SEPA Issues Measures on Open Environmental Information

The State Environmental Protection Administration (SEPA) issued measures that standardize the disclosure of environmental information by government agencies and enterprises, and provide the public with the right to request government environmental information, according to an April 25, 2007, SEPA press release. SEPA issued the Measures on Open Environmental Information (the Measures) on April 11, and was the first government agency to release its own implementing measures after the State Council issued the Regulations of the People's Republic of China on Open Government Information on April 5. Both come into effect on May 1, 2008. The Measures highlight the central government and Communist Party leadership's increased attention to environmental issues in recent years. In 2002, former President and Party General Secretary Jiang Zemin's report at the Party's 16th National Congress used the words "environment" or "environmental" in reference to environmental issues eight times. Five years later, those words appeared in Hu Jintao's report at the 17th National Congress on 19 occasions. Hu's report also mentioned the requirement to "promote a conservation culture" for the first time, according to a January 11, 2008, China Environment News article.

The Measures could increase the amount of information available on environmental conditions before and during the Beijing 2008 Olympics in August, enabling the public to better assess China's progress toward fulfilling its environmental commitments for the event. The Measures require environmental protection bureaus (EPBs) to disclose information on "environmental quality conditions" and to take no longer than 30 business days to reply to requests for information. EPBs must also disclose environmental statistics, information on sudden environmental incidents, and the outcomes of petition letters and complaints, among other items. Some areas have already formulated documents to implement the Measures. The Chongqing Municipal Environmental Protection Bureau, for example, has posted its information guide and catalogue (in Microsoft Word format) on its open government information page. For an overview of the Measures, see below.

A senior Chinese environmental official has noted the importance of information disclosure in efforts to protect the environment. Pan Yue, SEPA's Vice Minister, said in a May 22, 2007, Central People's Government Web site interview (reprinted in Xinhua) that "environmental information disclosure is a prerequisite and the foundation for the public to effectively participate in environmental protection." Pan added that heavily polluting enterprises currently often refuse to provide emissions information to the public on the grounds that such information is a "trade secret." "Disclosing these enterprises' environmental information leverages the weight of public opinion to standardize enterprises' environmental conduct and strengthen the public's societal supervision of enterprises," Pan said. According to a September 2002 World Bank (WB) report, pilot projects in China that involve the public disclosure of enterprise pollution information have significantly reduced pollution, even in locations where environmental groups are not very active.

While the Measures may increase disclosure, their effectiveness in protecting the environment also depends on the extent that they encourage public participation and overcome resistance from local interests. Current measures to encourage participation in environmental issues have fallen short, according to Ma Jun, Director of the Institute of Public and Environmental Affairs. "Looking at the implementation of the Provisional Measures for Public Participation in Environmental Impact Assessment, the public's level of interest has been wholly inadequate," said Ma, according to an April 29, 2007, Xinhua article. Article 8 requires EPBs to ensure the funding and personnel for disclosure work. Disincentives to protect the environment at the local level, however, could hinder EPBs from receiving the funding they need to adequately implement the Measures. The WB report suggests that the costs of disclosing environmental information about enterprises may be low since EPBs already collect much of this information. Yet the report also notes that such programs have "substantial start-up costs." As the Congressional-Executive Commission on China (CECC) noted in its 2006 Annual Report and 2007 Annual Report (page 135), EPBs depend on local governments for funding, but local governments derive income from polluting enterprises and evaluations of officials are largely based on local economic performance, leading some officials to underfund and pressure EPBs to overlook polluters. It is not clear whether the Measures will be able to overcome such systemic barriers.

The Measures may still give local officials too much discretion to limit disclosure of government environmental information, which Article 2 defines as "information created or obtained in a definite form by environmental protection departments in the course of carrying out their environmental protection responsibilities and recorded and stored in a definite form." Article 17 provides for an EPB to reject a request if the information "does not fall within the scope of disclosure," "the law provides that disclosure is not within a department's responsibility," the information "does not exist," or "the content for which the application is being made is unclear." The Measures also prohibit EPBs from disclosing environmental information that involves state secrets. According to a Human Rights in China 2007 report, China's laws and regulations define state secrets to encompass essentially all matters of public concern, giving officials broad latitude to withhold information. Two environmental activists, Wu Lihong and Tan Kai, have been tried and sentenced, in part for their efforts to provide environment-related information to higher levels of government or the public. Tan was released in April 2007 after serving an 18-month sentence on the charge of "illegally obtaining state secrets." Wu is currently serving a three-year sentence on the charge of "extortion."

Overview of the Measures on Open Environmental Information

Supervision Structure: SEPA's General Office is responsible for the overall supervision and coordination of government environmental information disclosure work, with each office within SEPA performing disclosure work in their area of responsibility. Environmental protection bureaus (EPBs) at the county level and above are responsible for disclosure work in their administrative regions, with each EPB designating an office for organizing that bureau's disclosure work. Higher-level EPBs can order lower-level EPBs to make corrections if they violate provisions in the Measures. If circumstances are serious and fall into six categories, managers or other personnel with direct responsibility may be subject to administrative punishment. (Articles 3, 6, 26, and 27)

The Role of Environmental Protection Bureaus: The Measures require EPBs to disclose information falling into any one of 17 categories within 20 business days from the date "such information arose or was modified." EPBs must publish disclosure guides, catalogues, and an annual report on their disclosure work. EPBs must not endanger social stability or state, public, or economic security in disclosing information, and should establish a disclosure system, which includes a system for safeguarding against disclosing state secrets. EPBs must guarantee the personnel and funding for that bureau's disclosure work. They are authorized to audit environmental information released by an enterprise, award law-abiding enterprises that voluntarily disclose information, and fine enterprises a maximum of 100,000 yuan (US$13,826) for failure to abide by the Measures. When citizens or others request information, EPBs have 15 business days to reply. If they are unable to meet this timeline, the deadline may be extended up to 15 business days. (Articles 2-4, 6, 8-15, 17-18, 23-25, and 27-28)

The Role of Enterprises: The Measures encourage enterprises to voluntarily disclose information that falls into nine categories. The Measures further require EPBs to compile lists of enterprises whose pollution discharge exceeds standards. Such enterprises must disclose information regarding their major pollutants, environmental protection facilities, and environmental emergency plans, within 30 days of appearing on the list. These enterprises may not use the protection of trade secrets as a reason to refuse the disclosure of information. (Articles 19-23)

The Role of Citizens: Citizens, legal persons, and other organizations can apply to EPBs to request government environmental information. The Measures require EPBs to maintain disclosure guides explaining what information is available and how to request information. Requests should include the requestor's name and contact, a detailed description of the requested information, and the format of disclosure. Citizens and others shall not harm national interest, public interest, or the interest of other people when using the disclosed information. If they believe a bureau has not fulfilled its obligation to disclose information in accordance with law, they may report their concerns to a higher-level EPB. They may also apply for administrative reconsideration or file an administrative lawsuit if they believe that the specific acts of an EPB in carrying out disclosure work violated their lawful rights and interests. (Articles 5, 7, 16, and 26)

For more information, see their records of detention, searchable through the CECC's Political Prisoner Database, and the section on the Environment, in the CECC's 2007 Annual Report.