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Open Government Advocates Fight for Improving Environmental Governance in China

Jay Monteverde|

This blog is part of a series on how open government can help achieve the Sustainable Development Goals (SDGs). The series came out of a collaboration between the United Nations Development Programme (UNDP) Bangkok Regional Hub and the Open Government Partnership (OGP) to find practical examples of how open government is helping countries achieve the SDGs in the Asia-Pacific region. For more details on the competition, the blog series, and how open government can help achieve the SDGs, please see our introductory blog post.

Over the past three decades, China has seen meteoric economic development, lifting tens of millions of people out of poverty. However, that development came at a huge environmental cost. Over that same period, river water turned black, farm soil became toxic, and large stretches of China’s skies turned grey. Official statements dismissed hazy skies – the most visible of these pollution problems –  as “fog” or “smoke from barbecue grills.”

Starting around the turn of the new century, a small but growing group of grassroots environmental advocates across China believed that the country’s environmental changes were not as harmless as reported, and that the changes were related to increasing trends in the frequency of public health problems and deaths of crops, fish, and farm animals. However, without any means to obtain pollution information, concerned citizens had little power to discover and address these problems.

In 2008, China passed national Open Government Information (“OGI”) regulations requiring disclosure of a wide range of government agencies’ information, including information on environmental conditions and pollutants emitted by businesses. These regulations were part of the beginning of recognizing the public’s right to information. The leader of one of China’s leading grassroots environmental non-government organizations (NGOs), Mr. Tan (a pseudonym), saw the groundbreaking potential of this new tool. Mr. Tan, a lifelong environmental advocate who lived in a province with multiple polluting industries, had witnessed pollution and the destruction it brought for many years. However, he had no means to effectively stop pollution and clean up contamination. Mr. Tan saw the OGI regulations as an opportunity for grassroots NGOs and citizens to usher in a new era of grassroots environmental legal advocacy. By using the OGI regulations to help prove when polluters were violating the law, Mr. Tan could lobby the government to take action and stop the pollution. To execute this strategy, however, he needed to learn how to use the regulations.

As part of its environmental governance initiative, the American Bar Association Rule of Law Initiative (ABA ROLI) China Program trained Mr. Tan, alongside other environmental NGOs, on how to use OGI information requests to discover and prove illegal pollution. A critical component of this initiative aims to increase access to justice for Chinese citizens affected by environmental pollution through more transparent, effective, and accountable environmental governance by: 1) improving capacities of NGOs promoting citizens’ rights; 2) promoting victims’ participation in environmental governance through community legal empowerment; and 3) improving capacity of local Environmental Protection Bureaus (EPBs) to protect citizen health and safety.

The initiative has achieved these objectives through activities which include:

  • Training and guidance on the effective use of China’s Open Government Information (OGI) regulations, including creation of an OGI practice manual for environmental advocacy;

  • Convening of multi-stakeholder advisory groups, workshops, and “domestic learning exchanges” to guide NGOs’ institutional and legal capacity development;

  • Interventions to reach out to impacted communities, including dozens of pollution site investigations, public education activities, and hundreds of legal strategy consultations;

  • International environmental lawyer skills trainings and comparative dialogues;

  • Policy and legislative recommendations on environmental issues to key decision-makers; and

  • Assessment of the quality and legal accuracy of province-level EPB’s enforcement actions; recommendations for EPBs to improve enforcement practices; and trainings for EPB officials on awareness of their responsibilities.

After receiving training, Mr. Tan and others learned how to use OGI requests to obtain information about environmental oversight and enforcement, including the statements businesses make to government regarding the amount and type of their pollutants and the size of factory operations. In many cases, this information was enough for Mr. Tan to prove that a factory was operating illegally, and he could contact local environmental agents and urge them to take enforcement action. Often, OGI requests also uncovered missing information that should have been provided to the government or additional steps the local government needed to complete in order for the business to legally operate. In this way, OGI requests became a tool not only to obtain information, but also to engage government agencies and help them understand their responsibilities.

In many instances, Mr. Tan encountered political and economic forces – such as the existence of a powerful industry – that were discouraging local governments from strong environmental oversight. In these situations, Mr. Tan’s OGI requests even provided progressive local officials with the regulatory leverage to be stronger environmental advocates internally. Progressive officials could cite Mr. Tan’s OGI requests to explain to their peers that the public is watching, and if environmental oversight did not improve, problems could grow into large scandals and attract negative media attention, creating embarrassment for the local government.

Over several years, ABA ROLI’s and other organizations’ efforts caused a strategic shift among environmental NGOs like Mr. Tan’s. First, as Mr. Tan successfully used OGI tools to obtain data on pollution and polluters, ABA ROLI helped him work closely with lawyers who could use this information in litigation and other legal advocacy. This allowed NGOs to build cases for lawyers to represent pollution victims in suits against polluters. As Mr. Tan’s staff gained case experience across pollution issues, they turned their experience into policy recommendations to lobby for laws that further strengthened transparency and increased public participation. One of these recommendations would allow NGOs themselves to bring environmental litigation in the public interest. After prolonged lobbying, NGOs won a significant legislative victory and obtained this authority under China’s new Environmental Protection Law, effective January 2015.

As word spread among environmental NGOs about Mr. Tan’s use of OGI tools and legal advocacy, ABA ROLI created platforms for Mr. Tan and others of this “first generation” of NGO environmental advocates to mentor the next generation. With ABA ROLI’s support, Mr. Tan’s staff lawyers trained young NGO leaders like an environmental science graduate known as “Black Tiger.” Mr. Tan’s staff trained Black Tiger on how to work with environmentally vulnerable communities, approach pollution problems from a legal perspective, and coordinate with government agencies to stop illegal pollution. Black Tiger’s organization is now a leading environmental NGO in his own home province, which faces severe pollution from coal mining and toxic levels of metals in the agricultural soil.

Why is a legal approach to pollution advocacy important?

Goal 16 of the Sustainable Development Goals on peaceful, just and inclusive societies and accountable institutions calls for effective governance, based on the rule of law and citizen engagement, as central to sustainable development. ABA ROLI’s work with environmental advocates provides an excellent example of how informing the population on environmental protection laws and enabling them to hold local authorities accountable has had a great impact on the improvement of the living conditions of the overall community.  Using the law for anti-pollution advocacy in China was fundamental to achieving results. For example, in two adjacent villages, pollution victims wanted to close down nearby factories whose emissions were harming them. In one village, ABA ROLI’s efforts trained local advocate Aunt Chen (a pseudonym) to engage the government using OGI requests and advocacy with local officials. Aunt Chen obtained information that showed that the factory’s operations were illegal, and this ultimately convinced local government leaders to close down the factory. Meanwhile, in the other village, residents lacking understanding of the law and legal advocacy turned to civil disobedience tactics such as protesting and disrupting factory operations. They hoped to make it so troublesome for the factory to operate that either the government or the factory owners simply shut it down. Their strategy failed spectacularly: villagers were arrested for causing unrest, local officials were fired for failing to prevent it, and the polluter continued to operate.

Information transparency unlocks the public’s ability to participate meaningfully in environmental governance. It allows the public to identify and address environmental threats to health and livelihoods, to help ensure that laws and policies are implemented properly, and to provide input on how those laws and policies can be improved. All of these forms of public participation increase the public’s confidence in government. China’s central government leaders, slowly realizing these benefits to information transparency, have started establishing the legal channels by which advocates like Mr. Tan, Black Tiger, and Aunt Chen can obtain information, and increasingly emphasize the need for transparency. Using these available transparency tools as an entry point has proven to be an effective means of improving accountability and access to justice. This approach also de-politicizes issues and allows both the advocates and progressive officials to focus on the actual environmental problems and effectively protect citizens’ health and livelihoods.

This article represents the views of the author and, except as specified otherwise, does not necessarily represent policy of the ABA or the ABA Rule of Law Initiative (ROLI).

Filed Under: Challenges and Solutions Right to Information
Open Government Partnership