Centre for Environmental Rights – Advancing Environmental Rights in South Africa

Op-Ed published in Business Day on 23 January 2014

Economic Development Minister Ebrahim Patel. Picture: Business Day

Few civil society organisations in the environmental sector would take issue with the proposition that the development and maintenance of South Africa’s infrastructure deserve prioritised public investment, and that there are parts of the country where people are desperate for infrastructure development and maintenance. It is also true that at least some of the strategic integrated projects (SIPs) identified in the National Infrastructure Plan have the potential to contribute to the transition to a green economy.

Notwithstanding this, the Infrastructure Development Bill currently before Parliament – designed to speed up infrastructure roll-out by shortcutting existing legal requirements – contains a number of serious difficulties.

Words matter

The first problem is one of language. Despite the fact that, if passed, it would coordinate some of the biggest infrastructure projects in SA’s history, the Infrastructure Development Bill does not make a single reference to the need for infrastructure development to be environmentally sustainable.

The only mention of environment in the entire Bill is the clause acknowledging that the SIPs will still need environmental authorisations under the National Environmental Management Act – a clause apparently reluctantly inserted in the draft Bill after earlier drafts caused alarm amongst other authorities.

Section 24 of our Constitution requires legislation to “secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development”. Our Constitutional Court has pronounced on this in the 2007 Fuel Retailers case: “The Constitution… contemplates the integration of environmental protection and socio-economic development. It envisages that environmental considerations will be balanced with socio-economic considerations through the ideal of sustainable development.”

Words matter, and it matters a great deal in legislation.

More laws do not streamline

The second problem is the familiar strategy of trying to fix slow implementation through the passing of ever more legislation. Development approvals are a universal challenge, as is coordination between different authorities. However, more legislation hardly ever solves this problem. Integration and streamlining need better leadership and better project management (on the parts of both authorities and project proponents), and this should be facilitated through the Presidential Infrastructure Coordinating Commission, management and steering committees, many of which are already functioning.

Instead, what the Bill adds to these structures is the serious risk of legal challenges by compromising the independence of authorities to make decisions in accordance with their existing mandates. For example, how does the Department of Water Affairs (DWA) refuse an application for a water use licence where inadequate water resources are available for a particular project, having been part of a steering committee whose main purpose includes “to identify ways and means of giving effect, in the most effective, efficient and expeditious manner, to the Commission’s decision to implement a strategic integrated project and in so doing, to ensure the prompt compliance with all applicable laws?”

SA has a comprehensive environmental impact assessment (EIA) regime. Environmental authorities have invested much time and resources over the past five years to improve, streamline and speed up EIA processes. The DEA has even created a special unit to facilitate the speedy processing of environmental authorisations for the SIPs. More recently, the DEA, the DWA and the Department of Mineral Resources have developed an integrated licensing regime for mining, which will also affect all other development applications. This regime should come into effect in December 2014. While there are many aspects of this new regime that civil society organisations dislike such as the limitation of the approval process to a mere 300 days, creating a “special regime” with even shorter timeframes (the Bill provides for a 250 day approval cycle) for mega projects seems like lunacy.

The schedule of projects that could be declared “strategic” under this Bill – the widest of categories that include airports, mines, refineries, ports and harbours, power stations and water infrastructure – are the types of development that have massive potential social and environmental impacts on the ground. Yet these are the ones the Bill seeks to rush through in even fewer days than the already-worrying 300 day timeframe, allowing for public consultation so limited as to be meaningless.

It is not at all clear how “mines” made it onto the list of potential SIPs. Mines are not strategic infrastructure that facilitates development in the same way as airports, roads and railways. Mining has a comprehensive legal regime, soon with trimmed down timeframes for approvals, painstakingly negotiated by the DEA, DWA and DMR – a regime designed to prevent and mitigate the large-scale environmental impacts of mining already so evident in SA.

Speed equals risk

But the most pressing consequences of shortcutting established timeframes for EIA and public consultation lie in the increased risk posed to the state, and affected communities. For example, poor or inadequate assessments of risks posed to water resources, particularly in the drier and more variable climatic zones of the country, can expose entire communities to loss of access to drinking water. SA taxpayers are already bearing the cost of poor planning and inadequate regulation of environmental impacts – just think of the cost of acid mine drainage to date, or the famed desalination plants on the Garden Route: built in great haste, at great cost, in the wrong place – now underutilised and draining state coffers.

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 SA’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. Environmental concerns need to be properly considered from the beginning of the project and not simply when raised in reaction to detailed plans “on the table”. SA has world-leading strategic spatial environmental information to aid in development planning (both to avoid unnecessary environmental impacts and to reduce the environmental risk posed by projects), yet the Bill fails to provide any impetus to use such information to facilitate and expedite appropriate infrastructure projects.

Let’s buck the trend

As a country, we like to consider ourselves leaders in the field of sustainable development, and many high-profile national policy documents and strategies reflect this. Yet when it comes to making the decisions that determine our path to sustainability, SA tends to favour “quick result”, high-risk options that maintain the political and financial status quo: always looking for shortcuts to circumvent the cost and commitment necessary to ensure the sustainable development required by the Constitution.

With the National Infrastructure Plan and this Bill, we have an opportunity to entrench sustainability in infrastructure development: the opportunity to ensure that decisions about massive projects that will affect all of us for generations to come, are made using accurate, comprehensive information about social and environmental impacts, with public support, and in compliance with the Constitution and environmental legislation. In its current form, the Infrastructure Development Bill will not achieve this aim.

Melissa Fourie is the executive director of the Centre for Environmental Rights, a non-profit law clinic that works to promote environmental rights in South Africa.

Also read: Environmental Rights Blog: Bulldozing environmental rights by fast-tracking infrastructure development will cost us dearly published in March 2013 in response to publication of the draft Infrastructure Development Bill.