Over the past three decades, China has seen rapid economic development, lifting tens of millions of people out of poverty. However, that development came at a huge environmental cost. Over that same period, rivers turned black, farm soil became toxic and large stretches of China’s skies turned gray. Officials blamed hazy skies — the most visible of these pollution problems — on “fog” or “smoke from barbecue grills.”
American Bar Association Rule of Law Initiative trained environmental NGOs how to use Open Government Information requests to discover and prove illegal pollution.
Around the turn of the century, a small but growing number of grass-roots environmental advocates across China believed that the country’s environmental changes were not as harmless as reported. As a result, they began looking for ways to address pollution. Although, without any means to obtain information, concerned citizens had little power to discover the facts surrounding pollution problems, much less solve them.
In 2008, China passed the national Open Government Information (OGI) regulations requiring disclosure of a wide range of government information including, environmental conditions and pollutants emitted by businesses. These regulations are part of a growing trend towards recognizing the public’s right to information. The leader of one of China’s leading grass-roots environmental nongovernment organizations (NGOs), Lu Tan*, saw the groundbreaking potential of this new tool. Tan — a lifelong advocate for the environment — for many years lived in a province with multiple polluting industries and had witnessed pollution and the destruction it brought. Tan realized by using the OGI regulations to obtain the facts surrounding polluters’ behavior, he could collect evidence to sue polluters or lobby the government to take action and end pollution. To execute this strategy, however, he needed to understand the regulations.
Over the course of several years, the American Bar Association Rule of Law Initiative (ABA ROLI) trained Tan and other environmental NGOs, how to use OGI information requests to discover and prove illegal pollution. During the trainings, participants learned how to obtain information about oversight and enforcement, as well as the statements businesses make to the government regarding their pollutants, the amount of pollution and the size of factory operations. In many cases, this information was enough for Tan to prove factories were operating illegally, allowing him to take action to stop pollution.
ABA ROLI helped Tan work closely with lawyers who could use this information in litigation and other legal advocacy. 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 engage government agencies and help them understand their responsibilities. Tan frequently encountered areas where political and economic forces — such as the presence of a powerful industry — discouraged local governments from strong environmental oversight. In these situations, Tan’s OGI requests provided progressive local officials with leverage to be stronger environmental advocates internally. Officials could cite Tan’s OGI requests to increase awareness and better enforce the law, avoiding negative media attention and potential embarrassment for local governments.
As word spread among environmental NGOs about the successful use of OGI tools and legal advocacy, ABA ROLI created platforms for advocates to pass their knowledge on to new organizations. With ABA ROLI’s support, Tan’s staff lawyers mentored young advocates on how to work with environmentally vulnerable communities, approach problems from a legal perspective and coordinate with government agencies to stop illegal pollution. One trainee now leads an environmental NGO in his home province, which faces severe pollution from coal mining and toxic levels of metals in the agricultural soil.
ABA ROLI’s work with environmental NGOs illustrates the importance of using law for anti-pollution advocacy in China. In two adjacent villages, pollution victims wanted to close down nearby factories whose emissions were causing health and economic harm. In one village, ABA ROLI trained local advocate Aunt Chen* to engage the government using OGI requests and advocacy with officials. Chen obtained information showing the factory’s operations were illegal, ultimately convincing local government leaders to shut it down. Meanwhile, in the other village, residents who lacked understanding of the law and legal advocacy turned to civil disobedience tactics. Through protesting and disrupting factory operations, citizens hoped to make it so troublesome for the factory to continue operating that either the government or the factory owners would close it. But their strategy failed: villagers were arrested for causing unrest, officials were sacked for failing to prevent it and the polluter continued to operate.
Over several years, ABA ROLI’s efforts helped cause a sea of change among environmental NGOs in China. Organizations that began as science-oriented or public education-focused came to embrace legal advocacy as an effective and politically safe means to address pollution. Later, as expertise expanded in both information transparency and public advocacy for environmental protection, organizations turned their experience into recommendations for legal revisions that further strengthened transparency and public participation. As a result, China’s newly revised national Environmental Protection Law, which went into effect January 2015, contains progressive language recognizing the role of environmental NGOs and expands the types of information that must be publicly disclosed. After the law went into effect, ABA ROLI has continued to work with advocates and lawyers to ensure the law’s proper implementation and ongoing improvements to China’s environmental rule of law.
*Names have been changed to protect the identities of the subjects.
To learn more about our work in China, please contact the ABA Rule of Law Initiative at email@example.com.