In October 2018 the draft National Biodiversity Framework (NBF) was published for public comment. Considering that South Africa is the third most biodiverse country in the world, the government, as custodian of the country's biodiversity, has implemented approximately 30 national strategies, frameworks and systems in the biodiversity sector. The NBF's purpose is to coordinate and align the efforts of the many organisations and persons involved in the complex interplay between these strategies.
The long-delayed contaminated land provisions in Part 8 of Chapter 4 of the National Environmental Management: Waste Act came into effect on May 2 2014. While the act came into force on July 1 2009, the contaminated land provisions have been dormant for almost five years. There are a number of implications of the commencement of the provisions – particularly for the transfer of contaminated land.
The end of 2013 saw a flurry of environmental law publications, which included amendments aimed at aligning the National Environmental Management Act with the Waste Act. Among other things, these provide clarification on the use of Section 24G processes to rectify unlawful commencement of waste management activities, as well as the suspension of future action pending finalisation of a rectification application.
Following the lifting of a moratorium on fracking in the Karoo Basin, new regulations governing fracking must be put in place before the processing of any new or existing applications. In drafting these regulations, the International Energy Agency's Golden Rules for a Golden Age of Gas could be used as a guideline. This update examines those rules that would help to mitigate the environmental impact of fracking.
In 2012 two judgments were delivered regarding the functioning of the Water Tribunal - the forum for hearing appeals under the National Water Act. These judgments were handed down subsequent to the disbandment of the tribunal in August 2012. The minister of water and environmental affairs' failure to make appointments necessary to ensure the proper functioning of the Water Tribunal have come under criticism.
The Constitutional Court recently resolved a longstanding dispute on whether consent or authorisation is required in terms of land use and environmental legislation for mining activities. The court cleared up the confusion regarding the land use planning competence of municipalities, but did not clarify the position on the regulation of environmental matters in the mining sphere.
All new buildings and extensions must comply with the buildings energy usage provisions laid out in the amended National Building Regulations. The amendments introduce requirements for energy usage in buildings by setting minimum standards for energy efficiency with which all new buildings and extensions must comply. The regulations are part of efforts to contribute to reducing greenhouse gas emissions.
Including: Environmental policy and enforcement; Environmental permits; Waste; Liability; Contaminated land; Powers of regulators; Reporting and disclosure obligations; General issues; Emissions trading and climate change; Environmental insurance liability; National Environmental Management Laws Amendment Bill.
The National Environmental Management Waste Act came into force in 2009, with the exception of the provisions that regulate contaminated land. The Department of Environmental Affairs is taking steps as a precursor to the enactment of these provisions. However, as they stand, the provisions fall short of what a potentially effective regime should include.
The National Environmental Management Act, read together with the Criminal Procedure Act, provides for individuals to institute private criminal prosecutions for the protection of the environment. This is a risk for companies which have reached an accommodation with the authorities regarding environmental laws, only to be faced with a private prosecution. While the act facilitates such proceedings, there are limitations.
The environmental effects of public and private sector infrastructure projects in South Africa are regulated by a patchwork of local laws, governing air, water and waste, among other things. This update briefly summarises the main legislation and the environmental authorisations needed to take a project forward.
Several discussion documents have been published recently regarding possible legislative approaches to climate change, all of which recommend market-based instruments to combat climate change. The latest proposes taxation on carbon emissions by setting a uniform tax rate that equals the marginal external cost of emitting an additional unit of greenhouse gas, thereby influencing consumer and producer behaviour.
A recent High Court case considered whether a mining permit exempted Maccsand (Pty) Ltd from obtaining an environmental authorisation under the National Environmental Management Act. The court found that as such a permit did not require an environmental impact assessment, environmental authorisation under the act was necessary.
Recent developments in South African air quality legislation have heralded substantial changes in air quality management by introducing maximum emissions limits and amendments to activities requiring licences. For the first time, specific emissions limits and standards are set for listed activities, specifying permissible amounts, volumes, emission rates and concentrations of particular substances that may be emitted.
In a recent parliamentary question and answer session the Department of Water and Environmental Affairs announced an agreement with the Department of Mineral Resources to issue water use licences and mineral authorizations in parallel in an effort to ensure that mining does not commence before a water use licence has been issued.
There is ongoing debate on whether the National Environmental Management Act extends to liability for historical environmental pollution or degradation that pre-dates the act. The High Court recently held that the provisions are not retrospective and, accordingly, the obligation to take corrective measures does not apply where pollution and degradation were caused or began before the date of commencement of the act.
Since the recent entry into force of the National Environmental Management: Waste Management Act, certain industry representatives have claimed that the new legislation has introduced extended producer liability into law. This update explores whether the act has introduced extended producer responsibility or liability for waste.
As a result of a recent Constitutional Court decision, private entities should note that in public-interest litigation, even if they substantially succeed on the merits, they will generally not be in a position to recover legal costs. The only exception to this rule would be where the public-interest action is found to be frivolous, vexatious or manifestly inappropriate.
This update looks at the provisions of the National Environmental Management Act that seek to expedite the environmental authorization processes by addressing fragmentation in the environmental authorization process and lack of coordination between authorities, and how corporations can make the environmental authorization process work for them.
The High Court recently highlighted the importance of obtaining the appropriate authorization for scheduled processes under the Atmospheric Pollution Prevention Act. In particular, the court highlighted the fact that operating with the wrong type of authorization is unlawful, irrespective of whether the authorities were mistaken about the type of authorization required for a particular activity when granting the incorrect authorization.