This article is intended as part of a series, the first of which was published in Without Prejudice in July 2013 and which was entitled “The Evolution of South African Environmental Law”. The thrust of that article is that the practice of environmental law has developed, particularly in recent years, to take a more central role in commercial decisions and as a component of broader commercial legal practice. This article and an intended third in the series consider the scope of environmental legal practice in modern South Africa.
The professional life of the environmental lawyer is eclectic and the legal skill is often applied in a range of circumstances, many of which are novel and require as much creative thinking as they do legal acumen. This article gives a flavour of this variability in practice by describing a limited set of recent activities of the ENSafrica Environmental Department and seeks to provide insight into the relevant legal connotations. The issues considered range from current trends in international environmental law, the national response to climate change adaption and how more well-known legal approaches might be used in support of more sustainable mining practices.
The premise underpinning the idea of an evolution in environmental legal practice is the recognition that the value, commercial and otherwise, of environmental considerations are accorded an increasingly high value and this recognition has brought this practice area closer to mainstream commercial legal practice.
An example of the marked commercial ramifications of environmental legal considerations is the importance of such considerations in negotiations for the purchase and sale of fixed property, such as the purchase by Shanghai Zendai Property of 1600 hectares of vacant land and buildings worth R1 billion from the chemicals and explosives company AECI Limited. The property is situated in Modderfontein in Gauteng and is adjacent to the explosives factory operated by AECI Limited. The environmental legacy issues took centre stage in the transaction because it is envisaged that the land will be developed for mixed use including, inter alia, residential development. With the expected operationalization of the contaminated land provisions of the National Environmental Management: Waste Act (No. 59 of 2008), these issues are set to be become a firm fixture of purchases of commercial land.1
Select trends in international and South African environmental law
During November 2013 the ENSafrica Department Head participated in an International Environmental Law Symposium held in Madrid, Spain. A theme emerging from the event is that many of the environmental law issues with which South Africa is grappling are also important considerations in other jurisdictions. During a session which dealt with the adoption by European countries of formal climate change adaptation measures, an Italian delegate bemoaned the fact that Italy had not yet adopted any formal policy and were far off achieving this, whilst most of the other Western European jurisdictions had already legislated for proper adaptation measures to respond to climate change.
Adaption is a key element of the Department of Environmental Affairs’ (“DEA’s”) climate change response policy and South Africa is probably ahead of a developed country like Italy inasmuch as the DEA has taken the first step to defining an adaptation legal regime by completing phase one of the Long Term Adaptation Strategy.
Chapter 5 of the National Climate Change Response White Paper (November 2011)2 requires a consideration of how adaptation should be integrated into policies, legislation, strategies and plans within and across a range of sectors namely, water agriculture and forestry, health, biodiversity and ecosystems, human settlements disaster risk reduction and management. Climate change is still developing as a legal discipline and very few practitioners get the opportunity to work in this arena. ENSafrica has an established expertise in climate change and carbon markets law and an opportunity arose to apply this expertise to the White Paper’s requirement to consider adaptation policy alignment across the abovementioned sectors. Effectively, this meant assessing the adaptation needs of the sectors and the extent to which these needs are currently addressed in a sector’s existing legal framework. The ultimate aim of these processes is to develop long term adaptation strategies for the sectors and to promote policy coherence within and across sectors. While understanding that the identified sectors operate within the broader context established by national strategic planning, such as that provided for by the New Growth Path and the National Planning Commission’s Vision 2030, the sectoral analysis was also informed by the dynamics of national macro-economic policy, particularly the imperatives of poverty alleviation and job creation; national medium- and long-term development objectives and aspirations; current information on the projected impacts of climate change on South Africa. In many cases the sectoral legal frameworks were found to be silent on how the impact of climate change should be addressed and where responsibility lies for addressing the sectoral response to climate change. The White Paper provides that the outcome of the policy alignment process will ultimately inform current and future legislative developments.3 Examples of current legislative developments that include thinking on how to our future actions may need to adapt to take account of a changing environment arethe Spatial Land Use Planning Development Act 16 of 2013,4 the National Environmental Management: Integrated Coastal Management Act 24 of 20085 and the Draft Western Cape Land Use Planning Bill, 2013.6
The Symposium also noted that unconventional gas developers in Europe and the United States are dealing with the threat of water pollution as a result of the chemical compounds used in the hydraulic fracturing (fracking) process. This is precisely the issue that has raised the attention of green civil society following proposals to permit fracking in the Karoo. In those other jurisdictions, regulatory regimes have been devised to deal with such threats and the general environmental concerns potentially caused by fracking. South Africa is in a similar position with the October 2013 release of Proposed Technical Regulations for Petroleum Exploration and Exploitation.7 Among the issues to be covered in a comprehensive legal regime for fracking are the trade secret and intellectual property aspects of the composition of the fluids used in the fracking process. This illustrates the close relationship between environmental legal issues and commercial legal practice which is among the reasons for the evolution of the environmental legal discipline, as previously mentioned.
A final note of commonality raised by the Symposium relates to environmental litigation. It appears that in many international jurisdictions there is a greater prevalence for environmental litigation than in South Africa. While the greater portion of such litigation in South Africa occurs in the criminal context, there is not much by way of civil litigation. In certain European jurisdictions, however, damages are claimed civilly for environmental pollution both as between private individuals and corporations and between individuals and the state. Having regard to the entrenched environmental right in South Africa’s Constitution, we may well see the advent of more environmental litigation in the years ahead in South Africa and the international experience in this regard would likely provide a useful precedent base.