TOP 5 EPIC FAILS BY EAPs IN SA
5 MISTAKES COMMITTED BY ENVIRONMENTAL ASSESSMENT PRACTITIONERS
As an independent party in the EIA, the Environmental Assessment Practitioner (EAP) bears primary responsibility for the quality of EIA reporting, and consequently, the quality of the decision by the Competent Authority.
Mistakes by EAPs during the EIA process can result in the wrong decision being made by the competent authority or it can result in the granting of an environmental authorisation for an activity which clearly did not deserve it.
Here are the top 5 mistakes committed by EAPs:
FAILURE TO CONSULT EFFECTIVELY WITH CLIENT
One of the first and most crucial steps an EAP takes in the EIA process, is to conduct an in-depth consultation with the client or proponent.
An in-depth and effective consultation with the client and/or the project team, results in the EAP extracting all the relevant information relating to the proposed activity, the associated infrastructure and related phases of the activity.
Without an effective consultation, the EAP does not have access to a complete project description as well as details of the purpose and need of the project.
Without a complete project description, an EAP cannot conduct an efficient and thorough environmental impact assessment.
Failing to effectively consult with a client, can also jeopardise the quality of the EIA reporting.
LACK OF CONSULTATION WITH COMPETENT AUTHORITY
An EAP is required to consult with the Competent Authority (CA) at the early stages of the application for Environmental Authorisation, in order to receive the appropriate guidance for conducting the EIA process.
Back in the days, this was referred to as the “pre-application consultation”.
Regulation 8 of the EIA Regulations, 2014 requires a CA to advise the EAP (proponent or applicant) of any matter that may prejudice the success of an application. It also requires the CA to advise or instruct the EAP (proponent or applicant) of the nature and extent of any of the processes that may or must be followed or decision support tools that must be used in order to comply with the Act and Regulations.
An EAP commits a crucial mistake if it fails to consult with the CA at the early stages of the EIA process. Failure to consult with the CA can result in EIA reports being rejected for non-compliance or insufficiency, and the application for environmental authorisation being refused.
INSUFFICIENT OR INAPPROPRIATE PUBLIC PARTICIPATION
A crucial aspect of the EIA process is public and stakeholder participation.
It is not enough for an EAP to merely comply with the procedural or technical requirements of the EIA Regulations insofar as public participation is concerned.
What is required from an EAP is a good dose of common sense, practicality, reasonableness and fairness.
Some of the most notable fails in Public Participation include:
South Durban Community Environmental Alliance and Another v Minister of Forestry, Fisheries and the Environment and Others (17554/2021) [2022] ZAGPPHC 741 (6 October 2022)
Where, despite the most commonly spoken language of the project area being isiZulu, the Public Participation Process did not contain any notices or engagements in isiZulu.
Earthlife Africa (Cape Town) v Director General Department of Environmental Affairs and Tourism and Another (7653/03) [2005] ZAWCHC 7
Where, interested and affected parties did not have access to crucial information and documents, as a result of not being afforded an opportunity of making submissions on the final EIR but only the draft EIR.
FAILURE TO CONDUCT QUALITY CONTROL OF REPORTS
Poorly drafted EIA Reports, not only lead to bad EIA decisions, but they can compromise the Public Participation Process by not providing essential information in a manner that is understood by the interested and affected parties.
EAPs who conduct an efficient quality control of their EIA Reports manage to ensure that their reporting is of a high standard.
Those who don’t conduct quality control end up producing reports which don’t make sense, include “cut-and-paste” portions, are not easy to read and understand, and tend to omit crucial information relating to project information and environmental impacts.
PROVIDING MISLEADING INFORMATION
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.
Providing misleading information or even downplaying crucial environmental impacts or issues during an EIA, is a serious issue and attracts criminal liability for an EAP who engages in this unethical conduct.
