Special Report Building Sustainable Solutions to Water Conflicts in the United States and China

By Michael Eng and Ma Jun

n the Missouri River Basin, 9 federal agencies, Platte River Recovery Implementation Program, 8 states, 28 Native American tribes, as well as which is currently being considered for formal Inumerous municipal governments, representa- approval and adoption by the state governors. tives of a wide range of stakeholders, and nongov- In recent years, such anecdotes have come to ernmental organizations (NGOs) are preparing to represent more the rule than the exception; govern- sit down together to begin crafting collaborative ment entities and stakeholders in the United States solutions for managing the longest river in the are increasingly turning away from a primary focus United States. This collaborative process aims to on litigation strategies for protecting their interests, reestablish a healthy, self-sustaining ecosystem for to instead devote their efforts on collaboratively three threatened and endangered bird and fish spe- addressing the challenges of meeting the mul- cies, while continuing to also meet the multiple tiple competing needs of water uses. Interestingly, needs of river users and basin residents. China, which also faces increasingly contentious In the state of Florida, a 28-person Advisory water conflicts, has begun to explore new options Team composed of stakeholder representatives for preventing and resolving such disputes. Many for local residents, recreation interests, the envi- new strategies involve greater centralization of deci- ronment, and agriculture, along with represen- sion-making over watersheds. (See Box 1). tatives of federal, state, local, and tribal entities, As China is trying hard to build a market has been working together since 2003, to provide economy, the country is experimenting with the use informed consensus-based recommendations to an of market forces to resolve water conflicts. At the interagency technical project development team. same time, there is a growing recognition that using The interagency team is developing a mutually a market-based approach without also ensuring agreed upon plan for the operation of two critical transparency and providing for public participation Everglades restoration projects: (1) to restore nat- is neither an efficient nor effective way to resolve ural water flows to Everglades National Park and water conflicts. Thus, there are several government protect endangered species reliant on its ecosystem; and nongovernmental initiatives in China promot- and (2) to sustain coastal ecosystems and protect ing increased stakeholder involvement in the envi- them from polluted stormwater runoff, while also ronmental policy sphere, which potentially provide providing flood protection for adjacent agricultural a foundation for collaborative problem solving and urban areas. to prevent or resolve conflicts around water. (See In the western United States, a Platte River Box 2). These policy pronouncements, along with Governance Committee was established in 1997, the new legal requirements for more participatory with representation from three states, water users, environmental decision-making have resulted in a environmental groups, and federal agencies, to jointly number of high profile cases in which stakeholders pursue a basin-wide effort to improve and maintain have emerged to vigorously advocate for the protec- Platte River habitats for four threatened and endan- tion of their interests. gered bird and fish species. In early 2005, the com- We first begin this paper with a discussion of mittee completed development of a comprehensive the newly emerging collaborative approach to

Woodrow Wilson International Center for Scholars 155 Box 1. Centralization Trends in Water Management in China—Tools for Conflict Resolution

• Clarifying the authority of higher-level agencies to settle water conflicts. While the original 1988 Water Law and the 1996 Water Pollution Prevention and Control Law gave central government agencies (i.e., the Ministry of Water Resources and its seven major river basin commissions) the power to “settle” or “coordi- nate” the solution of water disputes, the 2003 Water Law empowers these agencies to now also make final rulings over such disputes.

• Strengthening the role of the central government in trans-province environmental law enforcement and in coordinating trans-province pollution conflict resolution. The State Council’s February 2006 Decision to Implement Scientific Way of Development and to Strengthen Environmental Protection stated that the upstream provincial government is liable for compensation of losses caused by trans-province pollution, and the relevant governmental units and individuals shall be held responsible as well.

•  Establishing water affairs bureaus at the local level. These bureaus integrate the water management func- tions of water supply, discharge and sewage treatment and have been established in the cities of Shanghai, Shenzhen, Beijing, and Hainan Province.

• Strengthening river basin commissions. The seven main river basin commissions and others established on the sub-watershed level are being granted more authority to conduct water regulation and allocation.

­environmental problem solving in the United States, increasingly been pursuing collaborative approaches highlighting important tools for implementing to environmental problem solving, in general, and collaboration. Second, we illustrate collaborative in water management challenges, in particular. approaches to solving water management conflicts Collaboration is a distinctly different approach to using the three U.S. cases mentioned above. The problem solving than litigation, which has tradi- case studies give context for the following section tionally been the favored approach to conflict reso- that identifies the key institutional and legal incen- lution in the United States. tives and disincentives in the United States that Collaboration generally means, “working have encouraged this shift towards the use of col- together to achieve a shared goal.” Effective col- laborative approaches. Third, we explore the trends laboration helps ensure the involvement of a more in China to resolve the growing contentious water diverse range of perspectives than with traditional disputes, examining possibilities to build the capacity top-down unilateral government agency decision- and institutions to pursue more collaborative water making processes. The increased creativity and conflict resolution strategies. Finally, we conclude problem-solving capabilities unleashed through by discussing the opportunities in both countries for collaborative processes are particularly well suited creating additional incentives to pursue solutions col- for addressing complex environmental issues. The laboratively and the need to continue building capac- emphasis of collaborative approaches on engag- ity for effective collaboration strategies to solve costly ing all potentially affected interests, including water conflicts. disadvantaged or underrepresented communities and those who care deeply about the issues being Collaborative Approaches addressed, promotes stakeholder buy-in and public to Environmental Problem support for the eventual solution that is developed, while decreasing the likelihood of litigation. The Solving in the United States process also helps develop shared responsibil- During the last decade, government entities, private ity and accountability for the implementation of stakeholders, and NGOs in the United States have negotiated solutions.

156 China Environment Series 2006 Box 2. Legal Changes Promoting Greater Stakeholder Involvement in Water Management

• the State Council’s 2004 Guidelines on the Comprehensive Implementation of Administration By Law stressed the importance of promoting the transparency of government information and of making administrative decisions according to the law. The guidelines provided the policy basis for a more transparent and participatory decision-making process. Various government agencies have been ordered to revise their rules and regulations to comply with the principles set forth in the guidelines.

• the 2004 Administrative License Law gives stakeholders affected by some administrative decision the right to access information from the government regarding the decision and the right to demand a hearing.

• the 2003 Environmental Impact Assessment (EIA) Law clearly states, “The nation encourages relevant units, experts and the public to participate in the EIA process in appropriate ways.” This requirement for all construction projects to go through EIA process provides a legal basis for stakeholder involvement in any new controversial water projects.

• on 10 August 2004, the State Environmental Protection Administration (SEPA) issued the Temporary Measures for Environmental Protection Administration Permission, which states that public hearings should be conducted for two categories of construction projects and ten categories of project planning. The two categories of construction projects include large and medium construction projects that may cause serious environmental impacts and therefore require an EIA report.

• on 18 March 2006, the Provisional Measures on Public Participation in the EIA process became effective. The measures established detailed requirements on environmental information disclosure of proposed projects, including water projects that may lead to conflict.

The sharing of resources and technical expertise Tools for Implementing among participating agencies is another advantage Collaborative Environmental of collaboration, allowing for more efficient use Problem Solving of available assets. Parties working together col- laboratively to address an environmental problem A number of important tools are frequently used can identify relevant available information early when implementing a collaborative approach to in the analytical process and resolve differences environmental problem solving—independent in assumptions or interpretations as they arise. institutional conveners, third party mediators, Pursuing collaborative approaches also encour- information sharing, collaborative learning, adap- ages integrating, coordinating, and streamlin- tive management, and collaborative skills building. ing the multiple reviews and analyses associated Collaboration tools continue to evolve in response with different legal and permitting requirements. to new applications tailored for different situations, Furthermore, collaboration can help improve each having a unique combination of participants, mutual understanding between participating history, dynamics, and constraints. government agencies and among stakeholders regarding each agency’s different missions, policy Independent Institutional Conveners mandates, and legal requirements, as well as their and Forum Neutrality resource constraints and capabilities. Because all the entities involved in water manage- ment conflicts have a direct stake in the outcome, an independent institution is often required to bring

Woodrow Wilson International Center for Scholars 157 the parties together and provide a neutral forum for Institute for Environmental Conflict Resolution collaborative problem solving. The use of an inde- (see Box 3) is a recently established independent pendent institution helps ensure the overall integrity federal agency that has been able to serve this need. and impartiality of the process. Without the avail- Two of the three cases described later in this paper, ability of a trusted independent institution, par- relied on the Institute to play this important role in ties in conflict may not be able to proceed produc- helping to convene the problem-solving efforts and tively with collaborative problem solving. The U.S. ensure the neutrality of the process.

Box 3. U.S. Institute for Environmental Conflict Resolution

The U.S. Institute for Environmental Conflict Resolution was created by the 1998 Environmental Policy and Conflict ResolutionA ct (Public Law 105-156). Its mission is to assist all parties in resolving environmental conflicts involving federal agencies. The Institute provides a neutral place inside the federal government where public and private interests can reach common ground. Its primary objectives are to: (1) resolve federal environmental, natural resources, and public lands disputes through assisted negotiation and mediation; (2) increase the appro- priate use of environmental conflict resolution and improve the ability of federal agencies to use the approach effectively; and (3) promote collaborative problem solving and consensus building in federal environmental policy design and implementation. For additional information about the U.S. Institute for Environmental Conflict Resolution see: www.ecr.gov.

Third Party Mediators of environmental mediation, in addition to having The use of independent third party neutral media- conflict resolution expertise, also are typically famil- tors or facilitators for designing, convening, and iar with organizational missions and cultures of the managing the resolution process is a characteristic participating agencies and with government deci- feature of successful efforts to address environmen- sion-making procedures and requirements. tal problem solving collaboratively. In the United As the field of environmental and public policy States today, most environmental issues, and espe- mediation has developed, professional practitio- cially water-related disputes, are highly contentious ner associations have articulated recommended and frequently very polarizing. Public trust in gov- “best practices”1 regarding how to conduct collab- ernmental institutions is considered to be at an all- orative processes. Combining conflict resolution time low. Resentment towards the federal govern- theory with lessons learned from 25 years of case ment, especially those federal agencies with natural experience, these “best practices” provide practical resource management and environmental protec- guidance to government agencies considering col- tion responsibilities, runs high particularly among laborative agreement approaches to environmental some segments of the population and in certain problem solving. By following these “best practices,” areas of the country. Mistrust between agencies is agencies can enhance the likelihood that collabora- also common. tive efforts will successfully result in agreed upon Although collaboration per se does not necessitate implementable solutions.2 More recently, Policy the use of independent mediators, they are likely Consensus Initiative, an NGO dedicated to build- to be required in situations of low trust typical of ing the collaborative problem-solving capacity of major environmental conflicts. Use of an indepen- states, has formulated “Public Solutions: A System dent mediator, accountable to all the participants, for Collaborative Governance.”3 who has no decision-making authority and no stake in the substantive outcome of the process, can Information Sharing help build confidence in the fairness and integrity Another consistent feature of collaborative of the process, while also improving communica- approaches to environmental problem solving is the tion among participants. Professional practitioners necessity to share available information and to learn

158 China Environment Series 2006 together. A number of tools are utilized to address the data, parties can focus on crafting and evaluating these needs. Developing a common Geographic potential integrative solutions for addressing their Information Systems (GIS) database for a proj- multiple needs. ect provides a convenient means of sharing and analyzing information together. Furthermore, the Adaptive Management negotiation of information sharing protocols and Adaptive management, which is a formal and sys- jointly designing the database framework helps tematic approach to learning from the outcomes of build mutual trust, more effective working relation- management actions and applying that learning to ships, a foundation of procedural agreements, and future management decisions, is another highly use- a sense of teamwork and shared purpose. GIS can ful approach that is frequently used when addressing also be integrated with Decision Support System environmental problems collaboratively. Because of tools that incorporate explicitly articulated best their complexity and our incomplete understanding professional judgments in conducting analyses of of natural systems’ dynamic responses to anthropo- geographic-based alternatives, such as determining genic manipulations, the development of conclusive the most appropriate locations for habitat restora- solutions to water management conflicts is often tion projects. constrained by high levels of scientific uncertainty. Such uncertainties create the need for assurances on Collaborative Learning the part of participants that management decisions Collaborative problem solving also requires collab- are not necessarily final if they do not result in the orative learning. Oftentimes participants have inad- anticipated outcomes. With an adaptive manage- equate knowledge to develop informed solutions. ment approach, management actions are treated as In these circumstances, they can choose to jointly experiments rather than as final solutions. Through commission and select a team to conduct a “compre- collaborative monitoring and evaluation, informa- hensive study”4 to gather all available information tion is generated to guide future adjustments to and make it commonly available, while at the same management actions based on ecosystem responses time creating a shared baseline of knowledge and and desired outcomes, as well as to ensure early iden- understanding. If certain critical factual informa- tification of unintended and undesirable impacts. tion is contested, participants can engage in a joint fact-finding effort whereby they work together to Collaboration Skills articulate the questions that need to be answered, Another important feature of successful approaches gather relevant data, analyze information, and clar- to collaborative environmental problem solving is ify assumptions before deliberating on solutions. providing participants with opportunities to build Jointly developing analytical models is also a their collaboration skills. Through shared training characteristic of successful collaborative problem and integrating learning exercises into deliberations, solving. With water management conflicts these participants can improve their communication skills, might include a wide range of potential model- along with their effectiveness in negotiating and ing efforts, such as: predictive hydrologic models, joint problem solving. Very few scientists, technical historical hydrologic models, hydropower demand staff, or stakeholder representatives have been previ- models, electric cost analysis models, water sup- ously exposed to collaboration skills development. ply models, ground water models, flood prediction And yet, such skills are essential in working through models, a variety of biological and aquatic ecosys- difficult issues to craft joint solutions with others tem response models, and simulation models to who have strongly held different points of view. predict impacts on different interests. Developing models collaboratively has many benefits. It requires developing a shared articulation of assumptions and Case Studies of Collaborative provides a forum for shared thinking about key vari- Water Management Efforts ables and their interactions. By developing models together and then jointly analyzing the results, col- During the last decade in the United States, many laborating parties avoid the kinds of disputes over of the major water disputes have involved conflicts the validity of interpretations that commonly occur between meeting the various domestic, munici- with unilateral or proprietary modeling efforts. pal, and economic needs of different states, while Instead of arguing over the validity or meaning of also addressing federal requirements to protect

Woodrow Wilson International Center for Scholars 159 ­threatened and endangered species and maintain the While many of the intended benefits have been critical habitat and riparian ecosystems upon which accomplished, these water management struc- they depend. Balancing these oftentimes competing tures and their operations have also fundamen- needs has become particularly challenging during tally changed the pre-dam yearly cycles of water the current prolonged drought affecting significant flow. Currently, 35 percent of the main stem of the portions of the country. Missouri River is impounded and 32 percent has The following three case studies, which focus on been channelized. The altered flow regime has sig- water management rather than “water rights,” 5 help nificantly impacted the Missouri River ecosystem. illustrate many of the characteristics and tools associ- Two bird species dependent on the river’s habitat ated with a collaborative approach to addressing water are listed as endangered, and 51 of the river’s 67 management and endangered species challenges. native fish species are listed as rare, uncommon, or decreasing in numbers—one is formally listed as an endangered species.7 Case 1:  Missouri River Recovery Similar to resettlement challenges in China, Implementation Program the dams on the Missouri River also have had sig- The U.S. Army Corps of Engineers (the Corps) nificant social consequences. Thousands of Native operates six large dams and reservoirs on the American Indians living on reservations in the Missouri River which together constitute the larg- basin were displaced and relocated to less habitable est water storage system in the United States, with areas that were often more arid and less fertile than a capacity of 73 million acre feet.6 The mid-1940s their home sites along the river’s floodplain. Some enabling legislation for these structures authorized tribes lost many thousands of acres of their reserva- tion land to inundation. Important sacred sites to Native Americans were flooded, including ancestral burial grounds. These displacements and loss of lands have had powerful social and psychological impacts on tribes in the basin that continue to have ramifications today. To help provide guidance in operating the dams according to an established sched- ule of water withdrawals to meet multiple competing needs, the Corps created the Missouri River Master Operating Manual (Master Manual) in the 1960s. However, in the late 1980s, in response to the first major drought in the basin since the reservoir sys- tem became operational, the provisions in the Master Manual came under intense public Barge on the Missouri River. © Missouri Attorney General’s Office scrutiny and political pressures. In response, the Corps began an effort to revise the Master Manual to address the contemporary them to be operated for the purposes of flood con- needs of the basin. However, due to prolonged liti- trol, navigation, irrigation, hydropower, water sup- gation and ongoing disputes among various stake- ply, water quality, recreation, and fish and wildlife. holder interests, it took the Corps 16 years to finally More than 500,000 acres of cropland have been complete the revision of the Master Manual. By this developed for irrigation. Hydropower plants have a time, however, the Corps was required to also com- combined generation capacity of 10.9 billion kilo- ply with the Endangered Species Act (ESA), which watt hours. It is estimated that more than $3 billion became law in 1973. in potential flood damages have been avoided. Up The U.S. Fish and Wildlife Service (FWS), to 3 million tons per year of bulk cargo has been charged with enforcing the ESA through formal transported by barge on the river as a result of con- consultation procedures in the case of proposed trolled water flows. actions by other federal agencies, placed certain

160 China Environment Series 2006 ­requirements on the Corps and constraints on its under the Endangered Species Act (ESA), issued the operation of the Missouri River dams, in order to Corps an advisory letter indicating that its planned avoid jeopardizing the continued existence of the two annual operation of the Central and Southern species of birds (piping plover and least tern) and one Florida Water Project would result in jeopardiz- fish (pallid sturgeon) in the basin that are formally ing the continued survival of an endangered bird, listed as threatened or endangered. In making its the Cape Sable seaside sparrow. The endangered final decision adopting the revised Master Manual, sparrow’s primary remaining habitat was located the Corps committed to take a number of actions in Everglades National Park. The South Florida to address endangered species concerns, including: Water Management District, a state agency charged flow enhancements, habitat restoration, monitoring with conducting the day-to-day operations of the and evaluation, adaptive management, and popula- water management structures in accordance with tion propagation. Furthermore, the Corps agreed to the Corps’ annual operating plan, was also impli- develop a comprehensive Missouri River Recovery cated because it could potentially be held legally Implementation Program8 and to establish a broadly liable for violating the ESA. Around the same time, representative advisory committee composed of fed- the Council on Environmental Quality11 (CEQ), eral, state, and tribal entities, along with representa- which coordinates federal environmental policy on tives of the full range of stakeholder interests in the basin, to serve as a forum for collabo- ration in implementing species recovery and ecosystem restoration actions. The Corps and FWS have now partnered with seven other federal agencies with programs in the basin to convene the Missouri River Recovery Implementation Committee. Because of the long history of conflict over water manage- ment issues in the basin and the challenge of bringing together competing interests to collaborate on ecosystem restoration, the U.S. Institute for Environmental Conflict Resolution, an independent federal agency, has been asked to assist by providing inde- pendent and impartial process design, facili- tation, and mediation expertise.9 Non-point pollution from agriculture has become a major source of water deg- Case 2: Everglades Ecosystem radation within the Everglades. © South Florida Water Management District Restoration In 2001, despite a broad consensus that had been behalf of the President and which is responsible building gradually among citizens, the state of for overseeing federal agencies’ compliance with Florida, and the federal government to restore the the National Environmental Policy Act (NEPA), Everglades ecosystem,10 a vehement and still unre- advised the Corps that it could no longer continue solved interagency conflict dating back to the 1960s to indefinitely operate the Central and Southern over the implementation of two long-delayed water Florida Water Project on an experimental basis, as management projects was threatening to sabotage it had since 1983, to determine how to restore flows progress and momentum. One project was meant to to Everglades National Park. CEQ gave the Corps provide flood protection to agricultural lands and to a deadline to complete an Environmental Impact discharge floodwaters into adjacent coastal waters. Statement (EIS), as stipulated by NEPA. The other project was meant to restore natural It became clear that none of the agencies could hydrologic conditions to Everglades National Park, act unilaterally to solely pursue its own objec- whose habitat was being impacted by altered water tives, without also accommodating the needs and flows due to upstream flood control measures. concerns of the other agencies, which also shared The interagency conflict came to a head when the authority and jurisdiction over the issues that had FWS, exercising its authority and responsibilities to be resolved. Attempts were made by high-level

Woodrow Wilson International Center for Scholars 161 ­officials from the different agencies to negoti- flows through the states of Colorado, Wyoming, and ate a solution. The agency officials were stymied, Nebraska. Water projects in the basin store over 7.1 however, because their technical staffs provided million acre-feet of water in 190 storage facilities, them with competing interpretations of the highly irrigating 1.9 million acres of farmland, generat- technical results of the hydrologic modeling. The ing power, and providing municipal water supplies officials had no dependable objective basis to use and recreation. These water projects also have had when evaluating the impacts of various alternatives impacts on the Platte River’s riparian ecosystem. for negotiating an acceptable compromise. On the With the existence of four threatened or endan- recommendation of CEQ, the agencies requested gered species in the basin (the whooping crane, impartial mediation assistance from the U.S. piping plover, least tern, and pallid sturgeon), con- Institute for Environmental Conflict Resolution in cerns were raised in the 1990s about the continuing an attempt to sufficiently resolve their differences impacts of the water projects on the habitat of these to allow the projects to proceed. species, as well as the likely prospect of regulatory Over a ten-month period, the four agencies requirements restricting the operating conditions of succeeded in reaching agreement on an Interim these water management projects in order to comply Operating Plan for the Central and Southern with the ESA. These concerns created strong incen- Florida Water Project, which then became the tives for water users, conservation groups, the three “preferred alternative” in the formal NEPA review states, and the federal government to work together process. Because of the progress made in resolving in seeking potential solutions for complying with the long-standing issues and their improved working ESA, while also providing a level of certainty regard- relations, as well as the shared recognition of their ing long-term water availability for water users. mutual interdependence, the four agencies agreed to In 1997, after three years of discussion and nego- undertake a collaborative NEPA process12 to jointly tiation, a Cooperative Agreement was signed by the develop a long-term solution that would address all governors of the states of Colorado, Wyoming, and the endangered species, flood protection, water flow, Nebraska, and the Secretary of the Interior (who water quality, and funding issues. All of these issues oversees the FWS and who is ultimately responsible needed to be resolved for the two water management for implementation of the ESA) indicating their projects to be implemented. With the assistance of a joint commitment to establish a basin-wide endan- team of mediators working under the auspices of the gered species recovery program for the Platte River. U.S. Institute, these four agencies have gone on to The proposed program would allow existing water engage other federal, tribal, state, and local govern- projects to collectively comply with ESA require- ment entities in jointly creating and improving ana- ments and avoid the need to fully consult with FWS lytic models, developing alternatives, analyzing their on an individual project basis.14 The proposed pro- impacts, and negotiating a preferred alternative to gram was also envisioned as a way to proactively recommend to the Corps, which is the final decision- avoid future listings of other endangered species and making agency. In addition to this interagency team, to ensure mitigation of potential impacts of any new an advisory body13 that included nongovernmental water projects in the basin, without unduly affecting representatives of various stakeholder interests was existing water users. The program would pursue an also established to provide input and informed advice “adaptive management” approach to factor in new on draft proposals generated by the interagency team. information as it was developed. Differences would In the fall of 2006, this effort is entering into the be resolved through learning together from the suc- final stages of the NEPA process. The final decision cesses and failures of experimental manipulations is expected to enjoy widespread interagency and pub- and implemented recovery actions. Outside inde- lic support. The interagency team will continue to pendent scientists would peer review all scientific jointly monitor implementation using an adaptive studies developed by the program. management approach to ensure that adjustments The Cooperative Agreement established a are made to achieve the projects’ objectives. Governance Committee composed of ten members that included representatives of two federal agencies, Case 3: Platte River Recovery the three states, two conservation organizations, Implementation Program and three water users. Their role was to establish The Platte River originates from snowmelt in the policies, review, direct, and develop the proposed Rocky Mountains in the western United States, and Platte River Basin-wide Recovery Program. They

162 China Environment Series 2006 also hired an executive director to provide staffing emphasis has been given to engaging other federal support and help coordinate the functioning of the agencies and governmental entities as cooperating committee in developing the recovery program. The agencies16 in preparing and documenting environ- Governance Committee operates on a consensus mental impact analyses.17 CEQ has encouraged basis. They have, on occasion, sought the assistance federal agencies to approach NEPA requirements of a mutually selected independent mediator, to help as an opportunity and flexible procedural frame- them reach agreement on key policy issues. work for intergovernmental collaboration and con- It has taken the Governance Committee nine flict resolution at both the programmatic policy years of intense negotiations to formulate and reach and specific project levels. agreement on a proposed Platte River Recovery Various interests who oppose the proposed Implementation Program. During the summer of actions of federal agencies frequently use the courts 2006, the proposed Program underwent final for- to challenge the administrative process followed by mal public review and comment at the federal level agencies in preparing environmental impact state- under the provisions of NEPA. Each state also will ments used in formulating their final decisions. be taking public comments and holding public hear- Approximately 325 NEPA cases were adjudicated ings on the proposed program, before making their between January 2001 and June 2004.18 The time- individual final approval decisions. If approved, as consuming and costly court cases have served to expected, the program would be formally initiated create important incentives for all parties to pur- in October 2006. sue more collaborative approaches to conducting NEPA analyses. Federal agencies can potentially Incentives and Disincentives avoid lengthy delays in implementing proposed for Collaborative Problem actions due to litigation; and other agencies, as well Solving in the United States as interested or affected parties, can have a more sig- nificant role in influencing the substantive aspects of In the United States, the newly emerging collabora- decisions made by the lead federal agency. tive approaches and tools for water conflict resolu- While collaborative NEPA processes can take tion reflect the incentives and disincentives created more time up front to complete than traditional by a series of key environmental laws passed in the NEPA processes, the greater involvement of other 1970s. These and later key laws, implementing reg- governmental entities and nongovernmental stake- ulations, executive orders, and policy directives are holders can build greater buy-in to the eventual discussed below. decision, resulting in smoother implementation and a reduced likelihood of extended delays due to National Environmental Policy Act litigation or public opposition. In situations where Originally passed in 1969, the National multiple agencies share jurisdiction over an issue the Environmental Policy Act (NEPA)15 established and use of collaborative approaches provides the oppor- defined the fundamental environmental policy of tunity to resolve interagency differences during the the United States by declaring that the federal gov- course of conducting NEPA analyses. This helps ernment is to create and maintain conditions under avoid major conflicts that can result when federal which humans and nature can exist in productive agencies make unilateral decisions. harmony. Its scope is far-reaching in requiring all federal agencies to identify, analyze, and thought- Endangered Species Act fully consider the environmental impacts of any Originally passed in 1973, the Endangered Species major proposed actions. NEPA also requires federal Act (ESA) is one of the most comprehensive, power- agencies to involve the public, provide for the pub- ful, and far-reaching of all the environmental laws in lic review of an environmental impact statement on the United States.19 It applies wherever any species proposed and alternative actions, and to solicit and is threatened with extinction, whatever the source of respond to public concerns that are raised. that threat. Its enactment reflected a broad consensus Since its passage and especially more recently, at the time that existing federal laws were inadequate Council on Environmental Quality (CEQ), which to preserve at-risk species. The law and its imple- oversees the implementation of NEPA, has encour- menting regulations require all federal agencies to aged federal agencies to utilize more collaborative ensure that their actions do not jeopardize the con- approaches to complying with NEPA. Increased tinued existence of threatened or endangered species.

Woodrow Wilson International Center for Scholars 163 It prohibits all persons from killing or harming an If states are unable to meet their water qual- endangered species, or significantly modifying its ity standards, they are required to take more dras- critical habitat. The law’s implementing agency, the tic action by establishing Total Maximum Daily U.S. Fish and Wildlife Service (FWS) within the U.S. Loads (TMDL) of pollutants from all sources. Department of the Interior, has significant authority These TMDLs must be approved by EPA, whose to prevent or constrain federal actions, including state decision is also subject to review under the ESA. or local actions receiving federal funds or requiring The development of TMDLs, because they impli- federal permits, until concerns related to endangered cate pollution from all sources in a watershed, has species are adequately addressed. been approached collaboratively by some states. In A key provision in the law allows any citizen these situations, all contributors of pollutants in a to petition FWS to formally designate a species as watershed and the public are engaged to negotiate threatened or endangered. FWS must comply with and implement a joint solution developed by all statutory deadlines in responding to these citizen the parties. petitions. Decisions made by FWS can also be chal- lenged through litigation. This ability to delay and Administrative Procedure Act alter proposed projects or actions by any interested or Originally passed in 1946 during a period of signif- affected party results in considerable uncertainty for icant expansion of federal agency authorities, the other federal agencies, as well as developers whose Administrative Procedure Act (APA) provides the projects require federal permits. This uncertainty, fundamental legal basis for initiating most lawsuits in turn, creates significant motivation to pursue by affected interests and NGOs that challenge the negotiated solutions. While highly prohibitive in regulatory decisions made by federal agencies. its original version, the law and its implementing For example, it is through the provisions of the regulations have increasingly allowed for more flex- APA that parties are able to challenge in federal ibility in complying with its requirements. This is court the adequacy of the way by which agencies accomplished through a variety of mechanisms that have met the procedural requirements of NEPA allow and encourage the development of negotiated and ESA. Without the Administrative Procedure agreements between FWS and other federal agen- Act, there would be no legal basis for challeng- cies, states, private parties, and NGOs regarding ing federal agency decisions. The provisions of the how compliance with the Endangered Species Act APA have served to create powerful disincentives will be accomplished.20 for federal agencies to make unsubstantiated “arbi- trary and capricious” decisions, at the same time Clean Water Act creating incentives to seek collaborative solutions The Clean Water Act, which was passed in its in order to avoid extensive delays in implementing original form in 1972, is the primary federal actions due to litigation. law governing water pollution. Its goals are to eliminate releases of pollutants to waters in toxic Negotiated Rulemaking Act amounts and to achieve water quality standards Negotiated rulemaking (“Reg-Neg”) is a process in sufficient to allow for safe recreational swimming which a regulatory agency establishes an Advisory and fishing. The law requires a permit issued by Committee composed of representatives from a the Corps to discharge dredge or fill materials broad range of interests to negotiate the terms of an into U.S. waters, including wetlands. This federal administrative rule and propose it to the agency for action also requires review by FWS in meeting its consideration. If the Advisory Committee can reach responsibilities under the ESA. consensus on a recommendation, the agency com- All discharges of pollutants directly into U.S. mits to publish it as its “proposed rule” and then fol- waters also require a permit, whose issuance is lows the normal procedures for soliciting and evalu- frequently delegated by the U.S. Environmental ating public comments before issuing a “final rule.” Protection Agency (EPA) to the environmental pro- Experimentation with the use of negotiated tection agencies of individual states. These National rulemaking began in the 1980s by the EPA and Pollutant Discharge Elimination System (NPDES) the Department of the Treasury in response to con- permits are subject to third-party legal challenges cerns that traditional rulemaking by federal agen- under the ESA if they threaten the continued exis- cies had become too adversarial, making subsequent tence of endangered species. enforcement problematic. Its use did not become

164 China Environment Series 2006 more widespread among other agencies, however, thoroughly vetted before appointment through a until the U.S. Congress passed the Negotiated public review process. Opportunities also are pro- Rulemaking Act in 1990, formally legalizing the vided for the public to provide written or oral com- approach. Agencies were encouraged to use a nego- ments on the matters being considered. All meet- tiated approach to rulemaking when appropriate. ings of advisory committees are open to the public Negotiated rulemaking was not required but rather and the public is provided access to all committee- could be pursued at the discretion of the agency. generated informational materials. FACA does not An agency decision to use, or not use, negotiated apply to advisory bodies composed solely of other rulemaking procedures was not subject to judicial governmental participants, which could include review. The Negotiated Rulemaking Act was per- representatives of other federal agencies and tribal, manently reauthorized in 1996 and incorporated state, or local government entities. For example, an into the Administrative Procedure Act described advisory group composed of cooperating agencies above. Provisions of the act allow for the use of an involved in a NEPA process, would not be subject independent convener and facilitator approved by to FACA, because only governmental entities can the Advisory Committee to assist it in negotiating be designated as cooperating agencies. While cer- agreement on a recommended proposed rule. tainly laudable in its intent, FACA requirements have become an impediment to collaboration in the Administrative Dispute Resolution Act (ADRA) view of many federal agencies due to the perceived At the same time that the U.S. Congress permanently administrative burdens and costs associated with reauthorized the Negotiated Rulemaking Act, it also establishing and maintaining a formally established passed The Administrative Dispute Resolution Act advisory committee. (ADRA) of 1996. The ADRA requires all federal agencies to establish policies and internal capacity Recent Policy Directives on for using alternative dispute resolution (ADR) tech- niques as an alternative to litigation in the federal Environmental Collaborative courts. The act was passed in response to the rec- Problem Solving ognition that court-based resolution of disputes over a variety of administrative proceedings of federal A number of more recent policy directives have agencies was becoming increasingly costly and time continued to encourage the use of collaborative consuming, while at the same time reducing the like- approaches to addressing environmental problems lihood for achieving consensual resolution of disputes and resolving environmental disputes. Some of the because of its adversarial nature. Congress also rec- more notable developments are highlighted below. ognized that oftentimes more creative, efficient, and sensible solutions could be achieved through alterna- U.S. Institute for Environmental tive means than the court system. ADRA allowed Conflict Resolution federal agencies to use the services of a neutral media- The work of the U.S. Institute for Environmental tor or facilitator selected by the participating parties Conflict Resolution (USIECR), introduced in to help them address disputes related to rulemakings, Box 3, has gone well beyond assisting parties enforcement actions, issuing and revoking of licenses with collaborative problem solving. For exam- or permits, contracts, litigation against agencies, as ple, in response to its NEPA-related mission, well as other agency actions.21 USIECR convened a National Environmental Conflict Resolution Advisory Committee22 that Federal Advisory Committee Act represented a balanced cross section of viewpoints The Federal Advisory Committee Act (FACA), concerning environmental issues and the field of originally passed in 1972, governs the behavior of environmental conflict resolution. The committee advisory committees to the federal government that conducted numerous analyses including detailed include nongovernmental participants. FACA was case studies of NEPA projects, court rulings, and an attempt by Congress to ensure transparency and conflict resolution methodologies. The committee balance of viewpoints when federal agencies solic- concluded that effective forms of environmental ited advice from outside entities in making their conflict resolution can produce agency decisions administrative decisions. Federal advisory commit- that manifest the national environmental poli- tees must represent a balanced membership that is cies embodied in NEPA and that NEPA’s policies

Woodrow Wilson International Center for Scholars 165 and environmental conflict resolution techniques and natural resources in a manner that promotes can serve as mutually reinforcing tools to help the cooperative conservation, with an emphasis on federal government make more informed and sus- appropriate inclusion of local participation in tainable decisions. The committee found a striking federal decision-making, in accordance with their similarity between the policies set forth in NEPA respective agency missions, policies, and regula- and the principles and practices that characterize tions.25 The executive order defined “cooperative effective environmental conflict resolution.23 In conservation” as actions that relate to the use, sum, the committee concluded that well-designed enhancement, and enjoyment of natural resources, and executed environmental conflict resolution protection of the environment and that involve processes are capable of producing federal agency collaborative activity among federal, state, local, decisions that reflect NEPA’s core principles. and tribal governments, private for-profit and nonprofit institutions, other nongovernmen- Joint Memorandum on Environmental Conflict tal entities and individuals. Since its issuance, a Resolution and Collaborative Problem Solving number of administrative actions have been taken In November 2005, the Office of Budget & to implement the executive order, including the Management and CEQ issued a joint memoran- development of agencies’ internal policies on hir- dum to the heads of all federal agencies direct- ing, training, and rewarding employees based on ing them to increase their effective use of envi- their collaboration skills. In addition, the President ronmental conflict resolution and to build their is preparing a package of legislation designed to institutional capacity for collaborative problem achieve his administration’s natural resource and solving.24 The memorandum acknowledged the environmental policy goals through a cooperative challenge of balancing competing public interests conservation approach. and federal agency responsibilities when striving to accomplish national environmental protection National Park Service Director’s Order 75A: and management goals. It also recognized how Civic Engagement and Public Involvement unresolved environmental conflicts have resulted This internal policy directive to employees of the in: (1) protracted and costly environmental litiga- National Park Service (NPS) issued by its director tion; (2) unnecessarily lengthy project and resource in 2004 provides an example of how the broad fed- planning processes; (3) costly delays in implement- eral policy of using more collaborative approaches is ing needed environmental protection measures; being implemented at the individual agency level.26 (4) foregone public and private investments when The purpose of this director’s order is to articulate court decisions are not timely or are appealed; (5) the NPS’s commitment to civic engagement, and lower quality outcomes and lost opportunities to ensure that all units and offices embrace civic when environmental plans and decisions are not engagement as the essential foundation and frame- informed by all available information and perspec- work for creating its plans and developing its pro- tives; and (6) deep-seated antagonism and hostil- grams. Civic engagement is viewed as a continuous, ity repeatedly reinforced between stakeholders and dynamic conversation with the public on many lev- federal agencies. The memorandum also set forth els that helps reinforce the public’s commitment to basic principles for engaging federal agencies in the preservation of national park resources. environmental conflict resolution and collaborative problem solving. Furthermore, the memorandum Additional Incentives and Disincentives encouraged federal agencies to consider assisted Created by American System of Governance negotiations when addressing environmental con- When any particular interest believes it has the abil- flicts and to draw upon the independent services ity to unilaterally achieve its objectives without hav- of the USIECR and other internal and external ing to consider the needs or interests of others, then alternative dispute resolutions programs. little incentive exists to seek collaborative solutions. The American form of governance, which is based Executive Order on Cooperative Conservation on a system of checks and balances among three In 2004, President Bush issued an executive order co-equal branches of government and two main to the heads of the departments of the Interior, political parties, generally prevents any single par- Agriculture, Commerce, and Defense and EPA ticular interest from being able to garner sufficient to implement laws relating to the environment power to make unilateral decisions.27 The need to

166 China Environment Series 2006 build consensus to move forward on issues and to the solution of water disputes, the 2003 Water Law collaborate to solve common problems is a virtually empowers the superior agencies to make final rul- necessity under the U.S. system. Other key compo- ings over such disputes. nents in the American system of governance that This strong trend of prioritizing top-down res- create the incentives and capacity for collaborative olution of water conflicts is paralleled by another problem solving include the transparency of deci- quieter trend of addressing water disputes through a sion-making procedures, an assertive free press, more collaborative approach, reflected in increasing public access to information, opportunities for pub- transparency and public participation. China’s top lic involvement, and an engaged citizenry. environmental agency and domestic environmental groups have been the strongest advocates of this The Chinese Challenge of new trend. A key law enabling this push for open- Water Conflict Resolution ness is the country’s first Environmental Impact Assessment (EIA) Law that requires EIAs on every China faces similar water conflicts as the United construction project. This more transparent and States, as well as the same challenge of overlapping participatory environmental assessment process pollution control and natural resource protection could eventually reshape China’s traditional way of laws that create conflicting missions among govern- addressing water conflict resolution. ment agencies. Despite these similarities, China is handling its water conflicts in a much different way, Centralized Water Management reflective of a significantly different political system. System and Its Constraints So far, the government, especially the executive In China, many water officials and experts view the branch, still largely dominates water conflict resolu- problems of the nation’s water management system tion efforts. However, there are laws and institutions as a result of insufficient centralized regulation. Many that are starting to form the foundation for more believe that horizontal governance structures and ­collaborative problem-solving mechanisms to resolve redundancy of agencies at each level of government the country’s increasingly severe water conflicts. bring too many agencies—water resources, construc- In China, government agencies have the respon- tion, environment, agricultural, land and resources, sibility to resolve interagency and inter-jurisdictional oceanography and transportation departments—into water conflicts. China’s first Water Law, which took the business of water management, thus preventing effect in 1988, stipulated that interregional water efficient and effective resolution of water conflicts. quantity disputes should be resolved through nego- Vertically, the governance structure perhaps gives tiation and/or “settled by the next higher level gov- provincial and sub-provincial governments excessive ernment agencies.” power over water management, thus undermining China’s National Water Pollution Prevention watershed-based management efforts. and Control Law (adopted in 1984 and updated in Since late 1990s, the trend is towards strength- 1996), stipulates that disputes over water pollution ening centralized management both horizontally involving two or more administrative regions shall and vertically. Horizontally speaking, some local be settled through negotiation by the local govern- governments (e.g., Shanghai, Shenzhen, Hainan ments concerned, or through coordination by their Province, and Beijing) have created water affairs common superior government. These two laws bureaus, which integrate the water management provided the legal basis for the resolution of water functions of water supply, discharge and sewage quantity and quality conflicts to be dominated by the treatment. Vertically speaking, river basin commis- executive branch. The laws do not allow for judicial sions on the watershed and sub-watershed level are resolution of interregional water conflicts. However, being granted more authority to conduct water reg- a number of laws exist that enable Chinese citizens ulation and allocation, most notably with the new victimized by pollution to take industries to court. requirement to take ecological flows into account. In fact, the dominance of the executive branch in water conflict resolution has been steadily Using Centralized Power to Repair Drying Rivers strengthened, at least on paper. While the original To its advocates, the biggest success of this more 1988 Water Law and the 1996 Water Pollution centralized management system is the resumption Prevention and Control Law gave superior govern- of perennial flow in the Yellow River. The Yellow ment agencies the power to “settle” or “coordinate” River suffered its first dry-up in history in 1972,

Woodrow Wilson International Center for Scholars 167 Spotlight on Ngo activism in China Perspectives on the 4th NGO Forum for International Environmental Cooperation

By Kristen McDonald

s one who is easily bored by conferences, I participants’ chief environmental concerns. Work found myself unusually motivated to attend groups were then formed around (intriguingly) the Aas much as possible of the 4th NGO Forum dominant interests of car emissions, college stu- for International Environmental Cooperation, which dents’ mental health, soil conservation, ecological took place 7-12 November 2005 in Kunming. The conservation, water resource scarcity, environmental forum provided a welcome break from field research, education, and protection of fish and bird species. a chance to talk through initial findings, see old Many at the forum expressed concern with the friends and make new ones, and hear campaign news level of cooperation within and among Chinese and candid perspectives from new and veteran envi- NGOs. Elaine Zuckerman stressed in her training ronmental leaders. Sponsored by the International that Chinese environmental advocates do not engage Fund for China’s Environment, Renmin University, in enough teamwork to survive. Dr. Katherine Green Earth Volunteers, Kunming Institute of Morton of Australian Northern University suggested Science and Technology, and Green Watershed, that Chinese environmental NGOs (ENGOs) the forum included two days of NGO develop- build partnerships with not just other ENGOs, but ment training and two days of presentations and also poverty alleviation NGOs, corporations, and discussion. Sessions focused on campaign strate- transboundary colleagues. I have often wondered gies, biodiversity conservation, and water resource what stands in the way of Chinese NGOs working protection. Participants included students from over more closely together. My impression is that in part, a dozen Chinese universities, representatives from many ENGOs in China are still searching for an various Chinese and international NGOs, as well as identity and position amidst an often bewildering a handful of academics such as myself. array of shifting ground rules. Walking this balance beam arm in arm with another fledgling NGO is Black Cats, White Cats not necessarily more stable than walking it alone. One problem is the lack of models within China During the forum’s training session, NGO leaders for the kind of specific tactics Chinese NGOs can offered a wealth of advice aimed at breaking down safely and successfully employ to combine efforts. the complexities of NGO work into easily digest- The forum provided NGOs with the opportunity to ible parts. Li Zhinan of the Center for Biological share experiences and develop a sense of collective Diversity and Indigenous Knowledge opened the identity—an important foundation for cooperation. first day of the capacity building training with a pre- Some attendees commented that one major benefit sentation on the project cycle; Michele Perrault, from of the conference was that it provided a model they the Sierra Club, presented the Chinese language could learn from, to go out and run their own NGO version of the Club’s “Winning Victories for the trainings and workshops. I hope they do just that. Environment” training manual; Elaine Zuckerman of Gender Action introduced a nine-point program An Ant Can Destroy for creating an NGO; and Dorit Lehrick of the a Whole Dam China Association for NGOs discussed three good governance principals in fundraising, “accountabil- Indeed, the kinds of successes Chinese environ- ity, transparency, and legitimacy.” mental organizations are experiencing are unbe- In the hands-on portion of the training, Professor lievable given the constraints and obstacles they Jie Zhao and Ms. Jie Qian of the Yunnan Academy face. Wu Dengming of Green Volunteers League of Social Sciences led participants through a strategic of Chongqing reported on the group’s success in planning exercise, which began with brainstorming making environmental education compulsory in 168 China Environment Series 2006 the municipality’s elementary schools and an avail- in China. Tong told of the conflict between the able option in its middle schools. Fan Liangzhen Xiaodu Dam and the nature reserve, which resulted described Wuhan Green Environmental Protection in a decision to shrink the reserve boundaries to Center’s publication on environmentally friendly accommodate the dam. Tong noted, infrastructure companies and its pioneering efforts to link river for production purposes is not allowed in nature conservation with recreation by organizing a reserves. Thus, in order to build the dam, they “Swimming Across the Yangtze” event. May Ng redrew the boundary, and it was approved, a clear of Friends of the Earth Hong Kong discussed abuse of the EIA legislation. Adding that construc- the Greenpeace China campaign to confront the tion of the plant continued despite its appearance on illegal logging practices of Asian Paper and Pulp SEPA’s “dirty thirty” list last year. Corporation in Yunnan Province, which sparked a lawsuit as well as boycotts across China. If You Don’t Enter the I eagerly ate up every word of the final day’s Tiger’s Lair, You Cannot presentations on freshwater resource issues, as they Catch Any Cubs related most specifically to my own research on the Nu River Basin. Samual Sage, IFCE vice president, In the closing panel, Yu Xiaogang, director of Green started the session with a warning against water Watershed, gave his only address at the conference privatization, and moderator Liang Congjie pro- (translated by former WWF Director Jim Harkness, vocatively noted that many watersheds in China also the star of the previous evening’s banquet sing- are now monopolized by giant hydroelectric power along). In recent months, Dr. Yu had been under companies; although this is not officially announced intense pressure from authorities. Initially he was as privatization, it is actually privatization. not allowed to present at the forum, despite all he Kevin Li of International Rivers Network did to help organize it. And yet, there he was, in the reported on his research into the potential down- grandest conference room of a government hotel, stream impacts of Mekong River dams in Yunnan. congratulating his NGO comrades on their abil- Zhu Hua of the Xishuangbanna Tropical Botanical ity to learn from one another. Dr. Yu noted that Garden, Chinese Academy of Sciences followed among other accomplishments, the forum “added with a detailed and visually stunning presentation gas to our engines.” His remarks served as a simple on the vegetation of the Mekong Valley in China. and poignant reminder of how China’s ENGOs For an area that is so little understood and so rapidly are leading the way in advancing environmental changing, it was encouraging to hear that the insti- protection, and in boldly and sometimes riskily tute is attempting to record the region’s rich biologi- creating new spaces for citizens to participate in cal and ecological diversity. Regarding a query on political processes. The student group representa- the major environmental threats to his study region, tives who attended should be lauded for making Dr. Zhu noted that it was difficult to predict the use of the networking opportunity to produce an ecological impact of the planned six hydropower inspirational statement on the need for and role of plants, for no one, not even he, had done research student environmental groups in China. The state- on this development. Audience members pushed ment was delivered during the closing panel and Dr. Zhu to be more specific, but I was already made available for attendees to sign. impressed that an Academy scientist would publicly Organizing conferences to meet the needs of all admit to the lack of an adequate impact assessment attendees is always challenging, yet the organizers on the Mekong dams. It served as testimony both did a good job of distributing and collecting post- to the limitations of China’s Environmental Impact forum surveys, and Dr. Yu reported that a large Assessment (EIA) Law and the potential to correct majority were satisfied with the event. I certainly these limitations through public involvement. felt satisfied—I picked up some new information Tong Huan Ji of Sichuan University’s and research contacts, and made some new friends; Environmental Protection Volunteer Association my engine is still running, thank you! gave a fascinating report on the trials of the Three River Confluence Nature Reserve, designated in Kristen McDonald is a doctoral candidate at the 2004 in a last-ditch effort to protect the Yangtze University of California, Berkeley in the Department of River’s fish habitat. I was amazed to learn about Environmental Science, Policy, and Management. She what appeared to be the first riverine nature reserve can be reached at [email protected].

Woodrow Wilson International Center for Scholars 169 and the length of dry-up kept increasing until 1997 from the lower Yangtze; (2) the middle route will when the river was dry for 226 days. Since then, the be accomplished by building another equally long government imposed a more centralized regulation canal to tap the water resources from Hanjiang, the to limit water allocations to the provinces to make longest tributary of Yangtze; and (3) the western sure that there is always a flow, no matter how lim- route will divert water from the upper reaches of the ited, into the Yellow River estuary. Yangtze and a few tributaries, namely the Tongtian, Another oft-cited story is on the Hei River Basin, Yalong and Dadu rivers, to boost the supply of the the second largest (after the Tarim) inland river parched Yellow River Basin. basin in China. Replenished by glaciers on the edge Despite their environmental and social impacts, of Qinghai-Tibet Plateau, the Hei River used to construction of the eastern and middle routes was flow into twin lakes in the center of the Gobi Desert initiated in 2002 and 2003, respectively. Among in western Inner Mongolia near the ancient city of these impacts, one of the most challenging is to Etsina. The development of farming and industry in relocate around 300,000 rural residents displaced by the middle reach of the river since the late 1950s has the enlargement of the middle route source reservoir greatly reduced the water supply in the downstream in Henan and Hubei provinces, both of which are region. In the 1970s, the lakes began to dry up and densely populated and finding additional farmland local Mongolian herdsmen were severely impacted for the resettlement will be extremely difficult. It is by the desertification. In the late 1990s, when more fair to say that the projects will result in the redis- than 20,000 local Mongolians lost their source of tribution of an enormous amount of resources dra- drinking water and became “eco-refugees,” the Inner matically affecting the interests of different regions Mongolian government lodged a strongly worded and millions of people. The central government had petition to the central government.28 This demand the final say and decided to proceed with the project. for help aroused the attention of the leadership, who The fact that such projects could be implemented ordered the drafting of a fairer water allocation plan without undergoing much public discussion shows and a special Hei River Commission was established that the traditional top-down approach to water to enforce it. Through centralized regulation, water conflict resolution still functions—at least tem- flows have reached the previously dried twin lakes porarily. Government officials hailed the project near Etsina for the past three years. as another example of the advantage of socialism, While in the United States a dissatisfied party which allows for the pooling of collective strength can potentially hold up and prevent the implemen- to do something big. tation of certain kinds of executive branch decisions However, it is becoming increasingly difficult to for many years through litigation, in China, the push through projects like SNWDP. With the rising rulings made by the superior government agency sense of individual and regional rights in Chinese soci- are final. The marathon type of lawsuit over water ety, the dominance of powerful political and economic disputes that occurs in America cannot happen in interests has been increasingly challenged in recent China. Thus, Chinese government agencies are able years. In fact, the western route is facing mount- to settle water conflicts more quickly and efficiently, ing public scrutiny, despite extensive preparations so as to prevent them from growing further out of already underway—most opposition is from Sichuan control. This approach is viewed as a crucial tool to Province, from where the water will be taken. maintain social stability. Such a top-down approach has enabled China to address highly contentious Emerging Challenge to Central water situations much more quickly—most notably Authority (and the Western Route) is the South to North Water Diversion Project. According to the current plan, construction of the western route is to begin by 2010. It is expected to South to North Water Diversion Project take 40 years to complete the three phases of the The South to North Water Diversion Project project. By 2050, as much as 17 billion cubic meters (SNWDP) is a gigantic water scheme intended of water (equivalent to 40 percent of Lake Erie’s to divert water from the Yangtze River and its water) on an annual basis will flow from the Yangtze tributaries to the water-starved north. The diversion and its tributaries into the Yellow River. The total will be conducted through three routes: (1) the cost, based on year 2000 estimates, would reach 30.4 eastern route will pump water up the coastal region billion Yuan, or 60 percent of the cost of the whole to the north through a 1,200-kilometer long canal SNWDP.

170 China Environment Series 2006 In July 2006, a group of experts in Sichuan— flowing across Beijing’s jurisdiction. As the popula- including sociologists, geologists, hydropower tion of Beijing has risen sharply from 8 to 14 million engineers, biologists, and professors from universities over the past two decades, the city has intercepted and and officials from local government agencies—made cut off most of the rivers flowing across its territory, public a Memorandum on the Western Route Project of with the Juma River being the only exception. The the SNWDP, which they had jointly researched and Juma River is a tributary of the Hai River that flows drafted. According to a news media report, while across the middle of Hebei Province with slightly the planning for Phase I of the Western Route more than 30 kilometers flowing through Beijing. Project (drafted by a subsidiary of the Yellow River Beijing and Hebei each built a major water diver- Commission under MWR) had been studied and sion project on the Juma River. Beijing, however, approved by a committee of central-level experts in complained that it could not divert enough water to 2001, local scholars and officials had no access to the meet its demand because of Hebei’s upstream diver- planning document until 2005.29 sion. Beijing had intended to build a reservoir to According to the report, the drafters of the capture and store water from the Juma River, but its memorandum dismissed the claim that the start of plan has been held up because of the strong opposi- the eastern and middle route signaled approval to also tion by Hebei Province. start the western route. Instead, the group wanted a Beijing suffered its fifth consecutive year of broad range of issues to be addressed first, including drought in 2003. The situation turned so bad in the: (1) retreat of glaciers on the Qinghai Tibetan September 2003, that the city decided that it must Plateau and subsequent impact on water availability; tap its emergency reserve, including the Juma River, (2) potential damage to the ecosystem of the Qinghai as well as the aquifer under its riverbed. Beijing Tibetan Plateau; (3) impact on the hydropower developed a plan to raise the dam on the Juma River generation of Yangtze Basin dams due to the losses to hold more surface water within its territory. It of water; (4) compensation to the local residents; and also was moving forward to drill a cluster of more (5) mitigation of environmental impact. than forty wells to tap the subterranean flow of the One of the reasons for increased social concern Juma River. The water would be transferred through is the rising awareness of growing water scarcity. pipelines to Beijing’s Yanshan Petrochemical Plant, According to statistics compiled by China’s water the largest industrial water user of the city. authorities, two-thirds of China’s cities are water The Hebei government, however, had not been short (Editor’s Note: See Nickum and Lee commentary informed of Beijing’s intentions and only learned in this volume). The media report sparked an uproar about the projects by chance when a provincial among the public—especially in Internet chat water bureau official saw an online invitation solic- rooms and bulletin boards—in great part because iting bids for construction of the well drilling proj- the memorandum was released at same time that ect. Beijing’s water diversion project aroused great Chongqing and parts of Sichuan were experiencing concern for the province, because Hebei was also their worst drought in decades. suffering from its fifth consecutive year of drought. This is but one example of the rising awareness The Juma River, which was the only perennially of the protection of local and personal interests in a flowing river in Hebei Province 10 years ago, is now country that is facing scarcity of resources. In fact, dry most of the time. The drying up of the river the water scarcity in parts of China has become a in recent years has forced downstream residents in matter of survival for certain disadvantaged groups Hebei to tap the subterranean flow. Hebei believes and forces them to challenge the established that Beijing’s water diversion project will cut off the powerful interests—an ongoing intergovernmen- water supply to the nine cities and counties down- tal dispute between the capital Beijing and Hebei stream and severely affect the livelihood of nearly Province illustrates such a case. three million people in Hebei Province. Hebei also has voiced concerns that the diversion will exacer- Case 1: Disputes between Thirsty bate the desertification of croplands and threaten the ecology of the largest freshwater lake in north Beijing and Hebei over China, into which the Juma River flows. the Juma River The top leaders of Hebei Province became China’s capital city Beijing is surrounded by Hebei involved, sending a letter written in an unusually Province, from which originates most of the rivers harsh tone to Beijing’s water authority. Meanwhile,

Woodrow Wilson International Center for Scholars 171 a petition letter, signed by the villagers in Hebei’s China’s top-down approach is being challenged Laishui county, was delivered to Wu Bangguo, head by increasing difficulties in solving conflicts caused of the National People’s Congress, on 28 November by water pollution—both accidents and the every 2003, appealing for the central government lead- day toxic pollution that cities and factories pump ers to stop the “illegal” diversion project that would untreated into rivers, lakes, and streams. China’s threaten the survival of 269,000 people.30 National Water Pollution Prevention and Control Wu Bangguo provided his opinions in a report Law (adopted in 1984 and updated in 1996), stipu- that directed MWR to coordinate and resolve the lates that disputes over water pollution involving issue. The MWR minister, in turn, directed his staff two or more administrative regions shall be settled and the Hai River Water Resources Commission to through negotiation by the local governments con- develop a solution. cerned, or through coordination by their common The Hai River Commission proposed several superior government. But in reality, the superior stipulations in formulating a solution to the issue, agencies often feel powerless to handle highly including that the status quo on use of water from contentious water pollution conflicts. the Juma River should be maintained, which The dominating executive branch approach does meant a mandatory suspension of Beijing’s water enable government agencies to respond quickly to diversion expansion project. And furthermore, water conflict emergencies. With political and Hebei Province was ordered to take measures social stability upheld as the top priority of the to provide water to the Yanshan Petrochemical ruling Communist Party, this approach is instinc- Plant, because it is the major provider of gas and tively favored. However, emergency solutions are heat to Beijing. rarely able to effectively address the root causes of Guided by these stipulations, the two sides began the problems, leaving many unresolved issues that negotiations that resulted in bitter quarrels and often blow up again later as even more destructive sharply conflicting opinions. While Hebei is con- social conflicts. The following case illustrates the sidering selling some water to the capital, Beijing inadequacies of China’s top-down administrative wants to ensure it gets its share of Juma River water approach to overcome local protectionism and how for free. Beijing was forced to give up on its plans to this failure serves to create additional problems. grab most of the surface and groundwater from the Juma River. Nonetheless, by June 2004, it had com- Case 2: Maxigang River—A Major pleted a canal designed to divert much of the surface Inter-provincial Water water and part of the groundwater to its Yanshan Petrochemical Plant. Pollution Conflict Hebei’s demands to resolve the conflict did Maxigang is a 13-kilometer river that flows from prompt the upper levels to mandate some reso- Shengze town in Suzhou city (Jiangsu Province) lution, but lacking a true collaborative problem- to Xiuzhou district in Jiaxing city (Zhejiang solving process, the conflict has not been com- Province). With numerous lakes and ponds and a pletely solved and will probably reemerge again in dense network of wetlands, the region is China’s the near future. fish and rice basket. Shengze town experienced a rapid expansion Growing Challenge of Pollution Conflicts of the printing and dyeing industry in the 1990s, Beside conflict over water distribution, the number of dramatically increasing wastewater. Statistics from conflicts caused by water pollution is also increasing. Jiaxing city show that in the worst year, 90 million The Songhua River toxic spill, which took place in tons of “soy sauce” colored wastewater was dumped November 2005, shut down the water supply of a into the small river. The wastewater killed fish and city with over three million people and highlighted crayfish downstream in Jiaxing. One pearl farm alone the seriousness of the problem. However, this spill lost 20 million Yuan in a pollution spill in 2001.32 is only the tip of the iceberg. According to the Besides economic losses, which reached 56 mil- statistics provided by SEPA, by September 2006 lion Yuan in 2001, the wastewater also threatened another 130 water pollution incidents had occurred people’s health and safety. From 1999 to 2000, since the Songhua River toxic spill.31 A number of northern Jiaxing reported several outbreaks of intes- these incidents resulted in the shutting down of tinal and diarrhea epidemics. In 2000, not a single local water supplies. young man in 12 villages in northern Jiaxing could

172 China Environment Series 2006 pass the physical examination for military service. ­automatic monitoring station was installed on Overall cancer rates in 8 towns in northern Jiaxing Maxigang River. However, Jiaxing side reported that rose 28.2 percent from 1996 to 2001; the rate of Shengze began discharging pollution on weekends alimentary tract cancer rose by 58 percent.33 or rainy days, making it harder to collect evidence. In 1995, several hundred angry Jiaxing fishermen Additionally, Shengze town began discharging and their family members dumped loads of smelly through pipelines to another region in Jiaxing.35 dead fish in the courtyard of the Shengze town gov- While the conflict between Zhejiang and ernment headquarters. This incident—considered an Jiangsu has abated, the problems were solved in emergency—was reported to Zhejiang’s environmen- an ad hoc manner only after the situation became tal bureau as well as the Environment and Resource quite violent. None of the stakeholders were sub- Committee under of the People’s Congress, but they sequently equipped with skills to address future could not work out an effective solution. Thus, major water conflicts. However, this and other similarly pollution spills kept occurring every year.34 violent water disputes have prompted govern- This inter-provincial dispute was turned over to ment agencies, researchers, and NGOs to work the State Environmental Protection Administration on creating new tools and approaches for conflict (SEPA), the highest environmental authority in prevention and resolution—ranging from market China. Under the coordination of SEPA, a memo- mechanisms, increased stakeholder involvement, randum was signed in 2000, stipulating that Suzhou and class action lawsuits. city provide Jiaxing city one million Yuan in com- pensation and that Suzhou officials guarantee that Market-based Tools: Effective Use water flowing out of their jurisdiction meet- dis Requires Good Governance charge standards by the end of 2003. From the late 1990s, Chinese water officials and The water pollution continued, however, and researchers have been advocating market-based on 22 November 2001, angry fishermen in Jiaxing solutions to water quantity disputes. The first water raised one million Yuan to take actions on their deal took place in February 2001 between Yiwu and own. The fishermen used eight bulldozers to Dongyang cities in Zhejiang Province. Yiwu bought deposit several thousand sandbags and sink 28 the permanent use rights for 50 million cubic meters boats loaded with cement to block the 50-meter of water annually from the neighboring Dongyang wide Maxiang River. city at a cost of 200 million Yuan. Despite vocal News of the river blockage was sent to MWR support by senior water officials, this case caused a early that morning and was then passed on to central big controversy, for in China water is a public, not government leaders. Premier Zhu Rongji and other private, resource. Additionally, below the diversion cabinet members offered to intervene, prompting the downstream city of Shengzhou complained MWR and SEPA to send a joint taskforce team to that the water rights deal was made at Shengzhou’s the site. After meetings with the vice governors from expense.36 Water officials and academic experts Jiangsu and Zhejiang provinces, a new memorandum are examining this and other ad hoc trades to help was signed, which stipulated that Jiangsu take urgent design an acceptable tradable water rights system actions to shut down polluting factories and that for China. One illustrative experiment with a mar- Zhejiang remove the impromptu dam immediately. ket-based approach was used to resolve the conflicts The people in Jiaxing, however, would not allow involving the Zhang River—one of the most violent the government officials and workers to get to the and prolonged water conflicts in modern China. site because they did not trust the promises made by their polluting neighbor. On 8 December 2001, a Case 3: Violent Conflict on the vice-governor of Zhejiang Province went to the site Zhang River and the Trial of of the confrontation and talked to hundreds of local people. He then met with local village chiefs and 20 Market-Based Solutions representatives of local farmers and fishermen. That The Zhang River—within the Hai River Basin— evening, local police ordered people away from the originates in Shanxi Province and flows through dam site and six days later the sandbags and boats Henan and Hebei provinces. Hebei’s Shexian and were removed. Cixian counties, which are located on the northern A joint monitoring scheme has been set up side of the river, share the water source with Henan’s between Jiaxing city and Suzhou city and an Linzhou city and Anyang county on the southern

Woodrow Wilson International Center for Scholars 173 side. For centuries the villagers on both sides of the injuring nearly 100 villagers and causing one river had friendly relations and many became rela- million US. Dollars of damage to houses and tives through marriage. water facilities. However, the friendly relations were marred in the late 1950s, when the demands for water In the spring of 2001, northern China was rose sharply. Under directives of the Great Leap hit by another drought and the flow in the upper Forward, local communities raced to build large reaches of the Zhang River dropped to three cubic and small water facilities to expand farming. meters per second, creating a water shortage that One of the projects, the Red Flag Canal, which threatened to spark yet another bloody conflict. was dug through solid rock mountains, became a However, the Zhang River Subcommittee—which national model when it was completed in the early had been working hard to build communication 1960s. People from all over China went to learn among stakeholders throughout the basin—bro- from the experience of Linxian county for creat- kered a deal in which Shanxi Province agreed to sell ing a “milky way on earth” with their bare hands. extra reservoir water it held in the upper reaches of The other side of the story, which was not publicly the river to the drought stricken Hebei and Henan reported, reveals a less than rosy picture. The Red provinces. The first deal was made in April 2001 Flag Canal and other projects enabled excessive when 15 million cubic meters of water was released water withdrawals in the river and created severe by the Zhangze Reservoir in Shanxi followed by water shortages. Thus, instead of bringing water, a 30 million cubic meters release in June. In the these projects brought decades of fighting and spring of 2002 Hebei and Henan bought another bloodshed. By the 1970s villages on both sides of 30 million cubic meters of water.39 the river even mobilized their own militias to help The case was praised as a win-win solution. protect water for their farming. Upstream dams in Shanxi Province received pay- In 1976, a local militia chief from Linzhou was ments of 1.4 million Yuan, downstream Hebei and shot to death in a violent clash between Shexian’s Henan provinces avoided agricultural losses of 50 Hezhang village and Linzhou’s Gucheng village million Yuan, and the downstream hydropower sta- over the damming of Zhang River. In December tions generated 1.2 million Yuan worth of power. 1991, Huanglongkou village of Shenxian county Most critically, the sale succeeded in helping to pre- and Qianyu village of Linzhou city mortared each vent further violence over water shortages that had other because of conflict over a water diversion facil- troubled the region since the 1970s. ity, which resulted in a number of injuries.37 By attempting to clarify tradable water rights, In August 1992, bombs were set off along the Red Chinese officials and academic experts hope Flag Canal. A section of the canal collapsed, inundat- to reduce the conflicts caused by the confu- ing local villages and causing direct economic losses sion over who has legal access to limited water of nearly 10 million Yuan. That year, a special Zhang resources and to promote the fair transfer of lim- River Subcommittee was set up under the Hai River ited resources from lower to higher profit mar- Commission to address the violent situation. The ini- gin uses. Theoretically, a market-based approach tial weakness in the committee was apparent in that seems promising; however, it will be a tremendous conflicts continued into the late 1990s culminating in challenge to determine a fair distribution of initial three major violent incidents:38 water rights in China. The determination process itself can be expected to be controversial and cause • In March 1997, several hundred villagers from additional conflicts. Furthermore, the trading of Baishan village (Shexian county) and Qianyu vil- water rights provides fewer options and flexibil- lage (Linzhou city) were desperate to get water ity in times of continuous drought. After buying for their crops, which led to a violent clash leav- water from Shanxi for two years, for example, ing several dozen villagers injured. Henan residents in the Zhang River valley have • In 1998, Water shortages were so intense that now begun to construct a large reservoir on a major villages in Henan and Hebei fired mortars and tributary of Zhang River to address their continu- destroyed each other’s water diversion facilities. ing and unresolved water supply needs. Without • On Chinese New Year in 1999, villagers from market mechanisms or collaborative problem- Shexian’s Huanglongkou village and Linzhou’s solving processes to encourage conservation, this Gucheng village used bombs against each other, new dam could fuel future conflicts.

174 China Environment Series 2006 Reflections on Free Market Solutions to Water Conflict Like many other laws in China, the EIA Law is The perceived success of free market reforms in merely a guideline and the requirement for public bringing millions out of poverty in the 1980s led participation is very briefly stated. Still, it has many progressively minded Chinese experts and the provided the initial legal cornerstone for ensur- majority of the public to believe that the invisible hand ing public participation in governmental decision- of the market can sort out social problems and bring making processes. Since its passage, additional China a more efficient and fairer society. However, by laws, regulations and policies have been established the 1990s it became clear that market-based reforms following the same principles. Together, they have also have created growing social problems such as a laid a legal foundation for a new way of water widening of the income gap, rising education costs, management by opening the door to collaborative and a deteriorating medical care system. Such prob- decision-making processes. lems have prompted many Chinese to rethink such a strong reliance on a market-based approach to scarce The Environmental Impact Assessment Law resource issues. Specifically, it has become clear to The EIA Law, which became effective on 1 many that a market-based economy that does not give September 2003, clearly states, “The nation encour- the public access to information or permit stakeholder ages relevant units, experts and the public to par- involvement cannot produce a stable society and ticipate in the EIA process in appropriate ways.” sound economy. Thus, in terms of water problems, the According to the law, for projects that may cause effective use of market-based tools—such as pricing negative environmental impacts and directly involve schemes and defining water rights—cannot rely fully public environmental interests, the institutions of on a centralized approach to water management; project planning should seek opinions from the rel- rather, what is called for is the utilization of more evant units, experts and public over the draft EIA bottom-up, transparent and participatory processes. report, by holding evaluation meetings and hear- ings…before the draft is submitted.” In addition, Creating a Foundation for “the institutions should seriously consider the opin- Collaborative Problem ions of the relevant units, experts and the public over the draft EIA law, and should attach explanations Solving in China: Top- for adopting or not adopting the opinions when Down Laws Promoting submitting the EIA report.” Stakeholder Involvement in Water Management The State Council’s Guidelines on the Comprehensive Implementation While China’s water management seems to be of Administration By Law leaning toward a more centralized model, the These guidelines, which were issued on 22 March country’s environmental management is undergo- 2004, stressed major internationally accepted ing major changes. Ever since 2003, there has been good governance principles such as transparency, an increasing focus on public participation, cor- participation, and the rule of law. According to the responding with progressive changes in China’s guidelines, apart from national and business secrets environmental laws. and private matters, Chinese administrative institu- Just like NEPA triggered public participation tions should disclose and allow the public to review in environmental affairs in the United States, governmental information. When discussing how Chinese participation in the environmental sphere to build more democratic decision-making proc- also began with a procedural law, namely the esses, the guidelines require the government “to Environmental Impact Assessment (EIA) Law, the clearly define the administrative decision-making first Chinese law that requires public participation power of all levels of governments…and improve in government decision-making processes. This the regulations for internal decision-making,” as law is highly relevant to water conflict resolution well as establish a more transparent administrative because all construction projects—many of which decision-making process that brings in public par- could produce water conflicts—are legally required ticipation and outside expert review. to undertake an EIA. Thus, if the law is followed, Specifically, the guidelines require that informa- the Chinese public will have a say in the decision- tion on government agency decision-making for making process for those projects. projects or plans be disclosed and accessible to the

Woodrow Wilson International Center for Scholars 175 public through seminars, hearings, and evaluation • Since the country’s first meetings, all of which should collect opinions on environmental NGO the projects or plans. The guidelines establish the was registered in 1994, policy basis for a more transparent and participatory Chinese green groups decision-making process. Various government have established their agencies have been ordered to revise their rules and reputation and devel- regulations in accordance with the principles set oped their capacity to forth by the guidelines. SEPA was one of the first begin addressing even agencies to issue their own implementation docu- environmental trans- ments supporting these guidelines. parency issues.40 • Some Chinese NGOs The Administrative License Law and private lawyers have Enacted on 1 July 2004, the Administrative been helping water pol- Licence Law (ALL) requires that administrative lution victims navigate institutions reviewing applications for permission their way through the or licences for new projects or plans must inform courts to punish pol- and solicit input from any third party that has luting industries and to a major interest in (or will be impacted by) the receive compensation. projects or plans (e.g., citizens living in farmlands that will be inundated by a new dam being pro- First Major Grassroots posed). The law requires administrative institu- Campaigns on Water tions to inform the applicants and stakeholders Management about their rights to demand a hearing. Applicants Public participation in and stakeholders must submit an application for water management proj- a hearing within five days of being informed of ects began with a few their rights, and the administrative institutions are large hydropower projects. required to organize a hearing within 20 days of China is facing serious Walking along the beautiful Nu River (Nujiang), a wild river that flows through receiving the application. shortages of both water China, Burma, and Thailand. Plans by the and energy as its rapid Yunnan provincial government to build a Bottom-Up Movement to Increase Stakeholder economic expansion fur- cascade of 13 dams on the Nujiang have Involvement in Water Management ther strains its limited sparked strong opposition from grass- roots groups, which stress the marked These new policy and regulatory tools still need natural resources. This has lack of transparency in the dam decision- to be tested, in terms of actual application to pro- prompted a new round of making process. © Wang Yongchen mote collective problem solving in water conflicts. hydropower development Fortunately, social conditions in China appear con- proposals in a country that ducive to these new opportunities: with 86,000 dams is already the most dammed in • There is growing public awareness regarding the world. China’s installed hydropower capacity pollution and ecological degradation, along reached 100,000 megawatts in 2004, making it the with their impacts on public health and living biggest hydropower user in the world. According standards. to plans drafted by China’s central planners, the • Top party leaders are promoting a new view of country is looking to nearly triple its hydropower more balanced and sustainable development, capacity by 2020. publicly committing themselves to the establish- Such massive river development is unprec- ment of a “harmonious society,” with harmony edented; it dwarfs the rest of the world’s hydro between humans and nature being one of the key schemes. Local NGOs and environmentalists themes. worry that the current hydropower “craze” will • The Internet, with more than 100 million users severely overexploit China’s rivers and result in in China, has dramatically enhanced transpar- serious environmental and social harm. They argue ency on environmental and social issues—a that tripling China’s hydropower capacity would much needed first step in improving environ- mean virtually the end of pristine rivers in China, mental decision-making processes. the fragmentation of ecosystems within China and in downstream neighboring states, and the

176 China Environment Series 2006 ­impoverishment of biodiversity. Environmental made some of China’s largest dams uneconomical, activists and researchers predict that hydro expan- (6) exaggeration of potential benefits, and (7) cost sion is highly likely to displace more than one mil- and time overruns of past projects. Chinese NGOs lion people from their ancestral homeland in the are stressing that many of these shortcomings stem deep valleys of China’s hilly southwest. from the lack of a fair and transparent process to Such is the backdrop against which the “rising decide on dam issues. rivers movement” in China has emerged. Since These problems emerged in part by allowing 2003, many Chinese NGOs follow dam issues, even decisions on large dams to be determined solely making high-profile challenges against a series of by government officials, developers and technical dams that they believe will be the most damaging: experts, who can make—often-profitable—agree- ments among themselves. NGOs and environmen- • NGOs informed the public and media about how talists assert that no interest groups or individuals Yangliuhu Dam would harm the 2,220 year-old should be permitted to make easy money by exter- Dujiangyan irrigation system that is, amazingly, nalizing huge costs on displaced people, on society still serving millions of people today. This sys- in general, on the national economy, and on the tem was deemed a Word Cultural Heritage site environment. They argue that best-practice plan- in 2001. Some 180 media reports combined ning for China’s energy future requires an open with public dissent finally forced the developer and transparent decision-making process for dams to abandon the project in 2003. and other energy-generating projects that provides • In 2004, Chinese NGOs turned their focus on for participation by stakeholders and ensures full a cascade development project on the Nujiang, access to information. one of the last two free-flowing rivers in China. Their efforts aroused national public attention Trying out the New Public on the fate of a remote river that was unknown Participation Policy Tools to most Chinese until then. Again, widespread China’s environmental authorities have wanted to public concern and strong attention focused on integrate public participation into decision-making the project by the news media finally led the processes through the use of formal public hearings. Premier Wen Jiabao to halt the project pending However, cases like Nujiang are considered too a more comprehensive EIA. sensitive to experiment with such new tools. When • Since July 2004, environmentalists have been work- SEPA was looking for a suitable situation for con- ing to preserve the Tiger Leaping Gorge, creating ducting a public hearing, the dispute over install- a campaign to shed light on a massive dam project ing plastic sheets to line the bottom of the lake that will devastate this spectacular landscape and at Yuanmingyuan, the Old Summer Palace, was the rich cultural diversity, which has provided a selected as a safer opportunity for trying out new stable economic life for 100,000 people. approaches to public involvement. The Yuanmingyuan management authorities Most of the local NGOs doing this work are chose to line the bottom of the lake with plastic not ideologically against dams, rather proponents sheets to prevent the seepage of precious water of transparent decision-making. They understand resources. But many people were suspicious of the that China needs power to support its rapid eco- move, wondering whether it was for economic gains nomic growth and to meet the rising demand from of the management, worrying that it may damage a more affluent society. What they cannot accept is the cultural heritage site. SEPA managed to hold the mentality still dominating the hydropower sec- an environmental public hearing on the dispute tor that views every existing gorge as a good dam in April 2003, the first of its kind in China on the site. These Chinese environmentalists are urging national level. Seventy-three representatives from the agencies and developers before they take on the all walks of life participated and stated their views damming of any new gorges to review the hard les- on the project. sons from the past 50 years: (1) failure to properly Without a completed EIA report, this public resettle millions of displaced residents, (2) destruc- hearing functioned more like a pre-hearing meeting tion of ecological balance, (3) loss of biodiversity, designed to collect information and opinions. A (4) destruction of natural and cultural heritage following-up hearing after the EIA report was sites, (5) severe sedimentation problems that have drafted should have been conducted, but one was

Woodrow Wilson International Center for Scholars 177 never held. Some were left to wonder whether other federal agencies for its services. Because of the process was cut short due to political pressure. its small staff, the USIECR generally must sub- Nonetheless, the case did result in a significant contract with private sector mediators to respond milestone—the full draft EIA report was posted to the demand for its services. The costs of these on the SEPA website, satisfactorily addressing the private sector mediators must then be passed along rights to know of concerned citizens. Most likely to the sponsoring federal agency. Because the cost other relatively less sensitive cases will have to of providing independent mediators is consider- act as testing grounds for new laws and pushing able under these current arrangements and because forward public participation in water conflicts. the annual budgets of federal agencies with natural The Yuanmingyuan case illustrated that in China resource management and environmental protec- public participation should and could start with tion responsibilities are severely constrained, it is environmental information access, where there is unlikely that the use of collaborative problem-solv- already a solid legal and policy basis. ing approaches will increase significantly in the near term. To change this scenario, Congress would need Creating Additional to provide additional funding so that independent mediation assistance could be provided at little or Incentives for Collaborative no cost, or so that federal agencies could more eas- Problem Solving ily afford to pay for these services. Neither option is very likely given the present federal budget deficit What can be done to create additional incentives for situation and the current political climate. pursuing collaborative problem solving approaches to water management conflicts in the United States Revision of the Federal Advisory Committee Act. and China? Revising this act to remove the obstacles it presents to federal agencies wanting to meaningfully engage United States nongovernmental stakeholders and the public in In the United States while a number of policy direc- environmental problem solving would help elimi- tives have been issued by the current and previous nate a key disincentive to pursuing collaborative administrations to encourage federal agencies to approaches. This would appear to be an achievable engage with other agencies and stakeholders on a short-term goal. more cooperative and collaborative basis, additional incentives are likely to be required to result in sig- Lack of high-level support. More prominent support nificant long-term improvements: by elected and appointed public officials for specific collaborative efforts could increase the incentives Improve Funding. Lack of available funding is one for parties to participate. Public officials could also of the major obstacles to more extensive use of col- take a more positive and proactive role in bringing laborative approaches to water conflict resolution. together people with diverse perspectives to work Because of the current pervasive mistrust of federal on solving shared water and other environmental agencies among states, tribes, local governments, and problems. NGO stakeholders, the use of independent impartial conveners, mediators, and facilitators is likely to be Maintain NEPA and Endangered Species Act (ESA). essential for the near term, to help ensure confidence The need to build consensus to move forward on solv- in the integrity and fairness of agency-sponsored ing common environmental problems is a necessity collaborative processes. Unfortunately, using such under the U.S. political system. Nonetheless, there outside mediators is quite costly for federal agencies, are occasions when one faction or another becomes creating substantial disincentives to use them. emboldened to think it has the power to unilaterally The USIECR, for example, is an independent pursue its own policy objectives without building agency staffed by federal employees that could con- bipartisan support to develop mutually acceptable ceivably provide mediation services at little or no compromise solutions. For example, lately, concerns cost to collaborative processes sponsored by other have been raised about what appears to some to be federal agencies. However, in establishing the U.S. unilateral partisan attempts to substantially change Institute, Congress expected it to supplement its ESA and NEPA to ensure more favorable outcomes modest operational funding by directly charging for the proponents’ supporters. While there is broad

178 China Environment Series 2006 agreement that both laws could benefit from being Create More Laws to Support updated to be more responsive to current condi- Public Participation tions, significant reductions in their authorities and China needs to revise existing laws and regulations scope could result in reducing the incentives that and make more laws to support stakeholder their very clout creates for encouraging collabora- involvement. The State Council Guidelines tive environmental problem solving. mentioned previously has ordered various government agencies to revise their rules and China regulations in accordance with the principles set The kind of collaborative environmental problem forth by the guidelines. SEPA was one of the solving utilized in the United States could be first agencies to issue their own implementation adopted in China only when powerful interests are documents supporting these guidelines. However, no longer able to dismiss the interests of the others. some other agencies, including the powerful water In the United States the real incentives for different authorities, have not responded to the guidelines interests groups to come to the negotiation table are in a speedy way. powerful laws such as NEPA and ESA, as well as the Furthermore, the challenge to create incentives for uncertainties of prolonged and costly court process. collaborative environmental problem solving may be While in the United States one challenge is how to bigger than expected in China than in countries like maintain these incentives by keeping the authority United States, where long before NEPA was enacted and scope of these laws, in China the challenge is the Administrative Procedural Act and Freedom of how to create such incentives by enforcing existing Information Act laid foundations for transparency laws and by making new laws. and participation. However, no similar national laws exist in China, meaning that the environmen- Enforce Existing Laws tal legislation is burdened with the transformation Legal tools such as EIA laws and the Administrative of broad legal and administrative infrastructure. As License Law in theory should help promote a result, it is far more difficult to move forward on collaborative environmental problem solving, creating collaborative decision-making guarantees. because they set procedural requirements to involve stakeholders. However, their enforcement remains Building Increased weak and in reality, stakeholders, especially the disadvantaged groups who will be most affected, Capacity for Collaborative are not informed and do not have a say in the Problem Solving decision-making process. And it remains difficult to seek court endorsement for these procedural The commitment of time and effort required to rights. This is a serious disincentive for the develop collaborative solutions to controversial powerful interests to consider negotiating with water management issues is typically substantial, other interest groups. particularly in China which is in the initial stages Nevertheless, the cases of public participation of creating the basic institutions and legislation. that have delayed a few large infrastructure projects Participants and citizens in both countries cannot have sent a signal to many that the domination of afford to spend valuable time and limited resources decision-making process by a few power groups on ineffective or unsuccessful collaborative pro- may come to an end some day. At the moment, cesses. Building institutional capacity at the agency the powerful interests are trying to maintain the and organizational level and improving the indi- old, top-down, unilateral way of dealing with water vidual participants’ skills necessary for productive conflicts. Some local officials and bureaucrats from collaboration are fundamental requirements for some agencies are also in favor of the old ways, as it increasing the effective use of environmental con- is so much easier to handle than the participatory flict resolution and collaborative problem-solving process. Now there is an intense tussle between the approaches. powerful interests and the environmental groups in China over public participation procedures, Capacity-Building Efforts in the United States the result of which will determine how much As mentioned above, in the United States a number collaboration there could be in environmental of initiatives are currently underway at the federal problem solving. agency level to build institutional capacity for more

Woodrow Wilson International Center for Scholars 179 Spotlight on Ngo activism in China Chinese River Defender Yu Xiaogang Wins 2006 Goldman Environmental Prize for Asia

© Li Bo

n 24 April 2006, Yu Xiaogang, the founder to protect the Nujiang, one of only two free- and director of the Chinese NGO Green flowing major rivers in China. In 2004, Mr. Yu was OWatershed, was awarded the prestigious a participant in the China Environment Forum’s 2006 Goldman Environmental Prize for his exchange and research project focused on promoting pioneering work in protecting rivers and watersheds river basin governance in China. A webcast of his in China. Mr. Yu has led a citizens’ movement to talk at the Woodrow Wilson Center on 28 April protect China’s rivers and people from the impacts 2006 is available on the China Environment Forum of dams, and has been a key player in the movement website www.wilsoncenter.org/cef.

180 China Environment Series 2006 effective collaboration in solving environmental training workshops on collaboration to which they problems. Efforts are focusing, in part, on changing invited federal agency staff and conservation allies, the culture of the federal government to better sup- as well as traditional opponents.47 port and reward collaboration. Employee recruiting In addition to building institutional capacity for and hiring, performance standards, rewards and pro- conflict resolution, collaborative skills development motions are all being modified to enhance collabora- is also commonly incorporated into the early stages tive attitudes and skills within the federal workforce. of collaborative problem solving efforts. Building Providing training to increase collaboration skills is effective collaboration skills among participants is also a key strategy for building capacity. a critical aspect in determining whether or not a Some U.S. agencies have developed or are begin- process will be successful. The numerous govern- ning to develop internal programs that provide in- ment participants involved in a water dispute report house expertise, mediation assistance, and advice on back to a wide range of bureaucratic organizations, collaborative approaches to resolving controversial each with different ways and procedures for making environmental problems. Notable examples include: decisions. Notably, very few of these individual par- ticipants will have ever been exposed to collabora- • Conflict Prevention and Resolution Center tion skill development opportunities as part of their within EPA;41 background, professional education or training. Yet • Office of Collaborative Action and Dispute managing and resolving conflicts and pursuing col- Resolution within the Department of the laborative problem solving opportunities has often Interior;42 become a major focus of their work duties and offi- • Bureau of Land Management’s Alternative cial responsibilities. Dispute Resolution and Conflict Prevention Program;43 Capacity Building for Collaborative • U.S. Forest Service’s National Partnerships Problem Solving in China Office, which works to increase the agency’s China has experienced a top-down way of effectiveness in partnership and collaboration governance for thousands of years. Terms referring to with citizens, communities, and NGOs.44 good governance principles—such as stakeholders, • Dispute Resolution Service within the Federal transparency or participation—only came into use Energy Regulatory Commission, which is an a few years ago. Therefore the learning curve on independent federal agency that regulates inter- collaborative problem solving could be long, which state transmission of natural gas, oil, and electric- does not mean preparation for such processes ity, including the licensing of nonfederal hydro- should be delayed. In terms of EIAs, government electric dams;45 and, agencies and construction companies must learn • Federal Highways Administration’s Office of how to organize transparent and fair stakeholder Planning, Environment, and Realty within the meetings and carefully respond to the public’s con- Department of Transportation, which has devel- cerns. NGOs and the public need to develop their oped guidance and associated training workshops skills in effectively preparing their participation in on dispute resolution and collaborative problem such meetings. All participants will need to learn solving for use by the various federal and state how to listen to other people’s opinions carefully agencies involved in the development of fed- and to express their own opinions calmly and eral highway projects and related environmental logically. One very promising sign of “preparation” reviews required under NEPA.46 for participatory rulemaking was the fact one NGO was present in helping government and EIA firms In the United States, NGOs also are begin- design the regulations for public participation in the ning to develop their internal capacities to engage EIA process. (Editor’s Note: See Buckley commentary more productively in collaborative problem solving in this issue). efforts—even those that have traditionally focused NGOs in China have made great strides in almost exclusively on litigation strategies to accom- increasing their impact on environmental policy- plish their objectives. The Center for Biological making and in becoming stakeholders to help push Diversity, for example, which has gained the repu- for greater transparency in water management and tation as one of the most litigious NGOs regarding pollution cases. Even fairly confrontational meth- endangered species issues, recently hosted several ods such as assisting pollution victims in class action

Woodrow Wilson International Center for Scholars 181 suits is playing an important role in educating the participation processes. His projects have involved: public of their rights and power. Such awareness marine protected area planning for the Florida Keys, building is crucial for the creation of a stronger envi- the Channel Islands, and the Northwestern Hawaiian ronmental governance system in China. In regards Islands; ecosystem restoration of the Florida Everglades to NGO capacity, they do face obstacles due to and the Klamath and Missouri River basins; mitigating restrictive registration regulations and their own impacts of anthropogenic sound on marine mammals; off- limited internal capacity. Nevertheless, there has road vehicle management in national parks; wilderness been a growing number of NGOs working to pro- area management; management planning for national tect water issues in China, particularly around dam monuments; and balancing military training with construction and water pollution. (Editor’s Note: See protection of endangered species. He can be reached at: Birnbaum and Yu article in this special report). Some [email protected]. local grassroots NGOs, such as Beijing-based Green Earth Volunteers, have held training workshops in Ma Jun is currently director of the Beijing-based a dozen cities on environmental information access Institute of Public & Environmental Affairs (www. and the organization of public hearings. ipe.org.cn). Since 2002, he has also provided consultation to multinational companies operating in China on Closing Thoughts regulatory issues concerning environment health & safety and corporate social responsibility. Ma Jun previously In the United States, the use of collaborative worked for South China Morning Post from 1993 approaches to addressing water management to 2001. He is author of China’s Water Crisis (East conflicts has established a strong foundation for Bridge, 2004), which describes the floods, water scarcity increased application and improved methodolo- and pollution problems in all seven of China’s major gies. It appears that this is a direction to which the drainage basins, analyzes the root causes of the problems federal government is committed. The question and advocates sustainable use of resources. In 2004, he remains, however, whether sufficient resources will was a Yale World Fellow researching environmental be devoted to these efforts to ensure they can be governance in the United States and China. He was truly effective in developing sustainable solutions. most recently selected as one of Time magazine’s “100 There are many lessons in the United States that people who shape our world.” He can be reached at: could help promote collaborative problem solving [email protected]. for water conflicts in China. For example, third party mediators for water conflicts will eventually become Notes a major asset to help solve water conflicts, but many new legal and political institutions would have to 1. “Report and Recommendations of the SPIDR be built up first. The Institute for Environmental Environment/Public Disputes Sector Critical Issues Conflict Resolution represents a promising model Committee.” Adopted by the Society of Professional In for China that Chinese government and nongov- Dispute Resolution (SPIDR) Board, January 1997. 2. Authors of the SPIDR Report indicated that ernmental stakeholders should begin studying now. their focus was on government agencies and users in the In general, the topic of water conflict resolution United States and Canada and that, “While potentially could become a fruitful area for bilateral collabo- applicable to other countries, the recommendations will ration between the United States and China. The likely need to be tailored to the political frameworks, painful lessons learned in the United States might institutions, and cultural norms in those societies.” well make the Chinese experience with mitigating 3. The Public Solutions System is based on principles water conflict a faster, if not easier, process. of: transparency and accountability, equity and inclusive- ness, effectiveness and efficiency, responsiveness, forum Michael Eng is a Senior Program Manager with the neutrality, and consensus-based decision-making. For U.S. Institute for Environmental Conflict Resolution, more information see: www.policyconsensus.org. where he focuses on collaborative multi-stakeholder 4. Agreement to use a “Comprehensive Study” framework was a key negotiation tool that allowed the planning and conflict resolution processes involving southeastern states of Alabama, Florida, and Georgia federally protected areas and wildlife. He has broad to move forward in efforts to resolve their conflicts over experience in natural resource policy and marine resource water management of the Alabama-Coosa-Tallapoosa management, as well as extensive knowledge and and the Apalachicola-Chattahoochee-Flint river basins, expertise in facilitation, consensus building, and public a situation commonly referred to as the “Tri-State Water

182 China Environment Series 2006 Wars.” Likewise, a key initial phase of efforts to deter- 15. Copy of NEPA is available at: http://ceq.eh.doe. mine exactly how to restore the Everglades ecosystem gov/nepa/regs/nepa/nepaeqia.htm in southern Florida, was to collaboratively conduct a 16. NEPA allows other federal agencies and tribal, Comprehensive Review Study of a multi-purpose water state, or local governments to request to be a “cooperat- management project originally authorized in 1948, ing agency” with the lead federal agency, if they share to provide flood control, water control, water supply, jurisdiction over an issue or have special expertise with along with other services that were now recognized to regards to any aspect of the environmental impacts of a be significantly contributing to the decline of the south proposed action. Florida ecosystem. 17. “Cooperating Agencies in Implementing 5. The United States has a complicated system of the Procedural Requirements of the National water rights related to priority access and use of surface Environmental Policy Act,” guidance memorandum and subsurface waters. These rights differ between the from CEQ Chair James Connaughton to the heads of eastern and the western United States and among states. all federal agencies, January 30, 2002. See: http://ceq. Resolution of disputes over “water rights” is generally eh.doe.gov/nepa/regs/cooperating/cooperatingagencies- formalized through the court system because of the memorandum.html legal verification it can provide. Allocation of water 18. U.S. courts generally give great deference to fed- rights to some tribes have been negotiated and then eral agency expertise regarding the substantive aspects ­formalized through an Act of Congress. Conflicts over of their decisions. Consequently, most litigation is based the way available water is managed, especially during on alleged procedural violations. If plaintiffs prevail, the times of drought, are increasing in frequency. Solutions courts generally remand a decision back to the federal must often be negotiated because their complexity does agency to rectify the procedural inadequacies of their not lend themselves to straightforward legal resolution. decision-making process. Despite these limitations That said, court rulings may be helpful and sometimes on the legal recourses available in challenging federal necessary to establish a legal requirement or to establish decisions, it does mean that opponents can significantly parameters within which productive negotiation on col- delay federal actions, especially if cases go through laborative solutions can then take place. extended appeal processes. 6. Acre-feet are commonly used to measure water 19. The Endangered Species Act is so powerful that for irrigation in the US. An acre-foot of water is the special elevation procedures to the Endangered Species amount of water required to cover one acre of land one- Committee (the so-called “God Squad”), composed of foot deep. An acre-foot equals 325,851 gallons of water. seven Presidential Cabinet officials and a representative 7. The Yangtze River in China is very similar in of the affected state that has the authority to overrule a that dams, dikes, and land reclamation have exacer- FWS determination that a proposed action would result bated flooding problems, threatened fish species, and in “jeopardy” to an endangered species, has only been destroyed wetland ecosystems. used on three occasions. 8. Information about the Missouri River Recovery 20. Mechanisms that allow for and encourage Implementation Program can be found at: http://www. negotiated solutions include: comprehensive multi-spe- nwd-mr.usace.army.mil/rcc/index.html cies habitat conservation plans, candidate conservation 9. For a copy of the Situation Assessment Report agreements, safe harbor agreements, conservation bank- on the Feasibility and Convening of a Missouri River ing, impact fees, tradable development rights, conserva- Recovery Implementation Committee, conducted by CDR tion easements, adaptive management approaches, and Associates under contract to the U.S. Institute, see: delegation of certain authorities to states. http://missouririver.ecr.gov 21. ADRA’s requirement that agencies designate a 10. For information about the Comprehensive senior official as a dispute resolution specialist provided Everglades Restoration Program, see: http://www. the impetus for all federal agencies to begin building their evergladesplan.org/ capacity for dispute resolution. Subsequent executive 11. For information about the CEQ, see: http:// orders and memoranda to the heads of federal agencies www.whitehouse.gov/ceq/ issued by the President have further reinforced this policy. 12. For a copy of an “Assessment of Opportunities 22. The April 2005 Final Report of the National for Multi-Stakeholder Collaboration,” see: http://www. Environmental Conflict Resolution Advisory ecr.gov/pdf/everglades_final_report.pdf Committee is available at: www.ecr.gov 13. For more information see: http://www.sfrestore. 23. For example, where NEPA calls for productive org/issueteams/csop_advisory_team/index_.html harmony, the protection of health and environmental 14. For additional information about the Platte quality, sustainability and general welfare, environmental River Recovery Implementation Program, see: conflict resolution practices call for balanced represen- http://www.usbr.gov/newsroom/newsrelease/detail. tation of affected interests and values. Where NEPA cfm?RecordID=12022 calls for social responsibility, intergenerational welfare,

Woodrow Wilson International Center for Scholars 183 sustainability and stewardship, environmental conflict Alashan area.” Inner Mongolia Environmental Protection, resolution calls for full consideration of the short- and 3 (Volume 17). long-term implications of agreements and decisions, 29. 21st Century Economic Report. (24 August 2006). responsible and sustained engagement of all parties and 30. The Beijing News. (25 February 2004). “Beijing wide access to the best available information. and Hebei vie for the water rights of Juma River.” 24. A copy of the memorandum and the Basic 31. Xinhua News Agency. (10 September 2006). “A Principles for Environmental Conflict Resolution and water dispute occurs in China every two to three days.” Collaborative Problem Solving is available at: www.ecr.gov 32. Jiaxing Daily. (24 November, 2001) “Conflict 25. A copy of the Executive Order on Cooperative between Jiaxing and Shengze Escalated in Pollution Conservation and additional information is available at: Spill.” www.cooperativeconservation.gov 33. The Bund. (7 March, 2003). “A decade-long 26. The National Park Service Director’s Order 75A inter-provincial water pollution dispute between Jiangsu on Civic Engagement and Public Involvement is avail- and Zhejiang.” able at: http://www.nps.gov/policy/DOrders/75A.htm 34. Jiaxing Daily. (24 November, 2001). “The con- 27. Notably, each branch of the federal govern- flict between Jiangsu’s Shengze and Zhejiang’s Jiaxing ment has distinct and limited means and approaches escalated by wastewater spill.” for resolving conflicts that arise over environmental 35. The Bund. (7 March, 2003). policy and governmental decision-making. While the 36. China Youth Daily. (19 April, 2001). “Shengzhou legislative branch can establish general policies and unhappy with Dongyang’s water deal.” authorize funding for specific governmental activities, 37. China Water Resources Daily. (19 March 2002). the U.S. Congress has limited ability to actually resolve “True record of the upper Zhang River water conflict highly technical and complex environmental con- resolution by Henan.” flicts. This responsibility falls to the executive branch, 38. China Water Resources Daily. (19 March 2002). which includes agencies with technical expertise and 39. China Water Resources Daily. (19 March 2002). legislatively authorized management jurisdiction over “Coordination, distribution and diversion.” different aspects of the environment, public lands, and 40. To read about Chinese NGOs working on natural resources. One of the significant challenges for water issues see Part II in: Reaching Across the Water: the executive branch, however, is that Congress has International Cooperation Promoting Sustainable River established different missions for the different execu- Basin Governance in China at www.wilsoncenter.org/cef. tive branch agencies, which often come into conflict 41. For information about EPA’s Conflict Prevention when trying to address difficult environmental problems. and Resolution Center see: http://www.epa.gov/adr/ Most complex environmental problems—and their index.html potential solutions—cross the jurisdictional boundaries 42. For information about the Office of Collaborative and authorities of different federal agencies, frequently Action and Dispute Resolution see: http://www.doi. resulting in interagency power struggles over which gov/cadr/ agency is the lead and ultimate decision-maker, as well 43. For information about the Bureau of Land as disagreements over which agency’s decision-making Management’s Alternative Dispute Resolution and procedures should be followed. Another feature of the Conflict Prevention Program see: http://www.blm. American governance system is that U.S. law allows gov/adr/index.html private citizens and NGOs to challenge certain execu- 44. For information about the Forest Service’s tive branch decisions, primarily on procedural grounds National Partnerships Office see: http://www.fs.fed. (For example, citizen lawsuits can challenge whether an us/aboutus/partnership/index.shtml agency has followed the required procedures established 45. For information about the Dispute Resolution by law and regulations for analyzing the environmental Service within the Federal Energy Regulatory impacts associated with making a federal decision). If Commission see: http://www.ferc.gov/legal/adr.asp these challenges cannot be resolved through administra- 46. For a copy of Collaborative Problem Solving: Better tive hearing procedures within the executive branch, and Streamlined Outcomes for All – Guidance on Managing the case may enter into the federal judicial system for Conflict and Resolving Disputes Between State and Federal resolution. Judicial resolutions, however, usually focus Agencies During the Transportation Project Development on resolving narrow legal interpretations of alleged pro- and Environmental Review Process,” see: http://www. cedural violations. Rarely, are the federal courts able to environment.fhwa.dot.gov/strmlng/adrguide/index.asp issue a ruling that actually substantially solves complex 47. For a copy of the Press Release issued by the environmental problems. The most common ruling is to Center for Biological Diversity on the collabora- remand a case back to the executive agency with juris- tion workshops see: http://www.biologicaldiversity. diction to redo or rectify the procedural errors. org/swcbd/PRESS/collaboration 28. Du Fanghong & Huang Wanhao. (2005). “Approaches on ecological environmental problems in

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