A CAUTION TO CIVIL SOCIETY
The development of Environmental Management Co-operative Agreements in SA

WHAT ARE EMCAs?

Section 35 of the National Environmental Management Act of 1998 (NEMA) states that any tier of government may enter into environmental management co-operation agreements (EMCAs) with any persons or community for the purpose of promoting compliance with the principles of the Act.

EMCAs have primarily been used in several developed countries as a supplementary tool for taking polluting industries beyond compliance with the requirements of the law, that is to commit to further emission reduction targets.

THE HISTORY OF THE EMCA PROCESS IN SA

In the past few months industry and government have been involved in bilateral negotiations around the development of various EMCAs in South Africa.

Several SA organisations including groundWork, Earthlife Africa, the Wildlife and Environment Society of South Africa (WESSA), the South Durban Community Environmental Alliance, Table View Residents Association and the Sasolburg SANCO, have highlighted their concern about the current EMCA process both to industry and to government.

These organisations are questioning whether EMCAs are the correct and priority tool for addressing the current dearth of environmental laws and enforcement mechanisms in SA.

WHAT IS THE PROBLEM WITH IMPLEMENTING EMCAs IN SA NOW?

Whilst we do not have a problem with EMCAs in theory, and believe that they could be a useful tool for achieving sustainable development, the timing and use of EMCAS in the current context raises some concerns for us. Our primary concerns regarding the current EMCA process are as follows:

1. EMCAs are supplementary instruments

EMCAs are useless unless they are first underpinned by clear pollution control regulations and standards which are enforced. The primary use of voluntary agreements is as supplementary tools to strong legislation, regulations and standards and not as substitutes thereof. In South Africa EMCAs can be used to bring industry into compliance with the law, instead of taking them beyond compliance with the law.

2. Inadequacy of current legislation and regulatory framework as platform of departure

The foundations of strong legislation and standards, which are the necessary pre-conditions for the successful implementation of EMCAs, are not yet in place in SA. A government guideline document on EMCAs recognises this point. However, in practice government appears to be disregarding this important fact. Presently, South Africa does not have the necessary pollution control standards and regulations to warrant the attention being given to EMCAs. It would seem that in SA, there is a move by both industry and government to finalise EMCAs before (and not after) strong legislation and enforcement mechanisms are put in place. Thus this process appears as an attempt to delay the implementation of strict laws and standards. It is our fear that these EMCAs are being developed as substitutes for strong laws and standards and will allow government to abdicate its responsibility in setting laws, ambient air standards and emission standards.

The current environmental law reform process being undertaken by the DEAT is intended to develop a strong regulatory and enforcement system, which will lay the necessary foundation for the subsequent implementation of EMCAs. For various reasons the Law Reform Process has experienced many delays over the past few years. We strongly call for the speedy finalisation of the Law Reform process.

3. EMCAs are not binding

These voluntary agreements (EMCAs) are not binding, so an industry party to an EMCA could pull out and/or renege on the agreement at any time without being sanctioned. This highlights the need for there to be strong laws, standards and enforcement mechanisms (including penalties and sanctions) in place before EMCAs are developed.

4. Civil Society Inclusion and Participation

There have been ongoing discussions between industry and government around EMCAs for several years. From our knowledge civil society has been excluded from these discussions. It has been recognised internationally that, in order for voluntary codes such as EMCAs to be successful, civil society must be included from the outset.

5. Exclusion of other government bodies

Provincial and local government structures have not been included in the negotiations around EMCAs, despite the fact that the NEMA states that EMCAs must only be entered into with the agreement of every organ of state which has jurisdiction over the said activity. The processes of negotiating individual EMCAs and Site Implementation Plans, as well as the monitoring thereof, are likely to draw extensively on the manpower of provincial and local government structures.

Both local and provincial government structures are currently stretched way beyond their capacity and the additional burdens of EMCAs are likely to stretch them even further, thereby reducing their effectiveness and ability to deliver.

6. Inappropriateness of EMCAs now in SA

Our research concludes that, internationally, the successful implementation of EMCAs is dependent on a certain context. This context includes:

• a strong environmental legislative framework, which is the primary policy instrument underpinning environmental governance
• rigorous enforcement of laws
• environmental protection enjoys political prominence and consequently environmental departments are well resourced and financed
• a high degree of awareness amongst consumers and civil society about environmental issues and the need for environmental protection to be a priority
• business and industry is generally sensitive to the impact of environmental issues and incorporate environmental considerations into business strategy

None of the above conditions exist yet in South Africa, although they are currently receiving attention in the Law Reform Process. The timeframes adopted for the implementation of EMCAs in South Africa should take the above into consideration.

7. Possible implications of EMCAs being developed in SA now

• The EMCA will be a license for industries not to comply with environmental laws or regulations
• Polluters will not be penalised for polluting the environment
• Government will abdicate its legal responsibility to monitor and enforce pollution
• The options available for civil society to pursue their rights for a healthy environment may be severely limited

THE WAY FORWARD:

We support government’s endeavours to find solutions to the environmental problems we experience daily. We concur with government that the current legislative, regulatory and enforcement regime around environmental protection are extremely lacking and that serious measures need to be adopted to protect the public and environment from pollution and chemicals. However, we do not believe that EMCAs are the correct, priority tool for correcting this situation.

Instead we call for government to prioritise the following process and measures:

• The fast tracking of the environmental law reform process, with particular priority to integrated pollution, chemical and waste management
• Drafting of legally binding standards for emissions and ambient air quality
• Increased resources and finances to be set aside for integrated pollution, waste and chemical management
• National standards to be set for reporting and monitoring requirements.