TOP 5 ERRORS BY EAPS THAT ARE SINKING EIAs
For 2026, I am going all out.
I want to shift the narrative from "tearing reports apart" to helping Environmental Assessment Practitioners (EAPs) build bulletproof applications.
Let’s be honest: no one wants to be the person who launches an appeal against your hard-earned Environmental Authorisation. It’s costly, it’s time-consuming, and it stalls development.
But if we are going to stop the "sinking" of EAs on appeal or review, we have to start by talking about the one error that continues to bug me—and the one that judges are increasingly unforgiving of:
PUBLIC PARTICIPATION
Public Participation is not a "tick-box" administrative hurdle. It is the cornerstone of environmental law and a constitutional right to administrative justice.
The Fatal Errors I see far too often:
Selective Notification: Missing key Interested and Affected Parties (I&APs).
The "Holiday Squeeze": Pushing comment periods during restricted windows (like Dec 15 – Jan 5) where meaningful engagement is impossible.
Dismissive Responses: Failing to provide substantive, evidence-based answers to the concerns raised by the public.
Language Justice: We can no longer ignore the dominant language of the affected area.
The Supreme Court of Appeal made this crystal clear in SDCEA v Minister: DFFE (2025). If the community can't understand the impact in their primary language, the process isn't just "poor"—it's legally invalid.
SPECIALIST STUDIES
SPECIALIST STUDIES (or the lack thereof) can cause your EIA ship to run aground.
This is another major error by EAPs which I find most worrying.
Failing to commission the appropriate specialist study (for e.g. a project having major heritage issues, but no heritage studies commissioned)... or failing to commission a particular study despite it being raised as a significant issue during scoping.
Relying on desktop studies from 7 years ago or failing to conduct seasonal sampling.
Downplaying the findings of specialists or even contradicting the findings without providing a reasoned explanation as to why they departed from the specialists findings.
orJust plain ignoring the findings of the specialists in the impact statement/EIR.
MITIGATION
Failure to Adhere to the Mitigation Hierarchy:
The Error:
Skipping straight to "minimization" or "offsetting" because it is more convenient for the developer, without proving why the impact cannot be avoided entirely.
This remains one of the most common points of failure for EAPs.
EAPs often assume that because a developer has a "preferred" site, avoidance is impossible.
They skip straight to "Minimizing" or "Rehabilitating" impacts that could have been avoided entirely through better site selection or technological alternatives.
Our courts increasingly demand proof that avoidance was genuinely explored.
If the EAP cannot show a rational "No-Go" or "Site Alternative" analysis, the mitigation plan is legally flawed from the outset.
ALTERNATIVES
One error by EAPs that is particularly frustrating is the Failure to Assess Reasonable Alternatives . This is the most common "fatal flaw."
EAPs often focus only on the developer’s preferred layout, failing to investigate the "No-Go" alternative or genuine site/technology alternatives.
Then there is the practice of presenting "alternatives" that are not feasible or are merely slight variations of the same plan.
A dangerous trend has emerged where EAPs present "alternatives" that they know from the start are impossible and unfeasible. This is done to give the false impression that they have investigated alternatives in compliance with the regulations.
These are called "SWEET-HEART" reports: a biased document intended to justify a decision already made.
The "No-Go" option (the status quo) is frequently dismissed in a single paragraph as "economically detrimental."
These errors have the effect of preventing the decision-maker from weighing up the environmental cost, as there is no comparative scientific assessment of what happens if the project does not proceed.
A "smokescreen" is easy for high court judges to see through. They simply ask: "Was there a version of this project that caused less harm but met the same goal?"
PRECAUTIONARY PRINCIPLE
When an EAP faces scientific uncertainty, they often make a "fatal" choice:
* they interpret the absence of evidence as evidence of absence of harm. *
The Precautionary Principle, enshrined in NEMA, mandates a "risk-averse and cautious approach" which takes into account the limits of current knowledge.
When specialists provide conflicting data or state that "more research is needed," EAPs frequently default to a "Low Significance" rating in the EIR.
They argue that because a specific harm has not been proven to occur in South Africa, it is unlikely to occur.
In the 2025 TEEPSA (TotalEnergies EP SA) Judgment, the court found that the EAP's failure to assess the "worst-case scenario" (a full blowout) because it was "unlikely" was a violation of the Precautionary Principle.
The court ruled that unlikely does not mean impossible, and a cautious approach requires planning for the catastrophe.
EAPs often try to bypass uncertainty by suggesting: "We will monitor the impact during construction, and if we see harm, we will stop."
This "wait and see" attitude is a direct violation of the duty of care.
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