[House Hearing, 108 Congress]
[From the U.S. Government Printing Office]




 
  CLEARING THE AIR: THE HUMAN RIGHTS AND LEGAL DIMENSIONS OF CHINA'S 
                         ENVIRONMENTAL DILEMMA

=======================================================================

                               ROUNDTABLE

                               before the

              CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

                            JANUARY 27, 2003

                               __________

 Printed for the use of the Congressional-Executive Commission on China


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

                                 ______

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              CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

                    LEGISLATIVE BRANCH COMMISSIONERS

House

                                     Senate

JIM LEACH, Iowa, Chairman            CHUCK HAGEL, Nebraska, Co-Chairman
DOUG BEREUTER, Nebraska              CRAIG THOMAS, Wyoming
DAVID DREIER, California             SAM BROWNBACK, Kansas
FRANK WOLF, Virginia                 PAT ROBERTS, Kansas
JOE PITTS, Pennsylvania              GORDON SMITH, Oregon
SANDER LEVIN, Michigan*              MAX BAUCUS, Montana
MARCY KAPTUR, Ohio*                  CARL LEVIN, Michigan
SHERROD BROWN, Ohio*                 DIANNE FEINSTEIN, California
JIM DAVIS, Florida*                  BYRON DORGAN, North Dakota

                     EXECUTIVE BRANCH COMMISSIONERS

                 PAULA DOBRIANSKY, Department of State*
                 GRANT ALDONAS, Department of Commerce*
                D. CAMERON FINDLAY, Department of Labor*
                   LORNE CRANER, Department of State*
                   JAMES KELLY, Department of State*

                      John Foarde, Staff Director

                  David Dorman, Deputy Staff Director

* Appointed in the 107th Congress; not yet formally appointed in 
  the 108th Congress.

                                  (ii)


                            C O N T E N T S

                              ----------                              
                                                                   Page

                               STATEMENTS

Economy, Elizabeth, C.V. Starr senior fellow and director, Asia 
  Studies, Council on Foreign Relations, New York, NY............     2
Ferris, Richard, principal, Beveridge & Diamond, PC, Washington, 
  DC.............................................................     6
Rohan, Brian, associate director, American Bar Association [ABA] 
  Asia Law Initiative, Washington, DC............................     9
Turner, Jennifer, senior project associate for China, Woodrow 
  Wilson Center, Washington, DC..................................    12

                                APPENDIX
                          Prepared Statements

Economy, Elizabeth...............................................    32
Rohan, Brian.....................................................    38
Turner, Jennifer.................................................    44


  CLEARING THE AIR: THE HUMAN RIGHTS AND LEGAL DIMENSIONS OF CHINA'S 
                         ENVIRONMENTAL DILEMMA

                              ----------                              


                        MONDAY, JANUARY 27, 2003

                            Congressional-Executive
                                        Commission on China
                                                    Washington, DC.
    The roundtable convened at 2:34 p.m., in room 2255, Rayburn 
House Office Building, Mr. John Foarde (staff director of the 
Commission) presiding.
    Also present: Selene Ko, senior counsel for commercial rule 
of law; Keith Hand, senior counsel; Andrea Worden, senior 
counsel; Tiffany McCullen, U.S. Department of Commerce; Mike 
Castellano, Office of Representative Sander Levin; and Melissa 
Allen, Office of Senator Chuck Hagel.
    Mr. Foarde. Good afternoon, everyone. And welcome to the 
first staff-led issues roundtable for the Congressional-
Executive Commission on China [CECC] of the calendar year 2003. 
We are delighted that you are here to join us; and our practice 
has been to start on time and end on time, because we 
understand that people have things to do and our panelists have 
things to do as well. We are delighted that they are sharing 
their time and expertise with us.
    Before I introduce our panelists for this afternoon and 
speak just a little bit about the format, I would like to 
mention that the Commission staff will be having its second 
issues roundtable of 2003 next week on Monday, February 3, from 
3 p.m. until 4:30 p.m., so a little bit later, in room 2168 of 
the Rayburn House Office Building. That is the Gold Room. The 
roundtable is entitled ``Ownership with Chinese 
Characteristics, Private Property Rights, and Land Reform in 
the People's Republic of China.'' And as with all of our issues 
roundtables, this session is open to the public and to the 
press.
    The panelists will discuss a range of topics related to 
development and protection of private property rights in China, 
including China's new rural land contracting law, legal 
limitations related to the ownership of land and personal 
property in China, enterprise privatization and access to 
capital markets, and intellectual property protection. The 
panelists will be Jim Dorn, vice president at the Cato 
Institute; Patrick Randolph, a professor of law at the 
University of Missouri at Kansas City Law School; Brian 
Schwarzwalder, a staff attorney with the Rural Development 
Institute in Seattle, WA. And we hope a representative from the 
U.S. Patent and Trademark Office. But his participation is not 
yet been confirmed, so I will mention him in a subsequent 
announcement, I hope.
    My name is John Foarde. I'm staff director of the 
Congressional-Executive Commission on China. Neither the Senate 
nor the House leadership has formally designated our Commission 
members for the 108th Congress. We hope that will happen soon. 
But we expect that my boss, Congressman Doug Bereuter of 
Nebraska, will be chairman for the 108th Congress. And we 
understand from the Senate majority leader's office that 
Senator Chuck Hagel of Nebraska will be the Senate co-chairman. 
So we look forward to working with Senator Hagel as well. The 
other Commissioners have not been named yet, but we hope that 
they will be many of the same ones that worked with us in the 
107th Congress.
    I'm delighted to welcome you to this first issues 
roundtable. We are calling it ``Clearing the Air, the Human 
Rights and Legal 
Dimensions of China's Environmental Dilemma.'' We have four 
distinguished panelists with expertise in this area to share 
their expertise with us and to answer some questions when their 
presentations are finished.
    We are going to follow the procedure that we did last year 
and start in what, in the Senate Finance Committee room, was 
window to wall, and now we are going to go wall to window, and 
start with Elizabeth Economy, the C.V. Starr Senior Fellow and 
Director, Asia Studies, at the Council on Foreign Relations. We 
will also hear from Tad Ferris, a principal in Beveridge & 
Diamond, P.C., Brian Rohan, Associate Director for the American 
Bar Association's [ABA] Asian Law Initiative, and Jennifer 
Turner, Senior Project Associate for China at the Woodrow 
Wilson Center here in 
Washington.
    Our format is that each panelist will be permitted to speak 
for 10 minutes. When there are 2 minutes left, I am going to 
hold up this very elegant sign so you can see and wave it a 
little bit so you can see it, and when you are out of time, 
this second elegant sign, so you can tell that your time is up. 
Some of the points that you miss we will be able to take up in 
the question and answer session. When all four panelists have 
finished their presentations, we will open it up from questions 
from the staff panel here and we will go until approximately 
4:15. So with that, let me introduce Liz 
Economy. Liz, thanks.

 STATEMENT OF ELIZABETH ECONOMY, C.V. STARR SENIOR FELLOW AND 
DIRECTOR, ASIA STUDIES, COUNCIL ON FOREIGN RELATIONS, NEW YORK, 
                               NY

    Ms. Economy. Thank you, John. And thanks to the rest of the 
Commission staff for inviting me to speak here today as part of 
such a distinguished panel. It is a real pleasure, and I am 
especially delighted that the Commission has decided to include 
the 
environment as one of the areas that it is examining in their 
assessment of China and the future Sino-American relationship. 
I am going to focus my remarks on the nature of the challenge 
that the Chinese Government and the Chinese people confront in 
integrating environmental protection with economic development 
and the implications for human rights.
    While China's spectacular economic growth over the past two 
decades or so has provided a significant increase in the 
standard of living for hundreds of millions of Chinese, it has 
also produced a monumental environmental challenge. There has 
been a dramatic increase in the demand for natural resources of 
all kinds, including water, land, and energy. Forest resources 
especially have been depleted, triggering a range of secondary 
impacts such as desertification, flooding, and species loss. At 
the same time, levels of water and air pollution have 
skyrocketed. Small-scale township and village enterprises, 
which have been the engine of Chinese growth in the 
countryside, are very difficult to monitor and regulate, and 
routinely dump their untreated waste directly into streams, 
rivers, and coastal waters.
    Just to give you a few specific statistics, more than 75 
percent of the water in rivers flowing through China's urban 
areas is unsuitable for drinking or fishing. 60 million people 
have difficulty getting access to water, and almost three times 
that number drink contaminated water on a daily basis. 
Desertification, which affects one quarter of China's land, now 
threatens to envelop China's capital, Beijing, and is forcing 
tens if not hundreds of thousands of people to migrate every 
year.
    In terms of air quality, in 2000, China's State 
Environmental Protection Administration [SEPA] tested the air 
quality in more than 300 Chinese cities, and found that almost 
two thirds failed to achieve standards set by the World Health 
Organization [WHO] for acceptable levels of total suspended 
particulates, which are the primary culprit in respiratory and 
pulmonary disease. To identify an overall environmental trend 
for the country, however, is very difficult. Some areas, such 
as Shanghai or Dalian may be moving relatively quickly to clean 
up their environment and to put in place technologies and 
policies to meet the environmental challenges of the future. 
Many other areas, however, continue to evidence worsening 
trends in levels of water and air pollution. Moreover, it is 
clear that China will face new challenges as its economy grows, 
such as that from the growing transportation sector. In 2000, 
Beijing boasted 1.5 million vehicles, roughly one-tenth the 
total in Tokyo or Los Angeles, yet the pollution generated by 
these vehicles equalled that of the other two cities.
    For the region, China's continued economic development and 
weak environmental protection mean rapidly growing problems 
with acid rain, dust storms, and marine pollution. For the past 
several years, in fact, China's dust storms have traveled as 
far as the United States, resulting in a noticeable spike in 
respiratory problems in California. Globally, China is one of 
the world's largest contributors to ozone depletion, 
biodiversity loss, and global climate change.
    Beyond the challenge for the natural environment, however, 
is the impact that environmental degradation and pollution have 
on the health and welfare of the Chinese people. Certainly I 
think the most devastating impact has been that on public 
health. Since the early 1990s, the Chinese Government and the 
people themselves have increasingly begun to associate local 
pollution with local health problems. Along many of China's 
river systems, and particularly the Huaihe River and the Yellow 
River, there are entire towns where the incidence of cancer, 
stillborn births, and developmental delays is far above the 
norm. Even in the suburbs surrounding Beijing, the rice 
produced now evidences high levels of mercury. Air pollution is 
also a leading cause of death in China. The World Bank 
estimates that 178,000 people die prematurely in urban areas 
annually from respiratory disease not associated with cigarette 
smoking.
    Environmental degradation, in particular water scarcity, is 
also contributing to growing numbers of environmental refugees. 
Over the past decade, 20 to 30 million people have migrated 
because of water scarcity or desertification. And over the next 
2\1/2\ decades, another 30 to 40 million are expected. Often, 
these migrants end up living in squalid conditions in cities 
without access to running water or heat. In Taiyuan, Shanxi 
Province, the city leaders considered moving the entire city of 
2.5 million people because of water shortages. Instead, they 
undertook a very expensive river 
diversion project.
    Of course, these types of large-scale public works projects 
may also produce a different kind of environmental migrant, who 
is forcibly resettled, as in the Three Gorges Dam or the just 
launched ``South to North'' river diversion project. Of course, 
such projects happen in every country, but people in China 
suffer additionally from their lack of ability to participate 
in the decisionmaking process leading up to the project, the 
systemic corruption that often prevents them from being 
compensated properly, and the weak legal system that offers 
little redress for the injustices that they 
experience.
    In addition, environmental degradation and pollution are 
costly to the Chinese economy. For example, water pollution or 
scarcity may lead factories to close, crops to be ruined, and 
fish to die. In terms of actual economic costs, the numbers are 
really all over the board, but I think a good middle ground 
seems to be the World Bank's estimate of somewhere around 8 to 
12 percent of GDP 
annually.
    Taken together, these social and economic problems also 
contribute to popular unrest. For example, in October 2001, 
hundreds of farmers demonstrated against a factory in Kunming, 
Yunnan Province, for poisoning their crops with arsenic and 
fluorine. No one would buy the farmers' grain. Even though the 
factory possessed the necessary pollution control equipment, it 
believed it was simply too costly to use.
    While there are no good overall figures as to how 
widespread such environmental protests are, we do know that in 
the late 1990s, the Minister of Public Security stated that 
environmental pollution was one of the four sources of social 
unrest in the 
country.
    So we can see that the Chinese people, in many regions of 
the country, lack the basic human rights to access clean water 
and clean air, the right to participate in the decisionmaking 
processes that will affect their welfare, and the right to fair 
adjudication of environmentally related disputes.
    Having shared a bit about the nature of the environmental 
challenge that China faces, I want to spend a few minutes 
talking about what the government is actually doing to respond 
to these challenges.
    First, it is important to remember that China, like all 
countries, is facing a range of challenging social issues, 
including HIV/AIDS, which I know this Commission has already 
discussed, rising unemployment, growing drug use, and an almost 
non-existent pension system. All of these make demands on the 
leaders' attention and the country's resources. I would argue 
that the environment has certainly risen on the agenda of the 
leadership. This is evidenced from the steadily increasing 
levels of central investment from 0.8 percent of GDP during 
1996 to 2000 to an anticipated 1.3 percent during 2001 to 2005. 
However, Chinese scientists themselves say the country should 
be spending around 2.2 percent of GDP merely to keep their 
environmental situation from deteriorating further.
    There are, however, some important changes afoot. First, 
China has worked assiduously to court international assistance, 
in financial, technological, and policy areas. Indeed, China is 
the largest 
recipient of environmental assistance from the World Bank, the 
Global Environmental Facility, the Asian Development Bank, and 
Japan. Multinationals are also beginning to play an important 
role not only in transferring the best technologies but also in 
supporting environmental education and other such activities. 
One case that I will note is that of Royal Dutch Shell, which 
is the lead multinational in the consortium working with 
PetroChina to develop the 4,000 kilometer west-to-east pipeline 
to bring natural gas from Xinjiang to Shanghai. Even though the 
joint venture contract has yet to be signed, Shell hired the 
environmental consulting firm ERM to undertake an in-depth 
environmental impact assessment, and hired United Nations 
Development Program [UNDP] to do a social impact assessment. 
This is another way in which multinationals can also improve 
the environmental practices of their Chinese counterparts.
    A second conscious strategy of the central government has 
been to devolve responsibility for environmental protection to 
local officials. This has produced what I call a patchwork 
quilt of environmental protection, with some local officials, 
generally in wealthier areas with more international 
investment, working proactively to address environmental 
degradation, while others simply do not have the resources. 
Shanghai, for example, has been investing 3 percent of its 
local revenues in environmental protection, and there has been 
talk of increasing this to 5 percent, while Sichuan only 
invests around 1 percent. The question for these poorer areas, 
which remain the vast majority of the country, is whether they 
can or will take action before irreparable damage is done to 
their water or land resources.
    Third, Beijing has permitted, and in some cases encouraged, 
the establishment of non-governmental organizations [NGOs] and 
active and investigative media and more proactive individual 
action. More than three-quarters of Chinese citizens in a 
recent survey indicated that they received most of their 
information about the environment from television and the 
radio. In sometimes limited and sometimes extremely significant 
ways, this activity is changing the face of environmental 
protection in China. There has also been very significant 
progress and development in application environmental law, but 
I know that Tad and Brian and Jennifer are going to discuss all 
of these extremely interesting things in depth, so I am not 
going to say any more.
    Let me just conclude, then, by noting that while 
environmental pollution and degradation in China clearly have 
deleterious effects on public welfare, the current system 
denies the Chinese people the right to directly challenge 
government policy in many ways. 
The environment has also become an important arena for 
addressing some of the human rights challenges I mentioned 
before. 
Developing a legal system, for example, contributes to greater 
transparency in the government and society, may afford people 
the opportunity to have input into the decisionmaking process 
by publicizing environmental laws for public comment before 
their adoption, and provides the opportunity for a fair hearing 
when rights are abrogated.
    Non-governmental organizations provide a new form of social 
organizations to agitate for change through quiet lobbying and 
pressure, and could, in fact, become a focus for much broader 
political discontent over the time. The environment therefore 
is an arena in significant flux with great potential to have a 
transformative effect on the future economic and political 
situation in China. Thank you.
    [The prepared statement of Ms. Economy appears in the 
appendix.]
    Mr. Foarde. Liz, you are a pro at this clearly, because you 
came in right on time. And I am grateful, and so are your 
fellow 
panelists.
    We will move on now to Richard Ferris, better known as Tad. 
Tad is an attorney specializing in international environment, 
health, and safety issues, with a focus on China. He is an 
expert on environmental health and safety law, and lawmaking in 
China, and advises the Chinese Government entities and 
transnational corporations on these levels. Tad, welcome, and 
thanks for your help.

 STATEMENT OF RICHARD FERRIS, PRINCIPAL, BEVERIDGE & DIAMOND, 
                       PC, WASHINGTON, DC

    Mr. Ferris. Thank you, John. Thank you also to the rest of 
the staff members of the Congressional-Executive Commission on 
China for allowing me to participate in this important 
discussion today. And if you will excuse my hoarse voice, I 
just returned from China yesterday so I am still a little 
travel weary.
    Liz's discussion really provides a substantial backdrop to 
a lot of the lawmaking initiatives that are underway currently 
in China. In the next 10 minutes, I will try to give the 
Commission and the other participants an overview of some of 
the significant developments in the environmental lawmaking 
area as well as some of the substantial challenges that China's 
lawmakers are facing currently. To begin with the current 
challenges, it is important to note that, at the 10,000 foot 
level, when you are looking at the development of Chinese 
environmental laws, if you had an accurate list of all the laws 
that have been issued in the area of environmental protection 
to date, it would represent a daunting catalog. There are over 
2,000 environmental, health and safety standards that have been 
issued to date. Many of these, of course, are not widely 
available to the public. Solely covering environmental, health, 
and safety standards--as opposed to other legal documents--that 
number is quite substantial. I think the important thing for 
the Commission to understand is to look, when you are on the 
ground in China, at how these legal measures are really brought 
into play and how they affect environmental governance within 
China, including how they change behavior within the regulated 
community.
    In terms of recent history, understanding the challenges to 
implement China's environmental laws is quite important. For 
example, within the State Administration for Safe Production, 
Supervision and Management, an agency which deals with issues 
related to toxic chemicals, et cetera, which is an important 
aspect of environmental protection, there are currently four 
senior officials that have responsibility for a wide array of 
industry issues, from nuclear power to tobacco, to 
petrochemicals to general chemicals management. These 
individuals also effect a subject of possible future Commission 
discussion--that of worker health and safety. But key in any 
discussion of China's environmental law implementation 
challenges is an understanding that these four individuals 
often must respond to mining and other workplace accidents. In 
the first 9 months of 2002, there were over 100,000 deaths 
largely resulting from mining accidents in China. And that is 
considered a lower number than in previous years.
    That being said, understanding that these four individuals 
may have to drop their activities in other key areas and 
respond when those accidents occur, and are increasingly 
responsible for making sure that the accident number goes down 
even further, makes it perhaps more comprehensible why the 
officials aren't able to bring the full array of resources to 
bear on the development of other environmental protection 
measures. So, you have situations in China which you may have 
regulations that are issued and enter into effect but that 
cannot be implemented. For example, in the case of the toxic 
chemicals regulations that I mentioned, the application forms 
that companies need to fill out in order to receive their 
operating permits or their chemical management registration 
licenses were not available when the regulations entered into 
effect.
    In this particular case, the toxic chemicals regulations 
entered into effect on November 15, 2002 and the application 
forms were posted on the Web site of the relevant agency in 
January, 2003. With this situation in mind, it is perhaps 
easier to understand that when you represent a transnational 
corporation or another member of the stakeholder community that 
is looking to identify their obligations or the obligations of 
local companies, when those obligations enter into effect and 
what behaviors the obligations require, it is very difficult to 
obtain this information just by looking at a particular legal 
measure.
    Often in China, because of lags in the development of legal 
measures, you are faced with ``working toward compliance'' over 
an 
extended period of time as opposed to confirming you are doing 
the environmentally right thing in China as of the date new 
environmental laws enter into effect.
    Other challenges that stakeholders in China face include, 
at least at the present time, the tendency, with which you may 
be familiar, to draft very broad legal measures. This tendency 
provides the regulators with maximum interpretive flexibility. 
This tendency to 
reserve in the laws interpretive flexibility for authority 
figures, at least in the current evolution of Chinese 
lawmaking, is something that continues to the present time. For 
example, at the local level, if you ask a village head, what 
are my legal duties if I wish to dispose of this heavy metal? 
The village head will generally not go and flip open a State 
Environmental Protection Administration Gazette or Shanghai 
Environmental Protection Bureau [EPB] Register; instead, if 
they do not have an answer, they will likely ask a superior-
level authority figure for guidance. And still, this reliance 
on verbal interpretations that are not memorialized in any 
publicly available written document is the great challenge that 
regulated community members face in China as the country 
evolves from this rule of authority stage to something that we 
perceive as more consistent with a rule of law approach.
    Often, not only personnel deficiencies but also financial 
deficiencies result in the development of laws that provide 
very little compliance guidance. Law drafters lack resources to 
be able to issue the interpretations; they are not able to 
respond to requests for interpretive guidance. Although, that 
being said, it is important to point out that the State 
Environmental Protection Administration at least is among the 
more proactive agencies in terms of providing compliance 
guidance to the regulative community. They have actually 
published a compilation of interpretive letters that actually 
specifies the definitions of certain terms, clarifies 
exemptions, et cetera--something that is very rare still in 
Chinese agency rulemaking. And this is very helpful.
    The next step probably would be to provide this in a form 
that could be readily accessible to anyone no matter where they 
are. Right now, these interpretive letters exist in a book that 
very quickly will be out of print. This would be lost as a 
helpful tool without the kind of resources that they need to 
put that into CD format, et cetera, or gazette format.
    Another challenge is that regulatory authorities in China 
rarely repeal older and/or inconsistent measures after new laws 
are issued. So often you are dealing, even if you have a 
gazette, with a law that is apparently still in force from 1954 
and a new law in 2001, and how do you reconcile conflicts 
between these measures? They do not sufficiently consider the 
role of measures and laws such as trade laws, that relate to 
areas of environmental protection, et cetera, and provide 
needed instructions on the relationships between these laws to 
facilitate compliance.
    Also, even though moves are under way to change this 
practice in light of China's increasing participation in the 
international trade community, including the WTO in particular, 
the Chinese Government still classifies some laws or other 
documents as internal, and these laws are not officially 
disseminated to the public. This is one of the greatest 
challenges, especially to some members of the legal community, 
because we deal in information, we look at information, and we 
scrutinize information. And if it is off limits, it is 
something that cannot be helpful to the promotion of 
appropriate compliance behavior in China. And in one anecdote 
in that regard, I recently requested environmental protection 
standard from a regulatory official in China who sent it to me 
since he had drafted the standard, the standard was promulgated 
and the standard was available in a bookstore in China. It was 
returned to him by the post office because they said that it 
was an ``official document'' and that it could not be sent 
outside the boundaries of the People's Republic of China [PRC].
    So you see, access to law is not only an issue of internal 
coordination within an agency, but also an issue of 
coordination among the many agencies that are acting often 
individually in terms of their understanding of really what are 
China's information access obligations under the WTO.
    And I would close just before questions in saying that my 
20 or more years in China, only 5 years ago, Chinese 
legislators that I have work with would strongly resist any 
foreign--meaning non-Chinese--input into the legislative 
process. It was perceived then as an intervention or a 
challenge to their sovereignty. At present, in converse, most 
Chinese legislators actively encourage the involvement of 
foreign experts in development of Chinese statutes, and I think 
at the grand level this is a very positive change. Thank you.
    Mr. Foarde. Thanks very much, Tad. Very useful. And we will 
return to some of those questions during the Q and A period.
    Our next panelist is Brian Rohan, associate director of the 
ABA's Asia Law Initiative. Brian is an attorney specializing in 
environmental law, and he currently coordinates the ABA's China 
Environmental Governance Training Program. Brian, welcome. 
Thanks for your assistance today.

  STATEMENT OF BRIAN ROHAN, ASSOCIATE DIRECTOR, AMERICAN BAR 
     ASSOCIATION [ABA] ASIA LAW INITIATIVE, WASHINGTON, DC

    Mr. Rohan. Thanks very much. It is truly a pleasure to be 
here. And having spent a lot of time on environmental law in 
China, it is particularly rewarding to see that there is a lot 
of attention being paid to the issue. And there are a lot of 
interesting developments afoot in China, so it is wonderful 
that we all get a chance to talk about what is happening.
    The Asia Law Initiative of the ABA has a few projects going 
in China. We are working on criminal defense, we are working on 
property rights, and so on. But the largest project that we 
have worked on to date is a rule of law and environmental 
governance project. And that is what I want to outline a little 
bit. I will go through some of the interesting highlights of 
that project to offer a window into what is going on in not 
only environmental law but other rule of law and governance 
aspects of our work.
    We implemented this project beginning in February of 2002, 
and placed a pro bono ABA liaison in Beijing, and that person 
has been working with central government authorities, local 
government officials, and various other stakeholders to pull 
this project together. And under the banner of environmental 
law and environmental governance, this project is really 
getting to rule of law and governance issues, such as: ``How do 
citizens access information from governments? How do they 
participate in decisionmaking processes? And how can they 
advocate to defend their legal rights.''
    So we see what we are doing as sort of a Trojan horse 
approach, using environmental law as a substantive theme, and 
then engage the reform-minded community within China.
    What we have done over the course of the last year is, 
first, to form some very important partnerships with SEPA and 
with the Center for Environmental Education and Communication 
within SEPA. We formed a project advisory committee to inform 
the project and direct it in substantive terms. And I mention 
that because it is extremely important when working in China, 
and when one is looking to work on a reform of the system from 
within, to engage central government, to have them brought on 
as partners, not to be coming in from the outside with some 
sort of independent agenda. We found that the support we have 
gotten from people at the National People's Congress, from the 
China Law Society, and then others, has been really 
instrumental as the project has evolved over time.
    So in terms of what we have done, we have conducted three 
training sessions in three separate cities. Chifeng, Wuhan, and 
Shenyang have been the training locations. And we have engaged 
primarily Chinese experts, sort of the cream of the crop of 
environmental law and policy in China, to be our experts and 
presenters, and go out to the Environmental Protection Bureaus 
and the other stakeholders in these three cities, and engage 
them on environmental law and focus on the themes of what 
provisions of environmental law provide governmental 
responsibility to give information, to operate transparently, 
to involve citizens, to give citizens rights and standing 
before government. And the response has been tremendous.
    I will give you a sense of what is going on in Shenyang, 
where we have been conducting one of our follow-on activities. 
The format has been to conduct the training and then do these 
substantive follow-on activities to really highlight good 
governance projects.
    And in Shenyang, when we went up for the training, the 
Environmental Protection Bureau officials informed us that they 
were working on a draft public participation law. So we 
conducted our training with them, and then we went back and 
engaged with them on a series of workshops to get this law 
right. And in the process of assessing the law and talking with 
them about the details of how you set up systems to give 
information transparently to citizens and so on, the draft law 
was published twice in local newspapers. Each time there were 
over 100 comments received back. And not only has there now 
been an interesting competition over the promulgation of this 
law, with the municipal government trying to claim 
responsibility and the Shenyang People's Congress also fighting 
for jurisdictional control of this law, they have all 
collectively very warmly invited us back up to talk about the 
implementation of the law; i.e., ``How are we going to engage 
citizens? How are we going to teach citizens about the their 
rights to get the information, to participate in the 
decisionmaking processes? '' And so on.
    From an international standard, the essence of this 
innocent 
little municipal regulation of Shenyang is profound. It is a 
cutting-edge participatory democracy sort of concept, and the 
relevant officials in the province are asking us back 
specifically to train their citizens so that they can properly 
exert their rights under this law. This is quite encouraging 
and, honestly, extremely exciting.
    In terms of what we have accomplished and where we see the 
project going, we would like to do a lot more of these training 
sessions, focusing very much on Chinese environmental law, 
going out to different cities, doing different kinds of follow-
on activities, be it this kind of public participation law or a 
transparent pollution data base available on the Internet, or 
whatever it may be, in every 
individual city in which we work.
    And then we have also seen a wonderful phenomenon starting 
to emerge, and that is, public interest lawyers are catching on 
that the environment is a wonderful theme. And every time I go 
over to China, I am meeting more lawyers, and it is not 
uncommon for one of them to pull a little bottle of water out 
of a plastic bag, and, you know, the color of it is not exactly 
inviting. This sample is something that was drawn from a 
municipal well, and they are in conversations and working with 
local government and considering filing a lawsuit and so on and 
so forth. There is a lot of legal movement in the environmental 
law sphere right now. And, as Tad 
mentioned, a lot of the laws are ambiguous and there is a lot 
of uncertainty. It is by no means well-trodden legal practice 
at this point. But I think that is what excites the Chinese 
lawyers. They see that there is a real opportunity here, and 
there aren't a lot of sectors of the law in which you are able 
to test the bounds of tolerance and test your ability to 
recover damages for citizens who have been aggrieved or damaged 
by governmental actions. So it is an 
exciting, dynamic area right now.
    We are funded by the State Department in this project, and 
we were funded for 1 full year and are hoping to continue this 
kind of work. I mean, obviously in Shenyang, it is sort of at 
the first step right now. And to roll this out and do it in 
more provinces and support the advocates in the way that they 
really need the support right now is a much longer-term 
prospect. I mean, not that I need to bore us all here with the 
minutiae of funding issues and so on, but it is something that 
we hope will be able to expand and continue, because the window 
of opportunity is there. Environmental law has a certain 
political space that other sectors of reform aren't enjoying 
right now. It is no surprise that environmental law is getting 
approval of the central government and that we are going out 
and finding reform-minded individuals in the local EPBs. This 
is packaged as perfecting the environmental law system, and as 
a result, we are not ruffling the feathers that could be 
concerned otherwise when you have a project where an American 
organization is coming in and bringing new ideas along with it.
    To give a couple of other perspectives on it, in terms of 
why the Chinese are participating in this project, I think it 
is very much the sense that there is the political space and 
that this project is accomplishing things, and that they have 
an opportunity to be a part of something that is the leading 
edge of a new kind of legal practice in China. And there is a 
sense that the rule of law is almost inevitable, and this 
project may be one of the ways in which windows into that new 
world of rule of law are possible.
    And, in something of an anecdote as well, as Americans we 
tend to think of the American Bar Association and quickly think 
of 
lawyer jokes and so on and so forth. But for the Chinese, there 
is tremendous cachet in working with the American Bar 
Association. They remind me that we are a serious organization 
with 400,000 members, et cetera, and so forth, and they enjoy 
being part of something that is very prestigious. So that has 
been an interesting thing, as well as sort of a reminder for 
me.
    And the project is also very inclusive. In terms of our 
working style, we have taken great pains again to involve the 
central government, have them participate as members of the 
Project Advisory Committee, and so on. By engaging the Chinese 
officialdom, we have ensured that we have maintained the 
political space as the projects evolve. And I think that has 
been important for us.
    There are other issues here. You know, ``What does this all 
mean for the potentially burgeoning NGO community? '' I frankly 
don't see the NGO community blossoming in a way that would be 
recognizable to Western eyes any time soon, but the legal 
reformers are there. We are finding them in the local 
government, we are finding them in the private law firms, we 
are finding them doing NGO-style work in academia. So it is 
just a matter of continuing to work with them and empowering 
them wherever they may be, and not worrying about the fact that 
they aren't organized as an NGO. The energy is there. The 
potential for change is there. So long as you are working on 
the right substantive areas. And I again would come back to 
that political space issue.
    So in terms of the lessons learned from the U.S. approach, 
seeing, the devastation of the environment being so clearly and 
widely understood throughout China, and Tad describing some of 
the dynamic aspects at play here in the environment right now, 
it is a wonderful area. It is a perfect sector in which to 
work, and we are hoping to continue at it. Thank you very much.
    [The prepared statement of Mr. Rohan appears in the 
appendix.]
    Mr. Foarde. Thank you, Brian. It sounds like very exciting 
work indeed.
    All of our panelists this afternoon are very distinguished 
in this interesting area, but here in Washington when we start 
talking about China and the environment, the first name on our 
lips is the next panelist, Jennifer Turner. Jennifer is senior 
project associate for China at the Wilson Center. She 
coordinates the Working Group on the Environment in United 
States/China Relations and the Environmental Change in Security 
Project, and is editor of the China Environment Series. 
Jennifer, thank you very much for 
coming.

         STATEMENT OF JENNIFER TURNER, SENIOR PROJECT 
   ASSOCIATE FOR CHINA, WOODROW WILSON CENTER, WASHINGTON, DC

    Ms. Turner. Thank you. We also have a svelter name now. We 
are the China Environment Forum. And actually, because I do 
this work, I was obviously thrilled that you were putting on 
this panel and I was excited that you would invite me to speak. 
In the course of my work in putting on meetings and putting out 
publications, I have gotten to know a lot of folks who I call 
``eco-entrepreneurs'' in China: Government, NGO, academic, and 
sometimes even business people who are pushing for better 
environmental quality in China, and maybe sometimes pushing the 
envelope on what NGOs can do.
    In fact, I have to say, and I guess you too Brian, we are 
working in one of the bright spots in China. And for me, I have 
had a lot of contact with Chinese NGOs, and so for me, mine is 
more of a ``glass half full'' kind of comment today. And I 
did--maybe because I used to be a professor--I arranged my 
points 1, 2, 3, 4. I have major points, and so if I don't get 
through all the details we can do it in the Q and A.
    But the biggest point, to reiterate some of Brian's 
comments, is that the Chinese Government has opened up a 
political space for environmental protection activities, and 
that has enabled what I see as an impressive--I know they seem 
invisible--but really an impressive growth in independent NGOs, 
but also in activities by universities, government research 
centers, student groups, journalists, and my favorite--
government-organized NGOs [GONGOs]. And when you look at the 
Chinese independent NGOs, you have to see them as part of a 
larger movement of all these different groups getting active in 
this area.
    I see independent Chinese environmental NGOs at the 
forefront of civil society development in China. They were 
first, and they have done more experimentation than other 
groups, and I think they are a good model.
    On the journalist side--and because there are a lot of 
journalists who work in environmental NGO groups, I kind of see 
them together sometimes--environmental journalists enjoy more 
freedom in pursuing their stories than other beat reporters, 
and I think they are quickly becoming a force pushing for more 
environmental awareness and investigations of local problems; 
not as much criticizing national policies and government 
agencies, but at the local level I think they can be an 
important force to look at.
    In the short term, the future of ``green'' civil society in 
China, I think, is more an issue of improving the capacity of 
these organizations and less an issue of political space. They 
have got some of the space. They now need to fill it up, 
because it is not all being used as effectively as it could be, 
which is actually an opportunity for international NGOs, and, 
conceivably, the U.S. Government in supporting NGOs. An example 
is USAID supporting NGO-business partnership development in 
South and Southeast Asia. There are a lot of opportunities for 
that kind of support in China.
    So there is growing political space for NGOs and others. 
The government has opened up opportunities for these State and 
non-state sector groups to operate. And individual greenies 
were the first to register. Now, registration is a bit of a 
headache in China, and there are some details in the notes I 
gave you, and I can answer more questions on it. It is a real 
headache, but actually my eco-entrepreneurs find other spaces 
to operate. They form nonprofit corporations, Internet groups. 
Other types that don't have to register; they are just kind of 
there, such as low-level volunteer groups. A bird-watching 
group doesn't seem that dynamic, but I have actually met some 
pretty dynamic bird-watching groups that are making some 
changes at the grassroots level. Students also get involved in 
activities. I think a lot of these environmentalists that I 
have met feel that they are inspired by the fact that a lot of 
State sector groups, the GONGOs and the universities and the 
research centers, are going after international grants for the 
environment and doing a lot of projects that look like NGO 
work, so they feel like that they can move into that space as 
well.
    There are approximately 50 environmental groups that are 
registered with the government. Fifty doesn't sound like a lot 
in China, but again I think there are hundreds--I know that 
there are hundreds of environmentalists doing work in other 
forums. A lot of the GONGOs in China, have gone ``green.'' It 
helps them, they can kind of download jobs from government 
agencies and attract international funding. They are probably 
major competitors for a lot of Chinese independent NGOs for 
some international funds. What is interesting, though, is that 
some of these GONGOs, like the Women's Federation groups that 
are doing ``green'' work, they are being weaned off central 
funding. So eventually a lot of these GONGOs are going to 
become independent NGOs in the future. And that is a trend to 
look for, because they will be independent groups someday, 
albeit with close government connections.
    Student environmental organizations have exploded in 
number: 22 in 1997, to 184 today, and they are spread all 
across the country. They do education, waste reduction, 
environmental monitoring work both on and off campus. And they 
have been very good at networking among themselves, even better 
than a lot of NGO groups are, I have found. And they are 
producing future environmental activists. I made the bold 
statement that environmental groups are in the forefront of 
civil society. I think they really do inspire other groups, 
because they were first; they actually registered and 
succeeded. They started doing activities. They partnered with 
international organizations, got international funds from U.S. 
foundations, foreign governments, or multilateral 
organizations.
    To me, the most striking point about this small NGO 
movement is that when NGOs partner with international groups, 
international NGOs create new horizontal partnerships, where 
you will have foreign and Chinese NGOs working with local 
government and local research centers. For those who know 
China, you don't generally see this kind of cooperation 
horizontally; and, similar to ABA's rule of law project, there 
is an opportunity here. The problems are so severe in the 
environmental sphere that everybody realizes that we must come 
together. So, that is what I find a 
particularly exciting trend.
    Most NGOs do undertake activities that are considered 
safe--public education, surveys on endangered species. But you 
do have some groups, particularly professional groups such as 
lawyers. Someone who works with Brian here created an NGO that 
gives free legal assistance to pollution victims, helping the 
whole legal system do its work. I was amazed that he did this 
work, but he is not getting into any trouble partnering with 
other organizations. And there are other types of examples that 
I can give you as well.
    I think that by being in the safe area of public policy and 
by being nonconfrontational, these ``green'' NGOs have been 
given the freedom to do their work; but they are not notable 
just because they ``exist'' and they are doing environmental 
work, but because they are exploring the possibility of 
advocacy in China, and that is where they become a good model.
    Environmental journalism in China developed in a distinctly 
Chinese way. A lot of the increased environmental reporting 
started from the top. The National People's Congress said, ``We 
need more environmental reporting,'' so they set up a campaign, 
and in 1990 there was a command post up in Beijing that rallied 
reporters and commanded that they do reporting in this area.
    But a lot of journalists found that this was a very 
interesting area to report on, and when combined with upper-
level sanction, they have a lot more freedom. Local governments 
must talk to them. I have met some of these reporters and they 
say that they have a lot more access than they might have 
otherwise.
    TV stations and radios have growing programs. On the radio, 
it is striking to me that they have hot lines and more exposes 
on local government pollution violations. And there is also an 
intriguing cross-fertilization between the NGO and journalist 
communities. A lot of journalists volunteer or they create 
environmental NGOs. And some journalists are also aware, 
similar to the problems with the NGO communities, that they 
lack capacity. You don't want to have just activist 
journalists, and so it is kind of unbiased. And so they know 
they need to improve their capacity in terms of being more 
unbiased, but also in understanding the scientific background 
of the issues. So they have created their own kind of internal 
NGOs where they have networks and salons to help each other in 
doing their work.
    In the short term, as I said in the beginning, the 
expansion of ``green'' civil society is going to depend on the 
NGOs improving their capacity. And now there is the obstacle of 
the official registration that will have to change, and the 
Chinese Government has been considering maybe changing the 
registration requirements. But it is meant to be a little bit 
difficult, because the government is protecting its own GONGOs 
and is a wee bit unsure about this new sector in China.
    As I have said, the environmental sector has been given a 
fair amount of leeway. But funding challenges also exist, of 
course, and plague a lot of groups, which have become reliant 
on international funding, something I think in the long-term 
could be a problem. In the short term this is OK. That's my 
personal opinion. But the fact that they haven't yet developed 
membership systems--and I think that is a capacity issue--
raises the question, ``how do you develop membership? '' The 
Chinese public asks, ``I give you money to do this? '' And so 
the new NGOs are trying to manage these kind of organizations. 
With low salary, people don't stay, and you lose your 
institutional memory.
    There is also not enough networking across sectors. And Liz 
has made me think about the health problems in China. I think 
you really need to see the environmental groups and the health 
groups working together, but they don't do that yet. And I 
think that there is a lot of potential with international NGOs 
and a lot of other governments. The Europeans, in particular, 
have been doing some NGO capacity-building work. And I really 
think this would be a good opportunity.
    I like thinking in terms of capacity building to strengthen 
their environmental groups. You don't build civil society; you 
build organizations that function well, and then who knows what 
goes on from there? But I think with the capacity building 
focus, there are about 60 international NGOs that are operating 
in China. Most foreign governments have pretty extensive 
environmental programs. The U.S. Government, as you know, 
doesn't do as much in China--particularly in the NGO sector, 
more government-to-government work. And I think that there can 
be a lot done to help them use that space. And I'm going to 
stop.
    [The prepared statement of Ms. Turner appears in the 
appendix.]
    Mr. Foarde. Your timing is impeccable. That was 9 minutes, 
59 seconds. Great work.
    We are going to go on to the question and answer session. 
All four of you have given us rich themes to explore. I am 
going to exercise the prerogative of the Chair and ask 
questions and hear the answers for about the first 5 minutes, 
introduce my colleague next to me to carry on, and then the 
other members of the staff here. We will try to keep it to 5 
minutes each so that everybody gets a chance to ask questions, 
and then we will do as many rounds as we have before 4:15 or 
until we are out of steam.
    I guess I would direct this question to all of you, and you 
can step up to it if you would like for however long you like. 
I am interested in the general observation that a couple of you 
made about the environment and environmental issues having more 
political space in China with the government and the Communist 
Party than other issues, particularly human rights issues. Tell 
me why you think that is, and whether there are any lessons 
there to be learned that we might apply to other parts of 
Chinese public 
discourse.
    Ms. Economy. I will start with a little bit of history. I 
think there is a historical component to this in the sense that 
in the 1992 Rio Conference, which was the United Nations 
Conference on 
Environment and Development, half of what went on at Rio were 
negotiations on climate change and biodiversity, formal 
government-to-government talks. The other half of what went on 
was in the non-governmental sector. And here China was 
embarrassed. It was made very clear to the Chinese that they 
could not participate in the same way as other countries 
because they didn't have genuine non-governmental 
organizations. What they had were what Jennifer described as 
GONGOs, which at that time were substantially less 
sophisticated than they are today in fact.
    And after Rio, I know that Liang Congjie, who started the 
first environmental non-governmental organization in China, had 
a discussion with one of the vice chairmen of the National 
Environmental Protection Agency, where that person encouraged 
him in fact to startup an NGO, in part to rectify this 
situation.
    I think also that there has been a recognition on the part 
of the State Environmental Protection Administration that it 
cannot do its job alone and that it needs society to 
participate. It really is so poorly staffed--and Tad has done 
work on this--so poorly staffed and so poorly funded, that in 
order to even begin to address the challenges, it needs to look 
outside the realm of the government. And so it has opened the 
space to these non-governmental organizations and to 
individuals and to the media as a form of enforcement at the 
local level, so that it uses these groups and the media to 
report back to them on what is going wrong.
    And just to support what Jennifer was saying earlier, with 
the media, some of these television programs in China have 
brought the attention of Zhu Rongji to problems in the ``ban on 
logging'' campaigns or reforestation campaigns. That is how the 
central government leaders find out that what they are ordering 
is not being carried out.
    Mr. Ferris. I would add to that, just from my experience 
with the lawmaking process and the development of that process 
in the environmental sector, and why that is currently much 
more robust than, for example, the indoor environment or worker 
protection area. It has been my experience and that of my 
colleagues that I closely work with that currently a lot of 
government officials perceive that having a ``green'' 
reputation is something that is sought after very vigorously. 
Environmental protection is something that, one, has placed 
China more in the spotlight on the international stage than 
many other issues. Chinese leaders are going to pick an issue 
of concern to China and when they can choose among labor 
rights, environmental protection, et cetera, they will pick the 
environmental protection issue. Issues of significant 
contamination recently have been identified by Cheeka Peak 
Observatory, et cetera, in North America that is traced back to 
manufacturing operations in China. Reports like that are very 
much taken as an issue of 
concern to Chinese policymakers.
    China has an increasing desire to be considered and 
respected on the international scene. Multilateral 
environmental negotiations constitute one area in which, if not 
in an outspoken fashion, China at least internally within the 
Group of 77 developing nations--much more than 77 now--is a 
leader. And looking more closely at the issue of government 
scrutiny of the environmental sector, I find that often in the 
area of environmental protection laws, the government 
authorities at the highest levels give the rulemakers a little 
more breathing room to innovate, and they look at environmental 
journalists as a means to augment their regulatory monitoring 
capacity.
    There have been numerous instances in which an enforcement 
team from the resource-starved administration goes down to 
inspect a manufacturing facility. Everything looks fine. All 
the environmental protection facilities are in operation, the 
scrubbers are working, looks pretty nice, the effluent seems 
reasonably compliant with national standards, et cetera. Then 
that team goes away, and it is followed up by a number of 
journalists who come in, see that the environmental protection 
facilities are turned off, everything is different. No one is 
wearing their safety equipment. The effluent looks pretty bad, 
even by visual inspection. And then they report back to the 
national team. Often when officials need to work with minimal 
resources, the officials face a ``fight the largest fire'' kind 
of situation when they need to decide where they will go. 
However, in deciding to proceed with an investigation, often 
many bureaucratic signals are flipped that may alert the 
inspection target to the upcoming inspection. And then of 
course, the local facility knows long before the enforcement 
inspection team shows up.
    So, increasingly, China is using environmental journalists, 
and in doing so is giving them a much broader mandate than 
would otherwise be typical of a reporter in China.
    Mr. Foarde. Let us go back to that in the next round, But 
thank you both.
    Mr. Ferris. Sure.
    Mr. Foarde. We are going to follow the practice that we 
used last year; that is, when a CECC staff member has a 
particular expertise or is looking into a particular issue, we 
invite him or her to join us here at the panel table and ask 
questions as well. In this case, I am delighted to introduce my 
friend and colleague, Keith Hand, who is a senior counsel 
working on the macrolevel, national-level legal reform issues, 
who helped set up this panel today. So we are delighted to give 
you the floor for 5 minutes to ask some questions.
    Mr. Hand. Thank you. And thanks for a very informative set 
of presentations today, and your time and expertise. One of the 
themes that I think is coming out in the discussion is the 
level of citizen involvement in environmental law and on 
environmental issues. That is something of great interest to 
the Commission, particularly citizens' use of the legal system.
    Could you please go into a little more detail about what 
types of legal mechanisms are available to the average citizen 
in cases of very serious pollution, whether such mechanisms are 
being put to use, and how effective they are. This question is 
directed to the 
entire panel.
    Mr. Rohan. As a lawyer, I will try to address this 
question. There are, as Tad mentioned, a lot of laws in China, 
but there are great ambiguities in this body of laws. Look, for 
example, at the new Environmental Impact Assessment law. It 
talks about how citizens will have the opportunity to 
participate in some sort of hearing or forum. It doesn't say a 
whole lot more than that. There is no sense that there are 
going to be a certain number of days that elapse after a draft 
document is put out, and then citizens will be able to provide 
written comments, and the things that an American lawyer thinks 
about in terms of administrative procedure. It is just not that 
well defined. So the lawyers, as a result, are working with 
these vague provisions and trying to find out where they can go 
with them, and often they can go very far with them just 
because of that vagueness.
    As an American lawyer, you think, ``Well, there are certain 
evidentiary standards. I need to have a certain showing of 
proof that that effluent caused those ducks to die.'' Using 
very real-life examples of the kind of legal case that is going 
on now. And a Chinese judge isn't looking for this intense 
evidentiary burden. It is almost like there is a bit more of 
``what are the equities of the situation? '' And so that is 
maybe one example of how the Chinese lawyers are seeing that 
they really have great latitude.
    In terms of what might be the proper development of Chinese 
environmental law, I am not sure Chinese environmental lawyers 
would say, ``Well, really what we need is a lot of very strict 
regulation to interpret all of these laws and make it all 
perfectly crystal clear.'' They like having the operating 
space. That is something that is tolerated and is indeed part 
of the legal culture, not only for the public interest lawyers, 
but the judges and the government officials. They all sort of 
operate within the same milieu.
    Ms. Turner. I am not a lawyer, but could I say something? 
This just brings to mind when you think about mechanisms, there 
is a lot of experimentation going on, and one notably is the 
World Bank and its environmental projects. The bank makes 
public participation a requirement. And the Chinese Government 
hemmed and hawed, and went back and forth on this question. And 
what I think will be interesting to see is that this is also a 
way to an experiment. It is a safe way. And so now the Chinese 
want the loans, and so in many World Bank projects there is a 
public participation component. And I don't know if the hope is 
eventually that some of these vague laws could put a little bit 
of meat on it or something.
    Do you want to say anything about public participation? 
That is a very concrete example.
    Mr. Ferris. Well, in terms of the legal basis, Brian 
mentioned the Environmental Impact Assessment law. Often you 
will see layers and layers of laws, and within those are 
specific, very brief provisions that require solicitation of 
comments or opinions on draft measures, or the environmental 
impacts of this activity or project.
    What is needed is more guidance. What I find often in 
dealing with Chinese Government officials, especially at the 
local level where a lot of these activities are initiated 
before they reach the central government attention, is that the 
local officials need guidance. They are very much, I wouldn't 
say afraid, but they are resistant to being a test case for the 
implementation of ``new laws.'' They don't want to be the 
first, and therefore possibly run up against the next higher 
level of authority, because they are 
perceived as doing the wrong thing.
    A lot of the activities that Brian mentioned are moving 
toward this kind of test case. And we are developing this kind 
of understanding, this guidance. But still, there is no 
national guideline for how to approach these issues. For 
example, when they solicit comments on these draft laws, 
there's nothing that says what you have to do with them. My 
colleague who is sitting behind me from the National People's 
Congress, who drafted many of China's environmental laws, 
received thousands of comments on the drafts of laws published 
in the People's Daily, et cetera, but often then it became an 
additional burden on the staff, on the resources of the 
committee within the National People's Congress to pore through 
those and decide which to consider and which not to, and 
without any guidance as to how they were to approach that task. 
It is a good thing that is gaining momentum. But again, we're 
still at a very early stage.
    Mr. Foarde. Thank you all. We are going to move on to 
questions from our colleague Tiffany McCullen, who represents 
Under Secretary of Commerce Grant Aldonas.
    Ms. McCullen. I would like to thank all of the panelists 
for coming and sharing with us today. You have a lot of 
informative information. I wanted to ask Elizabeth, if you 
could follow up on one of the statements you made and open it 
up to the panelists if anyone else would like to answer. Could 
you give any other examples of United States companies being 
involved in environmental cleanup initiatives in China or doing 
things like Shell and BP that you mentioned in your opening 
statement.
    Ms. Economy. I am tasked to think of U.S. companies off the 
top of my head, but I think BP is British Petroleum. I am sure 
there are some.
    Ms. Turner. BP solar. I know BP Solar--I know it's not 
cleanup but they are helping to install some solar energy 
equipment for rural villages in Tibet. I know the BP folks, but 
I am sure that's one thing they have been doing.
    Mr. Rohan. One other example, maybe not right on point, 
Ford Motor Company. Ford has just started selling cars in 
China, but they have been active in China for quite some time 
and have a small grant making program that has been engaged on 
a variety of issues, including environmental, for some time.
    Mr. Ferris. Just in terms of general comments concerning 
transnational corporations from the United States and what 
they're doing in China, I see two significant movements. One is 
that for the most progressive of these companies, the drivers 
are not necessarily the Chinese laws, although they generally 
seriously take those measures into account; it is the corporate 
environmental health and safety [EHS] standards. Often they 
will get into very protracted discussions and analyses of 
details of Chinese law that even the Chinese regulators have 
never addressed and they are driven by the fact that, for 
example, a particular corporate code of conduct will require 
compliance with the letter of the Chinese law even though, in 
reality, you may not be able to find all relevant laws in 
China. Often, a lot of progressive corporate EHS initiatives 
are driven in this fashion.
    Another significant development is that some of these 
companies are getting involved in EHS audits of their 
suppliers. Increasingly, government regulators see this as a 
very significant activity to monitor as a bellwether for 
understanding how local Chinese companies think about things 
such as child labor, environmental protection matters, et 
cetera, because the suppliers may become aware that they may 
not get that next big contract if they fail a particular test 
when the auditors come by.
    Ms. McCullen. Thank you.
    Mr. Foarde. Melissa Allen represents Senator Chuck Hagel.
    Ms. Allen. Thank you for taking the time to be with us this 
afternoon. Something that's been raised here this afternoon is 
the relationship between increasing environmental degradation 
and the effects it's having on overall public health in China, 
and I was hopeful that maybe one or all of you would comment on 
what the central government is doing to formulate an overall 
strategy to address these concerns and perhaps cite policy 
initiatives that may be underway as examples.
    Ms. Turner. The push in Beijing, Shanghai, and Guangzhou 
for lead-free gas and also a little bit of a ``green'' Olympic 
impetus to this as well--also changing from coal heating to 
natural gas heating in Beijing. The people in the cities--the 
leadership in Beijing, too--I mean you can see the sky now in 
Beijing. So I think the whole human health question there was 
big. And a number of universities have been doing studies on 
impact of leaded gas on human health. So that's the first one 
that leaps to mind.
    Ms. Economy. That's an interesting example because it goes 
back to your question. General Motors was actually instrumental 
in pushing for the lead-free gas and worked closely with local 
officials to try to persuade them that this was something worth 
pursuing. And this is an example of how laws develop from the 
local level up in China. So that's a really good example.
    You know, it's interesting, I think a counter example or a 
problem that has emerged is offered by this case that MIT has 
been 
involved in which they have been trying to push for these more 
energy-efficient industries in the northeast to try to get them 
to use more energy-efficient boilers. And when they couldn't 
get these industries to adopt these very simple and inexpensive 
measures, they went to the local public health bureau to try to 
get the statistics to show the degree to which the local health 
is being affected and they thought they would be a natural 
ally. But in fact they wouldn't offer up the local health 
statistics to support their case. So they have really been 
stymied, and I think that's a problem.
    Jennifer talked before about the coordination among 
ministries, and I think the real push is going to come from the 
universities and outside actors in this. I haven't seen very 
much, if anything, that's emanated from the Ministry of Public 
Health or even from SEPA.
    Ms. Turner. Last March I had some folks from United States 
Environmental Protection Agency [U.S. EPA] and the Shanghai 
Environmental Protection Bureau, and they did a 3-year study on 
an energy path and health benefits. And they have done 
extensive studies working with local EPBs--the Shanghai EPB is 
very dynamic and very forward-thinking and an ideal partner for 
outsiders. I met also with local university folk, and that was 
the first time that I had seen that kind of environment-health 
linkage, which I bring up with anyone whenever I can, because I 
think it needs to be pushed a little bit more because it will 
empower SEPA if they can get that linkage.
    Mr. Foarde. Representing Congressman Sander Levin is our 
friend and colleague Mike Castellano.
    Mr. Castellano. Thank you for your informative and 
interesting comments. I want to follow up on the question that 
John started out with, because this issue of space is 
interesting and I think it's something that might be helpful in 
other areas. The word ``space,'' in and of itself, isn't very 
helpful to us. So if you could each explain why you think the 
government is allowing this space. Is it as simple as they 
actually understand that there's a problem and it's useful to 
have this, or is it something less admirable in that they see 
this as not really a threat and so sort of a ``green'' opiate 
for the masses? Those aren't the only two options. And the 
other thing is that you talk about space and there's the space, 
but I haven't really gotten a good sense of exactly how that 
space exists. Besides neglect of some of the things that have 
been happening in other areas in terms of labor rights--you 
know, pick an issue--are there formal mechanisms by which the 
space has actually been carved out?
    Mr. Rohan. Maybe I will give that one a shot. I think 
perhaps there's a bit of ``green'' opiate for the masses. I 
just wanted to be able to repeat that. [Laughter.]
    But in fact, you are on to something, because with the 
environment, everyone is affected. I mean, look at some of the 
other potential issues that get to rule of law, reform and 
societal change, human rights abuses. Certainly not to be 
crass, but there's a small subset of society that is bearing 
the brunt of some very questionable policies, whereas the 
environment is something that everyone can see when they walk 
outside the door in Beijing. As soon as you smell, as soon as 
you can't see the sky on many days, you know there's something 
wrong. And you do not have to have an advanced degree to have a 
sense that this is not good for you and something ought to 
change.
    So the very sort of directness of environmental problems, I 
think, is part of the situation here, and we live in an 
information age in China as well. So these kinds of problems 
cannot be hidden from view, and there is a stirring of civil 
society in all of the forms that we have tried to describe. And 
I think there's a sense that this is a safe outlet, that there 
is some sort of energy building, there's some sort of steam 
that the government has to deal with. And, on the one hand, 
this is able to let off that steam in a safe way, not 
confronting the structure of the political system and not 
taking on labor standards and fundamental human rights and so 
on. But also in the course of it, it's helping environmental 
degradation to be addressed. And as was mentioned, the 
government can't do it all by itself. They realize that they 
need popular support and they have to take their own political 
risks by involving other parties and allowing this political 
space to occur.
    Your second point, how does the political space exist? It 
exists in knowing that your official Chinese partners are going 
to work with you and going to go forward with a workshop, that 
they want you to come back, that people are opening up and 
you're able to do more programming after you've done your first 
several steps as opposed to hearing back that ``OK, we need to 
be very cautious now.'' You feel it in subtle but quite 
apparent ways.
    Ms. Turner. Also it comes down to Liz's comment when she 
gave the quote from the World Bank. It's going to hurt economic 
development and economic development is something that the 
government has placed a lot of its legitimacy on. So, that's an 
important factor. Also in public opinion polls, after 
corruption and economic worries, comes the environment--I don't 
know if they are super big poll watchers, but they are polling 
now in China and they see that people are concerned. And Liz 
mentioned protests and conflicts. I do things on water 
pollution. There are a lot of conflicts over water in China, 
fights about degradation and lack of water. And so it's not 
just all pollution issues. It's economic, and it's an issue of 
stability. And it's--I think it's enough.
    Ms. Economy. If I could add one thing. It would be a 
mistake to leave with the impression that the government 
doesn't see some implicit risk in all of this, and that is 
precisely why they have these regulations and these 
restrictions that Jennifer mentioned, one of which is a 
restriction on setting up branch organizations of these non-
governmental organizations so that you have a giant Friends of 
Nature in Beijing with 700 members, but you can't have a 
Friends of Nature in Shanghai and a Friends of Nature in other 
parts of the country precisely because they are worried that 
there will be a movement of sorts that could develop. And 
they're right to some extent, I think, to be worried about 
this, because if you look at the makeup of a lot of these non-
governmental organizations, they are filled with scholars--some 
of whom are refugees from the Tiananmen era who came to 
environment issues because they looked at them as an outlet for 
their political interests before they knew anything at all 
about the environment. You look at the next generation of 
environmental activists in China, some of whom have been 
trained by organizations like Greenpeace, International Rivers 
Network, these very bold lobbying types of organizations, and 
you can see a real potential for a push for broader democracy 
to emerge out of these organizations. So don't think that they 
don't know that, looking at Eastern Europe and some of the 
former republics of the Soviet Union, things couldn't move in 
that direction.
    Mr. Foarde. We will get another chance at more of this in a 
second. First I would like to recognize our friend and 
colleague Andrea Worden, who is senior counsel, looking at 
grassroots rule of law and legal reform issues in China. She 
just got back from China and I'm sure she's got some questions 
because she's interested in this subject, too.
    Ms. Worden. Thanks, John. I have a question for Jennifer 
and then I would love to hear from the rest of the panel. I am 
curious what other countries are doing to promote environmental 
NGOs and rule of law efforts in China, and what you all think 
the United States could be doing to promote such efforts.
    Ms. Turner. Well, there are domestic NGOs and there are 
some U.S. NGOs and also other foreign governments that are 
doing work. The Canadians have a civil society program that has 
an 
office in Beijing and they do various trainings. They are not 
just focused on the environment though, some nuts and bolts 
management type issues to help. PACT China--I think it's a 
U.S.-based organization. They actually found there is a 
nonprofit organization network, a Chinese organization. So 
there are some Chinese that are also thinking about these 
issues as well. I mean, one example that I can think of--let's 
look at what United States-Asian Environmental Partnership 
[U.S.-AEP] did a couple years back in Southeast Asia. They gave 
grants to the Asia Foundation to help build the capacity of 
NGOs to do partnerships with businesses. It has been a 5-year 
program. The first few years was U.S.-AEP and then it went to a 
private foundation. But it's been a phenomenal project 
throughout South and Southeast Asia. So the NGOs have gotten 
the capacity and have gotten small grants and training to help 
local businesses ``green'' themselves. And that is an area that 
Chinese NGOs are not venturing into. They don't have the 
capacity. And again it could be a little bit sensitive.
    But those are some of the examples. I can go on and on and 
on. Maybe let some of my colleagues here interject something.
    Ms. Economy. A number of multi-nationals like Unilever and 
I think General Motors, but definitely Shell and BP run 
educational programs through non-governmental organizations. 
They partner with them. Sometimes they will have environmental 
essay contests in high schools. They'll sponsor an 
environmental education bus that will take some officials into 
remote areas of the country to set up special seminars and 
educational opportunities for students in those areas to 
understand the particular environmental problems in those 
areas. There are those kinds of efforts going on, too.
    Ms. Turner. Germany, they supported the ``antelope bus.''
    Mr. Ferris. It is also my experience that a number of 
foreign environmental agencies or ministries second members of 
the agency or ministry to Chinese agencies or ministries. The 
secondment is sometimes enhanced with substantial bilateral 
financial support to bring agency representatives to their 
countries. And in so doing, often part of the exchange program, 
so to speak, is to introduce Chinese regulations to public 
participation mechanisms, et cetera, as these exist in the 
country participating in the exchange such as Norway, Germany, 
the Netherlands.
    Ms. Economy. If I could just interrupt, the German 
Government brought over a journalist from China to look at 
battery recycling in Germany, and she went back and did a 
program on that and that spawned a number of individuals in 
China to undertake battery recycling.
    Mr. Rohan. I think part of your question is what could be 
done, what is out there remaining to be done. And Jennifer 
mentioned many times capacity building, capacity building, 
capacity building, whether you are looking at the universities 
and the role that they can play or the lawyers, the bar, the 
judiciary. There's so much to be done in a variety of sectors, 
just looking at the purely legal aspect of how you make the 
legal system function effectively so that citizens have a 
reasonable expectation of having their legal claim resolved 
effectively. And some of that will happen indigenously as 
``gonzo lawyers'' do their thing, not describing anyone in the 
room of course, but there is a certain element of needing to 
bring in new ideas and facilitate that kind of development 
capacity.
    Mr. Foarde. We will now hear a question from our friend and 
colleague Selene Ko, who is senior counsel for commercial rule 
of law and knows about these things as well.
    Ms. Ko. Thank you very much. I would like to thank you, as 
everyone else did, for your insightful comments. I have a 
question concerning the impact of the WTO on environmental 
protection in China. I think this first question goes to Tad, 
but then to anyone else who would like to answer. In light of 
the WTO rules that require transparency and require at least 
some sort of formal mechanisms for input from the public into 
formulating rules, regulations and laws, including 
environmental rules regulations and laws, how familiar are the 
central authorities that are responsible for these areas with 
their WTO obligations and how familiar are the local EPBs with 
their obligations? Do you feel that the WTO is acting as a 
driving force in improving environmental laws and protection in 
China and will it do so in the future?
    Mr. Ferris. Thank you. I assume you have my article that 
provides a snapshot of what's happening in this area. But at 
the fundamental level, at the central government, officials are 
fairly well aware of the significance of WTO compliance and it 
is, although it's often overly discussed at a superficial 
level, a discussion topic that increasingly moves agency 
resources into the area of publication, of providing better 
notice. I think there is a fundamental disjoint between what 
actually has to be notified, i.e., what kind of laws. I think 
that often laws related to economic areas, e.g., joint venture 
provisions, tax provisions, securities regulations, et cetera, 
are what officials first think of in terms of what needs to be 
notified under WTO requirements. I think that laws affecting 
trade, including those in the environmental, health and safety 
area, are not fully understood within the Chinese bureaucracy 
as triggers for WTO notification. I believe that when Chinese 
officials receive a WTO member complaint, they increase their 
understanding about the intersection. Why are the members 
complaining about our new laws on genetically modified 
organisms/biosafety? Why are the members concerned about 
mercury content limits in batteries? Where did this come from? 
We're supposed to notify that, too? That understanding among 
Chinese lawmakers is increasing, but still at a nascent level.
    I think the next challenge that Chinese lawmakers face is 
the capacity issue that Brian mentioned. If they do have to 
notify all these laws, who's responsible, who in the agency is 
going to be designated as the notifier? Who has the authority 
to submit this to the Committee on Technical Barriers to Trade 
or the Committee on Sanitary and Phyto-sanitary Measures? And I 
think that process is still in the making. Even the more 
progressive agencies have only recently started publishing a 
gazette. You will notice under the agreement on China's 
accession to the WTO, that China must set up a centralized 
gazetting mechanism that will allow ready access by members to 
all of their laws. Well, this is still quite a long way off in 
coming. You see precursors of that when you look at the Chinese 
Government Web sites that now provide occasional notification 
of draft laws or recently promulgated laws.
    I think the real issue is whether all the laws are publicly 
issued. Right now, they are not. And I think that this is 
partly the result of the fact that on the capacity side the 
implementing laws are not developed and issued at the same time 
as the enabling statute or regulation. You'll have the 
regulations that I mentioned, but then all the implementing 
measures will trickle out slowly thereafter.
    Additionally, as Jennifer and Brian mentioned, the 
activities of all agencies often are undertaken in isolation. 
There's no general coordinating body that will look at the 
rulemaking work of the State Environmental Protection 
Administration and then that of the State Development and 
Planning Commission and say ``You're issuing the same type of 
laws. Coordinate and make this work consistent.'' Or ``You're 
issuing laws that are related. Both of you need to publish 
these laws.'' There is no senior level government authority yet 
that has set such a coordinating process in motion, and I think 
that's what needs to occur. I don't think that the agencies 
will be incentivized to do this work on their own without a 
senior-level authority taking responsibility for this action.
    Mr. Rohan. If I could add, among the rank and file 
environmental law community within China, WTO is an interesting 
buzz word. As Tad mentioned, there's a lot of work to be done 
and a lot of regulation that needs to be put into place in 
order to meet those WTO obligations. What one would wonder is 
if the Chinese knew what they were getting into. But it's going 
to be a very long process, indeed, to put all that in place. To 
return to the ``gonzo lawyers'' I was mentioning before, those 
sorts of folks, they're not thinking WTO. They're thinking that 
there are some very interesting Chinese laws and there are some 
very interesting areas to explore. And the WTO may one day 
become part of that legal equation, but it's not happening yet.
    Ms. Economy. Let me add quickly that the Ministry of 
Foreign Trade and Economic Cooperation has undertaken a massive 
effort to address the problem that Tad raised about interagency 
coordination with the Ministry of Agriculture, the State 
Environmental Protection Administration and I think about six 
other agencies to try to discuss how to coordinate in order to 
meet the environmental obligations and demands of WTO 
accession, but I don't know how far it has progressed.
    Mr. Ferris. Right now, it's on hold until the National 
People's Congress decides which agencies are going to be 
disbanded or reorganized. Reorganization is in play.
    Mr. Foarde. Let me direct a question to Jennifer Turner, 
please. We were talking about GONGOs and about independent NGOs 
in China and capacity building. How are independent NGOs in 
China funded? How do they get money to operate?
    Ms. Turner. A lot of the larger NGOs are getting grants 
from United States or European foundations. There are some 
small grant programs. Global Green Grants in Colorado has a 
couple of people in China seeking out grass roots greenies, 
giving them really tiny grants. But then there's also foreign--
the Canadians and the Dutch--the Dutch--there was another 
question--the Dutch, it's not fully constituted yet but someone 
from Holland sent me an e-mail and I have to find out what 
they're doing, but they got a lot of money for a huge 5-year 
program. And one of the central foci is NGO capacity building 
in China. So my attention is heightened on this topic.
    Mr. Foarde. As far as you're aware, there are practically 
no 
government regulations or policies that prohibit real NGOs from 
taking grant money from foreign sources?
    Ms. Turner. My thought is no, there aren't any rules that 
prohibit it, so I guess it must be legal.
    Mr. Foarde. Until they decide it's illegal.
    Ms. Turner. What's interesting is that there was a law 
about tax-free donations from businesses to NGOs in China and a 
company did it and then it was, ``Oh, my gosh, we have to 
rewrite these laws'' because it was very difficult for the 
company to do it. And one of my journalist friends is writing a 
little commentary, so I can let you know in a few weeks. But 
that law is being redone so that there is thought that they do 
want to try to encourage Chinese businesses. A lot of the NGOs 
are based on volunteers, and a lot of Chinese that volunteer 
for them give from their own savings. It's pretty ``nickel off 
the sidewalk'' kind of groups. Most of them are getting money 
from international NGOs or international foundations.
    Mr. Foarde. And a little bit from domestic sources when 
it's available?
    Ms. Economy. Not much.
    Ms. Turner. It's very little.
    Mr. Foarde. Talking about capacity building, not everybody 
in the audience might understand, so for the record, it might 
be useful to say what you mean when you say capacity building 
for NGOs. Could you give us a thumbnail of what you mean?
    Ms. Turner. And you can jump in. Some of it is that many of 
these groups were created by an individual, a very charismatic, 
driven person. They had to forge into this new field. And a lot 
of the organizations are very new. And I sometimes wonder would 
the organization exist if this leader actually left. It's the 
same problem that our NGOs faced when they developed in the 
United States. Just learning how to set up your internal 
accounting system maybe because there's not much money. It's 
not that difficult yet, but you do need to learn these kinds of 
things and just managing their time. I tell a lot of my NGO 
acquaintances ``You guys have to learn to say `no' '' because 
they are overwhelmed, because a lot of international 
organizations are looking for NGOs to cooperate with. So they 
get overwhelmed with requests and setting goals. They get 
pulled in different directions, maybe like a lot of us. And 
also just having to learn for example, building up a staff that 
would have skills to do more technical things, like working 
with businesses. And there are a lot of areas--they could do 
environmental education, but could they help a hotel ``green'' 
itself? Do they have that kind of ability? Do they have 
transparency, because if you're going to start taking big bucks 
from some organizations, you're going to have to have 
transparency and have books, know how to write grant proposals. 
So it's kind of like starting from scratch.
    Mr. Foarde. That helps me and leads me to the next 
question, is there anything that the United States Government 
can do to help NGOs in China build their capacity for these 
purposes, environmental purposes, or for others?
    Ms. Turner. As mentioned briefly, the model should be the 
U.S.-AEP and the grant they gave to Asia Foundation. And DOE 
has given grants to some U.S. organizations that have done some 
work with Chinese research centers and NGOs on energy 
efficiency criteria setting and doing some nuts and bolts clean 
building projects. The National Resources Defense Council 
[NRDC] has also been involved in that in China. I fancy it 
would be somewhat politically sensitive if the U.S. Government 
said, ``The United States can't give money directly to NGOs,'' 
but it's the model the U.S. Government has used supporting U.S. 
NGOs to go in and do what they do best. And there are, as I 
mentioned, about 60 international NGOs working in China and a 
number of them like WWF have been there since the mid-1980s. 
You wouldn't be just throwing your money out into the air. 
There are a lot of international environmental NGOs that have 
good experience and Chinese staff. That would be my first 
thought.
    Ms. Economy. One small effort that the United States 
Embassy in Beijing undertook about a year and a half ago now 
was to put together a forum for Chinese NGOs and multinationals 
to get together to try to develop some synergies. There were a 
few successes but not as many multinationals participated as 
you would hope. I think that kind of low key, slightly-under-
the-radar kind of activity would be terrific, and not at all 
sensitive for the Chinese Government.
    Mr. Foarde. Keith.
    Mr. Hand. I wanted to jump back to the issue of citizen 
response to environmental degradation for a minute and really 
look at it from two angles. One, Liz, you looked like you might 
have had a comment at the end of that first set of questions on 
citizen uses of legal systems when we ran out of time. So I 
wanted to give you a chance, if you would like, to expand on 
that issue. And to look at this from a second angle, it sounds 
like lack of coordination and enforcement is one of the big 
problems in the environmental regulatory regime. Tad, you 
mentioned the vagueness of the laws, which leaves space for 
bureaucratic discretion. Is there also a problem with heavy 
handed and unfair enforcement of the laws? Do 
foreign and domestic citizens or entities tend to be treated 
differently? How much of a problem is corruption in this 
process?
    Ms. Economy. I'll start with the first part and that was 
the citizen participation in all of this. And I thought 
Jennifer or Brian would talk about Wang Canfa, who founded the 
first environmental legal NGO in Beijing. He has been cited in 
the New York Times. Everybody has written him up at this point. 
Wang is a very charismatic man who is actively involved not 
only in providing free legal advice and training future 
generations of advocates, but also in pressing lawsuits. And 
Chinese citizens contact him with the goal of getting 
reparations for whatever environmental injustices they have 
suffered. There was a case he undertook where the local ducks 
and fish were ruined from factories upstream. He sometimes has 
had to go to great lengths in involving other experts, such as 
scientific experts, bringing them in, fighting against the 
local EPBs that are afraid to be blamed, but I think this sort 
of mechanism, this ability to go to an environmental non-
governmental organization for legal advice and support is an 
important positive trend for the future.
    Ms. Turner. Remember there is only one of those NGOs.
    Ms. Economy. Again, this process is going to be slow, but 
this is going to happen.
    Mr. Rohan. They are starting up and it is private lawyers 
out of otherwise standard commercial law firms doing what we 
consider pro bono work who are taking this sort of thing on. So 
something is definitely afoot.
    Mr. Ferris. They are given space to operate and to 
represent these victims of pollution because often the 
environmental area is seen as, I guess on the balance of 
things, less likely to create unrest if you resolve these 
problems that the victims have. Whereas, if you look in the 
other area of labor rights and occupational health and safety, 
often what government decisionmakers see is the public support 
or legal representation of workers, and grouping those workers 
together, as something that may incite, as opposed to 
minimize unrest.
    Getting right to your question regarding enforcement of the 
law and whether there are issues of a level playing field in 
China, on the books of course, as you're well aware, foreign 
entities and domestic entities are treated quite equally. On 
the ground, it's often a case of differential treatment, to be 
certain. There are a number of reasons for this, one of which 
being the traditionally held perception that the domestic 
industries need that competitive opportunity to pollute. Of 
course that isn't the general government view of this. But when 
you get to the local level, the first folks who interact with 
those operations on the ground that affect the environment, 
they are grappling with comprehensive issues because they may 
need to show their boss, who is often the head of the 
municipality or the head of the province, that they 
facilitate--and not obstruct--investment. If they go right in 
and resist that investment for environmental or other reasons, 
this act calls into question the very source of the income and 
the overhead for their Environmental Protection Bureau. 
Additionally, the larger--just by their very 
nature--transnational corporations create a big response on the 
regulators' radar screens. These officials would sometimes 
rather walk through the clean halls of a modern state-of-the-
art facility than go to the facility that is literally spitting 
out heavy metals into the drinking water system and deal with 
locally-based Chinese managers who may have longstanding 
relationships with them. Often it's the transnational 
corporation that may have fewer connections with local 
officials that they target first. And in terms of corruption, 
that is something that is an overwhelmingly complex issue for 
government officials. At the national level, there currently is 
a great focus both within the national government and at the 
local level on this issue. There are a lot of great concerns 
over how corruption relates to the national government's or 
central government's ability to control what's happening at the 
local government level. And as you may also be aware, the State 
Environmental Protection Administration has the ability to 
request certain conduct of the local environmental officials, 
but the direct supervisor, the 
direct controllers of that activity of the local environmental 
protection bureau are the municipal government, the provincial 
government, et cetera. And in that context there is a lot of 
hand wringing at the central government level with respect to 
being able to ferret out and control certain unfavored conduct 
that could rise to the level of corruption.
    There have been a number of incidents you may also be aware 
of where local environmental inspectors will go out to inspect 
a factory and they are beaten to a pulp by representatives at a 
local manufacturing facility. That is a great concern of 
national government representatives. If you are sensitive about 
unrest and 
sensitive about a challenge of authority, these activities 
certainly trigger extreme concern within the central 
government. And these events have actually resulted in internal 
orders that reassert national control over such situations, but 
it is not yet something that has been resolved by the national 
government. I believe that these issues of corruption, et 
cetera, or of undue influence, as it also may be termed in 
China, are widespread at the present time.
    Mr. Foarde. Let's take one more set of questions from 
Andrea.
    Ms. Worden. Following up on a point Dr. Economy made 
earlier, I wonder if the panel could address briefly the role 
that environmental NGOs played in other places in Asia; for 
example, Taiwan, Japan, South Korea, in creating space for 
political reform and what that might possibly tell us about 
China.
    Mr. Rohan. To mention quickly an example that is not 
exclusively from Asia but from the Soviet Union and its 
collapse is a very, very telling analog. When there was 
glasnost and there was a sense that there needed to be some 
space created for civil society, it was in addressing the 
environmental issues. And when the Soviet Union ultimately 
broke up, many of the individuals who were at the forefront of 
the environmental movement while still within the Soviet Union, 
went on to pursue other kinds of political activity. So it's 
just a very interesting comparison and I'm sure one that was 
also not lost on the Chinese Government.
    Ms. Turner. In April 2001, the Woodrow Wilson Center with 
Hong Kong University, brought together Taiwanese, Hong Kong and 
PRC environmental NGOs and environmental journalists. And there 
is a report--if you don't have it, we can get it to you--where 
we do some comparisons. Taiwan is probably the example that 
Chinese Government officials would not want to follow because 
the Taiwan environmentalists are a fiery group of people. And 
they were out in the streets before martial law was ended and 
they actually led, a lot of people think, the democratization 
of Taiwan. Some people say, well, the democratization folks 
went to the environmental side, but there's a little bit of 
both, because a lot of 
people suffered from pollution from Kuomintang [KMT]-built 
factories and the KMT wasn't enforcing the laws. So the Taiwan 
environmentalists were rather fiery. But now things have toned 
down a lot.
    There are about 300 environmental NGOs in Taiwan. And 
because they don't have access to international funding, 
they've 
developed very strong membership systems. And they've built 
their own capacity without a lot of outside help. That's what 
was intriguing about bringing the Taiwan people and mainlanders 
together. The Hong Kong NGOs are probably a bit more palatable 
to the mainland as well and similar because they came up 
dealing with a colonial government. Hong Kong environmental 
groups tended to work more with the government, belonging to 
government commissions, advising, and also working with 
business. They have no problem--they get a lot of their support 
from businesses in Hong Kong, so it's an interesting model.
    Ms. Economy. I guess Brian raised the point about the 
Soviet Union and similarly Eastern Europe. There are large 
development projects like the Danube Dam. They can be rallying 
points for discontent. They bring together lots of different 
kinds of opposition. In China already, there have been efforts 
to link environmentalists with labor issues and democracy. The 
China Development Union--the leader has now fled to 
Philadelphia, but first fled to Taiwan and then to 
Philadelphia. But there already have been these kinds of 
thoughts of broader based political change--using the 
environment as a mechanism to push for broader change.
    Mr. Foarde. We're out of time, unfortunately, because we 
could go on. There's so much to discuss. Liz, Tad, Brian, 
Jennifer, thank you so much for sharing your expertise and 
opening up our thinking to all these issues and their human 
rights dimensions today. Also thank you to my fellow panelists, 
some of them who had to go back to work for their bosses. And 
let me say again that the next roundtable will be next week on 
Monday, February 3, in room 2168 at 3 p.m., and that 
information will also be up on our Web site.
    With that, I will gavel this first issues roundtable to a 
close. Thank you all for coming.
    [Whereupon, at 4:15 p.m., the roundtable was adjourned.]


                            A P P E N D I X

=======================================================================


                          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.
---------------------------------------------------------------------------
    \1\ These international pressures include those brought about by 
China's participation in international environmental regimes, the 
desire of many multinationals to ensure that they and their people are 
operating and living in a safe environment, and China's own desire to 
present a positive image when it hosts major international events such 
as APEC or the Olympics.
---------------------------------------------------------------------------
    Much of the burden for environmental protection, therefore, has 
come to rest outside of Beijing and the central government apparatus. 
Responsibility has been decentralized to the local level, with some 
wealthier regions under proactive mayors moving aggressively to tackle 
their own environmental needs, while other cities and towns lag far 
behind. The government has also encouraged public participation in 
environmental protection, opening the door to non-governmental 
organizations and the media, who have become an important force for 
change in some sectors of environmental protection. The international 
community--through bilateral assistance, non-governmental 
organizations, international governmental organizations, and most 
recently, multinationals--has also been a powerful force in shaping 
China's 
environmental practices.
    Still, much remains to be done. The particular mix of environmental 
challenges and weak policy responses means that the Chinese people 
cannot yet claim several basic rights: the right to breathe clean air, 
to access clean water, to participate in the decisionmaking process on 
industrial development or public works projects that affect their 
livelihood, and to secure justice when these rights are violated.
    Without greater attention and commitment from the center, China's 
environment is likely to continue to deteriorate throughout much of the 
country, causing further social and economic distress domestically and 
levying even greater costs on the environmental future of the rest of 
the world.

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

    China's overwhelming reliance on coal for its energy needs\2\ has 
made its air quality among the worst in the world. In 2000, China's 
State Environmental Protection Administration (SEPA) tested the air 
quality in more than 300 Chinese cities, and found that almost two-
thirds failed to achieve standards set by the World Health Organization 
for acceptable levels of total suspended particulates, which are the 
primary culprit in respiratory and pulmonary disease. Acid rain, 
resulting from sulfur dioxide emissions from coal burning, also affects 
over one-fourth of China's land, including one-third of its farm land, 
damaging crops and fisheries throughout affected provinces.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    Economic development has also impinged on China's already scarce 
water resources. Industrial and household demand has skyrocketed more 
than 70 percent since 1980. About 60 million people find it difficult 
to get enough water for their daily needs, and in several water scarce 
regions in northern and western China, factories have been forced to 
close down because of lack of water. In addition, water pollution is 
posing a serious and growing threat to water reserves. A major source 
of this pollution is industrial waste from paper mills, printing and 
dyeing factories, chemical plants, and other small highly polluting and 
largely unregulated township and village enterprises. The result is 
that more than three-quarters of the water flowing through China's 
urban areas is considered unsuitable for drinking or fishing; about 180 
million people drink contaminated water on a daily basis; and there 
have been serious outbreaks of waterborne disease along several major 
river systems. The impact of economic development on water scarcity is 
further compounded by water prices that do not reflect demand, poor 
water conservation efforts, and 
inadequate wastewater treatment facilities.
    China's forest resources also rank among the lowest in the world. 
Demand for furniture, chopsticks, and paper has driven an increasingly 
profitable but environmentally devastating illegal logging trade. By 
the mid-1990s, half of China's forest bureaus reported that trees were 
being felled at an unsustainable rate, and 20 percent had already 
exhausted their reserves. China's Sichuan province--home to the famed 
pandas--now possesses less than one-tenth of its original forests. Even 
the worst examples of deforestation in the United States, such as the 
transformation of Vermont from 70 percent forest to 30 percent forest 
over the past century, are mild in comparison to China's experience. 
Loss of biodiversity, climatic change, and soil erosion are all on the 
rise as a result.
    Deforestation, along with the overgrazing of grasslands and over-
cultivation of cropland, has also contributed to an increase in the 
devastating sandstorms and decertification that are transforming 
China's North. More than one-quarter of China's territory is now 
desert, and decertification is advancing at a rate of roughly 900 
square. miles annually. In May 2000, then Premier Zhu Rongji worried 
publicly that China's capital would be driven from Beijing as a result 
of the rapidly advancing desert. In addition, an average of thirty-five 
sandstorms wreaks havoc in Northern China every year. Year by year, 
this dust has traveled increasingly far afield, darkening the skies of 
Japan and Korea, and even a wide swath of the United States. In 
Beijing, the sandstorms reduce visibility, slow traffic, and exacerbate 
respiratory problems.
    China is also exerting a significant impact on the regional and 
global environment. Acid rain and depletion of fisheries are among the 
most serious regional impacts. Globally, China is one of the world's 
largest contributors to ozone depletion, biodiversity loss, and climate 
change, and it is an increasingly important participant in the illegal 
trade in tropical timber from Southeast Asia and Africa.

   II. WHAT ARE THE SOCIAL AND ECONOMIC COSTS OF THIS ENVIRONMENTAL 
                               POLLUTION?

    China bears several indirect and growing costs from its resources 
pressures: 
migration, public health, social unrest, and declining economic 
productivity.

Migration
    Chinese and Western analyses both suggest that during the 1990s, 20 
to thirty million peasants were displaced by environmental degradation, 
and that by 2025, at least 30-40 million more may need to relocate. 
These migrants are likely to place significant stress on cities already 
seeking to manage migrant populations of more than 20 percent of the 
population in many major Chinese cities. While thus far, 
burgeoning coastal economies have managed to absorb large numbers of 
migrant workers, as tensions have flared in urban areas over recent 
firings and growing unemployment, there have been attempts to 
discourage migration to the cities. In 2001, in Changchun, the capital 
of Jilin province, for example, officials attempted to drive out 
migrant workers by demanding extremely high fees for operating 
pedicabs. The drivers--overwhelmingly migrants who had been forced to 
leave their parched farmland--protested and blocked the entrance to a 
local government 
compound. While this incident was fairly short-lived, if not managed 
properly, a combination of growing numbers of migrant laborers and 
unemployed state-owned enterprise workers could trigger much larger-
scale conflict in urban areas.
    Forced migration or resettlement, as a result of large scale public 
works projects such as river diversions or dams, also is a source of 
social disquietude. In the case of the Three Gorges Dam, for example, 
resettlement has provoked demonstrations involving hundreds of farmers 
who believe they were being inadequately compensated. Probe 
International and Human Rights Watch have joined International Rivers 
Network in monitoring the resettlement process and the local political 
situation around the Dam and have issued several scathing reports 
regarding the corruption that has plagued the resettlement efforts. On 
December 27, 2002, the government also launched the grand-scale south 
to north diversion of the Yangtze River to bring water to Beijing, 
Tianjin and other northern cities at a cost of tens of billions of 
dollars. This will also necessitate the resettlement of two to three 
hundred thousand Chinese.

Public health
    For Chinese citizens, perhaps the most frightening consequence of 
environmental pollution has been the range of public health crises 
plaguing local communities throughout the country. In 2000, the 
Ministry of Agriculture reported that almost 20 percent of agricultural 
and poultry products in major industrial and mining districts and in 
areas irrigated with contaminated water contained excessive levels of 
contamination. Chinese and western health officials have linked water 
polluted with arsenic, mercury, and cadmium to a high incidence of 
birth defects, cancer, and kidney and bone disorders near many major 
rivers and lakes. The World Bank also has estimated that 7 percent of 
all deaths in urban areas--about 178,000 people--could be avoided if 
China met its own air pollution standards.

Social unrest
    The Chinese media have reported only sporadically on the impact of 
water scarcity or highly polluted water, damaged crops, and polluted 
air on social stability; but in the late 1990s, China's Minister of 
Public Security stated openly, ``Incidents [that] broke out over 
disputes over forests, grasslands, and mineral resources'' are among 
``four factors in social instability.'' Farmers and village residents 
whose produce or water source is poisoned by a local factory often feel 
they have little recourse other than violent protest. Resource scarcity 
similarly may provoke violence. In July 2000, for example, about 1000 
villagers in Anqiu, Shandong province fought for 2 days when police 
attempted to block their access to makeshift culverts that were 
irrigating their crops. One policeman died, 100 people were injured, 
and 20 were detained.

Economic productivity
    As local officials confront the social costs of environmentally 
degrading behavior, they must also negotiate the massive financial 
costs. There is widespread agreement among environmental economists 
that the total cost to the Chinese economy of environmental degradation 
and resource scarcity is 8 percent-12 percent of GDP annually. The 
greatest cost is in the health and productivity losses associated with 
urban air pollution, which the World Bank estimates at more than $20 
billion. Water scarcity in Chinese cities costs about $14 billion in 
lost industrial output (when factories are forced to shut down); in 
rural areas, water scarcity and pollution contribute to crop loss of 
roughly $24 billion annually. Although not much systematic work has 
been done to estimate the future costs of these growing environmental 
threats, the World Bank has predicted that unless aggressive action is 
taken, the health costs of exposure to particulates alone will triple 
to $98 billion by the year 2020, with the costs of other environmental 
threats similarly rising.

          III. WHAT IS THE STRATEGY OF THE CHINESE GOVERNMENT?

    The Chinese leadership has developed a five-part strategy to 
address environmental problems: policy guidance from the center, 
devolution of power to local 
governments, cooperation with the international community, the 
development of grassroots environmentalism, and the enhancement of the 
legal system.

Policy Guidance from the Center
    First, there is policy guidance from the center. China's State 
Environmental Protection Administration (SEPA), the State Development 
and Planning Commission, the State Economic and Trade Commission and 
the Environmental Protection and Natural Resources Committee (EPNRC) of 
the National People's Congress, among others, all play important roles 
in integrating environmental protection and economic development and 
bring different interests and priorities to bear. The core agencies 
behind China's environmental protection efforts--the EPNRC, the SEPA, 
and the judiciary, headed by the Supreme People's Court--together claim 
responsibility for the full scope of central governmental activities, 
including drafting of laws, monitoring implementation of environmental 
regulations and enforcement.
    Over the past decade or so, there has been a significant increase 
in both the skill level and capacity of the agencies' staffs. There is 
a growing core of bright and 
capable people who are committed to seeking out new and creative ways 
to integrate economic development with environmental protection. They 
experiment with pricing reform for natural resources, tradable permits 
for sulfur dioxide, environmental education campaigns, etc. Still, the 
central bureaucracy is grossly understaffed and underfunded. There is 
only 300 full time staff in China's SEPA; in comparison, the U.S. EPA 
has more than 6000. In addition, China's central budget for 
environmental protection is still limited to about 1.5 percent of GDP 
annually, and many analysts believe that much of this goes to non-
environmental protection-related 
infrastructure projects and other programs. Chinese scientists 
themselves have estimated that China ought to spend at least 2 percent 
of GDP annually on environmental protection, merely to keep the 
situation from deteriorating further.

Devolution of environmental responsibility to local government
    A second conscious strategy of the Chinese leadership, since about 
1989, has been to devolve authority for environmental protection to the 
local level.\3\ The result, not surprisingly, is that wealthy regions 
with proactive leaders tend to fare very well. Shanghai, for example, 
routinely invests over 3 percent of its local revenues in environmental 
protection and has made substantial strides toward cleaning up its air 
and water pollution problems. Poorer regions, in contrast, continue to 
see their 
environment deteriorate, despite the overall improvement in the 
country's economy. They cannot count on assistance from the center, and 
are without sufficient local funds to invest. In addition, the central 
government closely monitors all World Bank activities in order to 
ensure that money does not flow to poorer regions with a 
higher probability of default on their loans.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
Cooperation with the international community
    A third element of China's plan to improve its overall environment 
is to tap into the expertise and resources of the international 
community. China is the largest recipient of environmental aid from the 
World Bank, the Asian Development Bank, the Global Environmental 
Facility and Japan. The international non-governmental organization 
community has also become increasingly active in China. Organizations 
such as Environmental Defense, the Natural Resources Defense Council, 
the World Wildlife Fund, and the Rockefeller Brothers Fund all have 
extensive projects in China to introduce new policy approaches to 
environmental protection on issues as wide ranging as organic farming, 
energy efficiency, and tradable permits for sulfur dioxide. Moreover, 
multinationals, such as Shell and BP, have begun to support China's 
environmental efforts. They introduce better environmental practices 
and technologies, may undertake independent and thorough environmental 
impact 
assessments, and fund activities by Chinese non-governmental 
organizations such as environmental education programs.
    Foreign investment is not always clean investment--in fact, in many 
instances, the opposite is true.\5\ And the environmental implications 
of China's further integration into the world economy through its 
participation in the World Trade Organization are likely to be mixed: 
diminishing land intensive farming in favor of increased agricultural 
exports, for example, but also increasing the opportunities for heavy 
polluting industries such as textiles and tin mining. Overall, however, 
the international community has played a crucial role in terms of 
policy advice and investment in raising the level of China's 
environmental practices.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
Developing grassroots environmentalism
    Perhaps most interestingly, China has opened the door to the 
involvement of non-governmental organizations and the media in 
environmental protection. By permitting the establishment of these 
relatively independent efforts, Beijing hopes to fill the gap between 
its desire to improve the environment and its capacity and will to do 
so. At the same time, the government is very careful to monitor the 
work of these NGOs in order to ensure that environmentalism does not 
evolve into a push for broader political reform as it did in some of 
the republics of the former Soviet Union or countries of Eastern 
Europe. Generally, therefore, the NGOs do not lobby or criticize the 
central government publicly, and they tend to tackle less politically 
sensitive issues not directly involved in economic development. Most 
environmental NGOs devote their efforts to nature conservation, species 
protection, and environmental education. Other NGOs focus their 
attention on urban renewal: recycling 
activities and energy efficiency. These NGOs work very hard to co-opt 
local government officials to support their work. Finally, there are 
environmental activists with interests and goals that exist well 
outside the boundaries for NGO activity established by the central 
government. Dai Qing, a world-renowned environmentalist, who has 
consistently opposed the Three Gorges Dam for example, clearly falls 
into this category. She spent 10 months in prison for her book Yangtze! 
Yangtze!, which exposes in great detail the politics behind the Dam.
    The Chinese government has also encouraged the media to develop 
programs and publish articles focused on the environment. Chinese 
newspapers, radio and television now accord a prominent position to 
environmental issues. Television, in particular, has become an integral 
part of environmental protection, often educating the public and 
sometimes spurring citizens to take action individually in the process. 
Two years ago, for example, a number of Chinese citizens in different 
cities began battery recycling programs after watching a television 
show devoted to the topic. The media also play an important 
investigative role. In several cases, they have been responsible for 
alerting authorities in Beijing to local corruption or ineptitude, 
demonstrating in vivid color that local governments are flouting 
environmental regulations or failing to carry out national 
environmental campaigns. At one television station in Beijing, people 
line up outside the door of the studio to bring attention to 
environmental problems in the hopes of having the station's reporters 
investigate the issue.

Enhancing the legal system
    China's legal system has long been criticized for its lack of 
transparency, ill-defined laws, weak enforcement capacity, and poorly 
trained lawyers and judges. Over the past decade, however, the 
government has made great strides on the legislative side, passing 
upwards of 25 environmental protection laws and more than 100 
administrative regulations, in addition to hundreds of environmental 
standards. While the quality of some of these laws could be improved, 
China's environmental law-makers have demonstrated increasing 
sophistication in their understanding of how to negotiate and draft a 
technically sound and politically viable law. They also have taken to 
publishing some draft laws and regulations on their websites to invite 
public comment, an important improvement in the transparency of China's 
legal 
system. Still, there are numerous weaknesses within the judicial 
system, including the poor or complete lack of training of lawyers and 
judges, the intervention of external political or economic factors into 
the judicial decisionmaking process, and the difficulty of enforcing 
poorly written laws.
    One bright spot is the emergence of legal environmental non-
governmental organizations. The most prominent of these organizations 
is the Center for Legal Assistance to Pollution Victims in Beijing, 
headed by an energetic and innovative law 
professor, Wang Canfa. The center trains lawyers to engage in enforcing 
environmental laws, provides free legal advice to pollution victims 
through a telephone 
hotline, and litigates environmental cases. Wang has been quite 
successful in recovering damages for his clients, although there are 
many political and legal obstacles, including a reluctance of judges to 
open what they fear will be the floodgates to class action lawsuits.

      IV. CONCLUSION: IMPLICATIONS FOR CHINA AND THE UNITED STATES

    The rapidity and magnitude of the changes that are taking place in 
China and the complex way in which these changes are interacting and 
transforming the country leave both the Chinese leadership and the 
international community searching for an understanding of what China 
might look like over the next decade or two. While the environment has 
certainly moved onto the leadership's agenda over the past decade, it 
remains far below center priorities such as economic development, 
maintaining social stability, and enhancing military capabilities.
    This suggests that in many respects environmental protection will 
continue to fall within the purview of local officials and the Chinese 
people. Positive trends in environmental education, the development of 
the legal system, and the growth of civil society will all support the 
ability of Chinese citizens to seek redress or take action to respond 
to the failure of the government to guarantee their rights.
    Yet it is in the interest of both the Chinese people and the world 
that such advances take place sooner rather than later. This argues for 
continued significant involvement from the international community in 
assisting China's environmental protection effort.
    For the United States, cooperating with Chinese actors on 
environmental protection offers the opportunity not only to serve U.S. 
environmental interests but also to pursue top priorities in the Sino-
American relationship: the advancement of human rights and democracy, 
the development of a more transparent legal system, and greater access 
to the Chinese market for U.S. goods and services. It is an especially 
opportune time to pursue such goals given the overall relatively 
positive State of U.S. relations with China.\6\
---------------------------------------------------------------------------
    \6\ While the current context of Sino-American relations is 
positive, there is still sensitivity in many quarters in China to the 
idea that the United States will push environmental concerns on China 
in an effort to prevent China's emergence as an economic power. Even 
seemingly 
innocuous demands by the international community for monitoring 
enforcement of international environmental agreements can also provoke 
claims of infringement on Chinese sovereignty. And, with regard to 
questioning the environmental implications of China's earlier efforts 
to promote grain self-sufficiency or the current grand development 
plans for China's West, claims of national security are occasionally 
invoked.
---------------------------------------------------------------------------
    Several simple steps could be taken to raise the profile of the 
United States in helping to shape China's future environmental, 
political and economic development.

           Remove Restrictions on the Overseas Private 
        Investment Corporation and the U.S. Asia Environmental 
        Partnership, both of which would provide assistance to U.S. 
        businesses eager to gain a foothold in China's environmental 
        technologies market, which is thus far dominated by Japan and 
        the European Union.
           Lift the ban on involvement by the United States 
        Agency for International Development (USAID) in China. US AID, 
        with its broad emphasis on governance, public health, rule of 
        law, and poverty alleviation could be especially 
        valuable in addressing China's most pressing needs and the 
        United States' most direct interests.
           Make better use of existing fora for Sino-American 
        partnership on the environment, including the U.S.-China Forum 
        on Environment and Development and the China-U.S. Center for 
        Sustainable Development. Both organizations--the first 
        government to government and the second, a non-governmental 
        organization with several former high-ranking government 
        officials, heads of non-governmental organizations, and 
        business leaders--were established during the Clinton 
        Administration. While both organizations were still in a 
        nascent stage by 2000, the Bush administration now has a unique 
        opportunity to move both efforts forward through both political 
        and economic support. Both organizations are extremely well-
        qualified to accomplish the public-private environmental 
        partnerships that have served Japan and the EU so well in 
        advancing their 
        environmental and economic interests in China.
           Enhance existing efforts to promote the Rule of Law 
        and Environmental Governance. The State Department's Democracy, 
        Human Rights and Rule of Law program has embraced the 
        environment as one of its primary targets for assistance in 
        China. And the U.S. Embassy in Beijing has thrown its (limited) 
        economic weight behind supporting environmental governance in 
        China. Coupled with work by organizations such as the American 
        Bar Association and the Woodrow Wilson Center, the United 
        States has established an important foothold in this area. 
        Given the long-term reform benefits of these nascent efforts, 
        however, significantly greater resources--through training, 
        education, and exchange--should be provided to strengthen both 
        the legal and NGO sectors in China. Here, too, the 
        opportunities for public-private partnership are extensive.
                                 ______
                                 

                   Prepared Statement of Brian Rohan

                            JANUARY 27, 2003

    It is a privilege to appear before the Congressional-Executive 
Commission on China at this important roundtable. For the past 12 years 
I have worked on environmental law and international development 
issues. I began my environmental law career with the U.S. Environmental 
Protection Agency, where for 5 years I led efforts to clean up 
hazardous waste sites and obtain financial commitment from companies 
responsible for the contamination. Afterwards, I spent several years 
working in Africa and the former Soviet Union, including 2 years in 
Moldova and Ukraine as a liaison for the ABA's Central Europe and 
Eurasian Law Initiative (CEELI). Upon returning to the United States, 
for several years I have been working in the ABA's Washington D.C. 
office. Initially, I served as Director of Environmental Law Programs 
at CEELI, where I managed environmental governance programs in Moldova, 
Ukraine, Uzbekistan and Uganda. I also supervised broader rule of law 
reform efforts, including human rights advocacy, judicial training, and 
bar association development in Moldova and Ukraine Currently, I am 
Associate Director of the ABA's Asia Law Initiative. In this capacity, 
I manage legal reform projects in China and throughout Asia.

                       ABA'S ASIA LAW INITIATIVE

    The American Bar Association's Asia Law Initiative--ABA-Asia--is a 
public service project that provides technical assistance in support of 
legal reforms in the countries of Asia. The project is governed by a 
nine-member Council that includes U.S. Supreme Court Justice Anthony 
Kennedy, former White House Counsel Lloyd Cutler, former White House 
Counsel A.B. Culvahouse, Director of the Yale China Law Center Paul 
Gewirtz, and other distinguished American attorneys. The Council's 
Chair is Roberta Cooper Ramo, the first woman president of the ABA.
    ABA-Asia is similar to the ABA's successful CEELI program, which 
has been active in Eastern Europe and the former Soviet Union since 
1990. Working in partnership with local organizations (both 
governmental and non-governmental), ABA-Asia provides ongoing 
assistance in a variety of areas, including judicial reform, legal 
profession reform, legal education reform, criminal law/anti-
corruption, citizens' rights advocacy, and gender issues.
    ABA-Asia has available to it the expertise and experience of the 
ABA's over 400,000 members, as well as other legal experts in the 
United States and abroad. ABA-Asia is therefore able to offer the 
highest level of practical expertise to address host countries' 
requests for assistance. A full listing of our current project 
activities is attached as Appendix A (retained in Commission files).

                       THE ABA APPROACH IN CHINA

    ABA-Asia's strategy in China is to implement programs that (1) 
enhance Chinese citizens' access to the legal system; (2) create legal 
norms by which citizens can defend their legal rights and demand 
governmental transparency, and (3) strengthen the capacity and 
impartiality of the Chinese legal system. ABA-Asia pursues these aims 
through trainings, practical skills-building programs and demonstration 
projects that highlight rights fundamental to citizens' relationship 
with government. These rights include access to governmental 
information, transparent and participatory decisionmaking, and standing 
of citizens to challenge governmental action. By focusing on these 
rights, ABA-Asia's aim is to help foster a culture in which citizens 
know their rights, are empowered to assert them, and have a reasonable 
expectation of fair and impartial resolution.
    To produce long-term reform, programs must be indigenous in their 
conception, design and implementation. When beginning a project in any 
substantive area, ABA develops partnerships with leading Chinese 
experts, being sure that these experts represent a variety of 
stakeholder perspectives, such as academia, industry, NGOs, local 
government, central government, media, and private legal practice. When 
empowered with real program design decisions, these Chinese leaders 
develop a strong sense of ownership of the project, and the substance 
is more effectively tailored to the Chinese context.
    To the greatest extent possible, programs are delivered outside of 
Beijing. Target audiences are those groups with the greatest capacity 
and inclination to advocate on behalf of citizens' rights, such as 
local government officials, public-spirited lawyers and academics 
pursuing reform agendas. Through these related strategies, ABA strives 
to implement projects that demonstrate the fundamental value of the 
rule of law, while simultaneously training reform-minded stakeholders 
in the actual provision of those rights.

               THE CHINA ENVIRONMENTAL GOVERNANCE PROJECT

    In February, 2002, with funding from the East-Asia and Pacific 
Bureau of the U.S. State Department, ABA placed an attorney liaison in 
Beijing on a pro bono basis to implement its Rule of Law and 
Environmental Governance Project in China. Using environmental law as 
the substantive theme, the project has the much broader goal of 
increasing capacity in rule of law and developing replicable models in 
good governance, particularly in such areas as access to information, 
governmental transparency, citizen participation in decisionmaking, and 
defense of citizens' rights through legal advocacy. In brief, the 
project is conceived to conduct a series of training programs on 
Chinese environmental law, focusing on those aspects of law where 
citizens have substantive and procedural rights vis-a-vis government. 
The trainings, in turn, are stepping-stones to follow-on demonstration 
activities, in which participants actually implement a legal tool that 
creates and delivers greater citizens' rights and access to the legal 
system. Further information about this project can be found in an 
article about a December 17, 2002 ABA presentation at the Woodrow 
Wilson Center for International Scholars at http://ens-news.com/ens/
dec2002/2002-12-17-10.asp.
    The project has generated strong interest in China, and attracted 
prominent participants from many sectors to an ABA-initiated Project 
Advisory Council. By all 
accounts, the project accomplished its 1-year objectives and more. 
Based on its warm reception, its demonstrable success, and the strong 
Chinese enthusiasm for continuing the project, it is clear that there 
are substantial further gains to be made in rule of law and governance 
in China by working through the lens of 
environmental law.

The Project's First Steps--Set Up and Formation of the Project Advisory 
        Council
    During the first quarter of 2002, ABA overcame a variety of 
bureaucratic 
obstacles to structure a working partnership with the Center for 
Environmental Education and Communication (CEEC) of the State 
Environmental Protection Administration of China. ABA's next step was 
the creation of a Project Advisory Council (PAC). These steps allow a 
variety of stakeholders in environmental governance, from government, 
NGO, academic, industry and private law practice perspectives, to offer 
insights and input that guide the development of the project, including 
selection of sites for the workshops, curriculum content and training 
style, and development of follow-on activities. Equally as important, 
the members of the PAC, all prestigious experts in various aspects of 
Chinese legal and environmental affairs, imbue the project with 
elevated status, and afford the ABA liaison access to many contacts in 
central government, academia, the NGO community, media, and the 
training cities.
    The PAC selected the three cities where the environmental 
governance training sessions were conducted. The three cities, 
Shenyang, Wuhan, and Chifeng, present a variety of environmental 
problems, diverse geographic locations, and differing size and 
population considerations. Thereafter, the PAC set about designing the 
training curriculum. More than half of the 21 member PAC agreed to be 
presenters at the three sessions. The final curriculum focuses on 
Chinese environmental law and the roles and relationships among 
stakeholders in processes such as environmental 
impact assessment, public participation in environmental 
decisionmaking, and the role of advocacy to defend citizens' rights. A 
composite curriculum from the three sessions is attached as Appendix B 
(retained in Commission files).

The Next Step--Three Training Sessions
    The three trainings took place in July and August, 2002. Each 
consisted of 3 days of instruction, panel presentations, roundtables 
and informal discussion. In each city, there were between 50 and 60 
participants, ranging from lawyers, judges, media, industry, NGOs, and 
government. With presenters drawn from the PAC and including the most 
prestigious and compelling experts on Chinese environmental law and 
advocacy, the sessions were lively and engaging. The last day of each 3 
day program was devoted to local environmental problems, and included 
an interactive session in which attendees discussed options for a 
substantive follow-on activity to implement the training's content. In 
the end, participants in each location developed consensus on a follow-
on activity, and have set their attention to its implementation.
    All three sessions were video taped by CEEC and a composite 
training VCD is being created from the edited tapes. The VCD will be 
distributed to several dozen provincial level Environmental Protection 
Bureaus (EPBs) throughout China.

The Critical Step--The Follow-on Activities
    Building on these training programs, ABA conducted a series of 
follow-on activities that highlight innovative environmental management 
techniques in the context of Chinese environmental law. Each activity 
also demonstrates best practices in rule of law and good governance. In 
this way, ABA is helping its Chinese partners not only to adopt 
techniques that increase efficiencies and public participation in 
environmental protection, but also to undertake measures that get to 
ABA's core objective in this project: developing models that provide 
for greater governmental transparency, increased citizen participation 
in decisionmaking, and enhanced 
respect for and implementation of Chinese law.
    In Shenyang, the follow-on activity consists of drafting, enacting 
and implementing a law to ensure access to information and public 
participation in environmental decisionmaking--the first such law of 
its kind at the municipal level in China. In Wuhan, participants are 
working on development of a publicly accessible computer data base to 
provide comprehensive data on environmental conditions. In Chifeng, the 
emphasis is on a participatory process to formulate an affirmative role 
for local government in devising sustainable land use practices that 
combat desertification.

Focus on the Shenyang Follow-On
    The Shenyang EPB prepared a draft of the first municipal-level 
public participation law of its kind in China. The draft law included 
elements of citizen access to information, public participation 
requirements, and mandatory transparency among facilities releasing 
pollutants into the environment. Prior to the July training session, 
the first version of the law was published in the June 24 edition of 
the Shenyang Evening News. The draft law was discussed during the 
training session and about 100 people sent comments to the EPB 
following the newspaper 
publication.
    In August and September, ABA coordinated an assessment of the draft 
law by a team of Chinese and international experts; in September, ABA 
and the EPB hosted a drafting and analysis workshop in Shenyang 
attended by EPB officials, Shenyang People's Congress representatives, 
and about a dozen other stakeholders, including visiting Chinese and 
foreign experts. This yielded extensive written comments on the draft 
law, which ABA compiled and presented to the EPB and all participants.
    Based on these comments, the EPB made significant changes to the 
draft law, and published a revised version of the law on October 14 in 
the same newspaper. This publication also yielded approximately 100 
comments, to which the EPB has responded by making further changes to 
the law. Commenters included ordinary 
citizens, students, and academics, as well as technical experts.
    In November, Mr. Li Chao, Deputy Director of the Shenyang EPB, 
informed ABA of a sharp competition between Shenyang Municipal 
Government and Shenyang People's Congress for the right to promulgate 
this law. The People's Congress wanted to enact it as a local law, but 
ultimately the Municipal Government prevailed. The law has received the 
necessary final approvals, and shortly will be published a third and 
last time, whereupon it will take effect as a Shenyang Municipal 
Government Regulation. The Shenyang People's Congress is expected to 
elevate it to local law status within a year. An English translation of 
the final law is included as Appendix C (retained in Commission files).
    Mr. Li has expressed a strong desire for further collaboration 
between the Shenyang EPB and ABA. The EPB has asked ABA to host a 
second series of trainings in Shenyang, to focus specifically on 
implementation of the new law. Mr. Li specifically envisions trainings 
for citizens on how to assert their new rights granted under the law. 
Assuming adequate funding resources, this training will be held in 
Spring, 2003.
    The Shenyang EPB also hopes to undertake a similar process in 
revisions to all of its environmental laws, including expert commentary 
and public comment and participation. Mr. Li wants to improve other 
rules and laws in Shenyang to a level similar to the Public 
Participation Law, and ensure that they comply with WTO requirements. 
He also has expressed an interest in holding public hearings on the 
role of the public in environmental impact assessment.

          FUTURE DIRECTIONS: TRAINING AND FOLLOW-ON ACTIVITIES

    Continued implementation of the existing follow-on activities is 
essential. The follow-ons present a unique opportunity to design and 
implement governance tools that are readily accepted and applicable in 
the Chinese context. While the project's achievements in its first 12 
months are impressive, much more remains to be done in order to 
institutionalize these efforts and demonstrate their applicability on 
the national level.
    ABA also plans to memorialize the three existing follow-on 
activities by means of self-contained modules covering both the 
procedural and substantive elements. For example, not only will the 
various texts of the public participation law in Shenyang be 
documented, but also the content of trainings, roundtables, and citizen 
comments received in connection with the law's development.
    As the three existing follow-on activities progress, ABA also will 
develop stakeholders in these efforts as local experts, trainers and 
spokespeople for the project and for rule of law and governance reform 
generally. In conjunction with the materials documented in the modules, 
this cadre of trained stakeholder experts from each training/follow-on 
location is critical to ABA's long-term efforts to both build capacity 
in good governance tools among Chinese stakeholders and to strengthen 
indigenous leadership on broader rule of law reform.
    ABA also hopes to begin additional training programs and follow-on 
projects in three more cities, leveraging both the modules created from 
the existing follow-ons and the local expertise developed in each. 
Specific locations, project themes, and kick-off events will be 
developed in a manner similar to the trainings and follow-ons in 
Shenyang, Wuhan and Chifeng, with substantial involvement of the PAC 
and other partners.

              FUTURE DIRECTIONS: CITIZENS' RIGHTS ADVOCACY

    Building on the experience, relationships, and credibility 
developed during the project's first year, ABA also hopes to expand its 
presence in China in an important direction: by providing direct 
support to emerging citizen advocacy efforts. Building on relations 
developed through the PAC, through ABA's outreach to the broader legal 
community in China, and particularly though relations developed during 
implementation of the follow-on activities in the target cities, ABA 
will support 
advocacy that accomplishes a range of activities, including direct 
representation of citizens' legal claims, lobbying and campaigning on 
public interest matters, publications, and indigenously conceived 
trainings and other events focusing on rule of law and good governance 
themes.
    ABA has observed that public interest advocacy in China is emerging 
according to several models. Individuals and organizations housed 
within universities have conducted successful advocacy work; 
established lawyers in major law firms have achieved groundbreaking 
court decisions; and independent, lesser-known lawyers are exploring 
public interest advocacy through work resembling an advocacy NGO. ABA 
will support the efforts of carefully selected Chinese partners working 
through these models as well as through other creative approaches.
    By assisting advocates working through varied structures ABA's 
goals are to create both the broadest possible field of public interest 
advocates and to achieve the strongest possible advocacy results. By 
supporting advocacy in various forms, ABA's efforts will build a 
comparative track record as to which institutional arrangements yield 
the most effective public interest advocacy in China. As different 
advocacy partners pursue different types of work (some focusing on 
client-oriented litigation, others pursuing cases with broader societal 
implications, still others doing client counseling and mediation, etc.) 
ABA's efforts also will shed light on which types of advocacy are most 
effective in China's political and legal environment.
    As these advocacy efforts mature, ABA also will encourage an 
informal network among them and similarly minded legal professionals 
throughout China. This network will benefit from a variety of 
perspectives, backgrounds, and specializations. ABA will also seek to 
include public interest law firms, NGOs, and activists from outside 
China in appropriate partnerships with Chinese counterparts, to enhance 
the effectiveness and sustainability of the advocacy network.
    Of course, all these proposed future activities are dependent on 
sufficient resources. ABA received $385,000 from the State Department 
for its first year of activity; second year requirements may be as high 
as $700,000. Discussions are ongoing with various bureaus within the 
State Department, and a small amount of money has been secured to 
maintain the project on an interim basis. Considering both the 
project's track record and the tremendous opportunity to support 
citizens' rights that has now emerged, ABA is exploring all possible 
options to secure the funds 
necessary to properly implement all future activities described above.

           WHY ARE THE CHINESE PARTICIPATING IN THIS PROJECT?

    As described above, the Chinese participants in this project 
represent a broad range of stakeholders, both within the PAC and in the 
provincial trainings and follow-on activities. The level of enthusiasm 
and substantive involvement among all of these groups far surpasses 
initial expectations. Several factors explain this. First, the extent 
of environmental devastation is well known within China, and the 
government has made environmental restoration an urgent priority. At 
the same time, the awakening about the possibilities of--perhaps the 
inevitability of--the rule of law has many Chinese yearning for new 
legal approaches. Among participants in this project, there is a strong 
sense that this project--using environmental law as a means to promote 
broader rule of law--is the right approach at the right time. Put 
another way, the reform-minded community with whom we are working sees 
this project as a well-timed, viable approach to political reform.
    Another important factor motivating the Chinese is the prestige 
that the project brings to participants. While perhaps inexplicable to 
those with an American's jaded impressions of lawyers, working with the 
American Bar Association carries tremendous cache in China. When 
thinking of the ABA, the Chinese do not think of lawyer jokes; rather 
they see an influential professional association with great credibility 
and substantive resources on the very legal topics that are of great 
interest in China today. That, combined with the sense that the project 
is showing important results, makes the Chinese keen to be a part of 
it.
    The ABA's sincere involvement of local partners in project design 
and implementation is another important aspect of the project's success 
and the Chinese enthusiasm for it. As described above, from its 
inception, the program has been conceived and delivered by and for 
Chinese. The PAC is not a ceremonial board; its substantive involvement 
in design and delivery is real and comprehensive. The training 
curriculum was designed to emphasize domestic Chinese law and policy. 
While international themes have featured prominently in certain aspects 
of the trainings--such as norms of public participation, the role of 
public dialog in policy formation, etc.--these topics have been raised 
largely by the Chinese presenters and experts with whom ABA has worked. 
In this way, international experience is conveyed in a way that is 
relevant to the Chinese context, and that minimizes the sense of 
foreigners preaching to the Chinese about how to reform their system.

                     CENTRAL GOVERNMENT'S REACTION

    ABA has been careful to solicit support for all aspects of the 
project from Chinese authorities. At its inception, officials were 
quite skeptical--indeed suspicious--of the project. Timely and tactful 
intervention from the U.S. Embassy helped to sort through bureaucratic 
obstacles, and by partnering with the CEEC, itself an entity within 
SEPA, ABA was able to allay initial fears and secure effective 
operating space, both literally and figuratively.
    Another strategically important aspect of ABA's relationship with 
central government is the composition of the PAC. ABA invited senior 
officials from SEPA, the NPC's Environmental Protection and Resource 
Conservation Committee, and the China Law Society (whose leadership 
consists of very senior retired central government officials) to 
participate as PAC members. These relationships have been indispensable 
to the smooth progress of the project.
    In just the past week ABA gained interesting insights about 
governmental reaction to our program when our Beijing-based liaison was 
summoned to meet with senior SEPA officials. From SEPA's perspective, 
the purpose of the meeting was to inform us whether SEPA would support 
continuation of our project and approve its extension. This was clearly 
more than a formality. Happily, the SEPA officials reported that they 
would continue to support the project. They described it as 
particularly ``forward'' for China, and did express some telling 
reservations regarding NGOs (See below.) However, they also explained 
that the primary factor motivating their continued support was the 
overwhelming interest in the project among the regional EPBs.
    Indeed, focusing efforts outside of Beijing has been a cornerstone 
of the project, and this SEPA interaction confirms ABA's belief that 
not only are provincial institutions often isolated from Beijing-based 
information and initiatives (making them hungry for whatever they can 
get); they also are often the best level at which to undertake reform 
efforts. Further from Beijing, they can be and often are more 
experimental. And highly desirous of increasing their status, regional 
offices also are interested to implement new approaches that may 
ultimately have national 
significance.
    ABA's experience offers several clear lessons. To implement highly 
visible programs with multiple parties, particularly regarding legal 
reform, central government support is essential. At the same time, 
regional offices of government present a tremendous resource for 
partnership, and are given broad latitude as laboratories for reform. 
However, neither central government support nor local level interest is 
a given; to be able to work ``within the system'' in China, the 
substantive theme of an activity must be carefully selected to align 
with Chinese priorities and pose no overt threat to overarching 
governmental concerns. This is the crucial issue of ``political 
space.'' Environment currently enjoys substantial political space in 
China. Other issues, such as human rights or labor rights, do not enjoy 
such space, making efforts to work with the Chinese in such areas far 
more difficult and the prospects for substantive results far less 
likely. This is not to say that other themes should not be pursued, but 
that in pursuing such topics the prospects for achieving reform from 
within will be reduced while the chances for antagonism and mistrust 
inevitably will be increased.

      WHAT DOES THIS PROJECT SAY ABOUT ``CIVIL SOCIETY'' IN CHINA?

    The very word ``NGO'' raises suspicions within some government 
offices in China. In fact, in a recent meeting, SEPA explained to ABA 
that one of its key initial reservations about supporting this project 
was that ABA seemed intent on energizing NGOs to criticize the 
government. As stated to us, the Chinese government has no intention of 
supporting programs whose aim includes training NGOs in the art of 
contesting governmental authority. Yet at the same time, SEPA has asked 
for assistance in implementation of the new Environmental Impact 
Assessment Law, which in several articles calls for public opinions and 
testimony to be incorporated into official decisions. The Shenyang 
Public Participation Law is even far more explicit in its grant of 
rights to citizens. This dichotomy raises an important set of 
questions: Who is going to represent citizens and ``civil society'' in 
these and other emerging legal contexts where citizens are given clear 
rights? Is there an NGO 
sector waiting to be nurtured? What are the ``Chinese characteristics'' 
of the third sector?
    Answers to these questions are necessarily speculative at this 
point. However, in trying to provide effective civil society assistance 
to China, several observations are noteworthy. First, a blossoming of 
``Western-style'' NGOs in China remains a distant dream. Concerned 
about threats to social stability, the Chinese government has no 
interest in sanctioning large numbers of organizations that are truly 
independent from government, and that will assert themselves in various 
sectors of politics and society in ways often critical of government. 
Those organizations that do brave the obstacles and function as NGOs 
must ever be cautious in their approach; further latitude from 
government is not likely to be forthcoming in the short term.
    However, the situation is not as bleak as it may seem. The absence 
of strong and independent NGOs merely means that reform-minded elements 
of Chinese society must find other ways to express themselves. Often 
this includes affiliations and organizations that Westerners would not 
consider to be leading-edge reform entities, such as private law firms, 
academic institutions or even local government officials. However, in 
China it is these places where the greatest energy for reform resides. 
And quite importantly, these organizations, largely connected to the 
State bureaucracy in some or other form, offer an extent of political 
cover that an independent NGO does not enjoy.
    Worth particular mention among these entities is the emerging 
phenomenon of public interest oriented lawyers in China. From private 
law firms, from academia, from local government posts, even from within 
the military, lawyers--particularly lawyers interested in environmental 
law--see new possibilities to test the outer limits of tolerance and 
activism as they undertake test cases seeking environmental damages for 
aggrieved citizens and seeking to enforce the novel public rights such 
as contained in the Shenyang law and the new EIA law.
    Finally, reiterating the importance of political space, it is 
essential that all of these reform entities, from wherever they come, 
focus their energy on issues for which there is adequate tolerance and 
the ability to achieve results. The harassment of criminal defense 
lawyers in China is well known. However, using environmental law as the 
entry point, there is great potential to establish important precedents 
for citizens' rights that will extend to other substantive areas over 
time.

  WHAT DOES THIS PROJECT'S SUCCESS SAY ABOUT USG ENGAGEMENT ON HUMAN 
                       RIGHTS ISSUES WITH CHINA?

    As described above, ABA's Rule of Law and Environmental Governance 
Project in China pursues aims far broader than simply the perfection of 
the Chinese environmental law system. The environment is the wedge 
issue, the Trojan Horse, by which the ABA is working with the legal 
reform community in China to advance cutting edge concepts of rule of 
law, governance, and transparency. Environmental law is unique among 
legal disciplines, in that its fundamental precepts are effective 
procedural interactions between citizens and government, transparency 
of information, and citizens' legal ability to challenge acts of 
government. Significantly, environmental law issues typically affect 
large numbers of ordinary citizens in direct, tangible ways. Thus, it 
is an ideal vehicle by which to enhance the relationship between the 
citizen and the state.
    Considering this, combined with the desperate State of China's 
environment, the time is particularly ripe for programming on 
environmental governance in China. That is not to say that 
environmental law is the only substantive area of law in which to 
engage in China. Many areas of law also offer pathways to strengthen 
citizens' abilities to defend their rights through law, such as 
property rights and land tenure, criminal procedure law, and even 
domestic relations law. However, in some instances, these other areas 
are associated with taboos or sensitivities that make effective 
programming much more challenging. By leading with this project on 
environmental governance, ABA hopes to open the path to increased 
citizens' rights protections and civil society development, even to 
eventually include those areas, such as labor rights and or human 
rights, where sensitivities continue to run so deeply that open, on the 
ground programming of the kind undertaken in this project is not 
currently feasible.
                                 ______
                                 

                Prepared Statement of Jennifer L. Turner

                            january 27, 2003

     The Growing Role of Chinese ``green'' NGOs and Environmental 
                          Journalists in China

    Since 1999 I have coordinated the China Environment Forum within 
the Environmental Change and Security Project at the Woodrow Wilson 
Center. In the China Environment Forum we convene meetings and create 
publications that promote dialog among U.S. and Chinese scholars, 
policymakers and NGOs on environmental and energy challenges in China. 
In the course of my work I have become acquainted with many Chinese 
``eco-entrepreneurs,'' which is a term I use to describe people in the 
government, NGO, and news media sectors who are creatively pushing for 
improved environmental quality. I therefore have a familiarity with the 
dynamics of the ``green'' NGO movement.
    The comments I make today on ``green'' NGOs and environmental 
journalists in China represent my personal opinion and do not reflect 
the views of the Woodrow Wilson Center. In my 10 minutes I have four 
points to make about China's nascent environmental movement and what it 
means for China's environment and civil 
society. Development in the environmental sphere is one of the bright 
spots in China's civil society and this sector presents many 
opportunities for cooperation from international organizations.
    (1) The Chinese government has opened political space for 
environmental protection activities, which has enabled an impressive 
growth in Chinese ``green'' NGOs and an increase in environmental 
activities by universities, research centers, journalists, and 
government-organized NGOs (GONGOs).
    (2) Independent Chinese environmental NGOs are at the forefront of 
civil society development in China.
    (3) Because environmental journalists enjoy more freedom in 
pursuing their stories than other beat reporters, they are quickly 
becoming a force pushing environmental awareness and investigations of 
local problems.
    (4) In the short term, expansion of ``green'' civil society in 
China is more dependent on improving organizational capacity of NGOs 
than an increase in political space.

(1) GROWING POLITICAL SPACE FOR ``GREEN'' NGOS, JOURNALISTS, AND OTHERS

    The Chinese leadership is aware that the government cannot solve 
the serious environmental problems alone, which explains why political 
space has opened up for eco-entrepreneurs in both the State and non-
state sectors to create organizations to help government environmental 
policies by: (1) Promoting environmental education, (2) Acting as 
watchdogs for local governments, (3) Conducting environmental and 
energy-efficiency policy research, (4) Undertaking on-the-ground 
conservation and sustainable development projects.
How have independent NGOs and other organizations grown?
     In the mid-1990s, Chinese environmental NGOs were the 
first to register when Beijing passed legislation granting legal status 
to citizen-organized social groups. Individuals wishing to create 
``green'' NGOs were inspired into action by not only the severe 
pollution problems, but also by the growing presence of international 
environmental NGOs in China. The growing environmental activities that 
universities, government research centers, and GONGOs were doing with 
international groups also signaled work in this area was acceptable.
     Approximately 50 citizen environmental groups are 
registered with the government, but since the registration process 
often can take years, hundreds of other 
environmental activists are doing their work as nonprofit corporations 
or within 
professional associations, Internet-based groups, or very small 
informal volunteer organizations or clubs (e.g., bird watching clubs). 
Some activists opt to join and learn from the numerous international 
environmental NGOs operating in China.
     Many central and provincial government agencies have 
created their own environmental NGOs (a.k.a. GONGOs) to create more 
jobs and attract international funding. These environmental quasi-NGOs 
(which number between 1000-2000) tend to have more technical skills 
than independent NGOs. Some GONGOs, particularly the Women's 
Federations and Communist Youth Leagues, are drawn to an NGO model for 
environmental work as they adapt to China's changing social context and 
their organizations are weaned from government support. Over the next 5 
years central and provincial governments will be cutting most of the 
funding for all types of GONGOs and those environmental GONGOs that 
survive will become real independent (albeit with good government 
connections) environmental NGOs.
     Student environmental organizations at universities have 
exploded in number: From 22 at the end of 1997 they have now increased 
to 184 student groups, located at 176 universities in 26 provinces. In 
the early 1990s, university administrations created the first student 
``green'' groups, but today most groups are initiated by 
students, who do ``green'' work on and off the university campus (e.g., 
waste reduction and environmental awareness activities, summer 
``green'' camps for university students, monitoring water quality in 
local areas). Student ``green'' groups have created networks to share 
information on their ``green'' activities. These student groups are 
helping to cultivate a growing pool of environmental activists and more 
environmentally aware graduates entering the workforce.

  (2) ``GREEN'' NGOS AT THE FOREFRONT OF CIVIL SOCIETY DEVELOPMENT IN 
                                 CHINA

    Despite their small numbers, environmental NGOs have been a model 
of inspiration for other kinds of civil society groups, for not only 
were they first to emerge, but they also have been creative in 
gradually expanding their activities through partnerships with domestic 
and international groups. In their work with international 
organizations, Chinese environmental NGOs have been able to work with 
local government and research centers, which represents a very new kind 
of horizontal policy cooperation in China. Moreover, by working with 
different types of 
organizations environmental NGOs are gaining valuable skills and 
capacity.
     First to emerge. Environmental NGOs were among the first 
type of independent organizations to emerge after the Chinese 
government permitted social organization registration. As pioneers in 
registering, they promoted confidence in other NGO activists. Other NGO 
sectors that are most successfully following in the footsteps of 
``green'' groups include disabilities, women and children's rights, 
health and poverty alleviation groups.
     Generally non-confrontational organizations. Unlike many 
western environmental groups, Chinese NGOs do not stage protests 
against the government or 
industry. In fact, many Chinese environmental NGOs have built up 
cooperative 
relations with governmental agencies and institutes. Some groups even 
use the 
government's familiar ``mass campaign style'' techniques to promote 
their environmental message.
     Slowly expanding areas of activities. While ``green'' 
NGOs, student groups, volunteer, and virtual groups tend to undertake 
activities in relatively ``safe'' areas (e.g., public education on 
wildlife, personal consumption patterns, littering, surveys of 
endangered species, studies of energy efficiency), some groups, 
especially those with a professional base, are exploring innovative 
activities. For example:

          (1) One lawyer created a group to provide legal assistance 
        for pollution victims.
          (2) One group made up of environmental professionals took 
        surveys of environmental problems in their city and used local 
        news media to promote their results.
          (3) One group founded by environmental scientists in southern 
        China brought together and worked with international NGOs and 
        local governments to create and manage a nature reserve.

     Utilizing a broad range of partnerships to build capacity 
and effectiveness. Because Chinese environmental NGOs are generally 
small groups, many have found that expanding their range of partners 
not only brings in financial resources, but also new skills and 
knowledge. Chinese NGOs have increasingly partnered with government 
research centers and GONGOs, international environmental NGOs, and 
multilateral organizations. In some areas international NGOs have 
helped bring Chinese ``green'' groups and local governments together 
for projects. While the activities of many Chinese environmental NGOs 
do serve to help the central government enforce and implement 
environmental laws by promoting environmental education and monitoring 
local governments, a handful of Chinese NGOs are carrying out more 
technical pilot projects, usually with international NGOs or 
multilateral organizations (e.g., Environmental Defense works with one 
Chinese group on an SO2 emissions trading project; NRDC 
works with various Chinese NGOs, local governments, and research 
institutes on energy-efficiency projects, WWF works with local 
governments and community groups on a wide-range of conservation 
activities).
     Growing use of the Internet. Some of the newest ``green'' 
groups in China are virtual organizations staffed by volunteers and 
their success offers useful models for other types of NGOs. One 
``green'' group was able to mobilize more than 7,000 people to get 
online to ``campaign'' for nationwide battery recycling in China. Other 
groups have circulated petitions to help save wetlands and protect 
endangered species. As ``green'' NGOs increase their capacity in 
developing Web sites, they will improve their outreach and membership 
abilities.

                     (3) ENVIRONMENTAL JOURNALISTS

    The abundant crop of environmental stories in China has not come 
about spontaneously. In the early 1990s, the National People's Congress 
launched a massive publicity campaign to raise environmental 
consciousness and set up a central command post to rally Chinese 
reporters to write stories on the environment. In the first 8 years 
after launching the campaign, some 13,000 reporters from all news media 
organizations produced an astounding 104,000 pieces of work, according 
to a study by the International Media Studies at Tsinghua University.
    Environmental reporters say they enjoy more freedom in pursuing 
their stories than other beat reporters, for the support they have from 
Beijing enables them to obtain cooperation from local authorities in 
doing their investigative work.
    To illustrate the results of the freedom, in newspapers 
environmental reporting has been increasing steadily since the early 
1990s, even though it is not a formal beat at most papers. One Chinese 
NGO tracked the yearly number of environmental articles in major 
national and local newspapers in China from 1994-1999. Between 1997 and 
1999, the number of articles on environment doubled in number (76 
papers produced 22,066 articles in 1997 while 75 produced 47,273 in 
1999). The percentage of in-depth reporting (e.g., investigations, 
features, editorials) among these articles averaged about 20 percent.
    In the past, China's two State environmental newspapers (China 
Environment News and China Green Times) have been published for a 
government readership. As these two papers have become financially 
independent from their agencies they are trying to market their 
newspapers to the general public. To sell papers they aim to publish 
more insightful environmental education and investigative pieces and 
move beyond reporting government slogans about successful environmental 
policies.
    Many Chinese TV stations have regular environmental educational 
programs and a growing number of radio programs feature environmental 
hotline call-in shows and exposes of local government pollution 
violations. While reporting on the ecological strains brought by 
industrialization along the Yangtze River, a Chinese national public 
radio reporter described how cruise ships threw plastic food containers 
into the waterway turning the 5,500-kilometer river into a giant public 
sewer. Within days of the broadcast, local officials were galvanized to 
action in the face of public outcry and the littering stopped. The 
result was a slightly cleaner river.
    In general environmental journalists can report local environmental 
problems and criticize local government authorities, but they tend to 
avoid targeting national-level agencies and policies. All reporters in 
the Chinese news media practice self-censorship. However, sometimes 
environmental journalists put their sensitive stories into internal 
newspaper and government reports and these reports can help educate 
local officials and change policies. For example, one journalist in 
Shanghai wrote an editorial about the possible water and environmental 
problems from planned golf courses outside of the city. This article 
led municipal officials to halt the plans for the golf courses and 
undertake an environmental impact assessment.
    An intriguing cross-fertilization is taking place between ``green'' 
NGOs and journalists-some environmental journalists take their interest 
beyond work and have been active in either creating or helping 
``green'' NGOs in China. In some major cities journalists have created 
networks or salons to help each other improve in their environmental 
reporting.

  (4) IN THE SHORT TERM, FURTHER GROWTH IN ``GREEN'' CIVIL SOCIETY IN 
  CHINA IS MORE DEPENDENT ON IMPROVING THE ORGANIZATIONAL CAPACITY OF 
                NGOS THAN AN INCREASE IN POLITICAL SPACE

    It is not easy to create and operate an NGO of any kind in China, 
for such the NGO concept is relatively new and registration 
requirements are challenging. Despite the registration woes, there 
exists a fair amount of leeway for ``green'' activists to undertake 
environmental projects and activities. However, the effectiveness of 
NGOs to do ``green'' work is often limited by lack of funds and 
organizational capacity. Three core challenges to environmental and 
other types of NGOs in China are:

(1) Onerous registration requirements
    The current regulations for social organizations make it 
challenging to register an NGO because they contain vague registration 
requirements and are rather ambiguous about the scope of permissible 
activity. These regulations require all applicants secure the 
sponsorship of a government agency (a.k.a. the ``mother-in-law'' 
requirement). Those NGOs that do apply are not always allowed to 
operate in areas that have government departments or GONGOs doing 
similar work. Moreover, NGOs cannot set up branch organizations in 
other parts of the country. This latter rule does not yet represent a 
major hindrance for ``green'' groups in China, for they tend to be 
small and focused on doing activities locally.

(2) Funding challenges
    While a majority of Chinese ``green'' NGOs in urban areas have 
gotten funding from international foundations and NGOs, foreign 
governments, and multilateral organizations, raising sufficient funds 
for activities and salaries is a problem that plagues most groups. This 
reliance on international sources of funding stems in part because 
there is not a philanthropic community in China. Because the concept of 
membership fees is still quite foreign in China many groups depend on 
volunteers to help them do their work.
    One potentially bright sign for future funding is that the Chinese 
government is currently revising rules for permitting tax-free 
donations to NGOs.

(3) Capacity Challenges
     Many ``green'' NGOs are creations of one motivated 
individual who defines the organization. These groups are still very 
new, but it is unclear if some of these groups could function if the 
founder left.
     Most groups lack knowledge of managing a nonprofit 
organization or the experience in setting up membership systems.
     While most ``green'' NGO staff are enthusiastic and 
committed, they often lack the skills needed to do technical 
environmental work and write grant proposals to fund the organization. 
The struggle for financial resources dominates much of the energy of 
these groups and even creates competition among ``green'' civil society 
groups.
     Hard to keep NGO staff because of low or lack of salary, 
so institutional memory easily lost.
     Because most groups are new and struggling to sustain 
their activities, networking with other groups has not always been a 
priority, which means they miss opportunities to learn from other NGOs. 
Perhaps because the NGO movement has not yet reached critical mass, we 
are not yet seeing a lot of networking across sectors (e.g., 
environmental working with health or children's groups, which 
substantively could become a mutually beneficial type of partnership 
and strengthen the capacity of both organizations).

                             POSITIVE STEPS

    Most environmental NGOs are now aware of their need to build 
internal capacity and are seeking training to help themselves in this 
area. While some international organizations (such as the Canadian 
Civil Society Program, the Dutch government, and PACT China) have 
stepped in to create workshops and some training for all kinds of 
Chinese NGOs, much more could be done to help strengthen the capacity 
of ``green'' and other civil society groups, so they could be more 
effective in their work.
    In summary, many Chinese environmentalists know how to operate 
within politically acceptable boundaries, however, because of internal 
capacity and funding problems I believe a lot of groups are not yet 
fully utilizing the space they have to make significant impacts on 
protecting the environment. It will take time for them to strengthen 
their internal organizational capacity and develop technical skills to 
become more effective. With time I am also confident that this sector 
will be given more freedom of operations, because most groups are doing 
activities that help the government pursue their own environmental 
goals.

             SOME REFERENCES ON ENVIRONMENTAL NGOS IN CHINA

    Brettell, Anna. (2000). ``Environmental non-governmental 
organizations in the People's Republic of China: Innocents in a co-
opted environmental movement? '' The Journal of Pacific Asia. Volume 6: 
27-56.
    Friends of Nature. (2000). 1999 Survey on Environmental Reporting 
in Chinese Newspapers. Beijing: Friends of Nature.
    Ho, Peter. (2001). ``Greening without conflict? Environmentalism, 
NGOs and civil society in China.'' Development and Change, 32 (5), 893-
921.
    Knup, Elizabeth. (1997). ``Environmental NGOs in China: An 
Overview.'' China Environment Series. Washington, DC: Woodrow Wilson 
Center: 9-15.
    Kluver, Randy and John H. Powers. (2000). Discourse, civil society, 
and Chinese communities. Connecticut: Ablex Publishing Company.
    Ku, Fong. (Ed.). (1999). Directory of international NGOs supporting 
work in China. Hong Kong: China Development Research Services.
    Saich, Tony. (2000). ``Negotiating the state: The development of 
social organization in China.'' The China Quarterly. Issue 161, pp124-
141.
    Turner, Jennifer. (Ed.). (2002) ``Inventory of Environmental 
Projects in China.'' China Environment Series. Washington, DC: Woodrow 
Wilson Center. (Chinese NGOs inventoried on pages 197-211). [(On-line]. 
Available: www.wilsoncenter.org/cef
    Turner, Jennifer and Wu Fengshi. (Eds.). (2002). Green NGO and 
Environmental Journalist Forum. Washington, DC: Woodrow Wilson Center. 
[(On-line]. Available: www.wilsoncenter.org/cef
    Wang, Canfa, et al. (2001). Studies on environmental pollution 
disputes in East Asia: Cases from Mainland China and Taiwan. Joint 
Research Program Series No. 128. Tokyo, Japan: Institute of Developing 
Economies. IDE: JETRO.
    Young, Nick. (2001). ``Searching for Civil Society.'' Civil Society 
in the Making: 250 Chinese NGOs. Beijing: China Development Brief: 9-
19.