The Double Edge of Legal Advocacy in Environmental Public Participation in China: Raising the Stakes and Strengthening Stakeholders

Drawing on the feature article they wrote for the China Environment Series 8, Allison Moore, American Bar Association and Adria Warren, Foley and Lardner, LLP, discussed the political and legal dynamics of the development of public participation in the environmental sphere in China. They examined two recent public hearings that were held in Beijing—the Yuanmingyuan (Old Summer Palace) lake drainage project environmental impact assessment (EIA) hearing and the Baiwang Jiayuan high-voltage power lines project hearing—as examples of the successes and obstacles that may block further development of public participation mechanisms in the environmental sphere.

In their discussion of these two hearings, Moore and Foley cited a number of successes in increasing the public's voice in environmental affairs, such as the:

• Increase in public consciousness and mobilization around projects that pose threats to the environment and human health;
• Creation of channels for public feedback to policymakers—most notably the new public participation law for EIAs;
• Growing involvement of the public in enforcement of environmental laws, especially in class action suits with the assistance of Chinese legal NGOs; and,
• Greater openness of the Chinese government to international assistance in the area of EIAs and public participation.

Remaining obstacles to the effectiveness of environmental public participation include: (1) delays by the Chinese government in involving the public on project approval decisions; (2) inexperience and imprecise understanding of the government's responsibility and options in responding to public opinion; (3) political and economic pressures on officials and private individuals; (4) gaps in the legal framework for enforcement of environmental rights; and (5) the May 2006 All China Lawyers Association Guiding Opinion for lawyers participating in sensitive cases involving "mass litigation," which may have a chilling effect on class action suits in the environmental sphere.

Moore and Warren closed their discussion on the need and opportunities for addressing these obstacles by increasing the participation of legal advocates in environmental protection through various roles as public interest advocates and technical legal experts in the environmental hearing, legislative drafting, and enforcement process.

Drafted by Juli S. Kim and Jennifer L. Turner.