Biodiversity Conservation and Protected Areas in China: Science, Law, and the Obdurate Party-State

Journal of International Wildlife Law and Policy

Volumn 17, Issue 3, 2014, Pages 85-101

  Wandesforde Smith, Geoffrey ^a   Denninger Snyder, Kristen ^a   Hart, Lynette A ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 84908406713     PISSN: 13880292     EISSN: 15481476     Source Type: Journal    
DOI: 10.1080/13880292.2014.953371     Document Type: Editorial

References (78)

1. We have in mind that portion of the literature that appears in English. We have no way to gauge the rate of increase in the level of interest reflected by the literature published in Chinese, although our rough sense is that here, too, interest is high and growing. Note
2. Governmental institutions in China, across the board and at all levels, are so closely integrated with the institutions of the Chinese Communist Party and so subject to Party control that effective governance is provided by what many China watchers simply call the party-state. Note
3. Elizabeth Economy, The River Runs Black: The Environmental Challenge to China’s Future (2010);
4. Judith Shapiro, China’s Environmental Challenges (2012);
5. Chinese Environ mental Governance: Dynamics, Challenges, and Prospects in a Changing Society (Bingqiang Ren & Huisheng Shou, eds., 2013);
6. Clearer Skies over China: Reconciling Air Quality, Climate, and Economic Goals (Chris Nielsen & Mun Ho, eds., 2013).
7. Questions about whether, when, and why China began to take environmental policy seriously are controverted. Although some see signs of interest as early as the 1970s and 1980s, particularly as China began to be influenced by growing attention to environmental issues on the world stage, there is general agreement that the adoption of the 11th Five Year Plan (2006–10) marks the beginning of a serious attempt to deal with “brown” environmental issues, notably air and water pollution control. Some observers believe the adoption of the 12th Five Year Plan (2011–15) marks a determination not only to expand and intensify pollution control efforts but also to shift to a new economic development model for the country, one that would move China decisively towards “green governance.” This last point, however, remains contentious. Note
8. R. Edward Grumbine & Jianchu Xu, Creating a ‘Conservation with Chinese Characteristics,’ 144 Bio. Conservation 1347–1355 (2011);
9. R. Edward Grumbine & Jianchu Xu, Recalibrating China’s Environmental Policy: The Next 10 Years, 166 Bio. Conservation 287–292 (2013);
10. Guizhen He et al., Changes and Challenges: China’s Environmental Management in Transition, 3 Envtl. Dev. 25–38 (2012);
11. Alex Wang, The Search for Sustainable Legitimacy: Environmental Law and Bureaucracy in China, 37 Harv. Envtl. L. Rev. 365–440 (2013).
12. Jerry McBeath & Jenifer Huang McBeath, Biodiversity Conservation in China: Policies and Practice, 9 J. Int’l Wildlife L. & Pol’y 293–317 (2006).
13. Gerald A. McBeath & Tse-Kang Leng, Governance of Biodiversity Conservation in China and Taiwan (2006).
14. Very little has been written and published in English on wildlife conservation law and policy in China, although the scientific and technical literature is more plentiful. The standard treatment, with attention to the charismatic megafauna of the western provinces. Note
15. Richard B. Harris, Wildlife Conservation in China: Preserving the Habitat of China’s Wild West (2007).
16. Chris Coggins, The Tiger and the Pangolin: Nat u re, Culture and Conservation in China (2002).
17. Until recently, and despite the earlier appearance of a literary and aesthetic environmental history of China [Mark Elv i n, The Retreat of the Elephants: An Environmental History of China (2004)], it has been hard to grasp the broad outlines of environmental transformation in China and what that has meant both for nature and for people. Note
18. Robert B. Marks, China: Its Environment and History (2011).
19. The difficulties of field research on local social, economic, and political phenomena in China are discussed in Graeme Smith, Measurement, Promotions and Patterns of Behavior in Chinese Local Government, 40 J. Peasant Stud. 1027, 1027–1028 (2013). Note
20. This diet of sources is the basis for Wang (2013), supra note 4.
21. Wenxuan Yu & Jason J. Czarnezki, Challenges in China’s Natural Resources Conservation & Biodiversity Legislation, 43 Envtl. L. 125–144 (2013).
22. When the article was written, Czarnezki was Faculty Director of the U.S.-China Partnership for Environmental Law at the University of Vermont Law School, now one of a number of American law school initiatives with a China focus. Note
23. Earlier, the partnership yielded a special China issue of the Vermont environmental law journal with both Chinese and American contributors. See 8(2) Vt. Envtl. L. J. (2006–07). Note
24. The story is told, for example, of Jianguo Liu, who began soon after his appointment as an assistant professor of ecology at Michigan State University a study of the 200,000-hectare Wolong Nature Reserve in southwestern China, established in 1975 chiefly to protect the giant panda. The reserve contained more than a tenth of the wild giant panda population and had very substantial support from both the Chinese government and international environmental organizations, including the World Wildlife Fund (WWF), for which the giant panda is the charismatic species. Liu’s research, published with others as Ecological Degradation in Protected Areas: The Case of Wolong Nature Reserve for Giant Pandas, 292 Science 98–101 (2001), is a landmark contribution to conservation science. It showed that 25 years after designation of the reserve, the most crucial parts of the forest canopy were being destroyed at an accelerating pace. The habitat inside the reserve was more vulnerable than that outside. Instead of being protective, the reserve was making things worse, chiefly because of the harvesting of fuel wood, which was, in turn, being fueled by an enormous influx of tourists wanting to see the pandas. The Chinese government responded by paying residents to monitor illegal wood harvesting in the reserve, but the program went awry when households, the recipients of the payments, decided to splinter into smaller units to capture more payments. When interviewed recently, Liu, whose findings at Wolong provoked immediate political controversy and were initially rejected by the government, said he had little interest in such political arguments and was devoted only to his data, which he always tried to “let speak for itself.” Note
25. Jonah Lehrer, Ecological Freakonomics, Conservation Magazine (August 2008), a University of Washington publication, online at http://conservationmagazine.org/2008/08/ecological-freakonomics (accessed 1 July 2014).
26. Emily Yeh’s take on Liu’s research, however, is that only some of Liu’s data are afforded this detached consideration: “Despite the authors’ assessment that the thousands of tourists attracted by the reserve every year have ‘significantly stimulated the extraction of natural resources such as fuelwood to produce marketable goods’, they nevertheless conclude that ‘local people in the reserve were the direct driving force behind the destruction of the forest and the panda habitat.’ This familiar narrative blames local people by considering only proximate factors, contradicting the study’s own finding of the role played by broader political–economic forces such as those driving the development of tourism” (citation omitted). Note
27. Emily Yeh, The Politics of Conservation in Contemporary Rural China, 40 J. Peasant Stud. 1165-1173 (2013).
28. Yu & Czarnezki, supra note 9.
29. “Chinese authorities have… engaged in the project of enhancing legitimacy through ‘rule of law’ development. Note, however, that this is not—in the leadership’s own words—a legal legitimacy that incorporates concepts of democracy, checks and balances, and the notion that all citizens are subject to the law. Chinese leaders have tended to treat ‘rule of law’ as a more limited concept in the sense of ‘enhancing cadre efficiency and accountability”’ (citations omitted). Wang (2013), supra note 4, at 377. Note
30. Carl Minzner, China’s Turn Against Law, 59 Am J. Comp. L. 935–984 (2011);
31. Thomas Heberer & Gunther Schubert, Political Reform and Regime Legitimacy in Contemporary China, 99 Asien 9–28 (2006).
32. Patti Goldman, Public Interest Environmental Litigation in China: Lessons Learned from the U.S. Experience, 8 Vt. Envtl. L. J. 251–279 (2006–07);
33. Alex Wang & Jie Gao, Environmental Courts and the Development of Environmental Public Interest Litigation in China, 3 J. Ct. Innovation 37–50 (2007).
34. Bureaucracy, Politics, and Decision Making in Post-Mao China (Kenneth Lieberthal&David Lampton eds., 1992).
35. Jeffrey Pressman & Aaron Wildavsky, Implementation: How Great Expectations in Washington Are Dashed in Oakland, or Why It’s Amazing that Federal Programs Work at All, This Being a Saga of the Economic Development Administration as Told by Two Sympathetic Observers Who Seek to Build Morals on a Foundation of Ruined Hopes (3rd ed. 1984).
36. Zhengyuan Fu, Autocratic Tradition and Chinese Politics (1993).
37. Wang (2013), supra note 4, at 376–77.
38. This is not to gainsay that one important strand of official party- state doctrine and policy in China since the late 1970s has been the decentralization of power, although its impacts generally and for conservation are hard to separate from other factors affecting outcomes on the ground. Note
39. Pierre Landry, Decentralized Authoritarianism in China: The Communist Party’s Control of Local Elites in the Post-Mao Era (2008).
40. Kenneth Lieberthal, China’s Governing System and Its Impact on Environmental Policy Implementation, Wilson Ctr. China Env’t Ser. (1997), online at http://www.wilsoncenter.org/sites/default/files/Lieberthal%20article.pdf (accessed 1 July 2014).
41. Åshild Kolås, Degradation Discourse and Green Governmentality in the Xilinguole Grasslands of Inner Mongolia, 45 Dev. & Change 308–328 (2014).
42. Other good intentions have been frustrated, too. More than once, China has turned to large international environmental NGOs such as WWF and the Nature Conservancy for help in developing new conservation tools. National parks are a case in point. But Yeh’s summary of what happened is discouraging. The parks were intended as a market-based method to combine conservation with community participation by using tourism revenues to benefit both rural residents and the environment. But a succession of shifting local alliances emerged around efforts to establish the parks. Local governments competed to expand tourism economies by applying the national park designation simply to upgrade local attractions and then dragged their feet on active conservation management and resident involvement. Local agencies jostled with each other to acquire organizational turf. Thus, Pudacuo National Park in Yunnan, the first park established in 2007, did become an important source of revenue for local governments, but local residents, who see very little of this money, are unhappy. The search for a new conservation model was, thus, frustrated by the mistake that marks other conservation initiatives in China, namely the tendency to treat as merely technical and economic problems what are also political issues and, thus, to stimulate local resentment. “Efforts to reforest and to conserve biodiversity are political processes,” Yeh writes, “that significantly [alter] rural residents’ access to livelihood resources, while political-economic pressures, bureaucratic structures and the system of incentives for cadres and local governments [also] prevent significant achievement of… environmental goals.” This outline follows Yeh (2013), supra note 10, at 1175. Note
43. John Zinda, Hazards of Collaboration: Local State Co-optation of a New Protected Area Model in southwest China, 25 Soc’y & Nat. Resources 384–399 (2012)
44. John Zinda, Making National Parks in Yunnan: Shifts and Struggles within the Ecological State, in Mapping Shangrila: Contested Landscapes in the Sino- Tibetan Borderlands 105–128 (Emily Yeh & Chris Coggins, eds. 2014).
45. Others see the “center good, local bad” dynamic quite differently. Wang writes, for example, that “the traditional ‘central good, local bad’ narrative has obscured the fact that central and local authorities have been more aligned in their focus on economic goals and deemphasis of environmental objectives than is commonly acknowledged… The view of central authorities as doing their best to balance economic and environmental interests, but failing in the face of an unruly bureaucracy, places the blame for China’s environmental degradation squarely with local governments. But the strong cadre incentives for economic growth and weak targets for environmental protection (to the extent they existed at all) belie this narrative, and highlight the role of central leadership in enabling and permitting dramatic environmental degradation to persist. It must be acknowledged that the prioritization of growth over environmental protection was an overt topdown policy choice.” Wang (2013), supra note 4, at 387–388. Note
46. Ben Hillman, Patronage and Power: Local State Networks and Party-State Resilience in Rural China (2014).
47. John James Kennedy, Finance and Rural Governance: Centralization and Local Challenges, 40 J. Peasant Stud. 1009–1026 (2013);
48. Smith (2013), supra note 7; Yeh (2013), supra note 10, at 1172–1175.
49. Jianchu Xu & David Melick, Rethinking the Effectiveness of Public Protected Areas in Southwestern China, 21 Conservation Biology 318–328 (2007).
50. Harris (2007), supra note 6; Wang (2013), supra note 4, at 368. Indeed, Wang adds later, “Strong incentives for local officials to boost economic growth have long exacerbated China’s environmental woes. This simple dynamic goes a long way toward explaining the so-called ‘paradox’ of poor environ mental law enforcement and compliance in China. At the same time, cadre evaluation incentives set a rough upper limit on environmental degradation by establishing penalties for environmental problems that caused social instability (protests, appeals to higher levels of government, excessive complaints, etc.). Put another way, failure to meet economic targets had consequences. Violations of environmental law largely did not, unless they triggered social instability or scandal. Environmental protection bureaus commonly took a reactive approach to environmental problems. In circumstances of few resources and clear incentives, only the squeaky wheel got the grease. While it has often been assumed that this dynamic is the result of poor regulatory capacity, weak institutions, and insufficient funding, it is worth noting that in China it has also been a dynamic reinforced by explicit top-down incentives” (citations omitted). Note
51. C. Y. Jim & Steve S. W. Xu, Recent Protected Area Designation in China: An Evaluation of Administrative and Statutory Procedures, 170 Geo. J. 39–50 (2004).
52. Megan Kram et al., Protecting China’s Biodiversity: A Guide to Land Use, Land Tenure & Land Protection Tools 169–228 (The Nature Conservancy, Beijing, 2012).
53. Yeh (2013), supra note 10, at 1168.
54. Another possibility, although not one that gets much scrutiny in the literature on Chinese environmental law and policy, is that local cadres and the power networks in which they are embedded are corrupt. See Hillman (2014), supra note 20. Note
55. “Deng Xiaoping’s policy of ‘Opening Up and Reform’ (Gaige Kaifang) marked a major shift in China towards a neoliberal development discourse focusing on marketization and privatization, in which ‘getting rich is glorious’ and prosperity and modernization go hand in hand. In pastoral areas the key policy introduced in this brave new era was the ‘Four Allocations’ (sipeitao), prescribing the fencing of household pastures, construction of animal shelters, house building and planting of forage crops. The expressed goal was to increase pastoral production and standards of living and eliminate poverty, to be achieved by the transformation of herders into ‘modern’ ranchers. The central authorities also introduced the cadre responsibility system (Mubiao Guanli Zerenzhi) to more effectively evaluate and monitor the performance of local government and party officials and guide their efforts through a combination of incentives and disciplinary measures. This meant the introduction of prioritized work targets, usually quantified and with timetables, linked to career rewards and individual or collective sanctions. In pastoral areas, targets were set for all four ‘allocations’, that is, the number of herders’ dwellings and animal shelters, the length of fences, and the area under forage crop cultivation. Herders were often encouraged (or pressured) by offers of subsidies in the form of money or materials (such as wire fencing). Authorities also launched campaigns to persuade herders to change their norms and values, to embrace modern market rationalities and discard ‘old’ ideas.” Note
56. Kolås, supra note 17, at 313–314. Id. at 323–324.
57. The realities of Chinese conservation policy on the ground, Kolås writes, are unpredictable as well as dysfunctional because of “the incoherence of policy making at the centre, with its competing agendas of economic growth and environmental protection.” Note
58. Wang (2013), supra note 4, 399. The 11th Five Year Plan was the first to make leading cadres responsible for the achievement of specific, quantified environmental protection targets. These are applicable, however, in the context of air and water pollution control and resource use for energy production—the “energy saving, emissions reduction” (ESER, or jieneng jianpai) targets. The principal thrust was to reduce bottlenecks in the economy in the efficient use of resources and to limit those forms of pollution that caused public unrest, even riots. The protection of ecosystem health was then and remains now a distinctly secondary goal, and it is hard to see how environmental cadre evaluation could be more closely adapted to the prevention of harm to the health and resilience of ecosystems, subjects in which neither the Chinese leadership nor official Chinese science have shown much serious interest. Note
59. Regime perceptions of the risks to legitimacy posed by environmental degradation are treated in id. at 395–398. Note
60. Since 1949, the legitimacy of the party-state has rested on a number of different bases. They were originally ideological (Marxist-Leninism) or stemmed from Mao’s charismatic leadership, although both of those faded after Mao’s death and the chaos of the Cultural Revolution. Claims to legitimacy have also been rooted in the robust assertion of Chinese nationalism by a Chinese Communist Party that promised to restore China to great power status after a century of humiliation at the hands of foreign powers. The turn to performance legitimacy began under the leadership of Deng Xiaoping. Note
61. In China, the “[environmental quality, human health, and ecosystem protection priorities that are typically presented as central priorities in the environmental protection frameworks of most developed nations are treated as secondary.” Note
62. “The idea of incorporating environmental considerations into bureaucratic evaluations has been part of the discourse in China since the 1980s, but it has not been effective in practice because of the low priority assigned to environmental targets… Incorporation of environmental factors into the cadre evaluation system emerged as official policy for the first time in 1989 when the Environmental Protection Law designated the idea of environmental targets as one of eight fundamental ‘environmental protection systems.’ The concept received further central government support in 1996 at the outset of the 9th five-year plan when the State Council issued a renewed call for the use of an ‘environmental quality administrative leadership responsibility system.’ The 1996 document clarified that the leading government officials at each level of government (governors, mayors, county and township heads), not just the environmental agency, would be responsible for environmental performance in their respective jurisdictions. Under the cadre evaluation system, key local leaders (lingdao banzi) at each sub-national jurisdiction were evaluated annually (with monitoring at mid-year) by the government at the level immediately above against specific performance criteria set forth in ‘responsibility contracts.”’ Note
63. “The relative importance of different targets is made explicit within the [bureaucratic] system. Performance targets are clearly labeled as soft (‘guidance’) targets (zhidao xing or yiban zhibiao), hard targets (ying zhibiao) or ‘targets with veto power’ (yipiao fojue mubiao)… Economic goals have long been hard targets that were tightly correlated with career outcomes… Social stability-related objectives and one-child policy implementation had long been ‘veto’ targets, which meant that failure to meet those targets would in theory automatically result in punishment… Environmental, rule of law, ethics, and other targets have historically been soft guidance targets, a powerful indication of the secondary importance of these values within the Chinese bureaucratic system. Put another way, these objectives have largely been left to the discretion of local governments to do as they choose.” Note
64. It is not as clear as we would like how much of the dramatic shift in 2006 to quantitative hard and veto level targets for pollution control spilled over to conservation policy. In both cases, however, the more important observation Wang makes here is that hard and veto targets were to be “subject to” tight enforcement from the top. In practice, in pollution control and conservation, “tight enforcement from the top” has seen considerable slippage, but this has not diminished either the party-state’s rhetorical elevation of environmental targets or its commitment to cadre evaluation as its preferred tool for trying meet those targets. Note
65. What has been seen historically as poor environmental enforcement and compliance, Wang writes “is no paradox at all, but rather in large part a rational reaction by local actors to clear central norms.” Note
66. Wang (2013), supra note 4, at 387.
67. The durability of similar sorts of “adaptive authoritarianism” reforms designed to provide greater accountability, transparency, and public supervision for a wider range of party-state programs is questioned by. Note
68. Joseph Fewsmith, The Logic and Limits of Political Reform in China (2013).
69. Wang does caution, however, that “reforms aimed at greater public supervision are most likely to take China in the direction, not of Western-style democracy, but toward what has been termed ‘deliberative authoritarianism’ or ‘consultative authoritarianism,’ if such a thing is possible. This is an approach that is designed to expand civic participation and government accountability, but under one-party [Chinese Communist Party] rule.” Note
70. Kolås, supra note 17, at 313–314.
71. Kolås, supra note 17, at 316.
72. Yeh (2013), supra note 10, at 1178.
73. Wang says of environmental cadre evaluation that it has become “the central focus of China’s domestic and international environmental strategy. Central authorities have applied the tool to a range of new priorities concerning climate change, energy efficiency, and pollution. Chinese leaders announced a ‘domestically binding’ carbon intensity target as the centerpiece of China’s negotiating position at the 2009 Copenhagen climate negotiations. China expanded its use of environmental targets in the 12th five-year plan (2011–15), with targets for carbon intensity and renewable energy, among others. Environmental cadre evaluation has [also] been used to address heavy metal pollution and fine particulate pollution” (citations omitted). Note
74. Wang (2013), supra note 4, at 368–369.
75. It is an open question whether cadre evaluation has been as successful at maintaining regime legitimacy in conservation policy as it has in pollution control, but in both cases it has clearly been the regime’s tool of choice. Chinese courts have long been seen as extensions of local government, with the ways they are organized and operated very closely integrated with other government departments and all subject to Party leadership. Note
76. Yang Su & Xin He, Street as Courtroom: State Accommodation of Labor Protest in South China, 44 L. & Soc. Rev. 157–184 at 181 (2010).
77. A recent analysis of environmental courts affirms this view. “For local officials striving to meet multiple goals, part of the appeal of environmental courts lay in their flexibility. Specialized courts provided a way to show responsiveness to new environmental concerns, while also occasionally aiding (or at least not obstructing) the ongoing pursuit of GDP growth and social stability. China’s environmental courts are not a step toward judicial empowerment, as they might appear at first glance, but an effort to shore up state capacity through an institution designed to coordinate and act as a backstop for government agencies.” Note
78. Rachel Stern, The Political Logic of China’s New Environmental Courts, 72 China J. 53–74 at 61 (2014).