The Custodian Project

Four years ago the Department of Environmental Affairs commissioned a review of the instrument primarily used to give environmental authorisation to development activities – the Environmental Impact Assessment (EIA).

by Mercia Komen Updated 8 March 2011

EIA had been in use in South Africa for ten years, and various criticisms had been levelled against the instrument, including that it is an ineffective and inefficient process.  The work on a Strategy for Environmental Impact Managment has commenced, and feedback on the strategy is available on this website.  You are invited to add comment which will be directed to the appropriate "champion" of the various themes for the strategy.

The Ten Year Review  focussed on assessing whether the instrument meets the objectives and fulfils the purpose as conceived in legislation, and also whether the time and money invested in the process resulted in a commensurate return.

The review concluded that EIA is overall relatively efficient, and could be more so if some activities were managed through other suitable instruments.  Also, EIA was regarded as only marginally effective.

At the heart of environmental authorisation is the intention to implement sustainable development.  The phrase is often used, and sweeping statements about sustainability are commonly made; seldom is there pause to consider exactly what is meant by sustainable development and how it can be implemented.

If development is to be sustainable, negative effects on the environment should be avoided. Sometimes a development is critical for other, broader needs to be met, and the development has to be situated where the impact on the environment is adverse.  South African legislation allows the development to be authorised provided the impact on the environment is minimised and there is remediation of the impact.

This provision calls for innovation and creative solutions to ensure the environment can recover and/or the impacts are minimal.
Sustainable development also requires avoiding biodiversity loss, ecosystem disturbance, degradation of the environment, pollution and waste.  Where natural resources are extracted or harvested, the law require the ecological integrity be maintained, and that the use of resources is equitable.  Two principles also apply: society does not carry the cost for pollution, the polluter pays; and where knowledge or understanding is limited, a risk-averse approach and caution must prevail.

Looking at increasing pollution, massive landfills, degradation of the environment and the worsening quality and quantity of water, developments authorised and conducted in South African tend not to be sustainable.  There is very little evidence of innovation and the "green economy" has yet to become mainstream and flourish.

A decade of failing to meet sustainable development criteria has exacerbated the degradation of the environment and the loss of biodiversity.  A new approach to assess environmental impact in an effective and efficient manner is needed.  But the assessment is only the first crucial step - the management of environmental impact, from authorisation and through the lifecycle of the development, is vital.

Taking a step in the right direction

The review of EIA culminated with the Ten Year of EIA in South Africa Conference.  The conference received the review’s findings, and a new vision for Environmental Impact Assessment and Management was formulated.  A structure was put in place to provide a strategy for the future.
The structure comprises a steering committee, working committees, an advisory committee and project team.

These groups commenced in March 2010 with the task of defining the steps necessary to reach sustainable development and integrated environmental management. 
Integrated environmental management aspires to ensuring, among other objectives, environmental justice, environmental awareness and education, the protection of the environment as people’s common heritage, and co-ordination and harmonisation of policies, legislation and actions which relate to the environment.

The task of the task team and steering committee is complex and far-reaching, and is being tackled along three core themes:

•    Governance and Administration
•    Capacity, Skills & Transformation
•    Impacts and Instruments

The Steering Committee is comprised of representatives from various sectors, including business, organs of State, academia, the legal fraternity and civil society.  All members on the Steering Committee work as volunteers, both at the steering committee and on sub-theme task teams.  These teams are convened to address specific aspect of the strategy, and fill investigate status quo, and developed recommendation for the future.

The teams comprise:
Governance and Administration:
Procedures and Organisational Structures
Knowledge and Information
Public Participation
Monitoring and Enforcement
Quality assurance and Independence of Environmental Assessment Practitioners (EAPs)

Capacity, Skills & Transformation:
Representative demographics within service providers and civil society
Empowerment of marginalized communities
Skills of EAPS and Government Officials 

Impacts and Instruments:
Existing and new Environmental Impact Management Tools
Co-operative Governance:  EIAM tools
Quality Management: EIAM Tools

While there is a limited budget for specific specialist input, the Department of Environmental Affairs has purposefully initiated a collaborative effort.  This allows for people, organisations and institutions with relevant experience to engage with the committee and task teams.  It is anticipated that from the experiences with EIA will flow ideas, constructs and innovation.

EDITOR's NOTE: A  discussion forum has been enabled on the DEA’s website.  Additionally, consultants, NGO’s and specialists may volunteer to contribute to any of the study areas beyond commentary.   The Steering Committee invites studies and reports.  The first set of investigations will commence early October, with delivery of findings for comment in January 2011.  [The findings are being presented in the last week of March 2011.  There were delays in the appointment of the specialists.]

What follows is an extract from the Executive Summary of the 2006 Review on the Effectiveness and Efficiency of the Environmental Impact Assessment (EIA) process in South Africa.

This year marks the tenth year of formalised Environmental Impact Assessment (EIA) in South Africa. It is therefore appropriate at this point in time to review the effectiveness and efficiency of this important instrument.

The Department of Environmental Affairs and Tourism (DEAT) initiated this study in 2007 to assess the effectiveness and efficiency of regulated EIA since its implementation in 1997.

The study comprised of the evaluation of a selection of case files (502); the utilisation of a general questionnaire to solicit the views of a wide range of stakeholders; the evaluation of existing statistical information held by the authorities and evaluation of other environmental management instruments. Finally, South Africa’s EIA system has been compared with that of other countries where similar effectiveness review exercises have been undertaken.

Effectiveness is measured through assessing the ability of EIA to serve its purpose and meet the objectives set for it.

Efficiency will be measured considering the time implications of the EIA system.

The time the EIA process takes is the most important aspect of efficiency as it is under constant scrutiny and attack from applicants. The monetary cost of EIA is also important.

The primary purpose of EIA in South Africa is to serve as a key implementing instrument in ensuring sustainable development. In order to achieve this, the objective of EIA is to anticipate and avoid, minimise or mitigate (including offset) significant negative impacts on the environment.

The criteria used to evaluate the efficiency and effectiveness of EIA processes:

Category 1: Substantive (outcomes) criteria:

• Extent to which negative impacts were avoided or minimised;
• extent to which positive impacts were maximised;
• extent of contribution to sustainable development;
• extent of contribution to environmental policy objectives.

Category 2: Procedural (processes and products) criteria:

• Extent to which legal procedures were followed correctly;
• quality of the EIA report;
• quality of the authority evaluation;
• quality of decision-making and setting of conditions;
• extent of compliance monitoring and enforcement;

Category 3: Execution (efficient use of time1) criteria:

• Time it takes to produce EIA applications and documents; and
• time it takes to evaluate EIA applications and documents.

Note that 502 cases were evaluated.

The following questionnaires were developed to evaluate different perceptions. Sadly the response to the questionnaires was poor.

• An officials questionnaire;
• a practitioners questionnaire;
• an applicants questionnaire; and
• a stakeholders questionnaire.

• The average time it took to complete an EIA process from start to finish was 284 days.
• The average time it took to compile an EIA document and application was 147 days.
• On average authorities took 158 days to evaluate the EIA documents and to reach a decision.
• The longest a process took was 2744 days and the longest it took to compile an EIA document and application was 2401 days, while the longest it took to evaluate and decide on an application was 1128 days.
• The trends are heavily influenced by a minority of applications that take much longer than the rest.

Views expressed

The prominent views from various sources are collated and included in the report.

The themes are:

• The importance of adequate resources and capacity in government to improve effectiveness and ensure efficiency in the EIA system
• Concerns regarding political interference with EIA administration and the perceived lack of political will and commitment in terms of environmental management
• Making the EIA system more effective, including views and suggestions around:

• Governance and co-operative government
• Utilisation of other instruments in combination with or in stead of EIA
• Utilisation of strategic instruments and spatial planning to establish the context for EIA
• Appropriateness of the current system for a developing country
• The bureaucracy of EIA
• Scope of EIA and mandates of environmental authorities
• Cumulative impacts
• Alternatives

• Sustainable development, biodiversity considerations and the NEMA principles
• Making the EIA system more efficient
• The cost implications of EIA; and
• Conditions of authorisation, compliance monitoring and enforcement.

Trends

The following trends are perceived to be prevalent:

• EIA processes generally serve to motivate activities rather than assess whether or not activities should be permitted;
• EIA processes tend to generate mitigation measures rather than assess whether or not activities should be permitted;
• Competent authorities are relatively consistent in making decisions.

Concerns

The following serious concerns have been expressed:

• Corruption within certain ompetent authorities;
• Undue influence of politicians by applicants/proponents
• Undue influence of junior to middle management officials by NGO’s

Contextual Problems

The biggest single issue that affects the effectiveness of EIA negatively in South Africa is that it is often executed without taking sufficient account of the broader context within which the application occurs. This means that while EIA processes may get all the boxes ticked, it often fails to make a real contribution to the quality of the decision that is made in the context of the specific area or sector within which it is made.

Contribution of EIA to sustainable development

There is general ignorance amongst both officials and practitioners in respect to the sustainable development purpose of EIA. Sustainable development is seldom reflected deliberately and comprehensively in EIA documents.
The biodiversity conservation imperative that is set by NEMA as a cornerstone of sustainable development is also usually not adequately reflected in EIA processes, specially in how the local site specific issues impact on the broader biodiversity context.

Consideration of case law

Case law is rarely considered in making decisions.

There is a large degree of consensus amongst those that responded to the general questionnaires that the following would make EIA more effective:

(a) In terms of the purpose and objectives of EIA:

• The purpose and objectives of EIA should be clarified and stated in clearer terms to ensure that there is only one national interpretation of what it means;
• The establishment of the desirability of an activity in terms of its scale and nature within its broader locality context is important and activities should go through early screening processes to ensure compatibility with plans, standards and guidelines, prior to assessment of impacts and alternatives;

(b) In terms of the scope of environmental impact assessment processes:

• the scope of the EIA should be determined by the sensitivity of environment and not necessarily by the nature of the activity;
• EIA processes for activities that are small in scope and that occur in environments that are not sensitive should be limited to completing forms, supported by specialist information where needed;
• alternatives should consider and be appropriate to the broader context of the activity;

(c) In terms of the identification and consideration of alternatives

• the identification and assessment of feasible and reasonable alternatives should be mandatory
• the assessment of alternatives should be targeted towards improving proposals to the maximum extent possible and not limited to static comparative assessments of a preferred alternative to bogus unpractical options;
• neither the competent authority, the independent practitioner or the applicant should be allowed the discretion to identify alternatives on their own;

(d) In terms of cumulative impacts:

• every EIA process must address cumulative impacts; and should not be limited to indirect impacts of activities on off-site environmental/service resources that can be measured;
• the concept of cumulative impacts should be better integrated into the EIA process;

(e) In terms of preventing significant impacts and environmental degradation:

• less activities that have significant unmitigated residual impacts should be authorised;
• more inspections should be done to check that conditions of authorisation are met;

(f) In terms of governance, capacity and quality:

• the EIA process should be integrated more closely with other licensing or authorisation processes;
• EIA processes should focus more on ensuring sustainable development than on administration;
• the capacity in terms of qualifications, experience and numbers of staff of competent authorities should be improved;
• the capacity in terms of qualification and experience of environmental practitioners should be improved;
• inappropriate "cut and paste" of work of practitioners should be rooted out; and
• prevent interference by applicant/proponents in the assessment process which often undermines the independence of practitioners and prevents the objective evaluation of EIA by officials.

• Increase staff and prevent high staff turnover through better compensation;
• The current application format is efficient and should remain as it provided consistency and certainty in respect to the requirements of the competent authority;
• Other authorities must be forced to provide their comments and inputs within certain time periods to prevent unreasonable delays;
• Practitioners should involve authorities that will be required to provide inputs early in the EIA process;
• Other government processes, and the DFA process in particular, undermine and conflict with the EIA process and should be addressed at the appropriate level; and
• Professional registration of professionals working in the EIA field will greatly increase the quality of EIA’s.

Requirements to ensure sustainable development

While sustainable development may be achieved in an ad hoc way in a significant number of cases subjected to EIA, the lack of focus on sustainable development in the EIA process has to be changed

• A stronger emphasis on indirect and cumulative impacts in Environmental Impact Management
• A focus on informing policies, programmes and plans for the areas within which EIAs are undertaken
• A stronger emphasis on the elements that underpins sustainable development

Strategic approach

Activities for which EIAs are being undertaken are more or less regarded on the same level. To establish a better perspective of relative strategic importance of projects and environmental aspects it is recommended that:

• Activities be categorised in terms of their strategic importance (including the inevitability of certain projects in terms of providing the infrastructure needs);
• Environments be categorised through the identification of geographical areas in terms of sections 24(2)(a) and (b) of NEMA and the formulation of EMFs in local areas that are under specific and severe pressure of development;
• Specific appropriate approaches be developed for specific circumstances to ensure effective and efficient environmental impact management (e.g. not perform an EIA in some circumstances);
• The formulation of specific policies, targets or thresholds for specified development activities in certain sensitive areas; and
• Setting institutional requirements to ensure that strategic approaches are implemented in the most efficient manner by officials.

Package of instruments

The improvement of EIAs will depend on the ability of government to create the context i.e. mainstreaming of environmental objectives and targets in the policies of all government departments.
The use of Strategic Environment Assessments (SEA) to create the required context.
The products to result from SEA exercises should be specified in detail to ensure that they result in practical outcomes.
A hierarchy of instruments should be developed and agreed to. These instruments should compliment and supplement each other in a comprehensive system and logical and efficient pathways for specific activities or activities in identified sensitive areas should be created.

A better screening mechanism

Emphasis should be on the development of a better screening mechanism that places a stronger focus on activities with the potential to have significant impacts on the environment.

As a start the provisions of sections 24(2)(a) and (b) of NEMA should be implemented nationwide. An early “check” of sites for sensitive elements by specialists, before any assessments are done should also be considered.

A holistic approach

Despite the problems of responsibilities allocated to the different spheres of government, there should be a drive to formulate a holistic approach from strategic and policy level to project level, taking strategic needs into account.

The Role of SEA in SDFs

Enhance the role of Strategic Environmental Assessment (SEA) in the development of Spatial Development Frameworks (SDF). These spatial planning instruments can play a very important role in the avoidance of unnecessary impacts at especially local level. They should discourage applications in areas that are unsuitable. This assumes that SDFs are implemented and adhered to when decisions are taken on development applications by all authorities.

Compliance monitoring and enforcement

Compliance monitoring and enforcement of EMPs and conditions of authorisation require urgent attention. This is the one area where current EIA is not effective or efficient

Delegation of decision-making

In many instances, especially where there are EMFs or other guidelines in place, it should be possible to delegate the authorisation of smaller activities to middle management without much risk.

Human resource development

A concerted effort that involves all role players is required to create a sustainable flow of environmental managers in a way that creates capacity at all levels and also ensure career paths for employees

The overall effectiveness of EIA in South Africa in meeting the requirements in terms of NEMA, is marginal at best. The interpretation of the regulations also varies significantly from authority to authority and it is doubtful that the “one size fits all” approach to EIA that has generally been adopted in South
Africa can ever be implemented effectively across all authorities.

Efficiency of EIA in South Africa

The EIA process in South Africa is implemented relatively efficiently if one considers the average time it takes to produce and evaluate EIAs. A relatively small number of EIA’s however take much longer than the average and skews the graphs above the average

It is important to eliminate activities from the EIA process that can be equally well managed through other instruments.

Consideration should also be given to the circumstances of each authority and the factors that may place constraints on meeting deadlines.

Cost of the EIA

Poor persons, small businesses, entrepreneurs and communities however often cannot afford the EIA process and consider it as a hurdle to their ability to enter the development market or to become economically active. This issue must be addressed and ways to render assistance to these smaller players must be explored