The Concept Positioning And Improvement Path Of Preventive Environmental Public Interest Litigation In China From The Perspective Of Judicial Activism

In recent years,environmental risk prevention has received increasing attention,and China’s environmental legal system has also begun to transform towards environmental risk control.Environmental law implements the basic principle of "prevention first,protection first".Driven by judicial activism,judicial power has actively expanded and extended to the field of environmental risk governance,establishing a preventive environmental public interest litigation system.In the state of necessity,there are two specific types of preventive environmental public interest litigation in China: civil and administrative.In preventive environmental civil public interest litigation,judicial power to a certain extent replaces administrative law enforcement to directly make environmental risk decisions;In preventive environmental administrative public interest litigation,judicial power plays its role in supervising environmental administrative law enforcement.At the practical level,the absence of preventive environmental administrative public interest litigation has led to the current "single track" system characteristics of preventive environmental public interest litigation in China.Therefore,courts can only participate in environmental risk prevention through environmental civil public interest litigation.The system design of China’s preventive environmental public interest litigation,which emphasizes the importance of the people over actions,exhibits the characteristics of excessive judicial activity,specifically manifested in the weakening of the supervision function of judicial power,the offside function of preventive environmental civil public interest litigation,and the arrogance of judicial power over administrative power.Excessive activism in preventive environmental public interest litigation is not conducive to the joint efforts of judicial and administrative powers in risk prevention,but rather leads to overlapping and conflicting power scopes between judicial and administrative powers.Therefore,China’s preventive environmental public interest litigation should follow the concept of moderate initiative.The moderate initiative of preventive environmental public interest litigation is mainly reflected in the following aspects: firstly,preventive environmental public interest litigation should make a system shift that takes into account the defendant,environmental administrative litigation,and illegal behavior of administrative agencies;Secondly,strengthen the function of supervising environmental administrative law enforcement through preventive environmental public interest litigation,and build a preventive environmental public interest litigation system with the principle of "action and assistance of the people";Finally,specific suggestions are proposed from the perspectives of the dominant power to determine "significant environmental risks",the limits of judicial review,the negation of permanent prohibition functions,temporary preservation measures,and procedural linkage.