Environmental Justice
Action in Southern Africa
|
Environmental Justice
Action in Southern Africa |
|
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:
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 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:
|
