


































Economics, Law and Policy 
ISSN 2576-2060 (Print) ISSN 2576-2052 (Online) 

Vol. 7, No. 2, 2024 

www.scholink.org/ojs/index.php/elp 

49 
 

Original Paper 

On the Coverage Scope of Major Risks in Preventive 

Environmental Public Interest Litigation 

Shen Jinfan
1
 

1
 School of Political Science and Law, Northeast Normal University, Changchun, China  

 

Received: July 12, 2024        Accepted: July 25, 2024          Online Published: July 29, 2024 

doi:10.22158/elp.v7n2p49               URL: http://dx.doi.org/10.22158/elp.v7n2p49 

 

Abstract 

When determining the coverage scope of major risks in preventive environmental public interest 

litigation, judgments need to be made from both factual and legal aspects. In the factual aspect, major 

risks must simultaneously satisfy a high degree of probability and severity of damage. In the legal 

aspect, the principle of proportionality and the principle of prevention can limit the scope of high 

probability and severity of damage; in specific cases, the identification subject of major risks, 

dangerous behaviors, behavioral consequences and causal relationships should be determined; judges 

can determine the coverage scope of major risks through factual recognition and value judgment.  

Keywords 

Preventive environmental public interest litigation, Major risks, Coverage scope 

 

1. Introduction 

In August 2022, the Intermediate People’s Court of Jinan Railway Transportation accepted a case 

involving the disposal of a discarded gamma knife by three hospitals. The People’s Procuratorate of 

Jinan City filed a preventive environmental civil public interest lawsuit in advance to actively avoid the 

occurrence of damage results (Wang & Yan, 2023, p. 1). This case was finally judged by the Higher 

People’s Court of Shandong Province in June 2023. This is the first preventive civil public interest 

lawsuit for radioactive pollution in the country. The application of preventive environmental public 

interest litigation to the response to environmental risks of radioactive pollution can avoid the 

occurrence of actual harm from radioactive pollution and ensure environmental safety. 

Compared with the post-remedy environmental public interest litigation that sues for judicial relief 

after polluting the environment, destroying the ecology and causing damage to the social public interest, 

preventive environmental public interest litigation can target “behaviors that pollute the environment 

and destroy the ecology with major risks of damaging the social public interest”, which is more in line 



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with the principles of giving priority to protection and prevention in environmental law. It can prevent 

environmental risks from transforming into damage, reduce major social conflicts caused by 

environmental problems, and protect citizens’ procedural environmental rights. However, by 

examining the judicial practice of preventive environmental public interest litigation, the number of 

preventive cases is extremely small, and judicial organs still maintain judicial passivity and the 

background of “passive response”. The reason lies in the fact that the existing laws and regulations are 

too vague about major risks, making it difficult for courts to make a determination and thus apply 

preventive litigation. Therefore, it is particularly necessary to clarify the coverage scope of major risks.  

 

2. The Cognitive Approach to the Concept of Major Risks 

To clarify the concept of major risks, it is necessary to start with the meaning of the term “major risks” 

and provide explanations, that is, to examine the meaning of major risks from the perspective of 

semantics. Thus, it is necessary to focus on the core of major risks, that is, risks.  

2.1 The Attribute of Major Risks-Uncertainty 

In ancient times, when fishermen went fishing at sea and encountered stormy weather, there were often 

many uncertain factors. There was a high possibility of dangers such as running aground and fishermen 

falling into the water. The existence of wind was often accompanied by the emergence of danger. 

Danger arose because of the wind; where there was wind, there was danger. Early risks were often 

natural, objective events that did not depend on human will, and risks entailed danger and concealed 

the possibility of damage occurring. However, risks were uncertain. Whether the danger and damage 

contained therein occurred or not was unknown to people. People could only rely on the judgment of 

daily experience to infer the probability of the occurrence of danger and damage. After the 

development of the Industrial Revolution in modern society, humans, with the help of science and 

technology, could have a deeper understanding of nature and to a certain extent, could utilize and 

develop nature more proficiently. As humans became more proficient in the development and 

utilization of nature, the risks generated by this behavior became increasingly complex and diverse. 

Modern risks are the most obvious external characteristics of industrialization and modernization and 

are a kind of potential side effect (Ulrich Beck, 2004, p. 36). The dangers that people were difficult to 

come into contact with and recognize in their production and life in the past are gradually revealing 

their true nature along with the improvement of people’s awareness of risks. 

When risks are manifested in the environmental field, they are environmental risks. Modern people 

have reached a relatively mature level in the development and utilization of nature. At this time, in 

human production and life, risks are manifested as the inherent natural environmental risks since 

ancient times and the man-made environmental risks associated with human development and 

utilization activities of nature. And due to the frequent human production and life activities, the impact 

of man-made environmental risks on humans is more intense. Therefore, the environmental risks 

mentioned in this article are all man-made environmental risks. Environmental risks have become an 



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objectively existing huge challenge in the process of human ecological civilization construction and 

modernization of environmental governance (Liu, 2021, pp. 37-48, p. 111). However, compared with 

the helplessness of early humans in the face of natural environmental risks, humans in modern society 

can use science and technology and combine the inherited empirical rationality to have a certain 

perception and understanding of environmental risks. On this basis, it is meaningful to discuss the 

coverage scope of major environmental risks. Therefore, based on the existing science and technology 

and empirical rationality, to understand major environmental risks, it is necessary to clarify the 

characteristics of major environmental risks in terms of the possibility and degree of damage.  

2.2 The Possibility of Causing Damage from Major Risks—A High Probability of Causing Damage 

In modern society, people’s production and life activities are constantly creating all kinds of risks all 

the time, but this does not mean that the development of modern society should come to a standstill 

because of the existence of risks. Risk is only an objectively existing uncertain fact, and whether it 

occurs is in an uncertain state. Blindly being afraid of risks will lead humanity into the 

misunderstanding of fearing development due to choking while eating, but this does not mean that we 

should let risks go and ignore their existence. 

The correct approach should be to delineate the possibility level of damage caused by risks, that is, the 

probability of damage occurrence. Among this risk level, danger is at the first level and is the situation 

with the greatest possibility of causing damage, that is, within a short period of time, a certain state 

caused by a certain behavior will, under people’s empirical expectations and scientific proofs, lead to 

the actual occurrence of damage. Risk is at the second level and is a situation with a moderate 

possibility of causing damage, that is, it is difficult to determine whether damage will occur in a short 

period of time through people’s empirical expectations and scientific proofs. Residual risks have the 

third level, which represents a lower possibility of damage, that is, based on people’s empirical 

expectations and scientific proofs, it is determined that damage will not occur within a certain period of 

time. 

Through the description of the possibility of damage caused by risks, it can be found that the 

probability of causing damage by danger, risk and residual risk decreases in turn. Danger is at full 

probability, followed by risk, and residual risk is at low probability. At this time, we can discuss the 

probability of causing damage by major risks. The probability of major risks should be between danger 

and risk, belonging to the high probability level of causing risks. Therefore, the major risks targeted by 

preventive environmental public interest litigation should be major environmental risks with a high 

probability of causing damage.  

2.3 The Degree of Damage Caused by Major Risks—Serious or Difficult to Recover from the Damage 

Caused 

After clarifying that major environmental risks should have the characteristic of a high probability of 

actually causing environmental damage, it is also necessary to discuss the possible consequences after 

the actual occurrence of this environmental damage. This consequence can be described from two 



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aspects: the depth and breadth of the impact of damage caused by major risks. 

2.3.1 The Depth of the Impact of Damage Caused by Major Risks 

The damage caused by major risks needs to reach a certain degree. This degree, in terms of the depth of 

the impact of the damage, is manifested as a serious negative impact on the environment, or the 

damage caused is difficult to repair through existing technical means, that is, it exceeds the carrying 

capacity of the environmental carrying capacity or threatens the survival of highly valuable organisms. 

Environmental carrying capacity refers to the threshold of human activities that the system can 

withstand under the condition that the composition, structure and function of the ecological 

environment system do not deteriorate and are in a virtuous cycle and development in a certain region 

during a certain period (Zhu, Xie & Li, 2017, pp. 7039-7047). 

The environment itself has a certain ability to recover and purify, and can withstand the vast majority 

of human production and life behaviors. For the ecology and polluted environment that have been 

damaged by human development and utilization behaviors, they can also gradually restore their 

carrying capacity through self-repair for a certain period of time. For example, during the ten-year 

fishing ban on the Yangtze River, by 2022, the number of fish species in the mainstream of the Yangtze 

River has increased by 14, and the number and weight have also shown a gradually increasing trend 

(Zhou, 2023, pp. 54-56). Therefore, when measuring behaviors with major risks, the risks caused by 

major risks should threaten the environmental carrying capacity, that is, the environmental capacity 

will be significantly weakened and difficult to recover within a certain period of time. 

At the same time, in addition to considering the impact on the environmental carrying capacity, it is 

also necessary to assess the impact of major risk behaviors on the survival of highly valuable organisms. 

For example, in the case of the Green Peacock, the court determined that if the first-level hydropower 

station on the Jasajiang River continues to be constructed, the submerged area of the project in question 

will inevitably lead to the habitat of the national first-level key protected animal, the Green Peacock, 

and the habitat of the national first-level key protected plant, Cycas tanqingii, being submerged. There 

is no doubt about the possibility of a major risk to the biological habitat. It can be seen that when it 

threatens the survival of rare organisms with high environmental value, ecological value, and economic 

value, it can be determined that this situation meets the circumstances of major risks. Therefore, it can 

be described that the depth of the impact of damage caused by major risks needs to reach the degree of 

exceeding the carrying capacity of the environmental carrying capacity or threatening the survival of 

highly valuable organisms. 

2.3.2 The Breadth of the Impact of Damage Caused by Major Risks 

To meet the degree requirements of major risks, it can either reach far beyond the environmental 

carrying capacity in terms of the depth of the impact of the damage caused, or reach the degree of 

threatening organisms with high environmental value, ecological value, and economic value. It can also 

be that in terms of the breadth of the impact of the damage caused, it has an impact on areas with a 

large area or rich ecological environment value. If the area affected by the damage caused by the risk is 



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a small area that does not have rich ecological environment value, then it cannot be considered that the 

risk reaches the degree of major risk in terms of the scope of impact. If at this time, the impact depth 

does not reach the degree of causing the environment in this area to be difficult to recover and the 

destruction of organisms with high ecological value, it cannot be considered that the risk has reached 

the degree of major risk in terms of quantity. Conversely, if the developer’s utilization behavior will 

affect a considerable large area or have an impact on areas with rich ecological environment value, it 

can be determined that this behavior conforms to the behavior of major risks. For example, in the 

Huilongshan case, the plaintiff claimed that the construction of the dam of the Huilongshan 

Hydropower Station would seriously damage the ecological environment of the Xiaohei River Basin. 

The national key protected plants and tropical rainforest vegetation that were not felled and damaged in 

the reservoir area of the Huilongshan Hydropower Station, the fish migration channels in the Lancang 

River and Luosuo River basins, and the Xishuangbanna National Nature Reserve were at risk of being 

destroyed, blocked and submerged. Therefore, the construction behavior of the dam of the Huilongshan 

Hydropower Station belongs to the category of major risk behaviors. 

In conclusion, it can be considered that to determine major environmental risks, it is necessary to 

simultaneously meet the characteristics of both quality and quantity. In terms of quality, it is necessary 

to meet the characteristic of a high probability of causing damage. In terms of quantity, it is necessary 

to meet one of the following conditions: First, in terms of the depth of the damage caused, it exceeds 

the carrying capacity of the environmental carrying capacity or threatens the survival of highly valuable 

organisms. Second, in terms of the breadth of the damage caused, it has a significant negative 

environmental impact on areas with a large area or rich ecological environment value.  

 

3. The Narrowing of the Scope of Major Risks by Legal Principles 

By describing the characteristics of major risks, the requirements of major risks in terms of possibility 

and damage results can be determined. However, at this time, the concept of major risks is still an 

uncertain concept and needs to be further narrowed by legal principles. 

3.1 The Narrowing of the Possibility of Damage Caused by Major Risks by the Principle of 

Proportionality 

When regulating environmental risks, it is very easy to fall into two extremes. On the one hand, there is 

excessive regulation of risks, and on the other hand, there is insufficient risk regulation. With the help 

of the principle of proportionality, the scope of major risks can be further narrowed. On the one hand, 

not all risks caused by the development and utilization behaviors of environmental developers must be 

identified as major risks. Unlimited protection of the ecological environment, restrictions on the 

freedom of developers, hindrance to economic and technological development, and incurring high 

economic costs to monitor and regulate environmental risks; on the other hand, we cannot be inactive 

and connive at the potential environmental risks to grow wantonly, evolve into major environmental 

risks, and develop serious or irreversible damage consequences in the future. 



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The principle of proportionality originated in German police law in the 19th century and was initially 

mainly used to regulate police powers (Mei, 2020, pp. 57-70). The common view in the academic circle 

holds that the principle of proportionality includes the principle of suitability, the principle of necessity, 

and the principle of proportionality, among which the principle of proportionality receives the most 

attention, that is, the measures adopted must be proportional or commensurate to the purpose achieved 

(Ni, 2021, pp. 24-38). The narrowing of the scope of major risks through the principle of 

proportionality is mainly manifested in the narrowing of the possibility of the occurrence of major 

risks. 

With the help of the principle of proportionality, proportionate obligations can be imposed on risk 

actors for different levels of risks. For danger, the probability of causing damage is full. If the damage 

it causes is within the tolerance range of the environmental carrying capacity, the natural environment 

can be repaired through self-purification and other methods within a period of time. At this time, it is 

not necessary to restrict its behavior by initiating preventive environmental public interest litigation by 

identifying major risks; if the behavior of the actor may cause serious or irreversible damage, people 

need to try to avoid it through various means or minimize the impact of the damage as much as 

possible when it cannot be avoided. For risks, the probability of causing damage is only moderately 

probable. People only need to monitor it within a certain period of time to ensure that the development 

status of the risk is under people’s control during this period to avoid the actual occurrence of damage. 

For residual risks, the probability of causing damage is the lowest, and the actual occurrence of damage 

is almost not caused. The regulation of residual risks will not conform to the cost-benefit principle of 

economics (Zhang, 2020, pp. 22-30).Therefore, residual risks must be tolerated by society (Zhang, 

2017, pp. 164-172). 

On the one hand, determine the scope ratio of major risks. Because the probability of damage caused 

by danger is the highest, danger can be regarded as a more serious major risk and, of course, it belongs 

to the scope of major risks. During the fermentation process of risks, if it exceeds people’s empirical 

rationality and scientific rationality and is about to enter the uncontrollable category, then it can be 

considered that the risk is about to transform into a major risk; on the other hand, the measures 

implemented for risk creators need to be proportionate, adapt to the fulfillment capacity of risk creators, 

and be in line with the cost-benefit measurement of actors. The cost of actors fulfilling obligations and 

taking measures should not be greater than the possible benefits they may obtain. When the fulfillment 

of a certain risk obligation or the implementation of risk prevention measures will bring an unbearable 

burden to the actor, the actor is allowed and helped to take other alternative measures to undertake the 

environmental risk obligation.  

3.2 The Narrowing of the Degree of Damage Caused by Major Risks by the Precautionary Principle 

The precautionary principle was originally stipulated in the German Pollution Control Law. Its initial 

meaning was that when there was no evidence based on the current level of science and technology to 

prove that human behavior would indeed cause ecological damage, the state was required to take 



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preventive measures to prevent possible ecological and environmental damage (Zhao, 2009, pp. 

187-211). In 1992, the United Nations Rio Declaration on Environment and Development made a 

classic exposition of the precautionary principle, that is, in order to protect the environment, all 

countries should do their best to take preventive measures. When there is a threat of serious or 

irreversible damage, the lack of sufficient and conclusive scientific evidence shall not be a reason for 

delaying the adoption of cost-effective measures to prevent environmental deterioration (Wu, Liu & 

Wang, 2024, pp. 368-375), which is called the weak risk precautionary principle by scholars. The 

Wingspread Statement emphasizes that when an activity poses a threat to human health and the 

environment, preventive measures should be taken even if the causal relationship cannot be fully 

proved scientifically (Chen, 2022, pp. 288-304), which is called the strong risk precautionary principle 

by scholars. 

The precautionary principle is divided into the weak risk precautionary principle and the strong risk 

precautionary principle in legal norms. The weak risk precautionary principle advocates for limited 

prevention of limited risks. Before carrying out risk prevention, it is first necessary to consider whether 

the risk will cause serious or irreversible damage. If it will cause serious or irreversible damage, 

cost-effective and reasonable measures should be taken for prevention; while the strong risk 

precautionary principle responds to unlimited risks with unlimited measures. The measures taken 

during risk prevention do not calculate their costs, and the risks dealt with do not require them to 

transform into actual damages that meet the serious qualitative requirements. The narrowing effects of 

these two precautionary principles on major risks are different. If the weak risk precautionary principle 

is adopted, the risk needs to meet the dual requirements of quality and quantity, that is, both a high 

probability of causing damage and serious or difficult-to-recover damage results; if the strong risk 

precautionary principle is adopted, as long as the risk reaches a high probability in terms of quality and 

there is a possibility of causing damage, then it can be regarded as a major risk without considering 

whether it reaches the severity or difficulty of recovery of the damage caused in terms of quantity. 

When discussing the narrowing of major risks by the risk precautionary principle from the perspective 

of preventive environmental public interest litigation in China, the perspective of the strong risk 

precautionary principle should not be applied. Its preventive measures for environmental risks 

regardless of costs will not only increase a large amount of judicial costs, economic costs and other cost 

inputs, but also expand the scope of attack on major risks and hinder the development of science and 

technology and the economy. The perspective of the weak risk precautionary principle should be 

applied, and the cost-benefit principle should be adopted to presuppose uncertain major risks as certain 

actual damages and calculate the possible damages and losses; and then through methods such as 

scientific and technological evaluation and the concepts of the general public to comprehensively 

evaluate the possibility of major risks transforming into actual damages, so as to narrow the uncertainty 

of major risks.  

 



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4. The Composition of Major Risks in Specific Cases 

Through the understanding of the characteristics of major risks themselves and the narrowing of the 

coverage of major risks by legal principles, the scope of major risks has gradually emerged with clear 

boundaries. At this time, it is necessary to place the coverage of major risks in the perspective of 

specific cases, that is, to analyze the identifying subject, dangerous behavior, behavioral outcome and 

causal relationship of major risks. 

4.1 The Identifying Subject of Major Risks 

Major risks are proposed in judicial interpretations. Whether it constitutes a major risk belongs to 

judicial determination, and the judicial power is exercised independently by the court. Therefore, the 

court is of course the decisive identifying subject (Zhang & Wu, 2020, pp. 138-144). Theoretically, 

human cognitive ability has no boundaries. However, in a specific field (such as judicial trial), the 

cognitive subject as an individual is limited by the cognitive object, his own knowledge and other 

external reasons, and his cognitive ability shows relative limitations (Zhang, 2022, pp. 103-120). 

Compared with administrative organs, courts do not have professional environmental science 

knowledge. Administrative organs have environmental protection departments, personnel with 

specialized knowledge of environmental science, and funds dedicated to supervising environmental 

protection work, conducting environmental monitoring and assessment and other specialized 

environmental work. 

Limited by specialized knowledge, personnel who make determinations on facts cannot complete 

judgments beyond their own cognitive abilities (Zhang, 2017, pp. 110-139, p. 206), but this does not 

mean that judges cannot complete the fact determination of major risks. On the contrary, judges only 

need to make reasoning under the premise of the law by thinking about the evidence and combining 

their own life experience. That is, although limited by the particularity of specialized knowledge, 

judges cannot comprehensively review specialized evidence, but they should still play the role of 

gatekeepers (Kang, 2023, pp. 76-84). Therefore, it cannot be considered that because courts and 

individual judges do not have specialized environmental science knowledge, the status of the court as 

the identifying subject of major risks should be transferred to administrative organs or environmental 

experts. 

4.2 Dangerous Behaviors of Major Risks 

In the provisions of judicial interpretations on major risks, major risks can cause ecological damage or 

environmental pollution. Therefore, the causal behaviors that lead to major environmental risks are 

required to have environmental illegality (Zhang & Zheng, 2023, pp. 43-56). However, some scholars 

believe that the Environmental Protection Law clearly stipulates, for obviously wrong behaviors or 

risky behaviors that may harm the social and public interests, environmental public interest 

organizations can file civil environmental public interest lawsuits to avoid the occurrence of damage to 

ecological and environmental rights and interests (Cao & Ma, 2021, pp. 150-160). 

 



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Therefore, the causal behaviors of major risks do not necessarily have environmental illegality. Daily 

production and life behaviors and general environmental development and utilization behaviors may all 

constitute the causal behaviors of major risks. At the same time, if it is required that the causal behavior 

of major risks has environmental undiscoveredness, that is, it is required that the damage of ecological 

damage and environmental pollution actually occurs, and preventive environmental public interest 

litigation can only be filed based on the actual occurrence of the damage. This not only makes 

preventive environmental public interest litigation no different from relief-type environmental public 

interest litigation, but also does not conform to the purpose of preventive environmental public interest 

litigation to prevent environmental risks. Therefore, defining the causal behaviors of major risks as 

daily production and life behaviors and general environmental development and utilization behaviors is 

more in line with the purpose of preventive environmental public interest litigation to prevent risks.  

4.3 Behavioral Outcomes of Major Risks 

The behavior of major risks points to the actual harm of ecological damage and environmental 

pollution, and the legal interest harmed is the social public interest. That is, the ecological damage and 

environmental pollution behaviors that harm the social public interest are major risk behaviors, then the 

scope of the social public interest needs to be clarified. Currently, in the academic circle, there are the 

single legal interest infringement theory (Zhu, 2016, pp. 23-31) and the dual legal interest infringement 

theory regarding the legal interest harmed by major risks. 

The single legal interest infringement theory holds that the legal interest harmed by major risks is the 

public interest of the ecological environment. The dual legal interest infringement theory holds that 

major risks can not only harm the public interest of the ecological environment, but also harm personal 

and property interests, or damage both kinds of legal interests simultaneously. In judicial practice, in 

the case of the Yunnan Oil Refining Project of China National Petroleum Corporation, Friends of 

Nature believed that the oil refining project of China National Petroleum Corporation Yunnan 

Petrochemical Co., Ltd. posed a major risk to water, atmosphere and other natural environment 

elements and human health. In this case, the reasons for the lawsuit filed by the plaintiff included both 

harm to the social public interest and harm to personal interests; in the case of Acer pentaphyllum, the 

court held that Acer pentaphyllum was in the Red List of Biodiversity and was a rare wild plant. There 

might be a potential risk of damaging the original living environment of Acer pentaphyllum in the 

case-related area and affecting its survival after the completion of the hydropower station, which might 

thereby damage the social public interest. In this case, the court held that the construction of the 

hydropower station would harm the social public interest, and thus held that the construction behavior 

of the hydropower station was a major risk behavior. 

The objects threatened by major risks should only include the social public interest. First, according to 

the provisions of judicial interpretations, only behaviors that pose a major risk to the social public 

interest fall within the actionable scope of preventive environmental public interest litigation; second, 

for situations causing personal injury and property damage, the infringed can file tort lawsuits. There 



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are other judicial relief channels for personal injury and property damage. Therefore, the category of 

social public interest only includes ecological and environmental interests, without considering 

personal and property damage (Cao, 2022, pp. 687-693). 

4.4 Causal Relationship of Major Risks 

For the causal relationship of major risks, it is necessary to examine from two dimensions. The first is 

the proof content of the causal relationship. In the proof content of the causal relationship, the judge not 

only needs to determine that there is a causal relationship between the daily production and life 

behavior of the actor or the general environmental development and utilization behavior and the major 

risk of the ecological environment, but also needs to determine that there is a causal relationship 

between the major risk of the ecological environment caused by the actor and the degree of serious or 

irrecoverable damage, that is, there is a causal relationship between the actor’s behavior and the 

possibility of damage occurrence and the severity of the damage. 

The second is the proof rule of the causal relationship. Based on the presumption rule of the causal 

relationship, once certain ostensible facts are damaged and it can be presumed that there is a causal 

relationship between the damage and the fact, the victim does not need to prove the causal relationship 

again to safeguard his own interests. At the same time, the actor can only be exempted from his liability 

by disproving that his damage fact has nothing to do with the resulting damage (Qiu, 2002, p. 225). In 

the presumption rule of the causal relationship, the plaintiff provides preliminary evidence that the 

defendant’s behavior endangers the social public interest, and then the defendant bears the burden of 

proof of the causal relationship in substantive sense. Although the burden of proof of the causal 

relationship in substantive sense is borne by the defendant in the litigation, the plaintiff still needs to 

provide a low-level proof of the litigation claim. This not only ensures that the burden of proof has a 

certain degree of difficulty, but also reduces the burden of proof of the plaintiff while also alleviating 

the burden of proof of the defendant (Yu & Mu, 2019, pp. 25-32). 

 

5. Judicial Determination Approaches of Major Risks 

After understanding the characteristics of major risks, narrowing the scope of major risks, and 

clarifying the constituent conditions of major risks, we still need to focus on the determination of major 

risks by judges, which can be carried out from the dimensions of factual cognition and value judgment. 

5.1 Dimension of Factual Cognition 

When judges determine whether the production and life behaviors or environmental benefit behaviors 

of the actor constitute a major risk to the public interest, on the one hand, they should utilize scientific 

methods of factual cognition, and on the other hand, they should follow objective bases for factual 

determination. 

5.1.1 Methods of Factual Cognition 

The approaches for judges to cognize facts include the standard of the general public, the scientific 

opinions of environmental professionals, and the judge’s own rules of experience. The so-called 



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standard of the general public refers to judging whether the actor’s behavior constitutes a major risk 

behavior based on the cognitive ability of the majority of the society. This cognitive method has its 

merits and can identify the possible major risks of the actor earlier when the administrative organ fails 

to manage the actor’s development behavior. However, the standard of the general public represents the 

empirical rationality of the general public and may sometimes have ambiguity with scientific 

rationality. That is, the behavior identified as a major risk according to the standard of the general 

public may not reach the level of major risk based on scientific appraisal opinions; and the behavior not 

considered a major risk according to the standard of the general public may reach the level of major 

risk based on scientific appraisal opinions. 

The scientific opinions of environmental professionals, including the scientific appraisal opinions such 

as the permits of environmental administrative departments and the appraisal opinions of 

environmental experts, represent the scientific rationality of environmental professionals. Through 

professional experiments and scientific analysis and evaluation, a scientific environmental opinion can 

be provided. However, this method is not only prone to conflicts with the standard of the general public, 

but also prone to internal conflicts within scientific opinions. On the one hand, there are conflicts 

between the scientific opinions issued by environmental administrative departments such as 

environmental permits and environmental impact assessment reports and the scientific appraisal 

opinions and expert testimonies issued by environmental experts. On the other hand, there are conflicts 

among different environmental expert opinions issued by different environmental experts. 

The judge’s own rule of experience means that the judge exercises discretion based on the trial of case 

evidence and his own empirical rationality. However, the judge himself is not an environmental 

professional and it is difficult to conduct a complete review of environmental professional evidence. 

What needs to be clear at this time is that in the determination of major risks, judges cannot rely solely 

on science, but at the same time cannot ignore scientific evidence. That is, in this process, a judgment 

to take preventive measures can be made without definite evidence proving that the risky behavior will 

cause serious ecological damage or environmental damage consequences; at the same time, the 

judgment to take preventive measures relies on the confirmation by scientific evidence that the risky 

behavior has a high possibility of causing serious ecological and environmental damage. Therefore, the 

judge’s method of factual cognition should be mainly based on his own empirical rationality, 

supplemented by the standard of the general public and environmental scientific opinions, in order to 

determine whether the risky behavior is a major risky behavior. 

5.1.2 Bases of Factual Cognition 

When judges make factual determinations, they need to rely on objective bases, which include 

environmental quality standards, ecological protection red lines, the list of nationally protected wild 

animals and plants, etc. Environmental quality standards refer to the regulations on the allowable 

content of various harmful substances or factors in the environment within a certain time and space for 

the purpose of maintaining certain environmental quality, protecting the health of the population, social 



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wealth, and promoting a virtuous ecological cycle (Wang, 2018, p. 123). When making factual 

determinations, judges can refer to the pollutant concentration in the area caused by the actor’s risky 

behavior. If the pollutant concentration in the area is about to reach the limit of the environmental 

quality standard or has reached 80% of the requirements of the environmental quality standard, at this 

time, this behavior is about to cause serious actual damage to the ecological environment and should be 

identified as a major risky behavior. 

The ecological protection red line refers to the area with particularly important ecological functions 

within the ecological space that must be mandatorily and strictly protected, and is the bottom line and 

lifeline for ensuring and maintaining national ecological security (Tang Shuang’e., 2024, pp. 173-191). 

The scope of the ecological protection red line includes important ecological functional areas and 

ecologically sensitive and fragile areas. For areas clearly defined as ecological protection red lines, if 

the actor’s behavior has the possibility of damaging the ecological environment of the area, it can be 

identified as a major risky behavior without reaching the degree of severity or irreparability. 

The “List of Nationally Protected Wild Animals” and the “List of Nationally Protected Wild Plants” 

were issued in 1989 and 1999 respectively and have undergone multiple adjustments. These two 

documents can be used as the basis for courts when identifying rare creatures. Wild animals and plants 

under national key protection can be identified as the major risk level when the actor’s behavior 

threatens the survival of rare creatures according to the protection level. Therefore, if the actor’s 

behavior poses a threat to the survival of nationally protected wild animals and wild plants in the area, 

the actor's behavior is identified as a major risk.  

5.2 Dimension of Value Judgment 

Regarding risks, there are no experts. The internal and external uncertainty issues involved in 

environmental risks cannot be overcome by existing scientific knowledge, nor can scientists (Han & 

Leng, 2023, pp. 202-212). For the uncertain legal concept of major risks, when judges cannot 

determine major risks through the narrowing of the characteristics of major risks by legal principles 

and the use of constituent elements of the determination of major risks, they can introduce value 

judgment, that is, by differentiating and weighing different values and interests, and judging whether 

major risks are constituted based on the value hierarchy. This kind of value judgment includes not only 

the values inherent in norms, but also the common social and ethical values (Li & Jin, 2020, pp. 99-108, 

p. 112). In this process, judges need to weigh social public interests and economic development 

interests, and also consider the practical value of judicial decisions, adhere to the law as the basis, 

convince people with reason, and touch people with emotion, to achieve the best legal, political and 

social effects. 

When judges make value judgments on risky behaviors, they should consciously exclude existing legal 

norms to consider dispute resolution solutions (Li, & Sun, 2012, pp. 58-66), that is, by making 

judgments on simple social and ethical values. The consideration of various values is not only a 

comparison of the relative importance of interests, but also, to a certain extent, an insistence on 



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environmental ethics (Kang, 2023, pp. 76-84). In specific cases, judges should fully consider the 

various interests involved in the case, be cautious enough in considering environmental interests, and 

give priority to environmental public interests when environmental interests conflict with economic 

interests. 

  

6. Conclusion 

Preventive environmental public interest litigation is a concrete manifestation of the 

prevention-oriented concept of China’s Environmental Protection Law. Limited by the unclear 

coverage of major risks at present, judicial organs tend to be passive and conservative in the application 

of preventive environmental public interest litigation. By analyzing the origin and concept of major 

risks themselves, it can be found that major risks have a high probability of causing damage and the 

severity and irrecoverability of the damage results. The characteristics of major risks can be further 

narrowed by means of the principle of proportionality and the weak precautionary principle, and 

targeted response measures for risks of various grades and degrees of damage can be proposed. Further 

analyzing the constituent elements of major risks, it can be found that the identifying subject of major 

risks is the court, the dangerous behavior is daily production and life behaviors or general 

environmental development and utilization behaviors, the behavioral outcome should point to the harm 

to social public interests, and at the same time, double proof content determination is required in the 

causal relationship. In the process of confirming major risks, judges should use the fact determination 

method mainly based on their own rules of experience and supplemented by the standard of the general 

public and the standard of scientific rationality, and make fact determinations with the help of objective 

fact determination bases such as environmental quality standards, ecological protection red lines, and 

the list of nationally protected wild animals and plants. When major risks are still uncertain, the method 

of value judgment can be used for demonstration. It is expected that clarifying the coverage of major 

risks can provide a reference for the judicial practice of preventive environmental public interest 

litigation. 

 

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