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Environmental Impact Assessment (EIA)

Author: Dina Townsend -Centre for Environmental Rights (CER).

( Article Type: Opinion )

AN INTRODUCTION TO THE GOVERNING LAW


What is an Environmental Impact Assessment?
Environmental Impact Assessments, or EIAs, are a key tool in effective environmental management. Section 24 of the Constitution of the Republic of South Africa, 1996, calls on the State to secure everyone the right to an environment that is not harmful to health or well-being.

An important component of ensuring a healthy environment is an understanding of the impact of human activities on the environment and the health and well-being of those who live in and depend on that environment. EIAs are a system of analysing and reporting on the impact of certain types of activities to enable decision makers to decide what sort of activities should and shouldn’t take place and to determine what measures should be taken to mitigate and manage the impacts of the activity.


Chapter 5 of the National Environmental Management Act 107 of 1998 (‘NEMA’) provides for integrated environmental management and promotes ‘the application of appropriate environmental management tools in order to ensure the integrated environmental management of activities’. Environmental impact assessments (EIAs) are conducted to analyse and predict the nature and extent of the consequences of a particular activity or development on the receiving environment.


As a tool, EIAs are intended to facilitate informed and environmentally sound decision making. To be an effective tool in decision-making and environmental management, EIAs must predict and evaluate the impact on not only the environment, but also socio-economic conditions and cultural heritage. The EIA must fully assess alternatives and possible mitigation measures. Glazewski argues that the ultimate success of an environmental assessment ‘depends on three fundamental mechanisms being satisfactorily carried out: public participation, inter-sectoral coordination and the consideration of alternatives to specific development proposals.’

The law governing EIAs
Regulations have been promulgated in terms of NEMA that identify three lists of activities which may not commence without an environmental authorisation from the competent authority. These regulations have been recently amended and new regulations were issued in 2010.

While all the activities listed in the regulations (‘the listed activities’) require an environmental authorisation, the lists distinguish between two classes of activities, those requiring a basic assessment and those requiring a full scoping and environmental impact report. Listing Notice 3 identifies activities which may not commence without an environmental authorisation in specifically identified geographical areas only. A further set of regulations (the EIA regulations) set out the procedure to be followed in compiling, submitting, processing and considering an application for an environmental authorisation.

These regulations stipulate who may conduct EIAs, what EIAs must consist of, the decision-making criteria and timelines, public participation requirements and the procedure for lodging appeals against decisions taken.

While the EIA regulations govern those activities listed under NEMA, not all environmentally detrimental activities are included in the lists. Certain types of activities are governed by separate legislation. The impact assessment of mining activities, for example, is governed by the Mineral and Petroleum Resources Development Act.

Changes in the Law
The law governing EIAs does change and a number of changes have been made recently. Whenever engaging in the EIA procedure as an applicant or as an interested and affected parties (I&APs), it is important to ensure that you have the latest version of the regulations that are in force. 


A brief introduction to the EIA Process
EIAs must be conducted by environmental assessment practitioners (EAPs). EAPs are required to determine whether the activity is subject to a basic assessment or a full scoping report. For all activities the EAP must conduct a public participation procedure (PPP) and must compile a list of all I&AP). The EAP must then submit the application for an environmental authorisation, the basic assessment or full scoping report and the details of the public participation procedure to the competent authority who must decide whether to grant the environmental authorisation, to grant it subject to various conditions or to refuse the application. This decision must be made within the timelines set out in the EIA regulations. Once the decision has been made, the decision can be amended, suspended and appealed. Some of these concepts are discussed in more detail below.

Environmental Assessment Practitioners
The EIA regulations require that applicants (applying for an environmental authorisation to conduct a listed activity) must appoint an Environmental Assessment Practitioner (‘EAP’) at their own cost to manage the application. The EIA regulations require that an EAP must:

 

  • be independent
  • have expertise in conducting EIAs including knowledge of the relevant law
  • perform the work objectively
  • comply with the relevant law
  • take into account all the matters required by NEMA in compiling the repor; and
  • disclose all material information that may influence the decision on the application or that may influence the objectivity of the report.

 


Basic Assessment vs Full Scoping and Environmental Impact Report


Basic Assessments
Smaller scale activities, listed in Listing Notice 1 and Listing Notice 3 (in regard to specified geographical areas), require a basic assessment is conducted. The EAP must submit an application and conduct a public participation process. Regulation 22 of the EIA Regulations sets out the content of a basic assessment report and includes:
• a description of the activity and the environment that may be affected 
• a summary of the issues raised in the public participation process
• a description of the need and desirability of the activity
• an identification of any alternatives to the proposed activity that are feasible and reasonable, including that the proposed activity and each alternative will have
• an assessment of the significance, nature, duration, extent, probability and reversibility of the environmental and cumulative impacts and whether these impacts can be mitigated
• environmental management and mitigation measures that should be taken; 
• specialist reports
• a draft environmental management programme
• a reasoned opinion as to whether the activity should or should not be authorised and any conditions that should be made in respect of that authorisation.

Full Scoping Reports 

Applications for authorisations to commence activities listed in Listing Notice 2 are subject to full scoping and environmental impact reporting. The EAP is required to prepare a scoping report in accordance with regulation 28 of the EIA regulations. Some of the important matters that must be covered in the scoping report include:

  • a description of the activity, any feasible and reasonable alternatives, the need and desirability of the activity, the property on which the activity will take place and the environment that may be affected 
  • a description of environmental issues, potential impacts and cumulative impacts 
  • details of the public participation procedure and responses to representations, comments and views 
  • a description of the potential alternatives to the proposed activity including all advantages and disadvantages of the activity and alternatives for the environment and communities that may be affected;
  • minutes of meetings with I&APs and other role players; 
  • a plan of study for an EIA. 

 


Once the scoping report has been accepted, the EAP must commence an environmental impact assessment and compile an EIA report. In addition to the information in the scoping report, the EIA must also set out the methodology used in assessing the impact, detailed reporting on the manner in which the physical, biological, social, economic and cultural aspects of the environment may be affected, an assessment of each identified potential significant impact amongst other information.

Public Participation
The Endangered Wildlife Trust has developed an EIA Toolkit aimed at assisting individuals wanting to engage with and object to applications for environmental authorisations. A brief description of the public participation procedure is set out below, but if you would like a step by step procedure on what to do and how to participate in the EIA process, see the EWT’s ‘Roadmap for the General Public’ at www.eiatoolkit. ewt.org.za and visit the Centre for Environmental Rights Promoting Participation page at www.cer.org.za.

The public participation process is intended to ensure that all I&APs are made aware of a proposed activity, have access to information about the activity and its potential impacts and are given the opportunity to voice their opinions and concerns about the proposed activity. To raise awareness, the EAP is required to put up notices, place advertisements in various newspapers and give written notice to identified affected individuals and officials (in particular written notice must be given to the owners and occupiers of the land where the activity will happen, and adjacent land owners and occupiers, the municipality and any other relevant organ state). The EAP must keep a list of I&APs and all I&APs must be given an opportunity to comment on all written submissions, including draft reports, made to the competent authority by the EAP or applicant. The EAP must ensure that all comments are recorded and submitted to the competent authority.