An empirical examination of liability for ecological environment restoration in the context of the Civil Code of China

Abstract

In environmental tort lawsuits, China has been overly focused on “punishing” violators and has neglected the value of ecological environment restoration. The Article 1234 of Civil Code of China in 2021 has provided an important institutional guideline for the restoration of ecological environment and sustainable development in China. This paper analyzes 512 cases of ecological environment restoration liability and identifies five challenges in the judicial context: the lack of sound legal regulation, the lack of liability allocation, the mismatch of liability subjects, the difficulty of identifying damage facts, and the difficulty of effective implementation of restoration. In the face of these difficulties, countries that attach importance to ecological environment restoration, such as the United States, Germany and Japan, have provided experience that can be drawn on for China's ecological environment restoration liability. Based on foreign experience, China's liability for ecological environment restoration should be improved in the following aspects: first, to improve the legal system from basic laws and specific laws; second, to expand the scope of subjects from both litigation request subjects and liability subjects; third, to improve the identification and assessment mechanism and innovate the identification and assessment procedures in accordance with China's national conditions; fourth, to determine the restoration methods based on the criterion of “utilization value and the differences in the objects. The ultimate goal is to help China's Civil Code to be better applied judicially on the one hand, and to contribute to the world ecological protection on the other.

Highlights

• •For environmental protection purposes, while punishing environmental polluters, more emphasis is placed on holding those polluters accountable for ecological environment restoration.
• •Innovatively proposing a path to improve China's ecological environment restoration liability in terms of legal norms, litigation subjects, restoration procedures and methods.
• •Reflecting the issue of ecological environment restoration responsibility through practical judicial data.

1. Introduction

1.1. Research background

How to deal with the harmonious relationship between human and nature has always been the core issue of human civilization and environmental philosophy [1]. As the world's largest development consensus, sustainable development is also the goal of ecological environmental protection, reflecting the philosophy of “harmony between man and nature” [2]. China's economic development achievements since its reform and opening up are obvious to all, but at the same time, the ecological damage and environmental pollution problems caused by the development philosophy of “pollution first, restoration later” cannot be ignored. In order to achieve harmony between human beings and nature, China's economic development must bid farewell to the traditional “sloppy” growth model and adhere to the road of sustainable development. While punishing environmental pollution through macro-control, the ecological environment must also be protected by the strictest system and the most stringent rule of law [3]. Through specifically, scientific legislation, law enforcement, fair justice and full compliance with the law, and actively pursue the legal responsibility of violators [4].

However, for a long time, China's ecological and environmental legal liability settings have not been optimistic, especially in the area of ecological environment restoration liability, which has lagged behind [5]. Compared to traditional forms of legal liability such as civil and criminal liability, China's environmental legal liability arose late. Although China clearly proposed to establish a legal liability system suitable for the needs of environmental protection as early as 1979 when the Environmental Protection Law was enacted, and actively explored ways of assuming legal responsibility for ecological environment suitable for national conditions, for a long time afterwards, China's environmental legal liability has been scattered among criminal and civil liability, lacking a specific form of ecological and environmental legal liability [6]. In 2014, China's newly amended Environmental Protection Law established the principle of “damage liability” and began to administratively enforce the liability for environmental pollution and ecological damage [7]. In 2018, China established the Ministry of Ecology and Environment and the Ministry of Natural Resources to promote law enforcement and judicial reform in the field of ecological protection. This reform has to some extent advanced the improvement of ecological and environmental responsibilities, but at the same time, it has also led to an increasingly complex overlap between administrative and civil responsibilities, and the relationship between administrative and judicial powers remains tense [8]. For decades, China has barely managed to set up ecological and environmental liability, and one of the reasons for this is the conceptual backwardness - too much emphasis on “punishment” and “sanction” for violators and too little attention to the “restoration” and “protection” of ecological environment. If we only focus on immediate relief of damage, ignoring the longer term and wider ecological environmental protection, the measures taken will inevitably be focused on punishing the offenders [9]. Since the 18th National Congress of the Communist Party of China, China has gradually realized the value of ecological environment restoration through law, as evidenced by the inclusion of “ecological civilization” in the Constitution in 2018 and the enactment of 25 ecological laws covering the fields of air, water, soil, solid waste, and noise pollution prevention and control. The 25 ecological environment-related laws covering the fields of atmosphere, water, soil, solid waste, and noise pollution prevention have been revised one after another [10]. Until 2021, Article 1234 of the Civil Code clearly stipulates that “if ecological damage is caused in violation of state regulations, and the ecological environment can be restored, the state organ or organization specified by law has the right to request the infringer to assume the responsibility of restoring the damage within a reasonable period of time”. The system of legal liability for ecological protection in China was finally improved. This makes this provision a milestone in China's environmental protection and sustainable development.

In fact, in recent years, many Chinese and foreign scholars have conducted theoretical studies on how to set up a responsibility for ecological environment restoration in China [11]. The concept of “ecological environment restoration” or “ecological recovery” was first introduced in the 1940s by restoration ecology. The term “ecological recovery” refers to the process of helping to recover an ecosystem that has been damaged or completely destroyed to its original state, and later Japanese scholars created the concept of “ecological environment restoration” based on this concept. Along with the legal protection of the environment, ecological environment restoration has gradually extended from natural science to the field of law [12]. From the perspective of Chinese scholars, firstly, regarding the concept, some scholars believe that ecological recovery refers to the restoration of ecological services in the systematic and coordinated operation of the ecosystem composed of environmental elements [13]. It is an important driving force for the development of circular economy in China because it emphasizes the restoration of the stability and equilibrium of the ecosystem [14]; in practice, ecological environment restoration is to take feasible measures to restore the ecosystem service function and internal structure, so that the internal and external relationship of the ecosystem can be restored [15]. Secondly, with regard to responsibility, some scholars believe that, in addition to the government and the enterprises that commit pollution and damage as the natural responsibility subjects, many potential subjects should also be considered; as for the way to assume responsibility, most Chinese scholars advocate a combination of “self-restoration” and “payment of restoration costs”. As for the way of responsibility, most Chinese scholars advocate a combination of “self-remediation” and “paying for remediation”, with “self-remediation” being the main method [16]; thirdly, regarding the mechanism, Chinese scholars mainly discuss the regulation of remediation funds [17], environmental public interest litigation [18], and the introduction of third-party assessment.

These studies, such as the above, have provided theoretical support for improving the liability for ecological environment restoration in China. However, in terms of theoretical responses to reality, the current research is still typically inadequate: whether it is the subjective construction of a liability for ecological environment restoration in response to China's ongoing environmental liability system or the necessity and urgency of setting up a “liability for ecological environment restoration” in the Civil Code, current research is still an abstract theoretical discussion at the level of “necessity”. However, the setting of legal responsibility is a practical issue. We must start from the “real”, discover the “real problems” in the determination and application of liability in judicial decisions, and analyze the reasons and improve the countermeasures according to the specific conditions of China. Although China's Civil Code has set up this responsibility, there is still no provision on how to apply this responsibility in concrete terms. The research purpose of this article is twofold: firstly, it is clearly pointed out that China should abandon the simple fines model in ecological environment protection and pay more attention to setting legal responsibilities for environmental damage subjects. Secondly, through the application of empirical research methods, the difficulties and reasons for the implementation of China's ecological environment restoration responsibility are discovered. By learning from the experience of foreign ecological environment legal protection, an optimization plan for China's ecological environment restoration responsibility is proposed.

1.2. Research methodology

This paper uses both empirical and comparative research methods:

In terms of the empirical research method, this paper takes 512 cases published on “China Judicial Documents” from January 1, 2015 to December 31, 2022 as the sample database, and focuses on “case type”, “litigation subject”, “litigation request”, and “court decision”. litigation subject”, “litigation request”, “court judgment”, etc., to empirically analyze what kind of litigation request the plaintiff based on, claiming the defendant's responsibility for ecological environment restoration, and the corresponding court judgment. The purpose of this empirical study is to clarify the judicial application of liability for ecological environment restoration in China, the operational difficulties of the relevant laws in practice, and to find the causes of the problems through real cases. It should be noted that the sample may have missed some cases due to the slow update of the “China Judgments Online” and my ability to collect them, but this does not affect the conclusions of the article.

For the comparative research method, it is mainly applied to compare the laws and policies concerning ecological environment restoration in China with those in foreign countries in depth. Both China and other countries such as the United States and Germany regard the protection of the ecological environment as a component of sustainable development, which is a prerequisite for horizontal comparative studies. Although China has clearly stipulated the responsibility for ecological environment restoration in the Civil Code, it is still at a preliminary stage, and there are no clear provisions on restoration procedures, restoration mechanisms and restoration methods. In this paper, we take the laws and policies of the United States, Germany, Japan, Canada and other countries on ecological environment restoration as reference and summarize their useful experiences on ecological environment restoration liability facilities. The purpose of applying this comparative research method is precisely to seriously study and learn from these experiences in an effort to improve China's legal responsibility for ecological and ecological environment restoration. While protecting China's ecological environment, we also make institutional contributions to the world's environmental protection.

2. Judicial status of liability for ecological Environment Restoration in China

Judgment documents are the most intuitive reflection of the real problems in the judiciary, and are the final results of the demands and claims of all parties in interest [19]. They are also the main material on which this research is based. In order to ensure the accuracy of the research results, I searched 735 cases in the “China Judgments Online”, filtered 92 cases of duplication, 96 cases of no direct relevance, and 35 cases of court inadmissibility, and finally carved out 512 cases of judgments and rulings, using the keywords “ecological and environmental infringement”, “ecological environment restoration”, “ecological environment restoration liability” and “environmental public interest litigation”. The number of cases is generally increasing year by year (Fig. 1). This part shows the application of ecological environment restoration liability in 512 typical cases from 6 aspects: cause of action, proceedings, litigation subject, litigation request, burden of proof and judgment result.

Fig. 1.

Trends in the number of adjudication documents.

2.1. Cause of action

The cause of action reflects the nature of the legal relationship involved in the case and is an important criterion for typing the case [20]. From the analysis results, there are 205, 289 and 18 cases of ecological environment restoration liability in ordinary environmental civil litigation, public interest litigation and ecological environmental damage compensation litigation, respectively. In contrast, public interest litigation is the main type of liability for ecological environment restoration, including seven causes of action, such as illegal production, illegal fishing and illegal dumping of waste and etc., and is usually with liability for ecological and environmental damage compensation. The main distribution is as follows (Fig. 2).

Fig. 2.

Overview of the cause of action.

2.2. Proceedings

Under China's current two-tier trial system, the first trial focuses on factual issues and the second trial focuses on legal issues. This is reflected in the fact that among the 512 sample cases, the first trial cases accounted for about 90 % of the cases. However, since ecological environment restoration liability is a new form of liability, there are some controversies in its identification and specific assumption of responsibility. As a result, nearly 10 % of the cases were also remanded for retrial or retrial, as well as a very small number of cases to which non-litigation and enforcement procedures were applied. The details are as follows (Fig. 3).

Fig. 3.

Applicable proceedings for ecological environment restoration litigation.

2.3. Litigation subject

The subject of litigation is a person, legal entity or organization that has the right to participate in litigation. The question of whether or not they can act as eligible subjects reflects the legal rights. In the litigation of ecological environment restoration cases, the defendants are generally clear administrative organs or enterprises, compared to the plaintiff subjects, which are more mixed, see (Fig. 4) [21]. There are both procuratorates and state administrative agencies (mainly the Agriculture and Forestry Bureau and the Environmental Protection Bureau), as well as environmental public interest organizations. In some cases, there are multiple plaintiffs, but due to such lawsuits are predominantly public interest litigation, the procuratorate plays an important role.

Fig. 4.

Plaintiffs in ecological environment restoration litigation.

2.4. Litigation request

In 512 sample cases, there are 503 cases in which the plaintiffs explicitly requested to fulfill the request for ecological environment restoration, and there are 196 more cases of public interest litigation than that of private litigation. The lawsuits mainly focused on the following four categories: 1. requesting that the defendant be ordered to restore; 2. requesting that the defendant be ordered to restore or pay the restore costs; 3. requesting that the defendant be ordered to pay the restore costs; 4. requesting that the defendant be ordered to pay the restore costs due to the damaged ecological environment had been restored before the lawsuit. Fig. 5 below shows the percentages of each categories:c.

Fig. 5.

The way to realize the responsibility of restoration in litigation requests.

2.5. Burden of proof

The ultimate implementation of the responsibility for ecological environment restoration is closely related to the allocation of the burden of proof among the litigants and the court's judgment on the relationship between the damage and the facts. From the empirical analysis of the sample cases, it can be seen that the court mainly adheres to the “reversal of the burden of proof” in the allocation of the burden of proof, which means that the judge is more “partial” to the damaged party in such cases [22]; and prefers presumption of causation, which shows that the judge is somewhat a bit “torn” when judging the correlation between the consequences of the case and the behavior. The distribution of cases is as follows (Fig. 6).

Fig. 6.

Allocation of burden of proof and determination of causality.

2.6. Judgment result

According to the collated results, 432 out of 512 ecological environment restoration litigation cases were supported by the court. Among them, the support rate of public interest litigation cases is about 90 %, and the support rate of ordinary environmental civil litigation is 40 %. The reason for losing the former cases is usually the plaintiff did not have the main qualification of public interest litigation, and the purpose of maintaining environmental public interest litigation has been achieved. The reasons for losing the latter cases are: (1) the plaintiff has insufficient evidence to prove the “original state”, which accounts for 80 % of total; (2) ecological environment restoration is no longer necessary; (3) pollution or damage is caused by multiple parties, and it is unfair for one party to bear the burden (Fig. 7). In terms of liability, 70 % of public interest lawsuits are awarded directly to the defendant for the cost of remediation; in contrast, only 30 % of private interest lawsuits are awarded to the defendant for “restoration of the original state”, shown in Fig. 8 below.

Fig. 7.

Reasons for losing ordinary environmental civil litigation.

Fig. 8.

Liability for public interest litigation and private interest litigation.

3. Extraterritorial practice of liability for ecological Environment Restoration

Liability for ecological environment restoration in China has only been set up in the Civil Code along with the academic attention in recent years. Compared with developed countries such as the United States, Europe, Japan and Germany, they began to explore the practice of environmental damage restoration as early as the latter half of the 20th century, and adopted ecological environment restoration liability as a form of legal responsibility [23], see Table 1.

Table 1.

Extraterritorial Practice summary.

Country or organization	Act or law	Main contents
U·S.	The Comprehensive Environmental Response, Compensation, and Liability Act	the first law to include ecological restoration as a form of legal liability; establishes the responsible party according to the “polluter pays” principle
European Union	the Environmental Liability Directive on the Prevention and Remediation of Environmental Damage	restoration measures include basic, complementary and compensatory remedies; specifies the supervisory duties of administrative authorities in the implementation of remedial measures
Germany	Environmental Damage Act	ecological restoration liability has a two-tier structure of both administrative and civil liability
England	The Environmental Damage (Prevention and Remediation) Regulations	set to “restore environmental damage”, and in Annex 4, the ways and objectives of restoring damage to natural resources
Ireland	Environmental Liability Regulations	Annex 2 specifies the purpose, measures, and methods of restoring environmental damage
Japan	the Agricultural Land Soil Pollution Prevention Law	established restoration initiatives and procedures taking into account the extent of the agricultural land area, the contaminated area, and the degree of ecological damage
Australia	the Australian Minerals Industry Code	mining minerals are required to pay a reclamation bond to guarantee the restoration of the ecological environment damaged during the mining process
Sweden	the Swedish Environmental Code	expansion of the plaintiff's standing to include residents of the municipality who are affected by environmental administrative decisions

3.1. Ecological Environment Restoration liability in the U.S.

Compared with other countries, the U.S. has started to set up legal responsibilities for ecological environment restoration earlier. Starting from the 1970s, the U.S. has enacted several environment-related laws, providing more detailed regulations on ecological environment restoration issues in land reclamation, ecological environment restoration of mining areas and grasslands, and treatment of contaminated land [24]. For example, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA, also known as the Superfund Act) was the first law to include ecological environment restoration as a form of legal liability [25]. The law aims to effectively remediate polluted sites by expanding the liability body and improving the way to assume responsibility. On the one hand, it establishes the responsible party according to the “polluter pays” principle and makes the responsible party bear the cost of cleanup and remediation [26]; on the other hand, through the strict liability mechanism established in the law, it makes the society take a cautious and safe attitude towards the handling and disposal of hazardous substances [27]. Meanwhile, the U.S. Resource Conservation and Recovery Act (RCRA), the Toxic Substances Control Act (TSCA), the Clean Water Act (CWA), the Clean Air Act (CAA), and other acts also provide supplementary provisions for the responsibility of those responsible for ecological treatment and remediation, and these laws have been improved through several amendments since then.

3.2. Ecological Environment Restoration liability in EU

The EU's responsibility for ecological remediation began with the enactment of the Environmental Liability Directive on the Prevention and Remediation of Environmental Damage (2004/35/CE, hereinafter referred to as the Directive) in 2004 [28]. The Directive is a revised act based on the Green Paper on Remedying Environmental Damage issued by the EC Commission in 1993 and the White Paper on Environmental Liability issued by the European Commission in 2000, which proposed to replace the traditional personal and property damage compensation with a system of environmental civil liability, and to use public law to address restoration of biodiversity, water bodies and soil damage [29]. Based on this, the European Parliament and the European Council adopted the Directive in accordance with the Treaty of Rome. The Directive implements the “polluter pays” principle and stipulates that the operator who causes damage to the ecological environment shall be responsible for prevention and restoration, and that restoration measures include basic, complementary and compensatory remedies [30]. The Directive also specifies the supervisory duties of administrative authorities in the implementation of remedial measures.

Subsequently, EU member countries have completed their national transposition of the Directive and incorporated the responsibility for ecological environment restoration into their national regulations. For example, Germany's Environmental Damage Act specifies the prevention and restoration obligations of responsible persons and provides for citizen participation in ecological environment restoration [31]. In Germany, ecological environment restoration liability has a two-tier structure of both administrative and civil liability: the first tier relies on the Environmental Damage Act, which was transformed into an EU directive in 2007, to provide specific relief for soil and water pollution; the second tier relies on a general legal norm, which is composed together with Article 249 of the German Civil Code and Article 16 of the German Environmental Liability Act, to provide relief for all natural resource damages [32]. In England, The Environmental Damage (Prevention and Remediation) Regulations (2009) are set to “restore environmental damage”, and in Annex 4, the ways and objectives of restoring damage to natural resources, such as land, are set out in detail. In Ireland, Article 17 of the Environmental Liability Regulations (2009) provides for “liability for the costs of prevention and restore”, and Annex 2 specifies the purpose, measures, and methods of restoring environmental damage [33].

3.3. Ecological Environment Restoration liability in Japan

The responsibility for ecological environment restoration in Japan first began with the treatment of soil pollution due to the reality of the small size of the country. In 1970, Japan adopted the Agricultural Land Soil Pollution Prevention Law, which established restoration initiatives and procedures taking into account the extent of the agricultural land area, the contaminated area, and the degree of ecological damage. Based on this law, Japan also adopted the Provisional Measures for Soil Pollution in Urban Streets (1986), the Environmental Quality Standards (1991), and the Soil Contamination Countermeasures Act (2002). Through many legislations on soil pollution, Japan has established a relatively complete pollution remediation and governance system, establishing institutional mechanisms such as soil pollution surveys, contaminated area registration ledgers, liability fund supplementation systems, and national public hazard administrative litigation. In addition to legislation concerning soil ecological damage, Japan has also enacted the Pollution-Related Health Damage Compensation Act to standardize the management of public environmental health issues. In terms of liability, Japan has implemented both the exclusion of infringement and compensation for damages, and has established the principle of polluter's responsibility at an early stage, stipulating the principle of polluter's responsibility directly in the public law [34]. However, Japan relies too much on the government's actions in ecological environment restoration issues. While this approach facilitates the efficient implementation of restoration activities, it also inevitably increases the burden on the government and weakens the warning effect on other polluters and environment destroyers.

3.4. Ecological Environment Restoration liabilities in other countries

In addition to the above-mentioned countries, some other countries have also made innovative settings regarding the responsibility for ecological environment restoration. In Australia, for example, the Australian Minerals Industry Code for Environmental Management stipulates that companies mining minerals are required to pay a reclamation bond to guarantee the restoration of the ecological environment damaged during the mining process. At the same time, the relevant government has the responsibility to review the “annual environmental performance report”. Brazil's Environmental Crimes Act provides that penalties for ecological environment restoration can be met through community service, where the perpetrator is required to work in a public place or in a designated protected area [35]. In Sweden, the Swedish Environmental Code provides the basis for the establishment of the Land and Environment Courts, which handles most of the environmental administrative cases, and the expansion of the plaintiff's standing to include residents of the municipality who are affected by environmental administrative decisions. Most environmental non-governmental organizations (NGOs) also have standing to sue against administrative decisions [36]. In Canada, the costs of ecological environment restoration are paid from the Environmental Damage Fund (EDF), which is administered exclusively by Environment and Climate Change Canada (ECC) and has been established as a independent account [37].

4. The dilemma of implementing responsibility for ecological Environment Restoration in China

Through the empirical analysis of 512 typical cases in China and the comparison of foreign practice of ecological environment restoration liability, it is obvious that although China has provided for “ecological environment restoration liability” in the Civil Code, there are still many concerns in the concrete implementation of this liability. Among them, the lack of sound legal regulation, the lack of liability allocation, the mismatch of liability subjects, the difficulty of identifying damage facts, and the difficulty of effective implementation of restoration are the most typical. Specifically as follows.

4.1. Lack of basic legal norms

Clear legal norms are a prerequisite for fair justice. Since the reform and opening up, China's legislation has undergone a period of rapid development, during which problems such as duplication and omission of legislation were inevitable [38]. For a long time, China relied primarily on civil legal liability to resolve ecological and environmental disputes. Specifically, before 2014, the basis for judging defendants' legal responsibility for ecological environment restoration was Articles 15 and 65 of the Tort Liability Law; after 2015, the Supreme People's Court amended the Environmental Protection Law on this basis in order to overcome the drawbacks of civil liability remedies, and formulated a series of judicial interpretations represented by the Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Conduct of Environmental Civil Public Interest Litigations to guide ecological environment restoration [39]. These judicial interpretations are all related to the responsibility of ecological environment restoration, but they still have the problems of overreliance on civil liability, unclear specific methods, and weak enforceability, and still emphasize too much on “restoring the original state”. Until 2021, when the Civil Code was introduced, China clearly stipulated the responsibility for ecological environment restoration, but the shortcoming is that it is still not clear how the responsibility is applied judicially, and the laws related to air, water, mineral and other resources protection have not been revised and improved simultaneously. Specifically, see Table 2.

Table 2.

Major legislation on ecological environment restoration since 2015.

Name	Terms involved	Content of regulations
Environmental Protection Act (January 1, 2015 revision and implementation)	Article 32	The goal of improving the restoration system is proposed
Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Conduct of Environmental Civil Public Interest Litigations (implementation from January 7, 2015)	Article 20, 23	The concept of “restoration of the ecological environment” was used for the first time; the polluter's obligation to restore the ecological environment to the state before the damage occurred was introduced
Law of the People's Republic of China on Desert Prevention and Transformation (amended on August 31, 2018)	Article 3	In the sand control activities, clarify the responsibility of local people's governments at all levels to take restoration measures
Several Provisions of the SPC on Trial of Cases involving Compensation for Damage to Ecological Environment (For Trial Implementation) (to be implemented from June 5, 2019)	Article 12, 13	Clearly put forward the restoration of the ecological environment as the first-ranking way of responsibility in environmental litigation
Civil Code (implementation from January 1, 2021)	Article 1234	Establishes the conditions for the application of ecological environment restoration liability, applicable subjects and applicable methods, providing a normative basis for ecological environment restoration

4.2. Lack of liability allocation

In judicial practice, the ways of allocating responsibility for ecological environment restoration include both behavioral and financial liability. In the 512 sample cases, the two types of liability are also presented as numerical differences (see Fig. 9). They each have different practical challenges: on the one hand, behavioral liability targets on restoring the ecological original state, which is technically difficult to quantify. In practice, this responsibility is generally understood as quantitative compensation, so that ecological environment restoration is basically equivalent to quantitative restoration. The restoration approach ignores the quality issue, making “restoration” a mere formality. There are only 96 cases out of 512 cases resulted in direct restoration (a behavioral way of restoration) by the defendant. On the other hand, economic liability is more convenient and practical than behavioral liability, and this is the main way to allocate responsibility for ecological environment restoration in China, with 80 % of cases taking this approach. However, the difficulty lies in how to make scientific assessment of the damaged interests. China currently adopts the virtual cost governance approach in environmental governance [40]. It is undeniable that the virtual cost approach has played a significant role, but the scientific and accuracy of this calculation method needs to be strengthened, especially with the involvement of professional assessment agencies [41].

Fig. 9.

The ways of allocating responsibility for restoration.

4.3. The mismatch of liability subject

First, the mismatch of liability request subject. In tort law, all subjects with damaged private interests have the right to request infringers to bear the responsibility of ecological environment restoration. However, in Chinese justice, the court considers that only the owner of the polluted land, reservoir, etc. can request the restoration of the original state. Articles 1234 and 1235 of the Civil Code establish that the subject of the claim for ecological environment restoration liability is “an organization prescribed by the state or an organization prescribed by law”. Among them, the “organization prescribed by law” refers to the environmental protection public welfare organization established in Article 58 of the Environmental Protection Law. However, the number of social organizations that actually participate in lawsuits as plaintiffs and request the ecological destroyers to take responsibility for restoration is limited, mainly in some development foundations and the Environmental Protection Association of China. Moreover, there is a wide variation in the determination of the plaintiff status of environmental protection public interest organizations by different courts.

Second, the mismatch of liability undertaking subject. For a long time, the government has played the role of the subject responsible for the environment protection in China [42]. However, in many cases, ecological and environmental damage is caused by multiple subjects, who should jointly undertake the responsibility for restoration. In order to fill the ecological damage and restore the damaged ecological interests to the greatest extent possible, the judicial practice often expands the liability for restoration to all related subjects of pollution and damage, including pollutant manufacturers, hazardous waste treatment qualification providers, transporters, etc. Although China's Civil Code, when determining environmental liability, replaces the subject of liability from the “polluter” to the “tortfeasor”, however, whether the “environmental polluter or ecological environment destroyer” is a “tortfeasor” must be determined by the court [43].

4.4. Difficulties in identifying damage facts

This identification problem is mainly found in general civil litigation cases. In public interest litigation, due to the authority of the procuratorate and the neutrality of environmental protection organizations, the court will usually accept an expert's findings even if they were not commissioned by the court. However, in civil private litigation, if the plaintiff unilaterally commissions an agency to evaluate the relationship between the defendant's behavior and the fact of damage, the court will not accept the findings if the defendant disagrees. The main reason is: on the one hand, the court highly relies on the evidence to the extent that the damage identification and restoration are all based on institutions' advice with professional knowledge, technology and equipment in relation to such identification. On the other hand, the identification subject is not well set up in a reasonable manner (See Fig. 10). There are few qualified and professionally competent identification organizations, although identification through experts and companies seem to be more flexible and convenient, it has cumbersome procedural requirements. Moreover, the overall cost of identification is high, and it is common to see clients withdrawing their identification requests due to the high cost.

Fig. 10.

The proportion of the identification subject.

4.5. Difficulty of effective implementation of restoration

Unlike other legal responsibilities, the responsibility for ecological environment restoration focuses on “restoration” rather than “punishment”. However, in the light of China's current judicial practice, there are practical difficulties with restoration:

First, the remediation targets are not clear. From the 512 samples, the restoration goals are mainly determined in two ways: the original state and/or national or industry-specified environmental quality standards. However, both targets face operational challenges: the former mainly faces the difficulties of “whether the quality file related to original state is complete” and “whether the damaged ecosystem can be restored” [44]; the latter mainly faces the difficulties of “whether the applicable standard is necessary for the future use of the environment” and “the reasonableness of the standard in practice".

Second, there are difficulties in restoration implementation. This is mainly reflected in the use of restoration funds. There are four main management modes for the ecological environment restoration funds paid by the damage makers: first, to the environmental public welfare fund account established by the government; second, to the account designated by the court; third, to the local treasury; and fourth, to the forestry, fisheries or environmental protection authorities. All of these four types of management are under public authority, with the government holding the dominant power. The flexibility of the use of this restoration fund is greatly reduced by the complex administrative procedures [45]. In many specific cases, a large amount of restoration funds are unused.

5. Path of improving the liability of ecological Environment Restoration in China

In the face of above difficulties in practice of liability for ecological environment restoration in China, many foreign practices can provide valuable experience for us. This is also the target of this paper in applying the comparative research method. In the future, we urgently need to improve China's ecological environment restoration liability and clarify the specific judicial application of Article 1234 of the Civil Code from the following aspects.

5.1. Improve legal regulation system

“Ecological environment restoration used to be carried out and led by the government, and the form of legal remedy of ecological environment restoration has entered the realm of judicial decisions in the courts in the last decade, with the increase in environmental public interest litigation cases.” [46] It indicates China's regulation system on ecological environment restoration is still very immature, and needs to be improved both in terms of basic law and specialized legislation.

On the one hand, the basic laws for ecological environment restoration should be improved. Some scholars advocate the formulation of a special Basic Ecological Law to guide the construction of ecological civilization [47]. Although the Environmental Protection Law has a certain overarching role, many of the legal provisions have lagged behind. “In order to raise the status of laws related to the construction of ecological civilization, deal with the relationship between different individual laws, and realize the organic connection between different laws, the most important measure is to formulate a basic ecological law, in which, the general idea, basic principles, main contents, areas of concern and main measures for the construction of ecological civilization should be established, and legal responsibilities for ecological environment restoration should be stipulated, and specific conditions and exclusions should be specified in detail [48]. Some scholars also advocate that we should respect the current legislative status quo and revise China's Environmental Protection Law, or issue special judicial interpretations to meet the needs of society.

On the other hand, specialized legislation for ecological protection of the environment should be carried out. “The specific rights in the specialized legislation are based on the basic constitutional rights.” [49] Article 32 of the Environmental Protection Law states, “The State shall strengthen the protection of the atmosphere, water, soil, etc., and establish and improve the corresponding system of investigation, monitoring, assessment and restoration.” This system is provided for in China's Water Pollution Prevention and Control Law and the Soil Pollution Prevention and Control Law, but the ecological environment restoration system has not yet been explicitly provided for in the areas of air pollution prevention and control, forest vegetation protection, etc. Although the Interpretation of the Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Conduct of Environmental Civil Public Interest Litigations provides for the implementation of environmental liability, the ecological and environmental identification system, and the cost of ecological environment restoration, these forms of liability are not supported by an independent liability system. Therefore, China should provide for ecological environment restoration liability in the field of air pollution prevention and control, and specify its basic concept, specific ways, implementation conditions, and cost calculation in detail. At the same time, China should also draw on the experience of the EU, Japan and other countries to explore the formulation of a special Ecological and Environmental Damage Compensation Restoration Law to actively improve remediation measures for natural resources and public health with penalties.

5.2. Expand the scope of relevant subjects

The ability to act as an eligible subject is an important relevant factor in the assumption of responsibility for ecological environment restoration. From the perspective of China's current ecological and environmental judicial practice, the scope of liability claims, whether as plaintiffs or as defendants, needs to be adjusted. Moreover, the adjustment exists in both public interest litigation and general civil litigation.

First, we shall adjust the subject of litigation request for ecological environment restoration liability. According to Fig. 4, the plaintiffs of ecological environment restoration lawsuits are mostly procuratorates, which not only increases the burden of procuratorates, but also leads to the mismatch of the subject of remediation and the subject of litigation. In order to improve judicial effectiveness, the primary task in China today is to expand the eligibility of subjects for environmental public interest litigation. The strict management of procuratorates should be relieved, and the grassroots and self-governance organizations such as village committees and social organizations should be eligible subjects of public interest litigation, while legal persons and natural persons with an interest should be included as co-plaintiffs. In general civil litigation, land contractors and operators, as actual users or close stakeholders, should also be given the right to requesting “restore the original state".

Second, we shall adjust the undertaking subject for ecological environment restoration. In its long practice of environmental protection, China has developed a unique model of “making administrative rules - setting up administrative permits - supervising and checking compliance - pursuing legal responsibility” (see Fig. 11). Based on this model, environmental liability usually falls on the ecological and environmental protection department and the direct damage makers. China recognizes the inadequacy of this provision, for example, in Article 1229 of the Civil Code, the term “polluter” in the original Tort Liability Law was changed to “tortfeasor”. At the same time, polluting enterprises, environmental assessment agencies, the corresponding government departments and other subjects, are also held accountable for the corresponding administrative or civil liability for environmental pollution, false identification or neglect of duties. This “double liability” system was firstly introduced by German Environmental Liability Act, expanding the liability undertaking subject from the only “direct” subject to also the subjects which are “linked” to pollution and damage to the environment.

Fig. 11.

China's environmental administrative law enforcement system [50].

5.3. Improve identification and evaluation mechanism

In China, ecological liability determination relies heavily on identification and evaluation. Inadequate identification mechanisms and poor access to evaluation have become critical obstacles to the implementation of ecological environment restoration. Combined with the exploration of environmental identification procedures in Sweden and other countries, China's ecological environmental damage identification and evaluation should focus on the following aspects in depth: first, clarifying the qualification condition for identification institutions and experts, expanding the expert pool, and unifying the administrative organizations that supervise identification institutions. Second, simplifying the identification process, weakening the court's role of proposing identification, clarifying the validity of the plaintiff's unilateral commission for identification, and ensuring identification is conducted promptly. Lastly, because of the imbalanced regional development in China, regional authorities shall work on its own charging standards for regional environmental damage identification based on the relevant meeting minutes for identification charge from the Ministry of Environmental Protection of the State Council, the Environmental Risk and Damage Identification and Assessment Research Center, and other departments. Moreover, we can also draw on the experience of foreign countries in vegetation restoration and seek support from technologies such as drone photography and remote sensing to retrieve the actual conditions before and after environmental restoration, in order to assist experts in identification and evaluation [51].

At the same time, in response to the problem of “too many cases”, China can also adopt a flexible identification method in which experts from identification institutions issue identification reports in their personal names, and set up corresponding responsibilities to avoid false identification [52]. The courts should also be noted that the identification report is not a sole decider for the verdict, expert's opinion and the opinion of the environmental protection authority should also be taken into consideration and so as to speed up the process of ecological damage litigation.

5.4. Clarify the targets and methods of restoration

There are two issues in ecological environment restoration that must be taken seriously: first, “ecological environment restoration” is not the same as “environmental recovery” and can only be implemented to the extent feasible; second, ecological environment restoration often requires significant time and financial resources on the damage makers. It is critical to determine the target state of restoration and the appropriate restoration method. Taking into account the ecological environment restoration targets of England and Ireland, and the “phased, experimental approach” or “adaptive restoration” of Joy B. Zedler and other scholars from the perspective of socio-economics [53], China's ecological environment restoration should pay particular attention to the following two aspects:

First, due to the fact the environment is usually irreversible, the ecological environment restoration should target on the “utility value” [54]. In practical, the utility value is based on the mandatory requirements of environmental quality standards, the future planned use of the damaged environment, the public demand in the affected area, and the current technical conditions and costs of implementation [55]. At the same time, in order to make the restoration activities “measurable”, the restoration targets should be clearly defined at the time of judgment, and/or the functional targets or standards of restored environment should be clarified in the preparation of the ecological environment restoration plan. For example, in water pollution restoration, it can be clarified to which environmental quality standard, whether “surface water V water standard, soil III standard” or “to achieve drinking water standard”. This standard needs to be strengthened especially in public interest litigation cases to prevent polluters from shirking their responsibilities.

Second, according to the different objects of restoration, the fulfillment of ecological environment restoration should include two types of original state restoration and alternative restoration [56]. The original state restoration is the most direct and effective remedy for the damaged ecological environment, and the performance of the restoration responsibility should be based on the original state restoration. However, in case that the plaintiff does not have the ability to restore, direct restore is not possible or the benefit available for restore is greater than the cost of restore, alternative restore can be used. Combining the concept of ecological balance, China's environmental protection practice and the restoration experience of countries such as Brazil and China, China should actively adopt alternative restoration methods such as off-site replanting in the destruction of mining resources, fish stocking in water pollution control [57], and alternative restoration methods such as labor in lieu of compensation in most ecological environment restoration.

6. Conclusion

For decades, the Chinese government has attached great importance to environmental protection. Not only does it indicate the responsibility and obligation of the state in the Constitution, the Environmental Protection Law, and other legal norms [58], but also in recent years, it has made the construction of ecological civilization and sustainable development an important mission of national development [59]. While punishing environmental polluters, more emphasis is placed on holding those polluters accountable for ecological environment restoration [60]. By using empirical research methods, this paper clearly demonstrates the current judicial status of ecological environment restoration liability in China, and proposes feasible solutions to optimize China's ecological environment restoration liability and promote the effective implementation of Article 1234 of the Civil Code by comparing foreign eco-environmental protection practices.

The innovation of this paper is twofold: first, it uses empirical research methods to analyze the current situation and summarize the causes. Among the 512 cases analyzed in this paper, there are 127 civil cases, 356 criminal cases, and 29 administrative cases, and the total number of cases is increasing year by year. From the final results of the court decisions, the majority of cases supported the plaintiff's request for the defendant to assume responsibility for ecological environment restoration. The empirical study found that, due to the lagging concept of ecological environment restoration in China and the unique judicial system in China, the liability for ecological environment restoration in China is facing several challenges in the judicial context, such as the lack of sound legal regulation, the lack of liability allocation, the mismatch of liability subjects, the difficulty of identifying damage facts, and the difficulty of effective implementation of restoration. Second, this paper innovatively proposes a path to improve China's ecological environment restoration liability in terms of legal norms, litigation subjects, restoration procedures and methods by drawing on the ecological environment restoration practices of the United States and other countries. The path of improvement is mainly in four aspects: first, to improve the legal regulation system in terms of both basic and special laws; second, to expand the scope of relevant subjects in terms of both litigation subjects and liability subjects; third, to improve the identification and evaluation mechanism in light of China's national conditions; fourth, clarify the targets and methods of restoration in terms of “utility value” and to determine the restoration method with different objects. There is still a long way to go to improve the liability of ecological environment restoration for China, but China has not given up its efforts.

Ethics declarations

Review and approval by an ethics committee were not necessary for this study, and informed consent was not required as the study did not involve animal experiments or human behavioral studies. Instead, we conducted a review of published research and provided appropriate references.

Funding statement

This work was supported by Humanities and Social Sciences Project of the Ministry of Education of China (No.23YJC820030) and the Humanities and Social Sciences Innovation Team Funding Project of Shandong University of China, China.

Data availability statement

Data will be made available on request.

CRediT authorship contribution statement

Fei Song: Writing – review & editing, Supervision, Funding acquisition, Writing – original draft. Kang Zhang: Writing – review & editing, Supervision, Data curation. Baozhen Song: Writing – review & editing, Methodology, Data curation, Conceptualization.

Declaration of competing interest

The authors declare that they have no known competing financial interests or personal relationships that could have appeared to influence the work reported in this paper.