Bobby Peek
The survival of the constitutional right to a healthy environment depends on the outcome of an unprecedented battle raging through almost every ministry and department of the government.
The executive branch is debating the fate of the draft National Environmental Management Bill. Will the Bill vindicate the constitutional right to “an environment that is not harmful to their health and well-being”? Or will officers strip it of its vital components, replicating the old conservatism of laissez-faire legislation?
What will the government do to reverse the decades-long trend of Thor Chemicals, toxic waste dumps and poisoned asbestos workers? Recent indications look ominous.
The draft Bill, released for comment on July 1, grew out of an extraordinarily expansive -and expensive – consultation process. A three-year series of public conferences, costing almost R10-million, forged a consensus on environmental policy.
Resulting from this process, a White Paper was drawn up which advocated strong environmental legislation, with almost 100 pages of detailed directives. Instead of following this road map for constitutionally sound, publicly supported legislation, the government has proposed a watered-down compromise Bill.
New environmental legislation faces in today’s South Africa a substantial limitation. In many countries, a specialised agency tracks down and punishes polluters. The Environmental Protection Agency in the United States is an example.
But the desire to cut governmental costs requires a frank admission that the government will not do the job. These tasks will fall largely to the private sector.
Early versions of the Bill proposed innovative enforcement tools and meaningful public consultation. For the first time ever, a mandatory advisory council would give public input into environmental policy.
Principles of sustainable development would be binding on all government actions. Private enforcement suits to protect the environment would be insulated from adverse costs orders. Everyone would have access to environmental information.
In sum, the Bill originally fulfilled the White Paper’s vision of a powerful set of tools for civil society to safeguard a healthy environment.
Once government officials started consulting among themselves, the Bill was transformed in dramatic ways. Wherever the Bill required that the government “shall” take action, the executive rewriting allows that the action “may” be taken. The mandatory advisory committee was scrapped in favour of the possibility that the government will assemble a “forum” for the public to air its views.
Binding principles have become discretionary guidelines. The iron-clad protection against costs awards, likewise, has devolved to an optional provision. One shudders to think that officials may toss out the right to environmental information, in the hopes that the recently tabled controversial Open Democracy Bill might become law and might adequately deal with environmental information.
The Bill retains outstanding reforms, like expanding access to courts and allowing enhanced penalties against environmental criminals. These provisions must be strengthened. A step in the right direction is surely better than no step at all.
But neither should we be content to see government officials use a closed-door executive process to undermine the arduous work of public consensus building. If the provisions in the Bill are worth enacting, they should be mandatory, binding and enforceable. If we are serious about having private enforcement of the law, then we must have the tools to act aggressively and with impact.
Quite simply, this government’s first foray into the field of environmental legislation needs to be better.
Under the laws inherited from the old regime, Thor Chemicals could import toxic mercury waste in a sham recycling scheme, resulting in the poisoning of workers and the environment. The draft environmental Bill could not prevent another Thor Chemicals disaster, it could not ensure that the Thor victims will get redress, and it would not adequately deter future violations of the same kind.
Bobby Peek is the community campaigns co-ordinator for the Environmental Justice Networking Forum