Abstract
In mid-2006, new Regulations governing environmental impact assessment were published in terms of the National Environmental Management Act 107 of 1998. It is argued in this article that the old Regulations under the Environment Conservation Act 73 of 1989, which were replaced, had proved inadequate not because of any inherent deficiency, but because they were never properly implemented and because they were instead subjected to much inaccurate criticism. The article then canvasses the old Regulations and considers criticisms thereof, before canvassing the new Regulations and assessing differences between the old and the new. Various specific concerns and potential shortcomings are raised and considered; and various interpretations are offered of problematic provisions. A prognosis for the success and/or failure of the new Regulations is then put forward in the context of the South African government's present approach to economic growth, environmental protection and the enforcement of environmental legislation. Finally, it is argued that there are danger signs that the new Regulations will be as misunderstood and misapplied as were the old Regulations and that the fundamental principles of the National Environmental Management Act are likely not to be adhered to in the implementation of the new Regulations
Highlights
The old Regulations made the applicant responsible for the public participation process to ensure that I&APs and the authority were "given the opportunity to participate in all the relevant procedures contemplated" in the Regulations. This has been spelt out in the new Regulations to mean that notice of the application is given in a variety of forms, and that I&APs have the right to comment on all written submissions
The old Regulations provided clear procedural steps that followed the formal submission of an application form. These were the submission of a plan of study for scoping; the scoping process, the culmination of which was the submission of a scoping report; the submission of a plan of study for the EIA; and the EIA phase, the result of which was an environmental impact assessment report
While it is probably too soon to panic, it appears that we might be entering into a crucial phase in the development of South African environmental law – it is going to require extreme vigilance from environmental lawyers if, out of the current maelstrom of case law, statute law, politics and policy, a proper balance amongst economic growth, social development and environmental protection is to emerge
Summary
On 21 April 2006, South Africa's Minister of Environmental Affairs and Tourism, Marthinus van Schalkwyk, published Environmental Impact Assessment Regulations in terms of Chapter 5 of the National Environmental Management Act along with lists of activities and competent authorities identified in terms of Sections 24 and 24D of NEMA.. On 21 April 2006, South Africa's Minister of Environmental Affairs and Tourism, Marthinus van Schalkwyk, published Environmental Impact Assessment Regulations in terms of Chapter 5 of the National Environmental Management Act along with lists of activities and competent authorities identified in terms of Sections 24 and 24D of NEMA.4 In announcing their imminent publication, the Minister pronounced them to be "quicker, simpler, better".5. At the time of promulgation of the new Regulations, some 3 000 EIAs nationally remained to be determined under the old Regulations. Fundamental principles of NEMA and the elements that arguably place it far above equivalent legislation elsewhere in the world have been largely ignored
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