ATC130521: Report of the Portfolio Committee on Water and Environmental Affairs on the National Environmental Management Laws Amendment Bill [B13-2012], dated 15 May 2013.

REPORT OF THE PORTFOLIO COMMITTEE ON WATER AND ENVIRONMENTAL AFFAIRS ON THE NATIONAL ENVIRONMENTAL MANAGEMENT LAWS AMENDMENT BILL [B13-2012], DATED 15 MAY 2013.

The Portfolio Committee on Water and Environmental Affairs having considered the subject of the National Environmental Management Laws Amendment Bill [B13-2012], (National Assembly – sec 76), referred to it and classified by the Joint Tagging Mechanism (JTM) as a section 76 Bill, reports as follows:

The National Environmental Management Laws Amendment Bill (the Bill) was introduced and referred to the Portfolio Committee on Water and Environmental Affairs (the Portfolio Committee), on 6 May 2012. The Bill is a composite amendment Bill, which seeks to amend five pieces of environmental legislation, namely the National Environmental Management Act, 1998, Act No.107 of 1998 (NEMA); the National Environmental Management: Biodiversity Act, 2004, Act No.10 of 2004 (NEMBA); the National Environmental Management: Air Quality Act, 2004, Act No. 39 of 2004 (NEM:AIR QUALITY); the National Environmental Management Laws Amendment Act, 2008, Act No. 62 of 2008 (NEMLA); and the National Environmental Management: Protected Areas Amendment Act, 2003, Act No. 57 of 2009 (NEM: PROTECTED AREAS).

The Portfolio Committee processed the Bill, by receiving briefings from the Department of Environmental Affairs (the Department), calling for written submissions from the public, hosting public hearings for oral submissions by the public and the Portfolio Committee engaged in deliberations on the Bill. After deliberations, the Portfolio Committee proposed that the Bill be split into two Bills, and to propose the immediate passing of the National Environmental Management Laws First Amendment Bill (the First Amendment Bill), in order to amend the following Acts;

• National Environmental Management: Biodiversity Act, 2004, Act No. 10 of 2004, (NEMBA);
• National Environmental Management: Air Quality Act, 2004, Act No. 39 of 2004, (NEM:AIR QUALITY);
• National Environmental Management: Waste Act, 2008, Act No. 59 of 2008, (NEM:WASTE);
• National Environmental Management Laws Amendment Act, 2008, Act No. 62 of 2008, (NEMLA); and
• National Environmental Management: Protected Areas Amendment Act, 2009, Act No. 57 of 2003 (NEM: PROTECTED AREAS).

The First Amendment Bill was adopted by the National Assembly on 14 November 2012 and was recently adopted with amendments by the Select Committee on Land and Environmental Affairs, in the National Council of Provinces (NCOP), on 7 May 2013.

The Portfolio Committee further agreed that the proposed amendments in the Bill to the National Environmental Management Act, 1998, Act No.107 of 1998, (NEMA), required further deliberation, as they raised serious constitutional and political challenges, in respect of which the Portfolio Committee required further information, legal advice and proposed amendments. These amendments would then be processed in a separate Bill, when the necessary information, advice and amendments was placed before and processed by the Portfolio Committee and would then be passed as a National Environmental Management Laws Second Amendment Bill, B13 of 2013 (the Second Amendment Bill).

The Second Amendment Bill, after the said information, advice and amendments was placed before the Portfolio Committee and after thorough and exhaustive debate and discussion, has now been processed and unanimously adopted by the Portfolio Committee. The Portfolio Committee also agrees with the tagging of the Bill as a section 76 Bill and is of the view that the Second Amendment Bill should also be tagged as a section 76 Bill.

As the Second Amendment Bill makes many substantive and innovative amendments to the present environmental legislative framework, contained in NEMA, the Portfolio Committee deems it prudent to elaborate on some of the amendments, as follows:

1. Clause 2 amends section 11 of the Act to adjust the time-frames for the preparation of environmental implementation plans and environmental management plans by national and provincial government departments to enable a five (5) year as opposed to four (4) year planning horizon to achieve mainstreaming of environmental considerations into policy management systems and implementation and decision making within national and provincial government structures.

2. Clause 3 inserts a new section 16A to provide for the preparation and publication of national, provincial and, on a voluntary basis, metropolitan and district municipal, four-yearly environmental outlook reports, to track the state of the environment and the effectiveness of the environmental management system in achieving the desired level of sustainability. The preparation and publication process, procedure, format and content of these reports are determined by the Minister.

3. Clause 4 inserts a new section 23A to promote or facilitate the mainstreaming of integrated, environmentally sustainable and sound management considerations into business processes, practices, technology and decision-making, within and across civil society, especially the economy. The Minister may provide guidelines on the development, content and use of voluntary or organisation based instruments, consider such instruments and endorse or approve them.

4. Mindful of the urgent need for sustainable development in our country; the need to effectively track the environmental management systems and mainstream plans and processes implemented by national and provincial Departments; the need to monitor the environmental sustainability of development and the need to facilitate the selection and use of the most appropriate and effective environmental management instruments and spatial tools in developmental decision-making, amendments to section 24, the centerpiece of NEMA, have been made that will give effect to these intentions. Clause 5 amends section 24 of the Act to enable, when appropriate, the use of spatial tools, norms and standards and environmental management instruments in decision-making as an alternative to environmental authorization procedures, where:

i. Specified activities in certain geographical areas, based on environmental attributes and specified in adopted spatial tools or environmental management instruments may be excluded from the requirement to obtain an environmental authorisation;

ii. Listed activities may be excluded from the requirement to obtain an environmental authorisation as long as they comply with adopted norms or standards;

iii. Listed activities, based on adopted environmental management instruments may be excluded from the requirement to obtain and environmental authorisation; or

iv. The Minister may prohibit the granting of environmental authorizations in a particular geographic area if it is necessary to ensure the protection of the environment.

5. Clause 5(d) amends section 24(5)( bB ) and was inserted to allow the Minister or the MEC, in concurrence with the Minister, to lay down the procedure for the preparation, evaluation and adoption of the instruments referred to in section 24(2)(c),(d) and (e), including criteria or conditions to be included in such instruments. This power is to be distinguished from the regulation-making power in section 24(5 )( bA ), which relates to environmental management instruments that are considered when decisions are made, for example, when an environmental authorisation is issued.

6. Clause 6 makes amendments to section 24C of the Act in order to address the concern that there is a lack of clarity in the procedure in identifying the Minister as the competent authority to issue environmental authorizations where an activity has international implications. It also inserts a new subsection (2A), to provide clarity on the procedure for identifying the Minister as the competent authority, under circumstances where the MEC is usually the competent authority, for example renewable energy applications, and where the activity has now been declared a national priority by Cabinet. Furthermore, new and innovative subsections are inserted to address the procedure to be followed, in instances where a MEC is the competent authority and may fail to take decisions on the issuing of environmental authorisations within the prescribed time-frames, due to the lack of capacity or for any other reason, an amendment has been introduced to give the Minister responsible for environmental affairs the power to take the decision under certain strictly prescribed circumstances. When considering clause 6(d) (subsection (2A) of section 24C) the Portfolio Committee was mindful of section 125(2 )( b) of the Constitution of the Republic of South Africa, 1996, which provides that the Premier has the power to implement all national legislation within the functional areas listed in Schedule 4 or 5 of the Constitution, except where the Constitution or an Act of Parliament provides otherwise. The intention of this amendment is therefore to make provision for this exceptional circumstance, in instances where the MEC either unreasonably or due to capacity challenges or for any other reason, fails to take a decision within the prescribed time-frames. The Portfolio Committee was also mindful of section 125(3), which obliges the national government by legislation or other measures to develop the administrative capacity of provinces to the extent required for the effective exercise of their powers and performance of their functions. The Minister is obliged to report annually to Parliament on the exercise of this power.

7. Clause 9 makes substantive amendments to section 24G of the Act, to address the numerous complaints received from the public that section 24G (rectification of the commencement of unlawful activities performed without the necessary environmental authorization - EIA) is extensively and excessively abused, in that applicants proceed with illegal activities on the assumption that their 24G applications will be successful and further that competent authorities have experienced a reluctance from the National Prosecution Authority to institute prosecution once a person applied for or has been granted an environmental authorization, retrospectively, in terms of section 24G. The Minister of Environmental Affairs, the Minister of Mineral Resources and the MEC responsible for environmental affairs are granted new substantive powers to issue directives to curb the present abuse of this retrospective procedure. The administrative fine has been increased considerably. The requirements for the report to be compiled by the applicant have been tightened. The section has also been amended to make it clear that criminal prosecution may still be instituted despite the fact that a person has applied for or been granted an environmental authorisation in terms of section 24G. The amendment also allows the Minister of Environmental Affairs, the Minister of Mineral Resources or the MEC to defer a decision until such time that the criminal investigation has been concluded. Most importantly, the Minister has also, for the first time ever, been granted these powers in respect of the rectification of unlawful activities in terms of the NEM: Waste Act.

8. Clauses 13 and 14 introduce amendments that clarify the distinction between an “incident” as referred to in section 30 of the Act; and an “emergency situation” which will be regulated in terms of a new section 30A. While section 30 deals with the reporting and remediation duties of a person responsible for the sudden, unexpected and uncontrolled release of a hazardous substance; a new section 30A seeks to address a situation where a listed or specified activity is about to commence in response to an “emergency situation”, where the time-frames do not allow for normal environmental assessments or applications for environmental authorisations. An example of the latter “emergency situation” is the commencement of flood defence activities by a local authority in response to sudden and inclement weather conditions. In these types of emergencies/disaster situations, the urgent response times would not permit the conducting of the normal environmental assessment and authorization process, but would now be subject to written or verbal directives by the competent authority. The definition of an “emergency situation” is now aligned to a “disaster” as defined in the Disaster Management Act, 2002 (Act No. 57 of 2002).

9. Clause 20 inserts a new subsection 2 in section 34H to serve as a reminder to the authorities that the High Court is not bound by the limitation in relation to penalties set by this Act and that in cases where the competent authority is of the view that more severe penalties are warranted, it can approach the National Prosecuting Authority to institute criminal proceedings in the High Court.

10. Clause 25 consolidates the offenses, penalties and defences clauses scattered throughout the Act, into a single section, for ease of reference. It also further clarifies the defence provision in section 49A( 2) which is only applicable to the offence relating to the commencement of a listed or specified activity in the absence of an environmental authorization (section 49A(1)(a)). The defense provision is only applicable in the event that a listed or specified activity commences without an environmental authorization in response to an “emergency situation” as defined in section 30A or to an “incident” as defined in section 30. In relation to an “emergency situation”, the defence is only applicable if the response complies with the directive issued in terms of section 30A. In relation to an “incident”, the defence is only applicable if the response is aimed at complying with the obligations set out in section 30(4) and is necessary and proportionate in relation to the threat to human life, property or the environment.

11. The remaining clauses not specifically referred to above are either consequential amendments arising from the substantive changes referred to above or adjustments in the process of consolidating the offences and penalties clause or adjustments to definitions and terminology to ensure consistency.

12. In order for this Bill, when enacted, to come into effect the following requires immediate action by the Department:

(a) Section 16A(4) requires the publication of a notice in the Gazette determining the procedure for compiling the environment outlook report, and the format and content of the report;

(b) Section 23A requires the development of guidelines relating to the development, content and use of voluntary organisation or sector-based instruments; and

(c) Section 44( aD ) requires the development of regulations relating to the procedure to be followed when oral requests are made in terms of section 30A.

Acknowledging, therefore, that it will not be possible to bring ALL the sections of the Bill into effect immediately, the Schedule to the Bill indicates the dates on which the various sections will enter into force. Therefore, all the clauses of the Bill will come into effect immediately upon publication of the Bill in the Gazette by the President, in terms of Section 81 of the Constitution, except for four (4) clauses, which will come into effect at a later date.

The Portfolio Committee further notes that these amendments are part of the Portfolio Committee’s ongoing efforts to monitor and improve the Environmental Management system both in the immediate and longer term. In this context the Portfolio Committee notes that the legislation is focused to a large extent on regulating sustainable production and that there is little emphasis on sustainable consumption issues. To this end, the Portfolio Committee requests the Department to provide the Portfolio Committee with a report, before the end of 2013, on possible options for a more comprehensive and balanced integrated environmental management system.

The Portfolio Committee recommends that the House agrees that the Second Amendment Bill should be tagged as a section 76 Bill and that the amendments contained in the Second Amendment Bill be adopted.

The Portfolio Committee requests the House to adopt this Report.

Report to be considered .