Environmental transparency policies in China

I enjoyed reading Barbara Finamore’s piece on transparency in environmental regulation in China which I posted earlier.   This is a partial and somewhat shorter re-post.

 The use of transparency as an environmental policy tool in China has particular interest for the US given the stumbling block of verifiability on Chinese carbon emissions reductions at the Copenhagen meetings.  Indeed the current climate finance meetings in Geneva which seek to establish a $200b Green Fund to help developing countries address climate change sees the US continuing to hold out unless developing countries agree to allow monitoring and verification of their carbon emission cuts.

Finamore’s article, however, primarily deals with transparency as a way of advancing local Chinese environmental goals.

The idea is to catalogue environmental performance and to use open information mechanisms to drive better environmental outcomes. Historically the first application was the Toxics Release Inventory (“TRI”), established by the US in 1986 after the Union Carbide chemical accident in Bhopal. In the past decade, signatories to the Aarhus Convention ratified open information as a tool for environmental protection and created the Protocol on Pollutant Release and Transfer Registers to the Aarhus Convention, which established rules for TRI-like systems in signatory countries.

China sees open information as a way of bringing various stakeholders –members of the public and businesses – into environmental protection efforts and to improve the quality of information needed for environmental targeting. Environmental transparency can also assist overextended environmental agencies.

On May 1, 2008, China’s first national regulation on freedom of information went into effect. The Open Government Information Regulations (“OGI Regulations”) was driven by the view that greater transparency will benefit economic development, curb corruption, improve government performance and improve people’s lives.

China’s Ministry of Environmental Protection (“MEP”) has been an enthusiastic adopter of disclosure as a regulatory tool. It was the first ministry to promulgate implementing measures for national OGI Regulations and issued environmental information regulations on the same day as the OGI Regulations. These regulations, called Measures for Environmental Information Disclosure (For Trial Implementation) (“Environmental Information Measures”), set forth environmental information disclosure obligations for environmental protection departments and certain enterprises throughout China.

 The enactment of the OGI Regulations and the Environmental Information Measures in 2008 arose from more than a decade of local experimentation with government disclosure and open environmental information. China has incrementally instituted various forms of environmental disclosure at both the central and provincial level since the late 1990s: 

• In 1998, a pilot – the GreenWatch Program – was instituted in Jiangsu Province with guidance from the World Bank. It established ratings for factory environmental performance. The State Environmental Protection Agency (“SEPA”), the predecessor to the Ministry of Environmental Protection, subsequently issued non-mandatory guidance encouraging nationwide implementation of this rating system – where implemented, this has helped identify polluting enterprises in different provinces.
• Since 2002, more than 30 provinces and municipalities in China have enacted “open government information” legislation.
• The 2003 Clean Production Promotion Law (and the related 2004 Interim Measures on Clean Production Audits) required key polluting enterprises to disclose information about emissions and other environmental data. This was the first law to require disclosure of factory-level pollution for many facilities.
• The 2003 Environmental Impact Assessment Law (and the related 2006 Measures on Public Participation in Environmental Impact Assessment) required partial public disclosure of Environmental Impact Assessment (“EIA”) documents.
• In 2005, a key State Council document, entitled the Decision on Implementing Scientific Development Outlook and Enhancing Environmental Protection, which set forth guiding principles on environmental protection, stressed the importance of environmental information disclosure, public supervisory mechanisms, and disclosure of enterprise violations of environmental standards, among other things.

The Environmental Information Measures of 2008 built on these experiments. They require environmental protection bureaus to disclose environmental information and to respond to public requests for such. In addition, the regulations require enterprises whose emissions exceed national or local emission standards to disclose pollution information.

Under the Environmental Information Measures, environmental protection departments at all levels must disclose information concerning:

• Environmental statistics and environmental investigative information;
• Allocation of total emission quotas of major pollutants and their implementation;
• Issuance of pollutant emission permits;
• Acceptance of EIA documents for construction projects and the examination and approval status of the EIA documents;
• Collection of pollutant emission fees and amounts paid by polluters;
• Letters, calls and complaints from the public about environmental issues;
• Environmental administrative penalties, administrative reconsideration, administrative lawsuits and enforcement of administrative compulsory measures;
• Lists of heavily polluting enterprises, enterprises that have caused serious environmental pollution accidents, and enterprises refusing o enforce environmental administrative penalty decisions.

Environmental protection departments must respond to requests for information within 15 working days. These obligations are subject to exceptions such as state and commercial secrets and personal privacy.  If applicants believe the administrative agency has failed to fulfil its obligations they may report it to a higher-level administrative agency. If applicants believe the administrative agency has infringed their lawful rights and interests, they may apply for administrative reconsideration or file an administrative lawsuit.

These legal requirements regarding disclosure of environmental information are a step forward. However, the key lies in how effectively measures are implemented.

The NRDC partnered with the Institute of Public & Environmental Affairs (“IPE”), a Chinese research institute, to track the progress of implementing the Environmental Information Measures since they became effective in 2008.  NRDC and IPE studied 113 municipal environmental protection departments to assess progress in implementing regulations. After the first year of implementation, they found average compliance levels were low. Nonetheless, some cities performed well. The study also uncovered innovative practices in disclosure that can serve as a model for underperforming cities.

Different cities are meeting their disclosure requirements differently.

Ningbo, in Zhejiang province, ranked highest in terms of overall performance on disclosure. In 2008, Ningbo disclosed more than 600 documents regarding environmental enforcement and enterprise violation records on its website. Ningbo released all environmental complaints filed in sufficient detail and included the status of each complaint. In response to citizen concerns about emissions from area factories, the environmental protection bureau in Ningbo’s Zhenhai district took steps to improve transparency, including releasing information on emissions of 5 pollutants not currently covered by any standards, establishing a public information display that lists monthly emissions data alongside the applicable standards, working with enterprises to improve monitoring, and holding quarterly briefings to respond to questions from residents and news media. Zhenhai’s environmental officials noted that although these efforts increased their work, they helped resolve concerns from citizens at an early stage so as to avoid conflicts and increased the level of trust between citizens and government.

 Weihai, a city in Shandong province, captures real-time monitoring data for key enterprises and water treatment plants across the city, and discloses a monitoring database that provides daily reports with hourly data. The frequency of this reporting is the highest in the country.

 Wuhan, a city located in Hubei province in central China, created a website that provides the public with searchable emissions data for a given day or time period. The public can choose a point source, and then select the pollutant to be tracked. In addition, the website also provides real-time video of the waste treatment facilities, discharge pipes, or emission stacks at certain sites.

 Fuzhou, in Fujian province, set up an online “Call Center” database that allows the public to make various information requests to the Mayor. The website will post the public inquiry and the results will be handled by the corresponding department. The public can search the information by time, type of appeal, and processing status.

Hefei, a city in Anhui province, in response to our request for information, publicized on its website a list of enterprises in violation of rules and standards during September 2008 and provided related links so that the list could be accessed by the public.

Members of the public now make information requests on Environmental Information Measures. For instance, a Shanghai lawyer sought government information regarding the polluted Huai River. The lawyer contacted the provincial environmental protection bureaus in Henan and Anhui provinces to retrieve the names of the enterprises that were polluting the river. The lawyer succeeded in obtaining information, and is considering litigation against those factories violating environmental regulations.

The yearly reports that environmental authorities are required to prepare regarding their open government information work for the previous year provide information on the information requests received. At the central level, the MEP received 72 requests for information in 2009, mainly concerning EIA, environmental monitoring data, and environmental laws and regulations.

Obstacles to Greater Compliance. The responsiveness of environmental protection bureaus to public information requests and their proactive disclosure of environmental information vary. There are three obstacles to compliance: a lack of capacity, vagueness of regulations and  insufficient accountability for government officials.

(1) Many lower level officials do not understand or are unaware of regulations and are ill-equipped to collect information needed. There is an opportunity to improve disclosure through training and education.

 (2) There is a lack of clarity regarding the scope of disclosure as well as the permissible exceptions, such as commercial secrets, personal privacy and state secrets. In November 2009, the Supreme People’s Court (“SPC”) issued a draft judicial interpretation to clarify regulations and solicited public comment. MEP can also help clarify the scope of information disclosure by developing implementation guidelines for the Environmental Information Measures as soon as possible.

(3) Local officials are not consistently held accountable for failing to comply with disclosure obligations. However, there have been a few cases in which refusals to disclose were successfully appealed. In addition, there have been efforts to hold officials accountable for their performance in meeting their information disclosure responsibilities.

While China is still at the earliest stages of implementing its landmark OGI Regulations and Environmental Information Measures, but these have the potential to be transformative.

Conclusions.  The trend in China toward ever-greater openness in the environmental realm will continue. This needs to become an effective not only a legal set of requirements.

The trend will continue because transparency is an effective tool for solving environmental challenges.  It makes local communities and members of the public allies in enforcing environmental regulations. It facilitates efforts by corporate purchasers to “green” their supply chains in China, to meet consumer demand for cleaner, healthier products, to limit loans to serious polluters and promotes demands by local people for cleaner communities.

Transparency has also been utilized in the energy sector to promote implementation of China’s climate change and energy efficiency effort. China has disclosed the performance of provinces against their interim energy intensity targets in an effort to drive greater competition among jurisdictions. It has begun to develop carbon exchanges and other efforts to monetize greenhouse gas reduction efforts, but these efforts will be hampered if the business community and the public do not believe they have access to quality information. Greater transparency has the potential to spur competition among companies within China to perform better than their peers in meeting government energy targets.