China-US Collaboration - Environmental Enforcement Ideas from Sunny California

As Hillary Clinton prepared to visit China for high-level discussions on climate change and energy last week, we landed in California with a group of Chinese experts from government, academia, legal circles and media to talk about approaches to battling air pollution and ways to strengthen China's air pollution law.  The big questions on our minds are these:

What enabled the U.S. to turn the co rner on air pollution?  And how can these ideas contribute to stronger air pollution protection in China?

These sorts of questions about environmental governance were not at the top of the list as Secretary Clinton met with President Hu Jintao to talk about climate change and energy, but they should have been.  Without strong environmental governance and implementation of air pollution legislation, any climate commitments made in either the US or China will be meaningless.  Moreover, environmental governance is a fertile area for China-US collaboration that can bring cleaner air and dramatic savings in public health costs in both countries.  In advance of Secretary Clinton's visit to China this past weekend, NRDC put out a report - entitled Strengthening US-China Climate Change and Energy Engagement: Recommendations for Leaders and Policymakers in the US and China - setting forth nine key  recommendations, including a recommendation that the two countries collaborate to strengthen environmental governance.  [UPDATE 2/24/09: James Fallows of The Atlantic blogged about the NRDC report yesterday.]

At NRDC, we are already facilitating this sort of China-US collaboration and have been working with government and experts on both sides of the Pacific to develop answers to the question of how to strengthen environmental governance.  This past week we met with different players in the US air pollution system to talk about critical issues in air pollution regulation and enforcement.  Our discussions revolved around ways that China might use some of the "lessons learned" by the US to better deal with its own air pollution challenges and avoid the mistakes the US has made in the past.

Though the US has not solved its air pollution problems, there has been tremendous progress over the past few decades.  From a regulatory perspective, what were the drivers of these improvements? We spoke with experts from, among other places, the US Environmental Protection Agency, Region 9, California EPA's Air Resources Board, legal experts at University of California, Berkeley and NRDC's own staff in San Francisco earlier this week.  

As one US EPA expert mentioned, no one remembers the clean air laws prior to the 1970 Act in the US because those laws, while well-intentioned, were largely toothless and ineffective (sound familiar?). Changes in the 1970 Clean Air Act and subsequent amendments were critical in bringing about real change to tackle air pollution (though the job is not done by any means).

One of the key measures in the US involved:

• creating a federal-level authority with adequate powers to regulate and enforce against air pollution nationwide.  

In the US, this involved, among other things, the creation of a relatively powerful federal-level environmental authority with significant manpower (EPA and its network of regional offices, labs and research institutes), authority to drive civil and criminal prosecutions and take over failed state-level regulatory programs, and control over local access to funding.  A more flexible, comprehensive system was created when these new powers were matched with:

• the right for citizens to bring enforcement actions,
• greater transparency, and
• the right for states to take more stringent environmental actions than the federal government.

Everyone knows that local protectionism is a major barrier to better environmental protection in China.  If China is serious about air pollution, it should give the Ministry of Environmental Protection greater powers, granting it the authority and resources to take over environmental protection work from intransigent provinces.  MEP will not have to get deeply involved in the environmental protection work of all provinces, provincial-level municipalities and autonomous regions, nor should it.  However, when a province fails to carry out its environmental protection duties, MEP should have the authority to step in and take over the program.  And MEP should be given sufficient manpower and financing to do this effectively.  

The way that MEP exerts this authority over lower level governments could be quite different from the way it is done in the US, but the need for greater central level supervision and enforcement is just as important in China as it is in the US.  China might, for example, rely more on central-level control over the careers of lower level government officials and rely on improvements to its government official evaluation system, but the overall goal of these actions is similar in both countries.  

As mentioned above, it's also important to keep in mind the other elements of the system that allow central-level supervision to be effective.  First, it will be critical to build in transparency and greater citizen authority to enforce, which is an indispensible supplement and complement to government enforcement authority in the US.  The US case Friends of the Earth v. Laidlaw was an example of how federal government and citizen enforcement combined to deal with a case of "local protectionism" in the US.  NRDC had an article on this in the Chinese magazine World Environment, which includes a summary of the Laidlaw case (Chinese | English).  Second, the US system also has numerous examples of the states (such as California) taking the lead on environmental protection.  China also has more forward thinking provinces and their "best practices" should be allowed to help drive environmental protection in China as well.  

There have been many proponents in China of stronger central authority over environmental protection and the other elements of a strong environmental governance system, such as transparency and citizen right to enforce.  Given the critical need to act on climate change and the harm that air pollution causes to public health in both China and the US, the time to implement these solutions is upon us.

See our bilingual (English and Chinese) blog dedicated to discussion of China's environmental law, policy and the power of the people at http://www.greenlaw.org.cn.