The View from China: Taking a Look Back at the Year in Environmental Disclosure

We have been devoting a great deal of space lately to discussion of open information and government transparency in China.  As we know in the States, the right-to-know is something that you need to go to the mat for sometimes (remember the Cheney Energy Task Force?).  Well, people are starting to go to the mats for their right-to-know in China too.  What makes this so interesting is that China, as Professer Wang Jin from Peking University (the Harvard of China), has always taken secrecy as the rule, and disclosure as the exception.  

But last year, China layered a Freedom of Information Act-like regulation on top of an enormous bureaucratic structure used to keeping things to itself.

What happens when you do that?

As you might expect, those asked to disclose tend still to keep things to themselves. And that's what we've seen for the most part.  But the public and the media are pressing the issue.  Last week, one of CCTV's (China Central TV) main half-hour news talk shows devoted two nights in a row - a full hour - to discussion of open information, highlighting case after case of local governments failing to disclose information as required by law.  It was fascinating to watch.  

I'll be posting a few more items about open information in China.  My colleague, Joan Hu, here in Beijing wrote a nice article (translated below from Chinese) taking a look at some of the highlights in Chinese environmental open information this past year.  I post it here for your review.  Let us know what you think.

Greenlaw and The First Anniversary of China's Open Information Regulations

NRDC's revamped Greenlaw (www.greenlaw.org.cn) site officially debuted on October 5th, 2008. The overall positive response to the "Open Environmental Information Regulations (Trial)" since May 1st, 2008 has played an important role in the creation of the site. The update rate of the old Greenlaw site was not up to the task of quickly dealing with new environmental law and open information developments, so revisions to the site were made in addition to continuing the original news service. Since February, the amount of writing on the site has rapidly increased, and the site has switched from its original schedule of 2-3 weekly updates to daily updates. There have already been 118 news pieces about open environmental information and 108 environmental law-related blog posts, among which 21 are posts about open environmental information. Over 1000 foreign and Chinese now visit the site each week.

In addition to laying the foundations for information disclosure in the State Council's "Regulations on Open Government Information," which sets legal obligations on the Chinese government for open government information, the Ministry of Environmental Protection's "Measures on Open Environmental Information (for Trial Implementation)" is not just the first time the State Council has issued an implementation regulation concerning a government bureau. By specifying further responsibilities for the enterprises, these regulations could closely integrate with other environmental regulations, such as clean production promotion laws. This regulation promises to be the proverbial hammer that will smash the wall between polluting enterprises and the public, turning China from a bureaucracy-oriented country to a science- and democracy-oriented one, from a country that singled-mindedly emphasizes economic growth to one that focuses on sustainable development. In addition to these optimistic feelings, there are still some unavoidable, unfavorable challenges to be confronted. Looking back at the developments of the past year reveals a developing legal regime where the circumstances remain quite complicated.

The Government and the People Grow Up Together

If one views the Yuanmingyuan Fangshenmo incident (one of China's first environmental public participation cases/incidents) four years ago to be a positive start in generating meaningful legal dialogue between the public and then-State Environmental Protection Agency, then the Xiamen PX episode (in which several thousand locals took to the streets to protest a proposal for a polluting factory) two years later marked an even greater high point in the advancement towards effective dialogue. These two events acquainted the public and the government as public forces, and in 2008, following the official implementation of the Open Environmental Information Regulations, the public set out to understand and utilize the laws. By the end of 2008, various environmental protection NGOs had issued local citizen guides on open environmental information and public participation, in addition to conducting round-table conferences, training activities, and publicizing information on the new open information regulations.

At the same time, these environmental NGOs also began to carry out their own work with the new open environmental information laws. On October 30th and 31st, 2008, when the All-China Environment Federation hosted its annual meeting on sustainable development for environmental NGOs, many of the attending organizations, lawyers, and legal experts shared their experiences with the new open environmental information laws. Whether these attempts succeeded or failed, such actions had exposed many legal and practical problems with the law in its current state. For example, Greenpeace discovered in its "Investigation on Enterprise Pollutant Information Disclosure" that the BASF Corporation was not as transparent with its environmental record in China as it was in other countries, and that the chemical engineering powerhouse continued to keep silent about its emissions data in China. Greenpeace then submitted an application to the MEP seeking disclosure of BASF's emissions figures. Their failed attempt, though, raised a series of questions for the public and legal world that still require answers: First, is the current system for publicizing an enterprise's environmental record enough to satisfy the public's right to that information? Second, is the government fulfilling its duty to achieve greater openness with its supervision of emissions and gathering of information? Third, what should be done about these enterprises' environmental information business secrets? Will disclosing an enterprise's emissions information have to involve making public its trade secrets?

The efforts of the public have also generated positive results. Last August, Friends of Nature joined together domestic environmental NGOs to investigate the Gold East Paper Company-a highly polluting enterprise seeking an Initial Public Offering (IPO)-about its environmental protection record. In March 2009, the Ministry of Environmental Protection fulfilled its obligation to disclose such data when it informed the public about its own investigation of the Gold East Paper's attempts to join the market and gave clear and open answers to the questions raised by the environmental NGOs. Although the emissions of Gold East Paper still remain a concern, this move by the MEP is worthy of praise.

The actions of legal professionals have aided the advancement of environmental information disclosure. On May 5th, mere days after the enactment of the open information regulations, Shanghai lawyer Yan Yiming filed an environmental information disclosure request, thus initiating the legal world's push for more transparency in environmental information. Months later, he once again captured headlines when he submitted an open information application asking for full financial disclosure of the central government's four trillion RMB economic stimulus plan. In a similar move, Friends of Nature made an appeal for strengthening the stimulus plan's commitment to the environmental protection at their annual environmental protection conference.

In the past year, it didn't matter if the change was suitable or not, if the change was ready to happen or not, or if it the forces of change were governmental or non-governmental-what mattered is that the public focused on gaining greater transparency with environmental information. For NGOs, there is no longer the excuse of not having legal support, as more and more issues can now be resolved in the legal realm. For legislators, the dialogue process between the government and NGOs provides additional assistance towards implementing legislative goals effectively and quickly, including fixing legal loopholes and clarifying ambiguities vulnerable to exploitation. For the government, there is no longer time to slowly nudge the notion of change, because the new openness has become a legitimate legal obligation. This comment from from The Prosecutor's Daily about statistics from the yearly report on government openness exemplifies the new sentiment: "Up to 24:00 on March 31st, 2009, 9 of the State Council's 27 departments, 13 of its 16 directly subordinate organizations, 5 of the 6 work agencies, 11 of their 14 directly subordinate enterprises, and 15 of the 19 national administrations have not yet made their information public as scheduled, with 29 agencies that deal with the State Council, and 9 of the 31 provincial governments also not yet disclosing information to the public." While not fulfilling obligations on time is quite common, the people are no longer complacent. While such problems may stem from the beginning of the law's growth process, the comment also noted more change was needed. Ultimately, the "lack of punishment for not opening up on time will naturally keep these administrations from worrying or rushing."

The Slow Development of the Courts

After May 1st, five citizens of Rucheng, Hunan Province, initiated China's first open information suit, demonstrating civic awareness that would truly test the government's new system of justice. But one month later, the people regrettably realized that the Chenzhou court still had not taken up the case. The public worried that if the justice system, as the last line of defense for social justice, stayed silent, then these new open information laws would serve nothing more than a decorative function. But perhaps this was only a reflection of transition difficulties, because on October 10th, the China Youth Daily and Beijing Daily both successive reports of a citizen victories in seeking information disclosure from the Hubei and Zhejiang provincial governments. Before the deadline, Hebei's Baoding City also ruled in favor of some of its citizens seeking open information from the government, undoubtedly making many people happy.

Although we cannot view the actual environmental information case reports, we can still learn from the experiences of others. These above-mentioned cases will undoubtedly provide an opening for those who have been seeking to shine light on open environmental information. At a minimum, people now know that any administrative organs not dealing with open information applications are acting illegally, and that they can bring a lawsuit against such bodies. The significance of neutral judicial intervention is that when two parties are debating a piece of legislation, a judgment can bring justice while achieving the actual intent of the law. Although the open information judicial decisions to date have only addressed a small fraction of the problems that effective implementation of the law faces, it is worth waiting for the courts to become an even more powerful force in pushing for the legal development of open environmental information.

A Conservative Response from Enterprises

Last year, 250,000 people in Guangzhou submitted applications to the government for open information. The data in the annual open government information work report show that the public is serious as they demand more public information. Despite the shifting public sentiment, however, a few of the major enterprises who fall under the new transparency rules are simply turning a cold shoulder towards information disclosure requirements.

During Greenpeace's campaign, BASF was arrogantly silent the whole time and has still not yet taken the initiative to voluntarily disclose its environmental information. The enforcement of clean production of enterprises on the government's audit list is another issue, too. From last June, the Institute of Public and Environmental Affairs (IPE) led more than ten environmental NGOs in publishing the "Enterprise Environmental Information Disclosure Alert Letter," directed at over 30 manufacturers in China. According to the open environmental information regulations, these enterprises are obligated to publicize detailed information about their pollutant emissions. Otherwise, the penalties include fines and forced disclosure by the Ministry of Environmental Protection. But only a few enterprises actually followed the regulations, with most choosing to simply stay silent, and the conduct was not punished. Because enforcement of the new environmental open information regulations is at such an early stage, it remains highly challenging to penalize enterprises for such violations.

Within these grey areas, the attitude of enterprises towards open environmental information remains vague and conservative. Last year, whether deliberately or not, the WalMart-hosted supplier summit demonstrated the growing influence of the open information regulations. While the company announced initiatives on environmental information disclosure and greening its supply chain, there has been little news of concrete achievements in implementing those plans to this day.

The Media Hard at Work

On March 31st, 2009, for the first time since the official enactment of the "Regulations on Open Government Information" and "Measures on Open Environmental Information (for Trial Implementation)," government bureaus began releasing their legally-mandated annual open information work reports. The Ministry of Public Security, Ministry of Environmental Protection, Ministry of Commerce, State Archives, and all provincial and municipal governments have now uploaded their reports online. In the beginning of April,Caijing, the Investigative Daily, and some other media outlets published commentaries on the annual reports. The public learned that many ministries and bureaus under the State Council had not fulfilled their obligations to release their annual reports on time. In the same month, using the information from the work reports, the media exposed the continuing challenges open government information continues to face. For example, while 250,000 applications for open information were submitted in Guangzhou in 2008, one nearby city received only one application in all of 2008. In analyzing the data from the reports and conveying the important points to the public, the media has taken on its role as an overseer in this first test of the new information disclosure regime.

There were many factors that made 2008 an extraordinary year, and the media played an irreplaceable role in following the implementation of government transparency. The prompt follow-up reports to some legal cases, as well as commentaries on the cases by experts and newspapers, were key in spreading awareness and usage of the new regulations. Discussions of the range and validity of open information, analyses of the practical legal problems related to open information, and dialogues on how to improve the existing system all shed light on the main issues in the first year of the open information regulations. But even still, most newspaper reports seemed half-hearted and shallow. This does not meet the enormous public demand for open information. As the law continues to develop, the media must get involved even more deeply.

See the original post at our Greenlaw China Blog for a timeline of events from the past year.