On 26 December 2009, the National People’s Congress passed the PRC Tort Law, which will take effect on 1 July 2010. Chapters eight and nine of the Tort Law specifically address liability for environmentally related torts.
Strict liability for pollution
Articles 65 and 68 of the Tort Law provide that for any damage caused by environmental pollution, a polluter bears strict liability. Subjective fault of the polluter is not required in order for such liability to arise. Thus, environmental tortious liability can be triggered if all of the following three elements exist: (i) environmental pollution occurs, (ii) persons or entities other than the polluter suffer an injury, and (iii) a causal link exists between the pollution and the injury.
Polluter bears burden of proof
Article 66 of the Tort Law states that in a dispute arising from environmental pollution, the polluter bears the burden of proof regarding any exemption or mitigation of its liability, as well as in relation to any lack of causal linkage between the polluter’s behaviour and the damage. The provisions in Article 66, which constitute a reversal of the usual burden of proof, echo evidence guidelines issued by the Supreme People’s Court several years ago.
Article 66 indicates that an injured plaintiff needs only to provide prima facie evidence about the likelihood that the polluter’s action caused the damage. The alleged polluter is then required to provide evidence to refute that causal linkage, and can do so by proving either that PRC laws exempt or mitigate liability, or that there is no causal linkage between its action and the damage.
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Beatrice Schaffrath regularly advises on China-related environmental law and compliance matters, including projects involving renewable energy, climate change and the clean development mechanism under the Kyoto Protocol.
Zhang Danian is the chief representative of the Shanghai office of Baker & McKenzie. His practice focuses on environmental compliance, regulatory affairs, foreign direct investment, joint ventures and merger and acquisition projects in the PRC.
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