China’s new Ecological and Environmental Code brings together several laws on pollution, conservation and green and low-carbon development.
It is intended to tackle long-standing legal overlap and fragmented governance. Twenty laws – on forestry, energy and other issues – were left out and will continue to run in parallel. The “ecological” in the title alludes to the code covering not just pollution but also climate and biodiversity.
However, changes to some key mechanisms have caused controversy. Civil society organisations may now only be able to bring public interest lawsuits when the environment has already been harmed, with major risk of such harm no longer a sufficient reason. At the same time, new requirements on assessing the value of environmental damage and the cost of restoration may raise the financial and evidentiary barriers to bringing a lawsuit. This may limit what civil society organisations can do to provide extra oversight, experts told Dialogue Earth.
The code, which was published on 12 March and will take effect in mid-August, dedicates one of its five parts to green and low-carbon development. This puts China’s climate governance within a legislative framework. However, the language mostly sets out principles and guidance, with no details on who is responsible for reducing emissions or the consequences of failing to do so. Commentators have suggested this situation may be improved later by the creation of a separate climate law.
Dialogue Earth spoke to an academic who contributed to the code, a representative of a civil society organisation which brings public interest lawsuits, and a legal scholar. What signals does the new code send, and what is the logic behind it?
Chinese characteristics: Tension between protecting and using nature
Chen Haisong was involved in the new code’s compilation from the start in 2023. The professor from Wuhan University’s School of Law headed a team that wrote an introductory guide to it. He told Dialogue Earth that unlike France, which gathered all relevant laws into the environmental code it created around 2000, China opted to keep several individual laws alongside the code.
Ten laws on environmental protection and pollution control were incorporated, while elements from other regulations were selectively integrated. Meanwhile, 20 laws remain separate, including those on energy, forestry, grassland, national parks, the protection of the Yangtze, and the protection of the Qinghai-Tibet Plateau.
The code will reduce conflicts between different laws, said He Yini, director-general of Chinese NGO Friends of Nature. She pointed out that environmental problems often touch upon multiple areas – mining pollution, for example, might affect water, air, soil and biodiversity. As individual laws for each did not always match up and could even disagree, the code will help coordinate across them and ensure systematic conservation, she said.
The word “ecology” appears in the code 1,765 times, in many cases as an addition to an existing use of “environment”.
“It might be only one word, but it’s very significant,” said Chen Haisong. “There’s a real difference between, for example, an environmental impact assessment and an ecological and environmental impact assessment. The existing environmental assessments focus mainly on pollution. That’s now expanded to ecological factors like biodiversity and in the future greenhouse gas emissions will be included.”
Although the code has a whole section on ecological protection and emphasises an ideal of systematic protection, it often discusses that protection alongside utilisation. For example, “the state strengthens the management of development and use of other natural resources such as forests, grasslands, wildlife and marine resources, in order to protect and make sustainable use of resources.”
“In the part on ecological conservation, conservation and utilisation are mixed up,” says He Yini. “There’s some controversy over that.” The code puts emphasis on the economic benefits of both conservation and utilisation, with the ecological value of conservation in second place, she adds.
“In China, environmental issues are development issues, so China’s environmental governance has chosen a state-led two-pronged approach of conservation and utilisation,” says Zhu Mingzhe, a lecturer at the University of Glasgow’s School of Law.
Missing articles: Hitting the brakes on preventative lawsuits?
The code isn’t just a compilation of existing laws. Changes have been made.
The first draft of the code had allowed for government bodies and civil society organisations to bring lawsuits when ecologies or the environment were being harmed or put at major risk. That the part on risk was removed from the final version left some organisations worried less room is left for preventative lawsuits.
Since the 2015 Environmental Protection Law came into effect, public interest litigation involving the environment has seen prosecutors bring both civil and administrative lawsuits, while civil society organisations could bring civil lawsuits. They could also bring preventative lawsuits because the Supreme People’s Court interpretation of the law allowed them to bring cases when there was a major risk of pollution or ecological damage that would harm the public interest.
“Preventative public interest litigation is a crucial way of preventing ecological and environmental harms from arising, particularly irreversible harms like the extinction of endangered species,” says He Yini. “These cases have an important and irreplaceable role and cannot be lost.” She uses the Yunnan Green Peafowl case, China’s first preventative public interest litigation, as an example: construction of a hydropower project was halted following a lawsuit over the risk of harm to the endangered bird’s habitat.
This case began in 2017, when Friends of Nature brought a lawsuit against the construction of a hydropower project on Yunnan’s Jiasa River. The court ordered a halt to construction three years later. The case confirmed litigation could be bought on the basis of “major risk to the public interest” and was confirmed as a “Guiding Case” by the Supreme Court. It also boosted China’s global influence. It was listed at the top of ten major biodiversity cases by the UN Environment Programme, and identified by the UN’s Department of Environmental and Social Affairs as a case study in promoting sustainable development targets.
The figures show that prosecutors are already the main force behind environmental public interest litigation. In 2023, 92% of such cases were brought by prosecutors, with only the remaining 4.8% by civil society organisations.
Changes to the preconditions for bringing a lawsuit also caused comment.
Article 1,081 requires evidence of the costs of harm and of restoration when bringing a case. He Yini says this is not practical: when a lawsuit is being brought, the behaviour in question is usually ongoing. There may be some initial evidence of the damage caused, but the extent cannot be confirmed. If harm and restoration costs need to be assessed before the lawsuit even starts, there is likely to be a wasteful repetition of that process later and a big increase in the cost and barriers to litigation.
Actual cases show how. In 2011, Friends of Nature brought a lawsuit over chromium pollution in Qujing, Yunnan, demanding the defendant remove the pollutant and restore the local environment. The case dragged on for nine years, with the costs of assessing damages put at about CNY 3 million (around USD 420,000) – equivalent to the organisation’s entire operational budget at the time. An independent body was eventually brought in to assess remediation measures already taken, and ultimately the defendant paid for this work.
Such assessment costs have always been a barrier to environmental lawsuits. A number of soil pollution cases brought by Friends of Nature had to be shelved for a lack of funds, said He Yini. The new article in the code may therefore leave even less space for civil society organisations.
Legislating for the climate: Principles first, consequences later
New climate governance mechanisms appearing in the code have also drawn attention.
There is a section on green and low-carbon development, including a chapter on the response to climate change which covers mitigation, adaptation and China’s carbon targets. This is regarded as an important step for elevating climate from a policy matter to a legislative one.
However, some academics say placing climate under the green and low-carbon development heading may give it lesser status than it would as a stand-alone topic.
This section of the code often uses phrases announcing that “the state encourages”, “the state promotes” or “the state strengthens” – but lacks language on specific duties and the consequences for failing to meet them. For example, the code rules that key greenhouse gas emitters required to participate in the national carbon market must fulfil their duties to reduce carbon emissions – but no sanctions are specified for those failing to do so.
“With no climate change law to provide a framework, China needs to use existing legislation such as the Energy Law to drive emissions cuts,” Zhu Mingzhe told Dialogue Earth.
Climate legislation has been on the agenda since 2009 – but progress has been slow. The Standing Committee of the National People’s Congress usually sets legislative plans on a five-year schedule. The latest plan, in 2023, described legislation on climate and carbon peaking and neutrality as “Category 3” – not yet ready to become law and in need of further research and discussion. That means the earliest a climate law might be passed is 2028.
“China started drafting its Energy Law in 2005, but it only became law in 2024. The climate change law is even more important and will be handled even more cautiously,” Zhu Mingzhe told Dialogue Earth.
