Environmental regulation amendments to threaten constitutional rights

Proposed environmental regulation amendments will violate fundamental constitutional rights to public participation, affecting the poor and vulnerable communities disproportionately.

On the 31st December 2021 Barbra Creecy, Minister of Forestry, Fisheries and Environment gazetted a proposed amendment to the National Environmental Management Act (NEMA) – the Section 24H Registration Authority Regulations, 2016.

This is problematic, firstly due to the date of issue not only being in the middle of year end holidays but of all dates, the day of New Years eve when everyone is distracted. This alone is an attempt to limit public participation in a process of fundamental importance, affecting the right
to fair administrative justice regarding environmental management.

If promulgated the proposed regulations will make it impossible for civil society or their lawyers to appeal environmental authorisations granted under NEMA without using the services of an Environmental Assessment Professional (EAP). This restriction will raise the cost of appealing significantly and will in all likelihood deter appeals, thus discouraging public participation at a critical stage in the environmental authorisation process under section 24 of NEMA.

The chilling effect of the increased cost of participation will negatively affect poor communities disproportionately who bear the brunt of poor decision making in the area of environmental management, and who will not be able to absorb the additional cost of employing EAP’s to
make their appeals.

The purpose and objective of NEMA is set out in the preamble which indicates that the statute is to promote public participation in environmental decision making:

“AND WHEREAS it is desirable that the law should establish procedures and institutions to facilitate and promote public participation in environmental governance;”

…and..

“that the law should be enforced by the State and that the law should facilitate the enforcement of environmental laws by civil society;”

Hence the proposed amendments are in conflict with NEMA as a whole. NEMA requires administrative officials to promote public participation in environmental decision making, particularly by vulnerable and disadvantaged persons and communities.

Communities are far more likely to approach environmental lawyers willing to assist them pro bono, or to have access to skilled community resource people that can assist them with an appeal rather than utilise the services of an EAP to represent them. EAPS are not legally trained professionals and therefore offer uncertain or limited value in presenting legal arguments in environmental appeals, a critical requirement for interested and affected parties seeking access to justice in environmental decision making processes.

Where will a rural community, for example, find an EAP willing to work pro bono for the community? By restricting the categories of those able to represent communities, the regulations severely curtail community groups’ capacity to participate in environmental decision-making.

This is contrary to the principle contained in NEMA and contrary to the intent of our constitution. It is particularly marginalised communities (e.g. informal settlements, rural communities, persons living in poverty, migrants, etc.) who will lack access to an EAP, let alone the funds to pay for EAP services.

The Department should be making it easier for communities, particularly marginalised communities, to participate rather than placing obstacles in their path. It’s also important to note that many comments submitted by civil society to defend environmental and social justice are responses to EIA documentation, prepared and submitted by environmental assessment practitioners for environmental authorisation. This alone is reason for grave concern. EAPS are dependent on applicants for environmental authorisation (such as mines, developments, industrial plants etc.) for their income so may well be reluctant to present the views of civil society members who in many instances oppose and raise criticisms against such projects.

Currently the tasks that an environmental assessment practitioner is permitted to undertake are detailed in the definition of an environmental assessment practitioner in the Act.

The tasks are limited to:

(a) planning
(b) management
(c) coordination
(d) review

These are performed BEFORE a competent authority evaluates and decides on an application. Therefore a registered environmental assessment practitioner has no business with tasks undertaken AFTER the competent authority decides on an application, and more so has no business with an appeal contemplated in section 43 of the Act.

The proposed amendments seek increase the ambit of regulation 14 of the s24H regulations, changing them from:

Requirement to register as environmental assessment practitioner

No person other than a registered environmental assessment practitioner, registered with a registration authority, may hold primary responsibility for the planning, management, coordination or review of environmental impact assessments and associated EMPrs.

to:

Requirement to register as environmental assessment practitioner

(1) No person other than a registered environmental assessment practitioner may perform tasks in connection with:

• (a) an application for an environmental authorisation contemplated in the Act and the Environmental Impact Assessment Regulations;
• (b) an application submitted in terms of section 24G of the Act;
• (c) an application for a waste management license contemplated in the National Environmental Management: Waste Act, 2008…, read with the Environmental Impact Assessment Regulations;
• (d) an application for an atmospheric emission license contemplated in the National Environmental Management: Air Quality Act, 2004…’
• (e) strategic environmental assessments, environmental management programmes or any other appropriate environmental management
• instruments introduced through regulations, contemplated in the Act, in so far as it informs an application contemplated in paragraphs (a) – (e); and
• (f) an appeal contemplated in terms of section 43 of the Act, relating to an application, strategic environmental assessment, environmental management programme or any other appropriate environmental instrument, contemplated in paragraphs (a) – (e).

It is also important to note that currently neither Section 43 nor the Appeal Regulations make any reference to an EAP, or provide an EAP with any role in the appeal process. Thus, it is questionable as to why the Minister seeks, not only to create a role for EAPs in the appeal process through the proposed amendments to Regulation 14, but also in doing so, makes their role mandatory to the point of excluding any other specialist and legal representation.

This is contrary to the Promotion of Administrative Justice Act, 2000 (“PAJA”) which in order to give effect to the Constitutional right to procedurally fair administrative action, confers on the administrator a discretion to give a person an opportunity to obtain assistance and, in serious or complex cases, legal representation.

It is also regrettable that the Department did not issue an accompanying memorandum explaining the reasons for the Minister’s proposed changes. This, coupled with the many perceived ambiguities and inconsistencies that will be created by the Intended Amendments if published into law, will, at the very least, make for messy implementation, not to mention possible legal challenges.

Unless substantially redrafted to address the concerns raised, the proposed regulations stand to be challenged and set aside as unlawful, and unconstitutional.

The Department has accordingly been requested to withdraw or substantially amend the draft regulations by many organisations and individuals (including UnPoison, All Rise, SAFCEI, the Environmental Law Association and NEAG) so that they in no way infringe on the current rights of civil society to participate in environmental decision making under NEMA.

• Please read the proposed amendment and comment before 21 February.