The challenges of reforming an environmental legal culture: Assessing the status quo and looking...

I. INTRODUCTION

In 1967, the People's Daily, a leading government-controlled newspaper, carried an editorial entitled In Praise of Lawlessness. In this editorial, the author disparaged legal systems as a "bourgeois handicap."2 Shortly thereafter, in 1972, China almost refused to participate in the landmark United Nations Conference on the Human Environment held in Stockholm ("Stockholm Conference").3 The Stockholm Conference laid the groundwork for future international environmental initiatives, including the United Nations Conference on Environment and Development in Rio de Janeiro ("Rio Summit"). China's leadership, charged with deciding whether to send a delegation to the Stockholm Conference, initially supported the general opinion held by many Chinese officials in 1972 that "[t]here is no need to participate in a global conference to address the environmental protection. A Socialist nation does not suffer from the environmental ills of Capitalism. It was then-Premier Zhou Enlai's far-sighted efforts that overcame general resistance to send the delegation to Stockholm."4

Thirty-five years after the publication of the People's Daily editorial, China has developed a growing respect for the economic and other advantages of a robust legal system. Consequently, China has recently announced the launch of a new, nationwide law exam to enhance the qualifications of the nation's attorneys, including judges and prosecutors.5 Additionally, thirty years after the Stockholm Conference, China is party to more than eighty environmental treaties, has enacted more than sixteen environmental, health and safety ("EHS") statutes, issued several hundred EHS regulations, and promulgated more than one thousand EHS standards.6

Against this backdrop of fundamental shifts in approaches to law and environmental protection, China announced that it had become the 143rd Member of the World Trade Organization ("WTO") on December 10, 2001.7 China's membership in the WTO raises a wide range of issues which are not limited to the field of international trade. Rather, China's WTO membership involves the full spectrum of debates surrounding international trade, including broader questions regarding the future of China's - and the world's - environmental protection and related legal system reforms. Views of various interest groups differ concerning how China's WTO membership will affect these areas. A number of citizen groups have raised concerns with respect to the environmental and social effects of China's WTO membership.8 However, among China's major trading partners, the membership has received broad approval.9 Additionally, it is significant that the WTO members' recent decision to extend a membership invitation to China has ended a long, bittersweet struggle for involvement in the global trade regime on the part of the Chinese government.10

When asked about the effects of WTO membership on China's environmental regulatory system, one senior official at China's State Environmental Protection Administration ("SEPA") indicated his belief that the impacts of WTO membership on environmental protection would manifest over the near-term and would be unmistakably beneficial.11 The primary purpose of the WTO is to promote fairer and freer trade. WTO obligations also promote clear and effective notice of environmental, health and safety (EH&S) standards, greater public participation in law making, the strengthening of these laws in developing countries such as China, and consistent and transparent enforcement. That being said, the SEPA official's belief may not merely be an optimistic prophecy.

A number of WTO agreements establish these obligations. Of particular relevance to this discussion are: the Protocol on the Accession of the People's Republic of China;12 the Agreement on the Application of Sanitary and Phytosanitary Measures ("SPS Agreement");13 and the Agreement on Technical Barriers to Trade ("IBT Agreement").14 Requirements set forth in these agreements, in the short term, will impose on China significant pressures to reform the existing legal culture, including many aspects of the current environmental regulatory regime. A senior official on the Environmental Protection and Natural Resources Conservation Committee of China's National People's Congress commented that pressures for reform may also provide Chinese officials with long-needed motivation to support some of the more difficult and dramatic changes to the legal culture, including the creation of a more transparent environmental rulemaking system, which will contribute to the development of what many generally refer to as a "rule of law" system.15

It is important to remain realistic about the prospects of rapid development of China's legal regime. As one Chinese environmental official stated, "the goals of fully understanding, accepting and incorporating WTO-consistent practices in the current legal system in China remain distant targets, even with the strong beneficial influences of the WTO regime and WTO members."16 Increasing the challenges associated with these changes is the existence of a healthy amount of skepticism among legal officials regarding the benefits - personal as well as public - of WTO-consistent changes to China's rulemaking practices. One official at the SEPA indicated that, "if a government unit publishes all draft laws for comment, it will be very difficult to respond to all of the different observations. Our jobs will likely become more difficult and the positions of law drafters threatened if superior officials perceive that public criticism of draft regulations is too severe or politically unacceptable."17 Another official described China's situation as a new Member of the WTO - facing the need to significantly rethink the current legal system as a whole, as well as those aspects of the legal system addressing EHS issues - by indicating that "China is holding [a] two-edged sword."18 In truth, for a nation with the obvious historical, political, social, economic, and cultural burdens that weigh heavily on any initiative for widespread change, WTO membership brings opportunities for invigoration of the country's economy and a more prominent role in world affairs. But, as one official succinctly stated, "much that is unique to China may be lost or made unrecognizably foreign in the process."19

To provide a foundation for assessing the rapid legal and cultural changes that China faces as a new Member of the WTO, this article provides an overview of China's environmental challenges and an outline of key WTO obligations placed on China as a Member. Additionally, the article reviews current developments in China toward certain WTO-consistent changes in its legal regime, focusing on changes in the environmental law system as examples. More specifically: Part II describes China's current environmental challenges. Part III provides background information on important WTO requirements that will affect China's legal system, as well as on key aspects of China's environmental regulatory system; Part IV addresses WTO requirements and developments in China with respect to clear and effective notice of environmental laws; Part V focuses on another significant aspect of WTO-consistent regulatory approaches - greater public participation in the law making process; Part VI addresses, by way of introduction, the complicated subject of WTO measures that may foster strengthening China's EHS requirements; Part VII describes WTO measures supporting consistent and transparent enforcement of EHS laws; and Part VIII sets forth the authors' observations on how China is meeting the challenges of reforming its environmental legal culture.20

II. CHINA'S ENVIRONMENTAL CHALLENGES

Many foreign and Chinese publications over the last decade have addressed China's bleak environmental situation stemming from the country's rapid and intense economic development.21 Severe environmental problems in the country include indoor22 and outdoor air pollution,23 above- and below-ground water contamination,24 soil contamination,25 and noise pollution.26 Exacerbating these pollution control problems are a wide range of natural resource-related challenges, such as soil erosion,27 deforestation,28 desertification,29 biodiversity depletion,30 and pressures introduced by China's burgeoning population.31

In the face of a seemingly overwhelming variety and severity of environmental problems, including related ills such as higher than normal blood-lead levels in Chinese children,32 China's leaders have determinedly forged ahead with legal reforms and law drafting initiatives aimed at developing a regulatory regime that promotes environmentally sound activities. These reforms have included the establishment in 1993, within the National People's Congress, of the Environmental Protection and Natural Resources Conservation Committee.33 This Committee is comprised of congresspersons with varied government backgrounds and/or expertise in environmental protection issues. The Committee was organized to, among other reasons, expedite the law drafting process and enhance the quality of legislation addressing environmental protection and natural resource conservation issues.

It is likely that pressures to further environmental protection efforts within China will increase in the future. The environmental fallout from China's rapid economic development has not been confined within the country's borders. In fact, news reports in 2001 described a "dust storm from Mongolia. . .dispersing dust from the Gobi Desert and industrial pollution from China across a quarter of the mainland United States."34 Transboundary environmental events such as these, as well as the pollution-sensitive activities associated with the Beijing Olympics in 2008,35 will increasingly focus domestic and overseas attention on China's environmental protection record.

Within this setting, China must grapple with WTO obligations and the equally important task of developing a legal regime that can facilitate management of the environmental challenges described above.

III. WTO RULES AND ENVIRONMENTAL LAW IN CHINA

A. WTO RULES

Two agreements among the WTO Members in particular, the SPS Agreement36 and the TBT Agreement,37 oblige Members to promote clear and effective notice of EHS standards, greater public participation in standard setting, the strengthening of these standards in developing countries such as China, and consistent and transparent enforcement. The SPS Agreement addresses measures taken to protect humans, animals, and plants from certain risks to life and health, including risks arising from additives, contaminants or toxins in foods. The TBT Agreement addresses all voluntary and mandatory standards for products, other than any that qualify as sanitary or phytosanitary measures under the SPS Agreement,38 which indirectly impact free trade (i.e., create "technical barriers to trade" without directly regulating trade as such). TBT standards might include product content, packaging, and labeling measures. The General Agreement on Tariffs and Trade39 as incorporated into the WTO Agreements ("GATT" or "GATT 1994") also establishes some parallel requirements.40 As a general matter, the rules established under the GATT apply to all trade in goods, unless GATT rules conflict with those established under another WTO Agreement (such as the SPS Agreement or TBT Agreement), in which case the provisions of the other WTO Agreement prevail.41

All of these agreements require WTO Members to take reasonable measures to ensure the observance of WTO obligations by sub-national authorities. In some instances, both the SPS and TBT agreements impose this requirement in regards to non-governmental organizations as well.42 Significantly, the requirements established under the SPS and TBT Agreements and under the GATT appear to be enforceable under the WTO's dispute settlement process, through which Members can gain permission to impose trade sanctions to compensate for the effects of failure to comply with WTO obligations.43

The Protocol on the Accession of the People's Republic of China to the WTO reaffirms and provides further detail with respect to the key obligations of WTO members laid down in the SPS and TBT Agreements.44 Of particular note in this regard is Article 2(C), which is devoted to the issue of transparency. Among other things, this Article stipulates that:

China shall establish an official journal dedicated to the publication of all laws, regulations and other measures pertaining to or affecting trade in goods, services, TRIPS or the control of foreign exchange and, after publication of its laws, regulations or other measures in such journal, shall provide a reasonable period for comment to the appropriate authorities before such measures are implemented, except for those laws, regulations and other measures involving national security, specific measures setting foreign exchange rates or monetary policy and other measures the publication of which would impede law enforcement. China shall publish this journal on a regular basis and make copies of all issues of this journal readily available to individuals and enterprises.45

Other relevant requirements set forth in the Protocol include those in Article 2(D), which relate to the establishment and maintenance of tribunals, contact points, and procedures for prompt judicial review.46 These requirements dictate that the measures taken by China must provide for "prompt review of all administrative actions relating to the implementation of [specified] laws, regulations, judicial decisions and administrative rulings of general application[.]"47

Also key to these discussions is Article 13(2), which reads: "[C]hina shall, upon accession, bring into conformity with the TBT Agreement all technical regulations, standards and conformity assessment procedures."48 Furthermore, Article 14 provides: "[C]hina shall notify to the WTO all laws, regulations and other measures relating to its sanitary and phytosanitary measures, including product coverage and relevant international standards, guidelines and recommendations, within 30 days after accession."49

In light of the Herculean efforts necessary for China's accommodation and implementation of its new WTO obligations, it is also worth considering the Transitional Review Mechanism as provided under the Protocol in Article 18. This Mechanism provides, among other things, for the review by WTO subsidiary bodies, including the SPS and TBT Committees, of China's implementation of various WTO commitments.50 According to the Protocol, these reviews will take place annually, beginning within one year following China's accession, for a period of eight years, with the possibility of a final review taking place on the tenth year or at an earlier date to be decided by the WTO General Council.51 Essentially, this Mechanism serves as a coordinating framework for collection and review of information related to the WTO consistency of China's activities within various areas governed by WTO agreements. As such, the information obtained from this Mechanism may help WTO Members and other interested parties assess China's progress towards adjusting its environmental regulatory regime to meet the commitments set forth in various WTO agreements, including the Protocol.

B. CHINA'S ENVIRONMENTAL REGULATORY REGIME

China has been expanding its modern environmental law system since the late 1970s.52 Over the past twenty years, the country has made great strides in developing a legal framework for environmental protection.53 Critical legal "infrastructure" has been established, including: statutory and regulatory provisions addressing major environmental media, land use, and other issues; and administrative institutions to enforce and monitor compliance with environmental laws.54 However, sporadic enforcement and related inspection programs have also progressed over the past few decades.55

China's efforts to build a comprehensive environmental legal regime are still at a nascent stage. For instance, in some domains, statutory "gaps" exist that have resulted in a lack of national-level standards with respect to particular activities that have substantial environmental affects.56 Moreover, even within areas of environmental law that have been addressed by statutes and underlying implementing regulations, such requirements are sometimes ambiguous, generalized, or inconsistent with provisions set forth in other laws. One example of inconsistent legal provisions becomes apparent when comparing the SEPA Circular on Issues Related to the Implementation of the Environmental Impact Assessment System [Guan Yu Zhi Xing Jian She Xiang Mu Huan Jing Ying Xiang Ping Jia Zhi Du Ruo Gan Wen Ti De Tong Zhi], promulgated on April 21, 1999 [hereinafter SEPA Circular], with the State Council Supplementary Regulation on the Development of the External Economy in the Coastal Region [Guo Wu Yuan Guan Yu Yan Hai Di Qu Fa Zhan Wai Xiang Xing Jing Ji De Ruo Gan Bu Chong Gui Ding], promulgated on March 28, 1988 [hereinafter State Council Supplementary Regulation]. The SEPA Circular specifies in Item 2 thereof a total investment threshold of 200 million RMB (roughly U.S. $24 million) for projects that must be approved by national-level government authorities. Regardless of the different monetary references, this threshold stands in stark contrast to the investment threshold indicated under Item 1 of the State Council Supplementary Regulation. Item 1 provides for a "less than U.S. $30 million" investment threshold for "foreign investment" projects that can be approved by local-level authorities.

In many cases, China's statutes simply state that certain activities or behaviors should be advocated or prohibited, encouraged or discouraged, and they typically do not clearly identify the targets, details for submitting permit applications, timing, conditions, liabilities and persons responsible for complying with obligations specified in the laws. For instance, Article 5 of the Environmental Protection Law [Huan Jing Bao Hu Fa] reads: "[t]he State encourages the development of science and education on environmental protection, enhances the research and development of environmental protection sciences and technologies, upgrades the level of environmental sciences and technologies, and promotes the dissemination of the knowledge of environmental protection." In the articles following Article 5, there are no further provisions explaining or providing detail describing these broadly worded measures. Additionally, China has not promulgated regulations specifically to implement these provisions in the Environmental Protection Law. The general nature of many Chinese laws presents significant difficulties for the regulated community in terms of understanding compliance obligations and undertaking compliance assurance programs. These and other factors weaken the abilities of China's resource-stretched administrative personnel to consistently and meaningfully monitor and enforce compliance with environmental laws.57

It is against this backdrop that China is commencing a number of initiatives to address fulfillment of its WTO obligations, including providing clear and effective notice of environmental laws, promoting greater public participation in environmental lawmaking, and encouraging the strengthening of EHS requirements and consistent and transparent enforcement of such requirements. These initiatives and the associated WTO obligations are described below.

IV. CLEAR AND EFFECTIVE NOTICE OF ENVIRONMENTAL LAWS

WTO Agreements requiring publication of laws likely to affect international trade could provide the Chinese government with clear incentives to enhance present, limited initiatives to address public notice of proposed environmental laws.

A. WTO RULES

WTO Members must publish laws likely to affect international trade, including measures to regulate the import, export, and sale of goods, in a way that allows other Members and entities participating in international trade to become acquainted with these requirements. WTO Members also must provide a reasonable interval between publication and entry into force of these requirements to give trading partners time to adjust their products and manufacturing methods accordingly. These publication requirements apply to environmental, health, and safety laws and regulations that may affect international trade, such as import quarantines, product specifications, and packaging requirements.

Article X of the GATT imposes a broad general requirement upon all WTO Members to publish "promptly" all "[l]aws, regulations, judicial decisions and administrative rulings of general application . . . pertaining to ... requirements, restrictions or prohibitions on imports or exports ... or affecting their sale, distribution or transportation ... processing, mixing or other use," and to do so "in such a manner as to enable governments and traders to become acquainted with them."58 The Article also prohibits the enforcement of any "new or more burdensome requirement, restriction or prohibition on imports" prior to its publication.59

The SPS Agreement, which, as noted above, supercedes the GATT in cases of inconsistency between the two agreements, applies similar but somewhat more specific obligations. The SPS Agreement requires prompt publication of all SPS regulations "in such a manner as to enable interested Members to become acquainted with them."60 It also requires Members, except in cases of emergency, to "allow a reasonable interval between publication of a sanitary or phytosanitary regulation and its entry into force to allow time for producers in exporting Members ... to adapt their products and methods of production to the requirements of the importing Member."61

The TBT Agreement, as noted above, also supercedes the GATT and applies to all technical barriers to trade that do not fall within the scope of sanitary or phytosanitary measures as defined under the SPS Agreement, and establishes requirements similar to those established in the SPS Agreement. Article 2.11 of the TBT Agreement requires that all "technical regulations" (i.e., obligations that must be satisfied as a matter of law) be "published promptly or otherwise made available in such a manner as to enable interested parties in other Members to become acquainted with them."62 The TBT Agreement also imposes an obligation to "allow a reasonable interval between the publication of technical regulations and their entry into force in order to allow time for producers in exporting Members ... to adapt their products or methods of production to the requirements of the importing Member."63 With regard to "standards" (i.e., measures with which compliance is not mandatory), the TBT Agreement also requires prompt publication, but not any delay between publication and entry into force.64

As initially set forth in Part II of this article, the Protocol on the Accession of the People's Republic of China to the WTO indicates that China shall publish "those laws, regulations, and other measures pertaining to or affecting trade in goods, services, TRIPs or the control of foreign exchange."65 In addition, the Protocol provides that "China shall make available to WTO members, upon request, all [these legal measures] before such measures are implemented or enforced."66 Further, the Protocol requires that China "establish or designate an official journal dedicated to the publication of such laws."67 To address the public's need for legal information, the Protocol states that "[C]hina shall establish or designate an enquiry point where, upon request of any individual, enterprise or WTO Member all information relating to the [legal] measures required to be published under.. this Protocol may be obtained."68 Additionally, highlighting the increased expectations that administrative personnel in China must live up to under the WTO, the Protocol requires that "replies to requests for information shall generally be provided within 30 days after receipt of a request. In exceptional cases, replies may be provided within 45 days after receipt of a request."69 However, in such cases, "notice of the delay and the reasons therefor shall be provided in writing to the interested party."70 Underscoring the binding nature of replies to such requests for information, the Protocol stipulates that "[r]eplies to WTO members shall be complete and shall represent the authoritative view of the Chinese government. Accurate and reliable information shall be provided to individuals and enterprises."71

B. CHALLENGES FOR CHINA

China's modern legal system draws heavily from the civil-law tradition.72 In this regard, the nature and format of laws in a civil law system have greatly influenced the orientation and development of China's environmental legal system. As the most significant feature of this system, adjudications or decisions of courts do not set precedent that must be followed by the courts themselves or by other courts.73 Rulings of courts therefore do not yet form a meaningful and resounding influence on the law, at least with respect to environmental issues. Under these circumstances, law enforcement initiatives and regulatory community compliance in the area of environmental protection relies almost solely on the edicts in various legal norm-setting documents, as well as the scope and specificity of such documents. In this regard, it is clear that enforcement programs and members of the regulated community alike suffer from a lack of clear and effective notice of environmental laws.

A recent example of a situation where a lack of clear and effective notice of a new law created substantial regulated community confusion and ultimately frustrated implementation of the law, involves the "Management Regulation on Transgenic Agricultural Organism Safety" (hereinafter Management Regulation or Regulation).74 The State Council officially promulgated the Management Regulation on May 23, 2001. The Regulation was effective on the date of promulgation. However, the Regulation was not released to the public until June 6, 2001, two weeks after the promulgation date. With the "sudden appearance" of this Regulation, the regulated community was subject to extensive requirements regarding agricultural genetically modified organism ("Ag-GMO") product labeling, risk assessment, and import and export approval.75 While it is perhaps beyond the scope of this introductory article to discuss the WTO-consistency of the substantive provisions in the Regulation, it is certainly relevant to highlight the challenges represented by such a practice, when considering the need described in great detail within WTO agreements to provide Members with effective notice of such laws. As a result of the sudden promulgation of the Regulation, and resulting uncertainty and confusion among Chinese regulatory officials and the regulated community, soybean exports to China were interrupted for roughly six months.76

"Notice" problems followed even with the promulgation of the implementing measures for the Regulation. China's Ministry of Agriculture issued these measures, comprising three regulations addressing Ag-GMO labeling, safety assessment, and imports, on January 5, 2002. The measures provide for entry into force on March 20, 2002.77 Numerous members of the regulated community have indicated that the measures do not provide a reasonable interval between promulgation and entry into force to allow trading partners time to adjust their products and manufacturing methods.78

Currently, China does not consistently publish environmental laws or standards in a manner that facilitates notice to WTO Members and other entities. However, a number of recent initiatives indicate the Chinese government's emerging acceptance of the importance of enhancing "transparency" of the legal regime at the international, national and local levels.

Significantly, on January 29, 2002, China submitted a Communication to the WTO TBT Committee on the "Implementation and Administration of the Agreement on Technical Barriers to Trade."79 Among other key statements, the Communication reinforces and clarifies China's commitments with regard to transparency. In Part IV of the Communication, China indicates that "[w]hen formulating technical regulations, standards and conformity assessment procedures, China will give non-discriminatory consideration to comments made by other WTO Members."80 Moreover, China indicates in this Part that it "will give a reasonable interval between the publication of technical regulations and their entry into force so that adaptation could be made by other WTO Members."81 This being set forth for all WTO Members to see, it will be important to monitor how China interprets and internalizes these statements in the form of actual practice. As noted above, China's practice with regard to legal measures aimed at managing Ag-GMOs leaves open the question, at least for now, of the WTO consistency of certain of China's lawmaking initiatives.82

In the national statute level, the recent examples include the publication of draft versions of the Land Administration Law83 and the Marriage Law.84 Beginning in 2001, certain national government agencies began to publish their draft regulations for public comment. Recent examples include the Industry Guidelines on Water Conservation,85 the Rules for Approving China-Foreign Joint Security Companies,86 as well as a number of vehicle emission control standards.87 At the local level, a number of provincial governments have solicited public comments on new laws before undertaking final promulgation.88 Such initiatives demonstrate increased efforts on the parts of national and local governments to provide effective notice of laws. Nevertheless, it is obvious that these efforts remain sporadic and fall far short of the pre-issuance notifications specified in the agreements setting forth China's WTO obligations.89

Many of the aforementioned initiatives were not undertaken in a legislative vacuum. The "Law on Legislation"90 provides some basis for clear and effective notice of laws.91 Among other provisions, this Law somewhat ambiguously stipulates that the Standing Committee of the National People's Congress shall distribute draft statutes to concerned organizations and individuals to "solicit opinions."92 The Law also provides that when developing rules, the State Council shall solicit comments from relevant organizations, institutions and the public at large through discussion meetings and public hearings.93 Nonetheless, as is the case with many laws in China, implementation of this Law might prove to be inconsistent and slow. The publication requirements established under WTO agreements should prompt more rapid action under these and other efforts in China aimed at building a more transparent and predictable environmental legal regime.94

To implement the requirements of the Law on Legislation and to comply with the WTO obligations, the Chinese government must undertake extensive efforts to effectuate a system that provides for clear and effective notice of all laws affecting trade.95 At present, such efforts will likely focus first on "executive" ministries and agencies under the State Council.96 In the field of environmental protection, the establishment of notice and comment practices at a number of key agencies such as SEPA, the State Economic and Trade Commission, the State Development and Planning Commission and the Ministry of Agriculture, would significantly enhance the WTO-consistency of those agencies' regulatory actions.97 Based on the principles set forth in the Law on Legislation, more detailed legal requirements associated with notice and comment should be articulated for or by those agencies.98

V. GREATER PUBLIC PARTICIPATION IN LAW MAKING

WTO requirements to notify Members and interested parties of proposed requirements that might significantly affect international trade could intensify pressure on China to expand current efforts aimed at increasing public access to and participation in the environmental, health, and safety rulemaking process.

A. WTO RULES

The primary purpose of the notice and comment requirements established under the SPS and TBT Agreements is to minimize the likelihood of regulatory measures impeding open and fair trade. The notice and comment rights established apply only to measures that may significantly affect trade with other WTO Members. Notice and comment requirements do not extend to all SPS and TBT measures. Also, neither the SPS Agreement nor the TBT Agreement establishes full notice and comment rights for interested parties in other WTO Member countries, though the TBT Agreement establishes some notice and comment rights for such interested parties. Nonetheless, these obligations enable other WTO Members, and interested parties either indirectly through their governments or directly in some cases, to make whatever comments they wish, at least arguably, on any issue relating to the measure and to have these comments taken into account.

Under the SPS Agreement, if the content of an SPS regulation that a WTO Member plans to impose is not "substantially the same as the content of an international standard, guideline or recommendation" or no such international guidance exists, and the regulation "may have a significant effect on trade of other Members," the WTO Member must:

(1) publish notice "at an early stage in such a manner as to enable interested Members to become acquainted with the proposal"; (2) notify other Members through the WTO Secretariat of the products to be covered by the proposed regulation and provide "a brief indication of the objective and rationale" for the regulation; (3) provide copies of the proposed regulation to other Members upon request and identify, whenever possible, points at which the proposal deviates from international standards or guidance; (4) allow other Members "reasonable time" to comment on the proposal; (5) discuss these comments upon request; and (6) take the comments and discussions into account.99 The Agreement imposes no limitations upon the range of issues that these comments may address.

The TBT Agreement establishes similar notice and comment obligations with regard to technical regulations that do not accord with an international standard, or are developed in the absence of such international standards, if the regulation "may have a significant effect on trade of other Members."100 The TBT Agreement also requires that the published notice be made in a manner that enables interested parties in other Member countries, as well as the other WTO Members themselves, to become acquainted with them.101 By broadening this notice requirement to embrace interested parties in other WTO Members, the Agreement enhances the ability of such interested parties to inform the comment of their governments on such proposed regulations.

The TBT Agreement imposes similar obligations for proposed (voluntary) standards. Significantly, the notice and comment requirements under the TBT Agreement for proposed standards apply to all standards proposed by WTO Members, not just a subset of them, and expressly require that a copy of the proposed standard be provided upon request to interested parties in a WTO Member country, that such interested parties be given notice (through a published work program for the standardizing body at issue) and an opportunity for comment, and that these comments be taken into account.102

As noted earlier in this article, the Protocol on the Accession of the People's Republic of China to the WTO confirms many of the public-participation-related provisions in the SPS and TBT agreements. Furthermore, the Protocol sets forth essential requirements for a more transparent legal regime in China to facilitate meaningful public participation. These requirements include "provid[ing] a reasonable period for comment to the appropriate authorities before ... [certain] measures [affecting trade] are implemented."103

B. CHALLENGES FOR CHINA

While WTO Members are not required to publish proposed legal requirements domestically to enable interested parties to become familiar with them and to comment upon them, WTO requirements for other Members and interested parties in other Member countries to be provided with such opportunities might encourage the Chinese government to expand or strengthen initiatives aimed at granting these same opportunities for domestic interests. In addition, it might also motivate interested parties in China to demand equivalent domestic notice and opportunity for comment. As in the United States, such public participation may encourage greater attention to sustainable use of natural resources and the pursuit of other environmental objectives. In any event, requirements to provide notice to the WTO Secretariat will afford interested parties in China some opportunity to learn of proposed measures, either by requesting copies of such notices from the Secretariat, or obtaining copies directly from the WTO website if such parties have access to the World Wide Web.104

Current initiatives to promote public participation in the development of environmental laws are sporadic in China, although a number of initiatives are underway. In addition to the examples of publication initiatives mentioned above, as also noted in Part III, China's recently enacted Law on Legislation provides that the State Council shall solicit and consider the opinions of concerned organizations and citizens when drafting administrative rules.105 SEPA is reportedly considering a number of initiatives aimed at increasing interested stakeholder access to information on proposed and existing rules, as well as SEPA guidance on the implementation of existing rules.106

However, public participation in the EHS lawmaking process is an issue that must be addressed by the entire spectrum of Chinese government agencies with lawmaking powers in order to promote the adoption of WTO-consistent legal measures. An example of a situation in which public participation or "comment" associated with a rulemaking may have contributed to the development of laws that are not only more WTO consistent, but are also more consistent with international practice, involves the Regulation on Mercury Content Limitation for Batteries.107

Key measures in the Regulation on Mercury Content Limitation for Batteries provide that as of January 1, 2005, alkaline zinc and zinc manganese batteries with mercury content higher than 1 ppm (0.0001%) of the battery weight shall be banned from production and sale in China.108 What the Chinese rulemakers may have missed by using a drafting process that does not solicit comments by stakeholders is that adopting a "no intentionally added mercury" approach in the Regulation may reduce the enforcement and compliance burdens associated with the implementation of such a law (i.e., it may be simpler to not add mercury than to reduce it to 1 ppm of the battery weight). The rulemakers may also have learned from stakeholders that the "no intentionally added mercury approach" is followed by other WTO members in their battery laws.109

With regard to the public participation of environmental law making, an important issue worth addressing is the role of non-governmental organizations (NGOs). In China, there is limited scope for non-governmental participation in the implementation and enforcement process. The non-governmental environmental advocacy community in China is virtually nonexistent.110

NGOs in the United States and many Western nations play relatively more important roles in environmental protection, whereas in China the functions of environmental NGOs are currently predominantly limited to research, training, and environmental awareness programs, including information-exchange campaigns.111 The government has authorized establishment of indigenous environmental NGOs in the past, although the organizations' goals typically do not include locking horns with the government on environmental issues. The fact is, however, that very few of such organizations have been registered.112 Registration of NGOs or "social organizations" is a difficult and often time-consuming process in China. Such registrations are subject to exacting requirements under China's Social Organization Registration Management Regulations, [She Hui Tuan Ti Deng Ji Guan Li Tiao Li] adopted Oct. 25, 1998, that require the designation of government organizations that essentially monitor all of the NGOs' activities. As a result, a number of citizen groups in China have registered their organizations pursuant to China's Company Law [Gong Si Fa], adopted Dec. 29, 1993, and have forgone registration as NGOs. That being said, there are currently very few opportunities for NGO participation in the environmental law implementation and enforcement process.

Despite challenges associated with funding and registering NGOs in China, the number of environmental NGOs is growing.113 For example, an NGO was recently established in Beijing by a group of Chinese law professors and attorneys for the sole purpose of assisting the victims of pollution-related injuries with their legal cases.114 However, there is still room for the environmental NGOs to play a more active role in the development of a more participatory legal system. In terms of government initiatives, it may be possible at some point for government organizations to promote or facilitate the role of NGOs as channels for open and constructive dialogue among agencies, industries and the public-atlarge. As for the NGOs themselves, there is an urgent need for these organizations to enhance their abilities to fill such roles.115

VI. STRENGTHENING OF ENVIRONMENTAL, HEALTH AND SAFETY REQUIREMENTS

International standards often provide for higher levels of environmental, health, and safety protections than existing Chinese standards demand.116 WTO agreements encouraging Members to base domestic requirements upon international standards could considerably expand China's consideration and use of international standards in its domestic environmental regulatory regime.

A. WTO RULES

WTO Agreements encourage Members to base domestic requirements upon effective and appropriate international standards, and grant a presumption of validity to domestic measures that are based on such standards. These agreements also recognize the rights of WTO Members to establish national requirements that are more stringent than international standards. However, such requirements must conform to WTO rules that protect against unnecessary, unjustified, arbitrary, and disguised discrimination toward products of other WTO Members.117 WTO rules do not expressly encourage the application of more stringent standards, but rather, harmonization of standards, where possible, through reliance upon international standards and guidance.

The SPS Agreement requires WTO Members to "base" their SPS measures upon international standards or guidance, if any exist, except as otherwise provided in the Agreement.118 The right of Members is explicitly recognized to adopt (consistent with their obligations under the Agreement, which include ensuring that SPS measures are based on scientific principles and a risk assessment, and do not arbitrarily or unjustifiably discriminate among Members119) SPS measures that provide a higher level of protection than would measures based on international standards or guidance.120 However, the Agreement does not explicitly recognize the right of a Member to establish an SPS measure providing a lower level of protection than would be afforded by a measure conforming to international standards or guidance. While it is unlikely that this omission reflects the intent of the negotiating governments, the fact that the Agreement does not explicitly recognize this right among Members may represent an implicit requirement for WTO to conform their SPS measures to international standards, unless they wish to impose more protective requirements. In any event, the Agreement provides an incentive for Members to conform their SPS measures to international standards. It establishes that such conforming SPS measures will be deemed "necessary to protect human, animal or plant life or health," and "presumed to be consistent" with relevant provisions of the SPS Agreement and the GATT.121

The TBT Agreement promotes the use of international standards in much the same way. It requires WTO Members to use relevant international standards, if any exist or will be completed imminently, "as a basis for" their technical regulations unless such standards would be an "ineffective or inappropriate" means to fulfill "legitimate objectives" (which include protection of human health or safety, animal or plant life or health, or the environment).122 It thereby recognizes the right of Members to establish technical regulations that provide a higher level of protection than would measures based on international standards or guidance, consistent with their obligations under the Agreement, including the assurance that technical regulations not be more trade restrictive than necessary to fulfill a legitimate objective, and that products from one Member are treated no less favorably than those of another Member. However, like the SPS Agreement, the TBT Agreement does not clearly recognize a right to establish technical regulations that provide a lower level of protection. The requirements for adoption of standards under the TBT Agreement are largely the same as those for technical regulations.123

The Protocol on the Accession of the People's Republic of China to the WTO reaffirms China's obligation under the TBT and SPS Agreements with respect to the adoption of standards.124

B. CHALLENGES FOR CHINA

WTO rules should not be expected to promote the adoption of higher standards than those promoted by international standards and guidance. However, by encouraging conformity with such international standards, WTO rules may prompt China to meet international and similar developed-country standards, which in many cases may be higher or provide more detail than current domestic standards. WTO rules may also promote implementation in China of existing measures that encourage the use of international standards. For China, being encouraged to require domestic compliance with international environmental standards, such as those for production practices and management of natural resources, could substantially strengthen the domestic environmental regulatory regime.

Efforts to incorporate international and developed-country standards in China are still at an early stage and continue to progress slowly. China's Environmental Standards Management Measures [Huan Jing Biao Zhun Guan Li Ban Fa] do, however, reflect the growing importance and influence of international or developed-country environmental standards with respect to the domestic regulatory regime.125 These Measures provide, among other things, that Chinese regulatory bodies may use existing international standards and standards of developed countries when formulating certain new environmental standards.126

When asked whether the Chinese lawmakers referenced international standards more now than was the case ten years ago, one SEPA official responded "[y]es, but perhaps not enough."127 Only over the last few years have China's decisionmakers started to pay more attention to foreign and international standards and related practices in the law making process. For example, although not yet a required component of the legislative drafting process, the views of foreign specialists are increasingly being sought by the Chinese lawmakers and law-drafters. Many of China's law drafting initiatives increasingly are involving participation by foreign lawyers, scientists, and other experts. Although this is by no means an official method for input into China's legislative process by the international community, it represents a greater realization by China that the experiences of other countries are of great importance for the internationalization and related WTO-consistency of its domestic legislation. Indeed, at the national level in the Environmental Protection and Natural Resource Conservation Committee of the NPC, the experiences of developed and developing nations are often referenced in research projects supporting legislative drafting programs.128 Cooperation with multilateral development institutions, such as the Asian Development Bank and the United Nations Development Program, has proven very successful and productive as a method of increasing China's exposure to the experiences of other countries and as a means of increasing China's capacity to learn from these experiences.129

To further enhance the "internationalization" of China's lawmaking processes, the Chinese government may wish to consider legal reforms aimed at providing local governments with authority to further international cooperation without the national government's direct involvement. Such reforms might deepen the internationalization currently occurring in China primarily at the central government level.130

VII. CONSISTENT AND TRANSPARENT ENFORcEMENT OF EHS STANDARDS

WTO rules should also promote greater consistency and transparency in enforcement of EHS standards. Both the SPS Agreement and TBT Agreement establish obligations that promote consistent, open, timely, and not unduly burdensome procedures for ensuring compliance with SPS measures and technical regulations and standards, respectively.

A. WTO RULES

The SPS Agreement requires Members to ensure that, among other issues: (1) procedures to ensure fulfillment of SPS measures do not treat imported products less favorably than like domestic ones; (2) the standard processing period for each procedure is published or communicated to applicants upon request; (3) the reviewing body (i) promptly examines each application for completeness and informs the applicant of any deficiencies, (ii) informs the applicant of the stage of the process upon request, (iii) upon request, takes the review "as far as practicable" in light of the state of the application, and (iv) transmits the results of the review "as soon as possible" in a "precise and complete" manner to enable the applicant to take corrective action if necessary; (4) information requirements are limited to those "necessary for appropriate control, inspection and approval procedures;" (5) any control, inspection and approval requirements for individual specimens of a product are "limited to what is reasonable and necessary;" and (6) a procedure exists to review complaints and take corrective actions."131

The TBT Agreement establishes obligations for conformity assessments with both technical regulations and standards that are quite similar to the requirements imposed under the SPS Agreement.132 In addition, the TBT Agreement requires Members to rely upon relevant guides and recommendations from international organizations, if such guidance exists or its completion is imminent, in conducting conformity assessments, unless such reliance would be "inappropriate" for reasons (which the Member must explain upon request) including protection of human health or safety, animal or plant life or health, or the environment.133 It also establishes requirements for publication and delayed entry into force and for notice and comment regarding proposed conformity assessment procedures that essentially track those it establishes (as discussed above) for proposed technical regulations.134 Also, Article 10 of the TBT Agreement obligates WTO Members to provide an enquiry point "able to answer all reasonable enquiries" regarding proposed and adopted technical regulations, standards and conformity assessment procedures.

The Protocol on the Accession of the People's Republic of China to the WTO generally mirrors the conformity assessment provisions set forth in the TBT Agreement and the product review measures provided in the SPS Agreement. Among other measures of note, the Protocol requires that China "bring into conformity with the TBT Agreement all technical regulations, standards and conformity procedures."135 Additionally, the Protocol requires that China apply its conformity assessment procedures equally to imported and domestic products.136

B. CHALLENGES FOR CHINA

In recent years, China has attempted to increase uniform implementation and access to technical regulations and standards. In particular, China's efforts have reportedly included the promulgation of measures aimed at harmonizing the standard-making and implementation process and the establishment of an interagency organization responsible for reviewing the consistency of Chinese laws with WTO obligations and providing related mediation services.137 However, it is still common to hear complaints from developed-country foreign investors (and their representative governments) regarding "unequal application" of environmental and other requirements. This may be the result, in part, of Chinese regulators' perceptions that companies based in developed countries come from a more advanced environmental management environment with access to more sophisticated technologies, and therefore should "know and function better" than their Chinese counterparts.138 It is also common to hear complaints from foreign investors about the difficulties associated with any attempts to obtain and understand Chinese legal requirements. Nevertheless, substantive efforts to improve enforcement of and access to environmental and other standards, are being undertaken by Chinese and non-Chinese alike.139

With these observations in mind, it is important to understand the substantial resource limitations of China's regulatory bodies. For example, SEPA, the counterpart of the Environmental Protection Agency in the United States, is authorized to hire no more than 200 employees at its headquarters in Beijing.140 Although SEPA often engages the support of environmental officials outside of Beijing for significant enforcement activities, China's incalculable environmental problems all-toooften require more than a mere 200 individuals can address.141

VIII. CONCLUSION

China continues to make strides towards a "rule of law" approach to environmental regulation. However, progress remains somewhat erratic and slow. Membership in the WTO can be expected to prompt continued and more rapid progress. Such changes will be encouraged not only by the WTO rules with which China will have to comply, as summarized in this article, but also by the availability of assistance from the WTO and its membership to assess China's progress and provide guidance to facilitate this critical process of changing from a "rule of authority" to "rule of law" system. It is safe to say that significant advances in the areas of political will, financial and educational capacity, and foreign assistance will be required before China will be able to completely fulfill the numerous obligations outlined in the WTO rules.142

Political will is a critical impetus for any WTO-consistent improvements in China's environmental legal regime. The experiences of developed countries and China itself have shown that bad environmental performances do not only damage environmental quality and public health, but also destroy the bases of long-term social and economic development, prosperity, and political accountability that are key to the establishment of the transparency, consistency, notification, and other WTO obligations described in this article.

To increase the personal and political capacity in China to accept and accommodate China's WTO commitments, and translate these commitments into workable legal reforms, intensive training will need to be provided to national, provincial, and local lawmakers and law drafters to improve their legislative skills and enhance their knowledge of both environmental issues and WTO requirements. Additionally, capacity building aimed at creating a more systemized framework for sharing information on local environmental laws among localities and the national government will assist with consistent application of the laws and national government monitoring to ensure implementation of national requirements, including the implementation of WTO obligations.

In China, there are presently 2,800 congressmen and women at the national level and more than 10,000 congressmen at the provincial and city levels.143 These congressmen and women are given legislative authority by the Constitution. However, a thorough understanding of the meaning of China's WTO commitments, let alone the specifics of enacted Chinese environmental laws, is widely lacking among these individuals.144 One of China's most critical, nearterm tasks is to improve the legislative capacity of congressmen in various levels with respect to the WTO. Such efforts would naturally accrue to the benefit of the regulated community, and very likely the environmental legal system as a whole. Training materials concerning various aspects of WTO laws - focused on the particular needs of lawmakers at all levels of government - will need to be prepared as a part of any such activities.

In addition to the broader and more challenging requirements of political will and increased awareness and understanding of WTO obligations and how these translate into domestic legal reforms, popular understanding of these obligations will need to be increased. If compared with the current limited levels of environmental awareness among China's citizens, it is not difficult to imagine that increasing awareness of the potential societal benefits to China's legal system of WTO commitments will be a very demanding task. According to the most recent government environmental awareness survey, which was conducted by the SEPA and the Ministry of Education in 1998, 15.3% of citizens surveyed believed that environmental problems were very serious, 41.4% of surveyed citizens responded that environmental problems were "relatively serious," 19.9% of citizens indicated that environmental problems were "not very serious," and 2.9% of citizens indicated that there were "no environmental problems."145

In many instances, environmental problems are palpable, especially in a country where "there are no signs of improvement in China's most threatened freshwater lakes, the quality of coastal waters has continued to deteriorate, and there are signs that groundwater pollution may be increasing."146 However, average citizens would likely be less aware, notwithstanding summarized news clips in the government-sponsored media, of the more subtle aspects of China's global trade regime obligations.

As China's WTO membership matures, the more optimistic Chinese participants in the China's legal reform process will possibly be encouraged by increases, albeit gradual, in the type of developments described in this article. They will also be heartened by statements, such as those made by Professor Qu Geping, Chair of China's National People's Congress Environmental Protection and Natural Resources Conservation Committee, that "it will not be long before China's [legal] system adopts many of the characteristics of the regulatory regimes of relatively more developed countries."147 However, other Chinese participants in the reform process may view their acceptance of the various legal culture and related social changes underway to fulfill China's WTO obligations in the same way that Chinese company managers operating near the Huai River view their compliance with new and more stringent environmental enforcement initiatives as "amputating their limbs for the good of all."148 In order for currently existing generations to realize the many economic, environmental, and other benefits potentially associated with WTO-induced reforms, we can only hope that the changes to China's legal culture do not wreak that much pain.