Written by Adam Moser.
During China’s annual two sessions meeting in March, delegates gave low approval ratings to the Supreme People’s Court and the Ministry of Environmental Protection. Granted, China’s judicial system and its environmental governance regime leave much to be desired. But attributing such shortcomings to these two government bodies alone is derived from either a serious misunderstanding of China’s governance system or counterproductive finger pointing that obscures the root problems.
The Supreme People’s Court (SPC) was criticized for its failure to further develop the rule of law. Ironically, one of the requisites for establishing rule of law is that judges be accorded at least a functional degree of independence. Such a degree of independence could only be achieved through structural realignments of power within China’s sprawling bureaucracy. These realignments would undoubtedly come at the expense of other powerful government-related entities; and these entities frequently block attempts to increase judicial independence.
One of the most dynamic environmental law developments in China in recent years has been the establishment of nearly 90 environmental tribunals within local-level court systems across the country. This development evinces the willingness of the courts to play a larger role in environmental enforcement, but without more judicial independence these courts will likely remain beholden to local politics.
Similarly, the Ministry of Environmental Protection (MEP) was criticized for its failure to make meaningful progress on China’s air quality and the environmental situation generally. However, the MEP was only elevated to Ministry status in 2008 and its enforcement powers have been intentionally curtailed by the failure of the National People’s Congress (NPC) to legislate strong and enforceable environmental laws. The MEP is so constrained that in most cases its regional offices are not permitted to enforce laws and regulations at the local level without the support of local environmental protection bureaus, which are more susceptible to the influence of local politics. Even when political barriers to enforcement are in abeyance, weak law and standards limit the MEP’s enforcement capabilities. For example, the NPC has failed to provide the MEP with the enforcement power to eliminate the financial benefits that accrue to polluters when they intentionally violate emission limits. Eliminating the financial benefits of noncompliance is a fundamental pillar of sound environmental governance.
However, even if the NPC passed stronger environmental laws, barriers to enforcement would remain. Not only does the lack of judicial independence obstruct the courts ability to contribute to enforcement, especially citizen enforcement and environmental justice, but more importantly, the Communist Party’s cadre evaluation system places the career interests of senior local-level officials in direct conflict with China’s environmental laws. A recent study by economists examined 10 years of data on the promotions of city-level officials across China and found a negative correlation between investments in environmental protection and promotions. In the 11th and 12th five-year plans, the cadre evaluation system has moved in the right direction by including more environmental targets, but it still has far to go.
Clearly, the effectiveness of China’s SPC and MEP are products of the broader governance system and the political economy within which they operate. By pigeonholing China’s legal and environmental protection problems as problems attributable to the relatively weak government bodies nominally tasked with governing these issues the delegates to China’s two sessions have made a gross misdiagnosis. Such misdiagnosis is extremely harmful, because it (1) underestimates the scale of the problem and (2) makes effective solutions harder to identify.
Correctly diagnosing China’s domestic governance challenges and shortcomings is important, but even if these domestic challenges can be overcome it is likely to be insufficient for shifting China on to a truly sustainable development path. Just as the effectiveness of the SPC and the MEP have been obstructed by China’s broader governance challenges, China’s willingness and ability to develop sustainably will inevitably be obstructed by the failure of the developed world to set strong and deep examples of sustainable development.
If alarm bells were ringing in 1992 for the U.N. Conference on Environment and Development, when global leaders ostensibly endorsed that economic and environmental development should be addressed simultaneously in Agenda 21 and the Rio Declaration, then it is China today that those alarm bells were ringing for. Global poverty reduction cannot continue to come at the environmental costs that are currently associated with it.
Despite commendable efforts to balance economic development with environmental concerns, China remains the world’s largest consumer of coal. It is the world’s largest car market and it is quickly catching up to the U.S. in oil consumption. Its GHG emissions are nearly the size of the next three largest emitters combined – the U.S., India and Russia respectively. On a per capita level, China’s emissions are just over the global average, but continued development and urbanization promise to drive China’s emissions even higher.
It is projected that more than 225 million Chinese will move from the countryside to cities in the next fifteen years. Based on China’s recent past, that means more cars, more meat consumption, more factories moving from cities to less developed and less regulated areas, and more energy consumption. What becomes clear is that China’s environmental and development problems are the world’s development problems. To facilitate a global political environment that is conducive to China going green, world leaders and global institutions will have to fundamentally reassess many of the principals and values that they hold sacred. While China’s new leaders will be the most influential in determining China’s fate, the rest of the world must also be increasingly engaged and innovative in pioneering truly sustainable development models. A good start would be in diagnosing what it is that is obstructing a global shift to truly sustainable development.
In his introduction to a recent book by the agriculturalist and poet Wendell Berry, the economist Herman Daly reminds readers of the Aristotelian distinction between oikonomia (economy) and chrematistics (the art of the accumulation of wealth). For Aristotle, the study of economy was the study of producing and distributing household necessities and real-value items over the long term. Based on this etymology, Daly argues that most of what we currently call economics is actually the study of chrematistics. Berry goes further and argues that not only is the current dominant definition of economics a misnomer, but it is actually anti-economy. What we call economy today values consumption and transactions merely for their own sake, or that is to say, their ability to contribute to “economic growth,” but this valuation too often destroys that which is of real value, e.g., clean water, clean air, and arable land. When average urban Chinese are practicing “guerilla agriculture” because they don’t trust the food in their markets, as Judith Shapiro’s post highlights, it is high time to question whether the dominant definition of “economic” development is an obstruction to truly sustainable development.
Adam Moser is assistant director for the US-China Partnership for Environmental Law at Vermont Law School. He lives in Beijing and works with Chinese partners to develop China’s environmental bar.
Categories: Sustainable Development