Judicialisation for environmental public interest protection in China: the faces of court in different forms of environmental litigation

In response to China's notorious enforcement gap, the judiciary has assumed a more prominent role in environmental governance through a process called judicialisation, or the expansion of judicial scope and power. Specifically, the development of environmental public interest litigation (EPIL), the growing number of environmental cases, and the establishment of specialised environmental courts have emboldened the courts to deeply participate in environmental governance. An outstanding question is what role environmental courts have played in enhancing environmental enforcement and protecting environmental public interest in such prominent environmental judicialisation. After examining related judicial interpretations and litigation practices, this article finds that environmental courts act differently in different types of environmental litigation. They are active, supportive and even 'innovative' in holding polluters accountable in civil EPIL. In administrative EPIL, however, the courts are less proactive and generally defer to the procuratorate's claim in confirming administrative illegality or requiring the responsible government or agency to perform their duties. In private environmental litigation, judges either disregard what has been stated in legislation and adopt their own strategies favouring the polluter-defendants or are extremely restrained in reviewing the decisions of administrative-defendants. Given the fact that environmental public interest and private interests are highly entangled, the court's deviation from legislation in private litigation fails to effectively deter polluters and achieve synergistic protection of environmental public interest.