Presented by: ADRIAN POLE

Transcription

1 Presented by: ADRIAN POLE

2 South African environmental case law overwhelmingly reflects a narrow definition of the environment that is not infused with social justice issues.

3 Over the years, SDCEA has engaged in litigation as a tactic somewhat surprisingly, this has overwhelmingly been in the form of narrow defences of traditional environmental protection, and largely through the lens of administrative law principles in which the environmental context is peripheral.

4 On the Mondi case: Notwithstanding the immediate judicial victory, the Mondi case highlights some of the limits of pursuing environmental challenges through narrow, administrative law arguments. Indeed, the judgment has been criticised by Michael Kidd: the fact that the impugned decision concerned an environmental authorisation was incidental, and the case can be further critiqued in that it did not delve into socioeconomic issues that are the core of SDCEA s environmental justice agenda.

5 On the PBMR case: Although the litigation was instrumental in scuppering the PBMR plans, it was an extremely narrowly constructed case. As explained by Kidd the environmental nature of the administrative decision was not a critical aspect of the case Nor did the legal team raise any of the other broader impacting environmental issues that Earthlife Africa espouses, such as health-related concerns over nuclear power, the need to invest in renewable energy etc.

6 The authors conclude that: - Environmental organisations have been playing it safe; - Winnable points have been pursued rather than pushing the boundaries of s24 of the Constitution; - Not venturing into the brown and red components contained in the socio-economic rights clauses; - Narrow judicial wins result in pyrrhic victories; and - Organisations, lawyers and judges have a responsibility to contribute towards developing a more integrated and progressive interpretation of environmental law.

7 The distinction between appeal and review Appeal and review are both ways of reconsidering a decision. While the reason for seeking one or the other is usually the same that is, dissatisfaction with the result appeal and review perform different functions. Appeal is appropriate where it is thought that the decision-maker came to a wrong conclusion on the facts or the law. It is concerned with the merits of the case Review, by contrast, is not concerned with the merits of the decision but whether it was arrived at in an acceptable fashion. Hoexter C, Administrative Law in South Africa

8 While this clear distinction may have become blurred under PAJA, Hoexter goes on to note: The distinction between review and appeal continues to be asserted and upheld every day in the courts, and generally without qualification. The reason is that the distinction reflects the separation of powers, a fundamental pillar of our constitutional order.

9 Background - The applicant and authority agreed that a full EIA would not be required because project = positive for the environment - Authorisation granted to build multi-fuel boiler at Mondi s Merebank Paper Mill, South Durban Industrial Basin - SDCEA approached the LRC with instructions to appeal against the EIA authorisation.

10 Grounds of Appeal - Issue was taken with assertion that the boiler would have no negative impact on the environment but would in fact be positive. - Negligible reduction in SO₂ and NOₓ (ambient concentrations exceeded applicable guidelines). - 15% increase in particulate matter (PM) emissions. - 47% increase in COх emissions (notwithstanding climate change concerns). - Before figures were calculated on existing gas usage of 70% (calculations at 100% nullified benefit claimed).

11 - Dioxin formation had not been properly assessed. - Alternative of using gas (instead of coal, sludge and other waste streams) not properly considered. - Reliance placed inter alia on s24, s25 and s28 of the SA Constitution. - Purported agreement was procedurally unfair (audi alteram partem) regarding the relevant authority s decision in this regard.

12 Judicial Review - Brought before the EIA appeal was decided (unusual). - Challenged the validity of a s28a exemption that was granted after the EIA authorisation was granted. - Based on procedural requirements for s28a exemption - Clear violation of s3(1) of PAJA - Court declared the exemption a nullity and directed the appeal authority to disregard it in deciding the appeal.

13 Result: - Led to the authorisation being abandoned; - Space created by judgment used in an attempt to win concessions from Mondi by negotiation (ultimately unsuccessful). - Impact on the manner in which EIAs were conducted and EIA appeals handled in KZN.

14 Background - Eskom sought authorisation for construction PBMR nuclear reactor. - Legal input at submission/comment stage of EIA. - Environmental authorisation granted. - Earthlife instructed the LRC to appeal against the EIA authorisation.

15 Grounds of Appeal - Fundamental flaws in EIA process (issues eliminated from the EIA process during scoping included final disposal of HLRW, nuclear proliferation, epidemiological effects of nuclear activities and radiological safety). - Failure to establish a need for the PBMR (especially in the context of then national policy and consideration of alternative energy sources). - Failure to consider alternatives to the PBMR. - Failure to consider critical safety aspects (assumed to be inherently safe ).

16 - Failure to adequately assess economic impacts of the PBMR (including economic impacts of a nuclear disaster, inadequate lifecycle costing, impairment of investment in other renewable energy projects). - Biophysical aspects incomplete as nuclear accident was not considered. - Failure to assess waste impacts of the PBMR.

17 Judicial Review - Also brought before the EIA appeal had been decided - Principal ground of review based on an allegation that Earthlife s right to procedurally fair administrative action has been infringed (s33(1) of the Constitution, read with s6(2)(c) of PAJA): Access to crucial information not provided. No opportunity to make representations on final EIR. Confined to making submissions to EIA consultant rather than to the decision-maker.

18 Full bench of the Cape High Court: - Audi rule to be applied at adjudicative stage and not only investigation phase of EIA. - New facts had been placed before the decisionmaker in the final EIR and Earthlife was entitled, as part of its right to procedural fairness, to a reasonable opportunity to make representations to the DG on the new aspects not previously addressed in its submissions in relation to the draft EIR. - Earthlife EIA submissions not read by decisionmaker, thus as a fact, the DG took his decision without any regard to the applicant s submissions and indeed without knowing what they were.

19 - In these circumstances, I am driven to the conclusion that the process that underlay the decision of the DG was procedurally unfair and falls to be set aside. - In the light of the conclusion I have reached, it is not necessary to deal with the two subsidiary review grounds, namely that the DG failed to properly address the problems posed by nuclear waste at the proposed PBMR; and that the DG abdicated his responsibility to properly consider safety issues by deferring to the National Nuclear Regulator.

20 Result: - EIA authorisation was reviewed and set aside. - Impact on how EIAs were conducted. - PBMR ultimately abandoned.

21 In summary: - In both cases administrative appeals had been lodged, including on broader merit issues. - In both cases judicial review was used as a tactic to overturn the environmental authorisations (without having exhausted internal remedies).

22 Were these cases (reviews) the appropriate forums within which to bring broader environmental and socio-economic arguments?

23 the distinction between appeal and review, which is still very much part of our law, would mean that the court could not decide whether the decision was incorrect on the merits. Kidd M, Greening the Judiciary PER/PELJ 2006(9)(3)

24 - Important to distinguish between appeal and review. - Important to understand the separation of powers doctrine. - Grounds of review in PAJA powerful weapons in strategic environmental litigation (and open pathway to introduction of merit arguments e.g. in respect of rationality, reasonableness etc.) - Other avenues include direct access applications to CC and declarators.

25 And remember: Bad cases make bad law!!