Environmental Impact Assessment Regulations: briefing

Meeting report

ENVIRONMENTAL AFFAIRS AND TOURISM PORTFOLIO COMMITTEE, AND LAND AND ENVIRONMENTAL AFFAIRS SELECT COMMITTEE
17 May 2005
ENVIRONMENTAL IMPACT ASSESSMENT REGULATIONS: BRIEFING

Chairperson (Environmental Affairs and Tourism Portfolio Committee): Ms E Thabethe (ANC)
Chairperson (Land and Environmental Affairs Select Committee): Rev P Moatshe (ANC)

Documents handed out:
Department PowerPoint presentation on Environmental Impact Assessment (EIA) regulations
Proposed Regulations Under Section 24(5) of National Environmental Management Act, 1998 (Act No. 107 of 1998) as Amended

SUMMARY
The Department of Environmental Affairs and Tourism briefed the Committees on new Environmental Impact Assessment regulations in terms of the National Environmental Management Act (NEMA). The reasons for the new regulations and their key features were outlined. Furthermore, the Department highlighted the key differences between the current and the new regulations, stressing that the new EIA regulations would provide a mechanism for quick assessment of most applications. Members raised concerns about the impact of the new regulations on the previously disadvantaged sectors of the public and whether quick assessments would not lead to more problems and potential corruption.

MINUTES

Department briefing
Mr P Lukey, Chief Director of Regulatory Services, briefed the Committees on the EIA regulations. New regulations were needed because the current regulations caused unnecessary delays for development due to cumbersome processes and an inflexible "one-size-fits-all" approach. Furthermore, the existing regulations placed a high administrative burden on officials. Conversely, the new regulations would assure quick assessment of applications due to efficient screening mechanisms and reduced numbers of interactions between the applicant and the competent authority. Moreover, in the new regulations the listing of activities was more sensitive and flexible; and there were different entry points for various activities. He further pointed out the key differences between current and new regulations, highlighting that screening and "class reports" would provide a streamlined process. He explained that the EIA was a process that assured sustainable development. Within the next two months, after the approval of the Director-General and the Minister, and the State Law Advisor’s review, the new regulations would be published.

Discussion
Mr A Mokoena (ANC) suggested the establishment of a website that informed the public about EIA regulations. He further asked what role land reform played in the EIA.

Mr Lukey replied that they had already started to inform the public about the EIA on their website. Thus far, the Department had developed 23 scientific publications on Environmental Impact Management. However, most important was a user-friendly guideline to the regulations, both published in hard copy and available on the Internet. He further emphasised that the appropriate use of land was crucial to the EIA, especially regarding housing development. The EIA ensured the environmental safety of communities. However, the EIA did not replace integrated development plans provided by local authorities.

Mr G Morgan (DA) asked for clarity about Section 18 of the regulations, which dealt with the considerations for issuing environmental authorization. Certain NEMA principles like pollution and degradation were mentioned. However, others that were also central to environmental assessment had been left out, for instance biodiversity, health and safety consequences, and heritage. He asked whether the NEMA principles of pollution and degradation encompassed the others, or whether Section 18 had been amended. He further pointed out that the screening report required information about laws, policies and guidelines relevant to the activity. However, it was not explicit enough that the assessor had to evaluate the consistency of the actual proposed project with the laws, policies and programmes. He asked whether enough information was provided about the law, and whether people would ensure that their developments would not impinge on that law.

Mr Lukey explained that the principles of NEMA applied to every sphere of government. They had to be the basis of any decision-making by government. Thus, there was no need to reiterate those principles. However, he agreed that Section 18 of the regulations had been amended in order to give a balance between environmental depletion and environmental degradation. The biodiversity aspects were included in the depletion principle.

Mr M Moss (ANC) mentioned that the current 8 year - old EIA had been surrounded by criticism, especially regarding the delays. He highlighted that the historical context had to be taken into account, and progress that had been made. He wondered what progress could be expected with the new regulations, and whether sustainable development could be realised for all activities. He further asked for clarity about the "one-size-fits-all" approach.

Mr Lukey agreed that the history was exceptionally important to contextualise the EIA. It was no coincidence that the first EIA regulations had come out only a few months after the final Constitution had been published in 1996. The Constitution contained the right to an environment that was not harmful to health and the well being of a person. Reasonable legislative and other measures that protected the environment were passed in the form of EIA. Thus, both the pro-active management of environmental impact and the pro-active protection of the environmental right were enshrined in the Constitution. Before these regulations, development had been subject to environmental injustice. For instance, land that had lost its value because of polluting factories was used for low-cost housing. Thus, the poor had been pushed into highly polluted areas. There were currently still areas where such unacceptable situations prevailed. Hopefully, the New Air Quality regulations would tackle this problem. He reiterated that the EIA would ensure environmental justice.

Mr Lukey further highlighted that the Department strived for co-operation with the Department of Minerals and Energy to investigate EIA of mining activities. Furthermore, he explained with regard to the "one-size-fits-all" approach that the context always had to be taken into account in EIA applications. It was important that the EIA not only looked at alternatives sites, but also at technological alternatives. This would ensure sustainable development.

Mr Sefularo (ANC) asked whether there was any scope for local government to assist overcoming the housing backlog apparently caused by outstanding EIAs. He further queried whether there existed a relationship with land development. With regard to the independence and trustworthiness of Environment Assessment Practitioners (EAPs), he wondered whether there was an independent body that the state and the public could rely upon.

Mr Lukey replied that thus far there had never been a formal complaint blaming the EIA for housing backlogs. The National Department would assist to speed up the process if made responsible for the backlog. Furthermore, he said that local government could assist by making sure that their reports and integrated development plans were correct and detailed, and by taking into account sustainable development. Presently, the Minister was in discussion with the EIA practitioners sector, aiming to transform and professionalise the sector. They were looking at the codes of conduct of EIA practitioners and the development of an EIA institutional ombudsman.

Mr K Durr (ACDP) emphasised that EIAs should be neither an obstruction to development nor a barrier for people with limited resources. Time-consuming, costly application processes could have adverse effects on economic growth. He also raised concern about the far-reaching impact of quick application processes. Another problem was that discretion given to state officials opened the possibility of abuse. Fewer discretions and more transparency would be preferable. He further asked to what extent the problem of Genetically Modified Organisms (GMOs) had been addressed, highlighting that thus far there was no proper risk management in South Africa. He asked how the current situation would affect treaty obligations.

Mr Lukey agreed that there was a difficult balance to achieve in the EIA. On the one hand, it had to be avoided that the EIA became an obstruction, and on the other hand the adverse effects of quick processes had to be prevented. He emphasised that the Department was aware of fast-track processes slowing down the process because of incorrect applications. Hopefully, the new regulations would ensure legally robust authorization that would withstand legal challenge but also assist with proper decision-making. The EIA did not reduce quality but just hastened the process. He further mentioned that any decision could be appealed both in terms of the regulations and the Promotion of Administrative Justice Act.

Mr Lukey pointed out that the Department of Agriculture would deal with the GMO Act. However, GMOs were included in the listed activities of the regulations and thus required a screening process. The Department would develop other environment management tools over the next two years, for instance risk assessment and cost benefit analysis, which would further assist government to make informed decisions.

Mr Lukey commented that regulations always had the potential for abuse. The intention was to promote sustainable development. Everybody, especially people within the constituencies, had to be aware of the potential abuse of the system. It was noteworthy that in every EIA there were at least two individuals involved: the applicant and the person who opposed the development. The abuse of the EIA by people who wielded a certain amount of power had to be balanced by mass support.

Mr D Olifant (ANC) expressed his frustration about the fact that many laws in South Africa were disadvantaging black people. Furthermore, he commented that the vast majority of environmental activists were affluent. It was not enough to provide housing, but other benefits had to be granted to the poor too.

Mr Lukey commented that the most outspoken environmentalists were based in rural areas. The poor had to preserve the environment because it constituted the basis of their lives. He further pointed out that the only reason why South African National Parks existed was because people had largely protected the land through sustainable development.

Ms R Ndzanga (ANC) queried whether ward counsellors would be involved in the consultative development process. They played an important role in spreading information to people at local levels. She further asked whether there were scientists involved in the EIA other than those who served during apartheid.

Mr Lukey highlighted that people had to be mobilised around the positive aspects of development. The EIA process provided the basis for ward counsellors’ involvement. The EIA was the most participatory governance process, demanding publication, public meetings and interaction. He explained that the consultants had to abide by codes of practice, and that de-registration was possible. Furthermore, the EIA was only eight years old, thus there no was reason for exclusivity. Black scientist would be empowered and encouraged to get involved.

Ms E Thabethe (ANC) wondered whether the new regulations would try to change the current situation. Presently, most of the adverse environmental assessments affected the poor. Thus, the new screening mechanism had to be thorough in order to prevent further mistakes. Regarding the local-government capacity, it was important that the Department assisted with planning processes and final applications. She asked what steps had been taken by the Department to empower local authorities. Finally, she queried how applications for development that crossed provincial borders were dealt with.

Mr Lukey commented that the Department had worked in partnership with provincial governments for many years. The Department had many initiatives, which looked at integrated development planning and their environmental aspects. Local authorities had to consult the Department if they lacked capacity. He further explained that the competent authorising agencies were the provinces and the National Department. When a development application crossed provincial borders, the application would be passed to the National Department.

Mr M Kalako (ANC) pointed out that certain municipalities had no section that dealt with the EIA directly. Those municipalities relied on consultants. He asked whether the Department was tackling this problem, also with regard to the trustworthiness of these consultants. Furthermore, he expressed concern about the potential abuse of EIAs to discriminate against and isolate disadvantaged people. He queried how the new regulations would address this problem.

Mr Moatshe pointed out that the general concern of the Committee Members were whether the new regulations would really advantage the previously disadvantaged.

Mr Lukey highlighted that even though the regulations were not the answer to past injustice, they would certainly not reinforce discrimination. The EIA was the most participatory process available. However, the system was like any other open to abuse by the powerful. Usually, people who participated were those who opposed the development. Hence, action had to be taken to mobilise those people who would profit from the development.

Mr G Krumbock (DA, Kwazulu-Natal) commented that it was often difficult to find out what the real objections or benefits of certain developments were. The staff that processed the application had a crucial role to play, as the decision-making depended to a large degree on their expertise. He asked how their capacity could be increased in order to assist these difficult decisions.

Mr Lukey replied that many provinces had an excellent record of decision-making. However, certain provinces lacked capacity. A joint agreement was required, ensuring that provinces that lacked capacity would turn to the National Department. The Department would then assist the provinces without taking control of the matter.

Ms Thabethe suggested they discuss the matter further after the implementation of the regulations.

The meeting was adjourned.