THE EMPIRE STRIKES BACK AT ENVIRONMENTAL PRACTITIONERS
THE EMPIRE STRIKES BACK AT ENVIRONMENTAL PRACTITIONERS
TRIGGER HAPPY ENVIRONMENTAL AUTHORITIES CAUSING CHAOS
Back in January 2022, I wrote about the Proposed changes to the Environmental Registration Authority Regulations. I wrote about the then draft regulations and how I thought they were tantamount to an exclusionary practice or just over-regulating the environmental profession.
This was because the regulations at the time attempted to define exclusive areas wherein only Environmental Assessment Practitioners (EAPs) could practice, even though these areas of practice were not exclusively environmental in nature.
An exclusionary practice or just over-regulating the environmental profession ?
But then, faced with a public outcry particularly from the legal fraternity, the Minister did an about turn and excluded areas such as Appeals from the Registration Authority Regulations.
So it was no surprise when a client of mine, a registered Environmental Assessment Practitioner (EAP), approached me for assistance in a matter which involved a Provincial Environmental Authority claiming to be enforcing the Registration Authority Regulations.
THE FORCE IS STRONG… ON THE DARK SIDE
My client is a registered EAP who employs a person who is registered as a candidate EAP who assists in the preparation of EIA Reports.
As is now a standard practice among EAPs, every report has a “Document Revision Status” table wherein it is indicated who prepared , reviewed and approved a particular version of the report.
In this sad tale, the Provincial Environmental Authority refused to consider the EIA report of my client and proceeded to close the EIA file, based on the following allegations:
That the “Document Revision Status” of the report had indicated that the Candidate EAP had prepared the report - and thus by implication, the Candidate EAP took full responsibility for the completion of the report.
That citing the candidate EAP as compiler of the EIA report was non-compliant with the S24H Registration Regulations
The EIA Report was therefore prepared in contravention of the aforementioned regulations.
SECTION 24H REGISTRATION AUTHORITY REGULATIONS, 2016
Regulation 14(1) states that only a person registered as an environmental assessment practitioner (EAP) may perform tasks in connection with an application for an environmental authorisation…
Regulation 14(2) states that the tasks relate to inter alia, the investigation, assessment and preparation of a EIA reports…
Regulation 14(6) states that when acting under supervision of a registered environmental assessment practitioner, a registered candidate environmental assessment practitioner may assist with the performance of tasks…
It is clear that the purpose of the Registration Authority Regulations is to ensure that only registered practitioners are responsible for carrying out the tasks associated with EIAs. But the regulations also allow for candidate EAPs to assist in carrying out those tasks.
However, in this case, I think the provincial environmental authorities jumped the gun, and did so unlawfully, and in the process caused prejudice to the EAP.
UNLAWFUL CONDUCT OF THE AUTHORITIES
Neither the regulations nor the National Environmental Management Act 107 of 1998 (NEMA) prescribe any of the actions to be taken by an authority, if an EAP does not comply with the registration requirements.
Most importantly, it does not empower any of the authorities to :
Refuse to consider the application for authorisation before it; or
Close the file or application before it.
Critically, even if the authority suspected non-compliance with the regulations, it had a legal and ethical duty to bring these concerns to the attention of the affected EAP and request them to make representations (or simply.. request them to explain or defend themselves).
Unfortunately for my client, he was not given an opportunity to defend himself or clarify the situation. He was issued a “closure letter” containing the allegations and advised to inform his client accordingly.
Even if a Candidate EAP has prepared an environmental report, it is only reasonable to assume that the candidate has done so under supervision of the registered EAP and has provided assistance (as opposed to taking full responsibility for the work).
It is quite absurd to allege that, because a candidate EAP has prepared a report, that he/she has taken full responsibility for the preparation, investigation and assessment.
Even if a candidate EAP has prepared the EIA report, it is considered a part of the “assistance” which the candidate renders to the professional EAP.
It is really worrying that a competent authority behaves in such a manner, where it :
Makes unfounded and defamatory remarks concerning an EAP;
Interprets the regulations in such a restrictive manner- and draws such absurd conclusions therefrom; and
Takes such drastic and unlawful action against the EAP, which not only jeopardizes the welfare of the EAP but the proposed development/project.
It is quite absurd to allege that, because a candidate EAP has prepared a report, that he/she has taken full responsibility for the preparation, investigation and assessment.
I do believe that any Competent Authority which refuses to consider an Application for Environmental Authorisation and thereafter summarily closes the EIA file, under suspicion that the Registered EAP did not prepare and take full responsibility for the preparation of an EIA report - has acted ultra vires.
Such conduct is prima facie unlawful and not in the best interests of the Environmental Assessment Profession.
I am just hoping that this is an isolated incident, and that EAPs all over South Africa are not experiencing this trigger-happy attitude from Environmental Authorities…
I’m keen to hear your views on this matter.
MAY THE FORCE BE WITH YOU ….