The thin green line

Development and the environment have always been reluctant friends and natural enemies. In the past development often trumped environment, and fauna and flora were thrown on the dump, together with the building waste. Environmental consciousness was the exception and not the rule.

But with the ‘new South Africa” in the 1990s came new rules, including legislation that forced developers to consider the environment more carefully in designing a project. The new constitution required an environmental impact assessment (EIA) to be done before any development could be approved.

In 1998 the Department of Environmental Affairs and Tourism published an application procedure companies had to follow when conducting an EIA.

The procedure has become a thorn in the side of many developers. EIAs are expensive and the independent consultants required to do the environmental impact report do not come cheap. The EIA processes, such as public participation, also require capital and companies can run up quite a bill.

And when the final decision, known as the record of decision, is made by the regulatory environmental authority, the developer can end up with a set of conditions that can severely hamper the project.

But the EIA process has helped to block out unscrupulous developers with no regard for the environment and only an eye on hard cash. Environmentalists finally have a tool to keep developers in check and to make sure that development is sustainable.

Rubber stamp?

Cynics say an EIA is little more than a rubber stamp, or a last hurdle that a developer has to cross before he can start his development. Is this true?

Jenine Botha, environmental manager at the South Africa National Road Association (Sanral), says an EIA has to be taken very seriously. ‘And you have to be thorough and above board. Our projects are constantly monitored by environmental organisations and if you make one wrong decision, it can affect your project.”

Sanral is no stranger to balancing development and the environment. Its project to build a tollroad through Pondoland has come under a lot of fire, mainly because the road will cut through one of the most pristine areas in South Africa.

But the project will also bring much-needed development to one of the country’s poorest regions. An important part of the Pondoland EIA has been to balance the impact on the environment against those of development.

Botha says Sanral investigated all options during the EIA, and exhausted all alternatives. ‘In building this road we will not compromise on the environment in any way,” she says.

Though the Pondoland tollroad is the most public of Sanral’s projects, the roads agency deals with environmental impacts on a daily basis when planning new roads.

When the EIA for the N4 ‘platinum” highway was done, the appointed independent consultants found that the ‘near threatened” African bullfrog may be present in the Onderstepoort wetland, which would be traversed by the new section of the highway going to Rustenburg.

The consultants were concerned about the vulnerability of the bullfrog’s breeding habitat and behaviour. Because the entire breeding population emerges at the same time, and because they migrate to and fro from the breeding ground, ‘it was feared that having a road close to their breeding ground would put them at risk”, Botha explains.

The bullfrogs are shy and not many have been spotted in the area, but the possibility that the threatened frog species might be there compelled the developers to build a ‘frog fence” to restrict any migration of bullfrogs on to or across the road.

When developing a project, applicants have to show that they were flexible and considered all options. They have to show that they examined other sites and alternatives to find the best solution for the project.

Called mitigation, this important part of the EIA seeks to find better ways of doing things, to minimise or eliminate negative impacts, enhance project benefits and protect public and individual rights to compensation.

Mitigation options include alternative ways of meeting the projected needs, changes in planning and design, improving monitoring and management, monetary compensation and the replacement of wetlands, for example, by constructing other wetlands.

Matter of authority

For normal projects the authority that approves the EIA and issues a record of decision is usually the provincial authority, which in turn can designate a local authority to rule on the EIA. Certain circumstances, however, compel the national Department of Environmental Affairs and Tourism (Deat) to make the final decision,

Deat will issue a record of decision where the activity concerned has direct implications for South Africa’s national environmental policy or international commitments. It will also rule where the environment under threat is demarcated as an area of national or international importance. If the proposed activity has the potential to affect the environment across the borders of two or more provinces, Deat will also manage the record of decision.

The Minister of Environmental Affairs and Tourism and the relevant authority may also jointly decide that an application should be considered by the minister. Where a national government department is the applicant, Deat will have the final say on the project.

The relevant authority is consulted for submitting the plan of study for scoping; accepting the scoping report; considering the application on the information contained in the scoping report; accepting the plan of study for EIA; reviewing the compliance of the environmental impact report; and final consideration of application. Lastly, the authority will issue a record of decision.

Forums for appeal

Botha says none of Sanral’s projects has ever been turned down. But that does not mean developers have carte blanche, even if their projects get the stamp of approval. ‘Your project is usually approved with a lengthy sets of conditions and recommendations that you have to adhere to.” The conditions of the authorisation, including measures to mitigate, control or manage environmental impacts or to rehabilitate the environment, are stipulated in the record of decision. It is very rare for a record of decision to be made without a set of conditions accompanying it.

Last year in June Deat approved the EIA of the planned pebble-bed modular reactor (PBMR) at the Koeberg nuclear plant. The record of decision has a list of conditions which includes that there must be a nuclear waste policy in place before the PBMR construction can begin, as well as a decommissioning plan and long-term management of high-level waste and spent fuel.

But the record of decision is not the end of the road for parties that oppose a project. Parties that are unhappy with the decision have a 30-day period in which to appeal against it.

They can also go to the High Court, as the NGO Earthlife has done in opposition to the PBMR plans. In September last year the NGO launched an application in the Cape Town High Court, seeking to review and set aside Deat’s record of decision on the PBMR.

Earthlife is challenging the EIA authorisation, because it believes the director general of Deat ‘made his decision in a procedurally unfair manner”.

Says Liz McDaid, spokesperson for Earthlife Africa (Cape Town): ‘ We have repeatedly tried to get to the department to listen to us over the past year, asserting that our consti- tutional right to be heard has been violated. Unfortunately, the department refused to listen and went ahead and granted the PBMR approval.”

Earthlife says in court papers its ability to participate in the EIA process was inhibited by the fact that it was refused access to information on the economic and technical feasibility of the project, and was denied access to a feasibility review conducted by a panel of international experts. It claims it was also refused access to critical information dealing with the safety of ‘this untested nuclear technology”.

Blowing the whistle

The Wildlife and Environment Society of South Africa (Wessa) is threatening court action if the N2 tollroad project in Pondoland goes ahead. The project was approved by Deat last December and interested parties are now waiting for the final record of decision from the new Minister of Environmental Affairs and Tourism, Marthinus van Schalkwyk, after several appeals were lodged during the 30-day appeals period.

Wessa says a faulty environmental impact study on the secondary consequences for the environment between Port Edward and Lusikisiki was done. The organisation has also raised issues around the impartiality of consultants involved in the project.

The Pondoland road project came under fire when it emerged that one of the proposed developers in the controversial N2 toll road project was also a shareholder in the company which conducted the EIA. Rufus Maruma, the chairperson and founder of Bohlweki Environmental (the consulting firm appointed to do the EIA) sits on the board of Stewart Scott International, one of the five companies that is tendering for the project.

Nazir Alli, director of Sanral, dismisses the allegation: ‘It is impossible to cheat the process. One individual cannot influence the outcome of an EIA. There are just too many experts that are required to do the EIA thoroughly. If you question the EIA report, you have to question every single expert that wrote an opinion in that report.”

In theory, the applicant seeking approval from Deat for a project has to appoint independent consultants that should not have financial or any other interests in the undertaking of the proposed project.

While working for an applicant, consultants may not work for any relevant authority in respect of the same application. The consultants must declare their independence in an official form that states they have no vested interests in the proposed project.

While a company like Bohlweki is contracted to do an EIA for Sanral, the consultants in turn appoint experts to handle the public participation process, botanical studies and other specialised studies such as ornithology. In the end the consultants compile a report out of the experts’ findings and views that they present to the relevant authority.

It is possible that independent consultants will write up a favourable report even when everything is not hunky dory, but it is difficult – and when it comes to big projects, with watchdogs like Wessa around, it is likely that the whistle will be blown.

Bribery and corruption

How easy is it to interfere in the record of decision made by the provincial or national department?

Former Western Cape provincial MEC for environmental affairs and planning, David Malatsi, illustrated that it might be easier than everyone thought. For a few thousand rand, it seemed you could easily get approval for a development in the Western Cape while he was at the helm.

Even Malatsi, however, was caught out. He is currently on trial, together with Peter Marais, the former premier of the Western Cape, on charges of corruption and fraud relating to a total of R400 000 paid to the New National Party (NNP) in 2002 by the developer of Plettenberg Bay’s Roodefontein golf estate, Italian count Riccardo Agusta.

Malatsi allegedly approved the EIA for the Roodefontein development after soliciting the bribe from Agusta. The count concluded a plea bargain this year with the Scorpions, in which he agreed to pay a R1-million fine for breaching the Corruption Act. He admitted that he made the donation to the NNP, but said he had hoped in this way to ‘promote” the province’s approval of the R500-million Roodefontein project. ‘I was unaware that this constituted bribery,” he said.

Agusta paid R300 000 on April 18 2002 into the NNP’s bank account and another R100 000 into a secret account later in the month. On April 19 2002, Malatsi approved the Roodefontein EIA. The province officially approved the whole project on May 6 of that year.

So far it has come to light in the trial that provincial officials were not content to approve Roodefontein’s environmental impact report. Steve du Toit, the environmental officer from the provincial department of environment affairs and planning who handled the Roodefontein development application, said though he believed the independent consultants hired had tried their best to produce a correct environmental impact report, three independent reviewers showed that ‘the contents of the report they submitted were biased”.

Malatsi instructed Ingrid Coetzee, a senior official in his provincial administration, to approve Roodefontein after Agusta had paid up. But she refused the instruction, stating that she had serious misgivings about the report. After her refusal, Malatsi withdrew her delegated powers to approve reports with immediate effect.

Coetzee was worried about the project from the start. She corresponded with the developers in early 2002, informing them that they did not conform even to the minimum requirements. But despite her reservations, the project was approved.

Wessa was lurking around the corner. The organisation’s Western Cape regional manager, Andy Gubb, said he suspected all was not well with the project after suddenly hearing it had been approved.

‘Wessa knew something was seriously wrong,” he told the Mail & Guardian newspaper at the time. ‘That permission could not possibly have been given in a legal manner. We had legitimate concerns about water.”

Wessa appealed Malatsi’s record of decision, but the MEC did not budge. Wessa had raised such a stink, though, that the NNP administration in Cape Town could not ignore the irregularities in Plettenberg Bay anymore.

Malatsi had by then moved on to a different ministry. His day of reckoning arrived at the end of 2002 when his successor, Johan Gelderblom, issued a statement that Malatsi had been suspended from his new position pending an investigation into his term as MEC for environmental affairs and planning. Gelderblom announced that the Roodefontein record of decision would be reviewed.

The investigation opened a can of worms that Wessa claimed was only the tip of the iceberg. Huge question marks now hang over other developments Malatsi approved.

In July last year, a controversial housing development on the banks of the Gouritz River, approved in 2002 by Malatsi, was temporarily stopped by a Cape High Court order. This development’s EIA process is also under investigation.

Independent consultants, appointed by the City of Cape Town, have also found the Big Bay development in Blaauwberg Strand approved by Malatsi to be suspect. The Argus newspaper reported ‘extreme pressure” was applied to officials to approve the Big Bay development, ‘despite the serious concerns of the provincial environmental department”.

A touch of speed

Says Gubb: ‘Even though the whole [Roodefontein EIA] process has to start from the beginning again, it appears that the ‘thin green line’ we represent is getting thinner and thinner. Typically, watchdog bodies like Wessa work with volunteers and very limited resources.

‘Developers have unlimited resources. The Roodefontein development alone is worth R750-million. No environmental NGO has the resources to take on a Roodefontein-type case on a frequent basis, and yet such cases abound.”

One of Agusta’s defences was that he handed over the cash because the approval of the EIA took too long and he was hoping to speed up the process with his ‘donation”. The EIA process can be complicated and lengthy, and requires a lot of bureaucratic input. Often at the provincial offices a bottleneck occurs, because of the time and attention needed to properly review the applications.

One of Sanral’s projects has taken four years to get a record of decision from the minister. With Van Schalkwyk only settling in to his new post, Sanral might have to wait another year for the N2 tollroad project to get the minister’s final decision. The minister has to consider appeals, and familiarise himself with the different projects, before he can apply his mind properly.

Deat has recognised that these delays can be problematic, and the department is investigating new ways to speed up EIAs. New legislation up for approval during Van Schalkwyk’s term will probably address the slow process. Also the new minister will in future have a panel of experts to help him make his final decision. This panel is in the process of being finalised.

A dummy’s guide to EIAs

A. FIRST STEPS

1. Pre-application consultation

First a pre-application consultation between the relevant authority and the applicant takes place. The applicant tells the relevant authority what his plans are.

2. Submit application to relevant authority

The application is registered by the authority at this stage. This is to facilitate public access to information about the proposed project. In order to ensure that all interested parties are afforded an opportunity to comment on development, project applications must be publicly advertised.

B. SCOPING REPORT

1. Submission of plan for study scoping

After the application, the relevant authority may request a plan of study for scoping. This plan must include a description of activity and the proposed location on a map at an appropriate scale. A description of all tasks to be performed during scoping is also dealt with in this report. Possible alternatives for the project can also be included.

2. Authority review

The plan of study for scoping must be submitted to the relevant authority for review before the applicant is required to submit a scoping report. Authority review at this stage determines whether the procedure followed thus far is adequate to continue.

3. Do a scoping report

After the plan of study for scoping has been accepted by the relevant authority, the applicant and/or consultant will be requested to submit a scoping report.

A scoping report must contain: a brief project description; a brief description of how the environment may be affected; a description of environmental issues identified; a description of all alternatives identified; and a description of the public participation process.

4. Review of scoping report

The scoping report must be reviewed by the interested parties (the public), by specialists and all the relevant authorities.

Authority review in this regard should determine whether: