different needs for
environmental development. But there is something in common that is suitable for
reference by China. In China, various reforms have been initiated. But such reforms
lack unified standards. Centralized jurisdiction across the region has not been

achieved at the grassroots court and the intermediate court. The Swedish model of
five district courts operating on regional levels has set an example for China when
establishing environmental courts at the grassroots level. Recently, most of the
environmental disputes in China are about compensation for economic loss.
However, the prevention of environmental damages is more important because
environmental damage is irreversible. China does not only need to reform the
jurisdiction integrating the private, criminal, and administrative cases into one, but
also needs to focus on establishing a ‘‘one stop shop’’ administrative relief system
for environmental protection. Swedish environmental courts essentially act as
administrative courts for environmental cases. These provide enlightenment that
how a court system can be developed in China.
Acknowledgments This thesis would not have been possible without the guidance and the help of
several individuals. My deepest gratitude goes first and foremost to my supervisors, Professor Jan Darpo¨
and Professor Bengt Lindell at the Uppsala University. I would also like to acknowledge the financial
support for my visiting research by Panacea Project of the Erasmus Mundus-External Cooperation
Education, Audiovisual and Culture Executive Agency (EACEA).

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Cuimin Wang , October 1, 1980, Female, Graduated from Fudan University, Doctor of Law. Visiting
scholar of Uppsala University from August 2013 to July 2014. Postdoctoral of Shanghai Jiaotong
University. Lecturer of Shandong Jianzhu University.

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