World needs better green laws, conference told

There is no shortage of environmental laws and policies in SA and globally, but environmental injustices continue to be perpetrated, often at the expense of the poor, writes Legalbrief Environmental. So said academics and environmental experts speaking at the International Association Impact Assessors (IAIA) annual conference in Durban last week. Addressing the theme of Environmental Justice in Societies in Transition, more than 900 delegates from around the world heard of the urgency for impact assessors and others in the environmental planning space to play a mitigating role. Speaking at the opening plenary session, eThekwini councillor Nkosenhle Madlala noted that the conference theme spoke directly to Durban's inherited apartheid spatial planning inequalities and where the marginalised continue to bear the brunt of industrialisation and climate change. In the same vein, professor of environmental law at North-West University, Louis Kotze, at an environmental law breakaway session, said corporate colonialism and global elitism meant unrestrained growth for only a privileged few. Climate denialism in the face of continued carbon-intensive and exploitative practices, he added, fuelled the inequalities. He pointed to a lack of a sense of ethics and environmental obligation, citing the US withdrawal from the 2015 Paris Agreement as a case in point. The existence of a strong body of global climate laws has not helped to sufficiently mitigate against climate change and offer resolution, leading to the concerns about the effectiveness of existing laws. Kotze called for policy and lawmakers to redesign and reform laws, saying instead of making more laws, there was a need for better laws. ‘This was not a time for complacency,’ he said.

Full Legalbrief Environmental report

The lack of political will to put capacity into enforcement in SA, was alarming, said Nicholas King, one of the editors of the third edition of Environmental Management in South Africa, launched by Juta at the conference. Referred to as the ‘green bible’, the book was released 10 years after its second edition and was jointly edited by King, HA Strydom and FP Retief. A Legalbrief Environmental report notes that King hoped that as degradation of the environment continues, the book would bring a renewed understanding of the concept of environmental justice, so that SA could improve and achieve its environmental objectives as set out in the National Development Plan. SA was better placed than many countries to deliver environmental justice as Section 24 of the Constitution implicitly provided for the protection of the environment and people’s health and wellbeing, said Environmental Law Association chair Advocate Peter Kantor. However, he noted that it was easier to win environmental cases on procedural grounds rather than substantive grounds in SA courts. The ongoing case of Earthlife Africa v the Minister of the Department of Environmental Affairs and Tourism was an example of delayed environmental justice, where the Minister decided to uphold an EIA for authorising the building of the coal-fired power station Thabametsi, despite a challenge from Earthlife Africa. The outcome of this challenge was due later this year and may well proceed to the Constitutional Court, said Kantor. Referring to other legal challenges, including Earthlife Africa Johannesburg and Another v Minister of Energy and Others; Fuel Retailers Association of Southern Africa v Director-General of Environmental management; Maccsand Ltd v City of Cape Town and Others; and Parkscape v MTO Forestry and Another, Kantor questioned whether procedural justice was enough to prevent environmental harm. ‘Should the courts defer to the executive, and do the courts have too little/too much power to adjudicate environmental injustice?’ he asked.

Case background

Another thorny issue that surfaced was whether EIAs should include community consent. Willemien du Plessis, from the NWU’s environmental law unit, said the dilemma for impact assessors was whether community participation alone was adequate for an EIA, and whether communities could be decision-makers, notes a Legalbrief Environmental report. And if community consent was agreed to, she added, the question that emerged was, ‘Who was the community?’

Earlier, at the opening plenary session, retired Constitutional Court Judge Albie Sachs raised the controversial issue of race and environmental activism. Asking whether you had to be ‘white to be green’, Sachs said for many poor people whose immediate concerns were social advancement and escape from poverty, saving the rhino or the habitat of a small butterfly may mean little. But, writes Legalbrief Environmental, Sachs said if the approach to environmental activism focused on the earth, South Africans from all sectors would have a stronger connection to it and it could be a strong unifier. Environmental laws and policies, he said, represented human interdependence and went beyond the protection of rights to clean air, water and environment, etc. but also spoke of a need for a less greedy, less egotistical society. Sachs advocated for the inclusion of environmental protection as a fundamental right to be included in the Constitution, making SA the first country to do so.

See Analysis (below)

Full Legalbrief Environmental report