[NGO Observation] Can the government and the public achieve a win-win situation?
November 17, 2010
Writer: Yan Haichao
Source: Third Page of China Environment News
On November 8th, 2010, the “Forum on Public Participation in Environmental Protection” was held in Jiaxing, Zhejiang. The key questions of the forum were: How can the government and the public achieve a win-win situation via the public's participation in environmental protection? Is the public being provided with adequate information on the environment? How should we improve the publicity of environmental information? How should public hearings be held? Looking back to some significant environmental pollution cases, government officials, experts involved and representatives from several non-governmental organizations (NGOs) had a conversation during the interactive part of the forum.
How should the public express itself?
Citizens in the Xiamen PX Case used "walking" as a means of expressing their complaints. How do we evaluate their means of participation? How should they express their needs? What are the channels for public participation in making environmental decisions? How should we push forward with public participation in environmental protection?
Ma Jun: Citizens expressed their objections to the pollution caused by the Xiamen PX Project very strongly. In my view, what is exciting about this event is the fact that so many people took part. The Environment Impact Assessment Law was published in 2003. The public surely has many opinions about the initiation of such a large program, but why are these opinions not being expressed? This is the biggest question.
What this case reveals is that not only should the government know the details about the program, but that the public must also know the facts.
Sun Shan: At present there are actually several important cases about the environment being promoted by the media. There should be a way for the public to get up-to-date information on environmental issues, but since the Xiamen PX case an information channel for the public has not emerged. In spite of this, people still took to the streets to express their environmental concerns in the Xiamen PX case and in the case of the garbage incineration plant. What we can’t see is that behind these events there were “folk scientists” who were able to translate the complicated information into a language the public could understand. We often lack a deep understanding of government procedure or the cases themselves.
Every time there is a march, we should not only look at the marching, but also realize that it shows that there are always people who care about the environment. As to how the information about the marches is conveyed or what kind of information leads the public to march, this is something the government pays close attention to.
Zhang Jian: The Xiamen PX case demonstrated that the channels available for public participation are still quite limited and the system is not consummate. Most of the time, public participation is not organized by environmental organizations. Instead they are spontaneous, organized through internet postings, for example.
If a project similar to that of the Xiamen PX Project is proposed in Jiaxing, how should we deal with the situation? We have actually confronted the same situation. When I saw the fierce discussions that had erupted on the Internet, we took them very seriously and went immediately to the project site to conduct an investigation. We conveyed the information to the public that, according to the experts, if the program was very risky then it should not proceed. During this process, the internet bridged us with the public.
At present, China’s environmental protection system is still in the development phase. The Environmental Protection Department is not powerful or authoritative enough. By increasing communication between the department and the public and by listening to the voices of the people, we hope to form a link between the government and the public.
Huang Xiaoshan: We have gotten involved in environmental protection because of the garbage incineration project. Early on, our conflict with the government and the media over incineration gave rise to a big nationwide discussion. We used tactics similar to the marching method used in Xiamen; we hung slogan banners on our cars and drove all around Beijing in demonstration.
Later I was selected to take an environmental expedition to Japan and Macau as a citizen representative, through which I developed a new view on garbage incineration.
Through this experience in public participation, I had a profound realization that citizens must be brave in exercising their individual rights. Being a normal citizen, it is impossible to be on a level playing field with the government, but we should never give up our rights. Only if we are brave, lawful and rational in exercising our personal rights can we have a space of our own.
How long is the road to achieving public access to information?
On July 3rd, 2010, water contaminated with copper was emitted from Zijin Mountain Copper Mining Plant, seriously polluting the Ting River. Worried about causing panic among the local public, the Zijin Group Co., Ltd. withheld information about the pollution from the authorities. Do our laws have any way of imposing punishment for this kind of deception? Is this case unique or is it typical?
Ma Jun: In the “Zijin Incident”,” the company kept information about the leak a secret for 10 days. Among market companies, this kind of limited information disclosure makes it unique. But if we look back at the numerous cases of environmental pollution cases we see that this is not a random phenomenon.
Upon searching for Mainland companies going to market in Hong Kong, we found 175 companies with an environmental pollution record. After a close reading of the annual reports and company websites, we discovered that the media had no record of any violations, indicating that there is still room for improvement in making environmental information available to the public.
Wang Canfa: Our country has issued the Government Information Publicity Act, but this act only stipulates the rules of information publication and has no weight in carrying out administrative punishments.
What will really frighten these companies? They must be suspended or barred from going to the market. The penalty of more than 9 million Yuan (about $1.35 million USD) was trivial for a corporation for Zijin Mining Group Co., Ltd. Our punishment for companies that break the law is too light and allows them to go on as they did before. This phenomenon illustrates that our environmental legislation is still flawed.
Zhang Jian: A number of local environmental protection departments face many obstacles when implementing laws and acts because enterprises like Zijin Mining Group Co., Ltd are often the main source of financial resources for localities. With these kinds of enterprises, the environmental protection department often carries out its inspection with the backing of the local government. Once the government decides to protect the big taxpayers, it is extremely difficult to enforce environmental laws. When this happens, public participation seems to be important.
Li Wei: In line with the Environmental Information Publicity Rules, companies should make information on serious pollution discharges publically available through the mass media within one month. In reality, not a single company has been punished for withholding such information from the public.
How should we go about holding public hearings?
Holding public hearings is an essential method to enable the government to solicit suggestions and opinions from the public. What kinds of issues necessitate a public hearing? How should we select representatives for a public hearing? How will the public express itself? How will the government follow the public's opinions? How can we ensure that the public's opinions will have an impact on government decisions?
Huang Liangrong: We are entering the second term of Jiaxing City’s “jury for public participation in administrative punishment,” “, which was established in 2009. The jury is comprised of three types of representatives: experts; representatives from the Party, the People’s Congress, and the Chinese People’s Political Consultative Conference (CPPCC); and public representatives.
The way the situation actually plays out with the Nanhu District (of which Jiaxing is a part) jury is as follows. After introducing the case to the jury the case personnel leave the room so the jury members can discuss the case freely. When twenty jury members have made their decisions, the whole committee (including case personnel) is reconvened to verify the verdict.
Among the 213 cases examined by the committee since 2009, a unanimous decision could not be reached in 18 cases. How did we handle these 18 cases? Ultimately, 12 of them were resolved based on the jury's suggestion, while the remaining six followed the original government verdicts. From our perspective, the committee achieved favorable outcomes.
Wang Canfa: Public hearings are decision-making meetings and they allow decision-makers to consider the interests of lots of people. These hearings are not just about considering opinions, but also about standardizing procedure. The committee does not make decisions based on the majority. Instead, decisions are reached through listening to all of the opinions.
We have public hearings on administrative punishments and administrative licensing. Regarding administrative licensing, if the decision will have a sizeable impact or if it will have an influence on profits, the decision-making office will call for a public hearing to solicit public opinion. In practice this reduces the possibility of making wrong decisions.
When a project wants to build or formulate an administrative license, those with good connections can ask for a hearing. But the decision on whether or not to grant the hearing is made by the administrative office.
Another kind of public hearing is held when a decision is necessary on a case the government thinks might be influential. In these instances, the hearing will be divided into optional participation and compulsory participation.
Although the decision is made after the hearing, it does not mean that it has been made according to either who was most vocal or majority agreement. It is made through government consideration of all of the opinions articulated at the meeting. If there is anyone involved who is not satisfied with the decision, he can propose a second administrative reconsideration or a lawsuit. Since we lack administrative public hearing regulations, the procedure is not perfect.
Huang Xiaoshan: Some issues encounter disagreement and if a decision cannot be reached a public hearing might be held.
In such situations, on the question of how to hold a public hearing we do not have any clear-cut legal procedures for cases other than those focusing on administrative punishment. The most important aspect of public hearings is procedure. To the public, procedure is also important, but justice is even more important. Ensuring that the procedure is just is the most difficult aspect of these hearings.
The original idea behind the public hearings was to make administrative management and public participation part of the legal process and to have a third party evaluate the two opposing positions. The third party should then issue a ruling on which party is in the right, otherwise its nothing more than a social gathering, a “tea party.”
Do we need to compromise?
Why is there a conflict between the interests of the government and the public? What kind of attitudes and skills should the government and the public possess? Which problems can we reach a compromise on? Are there alternative paths we can take to solve these issues? How can the government and the public achieve a win-win situation by bartering their interests? How can an environmental organization serve as a bridge between the government and people involved in a case?
Chen Jinling: After interviewing several environmental organizations and government officials, I found that some government departments have an abnormal relationship with environmental organizations and the public, which may even give rise to conflict. In my view, one critical reason is a mutual lack of understanding.
It is undeniable that public participation in environmental protection has changed dramatically over the last five or ten years ago. I think that a good portion of government officials are oblivious to this change and when they do acknowledge it, they fail to give it enough weight and fail to lead further change. As to some environmental organizations, after these pollution events transpired, they saw how the government officials behave. They believe that if a government official wants to have a successful career that he will have to sacrifice the environment and even possibly the interests of the public.
I suggest that we find a way for these two parties to communicate with each other and that they must sometimes see the situation from the other’s point of view. Since both the public and the government share the aim of protecting the environment, it is possible to have a win-win situation.
In an interview, I learned about an interesting case. When the local government thought about building an entertainment center in a beautiful nature preserve, the local environmental department and NGOs were all against the idea. In order to protect the environment, the environmental protection department called for the NGOs to hold a forum, which was promoted by the media. The forum ultimately resulted in the cancellation of the project and maintained the nature preserve.
Huang Liangrong: It is the joint responsibility of the government and the people to protect the environment. Through the appropriate channels and methods, the conflict between the government and the public can be readily solved. For instance, regarding the development of Nanhu District, there are several issues on which the government and the public need to better understand one another. Regarding these issues, they can link up and communicate by organizing a public hearing.
Huang Xiaoshan: During the process of government maneuvering, we offered the Beijing government a thorough 77-page plan on garbage disposal, written following a full year of investigative research. In order to achieve a mutually beneficial outcome, both the government and the public must both be somewhat committed and ready to take action.
After residents sort and dispose of their garbage, the government needs to collect and transport the garbage and then process it according to its classification. This is an integrated chain of waste management and one gap will undermine the whole system. The government's investment and promotion are needed, just as the public's participation and cooperation are needed. If the government is able to sort the garbage, regulate the garbage and set the rules strictly, I will vote for the project even if the garbage incineration plant is built right in front of my home.
The outcome of this kind of game must be a compromise. It is not possible for one party to win 100% and the government and the public must reach a mutually satisfactory agreement.
Wang Can: Judging from the Hong Kong-Shenzhen Western Corridor Case, the public's opposition actually increased the cost of construction. In the end, this hurt the public interest since the city governments financed the project. This speaks to the problem of individual versus collective interests.
Our traditional value was that the collective interest trumps the interest of the individual, meaning that the minority should yield to the majority's interest. According to our formerly embraced theory, if the river is out of water, the tributaries will dry up. In actuality, according to natural laws, the opposite is true. It should be that if the tributaries are out of water, the river would dry up. The same goes with the relationship between a group's interest and an individual's interest. We should ensure every individual's interest to protect the group's interest. Therefore, it is worth investing in the minority's interest.
What is the relationship amongst different regions' interests? Many places are facing the problem of choosing the right place for garbage incineration plants, which would absolutely affect nearby residents. The factories must be built, but it must be done according to plan. If an area plans to build a garbage incineration plant, it cannot be built near a residential area.
Regarding the construction of garbage incineration plants, the government should establish public trust. Though it is relatively easy to install a digital screen displaying information about garbage processing for the public to view, most factories do not have one. Just because the government claims it will manage a project well doesn’t mean the public will believe them. To achieve the win-win situation, broad public participation and oversight are necessary.
At present, a majority of the conflicts should be between the public or victims and the enterprises, not between these groups and the government. Ultimately, the government should safeguard the interest of the collective, of the society as a whole. When the government is advocating a resolution, it should convince the public on the grounds of data and theory rather than only caring about the personal and political outcomes it will achieve.
In addition, there are some basic rules the public should follow. Once a law is settled, members of the public must comply with it even when it may harm their own personal interests.
Li Song: When it comes to concrete issues, members of the public always care about their own interests as individuals, while the government is concerned with the whole. This can be seen in the site selection of the garbage incineration plant. After considering the overall layout of Beijing, the city government selected Changping as the project site. This is where the conflict between collective and individual interests emerged. How can we solve it by public participation? My suggestions are as follows:
First, we need mutual understanding. The public should think about the interests of society as a whole while, at the same time, the government needs to care about the interests of the various social parts that comprise the whole.
Second, we must refer to science. What kind of impacts will the Hong Kong-Shenzhen Western Corridor have on our health? What is the bottom line of the public? I don't think it should be decided by the government or the public, but by science.
Thirdly, we need to compensate people based on their interests. In western countries, when an enterprise wants to develop a project, it will compensate residents if the local environment is affected. If the enterprise can afford what the residents ask, the project can proceed; otherwise it is rejected. For instance, building the Ahsuwei Garbage Incineration Plant in Changping might impact the local environment, but the government might be able to make up for it in other ways, such as building schools, nursing homes, gardens and other public projects.
Secretary General of the Chinese Environment Protection Foundation, Li Wei: “In line with the Environmental Information Publicity Rules, companies should make information on serious pollution discharges publically available through the mass media within one month. In reality, not a single company has been punished for withholding such information from the public.”
Vice President and Deputy Editor-in-Chief of China Environment News, Li Song: “…building the Ahsuwei Garbage Incineration Plant in Changping might impact the local environment, but the government might be able to make up for it in other ways, such as building schools, nursing homes, gardens and other public projects.”
Head of Environmental Resources Law Institute of the Chinese University of Politics and Law, School of Politics and Law, Wang Canfa: “When the government is advocating a resolution, it should convince the public on the grounds of data and theory rather than only caring about the personal and political outcomes it will achieve.”
Director of Institute of Public and Environmental Affairs, Ma Jun: “In the ‘Zijin Incident,’ the company kept the information on the leak a secret for 10 days. Among market companies, this kind of limited information disclosure makes it unique. But if we look back at the numerous environmental pollution cases we see that this is not a random phenomenon.”
Executive Director of Shan Shui Landscape Conservation Center, Sun Shan: “What we can’t see is that behind these events there were ‘folk scientists’ who were able to translate the complicated information into a language the public could understand.”
Secretary of Party Leadership Group and the Chief of Zhejiang Jiaxing Environmental Protection Agency, Zhang Jian: “By increasing communication between the department and the public and by listening to the voices of the people, we hope to form a link between the government and the public.”
NGO research expert, Chen Jinling: “Since both the public and the government share the aim of protecting the environment, it is possible to gain a win-win situation.”
Public Representative, Huang Xiaoshan: “The outcome of this kind of game must be a compromise. It is not possible for one party to win 100% and the government and the public must reach a mutually satisfactory agreement.”
Chief of Zhejiang Jiaxing Nanhu Environmental Protection Agency, Huang Liangrong: “Among the 213 cases examined by the committee since 2009, there were 18 cases in which a unanimous decision could not be reached. How did we handle these 18 cases? Ultimately, 12 of them were resolved based on the jury's suggestion, while the remaining six followed the original government verdicts. From our perspective, the committee achieved favorable outcomes.”
Xiamen PX Case
At the beginning of 2007, the Xiamen PX Project was set up.
In March 2007, Zhao Yufen and other members of the CPPCC submitted the Proposal for Relocating the Xiamen Haicang PX Project.
Following this, Xiamen citizens began preparing for a public march, although the government tried to explain itself.
On May 30th, 2007, the Xiamen Government announced the freezing of the PX Project and initiated the public participation procedure.
On June 1st and 2nd, 2007, thousands of people engaged in a peaceful march in Xiamen.
Later, the PX Case was re-assessed by environmental authorities and a call was made for further suggestions and an open public hearing.
On January 1st, 2009, the PX Program was moved to Zhangzhou where it passed the environmental impact assessment.
On July 3rd, 2010, polluted water containing copper from the Zijin Mountain Copper Mining Plant of Zijin Mining Group Co., Ltd. was discharged into the Ting River. The total emission of about 9,100 cubic meters resulted in the complete devastation of aquatic life in 1,890 acres of the river.
On July 12th, Zijin Mining Group Co., Ltd suspended trade and that afternoon the Fujian Environmental Agency reported the emission incident. Later in the evening, Zijin announced that the accident was likely caused by excessive rain and was therefore an unpredictable natural disaster.
On July 14th, the Zijin explained that it did not publish the information on the incident right away so as not to cause panic amongst local residents.
Hong Kong-Shenzhen Western Corridor Case
In 2000, the plan for the Hong Kong-Shenzhen Western Corridor Program was devised to connect the two cities via a 5.5 kilometer long causeway across the ecologically important waters of Deep Bay. The projected cost of the project was estimated at 780 million Yuan (roughly $118.5 million USD).
In August 2001, due to public resistance and the continuous appeal of deputies of the People's Congress, the project designer proposed that the project be partially open (with no barriers around it) and partially sealed off.
However, the proposal was once again rejected. In July 2002, the proposal was revised so that the road would be completely closed off.
In August 2003, Shenzhen Government went public with the plan. Since there was an open area of 361 meters running along part of the corridor, the public was concerned about vehicle emissions and noise pollution and began to fight for its rights.
In April 2005, a Deputy meeting of the Guangdong Shenzhen Government finally confirmed the project and raised the total cost to 2.18 billion Yuan (about $331 million USD).
Translator: Feng Yan
Proof reader: Britt Crow-Miller; Karen