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85–625 PDF 2003

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

(

Available via the World Wide Web: http://www.cecc.gov

CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

LEGISLATIVE BRANCH COMMISSIONERS

House Senate

JIM LEACH, Iowa, Chairman

DOUG BEREUTER, Nebraska

DAVID DREIER, California

FRANK WOLF, Virginia

JOE PITTS, Pennsylvania

SANDER LEVIN, Michigan*

MARCY KAPTUR, Ohio*

SHERROD BROWN, Ohio*

JIM DAVIS, Florida*

CHUCK HAGEL, Nebraska, Co-Chairman

CRAIG THOMAS, Wyoming

SAM BROWNBACK, Kansas

PAT ROBERTS, Kansas

GORDON SMITH, Oregon

MAX BAUCUS, Montana

CARL LEVIN, Michigan

DIANNE FEINSTEIN, California

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)

(III)

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

(1)

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.

2

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 CongressionalExecutive 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.

3

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

4

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 21⁄2 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

5

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

6

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

7

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

8

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 standVerDate 11-MAY-2000 15:21 Apr 23, 2003 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 85625.TXT China1 PsN: China1
9

ard 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 nonChinese—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.’’

10

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 cuttingedge participatory democracy sort of concept, and the relevant officials in the province are asking us back specifically to train their

11

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

12

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

13

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 ecoentrepreneurs 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

14

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.

15

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 expose ́s 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

16

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.

17

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.

18

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, nationallevel 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.

19

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.

20

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

21

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,

22

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

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tions, 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.’’

24

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, includVerDate 11-MAY-2000 15:21 Apr 23, 2003 Jkt 000000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 85625.TXT China1 PsN: China1
25

ing 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 seniorlevel 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.

26

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 email 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,

27

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

28

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 enviVerDate 11-MAY-2000 15:21 Apr 23, 2003 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 85625.TXT China1 PsN: China1
29

ronmental 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.

30

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.]

(31)

A P P E N D I X

32

1These 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.

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.

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.

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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.

I. WHAT DOES CHINA’S ENVIRONMENT LOOK LIKE TODAY?

China’s overwhelming reliance on coal for its energy needs2 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.

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

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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

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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. 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.

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.

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.

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

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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.

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.

Developing grassroots environmentalism

Perhaps most interestingly, China has opened the door to the involvement of nongovernmental 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 lawmakers 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.

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6While 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.

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

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.

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• 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

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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,

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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

41

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 followons 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

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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

43

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.

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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

45

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:

46

(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 expose ́s 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

47

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,

48

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.

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