By: Tarisai Mugunyani and Paul Wani Lado

South Africa is on the brink of one of the most consequential shifts in environmental governance since the advent of democratic environmental law.

The Department of Forestry, Fisheries and the Environment’s proposed “Flexible Environmental Impact Assessment” system, currently open for comment until the end of May 2026, promises efficiency, adaptability and faster approvals. But beneath that rhetoric lies a more fundamental shift; one that takes us away from rules and toward discretion.

A solution in search of a problem

A system that adjusts the level of environmental assessment according to the likely environmental impact may sound reasonable. Few people would support unnecessary delays or red tape. But major changes to environmental law should be supported by clear evidence that the current system is failing.

Yet, in its reply to Parliamentary Question on 16 April 2026, the Department stated that 98% of EIA applications are already being processed within legal timeframes, with “no known delays at the national level”. It also confirmed that approval times in Strategic Transmission Corridors and Renewable Energy Development Zones have already been reduced from 107 to 57 days, with a reported 99% efficiency rate.

The Department further stated that it is “currently not experiencing any technical capacity issues” affecting EIA processing. If the current system is already operating efficiently, there must be a far clearer explanation for why such significant changes are necessary.

From rules to discretion

Under the existing framework, the law provides certainty. Projects that trigger listed activities under the EIA Regulations must follow defined assessment pathways. There are thresholds, procedures and enforceable rights. Communities know when they must be consulted and developers know what is required of them. Critically, decisions can be challenged.

The proposed system unsettles that clarity. It introduces a three-stage process in which the decisive moment shifts to a discretionary screening stage. Here, officials determine whether a project requires a full assessment, a limited review, or effectively none at all. In some cases, projects may be approved on the basis of existing information, without specialist studies and with limited public participation. This “early exit” mechanism is not merely a procedural refinement. It represents a substantive reduction in oversight.

Participation, but on whose terms?

The proposed system gives government officials far greater power to decide how much environmental scrutiny a project should receive, without clear, binding rules guiding those decisions. Under the current system, the law sets out when a full environmental assessment is required. Under the proposed system, officials would have wider discretion to decide whether a project receives a full assessment, a limited review or can proceed largely on existing information.

The concern is not simply that officials will exercise judgment, that is part of governance. The concern is that broad discretion without clear safeguards can lead to inconsistent decisions and incentivise lighter scrutiny than others for certain projects.

Public participation should not be discretionary. The Minister's reply to parliamentary questions confirms that "the public consultation to be undertaken will be based on the significance and extent of impacts and will also be determined at the screening stage."

In effect, the extent of public participation would no longer automatically flow from the law but would depend on decisions made by officials during the screening stage.  Public participation under the National Environmental Management Act is not a procedural courtesy; it is a substantive statutory entitlement, repeatedly affirmed by our courts. Converting it into a variable to be calibrated by officials introduces precisely the kind of inconsistency that erodes public trust and invites litigation. Local communities cannot bear this cost.

Furthermore, the proposal to treat screening decisions as non-appealable is particularly concerning. Screening determines the depth of assessment and, in some cases, whether any assessment occurs at all. Yet this critical decision would be insulated from internal challenge. In practice, this is unlikely to prevent litigation, it will simply shift disputes into the courts, where they become slower, more expensive and less accessible.

Flexibility for whom?

There are also deeper structural concerns. The proposed system allows developers and their consultants to recommend what level of environmental assessment a project should undergo. Environmental consultants are typically appointed and paid by the developers themselves, there is a risk that pressure may arise to favour less intensive forms of assessment in order to secure faster approvals and reduce costs.

The proposed "already-disturbed areas" designation warrants particular caution. The Department has indicated that projects in "already-disturbed or impacted areas" may be eligible to exit the full EIA process on the basis of existing information. The policy logic is intelligible: brownfield development should not be treated identically to greenfield. But the geographic distribution of South Africa's "already-disturbed" landscapes, the coal belt of Mpumalanga, the platinum belt of the North-West, the South Durban basin, the Vaal Triangle, Sasolburg, is not coincidental.

These are the areas in which historically disadvantaged communities bear disproportionate environmental burdens. A simplified-exit pathway in these areas, absent a current Strategic Environmental Assessment and an updated cumulative-impact baseline, risks compounding rather than addressing that inequity. It also sits uncomfortably with the polluter-pays and environmental-justice principles in section 2 of the National Environmental Management Act (NEMA).

None of this is to suggest that reform is unnecessary. The current EIA system is not perfect. It can be slow, and it does not always adequately address cumulative impacts. But reform must strengthen, not weaken, the safeguards that underpin environmental governance.

Taking a defensible approach

A more defensible approach is available. Strategic Environmental Assessments can be strengthened to address cumulative impacts at a regional level. Clear, legally binding screening criteria can be developed and published. Minimum standards for public participation can be retained, ensuring that affected communities are meaningfully involved in decision-making. Screening decisions, particularly those that determine whether assessment is required, should remain subject to appeal.

South Africa’s enviro-legal framework is not accidental. It has been shaped by decades of legal precedent and a Constitutional commitment to protect the environment for present and future generations. Section 24 of the Constitution does not contemplate a flexible right to a healthy environment, the Courts have affirmed that it is an immediately recognisable right that requires reasonable, effective, and enforceable measures to prevent environmental harm.

If these reforms proceed without stronger safeguards, South Africa risks replacing a system that is sometimes slow but legally grounded with one that is faster, but far more fragile. Should environmental governance fails, the consequences would not be theoretical. The lived reality of affected communities show that it is felt in polluted air, contaminated water, degraded land, and communities left to bear the cost.

Flexibility should not become a euphemism for reduced protection. That is a trade-off South Africa cannot afford.