In recent years,in order to adapt to the rapid development of economy,some places have excessively pursued economic interests at the expense of environmental interests.Facing the deterioration of ecological environment,the disadvantages of the traditional environmental public welfare centered on actual damage are gradually revealed.Preventive environmental civil public interest litigation breaks through the traditional boundary of actual damage,and it faces more uncertain risk behaviors.It promotes the stage of ecological environmental protection to advance and expands the relief scope of environmental damage,which is conducive to realizing the concept of environmental protection before it happens.However,this litigation is faced with the dilemma of low acceptance rate and difficulty in handling cases now.The reason is that the litigation thinking is solidified,and the litigation procedure cannot reflect the preventive characteristics of the litigation,which is manifested in the unclear identification of "significant risks",the vague distribution of burden of proof,and the rigid preventive enforcement measures.Simply applying the procedural rules of environmental civil public interest litigation after the event violates the forward-looking requirements of environmental protection prevention in advance,and also hinders the development of this kind of litigation in practice.Based on this,this paper will analyze the procedural obstacles faced by the preventive environmental civil public interest litigation,and try to put forward the path to improve the litigation procedure.In addition to the introduction,there are four chapters in this paper:The first chapter is "asking questions".The Green Peacock case leads to the problem to be discussed in this paper,that is,in the face of the lack and obstacles of procedural rules in preventive environmental civil public interest litigation,what kind of procedural rules should be designed to realize its function of preventing environmental damage? Procedural obstacles are manifested in unclear identification of "significant risks" in initiating litigation,vague distribution of burden of proof,and single and rigid preventive enforcement measures.At the same time,by demonstrating the natural attribute of environmental problems and the limitation of relief function,it is pointed out that the important value and function is risk prevention rather than damage filling,which highlights the preventive function of the litigation.The second chapter is "Risk Threshold ".This chapter discusses under what circumstances can preventive environmental civil public interest litigation be brought.The existence of "significant risk" is the factual basis for initiating litigation,so "significant risk" becomes the threshold for such cases to enter litigation."Significant risks" should be understood as environmental risks and be limited to hazards.By scientifically formulating environmental benchmarks and strictly observing the red line of ecological protection,the possibility is reduced to probability,and the identification standard of "significant risks" is clearly defined.At the same time,the minimum degree of foreseeable damage results should be set as serious and irreversible.The third chapter is "Distribution Rules of Burden of Proof ".This chapter discusses who bears the burden of proof in the face of unclear facts.The unclear distribution of burden of proof is a major defect in the procedural rules of this kind of cases.In order to give full play to the preventive function of the litigation,it is necessary to distinguish it from the environmental civil public interest litigation with damage as the center,and apply the rules of burden of proof distribution which can cope with more uncertainties on the basis of inversion of burden of proof.When the court examines the approved risk assessment report provided by the defendant,it should respect the administrative power,and only review the procedure,not the content.The fourth chapter is "Implementation Measures ".This chapter discusses what preventive measures can be adopted to prevent "significant risks" from turning into real damages.The main purpose of preventive enforcement measures is to realize that the sued environmental risk will not be transformed into actual damage.This is related to whether the judgment result can be implemented after litigation,that is,whether the effect of preventing environmental risks can be truly realized.Considering the conflict between economic development and environmental protection,we should design preventive enforcement measures which are effective in prevention,balanced in interests,flexible and diverse,so as to ensure the realization of the preventive function of this kind of litigation. |