ESS 122: ENVIRONMENTAL LAW Lecture 7(2)

1. ESS 122: ENVIRONMENTAL LAWLecture 7(2) Environmental Impact Assessment

2. EIA’s emerged internationally after the 1972 Stockholm Conference and is now recognised internationally in the Rio Principles and the 1991 Espoo Convention Principle 17 of the Rio Conventionstates: environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority. Environmental Impact Assessment (EIA)

3. Definition in Espoo Convention: a national procedure for the evaluation of the likely impact of the proposed activity on the environment. It is only relatively recent that South Africa has had a statutorily required EIA regime Environmental Impact Assessment (EIA)

4. EIA under the Environment Conservation Act (ECA) • The ECA provided for the Minister of Environmental Affairs and Tourism to identify those activities which in his opinion may have a substantial detrimental effect on the environment, whether in general or in respect of certain areas.

5. An identified activity may not be undertaken without authorisation from the relevant competent authority Authorisation may only be made after consideration of reports concerning the impact of the proposed activity and of alternative proposed activities on the environment. EIA under the Environment Conservation Act (ECA)

6. EIA under the Environment Conservation Act (ECA) • In 1997, the Minister promulgated a list of identified activities and general EIA regulations setting out the procedure to be followed by developers seeking authorisation for their activities.

7. General EIA regulations • The general EIA regulations, which accompanied the list of identified activities, set out the process to be followed by the applicant or developer.

8. General EIA regulations • In short, this required the applicant to hire an independent consultant to carry out the procedure, which entailed the submission of a plan of study for scoping including a description of the activity to be undertaken; the tasks to be performed during scoping and the method by which environmental issues and alternatives will be identified, followed by a scoping report.

9. General EIA regulations • The scoping report must contain: a brief project description; a brief description of environmental issues identified; a description of all alternatives identified; and an appendix containing a description of the public participation process followed, including a list of interested parties and their comments.

10. On receipt of the scoping report, the authority may decide the matter on the basis of the information supplied in the scoping report, or decide that such information must be supplemented by an EIA focusing on the identified alternatives and environmental issues. The relevant authority may then decide to authorise the activity with or without conditions, or to reject the application, and this decision, together with certain other prescribed information, must be provided in the record of decision. General EIA regulations

11. General EIA regulations • The regulations in terms of ECA had been in effect for little over a year when the National Environmental Management Act (NEMA) was enacted, to come into effect on 1 January 1999. NEMA accordingly repealed most of the provisions of ECA

12. Integrated Environmental Management of NEMA • Section 24(1) of NEMA: • In order to give effect to the general objectives of integrated environmental management, the potential consequences for or impacts on the environment of listed activities or specified activities must be considered, investigated, assessed and reported on to the competent authority or the Minister of Minerals and Energy, as the case may be, except in respect of those activities that may commence without having to obtain an environmental in terms of the Act.

13. Integrated Environmental Management of NEMA • Section 24 (4) provides for mandatory requirements for the assessment process • Section 24 (5) sets out the regulatory power in respect of EIAs

14. The Minister or MEC may make regulation consistent with the mandatory required by section 24 (4). Compliance with the procedures laid down by the Minister or an MEC in terms of sub-s (4) does not absolve a person from complying with any other statutory requirement to obtain authorisation from any organ of state charged by law with authorising, permitting or otherwise allowing the implementation of the activity in question Integrated Environmental Management of NEMA

15. Similarly, authorisations obtained under any other law for an activity listed or specified in terms of this Act do not absolve the applicant from obtaining authorisation under this Act. Sections 24A and 24B deal with the procedure for listing and delisting activities and areas respectively. Section 24C sets out the procedure fir identifying the competent authority, which must be done at the same time as the listing of activities. Integrated Environmental Management of NEMA

16. Integrated Environmental Management of NEMA • Section 24E requires that every environmental authorisation must as a minimum ensure that adequate provision is made for the ongoing management and monitoring of the impacts of the activity on the environment through the life cycle of the activity; the property, site or area is specified; and provision is made for the transfer of rights and obligations when there is a change of ownership in the property.

17. Section 24F provides that commencement or continuation of an unauthorised activity is a criminal offence. The maximum penalty for contravention of this section is a R5 million fine or 10 years imprisonment or both. It is also an offence to fail to comply with or to contravene the conditions applicable to any environmental authorisation granted for a listed activity or specified activity; any condition applicable to an exemption granted in terms of section 24M; or an approved environmental management programme. Integrated Environmental Management of NEMA

18. Section 24 F is augmented by section 24G, which provides for offenders in terms of section 24F to apply for ex post facto (after the fact) authorisation Provision is made for an administration fine not exceeding R1 million (in addition to the fine imposed by section 24F) to be paid by the offender. Integrated Environmental Management of NEMA

19. Integrated Environmental Management of NEMA • The Minister/MEC may direct the person to cease the activity, either wholly or in part, and to rehabilitate the environment within such time and subject to such conditions as the Minister/MEC may deem necessary; or issue an environmental authorisation to such person subject to such conditions as the Minister/MEC may deem necessary.

20. Failure to comply with such a directive, or with a condition attached to an authorisation under this section, is an offence attracting the same penalties as in section 24F. Section 24H regulates environmental assessment practitioners (EAPs) and provides for an association proposing to register its members as EAPs must apply to the Minister to be appointed as a registration authority. Integrated Environmental Management of NEMA

21. Integrated Environmental Management of NEMA • What is significant is that the Act does not provide for criteria for registration of individual EAPs but rather for a kind of self-regulation model whereby certain bodies will be able to accredit their own members.

22. Section 24J provides that the Minister/MEC may publish guidelines regarding listed activities or specified activities, or the implementation, administration and institutional arrangements of EIA regulations made in terms of section 24(5). Section 24M provides that the Minister/MEC may grant an exemption from any provision of the Act where it is unlikely to result in significant detrimental consequences for or impacts on the environment; the provision cannot be implemented in practice or the exemption is unlikely to adversely affect the rights of interested or affected parties. Integrated Environmental Management of NEMA

23. Section 24N provides for environmental management programmes (EMPs). The competent authority may insist on the submission of an EMP before considering an application for an environmental authorisation. An EMP must be submitted before the consideration of the environmental authorisation in cases where an EIA has been identified as the environmental instrument to be utilised as the basis of the authorisation, and for applications relating to mining-related activities. Integrated Environmental Management of NEMA

24. Section 24O provides for the criteria to be taken into account in deciding environmental authorisation It provides that the official must comply wit the Act and take into account all relevant factors, a non-exhaustive list which is provided by the section. Integrated Environmental Management of NEMA

25. Section 24P provides for financial provision for remediation of environmental damage, which is a prerequisite for the granting of an environmental authorisation for mining-related activities. Monitoring and assessment as a requirement of an EMP for mining-related activities is required by section 24Q and section 24R sets out the responsibilities of rights holders in respect of mine closure and the consequences flowing from them. Integrated Environmental Management of NEMA

26. The 2006 EIA regulations and lists of activities • There are 3 government notices: • 1) the regulations relating to the process to be followed • 2) the list of activities and competent authorities in respect of which a so called basic assessment will be required • 3) activities and competent authorities relating to those activities requiring scoping and EIA

27. The 2006 EIA regulations and lists of activities • One of the main objectives behind the regulations is the expedition of the authorisation process by reducing the time taken (by the introduction of compulsory time frames) and excluding certain types of activities from the authorisation process.

28. The basic assessment involves an assessment of the potential impacts of the activity on the environment; whether and the extent to which those impacts can be mitigated; and whether there are any significant issues and impacts that require further investigation The types of activities for which basic assessment is required are, for the most part, identified on the basis of whether they fall within certain specified parameters, or below certain thresholds. The 2006 EIA regulations and lists of activities

29. The 2006 EIA regulations and lists of activities • For example: • One listed activity is the construction of facilities and infrastructure, including associated structures or infrastructure, for the storage of 250 tons or more but not less than 100 000 tons of coal

30. Activities falling in the other category require scoping and EIA Example: The construction of facilities and infrastructure, including associate structures or infrastructure, for various activities including nuclear reaction. The 2006 EIA regulations and lists of activities

31. The 2010 regulations and lists of activities • The publication of new EIA regulations was accompanied by the publication of three lists of activities for which EIA is required which came into effect on 2 August 2010

32. The 2010 regulations and lists of activities • The purposes of the regulations have been expanded to incorporate the objectives of the environmental assessment process namely, to avoid detrimental impacts on the environment, or where it cannot be avoided, ensure mitigation and management of impacts to acceptable levels, and to optimise positive environmental impacts.

33. The 2010 regulations and lists of activities • Listing notice 1 consists of those activities that require basic assessment • Listing notice 2 comprises those activities that require what is now referred to as scoping and environmental impact reporting (S&EIR) • These activities are regarded as having the most significant possible impacts on the environment.

34. The 2010 regulations and lists of activities • Listing notice 3 is a new listing notice and its purpose is to list activities where environmental authorisation is required before the commencement of that activity in specific identified geographical areas only. • These activities requires basic assessment. • It will therefore be important to identify where the activity will be taking place, not only in respect o the relevant province, but also in respect of the type of area within which the activity will take place.

35. The Environmental Management Framework (EMF) • The purpose of the EMF regulations is to provide for the relevant authority to initiate the compilation of information and maps specifying the attributes of the environment in particular geographic areas; for such information to inform environmental management; and for such information and maps to be used as environmental management frameworks in the consideration of applications for environmental authorisations in or affecting the geographical areas to which those frameworks apply.

36. Does EIA include consideration of social and cultural impacts? • The ECA empowered the Minister to make regulations relating to EIAs, which could include the identification of the economic and social interests which may be affected by the activity in question and by the alternative activities and the estimation of the nature and extent of the effect of the activity in question and the alternative activities on the social and economic interests.

37. Does EIA include consideration of social and cultural impacts? • There was, however, no explicit reference to social or economic impacts in the regulations. • NEMA, as originally promulgated, stated clearly the EIA is concerned with the potential impact on the environment, socio-economic conditions and cultural heritage. • The Amended Act has however removed the references to socio-economic conditions and cultural heritage.

38. Does EIA include consideration of social and cultural impacts? • It has however been argued that the definition of the environment includes the cultural properties of the surroundings within which humans exist, which suggests that he cultural heritage should be considered in the EIA process as it is part of the environment.

39. Does EIA include consideration of social and cultural impacts? • As far as socio-economic aspects, it has been held in BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment and Land Affairs that it is abundantly clear that the mandate of a government department carrying out environmental authorisation includes the consideration of socio-economic factors as an integral part of its environmental responsibility.

40. Does EIA include consideration of social and cultural impacts? • Probably the most important case in this regard, is the Constitutional Court Judgement in Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province

41. The applicant, (Fuel retailers) had approached the High Court to review the decision by the respondent (the Department) to authorise the development of a petrol station in White River, Mpumalanga. The SCA upheld the Department’s decision, and the ground of review which concerned the Constitutional Court was the allegation that the Department had not considered the socio-economic impact of the construction of the filling station, which it was obliged to consider. Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province

42. Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province • It was common cause that in considering an application for authorisation of a development in terms of section 22 of the ECA, the decision maker was required to consider the socio-economic impact of the proposed development.

43. Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province • Having considered the Constitution and the relevant provisions in the ECA and NEMA, the court concluded that NEMA makes it abundantly clear that the obligation of the environmental authorities includes the consideration of socio-economic factors as an integral part of its environmental responsibility.

44. The court held that this obligation is not the same as the obligation on the local authority to consider the need and desirability of the project. Consequently, the environmental authority could not rely on the local authority’s need and desirability decision to satisfy the consideration of the socio-economic impact of the proposed development. The decision was therefore set aside and referred back to the relevant authority. Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province

45. Does EIA include consideration of social and cultural impacts? • Based on the body of precedent mentioned above, seen in the light of section 24 of the Constitution and the NEMA principles, socio-economic and cultural considerations do justifiably form part of the EIA considerations.

46. Appeals • Once an environmental authorisation is made, there is a right of appeal. • In terms of NEMA, any person may appeal to the Minister against a decision taken by any person acting under a power delegated by the Minister under this Act or a specific environmental management Act, and any person may appeal to an MEC against a decision taken by any person acting under a power delegated by that MEC under this Act or a specific environmental management Act.

47. The Minister/MEC, as the case may be, may consider and decide an appeal or appoint an appeal panel to consider and advise the Minister/MEC on the appeal. The Minister/MEC may, after considering such an appeal, confirm, set aside or vary the decision, provision, condition or directive or make any other appropriate decision, including a decision that the prescribed fee be paid by the appellant, or any part thereof be refunded. Appeals

48. Appeals • An appeal under this section does not suspend an environmental authorisation or exemption, or any provisions or conditions attached thereto, or any directive, unless the Minister/MEC directs otherwise.

49. Lengthy delays in decision-making • The 2006 regulations contained time limits for the entire decision-making process. • These time limits have been changed in the 2010 regulations.

50. Will compulsory time limits be the answer? • Two main reasons why there has been unacceptable time delays: • 1) lack of capacity in the Departments making the decisions, both numerically and in skills. • 2) the appeal process • The ECA provided for an appeal against decisions relating to environmental authorisations but there is no time limit within which the decision must be made.