TAKING ACTION AGAINST ERRANT ENVIRONMENTAL ASSESSMENT PRACTITIONERS
LEGAL LIABILITY OF EAPs & SPECIALISTS DURING EIA
What happens when an Environmental Assessment Practitioner (EAP) or a Specialist fails to disclose crucial information or provides misleading or incorrect information during an EIA process?
What measures are available to Environmental Authorities administering the EIA process?
And what recourse do Interested and Affected Parties (I&APs) have if they suspect that an EAP/Specialist has failed to disclose or has provided misleading information?
THE GENERAL REQUIREMENTS
Environmental Assessment Practitioners (EAPs) as well as Environmental Specialists (ecologists, hydrologists etc.) have an important role to play during the EIA process.
They also have to meet the General Requirements under Regulation 13 of the EIA Regulations, 2014.
They must :
Have expertise in conducting EIAs or undertaking specialist work and have knowledge of NEMA1, the regulations and the relevant guidelines.
Ensure compliance with the EIA Regulations
Perform their work in an objective manner
Disclose to the proponent, competent authority and interest and affected parties all material information that may have the potential of influencing a competent authority’s decision or the objectivity of any report required in terms of the EIA Regulations.
WHAT ACTION CAN A COMPETENT AUTHORITY TAKE AGAINST AN ERRANT EAP / SPECIALIST ?
If a competent authority has reasons to believe that an EAP or Specialist has not complied with the general requirements under regulation 13 (other than the requirement of independence), it may:
notify the EAP / Specialist of the reasons therefore;
suspend the Application for environmental authorisation until the matter is resolved;
afford the EAP / Specialist and Applicant an opportunity to make representations to the CA regarding the suspected non-compliance.
WHAT RECOURSE DO INTERESTED AND AFFECTED PARTIES (I&APs) HAVE WHEN EAPs OR SPECIALISTS FAIL TO COMPLY WITH THE GENERAL REQUIREMENTS
An I&AP can notify the competent authority (CA) in writing, of the suspected non-compliance and they must provide documentary evidence to support the allegation.
The CA is compelled to investigate the allegation promptly.
If there is reason to believe that there is non-compliance with regulation 13 by the EAP or Specialist, the CA must inform the I&AP, the EAP/Specialist and the Applicant.
The actions which a CA may take against an EAP/Specialist and/or Applicant who is found to have been in non-compliance with regulation 13, include:
refusing to accept any further reports from the EAP/Specialist
requesting the Applicant to:
commission an external review by another EAP / Specialist
appoint another EAP/Specialist to redo or complete any unfinished work by the previous EAP/Specialist
take any further action to remedy the defects
Where an EAP / Specialist provides incorrect or misleading information, omits information that may influence the outcome of a decision by the CA, or fails to disclose all material information, they can be held criminally liable.
So, in instances where the I&AP does not get any joy with complaining to a CA, they may register a criminal case with the SAPS against the EAP/Specialist.
The maximum penalties on conviction, include a fine of up to R5 million or 5 years imprisonment. A second or subsequent conviction, pushes the fine up to R10 million or 10 years imprisonment.
The only publicized case of an EAP providing misleading information, is that of S v Frylinck & Mpofu Environmental Solutions CC.
The matter revolved around the existence of a wetland which was not disclosed in the EIA.
Frylinck and his firm Mpofu were found guilty by the Pretoria Regional Court of providing incorrect and misleading information which led to the development of a construction site on a wetland.
That complaint was initiated by the Gauteng Provincial Environmental Authority, which kind of explains why the matter ended up as a criminal prosecution.
It would be interesting to see whether the same treatment will be meted out to an errant EAP / Specialist under similar circumstances, where an ordinary I&AP has opened a criminal case.
National Environmental Management Act 107 of 1998.