1. Efficacy of SA’s EIA Regime
Presentation to Portfolio Committee on Water and Environmental Affairs
30 July 2013

2. Overview
The legal context: Constitutional protection for EIA, including the right to public participation in that assessment
Remarks on the efficacy of EIA requirements
Strengths and weaknesses of the current EIA regime, and recommendations for improvement

3. 1. Legal context EIA is a Constitutional imperative Section 24 NEMA:
NEM principles
S.23 Integrated environmental management
EIA regulations
S.33 and PAJA: right to just administrative action
Notice of proposed decision
Opportunity to make representations
Right to rational and reasonable decision-making

4. 2. Efficacy of EIA regime
Ongoing attempts at limitation and dilution of EIA
Desperate need for more empirical evidence on way is assisting us to realise s.24, and support transition to green economy
Almost all evidence is anecdotal. Only DEAT study provided evidence on improvement of efficacy of EIA regime from ECA to NEMA
“It is estimated that NEMA cases on average are effective in achieving the selected criteria for effectiveness between 46% and 65% of the time and ECA cases between 36% and 55% of the time.” (p.17)

5. 3. Strengths & weaknesses, and recommendations
Purpose of integrated environmental management:
“identify, predict and evaluate the actual and potential impact on the environment, socio- economic conditions and cultural heritage, the risks and consequences and alternatives and options for mitigation of activities, with a view to minimising negative impacts, maximising benefits, and promoting compliance with the principles of environmental management” (NEMA s.23)

6. 3.1 Quality v quantity
EIA performance is being measured almost exclusively by quantity of EIAs processed. Two questions:
Is it actually slow? 2010 DEAT Study (p.26) evaluated more than 500 EIA case files found average of:
284 days (i.e. just under 9.5 months) to process application
158 days (i.e. just over 5 months) to evaluate the EIA and to make a decision
Should we not be measuring environmental outcomes instead? How has EIA mitigated detrimental environmental impacts over time? How far would our path to a Green Economy have been compromised without the current EIA Regime, imperfect as it may be?

7. 3.2 Making EIA (and databases supporting effective EIA) more accessible
Make easier for persistently offending groups (like farmers) to comply with EIA regulations:
greater information about requirements
support for applications
integrated permitting and class applications
avoiding decisions that disincentivise compliance
Funding and promotion of key databases like those of SANBI and WRC

8. 3.3 Public participation as opportunity, not box to tick
Public generally regarded by the applicant and the competent authority as being incapable of making meaningful contributions in relation to the application
Proposal presented as a fait accompli, and it is EAP’s job to secure the authorisation
Language, literacy and technical nature of documents continue to be a challenge
Competent authorities can make huge difference to way and tone in which applicants and EAPs interact with IAPs and the public

9. 3.4 Access to information: Public registers for environmental authorisations
Limited capacity for compliance monitoring (around 4%)
Empower citizens to assist authorities by making environmental authorisation (and compliance data) publicly available in an accessible form
Public registers of authorisations would:
incentivise greater voluntary disclosure by the holders of environmental authorisations (Turn on the Floodlights, 2013)
incentivise greater compliance
reduce the burden on government departments to provide records under PAIA

10. 3.5 Appropriate public expenditure on EIA
Human resources ongoing challenge: high staff turnover and vacancy rates
Add to this extremely limited DMR capacity:
In 2009: 78 positions, with 13 vacant
Allocated R59 million for 2014: Compare to R41 million spent by DEA on environmental impact management sub- programme, and R29 million on compliance monitoring and enforcement, in
Failure to resolve this puts into question South Africa’s entire commitment to sustainable development
About job level evaluation and higher remuneration, staff retention strategies, appropriate use of consultants

11. 3.6 Legislative weaknesses, and need for additional mechanisms
S.24G
Civil and administrative penalties

12. Conclusion
South African state is legally compelled by s.24 of the Constitution, and the reasonable legislative measures required under that section to ensure sufficient expertise, mechanisms and resources are available to maintain that effective and balanced EIA regime
Only issue of concern should be: how we can make EIA more effective as a tool to achieve the realisation of environmental rights?
If we could make one change happen: Dramatically increased resourcing of appropriately placed, appropriately incentivised EIA staff

13. Thank you Centre for Environmental Rights www.cer.org.zaor