6. Conclusion and recommendations
6.2. Recommendations
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The second developer is the Fuel Retailers Association and wants to construct a filling station; a less scale project as compared to A’s above and would not affect the wetland. There is a need for a fuel station in the area as the only available fuel station is 35km away. The information gathered through the public participation process supports the need and desirability for a filling station in the area. The third developer is the local municipality desirous to use the same area to build low cost housing for members of the local community living in shacks. The EIR shows that the wetland would be affected and possibly destroyed.
If all the three proposals were presented before the environmental authorities for consideration and the environmental authority asked to decide which of the three projects ought to proceed. Perhaps the need for housing would rank high above others. The need for housing trumps the need for a filling station and five star hotel. In consideration of the report for its adequacy and comprehensiveness with regard to mitigation measures proposed by each developer it would be commendable for environmental authorities to consider how each project would respond to socio-economic needs of the affected community.
Assuming that there was no wetland and there was enough space to accommodate all the proposed activities, a different set of events would occur. Each development studied individually would have negligible or insignificant impact on the environment and each might be allowed to proceed. The completion of the life style estate could possibly attract more people to the area and this might create a need for another filling station. While each filling station may have relatively little or no adverse impact on the environment the accumulation of the effects from the two projects may have a far greater adverse effect on the environment.
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project may result in the doubling of effluent nutrient and doubling of the greenhouse gas emission.
Section 24(7) of NEMA as was originally promulgated required EAPs to investigate the potential impact of the activity including cumulative effects of the activity and its alternative on the environment, socio-economic conditions and cultural heritage and the significance of that potential impact. It is a pity that this requirement in particular had since been eroded by the amendment because some activities listed as activities that may significantly affect the environment under NEMA listing notices when studied individually relatively have low minimum impact on the environment.
By requiring all EAPs to consider cumulative effects of their activities, the Act ensured that the report did not only include direct impacts resulting from the proposed activity but also how the action could contribute to cumulative impacts. In the US an approach adopted by the Environmental Protection Agency is that in reviewing cumulative impact analysis, reviewers should focus on the specific resources and ecological components that can be affected by the incremental effects of the proposed action and other actions in the same geographic area. This could be achieved by considering:
Whether the resource is especially vulnerable to incremental effects;
Whether the proposed activity is one of several similar actions in the same geographic area;
Whether other activities in the area have similar effects on the resource;
Whether these effects have historically significant for this resource; and
Whether other analyses in the area identified cumulative effects of concern.529
Even though cumulative impact assessment is necessary the complicating factor is that it broadens the scope of investigation and generates more expense to project proponents. Under South Africa’s EIA system the responsibility of carrying out the EIA lies with the project proponent who is permitted to engage the services of a qualified EAP. Even though the Regulations530 categorically state that EAPs must be qualified,531 objective532 and independent533 using EAP carries the risk that the document will be biased in favour of
529 Consideration of cumulative impacts in EPA Review of NEPA documents available at http://www.epa.gov/compliance/resources accessed 19 December 2014.
530 NEMA EIA Regulations no. 543 of 18 June 1998.
531 Reg 17(a).
532 Reg 17(c).
533 Reg 17(b).
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proceeding with the project. The government should determine and decide who prepares an EIA.
6.2.2. The act of implementing the activity
Preparing an EIA is not for the benefit of the project proponent but for the greater good of the public. Proponents might consider preparation of an EIA as part of conditions of the bureaucratic process one needs to fulfil in order obtaining permission to commence activity.
They might lack the needed enthusiasm and interest to carry out the report. It is recommended that the government should not only oversee and issue licences but also engage fully in the process. This could be achieved by ensuring that EAPs are appointed by the government or a government agency. This could be private firms or a government agency.
The government could require the proponent to bear the cost of the investigation and assessment of the potential impact on the environment and the preparation of the report.
111 Appendices
Since its inception in the US, EIA has been regarded as a normative approach towards the regulation and management of activities that may significantly affect the environment. This tool has been defined by a set of evolving principles; such as the principle of sustainable development; risk averse and cautious approach which takes into account the limits of the current knowledge about the consequences of decisions- and including the option of not implementing the activity.
In addition to various amendments made to s 24 of NEMA, s 24F and s 24G were also introduced. It is an offence under s 24F of NEMA to begin a listed activity without having obtained approval from the competent authority. The role of s 24G is to fix the procedural irregularity that occurs when listed activities are commenced without prior authorisations from the competent authority. The issue is whether the Act by allowing rectification of unlawful commencement of listed activities takes into account the irretrievable and irreversible damage that may be caused to the environment and socio-economic resources as a result of commencing a listed activity before or without having concluded necessary EIA studies.
The general perception is that where rectification is sought and granted activities are not subjected to the same review and assessment standards as activities to which an EIA is applied prior to commencement. Environmental authorities cannot be expected to ensure that findings arising from investigation or assessment of impacts took into account the socio- economic conditions of the affected public any more than they could be expected to consider the same factors prior to commencement of the said activity. Consequently, s 24G is being used as a leeway by developers to begin listed activities without obtaining the necessary authorisation from environmental authorities and seeking authorisation later- Kohn has called this the unscrambling of an egg. Although it is an offence to commence an activity without the necessary permits developers continue to flout law.
Even though the appendices do not answer the research questions they are nonetheless relevant. The dissertation discusses environmental impact assessments in South Africa with specific focus on the obligation of environmental authorities to consider the impact of activities on socio-economic factors. The appendices discuss the credibility of environmental impact assessment process in general to which the assessment of the impact on socio-
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economic factors forms part of. They answer the following questions; whether the system of environmental impact assessment is efficient and effective; whether environmental authorities have the required capacity to discharge the mandate imposed on them by s 24 of NEMA. The appendices also capture the legislature and the judiciary’s indifference towards the emerging criticisms levelled towards the inclusion of s 24G in the Act.
Environmental impact assessment is mandatory for activities that may significantly affect the environment and should be carried out before permission to begin such an activity is granted.
The appendices look at the implementation and enforcement mechanisms provided for under the Act in case of breach of the mandatory requirement-which would also be relevant in the case where the investigation procedures failed to take into account the impact of activities on socio-economic conditions. It discussed a number of court decisions that dealt with the implementation and enforcement measures of EIAs.
113 Appendix A
Although it is an offence to commence an activity without the necessary permits developers continue to flout law.
7. Ex post facto EIAs