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The plight of the public (2)

Despite some successes, broad environmental participation remains largely academic, concludes Zhang Jingjing. With deficient regulations and no legal redress, citizen engagement faces an ongoing battle.

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Of the four cases described in the first part of this article, three ended with the hoped-for resolution: projects that may have gone on to pollute the environment were delayed, ordered to carry out environmental impact assessments and make changes or forced to move.

But it is more common in China for the public wish to participate in environmental impact assessments to be thwarted. In the case of Sinopec’s 2008 ethylene project in Pengzhou, Sichuan, for example, the desire of many Chengdu residents to take part in the process was ignored. Even cases where the public have succeeded in having a say still demonstrate the challenges to participative democracy in China’s environmental affairs. 

First of all, the successful cases always occur after the questionable activity has taken place. The public has no means by which to acquire full and complete information on the approval and construction process – they just happen to find out that the project is in some way illegal or problematic, by which point the scheme has either gone ahead illegally without an environmental impact assessment or the assessment has been concluded without full public participation. Without media exposure, the public wouldn’t even know about such activities, let alone participate in addressing them.

Second, the government does not actively provide for participation. In the four cases we looked at here, it was after “walking” protests or widespread exposure online or coverage in the mainstream media that state environmental authorities and local governments were forced to hold hearings. The government does not actively invite the public to participate in the writing and approval of the assessments.

Third, the regulations on the processes of public participation are inadequate and do not allow the public fully to express their opinions. One reason for local scepticism about the environmental impact assessments for the high-voltage power line at Xishangliu and the waste-incineration plant at Liulitun was that too few people had participated in the process, and those who were chosen to participate were not representative of the people affected.

The 2006 “Temporary Method for Public Participation in Environmental Impact Assessments” includes certain regulations on the ways in which the public can participate in the evaluation of construction projects. But in practice the results have been poor. In particular, until three years ago, there was no legislation on the publication of government information, which is both a pre-condition and mainstay of public participation. This changed in 2008, but the results of that legislation have hardly been something to boast about: frequently, members of the public are unable to acquire full and accurate data, making it impossible for them to participate in the government policy-making process in a prepared and rational manner.

We have seen some progress. The Ministry of Environmental Protection is working on national standards for environmental protection, and its “Environmental Impact Assessment Technical Guidelines: Public Participation” was made available for public comment in January 2011. This document sets out regulations on the process of public participation – the definition of the public, the timings and methods for publication of the information required for public participation and the conditions for holding discussion sessions and hearings. 

But there is a fourth obstacle: this type of participation lacks teeth in the law courts. The administrative licensing and environmental impact assessment laws give the public the right to participate, but no means of redress if that right is infringed upon, meaning that right exists in name only: as lawyers often say, without redress, there are no rights.

The environmental impact assessment law has just one simple and abstract article on public participation: “The state encourages relevant work units, experts and members of the public to participate in environmental impact assessments via an appropriate method.” It does not specify the legal responsibilities to be borne if public opinions are not sought. This is why public participation in these assessments is often lacking, or fails to reach the degree intended when the system was designed.

If members of the public or environmental groups ask to participate in environmental policy decisions and their request is refused by the government, current legislation does not allow that decision to be contested in court. The existing law on administrative licensing only permits those with a direct interest to sue. If, for example, Zhang Zhengchun – the first person to identify the problems at the Old Summer Palace – or environmental campaign group Friends of Nature were dissatisfied with the administrative decisions taken by the State Environmental Protection Agency in that case, neither party would be able to take the matter to court, as they have no direct relationship of interests with the responsible party, the Old Summer Palace Management Office. The lack of the guarantee of that right is a major obstacle to participation of citizens or organisations in government environmental decisions.

On May 1, 2008, the State Council’s “Regulations on Publication of Government Information” and the Ministry of Environmental Protection’s “Trial Methods for Publication of Environmental Information” came into effect – stirring great hopes among both environmental groups and the public, who believed they marked a new dawn
for participative democracy in the environmental field. But three years later, the situation can only be described as passable. Open environmental information is a pre-requisite for public participation – if that essential ingredient is only in a passable state, it’s easy to imagine the condition of participation on the ground. Nationally influential cases of public participation, such as the one concerning the Old Summer Palace, have not been repeated.

These obstacles seem to have dampened public enthusiasm for taking part in environmental policymaking. But the nature of modern society means the authorities actually need public participation to ensure that the decisions they make are correct. Increasingly, technological development is bringing new risks to society, and the aim of public policy should be to prevent and manage those risks. Public participation can help the nation to avoid social conflict arising out of government policy errors, and will assist in maintaining social harmony and stability.

What changes, then, would we like to see? We hope to see the words “temporary” or “trial” removed from the regulations that aim to boost public participation – such as the “Temporary Method for Environmental Protection Administrative Licensing Hearings”, the “
Temporary Method for Public Participation in Environmental Impact Assessments” and the “Trial Methods for Publication of Environmental Information”. We hope to see information under government control shared with the public. And we hope that court doors will open to citizens and environmental groups. Only then can China limit the dangers its environmental problems pose to society.

Zhang Jingjing is
deputy country director for China at PILnet: The Global Network for Public Interest Law.

Part one: the key cases

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