Project development could be negatively affected by the amendments made to the National Environmental Management Act (Nema) and the environmental impact assessment (EIA) regulations, which came into effect in September and December 2014 respectively, says business law and litigation firm Fasken Martineau environmental department partner Matthew Burnell.
“The intention of the amendments is to shorten the EIA and appeal processes to facilitate project development. However, I do not believe this will necessarily be the case,” he argues.
Burnell explains that the new EIA regulations have shorter timeframes within which applications for environmental authorisations can be processed. Under the new amendments, it should take no longer than 300 days for the Department of Environmental Affairs (DEA) to reject or approve an application, provided the application is complete and does not need to be supplemented.
Once an applicant is awarded an environmental authorisation from the DEA, the applicant has 14 days to notify all registered interested and affected parties who participated in the EIA. Subsequently, there is a 20-calendar-day period during which any person can submit an appeal.
During this short timeframe, the appellant is required, among other things, to review hundreds of pages of complex scientific jargon and consult experts and lawyers to draft an appeal. Burnell argues that achieving this in 20 days may prove difficult.
Further, a respondent receiving multiple appeals may need more than 20 days in which to respond to all the appeals. Nema makes provision for an extension of time periods, subsequent to an application to the relevant Minister or Member of the Executive Council. Given the amount of time needed by both appellants and respondents, Burnell holds that it is likely that parties will request an extension, rendering the stricter time periods pointless.
“The concern arises where the 20-day periods are ignored and extensions are granted, as the amendments to Section 43 of Nema suspend an environmental authorisation as soon as an appeal is lodged, irrespective of whether the appeal has any merit, pending the resolution of the appeal. This amendment is contrary to the purpose of the principles of Nema,” says Burnell.
He notes that, prior to the amendment, an authorisation holder could begin implementing the environmental authorisation, notwithstanding an appeal. “If there was an imminent threat to the environment, an appellant could request that the relevant authority suspend the authorisation or, in serious cases, even request a court interdict.”
The automatic suspension of environmental authorisation under the amendments prevents a developer from implementing portions of the authorisation, which are not disputed. For example, during linear projects, such as road construction projects, an appeal may be made against the construction of a new road, but not necessarily upgrading an existing road network under the same project scope.
However, the submission of an appeal would prevent a developer from implementing any upgrades, Burnell notes, adding that this is particularly worrying for large infrastructure projects, such as those undertaken for South Africa’s National Development Plan (NDP), which could be held up by appeals indefinitely.
Further, his concern is that the Nema amendments will only delay projects. “Even if an appeal is processed within 100 days – the fastest possible time permissible under the regulations – people are still able to launch a review proceeding, which considers the way in which the Minister made the decision, if the appeal is dismissed. This will refer the matter back to court and further delay the development of the project.”
Burnell states that South African laws should strive to consider alternative ways to resolve disputes and strike a balance between protecting the environment and promoting the social and economic development of its people.
He concludes that it may be time to focus on the public participation process and the role and function of environmental assessment practitioners in this process, as a way of identify- ing and resolving issues or to develop special rules in relation to strategic projects that form part of the NDP.