ESS 122: ENVIRONMENTAL LAW

Lecture 7(2)

Environmental Impact
Assessment
Environmental Impact Assessment
(EIA)
• EIA’s emerged • Principle 17 of the Rio
internationally after the Convention states:
1972 Stockholm
Conference and is now
recognised internationally environmental impact
in the Rio Principles and assessment, as a
the 1991 Espoo national instrument, shall
Convention 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 • It is only relatively
Convention: recent that South
Africa has had a
a national procedure statutorily required
EIA regime
for the evaluation of
the likely impact of
the proposed activity
on the environment.
 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 • Authorisation may
may not be only be made after
undertaken without consideration of
authorisation from the reports concerning
relevant competent the impact of the
authority 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 • The relevant authority
report, the authority may may then decide to
decide the matter on the authorise the activity with
basis of the information or without conditions, or
supplied in the scoping to reject the application,
report, or decide that and this decision,
such information must be together with certain
supplemented by an EIA other prescribed
focusing on the identified information, must be
alternatives and provided in the record of
environmental issues. 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 • Compliance with the
make regulation procedures laid down by
consistent with the the Minister or an MEC in
mandatory required by terms of sub-s (4) does
section 24 (4). 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 • Sections 24A and 24B
obtained under any other deal with the procedure
law for an activity listed or for listing and delisting
specified in terms of this activities and areas
Act do not absolve the respectively.
applicant from obtaining • Section 24C sets out the
authorisation under this procedure fir identifying
Act. 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 • It is also an offence to fail
commencement or to comply with or to
continuation of an contravene the conditions
unauthorised activity is a applicable to any
criminal offence. environmental
• The maximum penalty for authorisation granted for
contravention of this a listed activity or
section is a R5 million specified activity; any
fine or 10 years condition applicable to an
imprisonment or both. exemption granted in
terms of section 24M; or
an approved
environmental
management programme.
 Integrated Environmental
Management of NEMA
• Section 24 F is • Provision is made for
augmented by section an administration fine
24G, which provides not exceeding R1
for offenders in terms million (in addition to
of section 24F to the fine imposed by
apply for ex post facto section 24F) to be
(after the fact) paid by the offender.
authorisation
 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 • Section 24H regulates
such a directive, or with a environmental
condition attached to an assessment practitioners
authorisation under this (EAPs) and provides for
section, is an offence an association proposing
attracting the same to register its members as
penalties as in section EAPs must apply to the
24F. 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 • Section 24M provides that the
Minister/MEC may publish Minister/MEC may grant an
guidelines regarding listed exemption from any provision
activities or specified activities, of the Act where it is unlikely to
or the implementation, result in significant detrimental
administration and institutional consequences for or impacts
arrangements of EIA on the environment; the
regulations made in terms of provision cannot be
section 24(5). 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 • An EMP must be
environmental submitted before the
management consideration of the
programmes (EMPs). environmental
• The competent authority authorisation in cases
may insist on the where an EIA has been
submission of an EMP identified as the
before considering an environmental instrument
application for an to be utilised as the basis
environmental of the authorisation, and
authorisation. for applications relating to
mining-related activities.
 Integrated Environmental
Management of NEMA
• Section 24O provides • It provides that the
for the criteria to be official must comply
taken into account in wit the Act and take
deciding into account all
environmental relevant factors, a
authorisation non-exhaustive list
which is provided by
the section.
 Integrated Environmental
Management of NEMA
• Section 24P provides for • Monitoring and
financial provision for assessment as a
remediation of requirement of an EMP
environmental damage, for mining-related
which is a prerequisite for activities is required by
the granting of an section 24Q and section
environmental 24R sets out the
authorisation for mining- responsibilities of rights
related activities. 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 • The types of activities for
involves an assessment which basic assessment
of the potential impacts of is required are, for the
the activity on the most part, identified on
environment; whether and the basis of whether they
the extent to which those fall within certain
impacts can be mitigated; specified parameters, or
and whether there are below certain thresholds.
any significant issues and
impacts that require
further investigation
 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 • Example:
other category require • The construction of
scoping and EIA 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 Director-
General: Environmental Management, Department of
Agriculture, Conservation and Environment, Mpumalanga
Province
• The applicant, (Fuel • The SCA upheld the
retailers) had approached Department’s decision,
the High Court to review and the ground of review
the decision by the which concerned the
respondent (the Constitutional Court was
Department) to authorise the allegation that the
the development of a Department had not
petrol station in White considered the socio-
River, Mpumalanga. economic impact of the
construction of the filling
station, which it was
obliged to consider.
 Fuel Retailers Association of Southern Africa v Director-
General: 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 Director-
General: 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 socio-
economic factors as an integral part of its
environmental responsibility.
 Fuel Retailers Association of Southern Africa v Director-
General: 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 • The Minister/MEC may,
case may be, may after considering such an
consider and decide an appeal, confirm, set aside
appeal or appoint an or vary the decision,
appeal panel to consider provision, condition or
and advise the directive or make any
Minister/MEC on the other appropriate
appeal. 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, ill-
considered 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 • The ECA requires an
Community exemption to be in
Environmental Alliance v writing, which this
Head of Department: exemption initially was
Department of Agriculture not, and the court found
and Environmental that the exemption was
Affairs, KwaZulu-Natal, invalid for this reason.
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.
 Administrative Justice
• In Earthlife Africa (Cape Town) v Director-
General: 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.