Improving the contribution of EIA to achieving Sustainable Development in South Africa – the case for formalised Independent Review within the EIA process
Nick King
Endangered Wildlife Trust
P/Bag X11, Parkview 2122
South Africa
Tel: +27 (0)11 486-110; Fax: +27 (0)11 486-1506
E-mail: ; ; www.ewt.org.za;
Sean O’Beirne
SE Solutions (Pty) Ltd
PO Box 100339, Moreleta Plaza, 0167
South Africa
Tel and Fax:+27 (0)12 643 0190
E-mail: ; www.sesolutions.co.za
ABSTRACT
Environmental Impact Assessments (EIAs) are generally acknowledged world-wide as a fundamental support tool for sound decision-making in pursuit of sustainable development in both the developed and developing world. Many countries have entrenched the requirement for EIAs in their respective environmental legislation. However, considerable concerns are often raised about just how well the fundamental sustainability principles underpinning EIA are understood and adhered to by decision-makers – these include independence, adequacy and quality of reports, assessment of viable alternatives, transparency, equality of opportunity for I&AP participation and the ability, willingness and capacity of decision-makers to assimilate and evaluate the findings presented. In short, how good is the governance of the EIA legislation?
The authors have participated in development of EIA best practice in SA since inception, as well as been involved in innumerable EIAs in SA and elsewhere. However, we are increasingly concerned by the quality of EIA processes in SA. These concerns span the IA processes, the capacity and neutrality of the practitioners, the responses received from decision-makers as well as subsequent interactions following a Record of Decision (RoD). Citing a number of recent cases we look at examples of where:
· Inadequate IA scoping reports and EIRs have been accepted without requiring further investigation;
· Significant information presented has been ignored or discounted;
· The full legal requirements of the EIA process have not been implemented;
· The role and input of I&APs has been undermined and negated;
· Biased support for the proposed development has been apparent;
· Independent Review has resulted in overturning of RoDs.
Together, the above have undermined public confidence in the ability and willingness of relevant practitioners and authorities to give true effect to the ultimate purpose of EIA – judicious decision making. This results, it is argued, in inappropriate decisions and I&APs having to resort to litigation, including judicial review of decision-making processes. The case is thus made for establishing a formalised Independent Review step at various stages within the EIA process, from the adequate scoping of ToRs, through the final EIR, to reviewing RoDs, in order to improve the EIA process and ensure optimal decision-making for sustainable development in South Africa, to the benefit of all parties.
Introduction
Environmental Impact Assessments (EIAs) are generally acknowledged world-wide as a fundamental support tool for sound decision-making in pursuit of sustainable development in both the developed and developing world. Whilst the techniques and processes of assessment have evolved since the advent of the concept in the early 1970’s (and continue to evolve largely in response to criticisms of various facets and dissatisfaction with the outcomes), there remains, in South Africa at least, broad-scale dissatisfaction with EIA. Sectors of government condemn EIA as an obstacle to redressing past economic and welfare imbalances and many private sector developers see EIA as an unnecessary obstacle that serves no other purpose than derailing economic development opportunities. On the other side of the fence environmental NGOs and members of the public bemoan the fact that EIA continually fails to protect and uphold their rights and conservation objectives. It is not clear currently who EIA really benefits, if anyone at all. It is even harder to see it currently as a mechanism that really protects the environment, leave alone one that facilitates and promotes sustainable development.
There are likely many reasons for this perceived growing mistrust in EIA and what it serves to achieve. In this paper one important contributing element is presented and that is the quality of EIAs. This quality concern extends to the processes that underpin EIA and the decisions that are made by authorities in response to them. In examining the issue of EIA quality we present several case studies of where EIA has simply failed for a variety of reasons to provide for ‘sound decision-making in pursuit of sustainable development’. These case studies are used to make the rather simple point that a good EIA is good for everyone, and that a bad EIA is bad for everyone. If poor EIA practice is allowed to continue, we argue that the purported goal of EIA will simply be lost, and EIA will become the purposeless bureaucratic process that its critics believe it to be.
We thus make the case for Independent Review (IR) as a potential panacea to the problem of poor EIA quality - if IR is made a mandatory component of all EIAs, rather than being invoked only once controversy besets a project, then we can expect a marked improvement in EIA practice across the board. Of particular concern in South Africa is that significant socio-economic problems are leading to fast-tracking of economic growth policies, with environmental concerns, and EIAs in particular being accused of unnecessarily delaying or even preventing such much-needed development. It is important to note here that EIA is simply a tool designed to improve decision-making, both by attempting to include all variables for consideration, as well as allowing all interested and affected parties (I&APs) to participate. The tool itself cannot be blamed for the way in which it is applied, nor can it be accused of being biased in any way – the fault herein lies with those who apply the tool, as with all tools.
We argue further that IR will serve to start a process of highlighting and discrediting poor EIAs and poor EIA practice. In that manner IR will serve to improve decision-making simply by ensuring that decisions are based on credible, fair and principled EIAs that consistently and defendably present the information required for informed decision-making. IR can also serve to ensure that decision-making in its own right, serves the pursuit of sustainable development. We agree with Porritt (1992, as quoted in Adams, 1996) that “current patterns of economic growth and genuine sustainability are wholly contradictory concepts” and the sooner we improve our decision-making to reflect this, the better. We argue therefore that embedding IR throughout the formal EIA process will serve to improve EIAs, the processes that underpin them and the decisions made by authorities on the information they contain. Ultimately we are looking for ways in which development decisions are optimised, to the satisfaction of all I&APs and to the equitable benefit of all stakeholders, including wider human society and future generations.
South Africa’s Environmental Legislation
South Africa is generally acknowledged to have some of the most advanced and comprehensive environmental legislation in the world. Indeed, environmental rights are enshrined in the new, post-apartheid Constitution, and sustainability principles are incorporated in the National Environmental Management Act, 107 of 1998 (NEMA). EIAs have been a legal requirement for listed activities since 1998, although the EIA process has been in use in the country from the early 1980s. However, serious deficiencies in practice exist, with the result that the environment, and thus people, are the ultimate losers. We emphasise that the dissatisfaction comes from all sides, with developers citing concerns with unnecessary and costly delays, whereas I&APs have a more comprehensive list of concerns that cut to the content of the EIA and the underpinning processes.
Considerable concerns are often raised during and after EIAs, usually by disgruntled and dissatisfied I&APs who feel that they have been failed by the EIA process, leave alone its purported pursuit of sustainability principles. These concerns carry over to decision-making which, by definition, must be challenged if the EIA supporting that decision is questioned. These decisions include whether to accept the various stage reports (e.g. Scoping Reports) during EIAs and in the final approvals or otherwise of the application, based on the information provided by the EIA. These concerns include the following aspects, all nominally required by EIA legislation in SA, but often questioned as to their veracity:
· the independence of the EIA practitioners, the qualifications of the practitioners and adequacy and quality of report content;
· the equal assessment of viable alternatives;
· the transparency of the process, adequacy of information dissemination, equality of opportunity for I&AP participation; and,
· the ability, willingness and capacity of decision-makers to assimilate and evaluate the findings presented.
In short, at the highest level, the questions we raise are around just how good is the governance of the EIA legislation in South Africa? Increasingly, the model which promoted the equality of the ‘three pillars’ of sustainability, namely that equal consideration had to be given to environmental, economic and social considerations (with the inevitable result that the environment, being ‘free’ and essentially a non-participant, has always been traded-off against social and economic concerns) has increasingly given way to the more rational model espoused by ‘deep ecology’ that the environment, and in particular the ‘ecosystem services’ derived there-from underpins all human activity (social capital) and that economics is a sub-set of human activity, in a cascade of dependencies, and that today, given the pervasiveness of human activities across the planet, all of the above are dependent on human decision-making (governance) which determines whether the natural systems are conserved and continue to function (Figure 1).
Of critical importance to our discourse around the lack of confidence in such governance, is the concern that an increasing trade-off of environmental components to allow for increasing economic ‘growth’ is undermining any chance of moving onto a sustainable footing – poor governance leads to increasing environmental degradation which in turn leads to increasing conflict and increasingly divided and inequitable decision-making, polarising interests and preventing consensus seeking, in a negative feedback. The converse positive spiral, is one where sound governance provides for optimal decision-making, resulting in more equitable and socially acceptable outcomes, reinforcing sound governance (Figure 2). We propose that formalised IR will greatly assist us in achieving the latter.
Figure 1: Provision of ecosystem services from the natural capital base underpins social systems establishment and survival which then can produce economic outputs – with this set of dependencies today itself dependent on overall good governance to ensure that it can exist and function (adapted from DEAT 2006).
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Figure 2: The Governance Spirals: Natural Capital providing the basis for Social Capital, which in turn provides the governance which determines the ongoing sustainability or degradation of Natural Capital – “good” governance drives enhanced (a) or degraded (b) natural resources which then underpins or undermines Socio-economic Capital respectively through feedbacks (adapted from King et al, in press).
Recent Cases in South Africa where EIA has Failed
In the following section several case studies are presented to highlight how EIA can and has failed to meet the content, process and decision making principles that it is meant to uphold. This can in no way be perceived as an exhaustive list, but is simply an illustrative one - we contend that there are many more examples of poor EIA practise where a lack of public or NGO interest simply failed to highlight the deficiencies.
a) The Wild Coast N2 Toll Road:
This proposed development of a major high-speed through-route, in particular the ‘preferred’ routing by the National Roads Agency through a so-called ‘greenfields’ section of relatively ‘pristine’ country-side incorporating the Pondoland Centre of Endemism, proved to be highly controversial when a positive Record of Decision was issued by the national Department of Environment Affairs and Tourism (DEAT) in December 2003, resulting in some 230 appeals being lodged with the DEAT. The complexity of the broad range of issues raised by the appeals resulted in the Minister appointing an independent review panel to assess both the EIA as well as the content of the appeals. The subsequent IR report (DEAT 2004) was scathing in its assessment of the quality of the original EIA, claiming that it was barely adequate as a Scoping Report and that ‘the problems are so numerous that they cannot all be identified individually and for the sake of brevity only the key issues are summarised…’. Whilst a plethora of significant deficiencies were highlighted in the 100 page review, ultimately the appeals were upheld and the positive RoD was overturned only on the basis of a lack of independence of the EIA practitioner.
Amongst other significant flaws were that:
· The EIR did not spell out which statutory obligations needed to be met by the developer, nor how they should be met;
· The sustainability principles in NEMA had not been adequately considered, if at all;
· The exclusion of the impacts of tolling severely undermined the possibility of determining economic impacts;
· The attempt to insert the National Roads Agency as the principal applicant after the vested interests of the practitioner were uncovered brought into question the independence of the Agency in the application;
· Significant bias introduced throughout the report of suggesting that all potentially beneficial or positive impacts would necessarily be realised, while all potentially harmful or negative impacts were easily capable of mitigation;
· No clearly established rationale for the road in that it had not arisen from a structured planning process, resulting in the conclusion that it was primarily a business venture unsuitable to achieving its stated objectives;
· Many of the studies listed in the approved Plan of Study for Scoping were not carried out;
· Substantially inadequate assessment of alternatives;
· Inadequate baseline data, inadequate fieldwork, inadequate socio-economic studies (e.g. the issue of land claims was ignored) and a severely deficient and biased public participation process, to inform the conclusions;
· Cumulative or secondary impacts of the proposed development were not addressed.
Finally, the evaluation of the DEAT’s positive authorisation was that the RoD was generally weak, vague and non-binding in providing discretionary clauses such as that the applicant should ‘consider setting up a biodiversity trust fund’. It is not clear how such an obviously sub-standard EIA of a major project of national interest could have received a positive RoD from the DEAT.