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HEFTY FINES AND IMPRISONMENT LOOMS FOR FAILURE TO COMPLY WITH ENVIRONMENTAL AUTHORISATION PROCESSES

By Wandisile Mandlana Thursday, August 13, 2009
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Investors entering the South African market may require environmental authorisation. They are well advised to familiarise themselves with those requirements. South Africa’s environmental authorisation processes have been roundly criticised since their formal introduction in 1989, especially for their fragmentation and lack of coordination between authorities, which has resulted in inordinate delays in the approval of development projects.

The good news is that political will has been shown to address the criticism, thereby cutting the hassle factor of doing business in the country. Thus, several interventions have been introduced, the most recent of which is the National Environmental Management Act 62 of 2008, which came into effect on 1 May 2009.
The Amendment Act provides for greater coordination between authorities that evaluate environmental assessments where an activity that requires environmental authorisation falls under the jurisdiction of more than one organ of state.  It also provides for the alignment of environmental authorisations issued under the National Environmental Management Act 107 of 1998 (NEMA) and specific environmental management acts (SEMAs).
NEMA’s Section 24O provides for greater coordination between authorities evaluating environmental assessments when an activity falls under the jurisdiction of more than one organ of state.  Such coordination measures include:

• The possibility of the Minister of Water and Environmental Affairs concluding written agreements with other organs of state responsible for administering legislation that also requires NEMA environmental authorisations. The objective is to avoid duplication in the submission of information or the carrying out of a process; 

• Empowering the Minister, where an application requires authorisation in terms of other legislation, to consider any process under that legislation where specific areas of expertise required for the process are deemed adequate for meeting the requirements of environmental authorizations under NEMA;
• Introduction of integrated environmental authorisations to empower authorities under other legislation to jointly issue an authorisation, which, however, may only be issued if the provisions of both relevant Acts have been complied with;
• Obligation to consult with every state department that administers a law affecting the environment. 

In an attempt to expedite authorisations, Section 24O requires a state department consulted by the Minister to submit comments within 40 days of being consulted.  As a result of section 240, delays in granting environmental authorisations are likely. This will largely depend on when the Minister consulted the other state department or relevant organ of state. If the Minister thus consults at the end of his/her evaluation, a delay is likely, as the other party has 40 days to comment.In such circumstances, Section 24O would not resolve the time-delay complaint. Accordingly, environmental authorisation applicants must be aware of a possible approval delay of a further 40 days, in addition to the normal evaluation period.

Yet a 40-day delay is nothing compared to applying for another authorization. Hence, investors should view section 24O in a positive light, as it is trying to streamline the environmental authorisation process. Until 1 May 2009, Section 24(8) of NEMA provided that “authorisations or permits obtained under any other law for an activity listed or specified in terms of this Act does not absolve the applicant from obtaining authorisation under this Act”.  Section 24L of NEMA inserted by the Amendment Act has changed this position.
Section 24L provides for the alignment of environmental authorisation issued under NEMA and SEMAs, for example the National Environmental Management: Protected Areas Act 57 of 2003 and the National Environmental Management: Biodiversity Act 10 of 2004. Section 24L provides that if a competent authority is empowered under NEMA to issue an environmental authorisation, it may regard such authorisation as sufficient basis for granting or refusing an authorization, permit or license under a SEMA if the SEMA is also administered by that competent authority. 
Section 24L is a welcome addition,  as it makes it possible to avoid duplication of environmental authorisation. This will result in cost and time savings. Currently, environmental authorisation can only be granted after undertaking basic assessment, or a full-blown environmental impact assessment or if an applicant is exempt from undertaking a basic assessment or full-blown assessment. 

South Africa is moving away from exclusive reliance on environmental impact assessment. This is evident in NEMA’s Section 24(5)(bA), which empowers the Minister to promulgate regulations that lay down the procedure to be followed for the preparation, evaluation and adoption of prescribed environmental management instruments, such as:

• Environmental management frameworks;
• Strategic environmental assessments;
• Environmental risk assessments;
• Environmental feasibility assessments;
• Norms and standards;
• Spatial development tools; and
• Any other relevant environmental management instruments that may be developed over time.
There is clearly a concerted effort to improve environmental authorisation processes in South Africa. Corporations can aid the process by ensuring that environmental authorisation is factored in the planning and costing stages of the project and not regard it just as a compliance issue.

Environmental authorisation in South Africa, in addition to it being an environmental management tool, is also a legal compliance requirement. Failure to comply  will result in liability to a hefty fine or imprisonment. Llegal counsel should, therefore, always be sought where there is uncertainty about any regulatory aspect of the environmental authorisation process.