Wen 丨 Zhou Wei
Various factors should be carefully considered in strict accordance with the procedures and specific requirements of the Several Provisions of the Supreme People's Court on the Application of Injunctive Preservation Measures in Cases of Ecological and Environmental Infringement, and the legitimate and legitimate rights and interests of different entities involved in the injunction should be comprehensively weighed, so as to avoid unacceptable economic and social costs caused by the adjudication of injunctions and to promote the sustainable development of the environment, economy and society.
Environmental issues are related to economic, social, natural, scientific and technological dimensions. The picture shows the environmental protection action of protecting the blue sea and blue sky in Shenzhen. Shenzhen Special Zone Daily reporter Wu Jiaofeng photographed
What is an injunction as a measure of preservation in litigation?
Recently, the Several Provisions of the Supreme People's Court on the Application of Injunctive Interim Measures in Ecological and Environmental Infringement Cases (hereinafter referred to as the Provisions) was promulgated. According to the Provisions, eligible applicants (including subjects who have the right to file environmental private interest lawsuits, environmental public interest lawsuits or ecological damage compensation lawsuits) may apply to the court for an injunction order before or during the lawsuit to prohibit environmental pollution or ecological damage from continuing to avoid the expansion of losses. If, after the restraining order has been approved and taken effect, the respondent fails to perform the restraining order, the court may pursue its legal liability in accordance with the provisions of article 111 of the Civil Procedure Law. The injunctions in the Provisions are based on articles 100 and 101 of the Civil Procedure Law, and apply to the fact that acts of polluting the environment and damaging the ecology have real and urgent major risks, such as the situation that will cause irreparable damage to the legitimate rights and interests of the applicant or the ecological environment if not stopped in time, and its original intention is to further strengthen the role of environmental justice in preventing ecological environmental damage while enriching the remedies for environmental civil litigation.
As an ancient and flexible form of equitable relief, injunctions have been incorporated into common law as early as the fifteenth century and applied to infringements that are clearly established in the course of litigation, and the court can require the infringer to commit or not to commit an act without formal hearing to protect the interests of the applicant who is threatened. In the mid-nineteenth century, restraining orders were used to restrict environmental damage, such as the British Public Health Act of 1875, which authorized local governments to apply for a ban on sewage discharge with the permission of the Attorney General. As a measure of equitable relief, an injunction is not intended to compensate for damage that has already occurred, but rather to prevent the occurrence of some future act of damage or to provide relief for damage that cannot be measured in monetary terms or for which monetary compensation is not appropriate. In common law, restraining orders include both permanent and intermediate prohibitions. A permanent injunction is a final relief measure issued by the court after hearing the substantive issue, and an intermediate injunction includes an interim injunction and a preliminary injunction, which is an injunction issued by the court before making a final judgment on the substantive issue of the litigation in order to prevent the plaintiff's irreparable losses. The civil liability form of cessation of infringement, exclusion of obstruction and elimination of danger in civil law in mainland china is similar to the above-mentioned permanent injunction, while the injunction in the Provisions, as a kind of preservation measure for civil litigation acts of ecological and environmental infringement, is closer in nature to the intermediate prohibition in common law.
Some scholars believe that the improper application of the Provisions may lead to judicial adjudication replacing the administrative organs' first judgment power on the ecological and environmental impact, and there is a hidden worry that the judicial power has overstepped the administrative power. In the author's opinion, since the court has a relatively large discretion in the adjudication of injunctive preservation measures, only by strictly abiding by the restrictive requirements of the Provisions and prudently exercising judicial discretion can the judicial organs truly play an active role in environmental protection.
The scope of application of the restraining order and its judicial discretion
According to the Provisions, an application for an injunction order may be filed before or during an environmental lawsuit, which applies to situations where acts of polluting the environment or damaging the ecology have real and urgent major risks, and if they are not stopped in a timely manner, they will cause irreparable damage to the legitimate rights and interests of the applicant or the ecological environment. However, since "real and imminent significant risks" and irreparable damages are uncertain legal concepts, the Provisions find it difficult to provide clear criteria for determination, so their application depends to a large extent on the exercise of the judge's discretion.
In the theory of risk regulation, whether the risk is significant and urgent, whether it is likely to cause irreparable damage, and whether the preventive measures taken are justified and reasonable, is a highly professional issue, and in some areas, it is not only a legal issue, but also a question of cultural choice, value choice and even political choice. Courts, on the other hand, are not experts in the field of environmental risk. Therefore, scientific decision-making on environmental risks should be based on risk identification, risk assessment and risk communication, and this process, from the perspective of national practice, in terms of procedural sequence, depends first and foremost on the administrative process rather than the judicial process. This is because, according to the principle of the administrative first-time judgment power, matters that have not been judged and handled within the scope of the administrative organ's authority should be handled by the administrative organ first, and then the court should examine whether it is legal and obviously improper. If the judicial organs intervene prematurely, there will be suspicions of replacing or interfering with the exercise of administrative power. This is also the reason why Article 5 of the Provisions requires the people's court to first consider that the respondent's acts of polluting the environment and damaging the ecology are still implemented after being dealt with by the competent administrative authorities in accordance with law.
Elements to be considered in a judge's decision on an injunction
Does the injunction automatically apply to acts that continue to pollute the environment and damage the ecology after being dealt with by the competent administrative authorities in accordance with the law? Not necessarily. Environmental pollution and ecological damage are different from other infringements, which are essentially the embodiment of negative externalities in the process of production and life, and many times may not be morally reprehensible, such as the construction of hydropower stations or nuclear power stations itself has major environmental risks, but also the choice of developing clean energy, even if it meets the scope of application of the prohibition, it can not be directly applied without consideration and weighing. But how should it be considered and weighed?
As far as US judicial practice is concerned, although the Federal Rules of Civil Procedure are used as a basis for whether a judge may grant an intermediate injunction, the discretionary standard is not stable. In the 19th century, the Supreme Court adopted the criteria of "plain and free from doubt" and in the early 20th century, it adopted the criteria of "reasonably free from doubt" and the prevention of "great and irreparable injury." In the Gibbs case of 1939, the court adopted a three-factor criterion: significant doubts of constitutionality, irreparable damages, and provision of security. When the injunction was applied in the 1970s and 1980s, the Supreme Court required applicants to increase their odds of success from "possibilities" to "likelihood", and in some cases the requirement to "carefully weigh the interests of both parties" appeared. Although the 1944 Samson case proposed a four-element criterion that included "likelihood of success, irreparable loss, no other stakeholder damage, and assessment of the public interest", this criterion was not universally applied until the U.S. Supreme Court in 2008 made it clear in winter that the Court of Appeal only required the plaintiff to prove "possible irreparable damages", which was too broad and the plaintiff in the ruling did not prove that the public interest would not be adversely affected by the injunction, which was wrong. In the view of the Supreme Court, the use of mid-range active sonar in U.S. Naval military training, while adversely affecting marine mammals, issuing an interim ban would be seriously damaging to national defense. The court should adopt the military's assessment in this regard. If a ban is granted, it would be dangerous in the public interest. The Supreme Court therefore set forth the four-element test criteria for ruling on interim injunctions, requiring the applicant for injunctions to simultaneously demonstrate "a high probability of success, a high likelihood of irreparable losses, favourable equitable results, and ruling that the injunction is in the public interest", and accordingly overturned the lower court's decision on the interim injunction.
Looking at the content of the Provisions, it is obvious that it also attaches great importance to the necessary restrictions on judicial discretion by considering and weighing specific requirements. For example, article 5 of the Provisions can be interpreted as the discretionary criterion of "three elements + bottom line", that is, element 1, which is still continued to be implemented by the competent administrative organ after being handled according to law, which not only corresponds to the requirements of the principle of administrative first judgment power, but also can judge the illegality of the response. Element 2, comparison of the damage to rights and interests caused by prohibition and non-prohibition. In civil law countries such as Germany and Japan, the weight of the basis of the claim in the judicial consideration of the injunction is mostly differentiated according to the difference between the personality claim, the property claim or other rights and interests claims, and the weight of the personality claim is usually greater than the weight of the property claim. For those who infringe on other rights and interests, a more comprehensive and comprehensive assessment of interests is required. Element 3, National interest, public interest and other adverse effect considerations; Element 4, "Other factors to be considered". The discretionary criteria of the above four elements reflect the reference and application of the Provisions to the experience of extraterritorial judicial practice.
Due process guarantees for restraining orders
Since the decision of the injunction involves a substantial interest in the respondent, it is also important for the court to review the due process guarantee of the injunction application. According to the Provisions, the respondent has the right to apply for reconsideration after the ruling on the right to apply for on-site investigation, and if the grounds on which the ruling was made changed during the effective period of the injunction, the respondent or an interested party has the right to apply for the lifting of the injunction.
With the entry into force of the Provisions, the mainland's judicial interference in production and development activities with major environmental risks will be further advanced and deepened. Because environmental issues are related to economic, social, natural, scientific and technological dimensions, and the judicial response to environmental issues is placed in a relatively closed litigation process, required to make judgments in a legal/illegal binary way of thinking, which is easier to lead to a simple and linear decision-making way to deal with open and complex issues, resulting in "one-size-fits-all" or other unpredictable consequences. Therefore, when accepting and adjudicating an application for an injunction, the court should carefully consider various factors in strict accordance with the procedures and specific requirements of the Provisions, comprehensively weigh the legitimate and legitimate rights and interests of different subjects involved in the injunction, avoid the unacceptable economic and social costs brought about by the injunction and adjudication, and promote the sustainable development of the environment, economy and society.
(The author is an associate professor at Shenzhen University Law School)