Access still barred

Three years after China passed green transparency legislation, getting hold of actual data remains a tough task, writes Meng Si.

Three years have passed since China introduced legislation confirming the public’s right to access environmental information. But both experts and members of the public who have requested the disclosure of pollution data – from both government and business – have found that the vague terms in which the regulations are couched are impeding their implementation.  

“Although the regulations list 17 types of information that should be disclosed and only one short clause on exemptions, that one short clause has become a catch-all,” explained Wang Canfa, director of the Center for Legal Assistance to Victims of Pollution, speaking at a seminar on April 27 to mark the law’s three year anniversary. In many other countries, he said, exceptions are specifically listed and everything else must be disclosed, a system he believes China should also adopt.

Regulations on the disclosure of government information and a trial method for the disclosure of environmental information were officially implemented three years ago. The April seminar, organised by Chinese NGO Friends of Nature, brought together experts and environmental activists to examine how those regulations are being put into practice.

The eighth article of the regulations on disclosure of government information rules that any data that threatens national security, public security, economic security or social stability must not be disclosed. According to Wang, those exceptions are commonly used by officials to block disclosure and this one clause alone has greatly reduced the level of information released to the public.

In addition, said Wang, the boundary between state secrets and commercial secrets is fuzzy. He said that many firms go so far as to class the details of their pollution-treatment equipment and release of pollutants as commercial secrets – claiming that those requesting this information could use it to identify the raw materials and technologies being used.

Yong Rong, government and public affairs officer at Greenpeace, said that in 2009 his organisation asked Zhuzhou Environmental Protection Bureau to release the pollution record of two companies. Two months later, a reply came: as listed companies, both firms were sensitive to the release of information. In addition, there was no electronic version of the 200 items of information requested, and therefore no way to publish the data online.

Chen Liwen of Green Beagle, another Chinese environmental NGO, requested information on a garbage-incineration facility in Jiangsu province, eastern China, from the local authority – Hai’an county – and the Nantong Environmental Protection Bureau. Despite going in person to make her request, the data Chen received was useless. Her full request was refused due to commercial confidentiality and the fact that her organisation had no connection to the facility.

“When compared with government, businesses are doing pitifully on environmental disclosure,” said Hu Jing of the China University of Political Science and Law (CUPL). “Even disclosure by large firms is extremely limited.”

CUPL’s Environment and Resources Law Institute and UK-based campaign group Article 19 carried out an investigation into data-disclosure levels, making a series of requests to governments and businesses. Of five large companies approached in and around Beijing – Shougang Steel, Beijing Eastern Chemicals, China Huaneng, China National Petroleum Corporation and Beijing Hyundai – disclosed information on the release of pollutants or on voluntary agreements with environmental authorities to improve their environmental performance. In some cases, no reason was provided for refusing the request.

In 2008, pollution from the Gaoantun incinerator in Beijing led locals to take to the streets in protest, forcing the government to publicly apologise and promise to invest a further 90 million yuan (US$13.9 million) in improving the facility. Local resident Zhao Lei asked the government for information on how that money had been spent – and much later received a reply admitting there was a pollution problem, promising to improve the situation and thanking her for her concern, but saying nothing about the 90 million yuan.

In 2009, Beijing resident Yang Zi asked the Beijing Environmental Protection Bureau for data from tests at a medical-waste incineration site, and the explanation for granting the site its temporary license – only to be told that the government was supervising the site but did not have any information.

During CUPL and Article 19’s investigation, reasons offered by environmental authorities for refusing data requests included the information being “inconvenient to provide” and “not suitable for disclosure, as it could cause media speculation”.

Wang Canfa believes that the people who actually handle the data requests in the environmental protection bureaus have to consult their superiors in each case – and this is why the requests are often blocked.

Xia Jun, a lawyer at the Beijing Zhongzi Legal Practice, described the last three years as “one step forward, two steps back”. Wang explained that, in 2010, the State Council ruled that requests could be refused if the information was irrelevant to the applicant’s work, life, research or other particular needs, and that each request could only ask for one piece of information, greatly limiting the scope of information the public can demand.

According to CUPL and Article 19’s report, of 11 types of information tested, the easiest to obtain was general information such as planning for local environmental protection and environmental quality. Types of dangerous waste and how it was handled, amounts of waste released and lists of companies breaching local limits were hardest to come by.

Ma Jun, director of the Institute of Public and Environmental Affairs, has argued that a lack of motivation and poor enforcement are the primary reasons environmental problems remain unresolved. Public participation is needed to make up for those failings – but obtaining environmental information is a precondition for that public participation. In 2009, Yang Chaofei, head of the department of policies, laws and regulations at the Ministry of Environmental Protection, said that “local environmental protection bureaus should support pollution lawsuits brought by the public and provide them with pollution-monitoring data.”

China’s disclosure failings are not solely caused by poor legislation, said Wang Canfa. The deeper problem is that institutional reform and social development are not yet sufficiently advanced. But there is hope: he used the example of Shanghai resident Xu Taisheng to encourage people to be more determined in pursuing information. Xu spent three years applying for the environmental impact assessment for a Baogang Steel project to be made public, receiving 13 judgements in the process. He applied, reapplied, sued, appealed, appealed again, appealed again, petitioned and then finally appealed to the Supreme People’s Court. In the end, he got the information he wanted – and financial compensation.

According to the Ministry of Environmental Protection’s working report, in 2010, 226 applications for disclosure of information were received – an increase of more than 200% on the previous year.

Meng Si is managing editor in chinadialogue’s Beijing office.

Homepage image from Greenpeace