Any commercial developer in South Africa will know that environmental authorisation is required for many projects and developments and should be familiar with the requirements of environmental authorisation.
The existing environmental authorization processes in South Africa have been criticised on number of grounds since their formal introduction in 1989. In particular the environmental authorization processes have been fragmented and lacking coordination between authorities. This results in inordinate delays in the approval of development projects. There are attempts to address these criticisms and cut the hassle factor of doing business in the country.
The latest intervention is the enactment of the National Environmental Management Amendmend Act 62 of 2008 (the “Amendment Act”) which was signed into law by the President on 5 January 2009 and came into effect on 1 May 2009.
The Amendment Act provides for greater coordination between authorities that evaluate environmental assessments where an activity that requires environmental authorization falls under the jurisdiction of more than one organ of state. The Amendment Act also provides for the alignment of environmental authorizations issued under the National Environmental Management Act 107 of 1998 (“NEMA”) and specific environmental management acts.
Greater Coordination between Authorities
Section 24O of NEMA inserted by the Amendment Act provides for greater coordination between authorities evaluating environmental assessments when an activity falls under the jurisdiction of more than one organ of state. Such coordination measures include:
• the possibility of the Minister of Water and Environmental Affairs (“the Minister”) concluding written agreements with other organs of state responsible for administering legislation relating to any aspect of an activity that also requires environmental authorizations under the National Environmental Management Act. The objective is to avoid duplication in the submission of information or the carrying out of a process;
• empowering the Minister where an application requires authorization in terms of other legislation, to take into account any process under that legislation where specific areas of expertise required for the process are deemed adequate for meeting the requirements of environmental authorizations under NEMA;
• introduction of integrated environmental authorizations. This gives authorities empowered under other legislation and a competent authority under NEMA, whose authorizations are both required for an activity, to jointly issue an integrated environmental authorization. Such authorization may only be issued if the provisions of both relevant Acts have been complied with;
• obligation to consult with every state department that administers a law relating to a matter that affects the environment, when considering an application for environmental authorizations.
Delay in approving the Activity in Question
In an attempt to ensure that environmental authorizations are granted without delay, section 24O requires a state department consulted by the Minister to submit any comments on the environmental authorization within 40 days of being consulted.
Alignment of Environmental authorization
Until 1 May 2009, section 24(8) of NEMA provided that “authorizations or permits obtained under any other law for an activity listed or specified in terms of this Act does not absolve the applicant from obtaining authorization under this Act.” Section 24L of NEMA inserted by the Amendment Act has changed this position.
Section 24L provides for the alignment of environmental authorization issued under NEMA or a Specific Environmental Management Act ('SEMAs") (e.g. the National Environmental Management: Protected Areas Act 57 of 2003; and the National Environmental Management: Biodiversity Act 10 of 2004). Section 24L provides that if a competent authority is empowered under NEMA to issue an environmental authorization, it may regard such authorization as sufficient basis for granting or refusing of an authorization, permit or license under a SEMA if the SEMA is also administered by that competent authority.
Section 24L is a welcome addition to the South African environmental authorization process as it makes it possible to avoid duplication of environmental authorisation. This will result in saving costs and time when applying for environmental authorisation.
Other Relevant Developments
Currently environmental authorization can only be granted after undertaking basic assessment or a full blown environmental impact assessment or if an applicant is exempt from undertaking a basic assessment or full blown assessment.
South Africa is moving away from exclusive reliance on environmental impact assessment. This is evident in section 24(5)(bA) of NEMA which empowers the Minister to promulgate regulations that lay down the procedure to be followed for the preparation, evaluation and adoption of prescribed environmental management instruments, such as environmental management frameworks; strategic environmental assessments; environmental risk assessments; environmental feasibility assessments; norms and standards; spatial development tools and any other relevant environmental management instruments that may be developed over time.
The impact of these changes remains to be seen. Further regulation may be necessary before the changes can be fully implemented but they represent a step in the right direction.
For further information on this topic please contact Claire Tucker at Bowman Gilfillan Inc telephone +27 11 669 9000 or fax +27 11 669 9001 or email firstname.lastname@example.org.