Environmental Disclosure in China

Environmental Disclosure in China: a Comparative Study to the US and EU System

By Leah Zhutian Li, Staff Contributor

  1. Introduction and Background

Publicity of environmental information is a relatively new approach to enhancing the administration of environmental laws and regulations. Environmental disclosure has manifested its promise in improving environmental law enforcement.[1] Information disclosure reduces informational costs,[2] shifts the equilibrium in the negotiation process between two or more social actors by governmental intervention,[3] and shocks and shames polluters, thus adding psychological and political cost of polluting.[4]

In recent years, developing countries have begun to recognize the importance and the power of information publicity. The Ministry of Environmental Protection of the People’s Republic of China adopted Measures for the Disclosure of Environmental Information (for Trial Implementation) (hereinafter the “Measures”).[5] The Measures have been implemented since May 1st, 2008, marking the second regulation ever regarding governmental information disclosure.[6] In other environmental laws and regulations, dashes of information disclosure provisions occasionally come up. However, the disclosure requirements in the other environmental laws are normally only targeted at major polluters that significantly exceeded the emission standard, and the enforcement and administration of these laws and regulations are often ineffective.

On the other hand, the European Union (“EU”) and the US have both developed systematic and comprehensive regimes. Although each country might have different goals and priorities in environmental regulation, much could be learned from their success. This article will make the following recommendations to improve the environmental information disclosure regimes in China: define and solidify citizens’ right to information; unify the environmental information rating standards and disclosure methods; provide remedial ladders for violations of disclosure requirements.

In June 1990, the EU passed Council Directive on freedom of access to information on the environment, which was later repealed and updated by Freedom of Access to information directive (hereinafter the “Directive”).[7] The 1990 directive required all members to implement the directive through national laws, regulations and administrative rules before December 31, 1992. In June 1998, the landmark Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (hereinafter “Aarhus Convention”) was adopted.[8] The Aarhus Convention established three pillars for rights of the public with regard to the environment: 1) the right to access environmental information; 2) public participation to environmental decision-making; and 3) public’s access to justice and a review procedure to challenge public decisions that have be made not pursuant to the aforementioned rights.[9] After the Aarhus Convention, the EU periodically issues Implementation Guides and other directives of the Aarhus Convention.[10] These legally binding documents facilitated the perfection of government environmental information disclosure system.

The US’s environmental disclosure regime is relatively mature, and a comprehensive system of rule making and enforcement is in place. Back in 1966, the Freedom of Information Act (effective 1967, hereinafter “FOIA”) was enacted, marking the first information disclosure legislation. After several amendments, this legislation is now an integral part of the US Code. Afterwards, Congress has almost always inserted environmental information disclosure requirement in any environmental legislations, such as the National Environmental Policy Act, the Resources Conservation and Recovery Act, Comprehensive Environmental Response, Compensation and Liability Act, Clean Water Act and so on. The Toxics Release Inventory Program requires companies to submit relevant reporting documents regarding their manufacturing, processing or using listed chemicals. A report in 2009 indicated that all processed and released listed chemicals have fallen 12% in comparison to 2008, and 40% compared to 2001.[11]

Comparing the laws and regulations in place in China with those in countries that have more developed environmental disclosure regime, four major aspects promise the greatest potential for improvement – legislative rigor, subjects of regulation, scope of application, and enforcement procedure.

 

  1. Comparative analysis of the Measure to the Aarhus Convention and FOIA
    1. Legislation Rigor

First, the Measure is an administrative rule, the legal authority of which is at the lowest of the legislation system. Comparatively, the EU Council Directive is binding on EU member states, and their national environmental legislation must be consistent with the directives. On the other hand, in the US, FOIA, as a federal legislation, enjoys high legal authority only below the Constitution.

Second, the Measure was “for Trial Implementation,” similar to when the Environmental Protection Law of China was adopted. Lawmakers likely put the qualification after the name mainly for two reasons. One being that, when writing the provisions, legislators did not have a thorough understanding of the underlying issue, thus, putting the precautious language might seem appropriate. Another being that, the pilot version law might reserve more flexibility for further amendment. In my opinion, these two reasons are ill founded. Rather than adopting a pilot version legislation, the legislature should first engage in more in-depth research in the underlying issue. In addition, the legislature could also adopt procedures similar to “notice and comment” in order to gain a better understanding of the implication of the proposed legislation. Also, amendment of law does not turn on the qualification language used by legislator. On the other hand, pilot version law brings many problems: what’s the difference of legal authority between official law and the pilot version law? How long will the trial period last? Is there a more limited scope for a pilot version law? With all these questions unanswered, the legislature should avoid putting meaningless qualification into the language.

 

  1. Subjects of Regulation

The subjects implicated in environmental disclosure include the subjects of rights, of obligations, and of supervision body. The differences between environmental disclosure standards in China and the US and the EU mainly exist in the following aspects.

First, the US disclosure regimes grant rights to a broader scope of subjects than China’s. In the US, either a natural person or legal person, whether US citizen or foreign citizen, can request access to relevant information. Moreover, the Directive allows any person or legal person to request information without showing that the person would be affected with regard to the environmental information requested. In the EU, the Aarhus Convention further establishes that within the scope of disclosure mandated by the Convention, the public shall have access to environmental information, opportunities to participate in decision making processes and rights to legal remedy, regardless of the person’s citizenship, nationality or residence, or the legal person’s location of business or registration.[12] However, in China, foreigners and person with no nationalities cannot request environmental information.

Second, the Aarhus Convention’s definition of “public authority” is extremely broad. It includes “government at national, regional and other level,” “natural or legal persons” that have any “public administrative functions” or other “public responsibilities” in relation to the environment. This definition sweeps almost all relevant entities or persons, including member states and the EU. Comparatively, because the Measure is promulgated by the Ministry of Environmental Protection of China, it can only mandate that a subordinate environment department comply with the disclosure requirement. This limitation prevents the integration of dispersed information and sharing among different governmental bodies, thus reducing the quality of disclosed information.

Comparatively, the supervisory body in China does not have a clearly defined scope of authority and established enforcement procedures. The essence of environmental disclosure is to promote public participation in supervising the subjects of obligation, therefore, enhancing the responsibility of disclosure obligators. In reality, the supervisory body could and would have some overlapping with the subject of rights and subject of obligations. Government, non-government organizations, and citizens are all encouraged to supervise environmental compliance. In the US, non-government environmental organizations have gained an increasingly important supervisory role. At least partly, this movement is enabled by legislation that grants standing in litigation and the authority to request environmental information by non-government entities. Comparatively, nongovernmental environmental organizations in China remain primitive – their activities gradually expanding from disseminating environment information for policy analysis and public supervision. However, their functions are largely limited by their legal authority.

 

  1. Scope of Disclosure

From a legal perspective, determining the scope of disclosure is essential to allocating rights, obligations and burdens in environmental disclosure. This section analyzes the differences between the scope of disclosure, as well as the reasons behind such differences.

FOIA requires general disclosure of federal agency records, unless the records are protected from disclosure by any of the nine exemptions in the Act, or one of three special law enforcement record exclusions.[13] In addition, when an agency denies a request in full or in part, the FOIA requires the agency to provide an explanation, which includes specific administrative information about the agency’s action.[14] Aarhus Convention Article 4 listed permissible reasons that public authority could refuse disclosure, but in the Convention only general language was used, seemingly allowing much discretion to Member States. Specific rules were laid out in the 2003 Directive (updating the 1999 Directive), which clearly defined what constitutes each permissible refusal.[15]

Comparatively, the Measure similarly carved out national security sensitive information, trade secret and personal private information as permissible grounds to refuse disclosure.[16] However, the Measure falls behind on clarity. It defines the exceptions in general language without other supporting regulations to specify applicable situations, which gives disclosure obligator leeway to make up excuses to refuse disclosure. In addition, it does not specify procedure to establish the validity of reasons to refuse, and did not require a strict reading of these exceptions.

 

  1. Private Remedies

Every right when withheld must have a remedy. Effective remedial procedures ensure that environmental disclosure requirements are met. Aarhus Convention requires contracting states to adopt national legislation that provide any person “who considers his or her request for information under [the Convention] has been ignored, wrongfully refused, either in part or in full, inadequately answered, or otherwise not dealt with in accordance with the provisions of [Article 4], has access to a review procedure before a court of law or another independent and impartial body established by law.”[17] Further, the Convention requires contracting states to provide affordable and “expeditious procedure” for reconsideration by the public authority that has the original obligation of disclosure or review by an independent and impartial body other than courts.[18] The 2003 Directive further expanded the scope of judicial review, from ignored or wrongfully rejected request as described in Article 9 of the Convention, to any violation of Article 3, 4 and 5 of the Convention.[19] To summarize, under the Directive, a person can seek legal remedy not only when his own request was not properly answered, but also have standing to bring suits to protect public right to information. This broad legal remedy significantly strengthened the protection of public access to environmental information.

In the US, the most commonly used legal tool “for concerned citizens to influence government decisions” is public notice and comment.[20] In addition, the community can begin informal communications in writing with government official as soon as they discover an environmental concern, preferably after some preliminary fact gathering process.[21] Petitions could be filed to urge the government to take actions, and further citizen suits could be filed.[22] More specific to the environmental disclosure setting, under FOIA, people may file a request for any existing record at any federal agency for any reason.[23] The law provides administrative and judicial remedies for those who believe they have been improperly denied access to records.[24] Whenever a FOIA request is denied, the agency must inform the requester of the reasons for the denial and notify the requester of the right to appeal the denial to the head of the agency.[25] When such administrative appeal is denied, a requester then has the right to challenge the denial in court – with a FOIA lawsuit, of which the burden of justifying the withholding of documents is on the government.[26]

Article 26 of the Measure provides that the public can report a perceived violation of environmental disclosure requirement by an environmental authority to its higher supervising authorities, and when such report is received and recognized, the higher authority should prompt the violating department to comply with the Measure’s requirement.[27] In addition, citizens or domestic entities can request administrative review or bring administrative proceedings, if they believe the environmental authorities in their environmental disclosure process has violated their rights.[28] The previous Administrative Procedure Law of China only recognize rights of the person and of properties, and the right to access of information does not provide right to sue under the Administrative Procedure Law.[29] This law was amended 2015. Although the amended statute mentioned governmental disclosure cases, and thus seemed to created standing for such cases, it specifically listed governmental disclosure cases as ones should go through simplified review procedure similar to cases with trivial damage.[30] This downplay on government disclosure cases reflected the government’s view on citizen’s right to information.

 

  • Conclusion

Many questions remain unanswered under the Measure. Who can citizens or entities report to when the highest environmental authorities do not comply with the Measure’s disclosure requirement? When it’s the general public’s right that is violated, who can bring a lawsuit? What happens if no one brings such lawsuits? If a request for environmental information is ignored, wrongfully refused, or inadequately answered so that the inaccurate or untrue information caused personal or property damage to a person, will the environmental authority be required to restitute such damages?

The Measure, with many inadequacies, did introduce environmental disclosure as a modern approach to protect the environment. Based on the experience and lessons from the US and the EU, China has a long way to go in improving its environmental disclosure regime. First, a general right to access of information should be established in the Environment Protection Law. Second, the Ministry of Environment should carry out a thorough study of the scope of environmental information, balance between disclosure and national security, and a rating standard of environmental disclosure. Most importantly, a comprehensive remedial scheme should be established. For more than a decade, academia has proposed granting court access for public environmental lawsuits, because traditional lawsuits have inherent inadequacies in protecting the environment as public good. The National People’s Congress should take this proposal into its agenda.

[1] Mark Stephan, Environmental Information Disclosure Programs: They Work, but Why?, 83 Soc. Sci. Q 190, 190-91 (2002).

[2] Id. at 192.

[3] Id. at 191.

[4] Id. at 193.

[5] Zhonghua Renmin Gongheguo Huanjing Xinxi Gongkai Banfa (Shixing) (中华人民共和国环境信息公开办法(试行)) [Measures for the Disclosure of Environmental Information (for Trial Implementation)] (promulgated by St. Envtl Prot. Admin., Apr. 11, 2007, effective May 1, 2008) (China)

[6] Zhonghua Renmin Gongheguo Zhengfu Xinxi Gongkai Tiaoli (中华人民共和国政府信息公开条例) [People’s Republic of China Regulation on the Disclosure of Government Information] (promulgated by St. Council Apr. 5, 2007, effective May 1, 2008) St. Council Gaz., Apr. 20, 2007 (China).

[7] Directive 2003/4/EC, of the European Parliament and of the Council of 28 January 2003 on Public Access to the Environmental Information and Repealing Council Directive 90/313/EEC, 2003 O.J. (L 41) 26.

 

[8] See European Commission, What is the Aarhus Convention, Europa.eu, http://ec.europa.eu/environment/aarhus/ (last updated Mar. 10, 2016).

[9] Id.

[10] See UNECE, The Aarhus Convention: An Implementation Guide (second edition), UNECE.org, http://www.unece.org/env/pp/implementation_guide.html (published June 2014).

[11] Envtl. Prot. Agency, 2009 Toxics Release Inventory National Analysis Overview, https://www.epa.gov/sites/production/files/documents/2009_national_analysis_overview_document.pdf.

[12] Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention), 2161 UNTS 447; 38 ILM 517 (1999), Article 4(1).

[13] See generally, EPA, Learn about FOIA, http://www.epa.gov/foia/learn-about-foia.

[14] See Dep’t of Justice, Guide to the Freedom of Information Act Procedural Requirements, 66-67, https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/procedural-requirements.pdf.

[15] Council Directive 2003/4/EC, Article 4

[16] The Measure, Article 10.

[17] Aarhus Convention, Article 9

[18] Id.

[19] See Directive 2003/4/EC, Article 6.

[20] Envtl. Law Inst., A Citizen’s Guide to Using Federal Environmental Laws to Secure Environmental Justice (2002), 33, available at http://www.eli.org/research-report/citizens-guide-using-federal-environmental-laws-secure-environmental-justice.

[21] Id.

[22] Id.

[23] The Freedom of Information Act, 5 U.S.C. § 552, as amended by Pub. Law No. 110-175, 121 Stat. 2524, and Pub. Law No. 111-83, § 564, 123 Stat. 2142, 2184, Available at http://www.justice.gov/oip/amended-foia-redlined-2010.pdf.

[24] U.S. House of Representatives Committee on Oversight and Government Reform, A Citizen’s Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records, 2, available at https://oversight.house.gov/wp-content/uploads/2012/09/Citizens-Guide-on-Using-FOIA.2012.pdf

[25] Id. at 21

[26] Id. at 24.

[27] The Measure, Article 26.

[28] Id.

[29] Zhonghua Renmin Gongheguo Xingzheng Susong Fa (中华人民共和国行政诉讼法) [Administrative Procedure Law of the People’s Republic of China], (promulgated by the Standing Comm. Nat’l People’s Cong. Apr. 4, 1989, effective Oct. 1, 1990) 2000 Standing Comm. Nat’l People’s Cong. Gaz. (China).

[30] Zhonghua Renmin Gongheguo Xingzheng Susong Fa (中华人民共和国行政诉讼法) [Administrative Procedure Law of the People’s Republic of China], (promulgated by the Standing Comm. Nat’l People’s Cong. Nov. 1, 2014, effective May 1, 2015) 2015 Standing Comm. Nat’l People’s Cong. Gaz. (China).

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