Attorneys warn of corruption risks and weaker checks in new environmental impact assessment plan

Following a recent series of public consultation meetings, the government is planning to publish formal proposals in August for a new flexible environmental impact assessment (EIA) system that would give officials much wider discretionary powers.

In response to an invitation to comment on these proposals, several environmental law attorneys and other interest groups have submitted their critiques to the national Department of Forestry, Fisheries and Environment (DFFE) ahead of the 31 May deadline.

In her submission to the department, environmental law attorney Janice Tooley warned that — in the absence of further safeguards — these new discretionary powers could increase the potential for corruption

Tooley, a director of the Durban-based All Rise Attorneys law clinic that provides free legal services to vulnerable and disadvantaged communities and other civil society groups, argues that the proposed “reforms” are unlikely to improve the current process.

“It will simply enable faster processing of applications through a system whose underlying quality and effectiveness deficiencies remain unresolved,” she argues.

Tarisai Mugunyani and Paul Wani Lado, attorneys at the Centre for Environmental Rights (CER), have also raised concerns, suggesting that South Africa is on the brink of “one of the most consequential shifts in environmental governance since the advent of democratic environmental law”.

While the DFFE promised greater efficiency, adaptability and faster approvals, Mugunyani and Lado argue that the plan represents a fundamental shift away from clearly established rules towards greater discretionary powers for government officials.

“A system that adjusts the level of environmental assessment according to the likely environmental impact may sound reasonable. Few people would support unnecessary delays or red tape. But major changes to environmental law should be supported by clear evidence that the current system is failing,” they say.

Yet, they note that the DFFE has just reported that 98% of EIA applications are already being processed within legal timeframes, with “no known delays at the national level”.

The department has also confirmed that approval times in strategic transmission corridors and renewable energy development zones have been reduced from 107 to 57 days, with a reported 99% efficiency rate.

A clearer explanation

In light of these recent assurances, the department now needs to provide a far clearer explanation of why such significant changes are necessary, they say.

“Under the existing framework, the law provides certainty. Projects that trigger listed activities under the EIA Regulations must follow defined assessment pathways. There are thresholds, procedures and enforceable rights. Communities know when they must be consulted, and developers know what is required of them. Critically, decisions can be challenged.”

The proposed system changes would compromise this clarity by introducing a new process in which officials would determine whether a project requires a full EIA assessment, a limited review, or effectively none at all.

“In some cases, projects may be approved on the basis of existing information, without specialist studies and with limited public participation. This ‘early exit’ mechanism is not merely a procedural refinement. It represents a substantive reduction in oversight,” they argue.

“The concern is not simply that officials will exercise judgement; that is part of governance. The concern is that broad discretion without clear safeguards can lead to inconsistent decisions and incentivise lighter scrutiny than others for certain projects.”

There were also indications that the extent of public participation would be limited, and based on “the significance and extent of impacts” of any particular development proposal.

In effect, the extent of public participation would no longer automatically flow from the law but would depend on decisions made by officials during the screening stage. Yet public participation was not simply a “procedural courtesy” but a substantive statutory entitlement affirmed by the courts.

“The current EIA system is not perfect. It can be slow, and it does not always adequately address cumulative impacts. But reform must strengthen, not weaken, the safeguards that underpin environmental governance.”

More fragile

Noting that Section 24 of the Constitution does not provide for a flexible right to a healthy environment, they argue that the government risks replacing a system that is sometimes slow, but legally grounded, with one that is faster, but far more fragile, and that vulnerable citizens will have to bear the consequences of more polluted air, contaminated water and degraded land.

In her submission to the department, Tooley notes that there have been at least three separate evaluation reports of the EIA system since 2008 — none of which recommended a flexible EIA system as the appropriate reform response.

“The option of improving the existing system has not been evaluated with anything approaching the same effort and detail as the proposed flexible EIA system.”

“The evaluation reports consistently show that the core problems are implementation failures, not design flaws: the legal mandate is sound, but practitioners produce weak substance, officials approve it, compliance is not enforced, and capacity has been neglected.”

“The single most important investment the DFFE could make is the development of a credible, accepted methodology for determining the significance of impacts. After nearly 30 years, this remains the central unresolved challenge in South African EIA practice.”

Tooley also flags the potential for corruption to creep into a system where officials are granted wider discretionary powers.

When the outcome of a screening decision determines whether a project proceeds through a streamlined process or a more costly and time-consuming full EIA, there is an inherent risk that the outcome of that decision acquires a monetary value.

“It is an unfortunate reality that concerns about corrupt officials within various competent authorities have circulated within the environmental sector for some time. The proposed system does not create this problem, but by concentrating consequential discretionary power at a single gateway decision — without the transparent criteria, public registers and accountability mechanisms that could constrain it — it materially increases the incentive and opportunity for such practices. Increased discretion, absent robust safeguards, means increased potential for corruption.”

She further emphasises the need for all decisions to be transparent, demonstrably evidence-based and open to meaningful scrutiny.

“Every decision on the assessment route, the scope of public participation and the outcome of the assessment must be accompanied by written reasons that are publicly accessible.

“There should also be provisions for all interested and affected parties, as well as applicants, to appeal the decision on the assessment route before the assessment proceeds.”

Sean O’Beirne, a former CSIR scientist and current environmental assessment practitioner at SE Solutions, has described the DFFE reform plan as “another ill-informed and poorly thought-through revision of the EIA regulations that seeks only to make things easier for applicants”, possibly driven by pressure from the Cabinet.

O’Beirne notes that under the One Environmental System, the Department of Mineral and Petroleum Resources (DMPR) still issues environmental authorisations for prospecting and mining applications.

“That is already a clear conflict of interest. The DMPR, as a competent authority, is far more lenient than the DFFE and many of the provincial competent authorities. Now, we’re talking about giving the DMPR more discretion in their decision-making. That is extremely worrying.” DM