Forestry, Fisheries and Environment Minister Barbara Creecy has gazetted a proposed amendment to environmental regulations that make it mandatory for any person who wants to submit environmental appeals to appoint a registered environmental assessment practitioner (EAP) to conduct the appeal.
This proposal, made on New Year’s Eve, has sparked deep concern from civil society groups, who say the intended amendment violates fundamental constitutional rights to public participation and, if implemented, stands to be legally challenged and set aside.
The amendment to section 24H of the Registration Authority Regulations under the National Environmental Management Act (Nema) describes how, “no person other than a registered EAP may perform tasks in connection with an appeal contemplated in section 43 of the Act [Nema], relating to an application, strategic environmental assessment, environmental management programme or any other appropriate environmental instrument”.
This would effectively prevent parties from preparing and submitting their own appeal and would also exclude them from being able to be legally represented in an appeal, according to Janice Tooley, an environmental attorney at the nonprofit, All Rise Attorneys for Climate and Environmental Justice.
She said that in the public interest sector, lawyers such as All Rise work pro bono to help indigent individuals and groups in appeals, often as a result of them having not been extended the opportunity to participate meaningfully in an environmental impact assessment (EIA) process.
“Should the minister’s proposed amendment come into law, this assistance to communities would no longer be possible,” said Tooley. “There cannot be a blanket rule that prohibits legal representation outright as this would impede on the procedural fairness of administrative decisions, especially where they involve complex environmental issues and have the potential for grave consequences.”
Costs will prevent most appeals
Richard Hill, a research associate at the department of environmental and geographical science at the University of Cape Town and the former registrar of the Environmental Assessment Practitioners Association of South Africa, said in his submission that he was in support of all of the proposed amendments “except the one which relates to the submission of appeals”.
“I cannot imagine that the department envisage that an interested and affected party, whether an individual, community group or an environmental or social non-governmental organisation, be required to source, negotiate a contract with and appoint a registered EAP to prepare an appeal on their behalf and then to submit this to the relevant competent authority, all within the short timelines allowed for appeals.”
Hill said the cost of commissioning a registered environmental assessment practitioner would prevent most public appeals. “Given these time and cost implications, a requirement to appoint professionals to prepare appeals would undermine the public participation principles of the Constitution, Nema and the procedures of the EIA regulations.”
If promulgated, the proposed regulations will make it impossible for civil society or their lawyers to appeal environmental authorisations granted under Nema without using the services of an environmental assessment practitioner, said the civil society collective, Unpoison, in its comments to Creecy’s department. “This restriction will raise the cost of appealing and in all likelihood deter appeals, thus discouraging public participation at a critical stage in the environmental authorisation process under Section 24 of Nema.”
The “chilling effect” of the increased cost of participation will negatively affect poor people disproportionately, who bear the brunt of bad decision-making in environmental management, and who will not be able to absorb the additional cost of employing environmental assessment practitioners to make their appeals, it said.
“Where will a rural community, for example, find an EAP willing to work pro bono for the community? By restricting the categories of those able to represent communities, the regulations severely curtail community groups’ capacity to participate in environmental decision-making,” said Unpoison. “The department should be making it easier for communities, particularly marginalised communities, to participate rather than placing obstacles in their path.”
The timing, too, is problematic because of “the date of issue not only being in the middle of year end holidays but of all dates … New Year’s Eve when everyone is distracted.” This alone, it said, is “an attempt to limit” public participation in a process of fundamental importance, affecting the right to fair administrative justice regarding environmental management. The deadline for public comments was 31 January.
Mariette Liefferink, the chief executive of the Federation for a Sustainable Environment, said in her submission that the rationale behind the proposed amendment is to “disallow” parties, unless represented by a registered environmental assessment practitioner, to appeal an environmental authorisation (EA).
“The current public participation process allows for interested and affected parties to appeal an EA and if an appeal is dismissed, to have the right to a judicial review of the decision by the minister. It logically follows that if affected parties do not have the capacity to appeal an EA or if the requirements to appeal an EA are too onerous, it will automatically sterilise interested and affected parties’ right to a judicial review,” said Liefferink.
A significant benefit of the provision of an internal appeal is that it is more expeditious and cost-effective than litigation. “The proposed amendment will nullify this benefit,” she said.
Lifferink said it was imperative that parties be allowed to submit appeals without being encumbered by the proposed amendment, “that is, to appoint EAPs at considerable costs to prepare and submit appeals. Environmental justice and equity cannot be compromised by such cumbersome and onerous processes when our environment and its associated resources such as water are under as much pressure as it is.”
A step backwards
Jenny Hall, a senior lecturer in the faculty of law at the University of Johannesburg, said in her comments that, read together with other provisions of Nema and the specific environmental management Acts, the public has had the right to participate in environmental decisions for about 20 years.
“The proposal … regarding appeals represents an enormous intrusion and encroachment on this right and … a step backwards for democratic environmental governance and is incompatible with the objectives of Nema”, said Hall. In effect it reserves the right to appeal for a privileged few and excludes the majority of the population from exercising their right. “This is contrary to the history and approach of Nema.”
Unpoison noted in its submission how many comments submitted by civil society to defend environmental and social justice are responses to EIA documentation, prepared and submitted by environmental assessment practitioners for environmental authorisation.
“This alone is reason for grave concern. EAPs are dependent on applicants for environmental authorisation (such as mines, developments, industrial plants etc) for their income so may well be reluctant to present the views of civil society members, who in many instances, oppose and raise criticisms against such projects.”
Environmental justice is integral to justice in general and to the realisation of rights, said Bobby Peek, of groundWork, in its submission. “The environment right in [the] Constitution gives people the right to ‘an environment that is not harmful to their health or well-being’ and mandates development that is ‘ecologically sustainable’.
“It must be read with other rights: the right to equality means that black and poor people should not bear the brunt of pollution while rights relating to participation, including rights to information and participation, mean they may not be excluded from decision making. These proposed amendments do just that, they exclude people from key decision-making processes.”
Leslie London, the chairperson of public health medicine at the University of Cape Town, said in his comments that there is no rationale provided for the changes proposed. “The idea that civil society groups should have to pay for services to enable their participation, a very likely consequence of this amendment, must surely be a development that will fall foul of constitutional review.”
Tooley’s submission said the many perceived ambiguities and inconsistencies that will be created by the intended amendments, if published into law, “will, at the very least, make for messy implementation, not to mention possible legal challenges. Unless substantially redrafted to address the concerns raised, the proposed regulations stand to be challenged and set aside as unlawful and unconstitutional.”
‘Minister won’t limit public participation’
Albi Modise, the spokesperson for the department, said Creecy and the department are considering all the comments received from the public consultation process. “The publication on 31 December 2021 was due to unexpected delays in administrative processes and therefore comments received until 21 February 2022 will still be considered.”
He said in respect to the fear that the amendments will bar civil society from engaging professional legal assistance, “we understand comments to relate to the proposed inclusion of appeals in the section 24H regulations”.
“The intention with the inclusion of the provision is to ensure that officials or
consultants that advise the minister or MECs on appeals fall within the scope of the regulations and need to be registered. However, this would not enter into force immediately. The minister does not intend to prevent or limit the opportunity for any person to appeal or to obtain any legal assistance of persons that are not registered EAPs.”