Individual rights and the environmental public interest: A comparison of German and Chinese approaches to environmental litigation

• Published date: 01 April 2023
• Author: Nicholas Campbell
• Date: 01 April 2023
• DOI: http://doi.org/10.1111/reel.12466

ORIGINAL ARTICLE

Individual rights and the environmental public interest: A

comparison of German and Chinese approaches to

environmental litigation

Nicholas Campbell

Humboldt-Universitat zu Berlin, Berlin,

Germany

Correspondence

Nicholas Campbell, Humboldt-Universität zu

Berlin, Juristische Fakultät, 10099 Berlin,

Germany.

Email: campbell.npc@gmail.com

Abstract

This article compares the framework of environmental public interest litigation in

China to the individualized system of judicial review in Germany. It shows that envi-

ronmental reform requires modern States such as Germany and China to consider

certain objective criteria related to the public interest. These criteria are objective

insofar as they relate to certain empirically measurable conditions that have arisen in

the context of industrialization, and they relate to the public interest insofar as their

treatment requires substantial intervention from the State to ensure that economic

practices do not endanger the basic natural preconditions of human life. Between the

law's instrumentality to the ‘normal’functioning of modern industrial society and

reforms enacted in the public interest, environmental public interest litigation in

Germany and China stands out as it implies a possibility for various stakeholders out-

side of the administrative structure to promote environmental interests. This returns

a degree of agency to environmental stakeholders in helping to practically determine

the transition towards sustainability. The substantiveness of environmental litigation

is assessed, first, in relation to its openness, examining which social actors possess

standing to litigate in the public interest, and, second, in relation to its scope, refer-

ring to which acts become contestable through the framework of public interest liti-

gation. The court cases, academic debates and legislative reforms surrounding

environmental public interest litigation in Germany and China reflect the decisive fea-

tures of their respective legal ideologies, but they are also an area within which the

limits of the dominant legal ideology are tested.

1|INTRODUCTION

Environmental scientists have coined the term ‘Anthropocene’

1

to

describe the period in which human economic activities have come to

rival geophysical processes. This period has arisen from the

‘industrialization of the human-metabolicrelation to nature’,

2

leading to

‘large-scale human modification of the Earth System’,

3

threatening the

foundations ofhuman life, most notably throughclimate change. Rapid

1

W Steffen et al, ‘The Anthropocene: From Global Change to Planetary Stewardship’(2011)

40 Ambio 739.

2

A Malm and A Hornborg, ‘The Geology of Mankind? A Critique of the Anthropocene

Narrative’(2014) 1 The Anthropocene Review 62.

3

JB Forster, ‘Marx and the Rift in the Universal Metabolism of Nature’(Monthly Review,

1 December 2013) <https://monthlyreview.org/2013/12/01/marx-rift-universal-

metabolism-nature/>.

Received: 6 April 2022 Accepted: 19 September 2022

DOI: 10.1111/reel.12466

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and reproduction in any medium,

provided the original work is properly cited.

© 2022 The Author. Review of European, Comparative & International Environmental Law published by Wiley Periodicals LLC.

RECIEL. 2023;32:105–118. wileyonlinelibrary.com/journal/reel 105