May 01, 2013

Got mask? All choked up in Beijing

Editor’s note: This is one of two articles in this issue dealing with different national standards and enforcement of standards regulating particulate matter smaller than 2.5 micrometers (PM2.5). Margret Kim and Robert Jones discuss laws and enforcement related to PM2.5 in China, while Margaret Peloso analyzes a D.C. Circuit decision reviewing EPA’s efforts to regulate PM2.5 pursuant to the Clean Air Act. The editor recommends reading both articles for a better understanding of contrasting national approaches to the same pollutant problem.

This January, Beijing experienced suffocating smog, at the highest levels ever recorded. “Crazy Bad,” “airpocalypse,” and “airmegeddon” were just a few of the colorful phrases being used to describe it. Beijing’s Air Quality Index reading for particulate matter less than 2.5 micrometers (PM2.5) was over 755, exceeding the maximum amount the equipment was designed to measure—it was literally “off the charts.” The World Health Organization guidelines consider a reading of 25 or above as unhealthful, and New York City’s was 19 at that time. After three decades of relentless economic growth, the residents of Beijing and most of China’s other major cities are regularly treated to an intoxicating cocktail of various pollutants, PM2.5 being the most worrying of this witches brew. Beijing’s immediate answer was to temporarily close down some dusty building sites and polluting factories, recommend that fewer fire-works be used to celebrate the Lunar New Year and remove a third of the official fleet of cars from the city’s grid-locked roads. In the meantime, Beijing’s main children’s hospital was bursting at the seams with thousands of new patients and Beijing residents emptied store shelves of air purifiers and face masks.

How China got to airpocalypse

There are a number of reasons for this latest episode of Beijing’s great smoke-out, not least of which is geography. Like Los Angeles, Beijing sits in a basin surrounded by mountains, which makes it subject to temperature inversions. Also, like Los Angeles, there has been an explosion of automobiles on the roads. Beijing is home to more than 5 million vehicles, and recently, China’s auto sales overtook those in the United States. In addition, dirty burning, high sulfur coal still comprises about 70 percent of the country’s primary energy mix. China burned through an additional 325 million tons of coal in 2011, accounting for 87 percent of the entire world’s growth and a staggering 47 percent of global consumption—almost as much as the rest of the globe combined. A new study by Peking University and Greenpeace put the premature deaths from the effects of PM2.5 in four Chinese cities—Beijing, Shanghai, Guangzhou, and Xi’an—at 8,600 and at a cost of $1 billion in economic losses for just 2012. With health care still in its infancy, the health effects of the smog, coupled with a rapidly aging population, pose enormous challenges. It is not clear what the economic fall-out nationally is, but some unofficial estimates put this at 3 percent to 5 percent of the country’s gross domestic product.

Beijing’s air quality recently entered the realm of international politics. Back in 2008 the U.S. Embassy began to monitor the air in Beijing mainly for the benefit of its employees. The results were so high that the Embassy decided to make these readings public through Twitter, much to the embarrassment of the Beijing government. After a mixture of pleas and warnings that the U.S. Embassy was in contravention of the Vienna Convention and that the offending data may have “unintended social consequences,” the Beijing government began to publish its own readings (which were more often than not, considerably less hazardous than those of the Embassy). In fact, directly as a result of U.S. Embassy’s publication of air quality data, the national government is now releasing hourly readings for 74 cities, almost half of which show a high level of pollution. With the “pea-soup” like conditions earlier this year, the Beijing government can no longer deny that there is a problem. Although the U.S. Embassy Twitter feed had been blocked by the “Great Chinese Firewall,” many Internet users managed to gain access to the Embassy site, igniting a fire-storm in China’s social media and causing the official Chinese press to acknowledge the problem.

China’s existing regulations

China’s air pollution problem is not necessarily a result of a lack of regulation. Rather, a most fundamental issue is a lack of compliance with—and enforcement of—existing environmental laws. The Atmospheric Pollution Prevention and Control Law (APPCL) is the supreme law for air pollution control, which was originally enacted in 1987, amended last in 2000, and is currently under further revision. The 2000 APPCL contains a rather broad and vague framework for air pollution regulation consisting of 66 articles, separated into seven chapters, covering items including prevention and control of emissions from major sources such as coal-fired power plants and motor vehicles/vessels, legal liability, and dust control.

Despite ostensibly covering key air quality problems, the APPCL is deficient in many ways. Broadly speaking, the current APPCL lacks “health-based” ambient standards, strong national government oversight, mechanisms to tackle regional air pollution issues, information disclosure, deterrence to environmental violations, and public participation. For example, while local government can establish more stringent standards subject to national government approval, local Environmental Protection Bureaus (EPBs) operate in significant isolation from the national government environmental agencies. Indeed, there is no oversight by national environmental agencies to help strengthen pollution management and they have no independent enforcement authority against non-complying entities.

Further, the law only covers control of air pollution at the city-level, and does not address regional approaches to air quality management, planning, permitting, and monitoring. Although the national government recently created regional offices for administrative and enforcement support of the national environmental agency, EPBs are not required to report or share information or otherwise cooperate with them. Also, there is insufficient funding and staffing levels at the regional offices. Additional problems with the APPCL include the lack of an information disclosure component, low penalties—that do not accrue per day of violation—that fail to provide an adequate deterrent (or incentive to correct violations), and no explicit statement allowing public participation in the regulatory process.

Thus far, the municipality of Beijing did not have its own local air pollution regulations (unlike water pollution law) but only implemented the national APPCL. However, in January 2013, and largely in response to public pressure, the Beijing government took a bold step of circulating for public comment the Municipal Air Pollution Prevention and Control Regulations, known as the “strictest of its kind.” The draft rules include measures to shut down factories and further limit the number of vehicles on the road. They also propose banning certain intensive industries (like iron and steel) from opening in Beijing, and would require certain companies to report their pollution emissions on their corporate websites.

Challenges to enforcement

While the recent proposal by the municipality of Beijing is encouraging, challenges remain. It is important to understand that while China’s Ministry of Environment Protection plays the key role in designing pollution control policies and programs, the EPBs implement national environmental laws at the local level. Because China’s environmental laws are general and often intentionally ambiguous, local governments and courts have significant flexibility. Further, China’s post-1978 decentralization policies gave local officials strong financial incentives to expand their economies, meaning that local enterprises contribute significantly to municipal government revenues. Municipal EPBs, like the Beijing EPB, are units of municipal governments and as such are sensitive to how their enforcement of environmental requirements affects enterprises.

Moreover, a Chinese concept called guanxi (social connection) has long been an important part of Chinese life. Individuals with extensive guanxi networks, despite “conflicts of interest,” are able to influence greatly how regulations are implemented and often make compliance and enforcement difficult. In addition, unlike the litigious United States, disputes in China are generally resolved through informal negotiations. While legal institutions have strengthened, mediation and conciliation continue to be significant. Historically and culturally, China has long viewed the legal system as a means to implement state policy and less so for protecting citizens’ rights. For this reason the Chinese legal system has developed in a way that often suppresses transparency and accountability and discourages people from challenging it. Even more frustrating is that judges are ultimately beholden to the local government and the Chinese Communist Party. The result is that citizens are discouraged to bring lawsuits (although citizen-based environmental suits have increased recently).

China also has an ancient tradition of allowing citizens to petition up to the highest level of government (Beijing, in this case) to seek redress for grievances at the local level. However, despite this tradition, most would-be petitioners with environmental issues who make it as far as Beijing find themselves cooling their heels in what are called “black jails” (illegal detention centers set up by local authorities to prevent access) before being sent home. A number of lawyers, who had the temerity to represent some of these individuals, have been roughed-up, while others have simply disappeared.

The Chinese government protects itself from criticism in other ways. For example, non-governmental organization (NGOs) must be registered with and approved by the government. Many are established to meet government agency objectives, resulting in NGOs that are unable to criticize the government’s policies. The media is also tightly controlled, essentially making it part of the propaganda machine. Although the media has recently become more vocal on air issues, that attention may be temporary. With the help of Western media and NGOs, many local grass-roots organizations have emerged, but all are limited in just how far they can push the government.

Get a mask and hope for change?

With the lack of enforced laws and transparency, coupled with the general opacity of government and a culture of corruption, change will be difficult to come by. In the past, the government has pushed development at all cost so as to maintain social harmony, but that mentality has led to air pollution at such extreme levels that itself threatens social harmony.

So, what is the solution for Beijing? While the U.S. Clean Air Act is constantly under attack, Beijing is welcoming California Air Resources Board and the U.S. Environmental Protection Agency to learn about our laws and regulations. The Beijing municipal government has entered into Memorandums of Understanding to cooperate on environmental issues, including exchanges of information, experiences, and best practices; training of personnel and capacity building; and technical support through workshops, seminars, and exchanges of technical and policy specialists.

The hope is that through these exchanges and a better understanding of our environmental laws, China will open up and understand the benefits of public participation and the rule of law. In the meantime, Beijing is now waiting with bated breath for the “feng sha” to begin, the dust storms that blow in periodically from the Gobi Desert in the spring. Got a mask handy?