Dial CPTPP for Climate Change-Related Civil Society Involvement in China: The Experimental Potential of the CPTPP’s Environmental Submissions and Referral Procedure

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In September 2021, China formally applied to join the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). Signed and entered into force in 2018, the CPTPP is a recent addition to a line of free trade agreements (FTAs) that establish formal mechanisms for engaging civil society in environmental matters. The environmental submissions and referral procedure (SRP) under Article 20.9 of the CPTPP has thus far received limited attention in academic and non-academic discussions.

China’s application remains pending as of this writing. Should it accede to the CPTPP, China would be subject to the SRP as a matter of FTA obligation. Focusing on the subject of climate change, I argue that the unique procedural design of the SRP holds experimental potential for engaging civil society in China in the policy sphere of climate change, where its access has historically been restricted.

Why Climate Change-Related Civil Society Involvement Matters for China

Across domestic and international planes, the space for civil society in China to challenge State decision-making is considerably limited. The revised Environmental Protection Law (EPL) extends opportunities for public participation, but leaves central government authority squarely insulated. Article 57.2 of the EPL affirms citizens’ right to ‘report’ non-performance of governmental responsibilities, but its applicability is explicitly confined to reporting local-level environmental agencies. This is somewhat paradoxical as climate decision-making in China adopts a top-down approach, under which the central government defines and conveys objectives down the administrative hierarchy for local authorities to operationalise. The right of environmental NGOs to initiate environmental public interest litigation proceedings, embodied in the much-applauded new Article 58, can only target corporate polluters and not public authorities. At the international level, while the new generation of Chinese FTAs frequently includes environmental provisions, none of such FTAs contain formal or ad hoc arrangements for, or even make any general reference to, the engagement of civil society.

To understand the status quo and, more fundamentally, why climate change-related civil society involvement should matter in the specific case of China in the first place, it is necessary to take a closer look at the motives underpinning China’s approach to climate change.

China’s climate decision-making is primarily and profoundly shaped by two considerations: to maintain competitiveness in green industries and to prevent social unrest that might arise from politically disruptive issues like energy security. Climate change is not viewed as a matter of environmental imperative with intricate distributional and socio-economic implications, but rather an opportunity for industrial leadership and an insidious threat to political stability.

The nation’s capability of organising efficient climate mitigation efforts is undeniable. But a government that can wield a unified, top-down approach on industrial and political bases can also swiftly shift its policy priorities when no economic and political concerns are involved, rendering China’s climate mitigation efforts unreliable, unsustainable, and at times inequitable. Despite its pledge in 2021 to refrain from building new coal projects overseas, China’s total investments in fossil fuel projects in Belt and Road Initiative countries have yet to decline. The aforementioned dual considerations hold much explanatory power here: ‘grey’ investments abroad are economically profitable, while the ensuing social repercussions have little impact back home. Moreover, certain regional authorities were reported to have cut off electricity to hospitals, homes, and rural villages as a last-minute measure to meet energy efficiency targets imposed by higher-level governments, demonstrating how relatively vulnerable communities, which are usually more diffuse and less resourceful and therefore less capable of triggering social disruptions, can be easily overlooked.

The precarity of China’s mitigation efforts results partly from the lack of civil society engagement. The above policies and practices could spark opposition from negatively implicated citizens if they were granted access, which contradicts the government’s pro-growth and instability-averse motives. The limited room for civil society to contest State decision-making could, therefore, be interpreted as a deliberate choice by Chinese legislators to preserve the centrality and unquestionability of (central-level) government authority on the issue of climate change.

The Significance of Respondent Discretion in the SRP

The SRP is established by Article 20.9 of the CPTPP and further specified in the CPTPP Environment Committee’s Procedures for Considering Submissions and Responses (Committee Procedures). The mechanism comprises three processes: (1) self-evaluation, where a person of a party may file a submission to that party (the respondent) concerning its implementation of the Environment Chapter, regarding which the respondent maintains full discretion to establish its own criteria for evaluation; (2) referral, which is not automatic and would only be triggered if another party refers the submission and the response, which the respondent is required to make publicly available, to the Committee. Justifications must be provided for the referral based on the respondent-defined criteria applicable in the self-evaluation process; and (3) Committee consideration, where the Committee decides whether the referred submission merits its review. The conformity of the submission to the respondent-defined criteria constitutes one of the grounds on which the Committee may deny consideration.

Several characteristics of the SRP stand out. First, the authority to consider submissions is allocated across two levels, commencing with the respondent’s assessment of its own record. Where no other party chooses to make a referral request, the process of Committee consideration would not be triggered at all.

Second, respondents are authorised to establish their own evaluating criteria, regarding which the CPTPP merely offers several non-binding considerations that each party is free to adopt, modify, or dispose of. In addition, these respondent-defined criteria have considerable influence on subsequent phases of referral and Committee consideration.

Third, the follow-up actions that the Committee could take are facilitative in nature, with no express connection to inter-State dispute settlement. Furthermore, the Committee Procedures provide that if the same matter is raised in inter-State consultation after it is referred to the Committee, the SRP would be given priority, which effectively introduces, in limited circumstances, an additional step preceding the initiation of inter-State dispute settlement.

These aspects highlight a defining feature of the SRP, namely the significant discretion accorded to respondents. Through self-evaluation and relying on the legal weight of respondent-defined criteria, a respondent could maintain considerable control over the impact of civil society submissions. Where a submission is subject to Committee consideration, the cooperative character and procedural priority of the SRP could afford a useful buffer against formal and more confrontational inter-State procedures. Overall, the SRP provides civil society with a venue to expose questionable State practice, while limiting the possibility that civil society submissions would actually result in curbing the government’s decision-making authority.

The SRP’s Experimental Potential, and How to Achieve It

The SRP’s distinctive procedural design holds experimental potential for engaging civil society in China’s climate governance. Aforementioned, the government’s pro-industry and instability-averse purposes necessitate a State-centric approach to administrating climate change, which begets substantial restrictions over civil society involvement. As this deeply ingrained mentality is likely to persist, any involvement mechanism that may be acceptable to the country must uphold the centrality of government discretion. Procedures whereby public submissions can automatically trigger review by an external authority (such as those adopted in US FTAs and by the EU) do not seem to satisfy this prerequisite. In contrast, the discretion that respondents can assume under the SRP largely retains government authority as the locus of power in climate decision-making, creating a testing ground for civil society involvement in the policy domain of climate change that China might be willing to tolerate.

Meanwhile, governments may be inclined to reduce involvement mechanisms to mere legitimation strategies, and the magnitude of respondent discretion under the SRP renders this scenario all the more likely. To mitigate the risks of abuse while upholding the SRP’s experimental value, I propose three modifications to its current procedures. First, precise and binding timeframes should be established. Second, to reduce the risk of non-transparency in the self-evaluation process, a centralised ‘registry’ should be established whereby all submissions are registered and made publicly available before being dispatched to respondents for review and response. Such a registry should only document and disseminate submissions and must not exercise substantive authority. Third, while respondent discretion to define evaluating criteria should be upheld to maintain the conditions conducive to experimentation, their appropriateness should not be entirely shielded from external scrutiny. Drawing upon the WTO’s Trade Policy Review Mechanism, periodic assessments could be conducted on the parties’ SRP practice, without imposing binding recommendations to modify or enforce any specific criterion. All three proposals can be readily accommodated within the Committee’s mandate to oversee, discuss, and review the implementation of the SRP and the Environment Chapter.

Concluding Remarks

To date, environmental NGOs in China have largely shunned climate change issues. In addition to the susceptibility of Chinese NGOs, which rely heavily on international funding, to political accusations of ‘entanglement with foreign interests’ when challenging government decisions, legal obstacles have also loomed large in their absence. Should China’s application to join the CPTPP be approved, it is hoped that the SRP could facilitate the initial steps towards reinstating the agency of civil society in China in the issue area of climate change.

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