National Environmental Management Laws Amendment Bill [B13-2012]

1. National Environmental Management Laws Amendment Bill [B13-2012] Submission to the Portfolio Committee on Water and Environmental Affairs Centre for Environmental Rights (with the Legal Resources Centre) 21 August 2012

2. Organisations supporting submissions by CER and LRC • Alternative Information and Development Centre (AIDC); • Biowatch South Africa; • BirdLife South Africa; • Cape Environmental Trust (CAPTRUST); • Endangered Wildlife Trust (EWT) (also separate submission) • Environmental Monitoring Group (EMG); • Federation for a Sustainable Environment (FSE); • groundWork; • Habitat Council; • Lawyers for Human Rights (LHR); • South Durban Community Environmental Alliance (SDCEA); • Vaal Environmental Justice Alliance (VEJA); and • Wildlife and Environment Society of South Africa (WESSA).

3. Overview • General support for Bill • S.24F and G: clarity on “de-linking” of criminal and administrative fine provisions for emergencies • S.24G: rectification of unlawful commencement of activity • Other priorities for law reform: • administrative penalties • integrated permitting • amendments to NEMPAA and NEMBA

4. S24F, s24G and emergencies • S.24F(3) provides for defence to prosecution if “the activity was commenced or continued in response to an emergency so as to protect human life, property or the environment” • Want to see: • introduction of requirement of proportionality • no “dirty hands” • increased penalty in line with other penalty provisions in NEMA and SEMAs • Proposed s.24G(2A) only de-links the administrative fine for s.24G applications – must still apply, just don’t have to pay fine

5. The Section 24G monster: Amend or scrap • Only intended to be applicable for 6 months to transition from ECA authorisations to NEMA environmental authorisations • Become entrenched, has created perverse incentives, and has become way to avoid lengthy EIA process and to buy way out of criminal prosecution • Makes no provision for different levels of fault, no clarity on application of EIA regulations, and inconsistency in application of section across provinces • NWU Master’s Thesis: “A CRITICAL ANALYSIS OF THE APPLICATION OF S24G PROVISIONS OF NEMA: THE GAUTENG PROVINCE EXPERIENCE” • Explanatory Memo recognises trend of companies budgeting for administrative fine

6. Two other priorities for law reform: 1. Administrative penalties • Other than administrative “fine” in s.24G, we still rely solely on criminal penalties for punishment: too hard to obtain, and not enough to be disincentive • Administrative penalty system like Competition Act will allow for easier enforcement, with penalties that take into account both cost of violations to society, and benefits gained by violators

7. Two other priorities for law reform: 2. Integrated permitting • Permitting for EAs, WULs and EMPs/EMPRs is inconsistent, fragmented and inadequate • Need streamlined permitting process taking into account all relevant Constitutional and statutory mandates to regulate mandates to regulate activities that impact on environment • Ensure proper consideration of all factors, avoiding duplication and regulatory gaps • Ensure lesser burden on regulators, applicants and interested and affected parties • The right time

8. Conclusions • General support for Bill • S.24G should be scrapped or urgently amended to deal with perverse incentives or consequences. NEMLAB should not expand scope of s.24G • Meaningful administrative penalties should be introduced to improve compliance with environmental legislation • Integrated permitting should be implemented to ensure streamlined permitting process for activities that impact on environment

9. Contact details Centre for Environmental Rights 223 Lower Main Road, Observatory, Cape Town 021 447 1647 Melissa Fourie mfourie@cer.org.za Robyn Hugo rhugo@cer.org.za