VOLUME
2:1
JUNE 2015
326-559
  • Reconguring China’s Environmental
    Governance Regime: A Highly Complicated
    and Decidedly Uneven Journey

    Roda Mushkat
Abstract

In terms of its size, the Chinese economy has climbed to the top layer of the global pyramid and is currently positioned just behind its American counterpart, which it is commonly expected to overtake by the end of the present decade. This achievement is the product of a relentless drive forward spanning over three decades. It has not been a smooth ride in all respects because, inter alia, the “economic miracle” has been enormously costly from an ecological perspective. Wide-ranging 2014 adjustments to the Environmental Protection Law seek to remedy this situation. They constitute a necessary but — as matters stand, their unmistakable significance notwithstanding — not a sufficient condition for fully realising the goal of ecological modernisation, which requires broader and deeper institutional reconstruction.

Keywords
governance regime; Revised Law; GDPism; policy outputsoutcomes-impacts; policy implementation; regulatory cartelisation; regulatory capture; local corporationism; public interest litigation; regulatory pluralism.
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Introduction

Throughout the modern era, China has confronted formidable environmental challenges, which have not diminished — indeed, they have grown increasingly menacing. This fact has been amply and meticulously documented and is neither fundamentally disputed in the academic/professional community nor seriously questioned in strategically located economic and political circles. The opposite is true. There are no sizeable departures from the overwhelmingly negative picture that continues to be painted in the empirically underpinned literature and the severity of the problem is largely acknowledged by captains of industry and widely recognised by high-level policy managers. 1

In the most recent comprehensive survey of the Chinese ecological scene, a plethora of persistent woes is poignantly highlighted. 2 The author relentlessly pinpoints acute symptoms of pervasive decay across the entire environmental system: the air, human physical and psychological functioning, non-human species (both condition and survival), soil (encompassing forests, grasslands and wetlands) and water (including availability, control and quality). 3 They may not always emanate from the same sources but are typically interconnected and tend to generate reinforcing impulses. 4 The manifestations and impacts extend well beyond China’s borders, a pattern aggravated by ecologically disruptive Chinese activities pursued elsewhere (together constituting China’s “global environmental footprint”). 5

As indicated, this biologically, economically, health-wise, materially, politically and socially costly set of circumstances has not gone unnoticed by the policy establishment, which has also been subject to external pressures, at times intense in nature, on that score. 6 Besides mere recognition of the magnitude of the difficulties faced, specific measures have been introduced over time to alleviate them. 7 The responses may have not been fully commensurate with the enormity of the threat and they may have not kept pace with the rapid deterioration in ecological conditions, but an environmental governance regime — even if flawed, insufficiently elastic and partial — has gradually emerged. 8

The laying of the foundation for an institutional façade to address mounting ecological strains tentatively began in 1972, following the United Nations Conference on Human Environment, held in Stockholm.9 This is noteworthy because the process started to unfold six years before the curtain descended on the 1949–1978 revolutionary period, characterised by “Mao Zedong’s war against nature”, 10 with the adoption of the “open-door policy” by the reformist leadership spearheaded by Deng Xiaoping. However, the initial move forward was not sustained on a meaningful scale and, quantitatively speaking, a significant expansion of the environmental governance regime coincided with the transition from a Mao-style hard authoritarianism to a Deng-type soft variant. 11

This is broadly consistent with “force of ideas” accounts of regulatory transformation. 12 The proposition is amply reflected in some elaborate and insightful explorations of Chinese ecological realities. 13 The underlying assumption is that “political repression of ordinary people [is commonly] mirrored in an attack against nature”. 14 Pre-1978 state-inspired efforts to rework human souls accordingly often took the form of political campaigns harnessing collective labour to “[m] ake mountains to bow their heads, make rivers flow uphill”, as a Mao-era poem expressed it. 15 It is posited that “Mao’s uneasiness with intellectuals allowed him to dismiss the most elementary of scientific principles and celebrate his notion, as a military general, that mobilizing the country into a vast army would allow him to defeat all enemies, both human and non-human”. 16

Yet, the ideologically motivated strategic shift from hard to soft authoritarianism has merely proved to be a necessary, but not sufficient, condition for the construction of a viable environmental governance regime. Historical legacy, while a dynamic variable rather than an ever-present constant, cannot be overlooked. Widespread environmental degradation, albeit marked by cyclical peaks and troughs, has long been observed in China and preceded the Communist Revolution and the extraordinary Maoist excesses that ensued. 17 A two-dimensional cultural perspective has been invoked to partly illuminate this phenomenon. 18

The more sympathetic interpretation leans towards the view that an originally enlightened Confucian thought system has experienced a subsequent corrosion due to a combination of exogenous influences and endogenously induced distortions (by misguided and self-serving elites). 19 In the process, a morally unadulterated form of Confucianism has been transformed into a compromised one (“NeoConfucianism”), with highly adverse consequences for the fragile ecosystem from a long-term standpoint — a trend that has apparently not run its course. 20

The less favourable reading of the momentum generated by cultural forces is derived from the perception that the enlightened set of beliefs singled out has traditionally been confined to the purely intellectual fringes of society and has scarcely ever exerted a palpable impact on daily lifestyles and government policies. 21 Contemporary content analysis (of the qualitative type) and survey evidence are relied upon in this context to demonstrate that elite and grassroots attitudes, while not static, have been slow to evolve and may be regarded, even if progressively less so at present, as a constraining factor in assessing environmental progress or lack thereof. 22

Whatever side of the cultural picture serves as the basis for organising historical material, a pattern recurrently emerges of a relentless quest for power by the State, or the rulers/would-be rulers controlling or seeking to control its machinery, which frequently culminated in a material transformation of the ecosystem for the purposes of warfare. 23 The 248-year-long Warring States period, during which 590 major armed conflicts were witnessed, dramatically reflects this propensity because it featured an uncomfortably tight relationship between the intensity of military campaigns and the extent of environmental disruption. 24

Rather disappointingly, post-war political realignment and physical rebuilding seldom brought tangible relief. On the contrary, the parties that prevailed normally pressed on to gain legitimacy and tighten their grip on the reins of power by pursuing large-scale projects that brought serious damage on the ecosystem. 25 The grand but environmentally costly designs implemented by the first emperor of the Qin dynasty, widely acclaimed for uniting six autonomous political regions and creating a centralised State without precedent in Chinese history, are a telling case in point. 26

The war destruction–post-war reconstruction cycle, with both phases unambiguously harmful from an ecological perspective, is not without parallels in the modern era. The validity of this argument is implicitly, albeit at times selectively, acknowledged in the literature on the evolution of China’s environmental governance regime under communist rule in its hard and soft incarnations. For instance, in what constitutes in several respects a theoretically sophisticated portrayal of Chinese policy development in the past six decades or so three paradigms are identified in order to pinpoint key strategic transitions in managing the country’s complex socio-economic system in its ecological setting. 27

In an attempt to maintain a “politically neutral” tone, the first stage, extending from 1949 to 1978, has been characterised as an attempt to leapfrog the state of backwardness prevailing in the aftermath of the turbulence occasioned by prolonged external aggression/domination, compounded by ideologically fuelled homebred violence, and close the gap with leading industrialised nations (“catching up paradigm”). 28 This terminological manoeuvring notwithstanding the actual depiction bears the hallmarks of war-like conflicts because of the intensity of class and factional struggles, as well as the onslaught on nature highlighted previously. 29 The second stage, lasting from 1978 to 2003, has been equated with a singleminded drive to improve material well-being, to the virtual exclusion of other pivotal societal goals (“GDPism”). 30 This is noteworthy because the corollary is that early reform era seemingly greater recognition of the risks inherent in severe environmental degradation, while not without long-term significance has not necessarily been strong enough to prompt a fundamental reordering of strategic priorities and/or has not resulted in sufficiently effective policy measures to combat the problem (including sound and determined implementation). Predominantly unbalanced development has been pursued for at least another 25 years, with dire ecological consequences (“the dark side of this economic activity was… resource depletion and… pollution”), 31 as historically observed during periods of post-war physical rebuilding (coupled with political stabilisation).

That is not to say that the goal of healthy economic growth, accompanied by full employment, has receded into the background. It remains high, perhaps even top, priority. The present strategic positioning is akin to “constrained GDPism”, rather than one reflecting a decisive move towards environmental sustainability. 35 Indeed, the latter may not be an entirely appropriate objective for a country facing formidable demographic, political and socio-economic challenges. A less ambitious but more realistic aspiration would be to seek ecological modernisation, 36 which entails, if and where feasible, the simultaneous pursuit of greater material well-being and environmental harmony through institutional adaptation and enhancement, technological innovation and diffusion and similar initiatives. 37

Progression towards ecological modernisation should not of course be equated with its realisation. At this juncture, Chinese policymakers’ construction of environmental conditions may not fully match the vision embodied in this intricate concept. 38 Moreover, changes in government preferences alone, even if selectively combined with those at the grassroots level, cannot precipitate a far-reaching and system-wide rebalancing, certainly not in the foreseeable future. 39 Importantly, the post-2003 paradigm shift materialised so late (lending support to the proposition that it takes a crisis of major proportions to “puncture” the strategic “equilibrium” prevailing in the ecological domain in China) 40 that deep re-engineering of the environmental governance regime inevitably constitutes a daunting undertaking.

Against this complicated and difficult backdrop, the aim of the present paper is to assess the potential effectiveness of the numerous 2014 adjustments to the country’s Environmental Protection Law (Revised Law), the first meaningful reworking of the legal architecture in this delicate and problematic realm in the past quarter of a century. However, no genuinely comprehensive and specifically focused evaluation is offered. Rather, the purpose is to broadly establish, from a holistic perspective, whether and to what extent the new law resolutely addresses the underlying inertia and frailties of the whole regulatory system, which are highlighted first.

The weaknesses identified are multifaceted and wide-ranging. As such, they cannot readily be attributed to a single overarching factor. Nevertheless, palpable linkages may be discerned, reflecting an absence of an authoritative fabric, a decidedly partial design, a deficient organisational blueprint, haphazard execution, inadequate reinforcement mechanisms, ineffective signalling, multiple objectives involving complicated trade-offs, non-existence of viable checks and balances, a pervasive sense of across-the-board looseness, pronounced political inequalities, a shallow foundation and subservience to special interests. Thorough, properly calibrated and painstakingly implemented legal reform may prove instrumental in helping to alleviate these deep-rooted shortcomings.

The third section of the paper endeavours to evaluate whether that is a realistic medium-term prospect. The verdict rendered acknowledges the scope and significance of the Revised Law but deems its potential impact to be relatively limited in the foreseeable future. The caution displayed in the face of the ambitious re-engineering sought stems from concerns pertaining to the less than far-reaching measures introduced in some crucial areas (eg, public interest litigation), nonremodelling of the traditional (ie, essentially intact for the past six-and-a-half decades) socialist-type power pyramid, persistence of rule-by-law and quality of execution, with the last three impediments to progress accorded particularly heavy weight in the equation.