MEANINGLESS CONDITIONS IN ENVIRONMENTAL AUTHORISATIONS

ENVIRONMENTAL AUTHORISATION FOR COAL MINE GETS THE BOOT

Eloff Landgoed (Pty) Ltd v Minister of Forestry, Fisheries and the Environment and Others (21525/2020) [2023] ZAGPPHC 434 (19 June 2023)

---

Meaningless conditions attached to environmental authorisations are the norm rather than the exception. Trust me. I’ve seen my fair share of such conditions in my years in the public sector.

A “meaningful” condition attached to an environmental authorisation, is one which gives effect to the principles of integrated environmental management and EIA in particular, as well as being rational and lawful.

Section 2(4)(i) of the National Environmental Management Act 107 of 1998 (NEMA):

The social, economic and environmental impacts of activities, including disadvantages and benefits, must be considered, assessed and evaluated, and decisions must be appropriate in the light of such consideration and assessment.

LANDGOED

The applicant, Eloff Landgoed Pty Ltd, operates an extensive commercial farm across a number of properties in Mpumalanga. It applied to review and set aside a decision to grant an environmental authorisation to operate an open-cast coal mine on land adjacent to part of its farm.

The Department of Mineral Resources (DMR, the second respondent) made the decision in favour of the third respondent, Eloff Mining.

An appeal to the Minister of Environmental Affairs against the DMR’s decision was unsuccessful. Eloff Landgoed then approached the Pretoria High Court to review and set aside the appeal decision as well.

THE ISSUE

The central issue in this case was whether the DMR’s decision to authorise the development of the coal mine, approved on appeal by the Environment Minister, constituted a lawful and rational assessment of the likely impact of Eloff Mining’s proposed activities.

THE EIA REPORT & SPECIALIST STUDIES

The economic impact report stated that, on the information available at the time, there was no economic justification available to underpin the authorisation of the mine. This was because the mine itself “appears to be economically unfeasible” and because its development would result in the permanent loss of “highly productive agricultural land”.

The social impact report stated that the mine cannot be justified, and that environmental authorisation is “not recommended”.

It concluded that the mine will have an unacceptable and irreversible impact on agricultural productivity (and accordingly food security) both on the mined land and in the surrounding area.

The Environmental Assessment Practitioner (EAP) concluded in its initial report that the mine should not be authorised.

Thereafter the EAP engaged with Eloff Mining and as a result, the EAP recommended authorisation subject to six conditions which were acceptable to the company to be attached to a granting of the environmental authorisation.

THE CONDITION

One condition in particular was that :

an “agronomic assessment” be conducted “to inform agricultural potential and options for farming on areas not affected by the mine and related infrastructure”.

The court remarked that, given the centrality of the mine’s impact on agricultural production and food security to the economic and social impact reports, and accordingly to the EIA process, it made no sense to allow mining to go ahead, while the mine’s impact on agriculture in the surrounding area is assessed further.

That basically defeats the purpose of conducting an EIA which is to appraise all the potential impacts of a development, before a decision is taken to authorise or refuse.

CONCLUSION

The court concluded that neither the DMR nor the Environment Minister “considered, assessed and evaluated” the “social, economic and environmental impacts” of authorising the development of the mine.

It further concluded that neither of their decisions was “appropriate” in light of such a consideration and assessment. As a result, their decisions did not accord with section 2 (4) (i) of NEMA.

Those decisions were accordingly not rational since the principal condition attached to the environmental authorisation could not serve the purpose ascribed to it.

As a result, the court reviewed and set aside both the DMR’s decision to authorise the mining operation, and the Minister’s decision to dismiss the appeal lodged.