Tsinghua Lecture & State Council Regulations

This week I started what will be a series of a dozen guest lectures that will take me to universities in many cities throughout China. On Thursday I spoke at Tsinghua University School of Law in Beijing on "The Emergence of Global Environmental Law," a theme I am emphasizing in lectures around the world. Prior to the lecture I had dinner with some of the Tsinghua faculty. We had an interesting discussion about globalization and the Tibet protests both during the dinner and during an hour’s discussion with students after the lecture. Some confidently opined that the problem would end when the Dalai Lama dies. I strongly disagreed with them and argued that if the situation was not resolved prior to the death of the Dalai Lama it actually would become worse because there would be no credible Tibetan authority figure who could negotiate a settlement with the Chinese government.

The Chinese media have continued their propaganda campaign against the Dalai Lama, even though the government has announced that it will meet with his representatives. The English language CCTV-9 channel keeps featuring Sidley & Austin lawyer Robert Fabricant (not to be confused with the former EPA general counsel who spells his name with a "c" instead of a "k"). Earlier this week it interviewed him as though he was just a random American appearing at a pro-Chinese rally in D.C. On Saturday night's network news the second headline was something like "American Lawyer Says China Has Done Great Things for Tibet". I was wondering who that lawyer would be and, sure enough, it again turned out to be Robert Fabrikant. The news report prominently featured the fact that he teaches at Georgetown University Law School (apparently as an adjunct) and it mentioned that he had visited China six times and had been in Tibet in 2005. That inspired me to calculate that I have visited China 12 times and I was in Tibet in October 2007. While my Tibetan driver and guide conceded that one good thing China had done was to plant lots of trees in Tibet, they complained bitterly about how the Chinese government treated Tibetans.

This weekend I made a quick tourist trip to Guilin. I flew to Guilin on Friday and on Saturday I had absolutely glorious weather for the spectacular boat trip along the Li River from Guilin to Yangshou. The four-hour trip features incredible views of the "karsts", the unusual limestone formations that have made this one of the top tourist attractions in China. On the boat I met a wonderful couple from Indonesia and a boisterous group of tourists from Lebanon who hooked up an iPod to external speakers and starting dancing on the boat. Photos of my trip to Guilin are available onlines at: http://gallery.mac.com/rperci/100202. After teaching my Environmenal Law class in Beijing on Monday, I am taking advantage of Thursday's May Day holiday by flying to Hanoi to start a tour of Vietnam. On Tuesday I will be meeting with Dr. Ha, the head of Vietnam's Environmental Protection Agency.

This week NRDC's Beijing office shared with me an English translation of the Chinese State Council's proposed regulations on public participation in the review of environmental impact assessments by local governments adopting comprehensive or special plans for land use and development. One interesting aspect of the draft regulations is that they specify that sanctions, including firing, should be imposed on “the persons directly in charge and the other persons directly responsible” when government officials fail to comply with public participation requirements. When you don’t have citizen suits and judicial review to hold government agencies accountable maybe it’s reasonable to have regulations specifying that sanctions shall be imposed on government employees who violate them.

Earth Day Celebration in China (By Guest Blogger Huang Jing)

In celebration of Earth Day on April 22, a group of students from China University of Political Science and Law (CUPL) launched various activities on campus to raise awareness of environmental protection. (Photos of the Earth Day celebration are posted online at http://gallery.mac.com/rperci/10079). These activities were organized mainly by students from CUPL’s School of International Law. The students handed out leaflets and displayed colorful pictures they had made. The pictures stressed the importance of protecting the planet, saving our climate, protecting water resources, and refusing disposable chopsticks and plastic bags. Many students signed their names to a long banner attesting to their determination to protect our earth.

The main organizer, Wang Baomin, emphasized that to save the planet, everyone has to become part of the solution. Starting with small things, everyone can make a difference. These small steps include encouraging students to refuse to use disposable chopsticks and plastic bags. Some students use disposable chopsticks when eating out in some restaurants. It is a waste of resources and contributes to environmental harm. Many students in our school often carry food back to their dormitories in plastic bags, which are then discarded. We hope more students will reuse plastic shopping bags and take their own chopsticks when eating out.

At the end of the day Wang and other volunteers said that though they were a little tired, they were happy by the positive response to their efforts. They pledged to continue these efforts and to cooperate with the students majoring in environmental law to launch more activities in the future.

Visit of ABA Environmental Delegation

This week a delegation of environmental lawyers from the American Bar Association (ABA) visited Beijing. Hyeon-Ju Rho, the Director of the ABA’s Beijing office prepared a terrific program for them that included spending Thursday afternoon at the China University of Political Science and Law (CUPL) where I teach. They met Professor Wang Canfa, director of the Center for Legal Assistance to Pollution Victims (CLAPV) and toured CLAPV’s office. The visiting ABA group included Michele Perrault, International Vice President, External Affairs, from the Sierra Club’s San Francisco Office; Jeff Smoller, a special assistant to the director of the Wisconsin Department of Natural Resources; Ed Wang from the California Air Resources Board; Alvin Chong, who formerly worked for EPA Region IX in San Francisco; and Xie Gang, the Asia Division Program Manager for the ABA’s Rule of Law Initiative in Washington.

Wang Canfa made an excellent presentation about the work of CLAPV. He described how CLAPV has assembled hundreds of volunteer lawyers throughout China to handle cases in various parts of the country. CLAPV provides free training to the lawyers in return for their agreeing to handle at least one case a year. As a result of CLAPV’s hotline for environmental complaints, CLAPV has filed more than 100 cases since its founding in November 1999, winning about half of them. Professor Wang explained that favorable publicity has been a key to some of CLAPV’s success. Among CLAPV’s greatest victories have been a ¥ 5.6 million damages award on behalf of 97 victims of pollution from two factories and the first successful case against a municipal planning agency brought on behalf of 182 citizens who objected to the agency’s issuance of illegal permits.

Wei Ru Jiu, one of CLAPV’s volunteer lawyers who attended the meeting, has organized a group of criminal defense lawyers to provide legal representation for those who face retaliation for pursuing environmental complaints. This has been particularly useful because most criminal defense lawyers know nothing about environmental law and thus do not understand how important it is to provide such defense services. He described himself as a human rights lawyer and explained how government policy restricts the rights of poor farmers like his father who is unable to leave the rural area in which he lives.

I mentioned to the group that Wang Canfa will be an Olympic torchbearer on June 10, which is a great honor. There has been a tremendous backlash here against the Tibetan protests that followed the Olympic torch. The Chinese government is fueling some of this backlash, seeking to demonize the Dalai Lama, despite his statements that he is opposed to violence and supports China hosting the Olympics. Ironically, the Chinese government is accusing the western press of bias even as it continues to censor criticism of its own policies by blacking out portions of broadcasts from CNN International and BBC. The government sought to block the Chinese people from seeing or hearing about the torch protests when they happened, but they now are retroactively publicizing a protester’s attack on a disabled torch bearer in Paris and honoring the torch bearer for her courage. On Friday I ran into a fellow Fulbrighter who teaches journalism at a university in Beijing. She reported that she has had a difficult time here because students perceive her as associated with the biased Western press. The Chinese government may now think the backlash has gone too far because they have not endorsed calls by many Chinese to boycott French products perhaps because they realize that China may have more to lose from trade boycotts.

My classes continue to go very well because of the great enthusiasm of my students for environmental law. On Thursday in my Comparative Law class I briefly discussed the Civil Rights Act of 1964, but was astonished when one of my smartest students approached me during the break to say that racial discrimination in employment should not be prohibited because discrimination is a private matter. I told her that opponents of the legislation initially used that argument, but that the legislation was now almost universally accepted, even though much discrimination remains in the U.S. Following the class I took three students to lunch. They discussed how the experience of children growing up in China must be much different than in the U.S. because most Chinese kids do not have siblings given the country’s “one child” policy.

Tseming Yang from Vermont Law School was in Beijing this week on his way to Guangzhou and Bangkok for work in connection with Vermont’s environmental partnership with Sun Yat-sen University School of Law. On Tuesday I had dinner with Tseming and Jingjing Liu, associate director of the program. On June 6 I will be joining them at Sun Yat-sen University to lecture and participate in a roundtable on teaching environmental law.

ARGENTINA'S CHACRAS CASE (Guest Blog by Sabrina Hassanali

The city of Cordoba is located near the geographical center of Argentina. It is a city marked for its colonial architecture and a well-preserved Jesuit Block from the 1600s which is a UNESCO World Heritage site. Cordoba is also the country’s second largest industrial center and in recent decades has continued to grow in size. A twenty minute bus ride away from the bustling center, the poor suffer the consequences of a growing city. Relegated to the extreme east, inside the municipal border, the barrio of Chacras de la Merced is home to one of the cities eight waste treatment plants, shanty towns and government housing for the poor.

As the population of Cordoba has grown in recent years, the amount of waste taken in by the processing plant has continued to increase. The waste treatment plant works over its intended capacity and as a result cannot fully treat the waste that it accepts for processing. The excess waste contaminates the water sources in the area. To make matters worse, the southern border of the Chacras is enclosed by the polluted Rio Suquia. The city’s private water company, Aguas Cordobes, refuses to provide water to the people of the Chacras. Consequently, the residents of the neighborhood have had to use contaminated ponds as their water source.

For years, community activists have filed complaints to municipal agencies in order to improve the functioning of the waste treatment plant and the local water quality. Their complaints fell on deaf ears until Centro de Derechos Humanos y Ambiente (CEDHA), Spanish for the Center of Human Rights and Environment stepped in to litigate in 2003.

One of CEDHA’s institutional goals is to link the debate between environmental protection and the enforcement of human rights. For those who live in poverty, the nexus between environmental conditions and human rights is all too clear. The consequences of unsanitary living conditions are felt disproportionately by the poor. They live near polluted waterways and toxins. Then, they suffer poor health as result of these living conditions. Thus, the linking of these debates is natural for the marginalized in society. At the same time, judicial systems are generally hesitant to identify or define new obligations for the state that would result in the enforcement of environmental and human rights.

Fortunately, for the community of the Chacras, the Argentine legal system has an important tool, an action of amparo, to guarantee constitutional rights. It provides for a shorter litigation process when there is an overt violation of a constitutional right. Argentina is party to numerous international resolutions that seek to establish a right to a clean environment. These resolutions are incorporated into the Argentine constitution. In the Chacras community, the lack of clean water laid the foundation for the use of the amparo action. In order to assist the Chacras community in receiving potable water, CEDHA worked creatively to craft a right to water through existing legal jurisprudence. The CEDHA lawyers argued that without clean water, the community was deprived of the right to health, a clean environment and a dignified quality of life (these are enumerated in the Argentina constitution). In its amparo action, CEDHA linked the right to a clean environment and health to the right to water. Through their work in the Chacras case, CEDHA has developed provincial jurisprudence for a right to water. This sets the stage to push further litigation through the legal system and expand the ‘right to water’ to a national and international reality.

While CEDHA won its amparo action, the results in the community are indicative of the layers of bureaucracy and general inefficiencies of the cities municipal organizations. Through the work of CEDHA, the people of Chacras received water delivered by a municipal agency. However, after a recent change in the city’s governing political party, the agency charged with providing water ceased to provide water regularly due to a lack of funding. Furthermore, through the work of CEDHA the community was able to get a tap for underwater pond for in-home use. However, in order to avoid costly drilling, the pipe for accessing underground sources of water was not drilled deep enough. As a result, the water from the perforation drilled by the municipal agency has high levels of arsenic. While improvements are being made to the waste treatment plant, they are painstakingly slow. Social workers, community activists and CEDHA continue to assist the Chacras del Merced in their struggle with day-to-day functioning of municipal services.

SABRINA HASSANALI is a law student at the University of Maryland School of Law who is spending the spring semester 2008 working as an extern for the Center for Human Rights and the Environment (CEDHA) in Cordoba, Argentina.

Environmental Regulation Roundtable

The past several weeks have been very busy as I made a brief return trip to the U.S. and then brought my wife back to China with me for a ten-day visit.

On Sunday April 13 I participated in an Environmental Regulation Roundtable held at the School of Public Policy and Management at Tsinghua University. Professor Qi Ye from Tsinghua served as host for the meeting. Outgoing EPA General Counsel Roger Martella, Jr. gave a presentation on “Federalism, Permitting & Public Participation: Three Pillars of U.S. Environmental Law.” Wang Jinnan from the Chinese Academy for Environmental Planning discussed “China’s Environmental Governance Reform.” He described the government reorganization that recently transformed China’s State Environmental Protection Agency (SEPA) into the new Ministry of Environmental Protection (MEP). Xiaobo Lu, a professor of political science from Columbia University who is visiting at Tsinghua, expressed considerable skepticism about the reorganization. Noting that it was referred to as a “platform for further reform,” he argued that for now it is largely just a change of name. The new MEP is still trying to figure out its functions, personnel, and other issues without any underlying law that clearly answers these questions.

I served as the discussant for a presentation by EPA attorney Steve Wolfson on “Permitting and Trading in U.S. Environmental Law.” I argued that environmental law had followed a similar evolution in both China and the U.S., beginning with ad hoc efforts to relocate polluting industries away from populated areas to end-of-the-pipe pollution controls and then efforts to encourage the development of better technology and process changes to reduce the generation of pollution. I noted that environmental policy needed to be more integrated into energy, land use, tax, transportation, and housing policies that substantially affect environmental conditions, something that the Chinese government could do given its greater emphasis on planning.

Zhang Jianming from the South China Center for Environmental Supervision discussed his organization’s work as one of the first two pilot “regional centers” set up by SEPA. While SEPA subsequently expanded these centers to eight, their status remains somewhat unclear as they are not really regional offices, but organizations to which SEPA assigns matters on an ad hoc basis. Unfortunately I had to miss Wang Canfa’s presentation in the afternoon that discussed this issue in more detail because I had to accompany my wife to the airport for her return flight to the U.S. The general impression I received is that the MEP is moving to elevate these centers to the status of regional offices.

This week the Chinese government announced details of their plans to clean up the environment prior to the Olympics by temporarily shutting down construction activities that generate fugitive emissions and requiring other sources of air pollution to make substantial cutbacks. The Boao Forum for Asia featured an address by Rajendra Pachauri, chair of the Intergovernmental Panel on Climate Change, who indicated that India will reveal its plans for addressing climate change this summer. While the China Daily hailed this as “India to Follow China’s Green Lead,” a Time magazine columnist deemed it far more significant that Chinese President Hu Jintao barely mentioned climate change in his address to the Boao Forum (see http://time-blog.com/china_blog/2008/04/president_hu_does_chinas_davos.html).

On Saturday night my wife and I had dinner with a young Chinese “news assistant” for a major U.S. newspaper. He has been involved in researching some important stories concerning environmental conditions in China. What was particularly interesting is that he reported that he is being berated by friends for working for the Western press, which is viewed by many Chinese as biased against China in light of its reports concerning the unrest in Tibet.