Bulldozing environmental rights by fast-tracking infrastructure development

27 March 2013 was the closing day for comments on the draft Infrastructure Development Bill, introduced by Minister of Economic Development Ebrahim Patel in the National Assembly last month, and designed to facilitate designation, authorisation and implementation of the special infrastructure projects (SIPs). Developments that can be declared as SIPs include all major infrastructure works of “significant economic or social importance” or that would “contribute substantially” to any government infrastructure development strategy, and expressly includes mines, oil and gas pipelines, refineries, and power stations – all developments that pose high risk to the environment.

While insiders say that the Bill is a vast improvement on earlier drafts, its disregard for the very notion of sustainable development and integrated environmental management and planning is distressing.

The principle of streamlined and integrated processes of approval for environmental and related authorisations for development, and greater coordination between different authorities, is sound and worthy of support. We believe that such processes promote integrated environmental management and planning, and reduce the burden on communities and civil society organisations who participate in such processes on their own behalf and in the public interest. We also recognise the dire need to improve infrastructure and access to essential services. However, we assert that suitable strategic and impact assessment processes, with their attendant expert input and public consultation phases, are crucial to determining the type of infrastructure that is best suited to the region and service to be provided. Rather than delaying infrastructure roll-out, these processes can serve to minimise the impacts, environmental risks and long-term maintenance costs of infrastructure projects.

However, the Bill effectively disregards decades of national policy development in relation to environmental management and sustainable development, and existing government commitments to sustainable development and environmental management. Despite the express obligations in section 24 of the Constitution to “secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development”; despite adoption of the National Sustainable Development Plan by Cabinet in 2011; despite recognition of the need for development that is sustainable in the National Development Plan; and despite the Bill envisaging the roll-out of large scale infrastructure much of which will have significant, long-term environmental impacts – the Bill contains not a single reference to sustainable development.

Against this background, the Bill provides a process flow for authorisation of SIPs within 220 days, from “approval of the project plan” to “regulatory decision” – “which timeframe may not be exceeded”:

  • 7 days to submit an application after approval of the project plan
  • 30 days for public consultation on the application and project plan
  • 52 days to amend the application and project plan and submit to the relevant authority
  • 60 days to prepare a “detailed development and mitigation plan”
  • 44 days for public consultation on and review of the development and mitigation plan by the relevant authority
  • 57 days for consideration and assessment by the relevant authority

Apart from contradicting existing, well-established procedures for environmental impact assessment (already in their third stage of development), in many instances these time periods will not be sufficient for responsible scientific assessment of potential detrimental impacts of the SIPs on water resources and air quality (to name but a few), or for developing adequate mitigation measures to address these impacts. The time periods can also never be sufficient to gauge the opinions of residents and other affected parties, whose inputs may well improve and expedite the implementation of the SIPs.

To achieve such fast-tracked authorisation, the Bill co-opts decision-making authorities onto various structures, and essentially places obligations on those authorities to ensure that the application and authorisation processes run without a hitch. This would place those Departments who hold the environment and water resources in public trust for the people of South Africa in an impossible conflict position, fundamentally undermining their Constitutional and legislative mandates. The Bill effectively sanctions political pressure on these Departments and their officials to grant authorisations for the SIPs without adequate impact assessment, and even if existing data motivates for a refusal of authorisation: the Bill provides for “negotiation” with an authority “with a view to obtaining the necessary approval… and [making] every reasonable effort to avoid an intergovernmental dispute”.

In the Centre for Environmental Rights’ comments to the Department of Economic Development, we have set out in detail the ways in which the Bill could be vulnerable to Constitutional challenges. These include:

  • potential violation of the right to an environment not harmful to health or well-being, and to have the environment protected for future generations through reasonable legislative and other measures, which we submit include the National Environmental Management Act, 1998 and its EIA regulations, already in their third iteration;
  • potential violation of the right to just administrative action;
  • potential violation of the cooperative governance provisions in the Constitution, including by giving insufficient recognition of local authorities’ Constitutional powers to regulate local land use planning.

Over and above the procedural aspects of the fast-tracking proposed in this Bill, it is important to understand the potentially radical consequences of short-cutting established time-frames for EIA, public participation and appeal. In simple terms, poor or inadequate assessments of risks posed to water quantity and quality, particularly in the drier and more variable climatic zones of the country, can expose entire communities to loss of access to drinking water. South African taxpayers are already bearing the cost of poor planning and inadequate regulation of environmental impacts in matters like acid mine drainage; ultimately, though, it is poor and vulnerable communities who cannot afford to relocate to avoid environmental pressures – the very communities the SIPs are supposed to assist – who bear the brunt of poor planning and inadequate regulation of environmental impacts.

It is internationally recognised, and firmly established in South Africa’s own policy frameworks, that identifying and addressing environmental issues as early as possible in planning processes is the most efficient and effective way of minimising later costs, delays and re-work, and costly and slow legal challenges. A cornerstone of EIA is the need to consider reasonable and feasible alternatives to the proposed project, and their impacts on the environment and affected communities. The earliest possible engagement with environmental authorities and stewards of our natural resources base in seeking the “best practicable environmental option” to achieve strategic projects, simultaneously minimising environmental risks, should therefore both expedite national objectives and ensure sustainable development. Environmental concerns need to be properly considered from the beginning of the project and not simply when raised in reaction to detailed plans already on the table. South Africa has world-leading strategic spatial environmental information to aid in development planning (both to avoid unnecessary environmental impacts and to reduce the environmental risk faced by projects), yet the Bill provides for no added impetus to use such information to facilitate and expedite appropriate infrastructure projects.

South Africans deserve significant public investment in and roll-out of infrastructure to facilitate economic growth. They are also, however, entitled to infrastructure development that is responsible, well-conceived, enjoys high levels of public support, does not prejudice their health and well-being, and does not cause environmental damage that will slow these projects down and generate long-term liabilities for the state. These are not radical ideas that can be bulldozed in the throes of election fever, but notions entrenched in the Constitution and our national policy framework. Pushing the Bill through in its current form will cost South Africa dearly.

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