[Joint House and Senate Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
CLEARING THE AIR: THE HUMAN RIGHTS AND LEGAL DIMENSIONS OF CHINA'S
ENVIRONMENTAL DILEMMA
=======================================================================
ROUNDTABLE
before the
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
JANUARY 27, 2003
__________
Printed for the use of the Congressional-Executive Commission on China
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CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
LEGISLATIVE BRANCH COMMISSIONERS
House
Senate
JIM LEACH, Iowa, Chairman CHUCK HAGEL, Nebraska, Co-Chairman
DOUG BEREUTER, Nebraska CRAIG THOMAS, Wyoming
DAVID DREIER, California SAM BROWNBACK, Kansas
FRANK WOLF, Virginia PAT ROBERTS, Kansas
JOE PITTS, Pennsylvania GORDON SMITH, Oregon
SANDER LEVIN, Michigan* MAX BAUCUS, Montana
MARCY KAPTUR, Ohio* CARL LEVIN, Michigan
SHERROD BROWN, Ohio* DIANNE FEINSTEIN, California
JIM DAVIS, Florida* BYRON DORGAN, North Dakota
EXECUTIVE BRANCH COMMISSIONERS
PAULA DOBRIANSKY, Department of State*
GRANT ALDONAS, Department of Commerce*
D. CAMERON FINDLAY, Department of Labor*
LORNE CRANER, Department of State*
JAMES KELLY, Department of State*
John Foarde, Staff Director
David Dorman, Deputy Staff Director
* Appointed in the 107th Congress; not yet formally appointed in
the 108th Congress.
(ii)
C O N T E N T S
----------
Page
STATEMENTS
Economy, Elizabeth, C.V. Starr senior fellow and director, Asia
Studies, Council on Foreign Relations, New York, NY............ 2
Ferris, Richard, principal, Beveridge & Diamond, PC, Washington,
DC............................................................. 6
Rohan, Brian, associate director, American Bar Association [ABA]
Asia Law Initiative, Washington, DC............................ 9
Turner, Jennifer, senior project associate for China, Woodrow
Wilson Center, Washington, DC.................................. 12
APPENDIX
Prepared Statements
Economy, Elizabeth............................................... 32
Rohan, Brian..................................................... 38
Turner, Jennifer................................................. 44
CLEARING THE AIR: THE HUMAN RIGHTS AND LEGAL DIMENSIONS OF CHINA'S
ENVIRONMENTAL DILEMMA
----------
MONDAY, JANUARY 27, 2003
Congressional-Executive
Commission on China
Washington, DC.
The roundtable convened at 2:34 p.m., in room 2255, Rayburn
House Office Building, Mr. John Foarde (staff director of the
Commission) presiding.
Also present: Selene Ko, senior counsel for commercial rule
of law; Keith Hand, senior counsel; Andrea Worden, senior
counsel; Tiffany McCullen, U.S. Department of Commerce; Mike
Castellano, Office of Representative Sander Levin; and Melissa
Allen, Office of Senator Chuck Hagel.
Mr. Foarde. Good afternoon, everyone. And welcome to the
first staff-led issues roundtable for the Congressional-
Executive Commission on China [CECC] of the calendar year 2003.
We are delighted that you are here to join us; and our practice
has been to start on time and end on time, because we
understand that people have things to do and our panelists have
things to do as well. We are delighted that they are sharing
their time and expertise with us.
Before I introduce our panelists for this afternoon and
speak just a little bit about the format, I would like to
mention that the Commission staff will be having its second
issues roundtable of 2003 next week on Monday, February 3, from
3 p.m. until 4:30 p.m., so a little bit later, in room 2168 of
the Rayburn House Office Building. That is the Gold Room. The
roundtable is entitled ``Ownership with Chinese
Characteristics, Private Property Rights, and Land Reform in
the People's Republic of China.'' And as with all of our issues
roundtables, this session is open to the public and to the
press.
The panelists will discuss a range of topics related to
development and protection of private property rights in China,
including China's new rural land contracting law, legal
limitations related to the ownership of land and personal
property in China, enterprise privatization and access to
capital markets, and intellectual property protection. The
panelists will be Jim Dorn, vice president at the Cato
Institute; Patrick Randolph, a professor of law at the
University of Missouri at Kansas City Law School; Brian
Schwarzwalder, a staff attorney with the Rural Development
Institute in Seattle, WA. And we hope a representative from the
U.S. Patent and Trademark Office. But his participation is not
yet been confirmed, so I will mention him in a subsequent
announcement, I hope.
My name is John Foarde. I'm staff director of the
Congressional-Executive Commission on China. Neither the Senate
nor the House leadership has formally designated our Commission
members for the 108th Congress. We hope that will happen soon.
But we expect that my boss, Congressman Doug Bereuter of
Nebraska, will be chairman for the 108th Congress. And we
understand from the Senate majority leader's office that
Senator Chuck Hagel of Nebraska will be the Senate co-chairman.
So we look forward to working with Senator Hagel as well. The
other Commissioners have not been named yet, but we hope that
they will be many of the same ones that worked with us in the
107th Congress.
I'm delighted to welcome you to this first issues
roundtable. We are calling it ``Clearing the Air, the Human
Rights and Legal
Dimensions of China's Environmental Dilemma.'' We have four
distinguished panelists with expertise in this area to share
their expertise with us and to answer some questions when their
presentations are finished.
We are going to follow the procedure that we did last year
and start in what, in the Senate Finance Committee room, was
window to wall, and now we are going to go wall to window, and
start with Elizabeth Economy, the C.V. Starr Senior Fellow and
Director, Asia Studies, at the Council on Foreign Relations. We
will also hear from Tad Ferris, a principal in Beveridge &
Diamond, P.C., Brian Rohan, Associate Director for the American
Bar Association's [ABA] Asian Law Initiative, and Jennifer
Turner, Senior Project Associate for China at the Woodrow
Wilson Center here in
Washington.
Our format is that each panelist will be permitted to speak
for 10 minutes. When there are 2 minutes left, I am going to
hold up this very elegant sign so you can see and wave it a
little bit so you can see it, and when you are out of time,
this second elegant sign, so you can tell that your time is up.
Some of the points that you miss we will be able to take up in
the question and answer session. When all four panelists have
finished their presentations, we will open it up from questions
from the staff panel here and we will go until approximately
4:15. So with that, let me introduce Liz
Economy. Liz, thanks.
STATEMENT OF ELIZABETH ECONOMY, C.V. STARR SENIOR FELLOW AND
DIRECTOR, ASIA STUDIES, COUNCIL ON FOREIGN RELATIONS, NEW YORK,
NY
Ms. Economy. Thank you, John. And thanks to the rest of the
Commission staff for inviting me to speak here today as part of
such a distinguished panel. It is a real pleasure, and I am
especially delighted that the Commission has decided to include
the
environment as one of the areas that it is examining in their
assessment of China and the future Sino-American relationship.
I am going to focus my remarks on the nature of the challenge
that the Chinese Government and the Chinese people confront in
integrating environmental protection with economic development
and the implications for human rights.
While China's spectacular economic growth over the past two
decades or so has provided a significant increase in the
standard of living for hundreds of millions of Chinese, it has
also produced a monumental environmental challenge. There has
been a dramatic increase in the demand for natural resources of
all kinds, including water, land, and energy. Forest resources
especially have been depleted, triggering a range of secondary
impacts such as desertification, flooding, and species loss. At
the same time, levels of water and air pollution have
skyrocketed. Small-scale township and village enterprises,
which have been the engine of Chinese growth in the
countryside, are very difficult to monitor and regulate, and
routinely dump their untreated waste directly into streams,
rivers, and coastal waters.
Just to give you a few specific statistics, more than 75
percent of the water in rivers flowing through China's urban
areas is unsuitable for drinking or fishing. 60 million people
have difficulty getting access to water, and almost three times
that number drink contaminated water on a daily basis.
Desertification, which affects one quarter of China's land, now
threatens to envelop China's capital, Beijing, and is forcing
tens if not hundreds of thousands of people to migrate every
year.
In terms of air quality, in 2000, China's State
Environmental Protection Administration [SEPA] tested the air
quality in more than 300 Chinese cities, and found that almost
two thirds failed to achieve standards set by the World Health
Organization [WHO] for acceptable levels of total suspended
particulates, which are the primary culprit in respiratory and
pulmonary disease. To identify an overall environmental trend
for the country, however, is very difficult. Some areas, such
as Shanghai or Dalian may be moving relatively quickly to clean
up their environment and to put in place technologies and
policies to meet the environmental challenges of the future.
Many other areas, however, continue to evidence worsening
trends in levels of water and air pollution. Moreover, it is
clear that China will face new challenges as its economy grows,
such as that from the growing transportation sector. In 2000,
Beijing boasted 1.5 million vehicles, roughly one-tenth the
total in Tokyo or Los Angeles, yet the pollution generated by
these vehicles equalled that of the other two cities.
For the region, China's continued economic development and
weak environmental protection mean rapidly growing problems
with acid rain, dust storms, and marine pollution. For the past
several years, in fact, China's dust storms have traveled as
far as the United States, resulting in a noticeable spike in
respiratory problems in California. Globally, China is one of
the world's largest contributors to ozone depletion,
biodiversity loss, and global climate change.
Beyond the challenge for the natural environment, however,
is the impact that environmental degradation and pollution have
on the health and welfare of the Chinese people. Certainly I
think the most devastating impact has been that on public
health. Since the early 1990s, the Chinese Government and the
people themselves have increasingly begun to associate local
pollution with local health problems. Along many of China's
river systems, and particularly the Huaihe River and the Yellow
River, there are entire towns where the incidence of cancer,
stillborn births, and developmental delays is far above the
norm. Even in the suburbs surrounding Beijing, the rice
produced now evidences high levels of mercury. Air pollution is
also a leading cause of death in China. The World Bank
estimates that 178,000 people die prematurely in urban areas
annually from respiratory disease not associated with cigarette
smoking.
Environmental degradation, in particular water scarcity, is
also contributing to growing numbers of environmental refugees.
Over the past decade, 20 to 30 million people have migrated
because of water scarcity or desertification. And over the next
2\1/2\ decades, another 30 to 40 million are expected. Often,
these migrants end up living in squalid conditions in cities
without access to running water or heat. In Taiyuan, Shanxi
Province, the city leaders considered moving the entire city of
2.5 million people because of water shortages. Instead, they
undertook a very expensive river
diversion project.
Of course, these types of large-scale public works projects
may also produce a different kind of environmental migrant, who
is forcibly resettled, as in the Three Gorges Dam or the just
launched ``South to North'' river diversion project. Of course,
such projects happen in every country, but people in China
suffer additionally from their lack of ability to participate
in the decisionmaking process leading up to the project, the
systemic corruption that often prevents them from being
compensated properly, and the weak legal system that offers
little redress for the injustices that they
experience.
In addition, environmental degradation and pollution are
costly to the Chinese economy. For example, water pollution or
scarcity may lead factories to close, crops to be ruined, and
fish to die. In terms of actual economic costs, the numbers are
really all over the board, but I think a good middle ground
seems to be the World Bank's estimate of somewhere around 8 to
12 percent of GDP
annually.
Taken together, these social and economic problems also
contribute to popular unrest. For example, in October 2001,
hundreds of farmers demonstrated against a factory in Kunming,
Yunnan Province, for poisoning their crops with arsenic and
fluorine. No one would buy the farmers' grain. Even though the
factory possessed the necessary pollution control equipment, it
believed it was simply too costly to use.
While there are no good overall figures as to how
widespread such environmental protests are, we do know that in
the late 1990s, the Minister of Public Security stated that
environmental pollution was one of the four sources of social
unrest in the
country.
So we can see that the Chinese people, in many regions of
the country, lack the basic human rights to access clean water
and clean air, the right to participate in the decisionmaking
processes that will affect their welfare, and the right to fair
adjudication of environmentally related disputes.
Having shared a bit about the nature of the environmental
challenge that China faces, I want to spend a few minutes
talking about what the government is actually doing to respond
to these challenges.
First, it is important to remember that China, like all
countries, is facing a range of challenging social issues,
including HIV/AIDS, which I know this Commission has already
discussed, rising unemployment, growing drug use, and an almost
non-existent pension system. All of these make demands on the
leaders' attention and the country's resources. I would argue
that the environment has certainly risen on the agenda of the
leadership. This is evidenced from the steadily increasing
levels of central investment from 0.8 percent of GDP during
1996 to 2000 to an anticipated 1.3 percent during 2001 to 2005.
However, Chinese scientists themselves say the country should
be spending around 2.2 percent of GDP merely to keep their
environmental situation from deteriorating further.
There are, however, some important changes afoot. First,
China has worked assiduously to court international assistance,
in financial, technological, and policy areas. Indeed, China is
the largest
recipient of environmental assistance from the World Bank, the
Global Environmental Facility, the Asian Development Bank, and
Japan. Multinationals are also beginning to play an important
role not only in transferring the best technologies but also in
supporting environmental education and other such activities.
One case that I will note is that of Royal Dutch Shell, which
is the lead multinational in the consortium working with
PetroChina to develop the 4,000 kilometer west-to-east pipeline
to bring natural gas from Xinjiang to Shanghai. Even though the
joint venture contract has yet to be signed, Shell hired the
environmental consulting firm ERM to undertake an in-depth
environmental impact assessment, and hired United Nations
Development Program [UNDP] to do a social impact assessment.
This is another way in which multinationals can also improve
the environmental practices of their Chinese counterparts.
A second conscious strategy of the central government has
been to devolve responsibility for environmental protection to
local officials. This has produced what I call a patchwork
quilt of environmental protection, with some local officials,
generally in wealthier areas with more international
investment, working proactively to address environmental
degradation, while others simply do not have the resources.
Shanghai, for example, has been investing 3 percent of its
local revenues in environmental protection, and there has been
talk of increasing this to 5 percent, while Sichuan only
invests around 1 percent. The question for these poorer areas,
which remain the vast majority of the country, is whether they
can or will take action before irreparable damage is done to
their water or land resources.
Third, Beijing has permitted, and in some cases encouraged,
the establishment of non-governmental organizations [NGOs] and
active and investigative media and more proactive individual
action. More than three-quarters of Chinese citizens in a
recent survey indicated that they received most of their
information about the environment from television and the
radio. In sometimes limited and sometimes extremely significant
ways, this activity is changing the face of environmental
protection in China. There has also been very significant
progress and development in application environmental law, but
I know that Tad and Brian and Jennifer are going to discuss all
of these extremely interesting things in depth, so I am not
going to say any more.
Let me just conclude, then, by noting that while
environmental pollution and degradation in China clearly have
deleterious effects on public welfare, the current system
denies the Chinese people the right to directly challenge
government policy in many ways.
The environment has also become an important arena for
addressing some of the human rights challenges I mentioned
before.
Developing a legal system, for example, contributes to greater
transparency in the government and society, may afford people
the opportunity to have input into the decisionmaking process
by publicizing environmental laws for public comment before
their adoption, and provides the opportunity for a fair hearing
when rights are abrogated.
Non-governmental organizations provide a new form of social
organizations to agitate for change through quiet lobbying and
pressure, and could, in fact, become a focus for much broader
political discontent over the time. The environment therefore
is an arena in significant flux with great potential to have a
transformative effect on the future economic and political
situation in China. Thank you.
[The prepared statement of Ms. Economy appears in the
appendix.]
Mr. Foarde. Liz, you are a pro at this clearly, because you
came in right on time. And I am grateful, and so are your
fellow
panelists.
We will move on now to Richard Ferris, better known as Tad.
Tad is an attorney specializing in international environment,
health, and safety issues, with a focus on China. He is an
expert on environmental health and safety law, and lawmaking in
China, and advises the Chinese Government entities and
transnational corporations on these levels. Tad, welcome, and
thanks for your help.
STATEMENT OF RICHARD FERRIS, PRINCIPAL, BEVERIDGE & DIAMOND,
PC, WASHINGTON, DC
Mr. Ferris. Thank you, John. Thank you also to the rest of
the staff members of the Congressional-Executive Commission on
China for allowing me to participate in this important
discussion today. And if you will excuse my hoarse voice, I
just returned from China yesterday so I am still a little
travel weary.
Liz's discussion really provides a substantial backdrop to
a lot of the lawmaking initiatives that are underway currently
in China. In the next 10 minutes, I will try to give the
Commission and the other participants an overview of some of
the significant developments in the environmental lawmaking
area as well as some of the substantial challenges that China's
lawmakers are facing currently. To begin with the current
challenges, it is important to note that, at the 10,000 foot
level, when you are looking at the development of Chinese
environmental laws, if you had an accurate list of all the laws
that have been issued in the area of environmental protection
to date, it would represent a daunting catalog. There are over
2,000 environmental, health and safety standards that have been
issued to date. Many of these, of course, are not widely
available to the public. Solely covering environmental, health,
and safety standards--as opposed to other legal documents--that
number is quite substantial. I think the important thing for
the Commission to understand is to look, when you are on the
ground in China, at how these legal measures are really brought
into play and how they affect environmental governance within
China, including how they change behavior within the regulated
community.
In terms of recent history, understanding the challenges to
implement China's environmental laws is quite important. For
example, within the State Administration for Safe Production,
Supervision and Management, an agency which deals with issues
related to toxic chemicals, et cetera, which is an important
aspect of environmental protection, there are currently four
senior officials that have responsibility for a wide array of
industry issues, from nuclear power to tobacco, to
petrochemicals to general chemicals management. These
individuals also effect a subject of possible future Commission
discussion--that of worker health and safety. But key in any
discussion of China's environmental law implementation
challenges is an understanding that these four individuals
often must respond to mining and other workplace accidents. In
the first 9 months of 2002, there were over 100,000 deaths
largely resulting from mining accidents in China. And that is
considered a lower number than in previous years.
That being said, understanding that these four individuals
may have to drop their activities in other key areas and
respond when those accidents occur, and are increasingly
responsible for making sure that the accident number goes down
even further, makes it perhaps more comprehensible why the
officials aren't able to bring the full array of resources to
bear on the development of other environmental protection
measures. So, you have situations in China which you may have
regulations that are issued and enter into effect but that
cannot be implemented. For example, in the case of the toxic
chemicals regulations that I mentioned, the application forms
that companies need to fill out in order to receive their
operating permits or their chemical management registration
licenses were not available when the regulations entered into
effect.
In this particular case, the toxic chemicals regulations
entered into effect on November 15, 2002 and the application
forms were posted on the Web site of the relevant agency in
January, 2003. With this situation in mind, it is perhaps
easier to understand that when you represent a transnational
corporation or another member of the stakeholder community that
is looking to identify their obligations or the obligations of
local companies, when those obligations enter into effect and
what behaviors the obligations require, it is very difficult to
obtain this information just by looking at a particular legal
measure.
Often in China, because of lags in the development of legal
measures, you are faced with ``working toward compliance'' over
an
extended period of time as opposed to confirming you are doing
the environmentally right thing in China as of the date new
environmental laws enter into effect.
Other challenges that stakeholders in China face include,
at least at the present time, the tendency, with which you may
be familiar, to draft very broad legal measures. This tendency
provides the regulators with maximum interpretive flexibility.
This tendency to
reserve in the laws interpretive flexibility for authority
figures, at least in the current evolution of Chinese
lawmaking, is something that continues to the present time. For
example, at the local level, if you ask a village head, what
are my legal duties if I wish to dispose of this heavy metal?
The village head will generally not go and flip open a State
Environmental Protection Administration Gazette or Shanghai
Environmental Protection Bureau [EPB] Register; instead, if
they do not have an answer, they will likely ask a superior-
level authority figure for guidance. And still, this reliance
on verbal interpretations that are not memorialized in any
publicly available written document is the great challenge that
regulated community members face in China as the country
evolves from this rule of authority stage to something that we
perceive as more consistent with a rule of law approach.
Often, not only personnel deficiencies but also financial
deficiencies result in the development of laws that provide
very little compliance guidance. Law drafters lack resources to
be able to issue the interpretations; they are not able to
respond to requests for interpretive guidance. Although, that
being said, it is important to point out that the State
Environmental Protection Administration at least is among the
more proactive agencies in terms of providing compliance
guidance to the regulative community. They have actually
published a compilation of interpretive letters that actually
specifies the definitions of certain terms, clarifies
exemptions, et cetera--something that is very rare still in
Chinese agency rulemaking. And this is very helpful.
The next step probably would be to provide this in a form
that could be readily accessible to anyone no matter where they
are. Right now, these interpretive letters exist in a book that
very quickly will be out of print. This would be lost as a
helpful tool without the kind of resources that they need to
put that into CD format, et cetera, or gazette format.
Another challenge is that regulatory authorities in China
rarely repeal older and/or inconsistent measures after new laws
are issued. So often you are dealing, even if you have a
gazette, with a law that is apparently still in force from 1954
and a new law in 2001, and how do you reconcile conflicts
between these measures? They do not sufficiently consider the
role of measures and laws such as trade laws, that relate to
areas of environmental protection, et cetera, and provide
needed instructions on the relationships between these laws to
facilitate compliance.
Also, even though moves are under way to change this
practice in light of China's increasing participation in the
international trade community, including the WTO in particular,
the Chinese Government still classifies some laws or other
documents as internal, and these laws are not officially
disseminated to the public. This is one of the greatest
challenges, especially to some members of the legal community,
because we deal in information, we look at information, and we
scrutinize information. And if it is off limits, it is
something that cannot be helpful to the promotion of
appropriate compliance behavior in China. And in one anecdote
in that regard, I recently requested environmental protection
standard from a regulatory official in China who sent it to me
since he had drafted the standard, the standard was promulgated
and the standard was available in a bookstore in China. It was
returned to him by the post office because they said that it
was an ``official document'' and that it could not be sent
outside the boundaries of the People's Republic of China [PRC].
So you see, access to law is not only an issue of internal
coordination within an agency, but also an issue of
coordination among the many agencies that are acting often
individually in terms of their understanding of really what are
China's information access obligations under the WTO.
And I would close just before questions in saying that my
20 or more years in China, only 5 years ago, Chinese
legislators that I have work with would strongly resist any
foreign--meaning non-Chinese--input into the legislative
process. It was perceived then as an intervention or a
challenge to their sovereignty. At present, in converse, most
Chinese legislators actively encourage the involvement of
foreign experts in development of Chinese statutes, and I think
at the grand level this is a very positive change. Thank you.
Mr. Foarde. Thanks very much, Tad. Very useful. And we will
return to some of those questions during the Q and A period.
Our next panelist is Brian Rohan, associate director of the
ABA's Asia Law Initiative. Brian is an attorney specializing in
environmental law, and he currently coordinates the ABA's China
Environmental Governance Training Program. Brian, welcome.
Thanks for your assistance today.
STATEMENT OF BRIAN ROHAN, ASSOCIATE DIRECTOR, AMERICAN BAR
ASSOCIATION [ABA] ASIA LAW INITIATIVE, WASHINGTON, DC
Mr. Rohan. Thanks very much. It is truly a pleasure to be
here. And having spent a lot of time on environmental law in
China, it is particularly rewarding to see that there is a lot
of attention being paid to the issue. And there are a lot of
interesting developments afoot in China, so it is wonderful
that we all get a chance to talk about what is happening.
The Asia Law Initiative of the ABA has a few projects going
in China. We are working on criminal defense, we are working on
property rights, and so on. But the largest project that we
have worked on to date is a rule of law and environmental
governance project. And that is what I want to outline a little
bit. I will go through some of the interesting highlights of
that project to offer a window into what is going on in not
only environmental law but other rule of law and governance
aspects of our work.
We implemented this project beginning in February of 2002,
and placed a pro bono ABA liaison in Beijing, and that person
has been working with central government authorities, local
government officials, and various other stakeholders to pull
this project together. And under the banner of environmental
law and environmental governance, this project is really
getting to rule of law and governance issues, such as: ``How do
citizens access information from governments? How do they
participate in decisionmaking processes? And how can they
advocate to defend their legal rights.''
So we see what we are doing as sort of a Trojan horse
approach, using environmental law as a substantive theme, and
then engage the reform-minded community within China.
What we have done over the course of the last year is,
first, to form some very important partnerships with SEPA and
with the Center for Environmental Education and Communication
within SEPA. We formed a project advisory committee to inform
the project and direct it in substantive terms. And I mention
that because it is extremely important when working in China,
and when one is looking to work on a reform of the system from
within, to engage central government, to have them brought on
as partners, not to be coming in from the outside with some
sort of independent agenda. We found that the support we have
gotten from people at the National People's Congress, from the
China Law Society, and then others, has been really
instrumental as the project has evolved over time.
So in terms of what we have done, we have conducted three
training sessions in three separate cities. Chifeng, Wuhan, and
Shenyang have been the training locations. And we have engaged
primarily Chinese experts, sort of the cream of the crop of
environmental law and policy in China, to be our experts and
presenters, and go out to the Environmental Protection Bureaus
and the other stakeholders in these three cities, and engage
them on environmental law and focus on the themes of what
provisions of environmental law provide governmental
responsibility to give information, to operate transparently,
to involve citizens, to give citizens rights and standing
before government. And the response has been tremendous.
I will give you a sense of what is going on in Shenyang,
where we have been conducting one of our follow-on activities.
The format has been to conduct the training and then do these
substantive follow-on activities to really highlight good
governance projects.
And in Shenyang, when we went up for the training, the
Environmental Protection Bureau officials informed us that they
were working on a draft public participation law. So we
conducted our training with them, and then we went back and
engaged with them on a series of workshops to get this law
right. And in the process of assessing the law and talking with
them about the details of how you set up systems to give
information transparently to citizens and so on, the draft law
was published twice in local newspapers. Each time there were
over 100 comments received back. And not only has there now
been an interesting competition over the promulgation of this
law, with the municipal government trying to claim
responsibility and the Shenyang People's Congress also fighting
for jurisdictional control of this law, they have all
collectively very warmly invited us back up to talk about the
implementation of the law; i.e., ``How are we going to engage
citizens? How are we going to teach citizens about the their
rights to get the information, to participate in the
decisionmaking processes? '' And so on.
From an international standard, the essence of this
innocent
little municipal regulation of Shenyang is profound. It is a
cutting-edge participatory democracy sort of concept, and the
relevant officials in the province are asking us back
specifically to train their citizens so that they can properly
exert their rights under this law. This is quite encouraging
and, honestly, extremely exciting.
In terms of what we have accomplished and where we see the
project going, we would like to do a lot more of these training
sessions, focusing very much on Chinese environmental law,
going out to different cities, doing different kinds of follow-
on activities, be it this kind of public participation law or a
transparent pollution data base available on the Internet, or
whatever it may be, in every
individual city in which we work.
And then we have also seen a wonderful phenomenon starting
to emerge, and that is, public interest lawyers are catching on
that the environment is a wonderful theme. And every time I go
over to China, I am meeting more lawyers, and it is not
uncommon for one of them to pull a little bottle of water out
of a plastic bag, and, you know, the color of it is not exactly
inviting. This sample is something that was drawn from a
municipal well, and they are in conversations and working with
local government and considering filing a lawsuit and so on and
so forth. There is a lot of legal movement in the environmental
law sphere right now. And, as Tad
mentioned, a lot of the laws are ambiguous and there is a lot
of uncertainty. It is by no means well-trodden legal practice
at this point. But I think that is what excites the Chinese
lawyers. They see that there is a real opportunity here, and
there aren't a lot of sectors of the law in which you are able
to test the bounds of tolerance and test your ability to
recover damages for citizens who have been aggrieved or damaged
by governmental actions. So it is an
exciting, dynamic area right now.
We are funded by the State Department in this project, and
we were funded for 1 full year and are hoping to continue this
kind of work. I mean, obviously in Shenyang, it is sort of at
the first step right now. And to roll this out and do it in
more provinces and support the advocates in the way that they
really need the support right now is a much longer-term
prospect. I mean, not that I need to bore us all here with the
minutiae of funding issues and so on, but it is something that
we hope will be able to expand and continue, because the window
of opportunity is there. Environmental law has a certain
political space that other sectors of reform aren't enjoying
right now. It is no surprise that environmental law is getting
approval of the central government and that we are going out
and finding reform-minded individuals in the local EPBs. This
is packaged as perfecting the environmental law system, and as
a result, we are not ruffling the feathers that could be
concerned otherwise when you have a project where an American
organization is coming in and bringing new ideas along with it.
To give a couple of other perspectives on it, in terms of
why the Chinese are participating in this project, I think it
is very much the sense that there is the political space and
that this project is accomplishing things, and that they have
an opportunity to be a part of something that is the leading
edge of a new kind of legal practice in China. And there is a
sense that the rule of law is almost inevitable, and this
project may be one of the ways in which windows into that new
world of rule of law are possible.
And, in something of an anecdote as well, as Americans we
tend to think of the American Bar Association and quickly think
of
lawyer jokes and so on and so forth. But for the Chinese, there
is tremendous cachet in working with the American Bar
Association. They remind me that we are a serious organization
with 400,000 members, et cetera, and so forth, and they enjoy
being part of something that is very prestigious. So that has
been an interesting thing, as well as sort of a reminder for
me.
And the project is also very inclusive. In terms of our
working style, we have taken great pains again to involve the
central government, have them participate as members of the
Project Advisory Committee, and so on. By engaging the Chinese
officialdom, we have ensured that we have maintained the
political space as the projects evolve. And I think that has
been important for us.
There are other issues here. You know, ``What does this all
mean for the potentially burgeoning NGO community? '' I frankly
don't see the NGO community blossoming in a way that would be
recognizable to Western eyes any time soon, but the legal
reformers are there. We are finding them in the local
government, we are finding them in the private law firms, we
are finding them doing NGO-style work in academia. So it is
just a matter of continuing to work with them and empowering
them wherever they may be, and not worrying about the fact that
they aren't organized as an NGO. The energy is there. The
potential for change is there. So long as you are working on
the right substantive areas. And I again would come back to
that political space issue.
So in terms of the lessons learned from the U.S. approach,
seeing, the devastation of the environment being so clearly and
widely understood throughout China, and Tad describing some of
the dynamic aspects at play here in the environment right now,
it is a wonderful area. It is a perfect sector in which to
work, and we are hoping to continue at it. Thank you very much.
[The prepared statement of Mr. Rohan appears in the
appendix.]
Mr. Foarde. Thank you, Brian. It sounds like very exciting
work indeed.
All of our panelists this afternoon are very distinguished
in this interesting area, but here in Washington when we start
talking about China and the environment, the first name on our
lips is the next panelist, Jennifer Turner. Jennifer is senior
project associate for China at the Wilson Center. She
coordinates the Working Group on the Environment in United
States/China Relations and the Environmental Change in Security
Project, and is editor of the China Environment Series.
Jennifer, thank you very much for
coming.
STATEMENT OF JENNIFER TURNER, SENIOR PROJECT
ASSOCIATE FOR CHINA, WOODROW WILSON CENTER, WASHINGTON, DC
Ms. Turner. Thank you. We also have a svelter name now. We
are the China Environment Forum. And actually, because I do
this work, I was obviously thrilled that you were putting on
this panel and I was excited that you would invite me to speak.
In the course of my work in putting on meetings and putting out
publications, I have gotten to know a lot of folks who I call
``eco-entrepreneurs'' in China: Government, NGO, academic, and
sometimes even business people who are pushing for better
environmental quality in China, and maybe sometimes pushing the
envelope on what NGOs can do.
In fact, I have to say, and I guess you too Brian, we are
working in one of the bright spots in China. And for me, I have
had a lot of contact with Chinese NGOs, and so for me, mine is
more of a ``glass half full'' kind of comment today. And I
did--maybe because I used to be a professor--I arranged my
points 1, 2, 3, 4. I have major points, and so if I don't get
through all the details we can do it in the Q and A.
But the biggest point, to reiterate some of Brian's
comments, is that the Chinese Government has opened up a
political space for environmental protection activities, and
that has enabled what I see as an impressive--I know they seem
invisible--but really an impressive growth in independent NGOs,
but also in activities by universities, government research
centers, student groups, journalists, and my favorite--
government-organized NGOs [GONGOs]. And when you look at the
Chinese independent NGOs, you have to see them as part of a
larger movement of all these different groups getting active in
this area.
I see independent Chinese environmental NGOs at the
forefront of civil society development in China. They were
first, and they have done more experimentation than other
groups, and I think they are a good model.
On the journalist side--and because there are a lot of
journalists who work in environmental NGO groups, I kind of see
them together sometimes--environmental journalists enjoy more
freedom in pursuing their stories than other beat reporters,
and I think they are quickly becoming a force pushing for more
environmental awareness and investigations of local problems;
not as much criticizing national policies and government
agencies, but at the local level I think they can be an
important force to look at.
In the short term, the future of ``green'' civil society in
China, I think, is more an issue of improving the capacity of
these organizations and less an issue of political space. They
have got some of the space. They now need to fill it up,
because it is not all being used as effectively as it could be,
which is actually an opportunity for international NGOs, and,
conceivably, the U.S. Government in supporting NGOs. An example
is USAID supporting NGO-business partnership development in
South and Southeast Asia. There are a lot of opportunities for
that kind of support in China.
So there is growing political space for NGOs and others.
The government has opened up opportunities for these State and
non-state sector groups to operate. And individual greenies
were the first to register. Now, registration is a bit of a
headache in China, and there are some details in the notes I
gave you, and I can answer more questions on it. It is a real
headache, but actually my eco-entrepreneurs find other spaces
to operate. They form nonprofit corporations, Internet groups.
Other types that don't have to register; they are just kind of
there, such as low-level volunteer groups. A bird-watching
group doesn't seem that dynamic, but I have actually met some
pretty dynamic bird-watching groups that are making some
changes at the grassroots level. Students also get involved in
activities. I think a lot of these environmentalists that I
have met feel that they are inspired by the fact that a lot of
State sector groups, the GONGOs and the universities and the
research centers, are going after international grants for the
environment and doing a lot of projects that look like NGO
work, so they feel like that they can move into that space as
well.
There are approximately 50 environmental groups that are
registered with the government. Fifty doesn't sound like a lot
in China, but again I think there are hundreds--I know that
there are hundreds of environmentalists doing work in other
forums. A lot of the GONGOs in China, have gone ``green.'' It
helps them, they can kind of download jobs from government
agencies and attract international funding. They are probably
major competitors for a lot of Chinese independent NGOs for
some international funds. What is interesting, though, is that
some of these GONGOs, like the Women's Federation groups that
are doing ``green'' work, they are being weaned off central
funding. So eventually a lot of these GONGOs are going to
become independent NGOs in the future. And that is a trend to
look for, because they will be independent groups someday,
albeit with close government connections.
Student environmental organizations have exploded in
number: 22 in 1997, to 184 today, and they are spread all
across the country. They do education, waste reduction,
environmental monitoring work both on and off campus. And they
have been very good at networking among themselves, even better
than a lot of NGO groups are, I have found. And they are
producing future environmental activists. I made the bold
statement that environmental groups are in the forefront of
civil society. I think they really do inspire other groups,
because they were first; they actually registered and
succeeded. They started doing activities. They partnered with
international organizations, got international funds from U.S.
foundations, foreign governments, or multilateral
organizations.
To me, the most striking point about this small NGO
movement is that when NGOs partner with international groups,
international NGOs create new horizontal partnerships, where
you will have foreign and Chinese NGOs working with local
government and local research centers. For those who know
China, you don't generally see this kind of cooperation
horizontally; and, similar to ABA's rule of law project, there
is an opportunity here. The problems are so severe in the
environmental sphere that everybody realizes that we must come
together. So, that is what I find a
particularly exciting trend.
Most NGOs do undertake activities that are considered
safe--public education, surveys on endangered species. But you
do have some groups, particularly professional groups such as
lawyers. Someone who works with Brian here created an NGO that
gives free legal assistance to pollution victims, helping the
whole legal system do its work. I was amazed that he did this
work, but he is not getting into any trouble partnering with
other organizations. And there are other types of examples that
I can give you as well.
I think that by being in the safe area of public policy and
by being nonconfrontational, these ``green'' NGOs have been
given the freedom to do their work; but they are not notable
just because they ``exist'' and they are doing environmental
work, but because they are exploring the possibility of
advocacy in China, and that is where they become a good model.
Environmental journalism in China developed in a distinctly
Chinese way. A lot of the increased environmental reporting
started from the top. The National People's Congress said, ``We
need more environmental reporting,'' so they set up a campaign,
and in 1990 there was a command post up in Beijing that rallied
reporters and commanded that they do reporting in this area.
But a lot of journalists found that this was a very
interesting area to report on, and when combined with upper-
level sanction, they have a lot more freedom. Local governments
must talk to them. I have met some of these reporters and they
say that they have a lot more access than they might have
otherwise.
TV stations and radios have growing programs. On the radio,
it is striking to me that they have hot lines and more exposes
on local government pollution violations. And there is also an
intriguing cross-fertilization between the NGO and journalist
communities. A lot of journalists volunteer or they create
environmental NGOs. And some journalists are also aware,
similar to the problems with the NGO communities, that they
lack capacity. You don't want to have just activist
journalists, and so it is kind of unbiased. And so they know
they need to improve their capacity in terms of being more
unbiased, but also in understanding the scientific background
of the issues. So they have created their own kind of internal
NGOs where they have networks and salons to help each other in
doing their work.
In the short term, as I said in the beginning, the
expansion of ``green'' civil society is going to depend on the
NGOs improving their capacity. And now there is the obstacle of
the official registration that will have to change, and the
Chinese Government has been considering maybe changing the
registration requirements. But it is meant to be a little bit
difficult, because the government is protecting its own GONGOs
and is a wee bit unsure about this new sector in China.
As I have said, the environmental sector has been given a
fair amount of leeway. But funding challenges also exist, of
course, and plague a lot of groups, which have become reliant
on international funding, something I think in the long-term
could be a problem. In the short term this is OK. That's my
personal opinion. But the fact that they haven't yet developed
membership systems--and I think that is a capacity issue--
raises the question, ``how do you develop membership? '' The
Chinese public asks, ``I give you money to do this? '' And so
the new NGOs are trying to manage these kind of organizations.
With low salary, people don't stay, and you lose your
institutional memory.
There is also not enough networking across sectors. And Liz
has made me think about the health problems in China. I think
you really need to see the environmental groups and the health
groups working together, but they don't do that yet. And I
think that there is a lot of potential with international NGOs
and a lot of other governments. The Europeans, in particular,
have been doing some NGO capacity-building work. And I really
think this would be a good opportunity.
I like thinking in terms of capacity building to strengthen
their environmental groups. You don't build civil society; you
build organizations that function well, and then who knows what
goes on from there? But I think with the capacity building
focus, there are about 60 international NGOs that are operating
in China. Most foreign governments have pretty extensive
environmental programs. The U.S. Government, as you know,
doesn't do as much in China--particularly in the NGO sector,
more government-to-government work. And I think that there can
be a lot done to help them use that space. And I'm going to
stop.
[The prepared statement of Ms. Turner appears in the
appendix.]
Mr. Foarde. Your timing is impeccable. That was 9 minutes,
59 seconds. Great work.
We are going to go on to the question and answer session.
All four of you have given us rich themes to explore. I am
going to exercise the prerogative of the Chair and ask
questions and hear the answers for about the first 5 minutes,
introduce my colleague next to me to carry on, and then the
other members of the staff here. We will try to keep it to 5
minutes each so that everybody gets a chance to ask questions,
and then we will do as many rounds as we have before 4:15 or
until we are out of steam.
I guess I would direct this question to all of you, and you
can step up to it if you would like for however long you like.
I am interested in the general observation that a couple of you
made about the environment and environmental issues having more
political space in China with the government and the Communist
Party than other issues, particularly human rights issues. Tell
me why you think that is, and whether there are any lessons
there to be learned that we might apply to other parts of
Chinese public
discourse.
Ms. Economy. I will start with a little bit of history. I
think there is a historical component to this in the sense that
in the 1992 Rio Conference, which was the United Nations
Conference on
Environment and Development, half of what went on at Rio were
negotiations on climate change and biodiversity, formal
government-to-government talks. The other half of what went on
was in the non-governmental sector. And here China was
embarrassed. It was made very clear to the Chinese that they
could not participate in the same way as other countries
because they didn't have genuine non-governmental
organizations. What they had were what Jennifer described as
GONGOs, which at that time were substantially less
sophisticated than they are today in fact.
And after Rio, I know that Liang Congjie, who started the
first environmental non-governmental organization in China, had
a discussion with one of the vice chairmen of the National
Environmental Protection Agency, where that person encouraged
him in fact to startup an NGO, in part to rectify this
situation.
I think also that there has been a recognition on the part
of the State Environmental Protection Administration that it
cannot do its job alone and that it needs society to
participate. It really is so poorly staffed--and Tad has done
work on this--so poorly staffed and so poorly funded, that in
order to even begin to address the challenges, it needs to look
outside the realm of the government. And so it has opened the
space to these non-governmental organizations and to
individuals and to the media as a form of enforcement at the
local level, so that it uses these groups and the media to
report back to them on what is going wrong.
And just to support what Jennifer was saying earlier, with
the media, some of these television programs in China have
brought the attention of Zhu Rongji to problems in the ``ban on
logging'' campaigns or reforestation campaigns. That is how the
central government leaders find out that what they are ordering
is not being carried out.
Mr. Ferris. I would add to that, just from my experience
with the lawmaking process and the development of that process
in the environmental sector, and why that is currently much
more robust than, for example, the indoor environment or worker
protection area. It has been my experience and that of my
colleagues that I closely work with that currently a lot of
government officials perceive that having a ``green''
reputation is something that is sought after very vigorously.
Environmental protection is something that, one, has placed
China more in the spotlight on the international stage than
many other issues. Chinese leaders are going to pick an issue
of concern to China and when they can choose among labor
rights, environmental protection, et cetera, they will pick the
environmental protection issue. Issues of significant
contamination recently have been identified by Cheeka Peak
Observatory, et cetera, in North America that is traced back to
manufacturing operations in China. Reports like that are very
much taken as an issue of
concern to Chinese policymakers.
China has an increasing desire to be considered and
respected on the international scene. Multilateral
environmental negotiations constitute one area in which, if not
in an outspoken fashion, China at least internally within the
Group of 77 developing nations--much more than 77 now--is a
leader. And looking more closely at the issue of government
scrutiny of the environmental sector, I find that often in the
area of environmental protection laws, the government
authorities at the highest levels give the rulemakers a little
more breathing room to innovate, and they look at environmental
journalists as a means to augment their regulatory monitoring
capacity.
There have been numerous instances in which an enforcement
team from the resource-starved administration goes down to
inspect a manufacturing facility. Everything looks fine. All
the environmental protection facilities are in operation, the
scrubbers are working, looks pretty nice, the effluent seems
reasonably compliant with national standards, et cetera. Then
that team goes away, and it is followed up by a number of
journalists who come in, see that the environmental protection
facilities are turned off, everything is different. No one is
wearing their safety equipment. The effluent looks pretty bad,
even by visual inspection. And then they report back to the
national team. Often when officials need to work with minimal
resources, the officials face a ``fight the largest fire'' kind
of situation when they need to decide where they will go.
However, in deciding to proceed with an investigation, often
many bureaucratic signals are flipped that may alert the
inspection target to the upcoming inspection. And then of
course, the local facility knows long before the enforcement
inspection team shows up.
So, increasingly, China is using environmental journalists,
and in doing so is giving them a much broader mandate than
would otherwise be typical of a reporter in China.
Mr. Foarde. Let us go back to that in the next round, But
thank you both.
Mr. Ferris. Sure.
Mr. Foarde. We are going to follow the practice that we
used last year; that is, when a CECC staff member has a
particular expertise or is looking into a particular issue, we
invite him or her to join us here at the panel table and ask
questions as well. In this case, I am delighted to introduce my
friend and colleague, Keith Hand, who is a senior counsel
working on the macrolevel, national-level legal reform issues,
who helped set up this panel today. So we are delighted to give
you the floor for 5 minutes to ask some questions.
Mr. Hand. Thank you. And thanks for a very informative set
of presentations today, and your time and expertise. One of the
themes that I think is coming out in the discussion is the
level of citizen involvement in environmental law and on
environmental issues. That is something of great interest to
the Commission, particularly citizens' use of the legal system.
Could you please go into a little more detail about what
types of legal mechanisms are available to the average citizen
in cases of very serious pollution, whether such mechanisms are
being put to use, and how effective they are. This question is
directed to the
entire panel.
Mr. Rohan. As a lawyer, I will try to address this
question. There are, as Tad mentioned, a lot of laws in China,
but there are great ambiguities in this body of laws. Look, for
example, at the new Environmental Impact Assessment law. It
talks about how citizens will have the opportunity to
participate in some sort of hearing or forum. It doesn't say a
whole lot more than that. There is no sense that there are
going to be a certain number of days that elapse after a draft
document is put out, and then citizens will be able to provide
written comments, and the things that an American lawyer thinks
about in terms of administrative procedure. It is just not that
well defined. So the lawyers, as a result, are working with
these vague provisions and trying to find out where they can go
with them, and often they can go very far with them just
because of that vagueness.
As an American lawyer, you think, ``Well, there are certain
evidentiary standards. I need to have a certain showing of
proof that that effluent caused those ducks to die.'' Using
very real-life examples of the kind of legal case that is going
on now. And a Chinese judge isn't looking for this intense
evidentiary burden. It is almost like there is a bit more of
``what are the equities of the situation? '' And so that is
maybe one example of how the Chinese lawyers are seeing that
they really have great latitude.
In terms of what might be the proper development of Chinese
environmental law, I am not sure Chinese environmental lawyers
would say, ``Well, really what we need is a lot of very strict
regulation to interpret all of these laws and make it all
perfectly crystal clear.'' They like having the operating
space. That is something that is tolerated and is indeed part
of the legal culture, not only for the public interest lawyers,
but the judges and the government officials. They all sort of
operate within the same milieu.
Ms. Turner. I am not a lawyer, but could I say something?
This just brings to mind when you think about mechanisms, there
is a lot of experimentation going on, and one notably is the
World Bank and its environmental projects. The bank makes
public participation a requirement. And the Chinese Government
hemmed and hawed, and went back and forth on this question. And
what I think will be interesting to see is that this is also a
way to an experiment. It is a safe way. And so now the Chinese
want the loans, and so in many World Bank projects there is a
public participation component. And I don't know if the hope is
eventually that some of these vague laws could put a little bit
of meat on it or something.
Do you want to say anything about public participation?
That is a very concrete example.
Mr. Ferris. Well, in terms of the legal basis, Brian
mentioned the Environmental Impact Assessment law. Often you
will see layers and layers of laws, and within those are
specific, very brief provisions that require solicitation of
comments or opinions on draft measures, or the environmental
impacts of this activity or project.
What is needed is more guidance. What I find often in
dealing with Chinese Government officials, especially at the
local level where a lot of these activities are initiated
before they reach the central government attention, is that the
local officials need guidance. They are very much, I wouldn't
say afraid, but they are resistant to being a test case for the
implementation of ``new laws.'' They don't want to be the
first, and therefore possibly run up against the next higher
level of authority, because they are
perceived as doing the wrong thing.
A lot of the activities that Brian mentioned are moving
toward this kind of test case. And we are developing this kind
of understanding, this guidance. But still, there is no
national guideline for how to approach these issues. For
example, when they solicit comments on these draft laws,
there's nothing that says what you have to do with them. My
colleague who is sitting behind me from the National People's
Congress, who drafted many of China's environmental laws,
received thousands of comments on the drafts of laws published
in the People's Daily, et cetera, but often then it became an
additional burden on the staff, on the resources of the
committee within the National People's Congress to pore through
those and decide which to consider and which not to, and
without any guidance as to how they were to approach that task.
It is a good thing that is gaining momentum. But again, we're
still at a very early stage.
Mr. Foarde. Thank you all. We are going to move on to
questions from our colleague Tiffany McCullen, who represents
Under Secretary of Commerce Grant Aldonas.
Ms. McCullen. I would like to thank all of the panelists
for coming and sharing with us today. You have a lot of
informative information. I wanted to ask Elizabeth, if you
could follow up on one of the statements you made and open it
up to the panelists if anyone else would like to answer. Could
you give any other examples of United States companies being
involved in environmental cleanup initiatives in China or doing
things like Shell and BP that you mentioned in your opening
statement.
Ms. Economy. I am tasked to think of U.S. companies off the
top of my head, but I think BP is British Petroleum. I am sure
there are some.
Ms. Turner. BP solar. I know BP Solar--I know it's not
cleanup but they are helping to install some solar energy
equipment for rural villages in Tibet. I know the BP folks, but
I am sure that's one thing they have been doing.
Mr. Rohan. One other example, maybe not right on point,
Ford Motor Company. Ford has just started selling cars in
China, but they have been active in China for quite some time
and have a small grant making program that has been engaged on
a variety of issues, including environmental, for some time.
Mr. Ferris. Just in terms of general comments concerning
transnational corporations from the United States and what
they're doing in China, I see two significant movements. One is
that for the most progressive of these companies, the drivers
are not necessarily the Chinese laws, although they generally
seriously take those measures into account; it is the corporate
environmental health and safety [EHS] standards. Often they
will get into very protracted discussions and analyses of
details of Chinese law that even the Chinese regulators have
never addressed and they are driven by the fact that, for
example, a particular corporate code of conduct will require
compliance with the letter of the Chinese law even though, in
reality, you may not be able to find all relevant laws in
China. Often, a lot of progressive corporate EHS initiatives
are driven in this fashion.
Another significant development is that some of these
companies are getting involved in EHS audits of their
suppliers. Increasingly, government regulators see this as a
very significant activity to monitor as a bellwether for
understanding how local Chinese companies think about things
such as child labor, environmental protection matters, et
cetera, because the suppliers may become aware that they may
not get that next big contract if they fail a particular test
when the auditors come by.
Ms. McCullen. Thank you.
Mr. Foarde. Melissa Allen represents Senator Chuck Hagel.
Ms. Allen. Thank you for taking the time to be with us this
afternoon. Something that's been raised here this afternoon is
the relationship between increasing environmental degradation
and the effects it's having on overall public health in China,
and I was hopeful that maybe one or all of you would comment on
what the central government is doing to formulate an overall
strategy to address these concerns and perhaps cite policy
initiatives that may be underway as examples.
Ms. Turner. The push in Beijing, Shanghai, and Guangzhou
for lead-free gas and also a little bit of a ``green'' Olympic
impetus to this as well--also changing from coal heating to
natural gas heating in Beijing. The people in the cities--the
leadership in Beijing, too--I mean you can see the sky now in
Beijing. So I think the whole human health question there was
big. And a number of universities have been doing studies on
impact of leaded gas on human health. So that's the first one
that leaps to mind.
Ms. Economy. That's an interesting example because it goes
back to your question. General Motors was actually instrumental
in pushing for the lead-free gas and worked closely with local
officials to try to persuade them that this was something worth
pursuing. And this is an example of how laws develop from the
local level up in China. So that's a really good example.
You know, it's interesting, I think a counter example or a
problem that has emerged is offered by this case that MIT has
been
involved in which they have been trying to push for these more
energy-efficient industries in the northeast to try to get them
to use more energy-efficient boilers. And when they couldn't
get these industries to adopt these very simple and inexpensive
measures, they went to the local public health bureau to try to
get the statistics to show the degree to which the local health
is being affected and they thought they would be a natural
ally. But in fact they wouldn't offer up the local health
statistics to support their case. So they have really been
stymied, and I think that's a problem.
Jennifer talked before about the coordination among
ministries, and I think the real push is going to come from the
universities and outside actors in this. I haven't seen very
much, if anything, that's emanated from the Ministry of Public
Health or even from SEPA.
Ms. Turner. Last March I had some folks from United States
Environmental Protection Agency [U.S. EPA] and the Shanghai
Environmental Protection Bureau, and they did a 3-year study on
an energy path and health benefits. And they have done
extensive studies working with local EPBs--the Shanghai EPB is
very dynamic and very forward-thinking and an ideal partner for
outsiders. I met also with local university folk, and that was
the first time that I had seen that kind of environment-health
linkage, which I bring up with anyone whenever I can, because I
think it needs to be pushed a little bit more because it will
empower SEPA if they can get that linkage.
Mr. Foarde. Representing Congressman Sander Levin is our
friend and colleague Mike Castellano.
Mr. Castellano. Thank you for your informative and
interesting comments. I want to follow up on the question that
John started out with, because this issue of space is
interesting and I think it's something that might be helpful in
other areas. The word ``space,'' in and of itself, isn't very
helpful to us. So if you could each explain why you think the
government is allowing this space. Is it as simple as they
actually understand that there's a problem and it's useful to
have this, or is it something less admirable in that they see
this as not really a threat and so sort of a ``green'' opiate
for the masses? Those aren't the only two options. And the
other thing is that you talk about space and there's the space,
but I haven't really gotten a good sense of exactly how that
space exists. Besides neglect of some of the things that have
been happening in other areas in terms of labor rights--you
know, pick an issue--are there formal mechanisms by which the
space has actually been carved out?
Mr. Rohan. Maybe I will give that one a shot. I think
perhaps there's a bit of ``green'' opiate for the masses. I
just wanted to be able to repeat that. [Laughter.]
But in fact, you are on to something, because with the
environment, everyone is affected. I mean, look at some of the
other potential issues that get to rule of law, reform and
societal change, human rights abuses. Certainly not to be
crass, but there's a small subset of society that is bearing
the brunt of some very questionable policies, whereas the
environment is something that everyone can see when they walk
outside the door in Beijing. As soon as you smell, as soon as
you can't see the sky on many days, you know there's something
wrong. And you do not have to have an advanced degree to have a
sense that this is not good for you and something ought to
change.
So the very sort of directness of environmental problems, I
think, is part of the situation here, and we live in an
information age in China as well. So these kinds of problems
cannot be hidden from view, and there is a stirring of civil
society in all of the forms that we have tried to describe. And
I think there's a sense that this is a safe outlet, that there
is some sort of energy building, there's some sort of steam
that the government has to deal with. And, on the one hand,
this is able to let off that steam in a safe way, not
confronting the structure of the political system and not
taking on labor standards and fundamental human rights and so
on. But also in the course of it, it's helping environmental
degradation to be addressed. And as was mentioned, the
government can't do it all by itself. They realize that they
need popular support and they have to take their own political
risks by involving other parties and allowing this political
space to occur.
Your second point, how does the political space exist? It
exists in knowing that your official Chinese partners are going
to work with you and going to go forward with a workshop, that
they want you to come back, that people are opening up and
you're able to do more programming after you've done your first
several steps as opposed to hearing back that ``OK, we need to
be very cautious now.'' You feel it in subtle but quite
apparent ways.
Ms. Turner. Also it comes down to Liz's comment when she
gave the quote from the World Bank. It's going to hurt economic
development and economic development is something that the
government has placed a lot of its legitimacy on. So, that's an
important factor. Also in public opinion polls, after
corruption and economic worries, comes the environment--I don't
know if they are super big poll watchers, but they are polling
now in China and they see that people are concerned. And Liz
mentioned protests and conflicts. I do things on water
pollution. There are a lot of conflicts over water in China,
fights about degradation and lack of water. And so it's not
just all pollution issues. It's economic, and it's an issue of
stability. And it's--I think it's enough.
Ms. Economy. If I could add one thing. It would be a
mistake to leave with the impression that the government
doesn't see some implicit risk in all of this, and that is
precisely why they have these regulations and these
restrictions that Jennifer mentioned, one of which is a
restriction on setting up branch organizations of these non-
governmental organizations so that you have a giant Friends of
Nature in Beijing with 700 members, but you can't have a
Friends of Nature in Shanghai and a Friends of Nature in other
parts of the country precisely because they are worried that
there will be a movement of sorts that could develop. And
they're right to some extent, I think, to be worried about
this, because if you look at the makeup of a lot of these non-
governmental organizations, they are filled with scholars--some
of whom are refugees from the Tiananmen era who came to
environment issues because they looked at them as an outlet for
their political interests before they knew anything at all
about the environment. You look at the next generation of
environmental activists in China, some of whom have been
trained by organizations like Greenpeace, International Rivers
Network, these very bold lobbying types of organizations, and
you can see a real potential for a push for broader democracy
to emerge out of these organizations. So don't think that they
don't know that, looking at Eastern Europe and some of the
former republics of the Soviet Union, things couldn't move in
that direction.
Mr. Foarde. We will get another chance at more of this in a
second. First I would like to recognize our friend and
colleague Andrea Worden, who is senior counsel, looking at
grassroots rule of law and legal reform issues in China. She
just got back from China and I'm sure she's got some questions
because she's interested in this subject, too.
Ms. Worden. Thanks, John. I have a question for Jennifer
and then I would love to hear from the rest of the panel. I am
curious what other countries are doing to promote environmental
NGOs and rule of law efforts in China, and what you all think
the United States could be doing to promote such efforts.
Ms. Turner. Well, there are domestic NGOs and there are
some U.S. NGOs and also other foreign governments that are
doing work. The Canadians have a civil society program that has
an
office in Beijing and they do various trainings. They are not
just focused on the environment though, some nuts and bolts
management type issues to help. PACT China--I think it's a
U.S.-based organization. They actually found there is a
nonprofit organization network, a Chinese organization. So
there are some Chinese that are also thinking about these
issues as well. I mean, one example that I can think of--let's
look at what United States-Asian Environmental Partnership
[U.S.-AEP] did a couple years back in Southeast Asia. They gave
grants to the Asia Foundation to help build the capacity of
NGOs to do partnerships with businesses. It has been a 5-year
program. The first few years was U.S.-AEP and then it went to a
private foundation. But it's been a phenomenal project
throughout South and Southeast Asia. So the NGOs have gotten
the capacity and have gotten small grants and training to help
local businesses ``green'' themselves. And that is an area that
Chinese NGOs are not venturing into. They don't have the
capacity. And again it could be a little bit sensitive.
But those are some of the examples. I can go on and on and
on. Maybe let some of my colleagues here interject something.
Ms. Economy. A number of multi-nationals like Unilever and
I think General Motors, but definitely Shell and BP run
educational programs through non-governmental organizations.
They partner with them. Sometimes they will have environmental
essay contests in high schools. They'll sponsor an
environmental education bus that will take some officials into
remote areas of the country to set up special seminars and
educational opportunities for students in those areas to
understand the particular environmental problems in those
areas. There are those kinds of efforts going on, too.
Ms. Turner. Germany, they supported the ``antelope bus.''
Mr. Ferris. It is also my experience that a number of
foreign environmental agencies or ministries second members of
the agency or ministry to Chinese agencies or ministries. The
secondment is sometimes enhanced with substantial bilateral
financial support to bring agency representatives to their
countries. And in so doing, often part of the exchange program,
so to speak, is to introduce Chinese regulations to public
participation mechanisms, et cetera, as these exist in the
country participating in the exchange such as Norway, Germany,
the Netherlands.
Ms. Economy. If I could just interrupt, the German
Government brought over a journalist from China to look at
battery recycling in Germany, and she went back and did a
program on that and that spawned a number of individuals in
China to undertake battery recycling.
Mr. Rohan. I think part of your question is what could be
done, what is out there remaining to be done. And Jennifer
mentioned many times capacity building, capacity building,
capacity building, whether you are looking at the universities
and the role that they can play or the lawyers, the bar, the
judiciary. There's so much to be done in a variety of sectors,
just looking at the purely legal aspect of how you make the
legal system function effectively so that citizens have a
reasonable expectation of having their legal claim resolved
effectively. And some of that will happen indigenously as
``gonzo lawyers'' do their thing, not describing anyone in the
room of course, but there is a certain element of needing to
bring in new ideas and facilitate that kind of development
capacity.
Mr. Foarde. We will now hear a question from our friend and
colleague Selene Ko, who is senior counsel for commercial rule
of law and knows about these things as well.
Ms. Ko. Thank you very much. I would like to thank you, as
everyone else did, for your insightful comments. I have a
question concerning the impact of the WTO on environmental
protection in China. I think this first question goes to Tad,
but then to anyone else who would like to answer. In light of
the WTO rules that require transparency and require at least
some sort of formal mechanisms for input from the public into
formulating rules, regulations and laws, including
environmental rules regulations and laws, how familiar are the
central authorities that are responsible for these areas with
their WTO obligations and how familiar are the local EPBs with
their obligations? Do you feel that the WTO is acting as a
driving force in improving environmental laws and protection in
China and will it do so in the future?
Mr. Ferris. Thank you. I assume you have my article that
provides a snapshot of what's happening in this area. But at
the fundamental level, at the central government, officials are
fairly well aware of the significance of WTO compliance and it
is, although it's often overly discussed at a superficial
level, a discussion topic that increasingly moves agency
resources into the area of publication, of providing better
notice. I think there is a fundamental disjoint between what
actually has to be notified, i.e., what kind of laws. I think
that often laws related to economic areas, e.g., joint venture
provisions, tax provisions, securities regulations, et cetera,
are what officials first think of in terms of what needs to be
notified under WTO requirements. I think that laws affecting
trade, including those in the environmental, health and safety
area, are not fully understood within the Chinese bureaucracy
as triggers for WTO notification. I believe that when Chinese
officials receive a WTO member complaint, they increase their
understanding about the intersection. Why are the members
complaining about our new laws on genetically modified
organisms/biosafety? Why are the members concerned about
mercury content limits in batteries? Where did this come from?
We're supposed to notify that, too? That understanding among
Chinese lawmakers is increasing, but still at a nascent level.
I think the next challenge that Chinese lawmakers face is
the capacity issue that Brian mentioned. If they do have to
notify all these laws, who's responsible, who in the agency is
going to be designated as the notifier? Who has the authority
to submit this to the Committee on Technical Barriers to Trade
or the Committee on Sanitary and Phyto-sanitary Measures? And I
think that process is still in the making. Even the more
progressive agencies have only recently started publishing a
gazette. You will notice under the agreement on China's
accession to the WTO, that China must set up a centralized
gazetting mechanism that will allow ready access by members to
all of their laws. Well, this is still quite a long way off in
coming. You see precursors of that when you look at the Chinese
Government Web sites that now provide occasional notification
of draft laws or recently promulgated laws.
I think the real issue is whether all the laws are publicly
issued. Right now, they are not. And I think that this is
partly the result of the fact that on the capacity side the
implementing laws are not developed and issued at the same time
as the enabling statute or regulation. You'll have the
regulations that I mentioned, but then all the implementing
measures will trickle out slowly thereafter.
Additionally, as Jennifer and Brian mentioned, the
activities of all agencies often are undertaken in isolation.
There's no general coordinating body that will look at the
rulemaking work of the State Environmental Protection
Administration and then that of the State Development and
Planning Commission and say ``You're issuing the same type of
laws. Coordinate and make this work consistent.'' Or ``You're
issuing laws that are related. Both of you need to publish
these laws.'' There is no senior level government authority yet
that has set such a coordinating process in motion, and I think
that's what needs to occur. I don't think that the agencies
will be incentivized to do this work on their own without a
senior-level authority taking responsibility for this action.
Mr. Rohan. If I could add, among the rank and file
environmental law community within China, WTO is an interesting
buzz word. As Tad mentioned, there's a lot of work to be done
and a lot of regulation that needs to be put into place in
order to meet those WTO obligations. What one would wonder is
if the Chinese knew what they were getting into. But it's going
to be a very long process, indeed, to put all that in place. To
return to the ``gonzo lawyers'' I was mentioning before, those
sorts of folks, they're not thinking WTO. They're thinking that
there are some very interesting Chinese laws and there are some
very interesting areas to explore. And the WTO may one day
become part of that legal equation, but it's not happening yet.
Ms. Economy. Let me add quickly that the Ministry of
Foreign Trade and Economic Cooperation has undertaken a massive
effort to address the problem that Tad raised about interagency
coordination with the Ministry of Agriculture, the State
Environmental Protection Administration and I think about six
other agencies to try to discuss how to coordinate in order to
meet the environmental obligations and demands of WTO
accession, but I don't know how far it has progressed.
Mr. Ferris. Right now, it's on hold until the National
People's Congress decides which agencies are going to be
disbanded or reorganized. Reorganization is in play.
Mr. Foarde. Let me direct a question to Jennifer Turner,
please. We were talking about GONGOs and about independent NGOs
in China and capacity building. How are independent NGOs in
China funded? How do they get money to operate?
Ms. Turner. A lot of the larger NGOs are getting grants
from United States or European foundations. There are some
small grant programs. Global Green Grants in Colorado has a
couple of people in China seeking out grass roots greenies,
giving them really tiny grants. But then there's also foreign--
the Canadians and the Dutch--the Dutch--there was another
question--the Dutch, it's not fully constituted yet but someone
from Holland sent me an e-mail and I have to find out what
they're doing, but they got a lot of money for a huge 5-year
program. And one of the central foci is NGO capacity building
in China. So my attention is heightened on this topic.
Mr. Foarde. As far as you're aware, there are practically
no
government regulations or policies that prohibit real NGOs from
taking grant money from foreign sources?
Ms. Turner. My thought is no, there aren't any rules that
prohibit it, so I guess it must be legal.
Mr. Foarde. Until they decide it's illegal.
Ms. Turner. What's interesting is that there was a law
about tax-free donations from businesses to NGOs in China and a
company did it and then it was, ``Oh, my gosh, we have to
rewrite these laws'' because it was very difficult for the
company to do it. And one of my journalist friends is writing a
little commentary, so I can let you know in a few weeks. But
that law is being redone so that there is thought that they do
want to try to encourage Chinese businesses. A lot of the NGOs
are based on volunteers, and a lot of Chinese that volunteer
for them give from their own savings. It's pretty ``nickel off
the sidewalk'' kind of groups. Most of them are getting money
from international NGOs or international foundations.
Mr. Foarde. And a little bit from domestic sources when
it's available?
Ms. Economy. Not much.
Ms. Turner. It's very little.
Mr. Foarde. Talking about capacity building, not everybody
in the audience might understand, so for the record, it might
be useful to say what you mean when you say capacity building
for NGOs. Could you give us a thumbnail of what you mean?
Ms. Turner. And you can jump in. Some of it is that many of
these groups were created by an individual, a very charismatic,
driven person. They had to forge into this new field. And a lot
of the organizations are very new. And I sometimes wonder would
the organization exist if this leader actually left. It's the
same problem that our NGOs faced when they developed in the
United States. Just learning how to set up your internal
accounting system maybe because there's not much money. It's
not that difficult yet, but you do need to learn these kinds of
things and just managing their time. I tell a lot of my NGO
acquaintances ``You guys have to learn to say `no' '' because
they are overwhelmed, because a lot of international
organizations are looking for NGOs to cooperate with. So they
get overwhelmed with requests and setting goals. They get
pulled in different directions, maybe like a lot of us. And
also just having to learn for example, building up a staff that
would have skills to do more technical things, like working
with businesses. And there are a lot of areas--they could do
environmental education, but could they help a hotel ``green''
itself? Do they have that kind of ability? Do they have
transparency, because if you're going to start taking big bucks
from some organizations, you're going to have to have
transparency and have books, know how to write grant proposals.
So it's kind of like starting from scratch.
Mr. Foarde. That helps me and leads me to the next
question, is there anything that the United States Government
can do to help NGOs in China build their capacity for these
purposes, environmental purposes, or for others?
Ms. Turner. As mentioned briefly, the model should be the
U.S.-AEP and the grant they gave to Asia Foundation. And DOE
has given grants to some U.S. organizations that have done some
work with Chinese research centers and NGOs on energy
efficiency criteria setting and doing some nuts and bolts clean
building projects. The National Resources Defense Council
[NRDC] has also been involved in that in China. I fancy it
would be somewhat politically sensitive if the U.S. Government
said, ``The United States can't give money directly to NGOs,''
but it's the model the U.S. Government has used supporting U.S.
NGOs to go in and do what they do best. And there are, as I
mentioned, about 60 international NGOs working in China and a
number of them like WWF have been there since the mid-1980s.
You wouldn't be just throwing your money out into the air.
There are a lot of international environmental NGOs that have
good experience and Chinese staff. That would be my first
thought.
Ms. Economy. One small effort that the United States
Embassy in Beijing undertook about a year and a half ago now
was to put together a forum for Chinese NGOs and multinationals
to get together to try to develop some synergies. There were a
few successes but not as many multinationals participated as
you would hope. I think that kind of low key, slightly-under-
the-radar kind of activity would be terrific, and not at all
sensitive for the Chinese Government.
Mr. Foarde. Keith.
Mr. Hand. I wanted to jump back to the issue of citizen
response to environmental degradation for a minute and really
look at it from two angles. One, Liz, you looked like you might
have had a comment at the end of that first set of questions on
citizen uses of legal systems when we ran out of time. So I
wanted to give you a chance, if you would like, to expand on
that issue. And to look at this from a second angle, it sounds
like lack of coordination and enforcement is one of the big
problems in the environmental regulatory regime. Tad, you
mentioned the vagueness of the laws, which leaves space for
bureaucratic discretion. Is there also a problem with heavy
handed and unfair enforcement of the laws? Do
foreign and domestic citizens or entities tend to be treated
differently? How much of a problem is corruption in this
process?
Ms. Economy. I'll start with the first part and that was
the citizen participation in all of this. And I thought
Jennifer or Brian would talk about Wang Canfa, who founded the
first environmental legal NGO in Beijing. He has been cited in
the New York Times. Everybody has written him up at this point.
Wang is a very charismatic man who is actively involved not
only in providing free legal advice and training future
generations of advocates, but also in pressing lawsuits. And
Chinese citizens contact him with the goal of getting
reparations for whatever environmental injustices they have
suffered. There was a case he undertook where the local ducks
and fish were ruined from factories upstream. He sometimes has
had to go to great lengths in involving other experts, such as
scientific experts, bringing them in, fighting against the
local EPBs that are afraid to be blamed, but I think this sort
of mechanism, this ability to go to an environmental non-
governmental organization for legal advice and support is an
important positive trend for the future.
Ms. Turner. Remember there is only one of those NGOs.
Ms. Economy. Again, this process is going to be slow, but
this is going to happen.
Mr. Rohan. They are starting up and it is private lawyers
out of otherwise standard commercial law firms doing what we
consider pro bono work who are taking this sort of thing on. So
something is definitely afoot.
Mr. Ferris. They are given space to operate and to
represent these victims of pollution because often the
environmental area is seen as, I guess on the balance of
things, less likely to create unrest if you resolve these
problems that the victims have. Whereas, if you look in the
other area of labor rights and occupational health and safety,
often what government decisionmakers see is the public support
or legal representation of workers, and grouping those workers
together, as something that may incite, as opposed to
minimize unrest.
Getting right to your question regarding enforcement of the
law and whether there are issues of a level playing field in
China, on the books of course, as you're well aware, foreign
entities and domestic entities are treated quite equally. On
the ground, it's often a case of differential treatment, to be
certain. There are a number of reasons for this, one of which
being the traditionally held perception that the domestic
industries need that competitive opportunity to pollute. Of
course that isn't the general government view of this. But when
you get to the local level, the first folks who interact with
those operations on the ground that affect the environment,
they are grappling with comprehensive issues because they may
need to show their boss, who is often the head of the
municipality or the head of the province, that they
facilitate--and not obstruct--investment. If they go right in
and resist that investment for environmental or other reasons,
this act calls into question the very source of the income and
the overhead for their Environmental Protection Bureau.
Additionally, the larger--just by their very
nature--transnational corporations create a big response on the
regulators' radar screens. These officials would sometimes
rather walk through the clean halls of a modern state-of-the-
art facility than go to the facility that is literally spitting
out heavy metals into the drinking water system and deal with
locally-based Chinese managers who may have longstanding
relationships with them. Often it's the transnational
corporation that may have fewer connections with local
officials that they target first. And in terms of corruption,
that is something that is an overwhelmingly complex issue for
government officials. At the national level, there currently is
a great focus both within the national government and at the
local level on this issue. There are a lot of great concerns
over how corruption relates to the national government's or
central government's ability to control what's happening at the
local government level. And as you may also be aware, the State
Environmental Protection Administration has the ability to
request certain conduct of the local environmental officials,
but the direct supervisor, the
direct controllers of that activity of the local environmental
protection bureau are the municipal government, the provincial
government, et cetera. And in that context there is a lot of
hand wringing at the central government level with respect to
being able to ferret out and control certain unfavored conduct
that could rise to the level of corruption.
There have been a number of incidents you may also be aware
of where local environmental inspectors will go out to inspect
a factory and they are beaten to a pulp by representatives at a
local manufacturing facility. That is a great concern of
national government representatives. If you are sensitive about
unrest and
sensitive about a challenge of authority, these activities
certainly trigger extreme concern within the central
government. And these events have actually resulted in internal
orders that reassert national control over such situations, but
it is not yet something that has been resolved by the national
government. I believe that these issues of corruption, et
cetera, or of undue influence, as it also may be termed in
China, are widespread at the present time.
Mr. Foarde. Let's take one more set of questions from
Andrea.
Ms. Worden. Following up on a point Dr. Economy made
earlier, I wonder if the panel could address briefly the role
that environmental NGOs played in other places in Asia; for
example, Taiwan, Japan, South Korea, in creating space for
political reform and what that might possibly tell us about
China.
Mr. Rohan. To mention quickly an example that is not
exclusively from Asia but from the Soviet Union and its
collapse is a very, very telling analog. When there was
glasnost and there was a sense that there needed to be some
space created for civil society, it was in addressing the
environmental issues. And when the Soviet Union ultimately
broke up, many of the individuals who were at the forefront of
the environmental movement while still within the Soviet Union,
went on to pursue other kinds of political activity. So it's
just a very interesting comparison and I'm sure one that was
also not lost on the Chinese Government.
Ms. Turner. In April 2001, the Woodrow Wilson Center with
Hong Kong University, brought together Taiwanese, Hong Kong and
PRC environmental NGOs and environmental journalists. And there
is a report--if you don't have it, we can get it to you--where
we do some comparisons. Taiwan is probably the example that
Chinese Government officials would not want to follow because
the Taiwan environmentalists are a fiery group of people. And
they were out in the streets before martial law was ended and
they actually led, a lot of people think, the democratization
of Taiwan. Some people say, well, the democratization folks
went to the environmental side, but there's a little bit of
both, because a lot of
people suffered from pollution from Kuomintang [KMT]-built
factories and the KMT wasn't enforcing the laws. So the Taiwan
environmentalists were rather fiery. But now things have toned
down a lot.
There are about 300 environmental NGOs in Taiwan. And
because they don't have access to international funding,
they've
developed very strong membership systems. And they've built
their own capacity without a lot of outside help. That's what
was intriguing about bringing the Taiwan people and mainlanders
together. The Hong Kong NGOs are probably a bit more palatable
to the mainland as well and similar because they came up
dealing with a colonial government. Hong Kong environmental
groups tended to work more with the government, belonging to
government commissions, advising, and also working with
business. They have no problem--they get a lot of their support
from businesses in Hong Kong, so it's an interesting model.
Ms. Economy. I guess Brian raised the point about the
Soviet Union and similarly Eastern Europe. There are large
development projects like the Danube Dam. They can be rallying
points for discontent. They bring together lots of different
kinds of opposition. In China already, there have been efforts
to link environmentalists with labor issues and democracy. The
China Development Union--the leader has now fled to
Philadelphia, but first fled to Taiwan and then to
Philadelphia. But there already have been these kinds of
thoughts of broader based political change--using the
environment as a mechanism to push for broader change.
Mr. Foarde. We're out of time, unfortunately, because we
could go on. There's so much to discuss. Liz, Tad, Brian,
Jennifer, thank you so much for sharing your expertise and
opening up our thinking to all these issues and their human
rights dimensions today. Also thank you to my fellow panelists,
some of them who had to go back to work for their bosses. And
let me say again that the next roundtable will be next week on
Monday, February 3, in room 2168 at 3 p.m., and that
information will also be up on our Web site.
With that, I will gavel this first issues roundtable to a
close. Thank you all for coming.
[Whereupon, at 4:15 p.m., the roundtable was adjourned.]
A P P E N D I X
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Prepared Statements
----------
Prepared Statement of Elizabeth Economy
JANUARY 27, 2003
China's Environmental Challenge:
Political, Social and Economic Implications
EXECUTIVE SUMMARY
China's spectacular economic growth--averaging 8 percent or more
annually over the past two decades--has produced an impressive increase
in the standard of living for hundreds of millions of Chinese citizens.
At the same time, this economic development has had severe
ramifications for the natural environment. There has been a dramatic
increase in the demand for natural resources of all kinds, including
water, land and energy. Forest resources have been depleted, triggering
a range of devastating secondary impacts such as decertification,
flooding and species loss. Moreover, poorly regulated industrial and
household emissions and waste have caused levels of water and air
pollution to skyrocket. China's development and
environment practices have also made the country one of the world's
leading contributors to regional and global environmental problems,
including acid rain, ozone depletion, global climate change, and
biodiversity loss.
Environmental degradation and pollution in China also pose
challenges well beyond those to the natural environment. The
ramifications for the social and economic welfare of the Chinese people
are substantial. Public health problems, mass migration, forced
resettlement, and social unrest are all the consequence of a failure to
integrate environmental considerations into development efforts
effectively.
This does not mean that the Chinese leadership is ignoring the
challenge of environmental protection. Both as result of domestic
pressures and international ones,\1\ China's leaders have become
increasingly cognizant of the need to improve the country's
environment. The State Environmental Protection Administration and
other relevant agencies have tried to do as much as they can,
establishing an extensive legal framework and bureaucratic
infrastructure to address environmental concerns. However, China's
environmental bureaucracy is generally weak, and funding and personnel
levels remain well below the level necessary merely to keep the
situation from deteriorating further. Without greater support from
Beijing, the regulatory and enforcement regimes also remain
insufficient to support implementation of the best policies or
technological fixes.
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\1\ These international pressures include those brought about by
China's participation in international environmental regimes, the
desire of many multinationals to ensure that they and their people are
operating and living in a safe environment, and China's own desire to
present a positive image when it hosts major international events such
as APEC or the Olympics.
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Much of the burden for environmental protection, therefore, has
come to rest outside of Beijing and the central government apparatus.
Responsibility has been decentralized to the local level, with some
wealthier regions under proactive mayors moving aggressively to tackle
their own environmental needs, while other cities and towns lag far
behind. The government has also encouraged public participation in
environmental protection, opening the door to non-governmental
organizations and the media, who have become an important force for
change in some sectors of environmental protection. The international
community--through bilateral assistance, non-governmental
organizations, international governmental organizations, and most
recently, multinationals--has also been a powerful force in shaping
China's
environmental practices.
Still, much remains to be done. The particular mix of environmental
challenges and weak policy responses means that the Chinese people
cannot yet claim several basic rights: the right to breathe clean air,
to access clean water, to participate in the decisionmaking process on
industrial development or public works projects that affect their
livelihood, and to secure justice when these rights are violated.
Without greater attention and commitment from the center, China's
environment is likely to continue to deteriorate throughout much of the
country, causing further social and economic distress domestically and
levying even greater costs on the environmental future of the rest of
the world.
I. WHAT DOES CHINA'S ENVIRONMENT LOOK LIKE TODAY?
China's overwhelming reliance on coal for its energy needs\2\ has
made its air quality among the worst in the world. In 2000, China's
State Environmental Protection Administration (SEPA) tested the air
quality in more than 300 Chinese cities, and found that almost two-
thirds failed to achieve standards set by the World Health Organization
for acceptable levels of total suspended particulates, which are the
primary culprit in respiratory and pulmonary disease. Acid rain,
resulting from sulfur dioxide emissions from coal burning, also affects
over one-fourth of China's land, including one-third of its farm land,
damaging crops and fisheries throughout affected provinces.
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\2\ China depends on coal to supply almost three-quarters of its
energy needs. By contrast, in Japan, the United States, and India, coal
accounts for 14 percent, 22 percent, and 53 percent respectively.
Moreover, much of the coal burning in China occurs in notoriously
inefficient household stoves or small scale power plants, which burn up
to 60 percent more coal than more efficient larger scale plants.
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Economic development has also impinged on China's already scarce
water resources. Industrial and household demand has skyrocketed more
than 70 percent since 1980. About 60 million people find it difficult
to get enough water for their daily needs, and in several water scarce
regions in northern and western China, factories have been forced to
close down because of lack of water. In addition, water pollution is
posing a serious and growing threat to water reserves. A major source
of this pollution is industrial waste from paper mills, printing and
dyeing factories, chemical plants, and other small highly polluting and
largely unregulated township and village enterprises. The result is
that more than three-quarters of the water flowing through China's
urban areas is considered unsuitable for drinking or fishing; about 180
million people drink contaminated water on a daily basis; and there
have been serious outbreaks of waterborne disease along several major
river systems. The impact of economic development on water scarcity is
further compounded by water prices that do not reflect demand, poor
water conservation efforts, and
inadequate wastewater treatment facilities.
China's forest resources also rank among the lowest in the world.
Demand for furniture, chopsticks, and paper has driven an increasingly
profitable but environmentally devastating illegal logging trade. By
the mid-1990s, half of China's forest bureaus reported that trees were
being felled at an unsustainable rate, and 20 percent had already
exhausted their reserves. China's Sichuan province--home to the famed
pandas--now possesses less than one-tenth of its original forests. Even
the worst examples of deforestation in the United States, such as the
transformation of Vermont from 70 percent forest to 30 percent forest
over the past century, are mild in comparison to China's experience.
Loss of biodiversity, climatic change, and soil erosion are all on the
rise as a result.
Deforestation, along with the overgrazing of grasslands and over-
cultivation of cropland, has also contributed to an increase in the
devastating sandstorms and decertification that are transforming
China's North. More than one-quarter of China's territory is now
desert, and decertification is advancing at a rate of roughly 900
square. miles annually. In May 2000, then Premier Zhu Rongji worried
publicly that China's capital would be driven from Beijing as a result
of the rapidly advancing desert. In addition, an average of thirty-five
sandstorms wreaks havoc in Northern China every year. Year by year,
this dust has traveled increasingly far afield, darkening the skies of
Japan and Korea, and even a wide swath of the United States. In
Beijing, the sandstorms reduce visibility, slow traffic, and exacerbate
respiratory problems.
China is also exerting a significant impact on the regional and
global environment. Acid rain and depletion of fisheries are among the
most serious regional impacts. Globally, China is one of the world's
largest contributors to ozone depletion, biodiversity loss, and climate
change, and it is an increasingly important participant in the illegal
trade in tropical timber from Southeast Asia and Africa.
II. WHAT ARE THE SOCIAL AND ECONOMIC COSTS OF THIS ENVIRONMENTAL
POLLUTION?
China bears several indirect and growing costs from its resources
pressures:
migration, public health, social unrest, and declining economic
productivity.
Migration
Chinese and Western analyses both suggest that during the 1990s, 20
to thirty million peasants were displaced by environmental degradation,
and that by 2025, at least 30-40 million more may need to relocate.
These migrants are likely to place significant stress on cities already
seeking to manage migrant populations of more than 20 percent of the
population in many major Chinese cities. While thus far,
burgeoning coastal economies have managed to absorb large numbers of
migrant workers, as tensions have flared in urban areas over recent
firings and growing unemployment, there have been attempts to
discourage migration to the cities. In 2001, in Changchun, the capital
of Jilin province, for example, officials attempted to drive out
migrant workers by demanding extremely high fees for operating
pedicabs. The drivers--overwhelmingly migrants who had been forced to
leave their parched farmland--protested and blocked the entrance to a
local government
compound. While this incident was fairly short-lived, if not managed
properly, a combination of growing numbers of migrant laborers and
unemployed state-owned enterprise workers could trigger much larger-
scale conflict in urban areas.
Forced migration or resettlement, as a result of large scale public
works projects such as river diversions or dams, also is a source of
social disquietude. In the case of the Three Gorges Dam, for example,
resettlement has provoked demonstrations involving hundreds of farmers
who believe they were being inadequately compensated. Probe
International and Human Rights Watch have joined International Rivers
Network in monitoring the resettlement process and the local political
situation around the Dam and have issued several scathing reports
regarding the corruption that has plagued the resettlement efforts. On
December 27, 2002, the government also launched the grand-scale south
to north diversion of the Yangtze River to bring water to Beijing,
Tianjin and other northern cities at a cost of tens of billions of
dollars. This will also necessitate the resettlement of two to three
hundred thousand Chinese.
Public health
For Chinese citizens, perhaps the most frightening consequence of
environmental pollution has been the range of public health crises
plaguing local communities throughout the country. In 2000, the
Ministry of Agriculture reported that almost 20 percent of agricultural
and poultry products in major industrial and mining districts and in
areas irrigated with contaminated water contained excessive levels of
contamination. Chinese and western health officials have linked water
polluted with arsenic, mercury, and cadmium to a high incidence of
birth defects, cancer, and kidney and bone disorders near many major
rivers and lakes. The World Bank also has estimated that 7 percent of
all deaths in urban areas--about 178,000 people--could be avoided if
China met its own air pollution standards.
Social unrest
The Chinese media have reported only sporadically on the impact of
water scarcity or highly polluted water, damaged crops, and polluted
air on social stability; but in the late 1990s, China's Minister of
Public Security stated openly, ``Incidents [that] broke out over
disputes over forests, grasslands, and mineral resources'' are among
``four factors in social instability.'' Farmers and village residents
whose produce or water source is poisoned by a local factory often feel
they have little recourse other than violent protest. Resource scarcity
similarly may provoke violence. In July 2000, for example, about 1000
villagers in Anqiu, Shandong province fought for 2 days when police
attempted to block their access to makeshift culverts that were
irrigating their crops. One policeman died, 100 people were injured,
and 20 were detained.
Economic productivity
As local officials confront the social costs of environmentally
degrading behavior, they must also negotiate the massive financial
costs. There is widespread agreement among environmental economists
that the total cost to the Chinese economy of environmental degradation
and resource scarcity is 8 percent-12 percent of GDP annually. The
greatest cost is in the health and productivity losses associated with
urban air pollution, which the World Bank estimates at more than $20
billion. Water scarcity in Chinese cities costs about $14 billion in
lost industrial output (when factories are forced to shut down); in
rural areas, water scarcity and pollution contribute to crop loss of
roughly $24 billion annually. Although not much systematic work has
been done to estimate the future costs of these growing environmental
threats, the World Bank has predicted that unless aggressive action is
taken, the health costs of exposure to particulates alone will triple
to $98 billion by the year 2020, with the costs of other environmental
threats similarly rising.
III. WHAT IS THE STRATEGY OF THE CHINESE GOVERNMENT?
The Chinese leadership has developed a five-part strategy to
address environmental problems: policy guidance from the center,
devolution of power to local
governments, cooperation with the international community, the
development of grassroots environmentalism, and the enhancement of the
legal system.
Policy Guidance from the Center
First, there is policy guidance from the center. China's State
Environmental Protection Administration (SEPA), the State Development
and Planning Commission, the State Economic and Trade Commission and
the Environmental Protection and Natural Resources Committee (EPNRC) of
the National People's Congress, among others, all play important roles
in integrating environmental protection and economic development and
bring different interests and priorities to bear. The core agencies
behind China's environmental protection efforts--the EPNRC, the SEPA,
and the judiciary, headed by the Supreme People's Court--together claim
responsibility for the full scope of central governmental activities,
including drafting of laws, monitoring implementation of environmental
regulations and enforcement.
Over the past decade or so, there has been a significant increase
in both the skill level and capacity of the agencies' staffs. There is
a growing core of bright and
capable people who are committed to seeking out new and creative ways
to integrate economic development with environmental protection. They
experiment with pricing reform for natural resources, tradable permits
for sulfur dioxide, environmental education campaigns, etc. Still, the
central bureaucracy is grossly understaffed and underfunded. There is
only 300 full time staff in China's SEPA; in comparison, the U.S. EPA
has more than 6000. In addition, China's central budget for
environmental protection is still limited to about 1.5 percent of GDP
annually, and many analysts believe that much of this goes to non-
environmental protection-related
infrastructure projects and other programs. Chinese scientists
themselves have estimated that China ought to spend at least 2 percent
of GDP annually on environmental protection, merely to keep the
situation from deteriorating further.
Devolution of environmental responsibility to local government
A second conscious strategy of the Chinese leadership, since about
1989, has been to devolve authority for environmental protection to the
local level.\3\ The result, not surprisingly, is that wealthy regions
with proactive leaders tend to fare very well. Shanghai, for example,
routinely invests over 3 percent of its local revenues in environmental
protection and has made substantial strides toward cleaning up its air
and water pollution problems. Poorer regions, in contrast, continue to
see their
environment deteriorate, despite the overall improvement in the
country's economy. They cannot count on assistance from the center, and
are without sufficient local funds to invest. In addition, the central
government closely monitors all World Bank activities in order to
ensure that money does not flow to poorer regions with a
higher probability of default on their loans.
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\3\ By law, provincial and local leaders are required to be
evaluated not only on the basis of how well the local economy performs
but also on how well the local environment fares.
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Poorer regions also are more likely to suffer from a lack of
trained personnel within their local environmental protection bureaus
to carry out inspections and enforce the law. Moreover, local officials
in these areas often place enormous pressure on environmental
protection bureaus to limit or even ignore the fees they attempt to
collect or fines they attempt to impose on polluting enterprises for
fear of impinging on economic growth or increasing unemployment.\4\ (In
some cases, too, local officials are part owners in these local
factories.) Even when local environmental officials succeed in closing
down a factory, it will often reopen in another locale or operate at
night.
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\4\ All local environmental protection bureaus are susceptible to
such pressure because they are beholden to their local governments for
their remuneration, office space, equipment, and perks, such as cars or
cell phones.
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Cooperation with the international community
A third element of China's plan to improve its overall environment
is to tap into the expertise and resources of the international
community. China is the largest recipient of environmental aid from the
World Bank, the Asian Development Bank, the Global Environmental
Facility and Japan. The international non-governmental organization
community has also become increasingly active in China. Organizations
such as Environmental Defense, the Natural Resources Defense Council,
the World Wildlife Fund, and the Rockefeller Brothers Fund all have
extensive projects in China to introduce new policy approaches to
environmental protection on issues as wide ranging as organic farming,
energy efficiency, and tradable permits for sulfur dioxide. Moreover,
multinationals, such as Shell and BP, have begun to support China's
environmental efforts. They introduce better environmental practices
and technologies, may undertake independent and thorough environmental
impact
assessments, and fund activities by Chinese non-governmental
organizations such as environmental education programs.
Foreign investment is not always clean investment--in fact, in many
instances, the opposite is true.\5\ And the environmental implications
of China's further integration into the world economy through its
participation in the World Trade Organization are likely to be mixed:
diminishing land intensive farming in favor of increased agricultural
exports, for example, but also increasing the opportunities for heavy
polluting industries such as textiles and tin mining. Overall, however,
the international community has played a crucial role in terms of
policy advice and investment in raising the level of China's
environmental practices.
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\5\ Chinese environmentalists have specifically cited Hong Kong,
Taiwan, and South Korea for exporting their most polluting industries
to the Mainland. One recent widely publicized case concerning the toxic
waste caused by dismantling computers for their salvageable parts and
burning and dumping the rest, however, did involve U.S. companies, who
sold their electronic scrap to Hong Kong and Taiwanese brokers.
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Developing grassroots environmentalism
Perhaps most interestingly, China has opened the door to the
involvement of non-governmental organizations and the media in
environmental protection. By permitting the establishment of these
relatively independent efforts, Beijing hopes to fill the gap between
its desire to improve the environment and its capacity and will to do
so. At the same time, the government is very careful to monitor the
work of these NGOs in order to ensure that environmentalism does not
evolve into a push for broader political reform as it did in some of
the republics of the former Soviet Union or countries of Eastern
Europe. Generally, therefore, the NGOs do not lobby or criticize the
central government publicly, and they tend to tackle less politically
sensitive issues not directly involved in economic development. Most
environmental NGOs devote their efforts to nature conservation, species
protection, and environmental education. Other NGOs focus their
attention on urban renewal: recycling
activities and energy efficiency. These NGOs work very hard to co-opt
local government officials to support their work. Finally, there are
environmental activists with interests and goals that exist well
outside the boundaries for NGO activity established by the central
government. Dai Qing, a world-renowned environmentalist, who has
consistently opposed the Three Gorges Dam for example, clearly falls
into this category. She spent 10 months in prison for her book Yangtze!
Yangtze!, which exposes in great detail the politics behind the Dam.
The Chinese government has also encouraged the media to develop
programs and publish articles focused on the environment. Chinese
newspapers, radio and television now accord a prominent position to
environmental issues. Television, in particular, has become an integral
part of environmental protection, often educating the public and
sometimes spurring citizens to take action individually in the process.
Two years ago, for example, a number of Chinese citizens in different
cities began battery recycling programs after watching a television
show devoted to the topic. The media also play an important
investigative role. In several cases, they have been responsible for
alerting authorities in Beijing to local corruption or ineptitude,
demonstrating in vivid color that local governments are flouting
environmental regulations or failing to carry out national
environmental campaigns. At one television station in Beijing, people
line up outside the door of the studio to bring attention to
environmental problems in the hopes of having the station's reporters
investigate the issue.
Enhancing the legal system
China's legal system has long been criticized for its lack of
transparency, ill-defined laws, weak enforcement capacity, and poorly
trained lawyers and judges. Over the past decade, however, the
government has made great strides on the legislative side, passing
upwards of 25 environmental protection laws and more than 100
administrative regulations, in addition to hundreds of environmental
standards. While the quality of some of these laws could be improved,
China's environmental law-makers have demonstrated increasing
sophistication in their understanding of how to negotiate and draft a
technically sound and politically viable law. They also have taken to
publishing some draft laws and regulations on their websites to invite
public comment, an important improvement in the transparency of China's
legal
system. Still, there are numerous weaknesses within the judicial
system, including the poor or complete lack of training of lawyers and
judges, the intervention of external political or economic factors into
the judicial decisionmaking process, and the difficulty of enforcing
poorly written laws.
One bright spot is the emergence of legal environmental non-
governmental organizations. The most prominent of these organizations
is the Center for Legal Assistance to Pollution Victims in Beijing,
headed by an energetic and innovative law
professor, Wang Canfa. The center trains lawyers to engage in enforcing
environmental laws, provides free legal advice to pollution victims
through a telephone
hotline, and litigates environmental cases. Wang has been quite
successful in recovering damages for his clients, although there are
many political and legal obstacles, including a reluctance of judges to
open what they fear will be the floodgates to class action lawsuits.
IV. CONCLUSION: IMPLICATIONS FOR CHINA AND THE UNITED STATES
The rapidity and magnitude of the changes that are taking place in
China and the complex way in which these changes are interacting and
transforming the country leave both the Chinese leadership and the
international community searching for an understanding of what China
might look like over the next decade or two. While the environment has
certainly moved onto the leadership's agenda over the past decade, it
remains far below center priorities such as economic development,
maintaining social stability, and enhancing military capabilities.
This suggests that in many respects environmental protection will
continue to fall within the purview of local officials and the Chinese
people. Positive trends in environmental education, the development of
the legal system, and the growth of civil society will all support the
ability of Chinese citizens to seek redress or take action to respond
to the failure of the government to guarantee their rights.
Yet it is in the interest of both the Chinese people and the world
that such advances take place sooner rather than later. This argues for
continued significant involvement from the international community in
assisting China's environmental protection effort.
For the United States, cooperating with Chinese actors on
environmental protection offers the opportunity not only to serve U.S.
environmental interests but also to pursue top priorities in the Sino-
American relationship: the advancement of human rights and democracy,
the development of a more transparent legal system, and greater access
to the Chinese market for U.S. goods and services. It is an especially
opportune time to pursue such goals given the overall relatively
positive State of U.S. relations with China.\6\
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\6\ While the current context of Sino-American relations is
positive, there is still sensitivity in many quarters in China to the
idea that the United States will push environmental concerns on China
in an effort to prevent China's emergence as an economic power. Even
seemingly
innocuous demands by the international community for monitoring
enforcement of international environmental agreements can also provoke
claims of infringement on Chinese sovereignty. And, with regard to
questioning the environmental implications of China's earlier efforts
to promote grain self-sufficiency or the current grand development
plans for China's West, claims of national security are occasionally
invoked.
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Several simple steps could be taken to raise the profile of the
United States in helping to shape China's future environmental,
political and economic development.
Remove Restrictions on the Overseas Private
Investment Corporation and the U.S. Asia Environmental
Partnership, both of which would provide assistance to U.S.
businesses eager to gain a foothold in China's environmental
technologies market, which is thus far dominated by Japan and
the European Union.
Lift the ban on involvement by the United States
Agency for International Development (USAID) in China. US AID,
with its broad emphasis on governance, public health, rule of
law, and poverty alleviation could be especially
valuable in addressing China's most pressing needs and the
United States' most direct interests.
Make better use of existing fora for Sino-American
partnership on the environment, including the U.S.-China Forum
on Environment and Development and the China-U.S. Center for
Sustainable Development. Both organizations--the first
government to government and the second, a non-governmental
organization with several former high-ranking government
officials, heads of non-governmental organizations, and
business leaders--were established during the Clinton
Administration. While both organizations were still in a
nascent stage by 2000, the Bush administration now has a unique
opportunity to move both efforts forward through both political
and economic support. Both organizations are extremely well-
qualified to accomplish the public-private environmental
partnerships that have served Japan and the EU so well in
advancing their
environmental and economic interests in China.
Enhance existing efforts to promote the Rule of Law
and Environmental Governance. The State Department's Democracy,
Human Rights and Rule of Law program has embraced the
environment as one of its primary targets for assistance in
China. And the U.S. Embassy in Beijing has thrown its (limited)
economic weight behind supporting environmental governance in
China. Coupled with work by organizations such as the American
Bar Association and the Woodrow Wilson Center, the United
States has established an important foothold in this area.
Given the long-term reform benefits of these nascent efforts,
however, significantly greater resources--through training,
education, and exchange--should be provided to strengthen both
the legal and NGO sectors in China. Here, too, the
opportunities for public-private partnership are extensive.
______
Prepared Statement of Brian Rohan
JANUARY 27, 2003
It is a privilege to appear before the Congressional-Executive
Commission on China at this important roundtable. For the past 12 years
I have worked on environmental law and international development
issues. I began my environmental law career with the U.S. Environmental
Protection Agency, where for 5 years I led efforts to clean up
hazardous waste sites and obtain financial commitment from companies
responsible for the contamination. Afterwards, I spent several years
working in Africa and the former Soviet Union, including 2 years in
Moldova and Ukraine as a liaison for the ABA's Central Europe and
Eurasian Law Initiative (CEELI). Upon returning to the United States,
for several years I have been working in the ABA's Washington D.C.
office. Initially, I served as Director of Environmental Law Programs
at CEELI, where I managed environmental governance programs in Moldova,
Ukraine, Uzbekistan and Uganda. I also supervised broader rule of law
reform efforts, including human rights advocacy, judicial training, and
bar association development in Moldova and Ukraine Currently, I am
Associate Director of the ABA's Asia Law Initiative. In this capacity,
I manage legal reform projects in China and throughout Asia.
ABA'S ASIA LAW INITIATIVE
The American Bar Association's Asia Law Initiative--ABA-Asia--is a
public service project that provides technical assistance in support of
legal reforms in the countries of Asia. The project is governed by a
nine-member Council that includes U.S. Supreme Court Justice Anthony
Kennedy, former White House Counsel Lloyd Cutler, former White House
Counsel A.B. Culvahouse, Director of the Yale China Law Center Paul
Gewirtz, and other distinguished American attorneys. The Council's
Chair is Roberta Cooper Ramo, the first woman president of the ABA.
ABA-Asia is similar to the ABA's successful CEELI program, which
has been active in Eastern Europe and the former Soviet Union since
1990. Working in partnership with local organizations (both
governmental and non-governmental), ABA-Asia provides ongoing
assistance in a variety of areas, including judicial reform, legal
profession reform, legal education reform, criminal law/anti-
corruption, citizens' rights advocacy, and gender issues.
ABA-Asia has available to it the expertise and experience of the
ABA's over 400,000 members, as well as other legal experts in the
United States and abroad. ABA-Asia is therefore able to offer the
highest level of practical expertise to address host countries'
requests for assistance. A full listing of our current project
activities is attached as Appendix A (retained in Commission files).
THE ABA APPROACH IN CHINA
ABA-Asia's strategy in China is to implement programs that (1)
enhance Chinese citizens' access to the legal system; (2) create legal
norms by which citizens can defend their legal rights and demand
governmental transparency, and (3) strengthen the capacity and
impartiality of the Chinese legal system. ABA-Asia pursues these aims
through trainings, practical skills-building programs and demonstration
projects that highlight rights fundamental to citizens' relationship
with government. These rights include access to governmental
information, transparent and participatory decisionmaking, and standing
of citizens to challenge governmental action. By focusing on these
rights, ABA-Asia's aim is to help foster a culture in which citizens
know their rights, are empowered to assert them, and have a reasonable
expectation of fair and impartial resolution.
To produce long-term reform, programs must be indigenous in their
conception, design and implementation. When beginning a project in any
substantive area, ABA develops partnerships with leading Chinese
experts, being sure that these experts represent a variety of
stakeholder perspectives, such as academia, industry, NGOs, local
government, central government, media, and private legal practice. When
empowered with real program design decisions, these Chinese leaders
develop a strong sense of ownership of the project, and the substance
is more effectively tailored to the Chinese context.
To the greatest extent possible, programs are delivered outside of
Beijing. Target audiences are those groups with the greatest capacity
and inclination to advocate on behalf of citizens' rights, such as
local government officials, public-spirited lawyers and academics
pursuing reform agendas. Through these related strategies, ABA strives
to implement projects that demonstrate the fundamental value of the
rule of law, while simultaneously training reform-minded stakeholders
in the actual provision of those rights.
THE CHINA ENVIRONMENTAL GOVERNANCE PROJECT
In February, 2002, with funding from the East-Asia and Pacific
Bureau of the U.S. State Department, ABA placed an attorney liaison in
Beijing on a pro bono basis to implement its Rule of Law and
Environmental Governance Project in China. Using environmental law as
the substantive theme, the project has the much broader goal of
increasing capacity in rule of law and developing replicable models in
good governance, particularly in such areas as access to information,
governmental transparency, citizen participation in decisionmaking, and
defense of citizens' rights through legal advocacy. In brief, the
project is conceived to conduct a series of training programs on
Chinese environmental law, focusing on those aspects of law where
citizens have substantive and procedural rights vis-a-vis government.
The trainings, in turn, are stepping-stones to follow-on demonstration
activities, in which participants actually implement a legal tool that
creates and delivers greater citizens' rights and access to the legal
system. Further information about this project can be found in an
article about a December 17, 2002 ABA presentation at the Woodrow
Wilson Center for International Scholars at http://ens-news.com/ens/
dec2002/2002-12-17-10.asp.
The project has generated strong interest in China, and attracted
prominent participants from many sectors to an ABA-initiated Project
Advisory Council. By all
accounts, the project accomplished its 1-year objectives and more.
Based on its warm reception, its demonstrable success, and the strong
Chinese enthusiasm for continuing the project, it is clear that there
are substantial further gains to be made in rule of law and governance
in China by working through the lens of
environmental law.
The Project's First Steps--Set Up and Formation of the Project Advisory
Council
During the first quarter of 2002, ABA overcame a variety of
bureaucratic
obstacles to structure a working partnership with the Center for
Environmental Education and Communication (CEEC) of the State
Environmental Protection Administration of China. ABA's next step was
the creation of a Project Advisory Council (PAC). These steps allow a
variety of stakeholders in environmental governance, from government,
NGO, academic, industry and private law practice perspectives, to offer
insights and input that guide the development of the project, including
selection of sites for the workshops, curriculum content and training
style, and development of follow-on activities. Equally as important,
the members of the PAC, all prestigious experts in various aspects of
Chinese legal and environmental affairs, imbue the project with
elevated status, and afford the ABA liaison access to many contacts in
central government, academia, the NGO community, media, and the
training cities.
The PAC selected the three cities where the environmental
governance training sessions were conducted. The three cities,
Shenyang, Wuhan, and Chifeng, present a variety of environmental
problems, diverse geographic locations, and differing size and
population considerations. Thereafter, the PAC set about designing the
training curriculum. More than half of the 21 member PAC agreed to be
presenters at the three sessions. The final curriculum focuses on
Chinese environmental law and the roles and relationships among
stakeholders in processes such as environmental
impact assessment, public participation in environmental
decisionmaking, and the role of advocacy to defend citizens' rights. A
composite curriculum from the three sessions is attached as Appendix B
(retained in Commission files).
The Next Step--Three Training Sessions
The three trainings took place in July and August, 2002. Each
consisted of 3 days of instruction, panel presentations, roundtables
and informal discussion. In each city, there were between 50 and 60
participants, ranging from lawyers, judges, media, industry, NGOs, and
government. With presenters drawn from the PAC and including the most
prestigious and compelling experts on Chinese environmental law and
advocacy, the sessions were lively and engaging. The last day of each 3
day program was devoted to local environmental problems, and included
an interactive session in which attendees discussed options for a
substantive follow-on activity to implement the training's content. In
the end, participants in each location developed consensus on a follow-
on activity, and have set their attention to its implementation.
All three sessions were video taped by CEEC and a composite
training VCD is being created from the edited tapes. The VCD will be
distributed to several dozen provincial level Environmental Protection
Bureaus (EPBs) throughout China.
The Critical Step--The Follow-on Activities
Building on these training programs, ABA conducted a series of
follow-on activities that highlight innovative environmental management
techniques in the context of Chinese environmental law. Each activity
also demonstrates best practices in rule of law and good governance. In
this way, ABA is helping its Chinese partners not only to adopt
techniques that increase efficiencies and public participation in
environmental protection, but also to undertake measures that get to
ABA's core objective in this project: developing models that provide
for greater governmental transparency, increased citizen participation
in decisionmaking, and enhanced
respect for and implementation of Chinese law.
In Shenyang, the follow-on activity consists of drafting, enacting
and implementing a law to ensure access to information and public
participation in environmental decisionmaking--the first such law of
its kind at the municipal level in China. In Wuhan, participants are
working on development of a publicly accessible computer data base to
provide comprehensive data on environmental conditions. In Chifeng, the
emphasis is on a participatory process to formulate an affirmative role
for local government in devising sustainable land use practices that
combat desertification.
Focus on the Shenyang Follow-On
The Shenyang EPB prepared a draft of the first municipal-level
public participation law of its kind in China. The draft law included
elements of citizen access to information, public participation
requirements, and mandatory transparency among facilities releasing
pollutants into the environment. Prior to the July training session,
the first version of the law was published in the June 24 edition of
the Shenyang Evening News. The draft law was discussed during the
training session and about 100 people sent comments to the EPB
following the newspaper
publication.
In August and September, ABA coordinated an assessment of the draft
law by a team of Chinese and international experts; in September, ABA
and the EPB hosted a drafting and analysis workshop in Shenyang
attended by EPB officials, Shenyang People's Congress representatives,
and about a dozen other stakeholders, including visiting Chinese and
foreign experts. This yielded extensive written comments on the draft
law, which ABA compiled and presented to the EPB and all participants.
Based on these comments, the EPB made significant changes to the
draft law, and published a revised version of the law on October 14 in
the same newspaper. This publication also yielded approximately 100
comments, to which the EPB has responded by making further changes to
the law. Commenters included ordinary
citizens, students, and academics, as well as technical experts.
In November, Mr. Li Chao, Deputy Director of the Shenyang EPB,
informed ABA of a sharp competition between Shenyang Municipal
Government and Shenyang People's Congress for the right to promulgate
this law. The People's Congress wanted to enact it as a local law, but
ultimately the Municipal Government prevailed. The law has received the
necessary final approvals, and shortly will be published a third and
last time, whereupon it will take effect as a Shenyang Municipal
Government Regulation. The Shenyang People's Congress is expected to
elevate it to local law status within a year. An English translation of
the final law is included as Appendix C (retained in Commission files).
Mr. Li has expressed a strong desire for further collaboration
between the Shenyang EPB and ABA. The EPB has asked ABA to host a
second series of trainings in Shenyang, to focus specifically on
implementation of the new law. Mr. Li specifically envisions trainings
for citizens on how to assert their new rights granted under the law.
Assuming adequate funding resources, this training will be held in
Spring, 2003.
The Shenyang EPB also hopes to undertake a similar process in
revisions to all of its environmental laws, including expert commentary
and public comment and participation. Mr. Li wants to improve other
rules and laws in Shenyang to a level similar to the Public
Participation Law, and ensure that they comply with WTO requirements.
He also has expressed an interest in holding public hearings on the
role of the public in environmental impact assessment.
FUTURE DIRECTIONS: TRAINING AND FOLLOW-ON ACTIVITIES
Continued implementation of the existing follow-on activities is
essential. The follow-ons present a unique opportunity to design and
implement governance tools that are readily accepted and applicable in
the Chinese context. While the project's achievements in its first 12
months are impressive, much more remains to be done in order to
institutionalize these efforts and demonstrate their applicability on
the national level.
ABA also plans to memorialize the three existing follow-on
activities by means of self-contained modules covering both the
procedural and substantive elements. For example, not only will the
various texts of the public participation law in Shenyang be
documented, but also the content of trainings, roundtables, and citizen
comments received in connection with the law's development.
As the three existing follow-on activities progress, ABA also will
develop stakeholders in these efforts as local experts, trainers and
spokespeople for the project and for rule of law and governance reform
generally. In conjunction with the materials documented in the modules,
this cadre of trained stakeholder experts from each training/follow-on
location is critical to ABA's long-term efforts to both build capacity
in good governance tools among Chinese stakeholders and to strengthen
indigenous leadership on broader rule of law reform.
ABA also hopes to begin additional training programs and follow-on
projects in three more cities, leveraging both the modules created from
the existing follow-ons and the local expertise developed in each.
Specific locations, project themes, and kick-off events will be
developed in a manner similar to the trainings and follow-ons in
Shenyang, Wuhan and Chifeng, with substantial involvement of the PAC
and other partners.
FUTURE DIRECTIONS: CITIZENS' RIGHTS ADVOCACY
Building on the experience, relationships, and credibility
developed during the project's first year, ABA also hopes to expand its
presence in China in an important direction: by providing direct
support to emerging citizen advocacy efforts. Building on relations
developed through the PAC, through ABA's outreach to the broader legal
community in China, and particularly though relations developed during
implementation of the follow-on activities in the target cities, ABA
will support
advocacy that accomplishes a range of activities, including direct
representation of citizens' legal claims, lobbying and campaigning on
public interest matters, publications, and indigenously conceived
trainings and other events focusing on rule of law and good governance
themes.
ABA has observed that public interest advocacy in China is emerging
according to several models. Individuals and organizations housed
within universities have conducted successful advocacy work;
established lawyers in major law firms have achieved groundbreaking
court decisions; and independent, lesser-known lawyers are exploring
public interest advocacy through work resembling an advocacy NGO. ABA
will support the efforts of carefully selected Chinese partners working
through these models as well as through other creative approaches.
By assisting advocates working through varied structures ABA's
goals are to create both the broadest possible field of public interest
advocates and to achieve the strongest possible advocacy results. By
supporting advocacy in various forms, ABA's efforts will build a
comparative track record as to which institutional arrangements yield
the most effective public interest advocacy in China. As different
advocacy partners pursue different types of work (some focusing on
client-oriented litigation, others pursuing cases with broader societal
implications, still others doing client counseling and mediation, etc.)
ABA's efforts also will shed light on which types of advocacy are most
effective in China's political and legal environment.
As these advocacy efforts mature, ABA also will encourage an
informal network among them and similarly minded legal professionals
throughout China. This network will benefit from a variety of
perspectives, backgrounds, and specializations. ABA will also seek to
include public interest law firms, NGOs, and activists from outside
China in appropriate partnerships with Chinese counterparts, to enhance
the effectiveness and sustainability of the advocacy network.
Of course, all these proposed future activities are dependent on
sufficient resources. ABA received $385,000 from the State Department
for its first year of activity; second year requirements may be as high
as $700,000. Discussions are ongoing with various bureaus within the
State Department, and a small amount of money has been secured to
maintain the project on an interim basis. Considering both the
project's track record and the tremendous opportunity to support
citizens' rights that has now emerged, ABA is exploring all possible
options to secure the funds
necessary to properly implement all future activities described above.
WHY ARE THE CHINESE PARTICIPATING IN THIS PROJECT?
As described above, the Chinese participants in this project
represent a broad range of stakeholders, both within the PAC and in the
provincial trainings and follow-on activities. The level of enthusiasm
and substantive involvement among all of these groups far surpasses
initial expectations. Several factors explain this. First, the extent
of environmental devastation is well known within China, and the
government has made environmental restoration an urgent priority. At
the same time, the awakening about the possibilities of--perhaps the
inevitability of--the rule of law has many Chinese yearning for new
legal approaches. Among participants in this project, there is a strong
sense that this project--using environmental law as a means to promote
broader rule of law--is the right approach at the right time. Put
another way, the reform-minded community with whom we are working sees
this project as a well-timed, viable approach to political reform.
Another important factor motivating the Chinese is the prestige
that the project brings to participants. While perhaps inexplicable to
those with an American's jaded impressions of lawyers, working with the
American Bar Association carries tremendous cache in China. When
thinking of the ABA, the Chinese do not think of lawyer jokes; rather
they see an influential professional association with great credibility
and substantive resources on the very legal topics that are of great
interest in China today. That, combined with the sense that the project
is showing important results, makes the Chinese keen to be a part of
it.
The ABA's sincere involvement of local partners in project design
and implementation is another important aspect of the project's success
and the Chinese enthusiasm for it. As described above, from its
inception, the program has been conceived and delivered by and for
Chinese. The PAC is not a ceremonial board; its substantive involvement
in design and delivery is real and comprehensive. The training
curriculum was designed to emphasize domestic Chinese law and policy.
While international themes have featured prominently in certain aspects
of the trainings--such as norms of public participation, the role of
public dialog in policy formation, etc.--these topics have been raised
largely by the Chinese presenters and experts with whom ABA has worked.
In this way, international experience is conveyed in a way that is
relevant to the Chinese context, and that minimizes the sense of
foreigners preaching to the Chinese about how to reform their system.
CENTRAL GOVERNMENT'S REACTION
ABA has been careful to solicit support for all aspects of the
project from Chinese authorities. At its inception, officials were
quite skeptical--indeed suspicious--of the project. Timely and tactful
intervention from the U.S. Embassy helped to sort through bureaucratic
obstacles, and by partnering with the CEEC, itself an entity within
SEPA, ABA was able to allay initial fears and secure effective
operating space, both literally and figuratively.
Another strategically important aspect of ABA's relationship with
central government is the composition of the PAC. ABA invited senior
officials from SEPA, the NPC's Environmental Protection and Resource
Conservation Committee, and the China Law Society (whose leadership
consists of very senior retired central government officials) to
participate as PAC members. These relationships have been indispensable
to the smooth progress of the project.
In just the past week ABA gained interesting insights about
governmental reaction to our program when our Beijing-based liaison was
summoned to meet with senior SEPA officials. From SEPA's perspective,
the purpose of the meeting was to inform us whether SEPA would support
continuation of our project and approve its extension. This was clearly
more than a formality. Happily, the SEPA officials reported that they
would continue to support the project. They described it as
particularly ``forward'' for China, and did express some telling
reservations regarding NGOs (See below.) However, they also explained
that the primary factor motivating their continued support was the
overwhelming interest in the project among the regional EPBs.
Indeed, focusing efforts outside of Beijing has been a cornerstone
of the project, and this SEPA interaction confirms ABA's belief that
not only are provincial institutions often isolated from Beijing-based
information and initiatives (making them hungry for whatever they can
get); they also are often the best level at which to undertake reform
efforts. Further from Beijing, they can be and often are more
experimental. And highly desirous of increasing their status, regional
offices also are interested to implement new approaches that may
ultimately have national
significance.
ABA's experience offers several clear lessons. To implement highly
visible programs with multiple parties, particularly regarding legal
reform, central government support is essential. At the same time,
regional offices of government present a tremendous resource for
partnership, and are given broad latitude as laboratories for reform.
However, neither central government support nor local level interest is
a given; to be able to work ``within the system'' in China, the
substantive theme of an activity must be carefully selected to align
with Chinese priorities and pose no overt threat to overarching
governmental concerns. This is the crucial issue of ``political
space.'' Environment currently enjoys substantial political space in
China. Other issues, such as human rights or labor rights, do not enjoy
such space, making efforts to work with the Chinese in such areas far
more difficult and the prospects for substantive results far less
likely. This is not to say that other themes should not be pursued, but
that in pursuing such topics the prospects for achieving reform from
within will be reduced while the chances for antagonism and mistrust
inevitably will be increased.
WHAT DOES THIS PROJECT SAY ABOUT ``CIVIL SOCIETY'' IN CHINA?
The very word ``NGO'' raises suspicions within some government
offices in China. In fact, in a recent meeting, SEPA explained to ABA
that one of its key initial reservations about supporting this project
was that ABA seemed intent on energizing NGOs to criticize the
government. As stated to us, the Chinese government has no intention of
supporting programs whose aim includes training NGOs in the art of
contesting governmental authority. Yet at the same time, SEPA has asked
for assistance in implementation of the new Environmental Impact
Assessment Law, which in several articles calls for public opinions and
testimony to be incorporated into official decisions. The Shenyang
Public Participation Law is even far more explicit in its grant of
rights to citizens. This dichotomy raises an important set of
questions: Who is going to represent citizens and ``civil society'' in
these and other emerging legal contexts where citizens are given clear
rights? Is there an NGO
sector waiting to be nurtured? What are the ``Chinese characteristics''
of the third sector?
Answers to these questions are necessarily speculative at this
point. However, in trying to provide effective civil society assistance
to China, several observations are noteworthy. First, a blossoming of
``Western-style'' NGOs in China remains a distant dream. Concerned
about threats to social stability, the Chinese government has no
interest in sanctioning large numbers of organizations that are truly
independent from government, and that will assert themselves in various
sectors of politics and society in ways often critical of government.
Those organizations that do brave the obstacles and function as NGOs
must ever be cautious in their approach; further latitude from
government is not likely to be forthcoming in the short term.
However, the situation is not as bleak as it may seem. The absence
of strong and independent NGOs merely means that reform-minded elements
of Chinese society must find other ways to express themselves. Often
this includes affiliations and organizations that Westerners would not
consider to be leading-edge reform entities, such as private law firms,
academic institutions or even local government officials. However, in
China it is these places where the greatest energy for reform resides.
And quite importantly, these organizations, largely connected to the
State bureaucracy in some or other form, offer an extent of political
cover that an independent NGO does not enjoy.
Worth particular mention among these entities is the emerging
phenomenon of public interest oriented lawyers in China. From private
law firms, from academia, from local government posts, even from within
the military, lawyers--particularly lawyers interested in environmental
law--see new possibilities to test the outer limits of tolerance and
activism as they undertake test cases seeking environmental damages for
aggrieved citizens and seeking to enforce the novel public rights such
as contained in the Shenyang law and the new EIA law.
Finally, reiterating the importance of political space, it is
essential that all of these reform entities, from wherever they come,
focus their energy on issues for which there is adequate tolerance and
the ability to achieve results. The harassment of criminal defense
lawyers in China is well known. However, using environmental law as the
entry point, there is great potential to establish important precedents
for citizens' rights that will extend to other substantive areas over
time.
WHAT DOES THIS PROJECT'S SUCCESS SAY ABOUT USG ENGAGEMENT ON HUMAN
RIGHTS ISSUES WITH CHINA?
As described above, ABA's Rule of Law and Environmental Governance
Project in China pursues aims far broader than simply the perfection of
the Chinese environmental law system. The environment is the wedge
issue, the Trojan Horse, by which the ABA is working with the legal
reform community in China to advance cutting edge concepts of rule of
law, governance, and transparency. Environmental law is unique among
legal disciplines, in that its fundamental precepts are effective
procedural interactions between citizens and government, transparency
of information, and citizens' legal ability to challenge acts of
government. Significantly, environmental law issues typically affect
large numbers of ordinary citizens in direct, tangible ways. Thus, it
is an ideal vehicle by which to enhance the relationship between the
citizen and the state.
Considering this, combined with the desperate State of China's
environment, the time is particularly ripe for programming on
environmental governance in China. That is not to say that
environmental law is the only substantive area of law in which to
engage in China. Many areas of law also offer pathways to strengthen
citizens' abilities to defend their rights through law, such as
property rights and land tenure, criminal procedure law, and even
domestic relations law. However, in some instances, these other areas
are associated with taboos or sensitivities that make effective
programming much more challenging. By leading with this project on
environmental governance, ABA hopes to open the path to increased
citizens' rights protections and civil society development, even to
eventually include those areas, such as labor rights and or human
rights, where sensitivities continue to run so deeply that open, on the
ground programming of the kind undertaken in this project is not
currently feasible.
______
Prepared Statement of Jennifer L. Turner
january 27, 2003
The Growing Role of Chinese ``green'' NGOs and Environmental
Journalists in China
Since 1999 I have coordinated the China Environment Forum within
the Environmental Change and Security Project at the Woodrow Wilson
Center. In the China Environment Forum we convene meetings and create
publications that promote dialog among U.S. and Chinese scholars,
policymakers and NGOs on environmental and energy challenges in China.
In the course of my work I have become acquainted with many Chinese
``eco-entrepreneurs,'' which is a term I use to describe people in the
government, NGO, and news media sectors who are creatively pushing for
improved environmental quality. I therefore have a familiarity with the
dynamics of the ``green'' NGO movement.
The comments I make today on ``green'' NGOs and environmental
journalists in China represent my personal opinion and do not reflect
the views of the Woodrow Wilson Center. In my 10 minutes I have four
points to make about China's nascent environmental movement and what it
means for China's environment and civil
society. Development in the environmental sphere is one of the bright
spots in China's civil society and this sector presents many
opportunities for cooperation from international organizations.
(1) The Chinese government has opened political space for
environmental protection activities, which has enabled an impressive
growth in Chinese ``green'' NGOs and an increase in environmental
activities by universities, research centers, journalists, and
government-organized NGOs (GONGOs).
(2) Independent Chinese environmental NGOs are at the forefront of
civil society development in China.
(3) Because environmental journalists enjoy more freedom in
pursuing their stories than other beat reporters, they are quickly
becoming a force pushing environmental awareness and investigations of
local problems.
(4) In the short term, expansion of ``green'' civil society in
China is more dependent on improving organizational capacity of NGOs
than an increase in political space.
(1) GROWING POLITICAL SPACE FOR ``GREEN'' NGOS, JOURNALISTS, AND OTHERS
The Chinese leadership is aware that the government cannot solve
the serious environmental problems alone, which explains why political
space has opened up for eco-entrepreneurs in both the State and non-
state sectors to create organizations to help government environmental
policies by: (1) Promoting environmental education, (2) Acting as
watchdogs for local governments, (3) Conducting environmental and
energy-efficiency policy research, (4) Undertaking on-the-ground
conservation and sustainable development projects.
How have independent NGOs and other organizations grown?
In the mid-1990s, Chinese environmental NGOs were the
first to register when Beijing passed legislation granting legal status
to citizen-organized social groups. Individuals wishing to create
``green'' NGOs were inspired into action by not only the severe
pollution problems, but also by the growing presence of international
environmental NGOs in China. The growing environmental activities that
universities, government research centers, and GONGOs were doing with
international groups also signaled work in this area was acceptable.
Approximately 50 citizen environmental groups are
registered with the government, but since the registration process
often can take years, hundreds of other
environmental activists are doing their work as nonprofit corporations
or within
professional associations, Internet-based groups, or very small
informal volunteer organizations or clubs (e.g., bird watching clubs).
Some activists opt to join and learn from the numerous international
environmental NGOs operating in China.
Many central and provincial government agencies have
created their own environmental NGOs (a.k.a. GONGOs) to create more
jobs and attract international funding. These environmental quasi-NGOs
(which number between 1000-2000) tend to have more technical skills
than independent NGOs. Some GONGOs, particularly the Women's
Federations and Communist Youth Leagues, are drawn to an NGO model for
environmental work as they adapt to China's changing social context and
their organizations are weaned from government support. Over the next 5
years central and provincial governments will be cutting most of the
funding for all types of GONGOs and those environmental GONGOs that
survive will become real independent (albeit with good government
connections) environmental NGOs.
Student environmental organizations at universities have
exploded in number: From 22 at the end of 1997 they have now increased
to 184 student groups, located at 176 universities in 26 provinces. In
the early 1990s, university administrations created the first student
``green'' groups, but today most groups are initiated by
students, who do ``green'' work on and off the university campus (e.g.,
waste reduction and environmental awareness activities, summer
``green'' camps for university students, monitoring water quality in
local areas). Student ``green'' groups have created networks to share
information on their ``green'' activities. These student groups are
helping to cultivate a growing pool of environmental activists and more
environmentally aware graduates entering the workforce.
(2) ``GREEN'' NGOS AT THE FOREFRONT OF CIVIL SOCIETY DEVELOPMENT IN
CHINA
Despite their small numbers, environmental NGOs have been a model
of inspiration for other kinds of civil society groups, for not only
were they first to emerge, but they also have been creative in
gradually expanding their activities through partnerships with domestic
and international groups. In their work with international
organizations, Chinese environmental NGOs have been able to work with
local government and research centers, which represents a very new kind
of horizontal policy cooperation in China. Moreover, by working with
different types of
organizations environmental NGOs are gaining valuable skills and
capacity.
First to emerge. Environmental NGOs were among the first
type of independent organizations to emerge after the Chinese
government permitted social organization registration. As pioneers in
registering, they promoted confidence in other NGO activists. Other NGO
sectors that are most successfully following in the footsteps of
``green'' groups include disabilities, women and children's rights,
health and poverty alleviation groups.
Generally non-confrontational organizations. Unlike many
western environmental groups, Chinese NGOs do not stage protests
against the government or
industry. In fact, many Chinese environmental NGOs have built up
cooperative
relations with governmental agencies and institutes. Some groups even
use the
government's familiar ``mass campaign style'' techniques to promote
their environmental message.
Slowly expanding areas of activities. While ``green''
NGOs, student groups, volunteer, and virtual groups tend to undertake
activities in relatively ``safe'' areas (e.g., public education on
wildlife, personal consumption patterns, littering, surveys of
endangered species, studies of energy efficiency), some groups,
especially those with a professional base, are exploring innovative
activities. For example:
(1) One lawyer created a group to provide legal assistance
for pollution victims.
(2) One group made up of environmental professionals took
surveys of environmental problems in their city and used local
news media to promote their results.
(3) One group founded by environmental scientists in southern
China brought together and worked with international NGOs and
local governments to create and manage a nature reserve.
Utilizing a broad range of partnerships to build capacity
and effectiveness. Because Chinese environmental NGOs are generally
small groups, many have found that expanding their range of partners
not only brings in financial resources, but also new skills and
knowledge. Chinese NGOs have increasingly partnered with government
research centers and GONGOs, international environmental NGOs, and
multilateral organizations. In some areas international NGOs have
helped bring Chinese ``green'' groups and local governments together
for projects. While the activities of many Chinese environmental NGOs
do serve to help the central government enforce and implement
environmental laws by promoting environmental education and monitoring
local governments, a handful of Chinese NGOs are carrying out more
technical pilot projects, usually with international NGOs or
multilateral organizations (e.g., Environmental Defense works with one
Chinese group on an SO2 emissions trading project; NRDC
works with various Chinese NGOs, local governments, and research
institutes on energy-efficiency projects, WWF works with local
governments and community groups on a wide-range of conservation
activities).
Growing use of the Internet. Some of the newest ``green''
groups in China are virtual organizations staffed by volunteers and
their success offers useful models for other types of NGOs. One
``green'' group was able to mobilize more than 7,000 people to get
online to ``campaign'' for nationwide battery recycling in China. Other
groups have circulated petitions to help save wetlands and protect
endangered species. As ``green'' NGOs increase their capacity in
developing Web sites, they will improve their outreach and membership
abilities.
(3) ENVIRONMENTAL JOURNALISTS
The abundant crop of environmental stories in China has not come
about spontaneously. In the early 1990s, the National People's Congress
launched a massive publicity campaign to raise environmental
consciousness and set up a central command post to rally Chinese
reporters to write stories on the environment. In the first 8 years
after launching the campaign, some 13,000 reporters from all news media
organizations produced an astounding 104,000 pieces of work, according
to a study by the International Media Studies at Tsinghua University.
Environmental reporters say they enjoy more freedom in pursuing
their stories than other beat reporters, for the support they have from
Beijing enables them to obtain cooperation from local authorities in
doing their investigative work.
To illustrate the results of the freedom, in newspapers
environmental reporting has been increasing steadily since the early
1990s, even though it is not a formal beat at most papers. One Chinese
NGO tracked the yearly number of environmental articles in major
national and local newspapers in China from 1994-1999. Between 1997 and
1999, the number of articles on environment doubled in number (76
papers produced 22,066 articles in 1997 while 75 produced 47,273 in
1999). The percentage of in-depth reporting (e.g., investigations,
features, editorials) among these articles averaged about 20 percent.
In the past, China's two State environmental newspapers (China
Environment News and China Green Times) have been published for a
government readership. As these two papers have become financially
independent from their agencies they are trying to market their
newspapers to the general public. To sell papers they aim to publish
more insightful environmental education and investigative pieces and
move beyond reporting government slogans about successful environmental
policies.
Many Chinese TV stations have regular environmental educational
programs and a growing number of radio programs feature environmental
hotline call-in shows and exposes of local government pollution
violations. While reporting on the ecological strains brought by
industrialization along the Yangtze River, a Chinese national public
radio reporter described how cruise ships threw plastic food containers
into the waterway turning the 5,500-kilometer river into a giant public
sewer. Within days of the broadcast, local officials were galvanized to
action in the face of public outcry and the littering stopped. The
result was a slightly cleaner river.
In general environmental journalists can report local environmental
problems and criticize local government authorities, but they tend to
avoid targeting national-level agencies and policies. All reporters in
the Chinese news media practice self-censorship. However, sometimes
environmental journalists put their sensitive stories into internal
newspaper and government reports and these reports can help educate
local officials and change policies. For example, one journalist in
Shanghai wrote an editorial about the possible water and environmental
problems from planned golf courses outside of the city. This article
led municipal officials to halt the plans for the golf courses and
undertake an environmental impact assessment.
An intriguing cross-fertilization is taking place between ``green''
NGOs and journalists-some environmental journalists take their interest
beyond work and have been active in either creating or helping
``green'' NGOs in China. In some major cities journalists have created
networks or salons to help each other improve in their environmental
reporting.
(4) IN THE SHORT TERM, FURTHER GROWTH IN ``GREEN'' CIVIL SOCIETY IN
CHINA IS MORE DEPENDENT ON IMPROVING THE ORGANIZATIONAL CAPACITY OF
NGOS THAN AN INCREASE IN POLITICAL SPACE
It is not easy to create and operate an NGO of any kind in China,
for such the NGO concept is relatively new and registration
requirements are challenging. Despite the registration woes, there
exists a fair amount of leeway for ``green'' activists to undertake
environmental projects and activities. However, the effectiveness of
NGOs to do ``green'' work is often limited by lack of funds and
organizational capacity. Three core challenges to environmental and
other types of NGOs in China are:
(1) Onerous registration requirements
The current regulations for social organizations make it
challenging to register an NGO because they contain vague registration
requirements and are rather ambiguous about the scope of permissible
activity. These regulations require all applicants secure the
sponsorship of a government agency (a.k.a. the ``mother-in-law''
requirement). Those NGOs that do apply are not always allowed to
operate in areas that have government departments or GONGOs doing
similar work. Moreover, NGOs cannot set up branch organizations in
other parts of the country. This latter rule does not yet represent a
major hindrance for ``green'' groups in China, for they tend to be
small and focused on doing activities locally.
(2) Funding challenges
While a majority of Chinese ``green'' NGOs in urban areas have
gotten funding from international foundations and NGOs, foreign
governments, and multilateral organizations, raising sufficient funds
for activities and salaries is a problem that plagues most groups. This
reliance on international sources of funding stems in part because
there is not a philanthropic community in China. Because the concept of
membership fees is still quite foreign in China many groups depend on
volunteers to help them do their work.
One potentially bright sign for future funding is that the Chinese
government is currently revising rules for permitting tax-free
donations to NGOs.
(3) Capacity Challenges
Many ``green'' NGOs are creations of one motivated
individual who defines the organization. These groups are still very
new, but it is unclear if some of these groups could function if the
founder left.
Most groups lack knowledge of managing a nonprofit
organization or the experience in setting up membership systems.
While most ``green'' NGO staff are enthusiastic and
committed, they often lack the skills needed to do technical
environmental work and write grant proposals to fund the organization.
The struggle for financial resources dominates much of the energy of
these groups and even creates competition among ``green'' civil society
groups.
Hard to keep NGO staff because of low or lack of salary,
so institutional memory easily lost.
Because most groups are new and struggling to sustain
their activities, networking with other groups has not always been a
priority, which means they miss opportunities to learn from other NGOs.
Perhaps because the NGO movement has not yet reached critical mass, we
are not yet seeing a lot of networking across sectors (e.g.,
environmental working with health or children's groups, which
substantively could become a mutually beneficial type of partnership
and strengthen the capacity of both organizations).
POSITIVE STEPS
Most environmental NGOs are now aware of their need to build
internal capacity and are seeking training to help themselves in this
area. While some international organizations (such as the Canadian
Civil Society Program, the Dutch government, and PACT China) have
stepped in to create workshops and some training for all kinds of
Chinese NGOs, much more could be done to help strengthen the capacity
of ``green'' and other civil society groups, so they could be more
effective in their work.
In summary, many Chinese environmentalists know how to operate
within politically acceptable boundaries, however, because of internal
capacity and funding problems I believe a lot of groups are not yet
fully utilizing the space they have to make significant impacts on
protecting the environment. It will take time for them to strengthen
their internal organizational capacity and develop technical skills to
become more effective. With time I am also confident that this sector
will be given more freedom of operations, because most groups are doing
activities that help the government pursue their own environmental
goals.
SOME REFERENCES ON ENVIRONMENTAL NGOS IN CHINA
Brettell, Anna. (2000). ``Environmental non-governmental
organizations in the People's Republic of China: Innocents in a co-
opted environmental movement? '' The Journal of Pacific Asia. Volume 6:
27-56.
Friends of Nature. (2000). 1999 Survey on Environmental Reporting
in Chinese Newspapers. Beijing: Friends of Nature.
Ho, Peter. (2001). ``Greening without conflict? Environmentalism,
NGOs and civil society in China.'' Development and Change, 32 (5), 893-
921.
Knup, Elizabeth. (1997). ``Environmental NGOs in China: An
Overview.'' China Environment Series. Washington, DC: Woodrow Wilson
Center: 9-15.
Kluver, Randy and John H. Powers. (2000). Discourse, civil society,
and Chinese communities. Connecticut: Ablex Publishing Company.
Ku, Fong. (Ed.). (1999). Directory of international NGOs supporting
work in China. Hong Kong: China Development Research Services.
Saich, Tony. (2000). ``Negotiating the state: The development of
social organization in China.'' The China Quarterly. Issue 161, pp124-
141.
Turner, Jennifer. (Ed.). (2002) ``Inventory of Environmental
Projects in China.'' China Environment Series. Washington, DC: Woodrow
Wilson Center. (Chinese NGOs inventoried on pages 197-211). [(On-line].
Available: www.wilsoncenter.org/cef
Turner, Jennifer and Wu Fengshi. (Eds.). (2002). Green NGO and
Environmental Journalist Forum. Washington, DC: Woodrow Wilson Center.
[(On-line]. Available: www.wilsoncenter.org/cef
Wang, Canfa, et al. (2001). Studies on environmental pollution
disputes in East Asia: Cases from Mainland China and Taiwan. Joint
Research Program Series No. 128. Tokyo, Japan: Institute of Developing
Economies. IDE: JETRO.
Young, Nick. (2001). ``Searching for Civil Society.'' Civil Society
in the Making: 250 Chinese NGOs. Beijing: China Development Brief: 9-
19.