6. SOME POSSIBILITIES FOR URBAN COMMUNITIES IN SOUTH AFRICA
6.6. VOLUNTARY AGREEMENTS AND EMCA's
Delictual claims for damages arising from pollution are still an important option for the community for a number of reasons. First, regulations can become outdated, technology can change and the possible forms that pollution can take cannot all be regulated. Liability in delict is therefore a useful safety net. Second the enforcement of regulation depends upon administrative and criminal sanction. Unfortunately the low probability of detection, ineffective fines and weak enforcement ethic mean that criminal sanction will often fail as an effective deterrent. Consequently the threat of civil liability remains useful.316 With respect to foreign domiciled companies the recent
£21 million settlement relating to Cape plc asbestos victims may persuade CBO and NGO claimants that prospects for litigation are more likely to be successful in foreign courts than loca1.317 Certain large ex South African companies who have created environmental harm and are now domiciled outside of South Africa may in time regret losing the protection of an admittedly weak judicial system.
6.6.1.
discussions with Engen refinery regarding their emissions with a view to securing a reduction plan. After much debate and negotiation a 5-year air pollutant reduction strategy was agreed and eventually made a condition of the refinery's Scheduled Process Permit.3I8 The thinking was that the agreement would be more credible and be provided with 'teeth' ifit could be incorporated as a condition of the process permit. This is a significant milestone as here for the first time an agreement had been negotiated totally outside of government structures and was now legally binding upon the polluter. A similar initiative has recently been launched by SDCEA to gain access to the local authority permit-setting process with the intention of ensuring that measurable agreed actions and targets appear in the permit accompanied by penalties for transgressions. This is a reaction to the distinctly voluntary nature of air pollution control on South Durban in the preceding decades notwithstanding legislation that purports to provide for command and control type strategies.
EMCA's
The concept of the Environmental Management Co-operation Agreement (EMCA) were first put forward by business and industry during the 3 year long CONNEPP process. These efforts were successful in that they were eventually included in NEMA but 'with the explicit understanding that these would be supplementary instruments that were to be used in taking industries beyond compliance with national legislation
317Full review of Cape plc settlement at http://www.btinternet.com/-ibas/FrameslClka_cape_sa_claim_brief.htm.
318Scheduled Process permits are required in terms of Act 45 of 1965. Oddly this initiative was initially rejected by the Department of Environment's Chief Air Pollution Officer (Martin Lloyd) for unclear reasons. Happily this situation did not persist and on 28 April 1999 the emission reduction agreement became part ofthe process permit.
and standards.'319 The May 1998 draft National Environmental Management Bill included arrangements pertaining to EMCA's and stated inter alia that :no environmental management co-operation agreement shall be valid without provision for:
S35(2)(i) reporting
(ii) independent auditing ofreports;
(iii) regular independent monitoring and inspections;
(iv) verifiable indicators of compliance with any norms and standards laid down in the agreement as well as any obligations laid down by law;
(v) the automatic suspension ofthe agreement in the event of non compliance ...
and its automatic termination in the event of repeated non-compliance; and;
(vi) penalties for non-compliance.
The final version NEMA contained a surprise for the NGO sector in that the peremptory shall was changed to may with an obvious implication that there had been a softening in approach by the authority. Following the passage ofNEMA into our law there has been a flurry of activity from both DEAT and industry with respect to EMCA's. Initially there was no civil society involvement and exclusive structures such as the Joint Development Forum (JDF) were set up to promote the development of EMCA's.320 Several documents have been published by both DEAT, JDF and industry on the EMCA process, again without involvement from civil society. Indeed the IDF Progress Report notes with reference to the involvement of civil society that 'Ahhough civil society will notbe a Party (signatory) to the sectoral agreement, their involvement is important as they play an essential role in the adoption of site
319C Albertyn and J Hall unpublished Groundwork report entitled 'Environmental Management Cooperation Agreements A soft tool at the cutting edge of pollution control in South Africa' . August 2000 7.
320The Joint Development Initiative comprises members ofDEAT,DWAF, DTI, Refinery Managers Environmental Forum and Chemical and Allied Industries Association.
of NEMA contains no such exclusion of civic bodies from being a party to EMCA's.322 To the environmental organisation it was abundantly clear that they were being effectively shut out of the decision-making process. This led to fears that EMCA's could be negotiated between the two parties in the absence of enforceable pollution control legislation. Worse, the agreement could be seen as a substitute for legislation and standards which were meant to be delivered by the law reform process.
Another issue was that EMCA's could retain the status quo of an ineffective and under-capacitated inspectorate due to the emphasis on voluntary or self-regulation.
The industry lobbying positionis to convince government that self-regulation through voluntary agreements is the most cost-effective means of achieving environmental improvements and likely to make little demands on the administrative capacity of the state - the original CAIA agreement even contemplating the ISO management system as supplanting the need for traditional plant and installation inspections. Ignored however is the reality that thousands of site specific negotiations and agreements on individual targets will be required which will very likely overwhelm the administrative resource.
321JDF document entitled 'Conclusion of Environmental management Co-operative Agreements in terms of Section 35 of the National Environmental Management Act' dated 26/6/2000 2.
322Arguments opposing community participation rely on the use of the word 'or' in S35(1) , ...any personor community' to indicate a distinction between agreements made between government and industry and agreements made between government and communities. This view it is submitted is incorrect.
The NGO reaction was to immediately confront Government on this lack of consultation.323 Key fears highlighted to DEAT were that EMCA's concluded in this manner could lead to a potential erosion of civil society rights; that EMCA's could disempower regulators in that enforcement of laws would be secondary to the non litigious remedies contained within the EMCA and that EMCA's were delaYing delivery on the more important law reform process issues. Underscoring all of these concerns was the overriding conviction that the EMCA approach was designed to maintain the 'business as usual' approach for as long as possible. Since these concerns were made known, DEAT has become marginally more accommodating although there has been suspicion that this was tied to the impending World Summit on
Sustainable Development (WSSD).324
Whilst there is little disagreement that environmental agreements have a potentially valuable role to play as a supplementary instrument, they must be preceded by effective regulation and operate within an atmosphere of general compliance. In sum the environmental NGO identifies EMCA's as a tool to take industries beyond compliance. According to Chris Albeftyn, the South African EMCA is being modelled on the Dutch covenant system. This system has chief amongst its failings the exclusivity of the negotiation process. Being private they are not open to NGO participation and amendments or alterations cannotbe independently challenged.325 A further aspect is that Dutch enforcement officials have 'cited examples of violating
323Government responded and the deputy Minister DEAT and her Director General met with SDCEA and other NGO representatives shortly thereafter to hear their position. Meeting held Pretoria 13/1012000.
324 DEAT Workshop Record of Discussion, Workshop held 19-20 Sept 2001. Judy Beaumont underlined the importance ofthe New Africa Initiative and referred to a 'new deal' or 'global compact' emanating from the World Summit on Sustainable Development.
325Albertyn 29.
officials are pessimistic that any environmental benefit for the future will ever be recognized.'326 Escape clauses are usually built into the agreement which can be used by industry whenever compliance proves too costly. Various high profile speeches given by DEAT ministers (usually following yet another industrial pollution incident), have followed the theme of stating that co-operative agreements would be put in place in terms of NEMA and that this would address, manage and reduce industrial pollution. Government by entering into negotiations before overhauling the regulatory framework that determines the standard required, has inevitably undermined the logic of the negotiated policy.327 Indeed all the Government did was provide for a free public image boost to polluting companies and their brands. The government response clearly indicates that it has bought into these strategies.328
EMCA's are clearly here to stay and will be forming part of our legal landscape. Their success will depend upon whether realistic environmental targets are negotiated, monitored and enforced and, more importantly, whether the law reform process delivers a package of regulatory tools and standards to underpin such initiatives.