COURT KNOCKS THE WIND OUT OF OBJECTORS
SUPREME COURT OF APPEAL GIVES WIND ENERGY PROJECTS THE GREEN LIGHT
Recently I provided an interpretation of Regulation 11(3) of the EIA Regulations, with respect to the decision of the High Court in Badenhorst N.O. & 5 Others v Minister of Forestry, Fisheries and the Environment & 4 Others (Eastern Cape Division, Makhanda) (unreported case no. 2229/2020) (Bloem J)).
TO SEPARATE OR NOT TO SEPARATE
Badenhorst N.O. & 5 Others v Minister of Forestry, Fisheries and the Environment & 4 Others (Eastern Cape Division, Makhanda) (unreported case no. 2229/2020) (Bloem J)).
I did caution readers though, by stating that the decision of the Supreme Court of Appeal (SCA) was still pending at the time, and the decision could provide binding authority on how Regulation 11(3) should be interpreted.
The SCA handed down judgment in late May, but unfortunately, in my opinion, did not provide binding authority on how Regulation 11(3) ought to be interpreted.
Whether a developer is compelled to submit a single (combined) application for authorisation where more than one activity is triggered, remains uncertain… to a certain extent !
LEGAL UNCERTAINTY REGARDING REGULATION 11(3)
The majority of the SCA [Gorven AJA (Mbatha and Kathree-Setiloane JJA concurring)], seems to have conducted a somewhat cursory glance at Regulation 11(3) of the EIA Regulations, and whether separate activities of the same development need to be consolidated into one EIA.
In dismissing the objectors’ review application and setting aside the order of the Makhanda High Court, the SCA provided the following justification in respect of its ruling on Regulation 11(3):
The Department had insisted on separate applications being brought for the Wind Energy Projects and the grid connections.
The chief director had regard to the grid connection applications at the time the Environmental Authorisations (EAs) for the wind energy projects were being considered.
There is the requirement in each of the EAs for the final layout maps to include the depiction of connection routes to the grid.
THE SCA SEEMS TO HAVE IGNORED THE PURPOSE OF REGULATION 11(3)
The Makhanda High Court (the court a quo) provided substantive reasons for upholding the objectors’ ground of review regarding compliance with Regulation 11(3).
This it did so by traversing the purpose of the regulatory requirement, and the need for holistically assessing impacts (and cumulative impacts) of the proposed development.
Whether the Department insisted on separate applications, or whether the Chief Director had regard to the grid connection applications; and whether the final layout maps would include details of the grid connection routes - was immaterial.
This is because at the end of the day, the decision-maker was not provided with a consolidated assessment (cumulative assessment) of the impacts of both the wind energy facilities (WEFs) and the grid connections. There were no facts placed before the court to show that the developer had assessed the cumulative impacts of the entire energy project i.e the WEFs and the grid connections.
The judgment of the High Court noted that the impacts of the wind turbines on birds and bats was identified as a significant impact which warranted a specialist study. This study was also revised in light of some of the concerns of the department.
The grid connections (overhead transmission lines) also pose a threat to birds and bats and as such, there exists good reason for a consolidated or cumulative impact assessment which delves into the impacts caused by the turbines and the transmission lines on birds and bats. Simply put, the combined effect/impact of the turbines and overhead powerlines on bats and birds needed to be assessed.
Sadly, the SCA judgment made scant reference to the impact on biodiversity and chose to not perform a purposive interpretation of regulation 11(3).
While the SCA may have been justified in striking down the first two grounds of review ( Lack of finally approved EMPrs & Lack of finally approved layout plans before the EAs were issued), I am of the opinion that it however erred in not upholding the third ground of review - namely, that the granting of the EAs for the Wind Energy Facilities were pursuant to applications made separately from those for the EAs pertaining to the grid connections.
The impact of this judgment is that it may now embolden developers to take a piece-meal approach to EIAs and thus side-step their obligation to assess the cumulative impacts of various activities pertaining to a development.
It would therefore be interesting to see if the Respondents (objectors) will take this decision on appeal to the Constitutional Court.
If you are a newbie to EIAs in South Africa, or are keen to start practising as an Environmental Assessment Practitioner - then you must register for the upcoming INTRODUCTION TO EIA Training Course.
