Subtheme 4: Compliance and Enforcement
* Angela Andrews of the Legal Resource Centre compiled this summary of the Specialist Report.
The following constitutes a summary of a report written by consultants to the EIAMS process and does not reflect the views of the Legal Resources Centre.
Original Report by SE Solutions (Pty) Ltd: Sean O’Beirne
There is not enough monitoring or enforcement of activities affecting the environment.
NEMA provides for various ways the State can watch for environmental violations and impose penalties, but Section 48 gives any government office immunity from criminal prosecution for violations of environmental laws. This includes state-owned companies (such as Eskom, Johannesburg Water, PetroSA) that are involved in many activities affecting the environment.
At the DEA, there is a Compliance Monitoring Group that identifies activities in violation of the law and an Enforcement Panel that issues warning letters and decides on prosecution and investigations. In deciding on the appropriate action, the panel follows clear guidelines and considers factors such as the immediacy of the threat.
1. Too much focus on authorisation: Currently, the EIA process is heavily focused on the beginning stages of a project, when uncertainty about how the project will turn out is greatest. After the activity is authorised, there is no mechanism for reviewing whether the basis of the authorisation was valid or what to do if the impact on the environment is different from the EIA’s predictions.
2. EIA has become too bureaucratic: The EIA has become about ticking boxes rather than quality assessment.
3. Lack of verification and monitoring: A project’s actual environmental impacts often do not match up to its estimated impacts in the EIA, and there is no way to address the impacts that have turned out differently from the EIA’s predictions. In addition, after an activity has been authorised, there is little monitoring to make sure the activity complies with the conditions in the authorisation. Environmental Monitoring Committees (EMCs) are ineffective.
4. Slow enforcement: Even where permit or authorisation violations are reported, enforcement is slow and violations often go unpunished. There is no organized method for responding to violations and beginning enforcement actions.
5. Lack of coordination among authorities: There is no method of referring environmental violations to other relevant government departments (for example, referring a contaminated water problem to Department of Water Affairs instead of the DEA).
6. Ineffective public participation: Public participation is seen to be merely token after a project has been authorised, even though sometimes there are more opportunities for public input after authorisation than during the EIA.
7. Vague EMPs: Environmental management plans (EMPs – plans to make sure an activity complies with environmental laws) do not have clear performance criteria, making it hard to measure violations. It is also unclear how to implement an EMP, and many developers view the EMP as a guideline rather than as law.
8. Vague information in general: The environmental status of activities is reported vaguely, making it difficult for civil society and the public to know if an activity is violating a law or whether it is being adequately monitored.
9. Lack of clear targets and baselines: There are no uniform indicators to measure compliance across different activities consistently.
10. Immunity from prosecution: Government and state-owned businesses are exempt from prosecution for environmental violations.
11. Mining outside of DEA’s control: Mining is regulated by the Department of Minerals, which has an interest in promoting mining. There is also disagreement over whether certain activities associated with mining need to comply with just the mineral law or with both the mineral law (MPRDA) and the general environmental law (NEMA).
12. Lack of capacity: Currently there are not enough resources and expertise to effectively monitor all activities.
13. Poor quality authorisations: Authorisations themselves are sometimes vague and contradictory, making it difficult to know how to comply.
1. Improve EMPs: EMPs should contain the general environmental management principles for the project and detail how to minimize impacts, how to link the environmental goals to the construction stages of the project, and how to monitor and measure performance.
2. Set clear performance criteria and baselines: The focus should be on environmental outcomes, not inputs. The criteria should measure not just environmental quality but also how effectively environmental management tools were implemented, so that it is clear whether poor performance is due to a bad plan or bad implementation of the plan.
3. Improve reporting and information flow: Authorisations should include clear reporting requirements on the developer, with penalties for failing to report adequately. This puts more responsibility on the developers themselves to identify and fix violations of environmental regulations.
4. De-bureaucratise EIA: EIAs should be reviewed by independent experts rather than government officials because government officials often lack the expertise and cannot be expected to become experts on many different environmental topics. This would allow government officials to focus on making the actual decisions, monitoring the activity, and taking enforcement action.
5. Improve quality of authorisations: Project authorisations should include clear performance criteria and reporting requirements.
6. Increased transparency of environmental management: Performance criteria should be clearer and readily accessible, so that violations, lack of enforcement, and political interference are much more obvious.
7. Improve provincial and local capacity: Both number of staff and skills training for environmental monitoring and enforcement must be increased at the provincial and local levels.
8. Environmental regulation of mining: The current situation, where the Department of Minerals is in charge of mining, is unacceptable. Changing the situation is complicated, highly political, and requires amending existing laws, but the DEA should commit to the view that mining should be regulated from the environmental point of view.