Transcript Environmental Impact Assessment (EIA)

ESS 122: ENVIRONMENTAL LAW
Lecture 7(2)
Environmental Impact
Assessment
Environmental Impact Assessment
(EIA)
• 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
Convention states:
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)
• 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
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.
EIA under the Environment
Conservation Act (ECA)
• 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)
• 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.
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.
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.
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.
General EIA regulations
• 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
• 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
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.
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
Integrated Environmental
Management of NEMA
• 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
• 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
• 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.
Integrated Environmental
Management of NEMA
• 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
• 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
• 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.
Integrated Environmental
Management of NEMA
• 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
• 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.
Integrated Environmental
Management of NEMA
• 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
• 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
• 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
• Section 24P provides for
financial provision for
remediation of
environmental damage,
which is a prerequisite for
the granting of an
environmental
authorisation for miningrelated 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.
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
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.
The 2006 EIA regulations and lists
of activities
• 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
• 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
The 2006 EIA regulations and lists
of activities
• 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 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
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.
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.
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.
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.
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.
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.
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.
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.
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
Fuel Retailers Association of Southern Africa v DirectorGeneral: Environmental Management, Department of
Agriculture, Conservation and Environment, Mpumalanga
Province
• 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 socioeconomic impact of the
construction of the filling
station, which it was
obliged to consider.
Fuel Retailers Association of Southern Africa v DirectorGeneral: 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.
Fuel Retailers Association of Southern Africa v DirectorGeneral: 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 socioeconomic factors as an integral part of its
environmental responsibility.
Fuel Retailers Association of Southern Africa v DirectorGeneral: Environmental Management, Department of
Agriculture, Conservation and Environment, Mpumalanga
Province
• The court held that this
• Consequently, the
obligation is not the same
environmental authority
as the obligation on the
could not rely on the local
local authority to consider
authority’s need and
the need and desirability
desirability decision to
of the project.
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.
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.
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.
Appeals
• 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
• 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.
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.
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.
Will compulsory time limits be the
answer?
• The NEMA regulations 2006 did not
contain time limit for appeals.
• In terms of the 2010 regulations, there is
now a deadline for the decision on appeal:
the relevant appeal official must reach final
decision on an appeal submitted within 90
days of receipt of all relevant information.
critism
• As long as the appeal process involves
appeal to the Minister/MEC , there will be
problems.
• While the NEMA regulation now prescribe
a deadline, this is likely to lead to hasty, illconsidered decisions even though they will
be more prompt.
Administrative Justice
• A decision authorising (or not) an activity
is an administrative decision and,
accordingly, has to comply with the
requirements of administrative law.
Administrative Justice
• In South Durban
Community
Environmental Alliance v
Head of Department:
Department of Agriculture
and Environmental
Affairs, KwaZulu-Natal,
the departmental officials
concerned purported to
grant an exemption from
certain procedural
requirements of the ECA
regulations in terms of
section 28A of the ECA.
• The ECA requires an
exemption to be in
writing, which this
exemption initially was
not, and the court found
that the exemption was
invalid for this reason.
Administrative Justice
• In Earthlife Africa (Cape Town) v DirectorGeneral: Department of Environmental
Affairs and Tourism, interested parties had
been given an opportunity to comment on
a draft of the EIA report, but not on the
final report, which was held to be
procedurally unfair.
Post-authorisation monitoring
• Typically, the authorisation would contain
conditions aimed at mitigating environmental
damage identified in the EIA report.
• However, these conditions are frequently not
effectively enforced.
• The setting of conditions presupposes the
enforcement of such conditions, and the
absence of monitoring seriously undermines the
entire system.
Post-authorisation monitoring
• NEMA now addresses this, at least on paper, by
providing that adequate provision be made for
the ongoing management and monitoring of the
impacts of the activity on the environment
throughout the lifecycle of the activity.
• The effectiveness of this measure is, however,
dependant on the availability of adequate human
resources, which is predicated on political will.
Political will
• The fact that South Africa has many new
environmental Acts, many of them
innovative and aimed at environmental
conservation and sustainable
development, could be seen as indicative
of a political commitment to these
objectives.