A Brief History of IEM and the Environmental Impact Assessment Procedures That Came Into

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A Brief History of IEM and the Environmental Impact Assessment procedures that came into effect during 2006 for South Africa

INTRODUCTION

These notes describe the new Environmental Impact Assessment (henceforth, EIA) Regulations under the National Environmental Management Act , 1998 (henceforth, NEMA). My approach to this topic will be as follows:

• Short history of Environmental Assessment and Management and the evolution of EIAs globally and locally.
• EIAs in the legal context of South Africa
• The NEMA principles and NEMA EIA Regulations
• Changes in the EIA Regulations
• Roles and Responsibilities of all role players
• The Basic Assessment
• The Scoping and EIA process
• Exemptions, Amendments, Alternatives and Appeals
• Supplementation of EIA Regulations
• Guidelines
• Compliance and offences
• Benefits
• Conclusion

History on Environmental ASSESSMENT and MANAGEMENT:

THE GLOBAL PICTURE

Environmental Assessment and Management was first formalized in the United States with the National Environmental Policy Act of 1969 (NEPA) being promulgated (Sowman et al 1995; DEAT 2004; Wikipedia contributors (2) 2006). This followed from the realization that natural resources were finite and that human activities had environmental consequences (DEAT 2004). One of the main aims of this Act was to support decision-making by identifying and investigating the environmental consequences of proposed activities, with its main tool being Environmental Impact Assessments (EIA’s) (DEAT 2004).

Globally the main focus in the 1970’s was on biophysical aspects of the environment (DEAT 2004). However, even the “green” environment was not seen as a whole. According to Weaver et al. (1999) the environment was fragmented into discrete components in order to deal with its complexities. Thus, the focus was on how specific actions impacted on specific components of the environment, like air, water and soil. There was also very little stakeholder engagements, with no formalized public participation process, which resulted in numerous legal battles (DEAT 2004). Yet, during that first decade the Environmental Impact Assessments discipline established itself and several well-defined tools were developed (DEAT 2004).

The 1980’s saw the incorporation of social issues and impacts into environmental management and assessment. There was a movement towards a more holistic approach to the environment. Also, the overall impacts of natural ecosystems were assessed and not only fragmented components in isolation (DEAT 2004). Scoping was introduced as a tool to focus on key issues and the value of stakeholder engagement was recognized (DEAT 2004). By 1987 the concept of “sustainable development” was introduced through the Brundtland Report. This report by the United Nation’s World Commission on Environment and Development (WCED) was published as “Our Common Future”, which contained the much quoted definition of sustainable development: “Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs." (WCED 1987; Wikipedia contributors (1) 2006).

The emergence of sustainable development as a global imperative was taken forward in the 1990’s. The Rio Earth Summit in 1992 adopted a “wide-ranging blueprint for action to achieve sustainable development worldwide”, called Agenda 21 (United Nations contributor 1997). Ten years later (2002) the Key Outcomes and Commitments of the World Summit on Sustainable Development (WSSD)held in Johannesburg and also known as the Johannesburg Plan of Implementation, gave formal recognition to the role of environmental assessment as one of the key instrument to sustainable development (DEAT 2004).

Integrated Environmental Management and the evolution of EIA’s in South Africa.

In South Africa, it was not until 1989 with the promulgation of the Environment Conservation Act (ECA) (Act 73 of 1989), that provisions were made for environmental policy to guide decision-making. The new act provided for regulation of activities that could have detrimental affects on the environment and also for environmental reports to be prepared (Sowman et al. 1995). EIA’s were however only mandatory for activities identified by the Minister of Environmental Affairs and Tourism (DEA &DP workshop 2006). In the same year a document named “Integrated Environmental Management in South Africa” was published by the Council for the Environment (1989). This document outlined a recommended evaluation procedure for Integrated Environmental Management. This entailed integrating environmental consideration into decision-making at all stages of the planning and development cycle, applicable to policies, projects, plans and programs alike (Sowman et al. 1995).

This then set the stage for Integrated Environmental Management (IEM) in South Africa. The term Integrated Environmental Management was chosen as it was believed that the term EIA had too many negative connotations (DEAT 2004). (IEM can is synonymous to the globally used term “environmental assessment and management”.) In 1992 the Department of Environmental Affairs published a series of six documents on IEM that formed the basis of voluntary EIA’s (DEAT 2004). These documents however focused on the EIA phase of development and paid little attention to environmental management during the rest of the life cycle of a policy, project or program (DEAT 2004). Although voluntary EIA’s had been undertaken in South Africa since the 1970’s, it wasn’t until September 1997 that EIA regulations in terms of the ECA (Act 73 of 1989) were gazetted (DEAT 2004). These regulations identified specific activities for which EIA’s were mandatory and also specified the application procedure (DEA &DP workshop 2006). These regulations were soon followed by the National Environmental Management Act (Act No. 107 of 1998) or NEMA in short. This Act sets out the minimum requirements for the investigation and assessment of potential impacts of activities and how these should be communicated (DEA &DP workshop 2006). It also provides the framework for co-operative environmental governance in South Africa. It promotes sustainable development by providing the general objectives of Integrated Environmental Management as well as what procedures must be in place to achieve these objectives (DEAT 2004).

Today it is recognized that there is much more to IEM than Environmental Impact Assessments. DEAT’s current definition of IEM is as follows: “IEM provides a holistic framework that can be embraced by all sectors of society for the assessment and management of environmental impacts and aspects associated with an activity for each stage of the activity life cycle, taking into consideration a broad definition of environment and with the overall aim of promoting sustainable development.” (DEAT 2004, p.8) IEM has thus evolved into a discipline with a wide ranging suite of principles and tools for environmental assessment AND management (DEAT 2004). The key challenge is to make use of the wider suite of tools available across the full life cycle of all activities, to achieve a more sustainable society (DEAT 2004).

EIA’s WITHIN THE LEGAL CONTEXT OF SOUTH AFRICA

In South Africa the supreme law is our Constitution (Act No. 106 of 1996). It contains the Bill of Rights (Chapter 3 of the Constitution); the fundamental human rights of our citizens. The Constitution also provides the source of legal powers and functions of our government (DEA &DP workshop 2006). The Constitution provides the foundations for NEMA and the new EIA regulations in terms of NEMA. These are in the form of the environmental right, the right to just administrative action, the right to access to information as well as the duties of the three spheres of government (national, provincial and local) in ensuring that these rights are protected (DEA &DP workshop 2006). It is important to remember that none of these fundamental rights are absolute and that any of them may be limited by a law of general application, such as NEMA, if the limitation is reasonable and justifiable (section 36 of the Bill of Rights) (DEA &DP workshop 2006).

The environmental right is contained in section 24 of the Constitution, which also formally embraces the notion of sustainable development. This section states:

“Everyone has the right –

1. to an environment that is not harmful to their health or well-being; and

1. to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that –

1. prevent pollution and ecological degradation
2. promote conservation, and
3. secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.”

Other acts (apart from NEMA) that have resulted from the above legislation and that must be taken into consideration in EIA’s are the National Environmental Management: Protected Areas Act (Act No. 57 of 2003) (NEMPAA) and the National Environmental Management: Biodiversity Act (Act No. 10 of 2004) (NEMBA). Also specific environmental management acts that regulate a specific aspect of the environment need to be taken into account. A special mention needs to go to the National Heritage Resource Act (Act 25 of 1999). This act requires a heritage impact assessment in cases where anything with heritage value may be affected by an activity. According to the NEMA regulations, the appropriate heritage resource authority needs to be involved to provide the relative information and then also to act as a commenting authority for DEA &DP. (DEA &DP workshop 2006)

The right to just administrative action is contained in section 33 of the Constitution and has lead to the Promotion of Administrative Justice Act (Act No. 3 of 2000) (PAJA). “The essence of this act is that a fair procedure must be followed and reasons for administrative action must be given” (DEA &DP workshop 2006, p18).

The right of access to information contained in section 32 of the Constitution was enacted by the Promotion of Access to Information Act (Act No. 2 of 2000) (PAIA). PAIA also provides procedures for requesting access to information and under which circumstances disclosure can be refused (DEA &DP workshop 2006).

Apart from these laws, the NEMA principles, set out in section 2 of the Act, also need to be taken into account and should be read along with the regulations (DEA &DP workshop 2006).

Through these Constitutional rights and duties, several principles have emerged that are specifically applicable to EIA. These include “accountability, transparency, co-operative governance, just administration, sustainability and the supply of objective, adequate and accurate information” (DEA &DP workshop 2006, p7).

It has thus become essential for developers and Environmental Assessment Practitioners (EAPs) to be familiar with the legal framework to ensure that the EIA process complies with all the laws and regulations and that their reports are objective and meet the requirements of the NEMA principles. This however can only be enforced by the relevant Departments, by the active participation of Interested and Affected Parties (I&AP) and the political will to protect our environment and to strive for sustainability.

THE NEMA PRINCIPLES

The NEMA principles are laid out in Chapter 1 (section 2) of the Act. The following descriptive summary of the NEMA principles was partially taken from the DEA &DP workshop manual (2006, p10-14)

Section 2(1): To whom the principles apply and how they should be used

Section 2(2): Environmental management for the people.

Section 2(3): Sustainable development (socially, environmentally and

economically)

Section 2(4)(a)(i): avoid loss of biodiversity and disturbance of ecosystems

(ii): avoid pollution and environmental harm

(iii): save cultural heritage

(iv): minimise waste

(v): responsible and equitable exploitation of non-renewable

resources

(vi): save integrity of ecosystems and renewable resources

(vii): risk averse and cautious approach

(viii): prevent and minimise negative effects on environment

(b): IEM and the best practicable environmental option (BPEO)

(c): environmental justice

(d): equitable access to resources

(e): cradle to grave responsibility (throughout life cycle)

(f): public participation

(g): broad-based values and knowledge

(h): community empowerment initiatives (incl. environmental education)

(i): decisions must be based on IEM and EIAs

(j): worker rights regarding their health and the environment

(k): transparent decisions, access to information

(l): co-operative governance

(m): conflict resolution

(n): international responsibilities

(o): environment held in public trust

(p): polluter pays

(q): women and youth

(r): sensitive, dynamic or stressed ecosystems require special attention

These principles should be taken into account in any decision-making process where the environment is involved. (DEA &DP workshop 2006)

THE NEMA EIA REGULATIONS

Why was there a need for new regulations? It was realized that the EIA process under the ECA EIA Regulations had many flaws. Environmental laws were being applied inconsistently. The process was inflexible and lengthy without any compulsory time frames. Too many small developments were subjected to EIAs, which led to backlogs in the system while other activities with significant impacts were excluded. Also, a lack in guidelines resulted in sub-standard reports being submitted, that lacked vital information for decision-making. Public participation was limited and there were only weak enforcement measures. The process did not support the use of strategic planning tools and finally, the focus was on the type and scale of activities without taking the receiving environment into account (DEA &DP workshop 2006). Therefore, the National Department of Environmental Affairs and Tourism embarked on a consultative process to develop the new EIA regulations in terms of NEMA, but also aligning them to other laws like PAJA and PAIA (DEA &DP workshop 2006).

The EIA regulations in terms of NEMA, Chapter 5 were promulgated by the Minister of Environmental Affairs and Tourism on April 21 2006 (Government Notice No. R.385, R.386 and R.387 in Government Gazette No. 28753 of April 21 2006). These new regulations replaced the EIA regulations in terms of the Environmental Conservation Act (Act No. 73 of 1989) (ECA) and came into affect on 3 July 2006.

Transitional arrangements are in place for activities applied for under the old ECA EIA Regulations. For the purpose of this report however, I will not elaborate on these arrangements.

ASPECT / ECA EIA Regulations / NEMA EIA Regulations
EIA Process / Single process to which all applications must be subjected regardless of scale of impact. / Different processes (Basic Assessment & Scoping and EIA) to follow depending on scale of activity. The Basic Assessment process is simplified, allowing for a more integrated and shortened process to be followed for smaller developments.
Public Participation Process / Poorly defined / Comprehensively defined with minimum requirements
Listed activities / Too wide a spectrum, not clearly defined, crucial activities omitted. Too many small activities subjected to EIAs. No consideration for the receiving environment. / Narrower spectrum, more specific, includes crucial activities previously omitted. Activities separated into those requiring Basic Assessment (Schedule 1) and those subject to the scoping and EIA process (Schedule 2). Provision made for considering the receiving environment.
Roles and responsibilities / Prescribed for authorities and applicants only – weak enforcement measures / All role players prescribed for, including Interested and Affected Parties. Consequences for non-compliance provided for.
Decision-making process / Allowed for comprehensive process only with many ‘authority stops’ or ‘decision points’, high administrative load on officials. / Allows for rapid response time and decision-making. Prescribed time frames.
Appeal process / Appeal decision process not prescribed / Process well defined and aligned with PAJA.
Fees / No fees required / Provision for application and appeal fees.

There are many changes from the old to the new regulations, but the two that are probably most significant are the separation of the listed activities into two categories, namely those subjected to a Basic Assessment (listed in GN No. R.386 of 2006) and those subjected to a Scoping and EIA (listed in GN No. R.387 of 2006). Applications for activities subjected to a Basic Assessment are however not guaranteed to pass the Basic Assessment and may be referred for Scoping and EIA. The second significant change is the inclusion of compulsory time frames (DEA &DP workshop 2006).

Other additions worth mentioning are:

• The clarification of the independence of the Environmental Assessment Practitioner
• Compliance and enforcement strengthened, with substantial consequences for non-compliance (R 5 million fine and/or 10 year imprisonment)
• Content of reports specified in detail
• Co-operation agreements between authorities to reduce duplication
• Provision for the amendment and/or withdrawal of authorizations
• Mining-related activities have been included
• Provision for supplementation of regulations by provincial departments, the Minister and every MEC, with the concurrence of the Minister (Section 24(2) of NEMA ). (DEA &DP are currently working on supplementary regulations for specific geographical areas in the Western Cape. Discussed later in report)
• Public Participation from an early stage with minimum requirements for participation.

(DEA &DP workshop, 2006)

THE ROLE PLAYERS AND THEIR DUTIES

According to the new regulations, all role players have certain duties and responsibilities they need to adhere to. The role players involved in the EIA process are:

• The applicant / developer
• The Environmental Assessment Practitioner (EAP)
• Interested and Affected Parties (I&AP)
• Commenting Authorities
• Decision-making Authorities

The Applicant or developer

The applicant or developer has the following responsibilities:

1. Apart from the activities listed, the applicant needs to consider section 28 of NEMA (duty of care), which says that every person should take reasonable measures to prevent pollution or degradation from occurring and where it cannot be avoided, minimise and rectify such pollution or degradation of the environment (NEMA 1998, Act No. 107 of 1998). The applicant also needs to take the NEMA principles into account and make sure that the proposed development is socially, economically and environmentally sustainable. (DEA&DP workshop 2006)
2. The applicant must appoint an EAP at own cost, who then manages the application for an environmental authorisation. (Regulation 17(1) of GN No. R. 385 of 2006)
3. It is the applicant’s responsibility to ensure that the EAP is independent and has the relevant knowledge and expertise in conducting an EIA. Also that the EAP has the relevant knowledge for the specific application (Regulation 17 (2)(a) of GN No. R. 385 of 2006).
4. The applicant (or the appointed EAP) has the responsibility to give written notice of his intent to all owners or occupants of land within 100m of the boundary of the proposed site, to the municipality that has jurisdiction in the area, to the ward councillor, to any ratepayers association or other organization that may represent the public of the area and any organ of state that has jurisdiction in respect of any aspect of the activity. (Regulation 56 of GN No. R. 385 of 2006)
5. The applicant must provide the EAP with all relevant information at his/her disposal regarding the application, whether or not such information is favourable to the applicant (Regulation 17 (2)(b) of GN No. R. 385 of 2006; Promotion of Access to Information Act (Act No. 2 of 2000)).
6. The applicant must apply for amendment of authorisation, should circumstances change in regard to an environmental authorisation already granted. (Regulation 39-43 of GN No. R. 385 of 2006.)
7. The applicant (or appointed EAP) needs to notify all I&AP of all authorisations granted or rejected with the reasons for the relevant outcomes. (DEA&DP workshop 2006)
8. The applicant (or any person affected by the decision) has the right to appeal any environmental authorisation, but needs to adhere to certain regulations. (Appeal process will be dealt with later).
9. The applicant can appoint an independent specialist to carry out a specialist study or a specialized process in accordance with Regulation 33 (1) of GN No. R. 385 of 2006.

The Environmental Assessment Practitioner