EMCAs: taking a broader view Rico Euripidou

1. EMCAs:taking a broader viewRico Euripidou Workshop on governance, CS participation and Strengthening partnerships for chemicals and waste management and SAICM implementation – June 2006

2. The environmental right in the South African Constitution states:

3. Everyone has the right ­ • to an environment that is not harmful to their health or well-being; and • to have the environment protected, for the benefit of present and future generations, throughreasonable legislative and other measures that ­ prevent pollution and ecological degradation; • promote conservation; and • secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

4. So communities have rights to a healthy environment, including a right to legislative measures; • while government has responsibilities to protect the environment through legislative and other measures.

5. Our Rainbow Nation

6. Designing & Implementing Effective Partnerships • Sections 35 and 45 of NEMA. • These sections relate specifically to EMCAs • However, we need to take a broader view.

7. Civil society participation • [a] generally in environmental governance at a national level; and • [b] in the EMCA process at a higher level than simply at the level of localized sites.

8. EMCAs & environmental legislation… • In the South African context; there is a weak link in the EMCA chain. • For example, there are no legally enforceable standards for air pollution.

10. How do we prioritize which are the most appropriate tools for the priority problems?

11. What might help protect communities? • EMCAs are just one tool for environmental governance. • Will a package of complementary tools be required? • What is the big picture? • Who is prioritizing the policy tools?

12. Two aspects concerning priorities • Prioritizing policy tools • For example, is it more important to develop EMCAs, or to develop regulations and legally enforceable standards for pollution? • Prioritizing environmental probs • For example – is a tyre EMCA a national priority?

13. Civil society agrees… • Civil society representatives eventually agreed to this inclusion in NEMA on the assurance that EMCAs would only come into effect once all other basic requirements (such as legislation and standards) were in place.

14. We need to question the purpose of EMCAs as presently being drafted • The current industry approach appears to present the purpose of EMCAs as being to enable the development of baselines and eventual standards (i.e. collecting information). • Government does not need a voluntary agreement to do this!

15. True purpose of EMCAs • The purpose of EMCAs as envisaged in the policy development process was to go beyond compliance with clearly defined and implemented law.

16. The reality in emerging economies • Weak regulations • Weak monitoring • Weak law enforcement. • Legally enforceable standards? • Immature frameworks & relationships between government, industry & civil society

17. WHO states: • “An ambient air quality standard is a description of a level of air quality that is adopted by a regulatory authority as enforceable.” At present we do not have such standards for air pollution – having them would entail the introduction of monitoring that is relevant to assessing compliance with the standard.

18. So….communities must ask • Will EMCAs afford them the same protection as legally enforceable standards? • Will EMCAs result in the removal or denial of their rights?

19. Regarding weak law enforcement • Realizing that government may not have the capacity to uphold enforcement obligations; NEMA built in a protective mechanism regarding enforcement. • NEMA Section 32 • “Any person or group of persons may seek appropriate relief in respect of any breach…of any statutory provision concerned with protection of the environment.”

20. But communities can only exercise that right once enforceable standards exist

21. Community participation as envisaged in EMCAs • The EMCA process appears to envisage community participation taking place at the level of site environmental plans.

22. Participation is seen to “increase credibility” of EMCA “To enhance the credibility and effectiveness of the Environmental Agreement, provision should be made for some degree of external participation in the implementation and monitoring of the agreement.”

23. And more on credibility… “Effective public involvement is crucial to to enhance the credibility of EMCAs by ensuring transparency in the decision-making process, contributing to the identification of key issues, and enhancing the mutual understanding between parties.”

24. There are bigger issues around civil society participation which need to be discussed For example: • Participation at the level of environmental governance generally; • Participation at the level of assessing the overall efficacy of EMCAs.

25. Some civil society concerns • Opportunities for “regulatory capture” by industry; • Possible “undemocratic” nature of EMCAs; • Frequent lack of clear legal sanction to enforce the agreement; • Uncertainty regarding the effectiveness of current agreements.

26. Concerns in SA context • A preference was expressed for completing the Law Reform Process before introducing EMCAs; • Fears that EMCAs may be used as a substitute for addressing legislative deficiencies and may result in delaying new legislation and standards; • The need for clear regulations on public participation …….

27. Concerns in SA Context…. • Guidance on involving local and provincial government; • Concern that EMCAs will place additional financial, legal and administrative burdens on provincial and local authorities.

28. Summary • If we can have guarantees that government is making a real effort (with timeframes) to address the broader regulatory and participatory framework; then we can talk about EMCAs. • EMCAs will need the foundations of these necessary conditions if they are to have any chance of being an effective policy tool to address environmental problems which communities face.

29. What should UNITAR assist governments with – developing partnerships or assisting govt to develop hardcore capacity to develop legislation and capacity to enforce this!

31. Recommend • That Govt give guarantees that EMCAs will not be used as a substitute for addressing legislative deficiencies and they will not result in the delaying of new legislation and standards.

32. Recommend • That government commit to the setting of legally enforceable standards for air, water and ground pollution – with clear timeframes.

33. Recommend • Should EMCAs go ahead, there should be monitoring of the overall efficacy and cost-benefit of EMCAs. • Consideration should be given to establishing a subcommittee of NEAF to assess the overall functioning and efficacy of EMCAs.

34. Recommend • Should regulations for EMCAs occur; then existing draft EMCAs (such as the chemical and refinery EMCAs) will have to be restarted based on such guidelines or regulations. These regulations should form the basis for completely new initiatives led by government.

35. Recommend • The existing industry EMCA documents are NOT the basis for designing guidelines/regulations/baselines or standards for pollution.

36. Recommend • Government must ensure that the legal basis to EMCAs is such that the development of EMCAs will not result in the removal of rights to communities.

38. Critical Questions • When will we have legally enforceable pollution standards? • Who is prioritizing the problems and the choice of solutions? • In the case of EMCAs, it appears as if industry is setting the pace and direction. • What is government doing with regard to fiscal measures to control pollution? - discussions only started !

39. Critical Questions (cont) • What is happening with the Law Reform Process? (Waste bill?) – NB for SAICM because once chem spill its waste! AQA? • There appear to be a lot of resources going into EMCAs – we want to know how government is prioritizing. • Where else is government spending on pollution control?