Environmental Governance in China
Featuring: Gordon Davis, American Bar Association; Jia Feng, Center for Environmental Education and Communications, SEPA; Richard Ferris, Beveridge & Diamond, P.C. (Discussant)
By Timothy Hildebrandt and Jennifer L. Turner
In the early 1990s, the countries of the former Soviet Union embarked upon an almost unfathomable course of action; these fifteen once unified states would attempt to simultaneously change their regimes, transform their economies, and turn their political systems upside down. Observers from around the globe pointed to the importance of creating a reliable legal system to facilitate these great changes—indeed, a foundation for drawing contracts was necessary for economic success while a system for leadership succession and elections were central for true political reform. Certainly, the appearance of a legal framework existed in the former Soviet Union; legal infrastructure such as gaggles of attorneys, large and ornate court buildings, and volumes of laws. But, transparency and rule of law were present only in party rhetoric.
The American Bar Association (ABA), a preeminent legal nongovernmental organization (NGO), recognized the need for legal assistance in these newly independent states and quickly discovered an appropriate role in the transformation. In 1991, ABA founded CEELI, the Central European and Eurasian Law Initiative, a public service project that provided pro bono legal assistance. This initiative sought to help create true legal frameworks through judicial restructuring, reforming legal education, interpreting and crafting constitutional law, and sharpening criminal and commercial laws.
By virtue of its size and shared history of communism, China is inevitably compared to the former Soviet Union. Though without the regime change and political upheaval that transformed the former Soviet states, China also has embarked on its own journey of economic transformation. Similarly, it is beginning to explore options for evolving its nascent legal systems.
The American Bar Association, with its wealth of experience from CEELI, recently ventured into mainland China to begin a program focused on environmental governance—in hopes that the new legal practices might eventually matriculate to other areas in China. This meeting at the Wilson Center featured the ABA's representative in China, Gordon Davis, and ABA's Chinese partner, Jia Feng of the Center for Environmental Education and Communications at the State Environmental Protection Administration (SEPA). These two legal experts outlined the genesis of their China work and the core training seminars of the project. Davis explained the necessity of answering simple questions of who should be involved and what topics should be covered, while Jia Feng reflected on prospects for future U.S.-China legal collaboration. Tad Ferris, of Beveridge & Diamond, P.C, provided insights of his own, highlighting the importance of involving a wide spectrum of stakeholders, beyond just lawyers and judges.
Appropriately enough, the origins of ABA's China program can be traced back to a teahouse discussion among China hands from government, legal and academic communities in Washington, DC. What emerged from the meeting was the broad idea of combining environmental law and rule of law concepts in a permanent program in China, with program managers based on the ground and the creation of training workshops of all relevant stakeholders. Funding to support ABA's environmental governance program was provided by the U.S. Department of State—drawing on funds appropriated by the 1999 Permanent Normal Trade Relations Act.
An integral part of this environmental governance project, according to Gordon Davis, was the desire to not simply "parachute in," fix some problems, and return home, but to create a permanent program that involved local experts. In addition, ABA felt the project would be more valuable if it involved a diverse group of stakeholders, not just those directly involved in practicing law. To that end, ABA began a relationship with SEPA's Center for Environmental Education and Communications. In the project's first year, ABA wanted to initially convene three training seminars on issues relating to environmental governance, but before the project could move further they had to: (1) determine the location of the seminars, (2) identify instructors (3) develop an appropriate curriculum, and (4) design relevant follow-up meetings in each location.
Gordon Davis and Jia Feng decided to create a Project Advisory Council composed of a broad spectrum of experts, to answer these crucial organizational questions. Drawing on recommendations from U.S. embassy officials in Beijing and Jia Feng, a diverse council of twenty-one Chinese and American experts was formed. The council includes representatives from legal organizations such as the All-China Lawyers Association and China Law Society; government experts from the Environmental Protection and Resources Conservation Committee of National State Council and SEPA; environmental NGOs and private consultants, as well as individuals from the U.S. Department of State. The council came to a consensus on the four organizing issues at the first meeting and since then, the council has continued to provide advice, meeting six times over the past year.
The Program Advisory Council recommended that to best serve a wide audience in China the environmental governance training seminars should be held not in the country's three largest cities, but in regions and cities of varied size with uniquely different environmental issues. The program arrived at three sites and three specific themes and follow-on activities for their seminars:
Having decided on seminar locations, the council began to select instructors. After exhausting some of their own ideas, according to Jia Feng, Gordon Davis cleverly decided to ask members of the advisory council to also serve as instructors. Thus the instructors represented different communities: NGO, business, government, and news media. The greatest initial challenge to the program's success was, perhaps not surprisingly, the issue of curriculum. As other organizations have found in past environmental educational exchanges between the United States and China (Editor's Note: See 6 November 2002 meeting summary on Greening Business), there are little materials published in Chinese and relevant to China's unique problems. Certainly, many council members were anxious to copy U.S. teaching modules—however, after contemplation, the group decided to use some U.S. case studies, but the bulk of the materials, roughly 80 percent, would be relevant to China specifically. In addition, since the intended audience would be diverse, the seminars would include a great variety of topics, from the broad—basic law structure in China—to the specific—environmental law and enforcement. To keep the audience engaged, the council suggested that the program use interactive materials and organize field trips for the participants.
In order to insure a sustained and lasting effect of the seminars, ABA will remain engaged in each city's specific environmental law issues by creating follow-on activities. Like the initial seminars, the project will use its wide variety of experts to offer advice and consultation. In the case of Shenyang, for example, the ABA project will continue to provide information and analysis of the public participation law as it enters the final drafting and implementation stages. In addition, ABA has resolved to expand its presence in China and the Project Advisory Council will help choose three more cities, with their own unique themes. Ideally, lessons learned from the first year of seminars will make the next round even more fruitful.
After just one year and three extensive training seminars, the Environmental Governance Project in China is being hailed as a success. Jia Feng noted that evaluation forms from participants reported that the seminars were "fresh, novel, free, lively, focused and rich." Participants were made aware of the multi-disciplinary involvement and interest in environmental issues throughout China. Many were motivated to expand their involvement; Jia Feng remembered one eager participant who implored "please tell me which NGO I can be involved in!" Beyond expanding the minds of the participants, the project also has led to some immediate effects on policy: Gordon Davis reported that out of the Shenyang seminar came a new, much improved, public participation law. The new legislation was so popular that many different levels of government officials fought over who had the right to actually pass the law. Certainly, eager officials are a benefit to the project—eager officials that have the wherewithal to pass legislation are even better.
Challenges, however, still remain. Information access, crucial for crafting relevant curriculum, is limited. While there is great government support for the environment in general, and ABA's environmental governance project specifically, China's large bureaucracy, which loathes to release information, represents a hindrance to initiatives to introduce new legal concepts. Tad Ferris cited one small example when he was denied the right to receive in a book of Chinese environmental standards for it was deemed a "secret state document." Ferris argued that all China's government agencies must cooperate for rule of law initiatives to be most successful. In other words, other agencies beyond SEPA, need to get involved in environmental governance.
More pressing for the continuation of the project is funding. The project's first year was funded by the U.S. Department of State, but additional money remains to be secured so that the project can fulfill its goal of maintaining a sustained presence and capitalize on successes already made in the past year. ABA is currently in discussions with other government bureaus—this Wilson Center meeting allowed more interested parties to learn about the promise of the project and the need for continued U.S. support.
Contemplating Questions Redux
As the project enters its second year, beyond questions on how the project can secure greater and more diversified funding, those involved have already begun to explore questions on expanding the project's impact:
For Jia Feng, the secret of the project's successful first year is rather simple: (1) The Project Advisory Council selected good topics, cities, and instructors; (2) the implementation organizations, ABA and CEEC, were well prepared; (3) by being based in Beijing the project coordinator Gordon Davis was able to quickly build up a strong support network, and (4) the project recognized the importance of collaboration, working with the entire local community. Indeed, Tad Ferris underscored how involving a wide spectrum of stakeholders is crucial, for if those affected by new laws are involved in the creation process, they are far more likely to comply (and help monitor). While this environmental governance initiative is still small, ABA's track record with CEELI suggests continued success for this China program; over the past ten years, over 5,000 judges, attorneys and legal scholars have contributed over $150 million in pro bono assistance to promote rule of law through CEELI.