BY James Brand
South Africa: Environmental processes and laws in the national state of disaster
On 31 March 2020, the Department of Environment, Forestry and Fisheries (“DEFF”) published directions (the “Directions”) under the National Disaster Management Act, 2002, to reduce the impact of the coronavirus (COVID-19).
The purpose of the Directions is to ensure fair processes with respect to certain environmental laws, as a result of the restrictions placed on the movement of people during the lockdown period. This is mostly in respect of licensing processes, public participation processes, appeals processes, specified exemption and amendment applications, waste licence transfer applications, reporting requirements and the provision of waste management services, all as specified in the Directions.
The Directions suspend and extend the timeframes for the above-mentioned processes and requirements until the termination of the lockdown period. Interestingly, unlike other similar directions that have recently been published by other spheres of government, the 21-day period is not referred to, so as to avoid having to amend the Directions in due course in the possible event of the lockdown period being extended.
The suspension of the processing of environmental authorisation applications has the potential to delay project finance transactions that require such authorisations as a condition to financial close. Similarly, those projects whose environmental authorisations have been subject to an appeal that is now stalled, will effectively find their projects in limbo as such authorisations are suspended pending the outcome of the appeal. This means that the ability to commence with development is also suspended as it is unlawful to commence development if environmental authorisation is suspended as a result of an appeal. The above-mentioned freeze on the processing of applications has the potential to delay and possibly push out the timeframes of any anticipated further round of the Renewable Energy Independent Power Producer Procurement Programme, for example.
Fortunately, the Directions provide that if a condition exists in an environmental authorisation that requires development within a specified timeframe, and this period lapses or falls within the period of the duration of the lockdown period, that period will be extended by the number of days of the duration of the lockdown period. This is to avoid environmental authorisations lapsing during the lockdown period.
The ability to apply for exemption exists in a number of our environmental laws. A deferment of timeframes for exemptions in terms of the National Environmental Management: Waste Act, 2008 (“NEMWA”) are specifically provided for in the Directions. However, it is not clear why similar provision has not specifically been made for exemption applications in terms of NEMA and the National Environmental Management: Air Quality Act, 2004 (“NEMAQA”), both of which require public participation. In addition, express mention has not been made to the deferment of timeframes for postponement applications with regard to the minimum emission standards in NEMAQA. These are also subject to a public participation process. This may be because applications for certain postponements were already due by 31 March 2019 and compliance with more stringent standards for existing facilities was required by 1 April 2020, the day after the issue of the Directions.
The Directions make provision for the deferment of timeframes with regard to applications for amendments to any order to remediate contaminated land issued in terms of NEMWA. However, variation applications in terms of NEMAQA are not expressly referred to in the Directions. As such, because variation applications are subject to public participation, one would have expected that they would have been included as processes that would be subject to deferment. However, the Directions suspend the licensing processes for environmental authorisations in terms of NEMA, waste management licences in terms of NEMWA and air emission licences in terms of NEMAQA. It is possible to interpret this to potentially include amendments and variations to the above-mentioned licences, including variations in terms of NEMAQA.
It is also not clear why permits required in terms of the National Environmental Management: Integrated Coastal Management Act, 2008 and their related regulations have also not been specifically included for deferral. We will also need to wait for the Minister of Human Settlements, Water and Sanitation to issue directions that relate to water use licence applications.
Other practical repercussions of the suspension of processes is in the sale of business context where infrastructure has been transferred with related waste management licences to operate the infrastructure. In these circumstances, the purchaser can anticipate a delay in operating the purchased infrastructure post the lifting of the lockdown, as the transfer of waste management licences has been suspended as directed in the Directions.
In the interim period, non-essential infrastructure throughout the country will be shut down. Those operators with infrastructure that is subject to an air emission licence will not be required to comply with the minimum emission standards specified in an operation’s air emission licence where normal start-up, maintenance, upset and shut down conditions exceed 48 hours. In these circumstances, the section 30 mechanism in NEMA regulates the situation, but this section is equally applicable to other operations where operational disruption may give rise to harm to the environment. In these situations, the responsible person is required to report to the responsible authority where a shut-down gives rise to an unexpected, sudden and uncontrolled release of a hazardous substance that causes significant harm to the environment, human life or property.
In this regard, the Directions do not suspend the enforcement provisions of South Africa’s suite of environmental laws. This means that the Green Scorpions are able to issue directives and pre-directives during the lockdown period so as to ensure that the environmental right in section 24 of the Constitution is not wholly suspended during the lockdown period as well.
Due to the fact that a national disaster has been declared, and not a state of emergency, section 24 of the Constitution, which entrenches the environmental right, still remains the supreme law governing environmental matters in South Africa. It is only when a state of emergency is declared in terms of section 37 of the Constitution, that any legislation enacted in consequence of a declaration of a state of emergency may derogate from the Bill of Rights, including the environmental right.
However, as is becoming evident in other jurisdictions such as in the United States for example, DEFF will need to develop best-practice guidance on enforcement discretion for non-compliance with environmental laws for the Green Scorpions. Similarly, best-practice guidance on how entities should act in circumstances of non-compliance arising from COVID-19 and the ensuing lockdown would also be welcome so as to encourage disclosure and transparency during the lockdown period.
Reviewed by Lloyd Christie, head of ENSafrica’s Natural Resources and Environment department.
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