National Environmental Management Amendment Bill (B36 – 2007)
Submission to Parliamentary Portfolio Committee
Tuesday 6 Nov 2007
(Prof) Jan Glazewski
Background
1. The purpose behind environmental assessment is to ensure
better decision-making by administrative officials who are charged with
approving development proposals. These typically cover a wide variety of development
proposals ranging from dune mining on the
2.
The essence of the EIA procedure is to arrive at the ‘best practicable
environmental option’ that would meet the need for and objectives of
development, while satisfying the need for development to be sustainable. EIA typically involves collecting, analysing
and evaluating information on the value and importance of the affected
environment, and on the probable effects of proposed development on that
environment.
The
effect of development is considered, not only from the point of view of
possible irreversible impacts on the natural environment (eg impact on scarce
water resources or biodiversity) but also on the socio-economic consequences of
the proposal (eg will the development provide more jobs or will it result in
relocating people, what will be the impacts on health). Finally, the impacts that remain after
feasible mitigation are evaluated to determine whether or not they could
undermine sustainable development. .
3.
In my textbook ‘Environmental Law in
3.
As such, the EIA procedure explicitly and systematically brings a variety of
factors before the decision-making official to enable him or her to make a more
informed decision as regards the planning and development
process. These factors are in line with the internationally accepted
norm of sustainable development which has been included in our Constitution,
namely that everyone has, among others, the right:
“…to
secure ecologically sustainable development and use of natural resources while
promoting justifiable economic and social development.”
(Sect
24(b)(iii)) (own emphasis).
4.
In a recent
The
Constitution recognises the interrelationship between the environment and
development; indeed it recognises the need for the protection of the
environment while at the same time it recognises the need for social and
economic development. It contemplates
the integration of environmental protection and socio-economic development. It envisages that environmental
considerations will be balanced with socio-economic considerations through the
ideal of sustainable development. This
is apparent from section 24(b)(iii) which provides that the environment will be
protected by securing “ecologically sustainable development and use of natural
resources while promoting justifiable economic and social development”. Sustainable development and sustainable use
and exploitation of natural resources are at the core of the protection of the
environment
5.
The NEMA, the act which is now sought to be amended, rests on the foundation-stone
of ‘sustainable development’ which it defines as:
‘the
integration of social, economic and environmental factors into planning,
implementation, and decision-making so as to ensure that development serves
present and future generations’. (Sect. 1(1)(xxix))
Section 2 of the act effectively spells out that sustainable
development requires the consideration of a number of factors including:
“…that negative impacts on the environment and on people’s environmental
rights be anticipated and prevented, and where they cannot be altogether
prevented, are minimised and remedied.”(Sect 2(4)(a)(viii)) by, amongst others,
pursuing the selection of the best practicable environmental option (b).
6. Increasingly in the field of environmental management we are having
to deal with uncertainty – uncertainty about the effects of our actions on the
environment and the implications for our wellbeing. This factor is reflected in Sect 2(4)(vii) of
NEMA, namely requiring that ‘a risk-averse and cautious approach is applied,
taking into account the limits of current knowledge about the consequences of
decisions and actions’.
It
goes without saying that the EIA process is the day to day tool which gives the
rather nebulous concept of sustainable development and the principles contained
in NEMA ‘practical reality’.
7. Against the above background it is respectfully
suggested that the Portfolio Committee should consider the following two
fundamental underlying questions concerning EIA in considering the proposed
amendments to the NEMA:
Question 1
Does the proposed amendment enhance or detract from
ensuring the provision of enough relevant and reliable information to
decision-making officials, including from stakeholders, to help them make
better decisions?
Question 2
What is the legal formula that that triggers the EIA
process? This determines whether a particular development proposal falls within
the ‘EIA net’. More bluntly it determines whether a developer has to carry out
the EIA process in a particular situation or not.
The proposed
NEM Amendment Bill (B36 – 2007)
8. As regards Question 1: proposed amendments to
section 24
8.1 The Portfolio Committee should note that both
sections 24(2) and 24(3) use the word “may” and are thus discretionary;
8.2 Our substantive problems lie with the proposed
amendments to sect 24(4) however. Currently the requirement is that certain
criteria must “as a minimum” be considered. The criteria that must as a
minimum be considered lie at the heart of the EIA process, namely whether the
environment will be “significantly” affected as discussed below, whether viable
alternatives need to be considered, whether mitigation measures need to be imposed,
whether public participation procedures need to be adhered to and so on (see
sect 24(4)(a)-(i)).
The proposed amendment to section 24(4) splits
subsections (a) to (i) into two new subsections: (a) and (b) and removes the “as
a minimum” requirement from both. While stipulating a “must” requirement for
part (a), the real problem is that the new subsection (b) ((i) to (v)) is now
reduced to “may include”. This subsection lists the fundamental building
block of the EIA process referred to in the previous paragraph to a
discretionary requirement.
8.3
More particularly to elaborate on one aspect of
the problem: the proposed amendment, section 24(4)(a), deletes
the phrase “investigation of the environment likely to be significantly
affected by the proposed activity and alternatives thereto” (own emphasis). By
deleting ‘the alternatives’ requirement, the legislature will remove one of the
generally accepted pillars of the EIA process namely the need to explore viable
alternatives in a given situation. This requirement was well illustrated in the
recent 2010 Football World cup bidding process where EIA specialists conducted
in depth surveys and investigations country-wide as to where to the optimal
place was to locate football stadiums from a sustainable development
perspective.
8.4 In our respectful view this is untenable and
removes the legislative heart of the EIA process from the regulatory framework.
It is not arguable that we don’t have government capacity to achieve these
minimum requirements; on the contrary the minimum requirements provide a
template which we must strive to at least achieve to ensure that environmental
needs and socio-economic needs are integrated as per Justice Ngcobo’s dictum
quoted above.
9. As regards question 2: proposed amendments to
section 24
Both internationally and in South African legislation,
EIA is typically triggered either by a listing process (eg Nuclear power
station, cell phone mast, etc) or by a formula
along the lines of “…anything that may have a significant impact on the
environment.”
The
advantage of a list process is that it is simple to administer; the disadvantage
is that by its nature the process is a mechanical checklist and sight may well
be lost of the underlying purpose of doing an EIA referred to above.
To
give a simple example: ‘the release of 10 litres of toxic chemical waste per
day’, this may have dire environmental consequences if released into an
estuary, a breeding ground for many species of line fish; but it will have much less consequence if
released into a high energy wave environment, say at Cape Point.
In
practice, both internationally and in
The
writer would be happy to address any questions or concerns of the Portfolio
Committee.