History of environmental law

1. Sources of environmental law

 Constitution-section 24
 Legislation-NEMA and related legislation
 International law
 Common law
 Case law

2. The history and development of environmental law

Environmental Law (EL) was fragmented until 1989 when the Environment
Conservation Act of 1989 (ECA) was enacted in an attempt to consolidate
environmental laws. The ECA was enacted to provide for the determination of
environmental policy to guide decision-making. Its objective was to regulate activities
that may have a detrimental impact on the environment and to require that
environmental impact reports be prepared. In that same year, a document was
published (Council for the Environment 1989) outlining a recommended evaluation
procedure for integrating environmental considerations into decision-making at all
stages of the planning and development process. The environmental assessment
provisions in the ECA only became a practical reality however after the adoption of the
Constitution when the new Government made regulations, to give these enabling
provisions practical effect. In the Fuel Retailers Association of SA v Director-
General, Environmental Management, Mpumalanga Province & Others 2007 (6)
SA 4 (CC) case, the court held that para [34] it is therefore common cause that in
considering an application for authorisation under section 22 of ECA, the
environmental authorities were obliged to consider the socio-economic impact of the
proposed filling station. The environmental authorities, however, equate the need and
desirability requirement under the Ordinance with the requirement to consider the
social, economic and environmental impact of a proposed filling station. The questions
which fall to be considered in this application are therefore, firstly, the nature and scope
of the obligation to consider the social, economic and environmental impact of a
proposed development; second, whether the environmental authorities complied with
that obligation; and, if the environmental authorities did not comply with that obligation,
the appropriate relief.
This indicates the role of environmental legislation, in promoting sustainable
development. However, due to the fact that environmental rights were not entrenched,
it was difficult to enforce environmental procedures. Thus, the key constraints to the
development and implementation of environmental evaluation procedures in South
Africa have been:
 the absence of a general environmental policy,
 a lack of political will and awareness of the need to consider environmental
issues,

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  an authoritarian system of government,
 a lack of accountability by decision-makers,
 inadequate public participation,
 inefficient administrative structures,
 legislative inadequacies, as well as a lack of environmental expertise and
financial resources
 lack of popular support afforded environmental issues.

These challenges were expounded by the new government that had to address socio-
economic problems. When South Africa gained independence in 1994, there were
serious social, economic, legal, moral and environment problems. The post-apartheid
government had to take immediate action to address these problems. The government
immediately, after being elected, implemented programmes aimed at improving the
citizens’ quality of life. These programmes were mostly directed at the realisation of
socio-economic rights, which encompass the right to development. As a result, the
government focused on the advancement of socio-economic development and
neglected environmental issues.
As a result, Sowman et al (1995), argue that in order to change SA's environmental
landscape the following factors needed to be attended to:
 The Need to Promote Economic Growth and Development
This is necessary in order to provide for the needs of an expanding population
and to redress the inequalities of the apartheid era. Hence, an environmental
evaluation process would have to take cognizance of these requirements and
encourage development through the identification of environmentally
acceptable alternatives to meet the stated need rather than on focusing on the
negative impacts associated with the proposal.

 The need to consider environmental issues

The failure of South African politicians to recognize the importance of environmental
issues in the planning and decision-making process has retarded the development of
environmental expertise in the country. This entails that there should be a balance
between the economic development agenda and environmental protection. In the Fuel
Retailers case the CC held that [para 44] development cannot subsist upon a
deteriorating environmental base. Unlimited development is detrimental to the
environment and the destruction of the environment is detrimental to development.
Promotion of development requires the protection of the environment.

 Moving away from the Expert/Elitist Approach

The system of apartheid has encouraged the adoption of an expert/elitist approach

toward planning and decision-making Proponents of this model-professional planners

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and engineers, decision-makers and politicians-believe that those who are best
qualified and most knowledgeable should be responsible for making societal
decisions. This is contrary to the NEMA principles specifically section 2(4)(g)-
Decisions must take into account the interests, needs and values of all interested and
affected parties, and this includes recognising all forms of knowledge, including
traditional and ordinary knowledge and section 2(4)(h)- Community well-being and
empowerment must be promoted through environmental education, the raising of
environmental awareness, the sharing of knowledge and experience and other
appropriate means.
Sowman et al alludes that this meant that an increased awareness among the public
of the environmental implications of development activities, as well as a growing
insistence from communities of the right to be consulted, was necessary. Clearly, a
more holistic, multidisciplinary, and participatory approach was urgently required. Any
proposed environmental evaluation procedure in South Africa would have to address
these concerns.

 A move towards participatory democracy and a new Integrated

Environment Management (IEM ) system
This called for a new approach to tackle environmental concerns and integrated public
participation. Sowman et al set out factors relevant to such an approach namely;

The key principles underpinning the IEM procedure are:

 a broad understanding of the term, environment (i.e., one that includes physical,
biological, social, economic, cultural, historical, and political components);
 informed decision-making; accountability for decision taken;
 an open, participatory approach in the planning of proposals;
 consultation with interested and affected parties;
 due consideration of alternative options;
 mitigation of negative impacts and enhancement of positive aspects of
proposals;
 ensuring that the “social costs” of development proposals (those borne by
society, rather than the developers) be outweighed by the “social benefits”
(benefits to society as a result of the actions of the developers);
 democratic regard for individual rights and obligations;
 compliance with these principles during all stages of the planning,
implementation, and decommissioning of proposals (i.e., from “cradle to
grave”), and the opportunity for public and specialist input in the decision-
making process.