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A Conceptual Analysis of Environmental Justice Approaches:
Procedural Environmental Justice in the EIA Process in South
Africa and Zambia
A thesis submitted to the University of Manchester for the Degree of
Doctor of Philosophy
in the Faculty of Humanities
2012
Pamela Towela Sambo
School of Law
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TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................ 2 List of tables ............................................................................................................ 6 List of figures ........................................................................................................... 6 Abstract ................................................................................................................... 7
Declaration .............................................................................................................. 8 Copyright Statement ................................................................................................ 9 Dedication ............................................................................................................. 10 Acknowledgement .................................................................................................. 11 Table of cases ........................................................................................................ 12
Laws and regulations ............................................................................................ 13 List of abbreviations .............................................................................................. 14
CHAPTER ONE .................................................................................................... 16 INTRODUCTION ................................................................................................. 16 1. Introduction ....................................................................................................... 16 2. Research objectives ........................................................................................... 18
2.1. To understand the historical origins of environmental justice ................... 18
2.2. To investigate the meaning of environmental justice ................................. 20
2.3. To identify and analyse the features of environmental justice
interpretations that enhance procedural environmental justice in environmental
matters ............................................................................................................... 20
2.4. To formulate a Procedural Environmental Justice Model ......................... 20
2.5. To examine the extent to which the EIA legal frameworks of South Africa
and Zambia incorporate procedural justice values, using features of the
Procedural Environmental Justice Model (PEJM) ........................................... 21
3. Structure of the thesis ....................................................................................... 21 4. Conclusion ......................................................................................................... 23
CHAPTER TWO ................................................................................................... 24 HISTORY AND DEVELOPMENT OF ENVIRONMENTAL JUSTICE ........... 24 1. Introduction ....................................................................................................... 24
2. First wave: conservation and preservation ....................................................... 25 3. Second wave: modern American environmentalism ......................................... 28 4. Third wave: civil rights, social justice and environmentalism .......................... 30
4.1. The United States General Accounting Office Study, 1983 .................... 31
4.2. The United Church of Christ Commission for Racial Justice (UCCCRJ)
Study, 1987 and other environmental justice studies ........................................ 32 4.3. Environmental discrimination ................................................................ 34
4.4. Environmental racism ............................................................................. 35 4.5. Environmental (in) equity ....................................................................... 38 4.6. Environmental justice ............................................................................. 39
4.7. US Government responses to Environmental Justice case studies and
activism .............................................................................................................. 41
5. Fourth wave: globalisation of environmental justice .................................... 46 6. The four waves of evolution: a summary ....................................................... 48 7. Environmental justice and sustainable development .................................... 49
7.1. What is sustainable development? .......................................................... 50
7.2. Differences and similarities between sustainable development and
environmental justice ........................................................................................ 54
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7.3. Sustainable development, public participation and procedural
environmental justice ........................................................................................ 56 7.4. A Summary of environmental justice and sustainable development ....... 57
8. Conclusion ..................................................................................................... 59 CHAPTER THREE ............................................................................................... 62
THE CONCEPT OF ENVIRONMENTAL JUSTICE .......................................... 62 1. Introduction ....................................................................................................... 62 2. Defining ‘environment and ‘justice’ ................................................................. 63 3. Environmental justice approaches: a taxonomy of environmental justice ........ 69
3.1. Distributive environmental justice .......................................................... 72
3.2. Procedural environmental justice ........................................................... 75 3.3. Corrective environmental justice ............................................................ 77
3.4. Social environmental justice ................................................................... 79 4. Conclusion ......................................................................................................... 81 CHAPTER FOUR ................................................................................................. 83 FROM PROCEDURAL ENVIRONMENTAL JUSTICE TO
ENVIRONMENTAL IMPACT ASSESSMENTS: DEVELOPING A MODEL
FOR ANALYSIS .................................................................................................. 83 1. Introduction ....................................................................................................... 83
2. Linking procedural environmental justice and public participation ................. 84 2.1. Procedural environmental justice in law and policy .................................. 86
3. Public participation in environmental decision- making .................................. 90 3.1. What is public participation? ..................................................................... 90 3.2. Form of public participation ...................................................................... 91
3.3. Rationales for public participation ............................................................ 96
3.4. Public participation in environmental matters: law and policy
developments ................................................................................................... 102 3.4.1. The 1998 Aarhus Convention: Public participation and procedural
environmental justice .................................................................................. 104 4. EIA as a vehicle for public participation ........................................................ 109
4.1. Meaning of environmental assessment (EA) ............................................ 110 4.2. Meaning of environmental impact assessment (EIA) ............................... 113 4.3. Features of EIA process ........................................................................... 117
5. Developing a Procedural Environmental Justice Model ................................ 120 5.1. Availability of environmental information relating to the proposed
development ..................................................................................................... 123
5.1.1. To whom is the environmental information made available? ........... 124
5.1.2. How is environmental information made available? ........................ 124 5.1.3. Is environmental information freely available? ................................ 125 5.1.4. When is environmental information made available? ....................... 125
5.2. Scope of participation provided for in the environmental decision-
making process ................................................................................................ 125
5.2.1. When is participation allowed in the EIA process? .......................... 126 5.2.2. Who is allowed to participate? .......................................................... 126
5.3. Form of participation (How to participate).......................................... 127 5.3.1. Is public participation oral, in writing or both? ............................... 128 5.3.2. If it is oral- how is it structured? ....................................................... 128
5.3.3. If it is in writing- is it consultative? .................................................. 129
5.4. Availability of mechanisms for challenging outcomes ......................... 129 5.4.1. Can the final decision be challenged, and if so on what grounds? ... 130
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5.4.2. What options are available in the event of a successful challenge? . 130 6. Conclusion ....................................................................................................... 131 CHAPTER FIVE ................................................................................................. 133 PROCEDURAL ENVIRONMENTAL JUSTICE IN THE EIA PROCESS IN
SOUTH AFRICA ................................................................................................ 133
1. Introduction .................................................................................................... 133 2. Sources of environmental law in South Africa ............................................... 135 3. EIA in South Africa ......................................................................................... 138
3.1. The evolution of EIA under the National Environmental Management Act
(NEMA) ........................................................................................................... 139
4. Overview of the EIA process ........................................................................... 144 5. Evaluating procedural environmental justice in the EIA process in South
Africa ................................................................................................................... 147 5.1. Availability of environmental information relating to the proposed
development ..................................................................................................... 148 5.1.1. To whom is the environmental information made available? ........... 150 5.1.2. How is environmental information made available? ........................ 151
5.1.3. Is environmental information freely available? ................................ 154 5.1.4. When is environmental information made available? ....................... 154
5.2. Scope of participation .............................................................................. 155 5.2.1. When is participation allowed in the EIA process? .......................... 156
5.2.2. Who is allowed to participate? .......................................................... 156 5.3. Form of participation ............................................................................... 159
5.3.1. Is public participation oral, in writing or both? ............................... 160
5.3.2. If it is oral- how is it structured? ....................................................... 161
5.3.4. If it is in writing- is it consultative? .................................................. 162 5.4. Availability of mechanisms for challenging decisions ............................. 162
5.4.1. Can the final decision be challenged, if so, on what grounds? ......... 163
5.4.2. What options are available in the event of a successful challenge? . 166 6. Strengthening participatory rights under NEMA: Provisions in the South
African Constitution ............................................................................................ 166 6.1. Constitutional environmental right .......................................................... 167 6.2. Constitutional right to access information ............................................... 169
6.3. Constitutional locus standi ....................................................................... 170 6.4. Constitutional right to equality ................................................................ 171
7. Conclusion ....................................................................................................... 172
CHAPTER SIX ................................................................................................... 175
PROCEDURAL ENVIRONMENTAL JUSTICE IN THE EIA PROCESS IN
ZAMBIA ............................................................................................................. 175 1. Introduction ..................................................................................................... 175 2. History and sources of environmental law and policy in Zambia ................... 177 3. The Environmental Management Act, No. 12 of 2011, EIA and procedural
environmental justice .......................................................................................... 181 3.1. An overview of the EIA legal framework .................................................. 182 3.2. The Environmental Management Act and procedural provisions ............ 189
4. Evaluating procedural environmental justice in the EIA process in Zambia . 190 4.1. Availability of environmental information relating to the proposed
development ..................................................................................................... 191
4.1.1. To whom is the environmental information made available? ........... 192 4.1.2. How is environmental information made available? ........................ 193
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4.1.3. Is environmental information freely available? ................................ 193 4.1.4. When is environmental information made available? ....................... 194
4.2. Scope of participation .............................................................................. 194 4.2.1. When is participation allowed in the EIA process? .......................... 195 4.2.2. Who is allowed to participate? .......................................................... 196
4.3. Form of participation ............................................................................... 197 4.3.1. Is public participation oral, in writing or both? ............................... 198 4.3.2. If it is oral- how is it structured? ....................................................... 199 4.3.3. If it is in writing- is it consultative? .................................................. 200
4.4. Availability of mechanisms for challenging decisions ............................. 201
4.4.1. Can the final decision be challenged, and if so, on what grounds? .. 202 4.4.2. What options are available in the event of a successful challenge? . 205
5. The Constitution and procedural environmental justice in Zambia ................ 206 6. Conclusion ....................................................................................................... 209 CHAPTER SEVEN ............................................................................................. 211 COMPARISONS AND CONCLUSIONS .......................................................... 211 1. Introduction ..................................................................................................... 211
2. Limitations of the research .............................................................................. 215 3. Prospects for further research ........................................................................ 216
4. Law and policy implications and recommendations ....................................... 216 BIBLIOGRAPHY ............................................................................................... 218
APPENDIX ......................................................................................................... 254
Final word count (including all references) 84, 635
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List of tables
Table 4.1: Key Milestones in the Recognition of Public Participation in
International Environmental Matters .................................................................. 102
Table 4.2: Key Stages in the Global Adoption of Environmental Impact
Assessment ........................................................................................................... 116
List of figures
Figure 4.1: Arnstein’s original ladder of citizen participation ............................. 93
Figure 4.2: Generic EIA features ........................................................................ 117
Figure 4.3: A Procedural Environmental Justice Model .................................... 122 Figure 4.4: Availability of environmental information ....................................... 124 Figure 4.5: Scope of participation ...................................................................... 126 Figure 4.6: Form of participation ....................................................................... 128 Figure 4.7: Availability of review and appeal mechanisms ................................ 130
Figure 5.1: EIA process in South Africa .............................................................145
Figure 6.1: Stages of EIA in Zambia ................................................................. 185
Figure 6.2: Map showing EIA distribution in Zambia .......................................188
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Abstract
The Abstract of thesis submitted to the School of Law of The University of
Manchester by Pamela Towela Sambo 7160514 for the Degree of Doctor of
Philosophy (Ph.D.) in April 2012 is entitled “A Conceptual Analysis of
Environmental Justice Approaches: Procedural Environmental Justice in the EIA
Process in South Africa and Zambia.”
This study argues that the basis of all environmental justice variations is the
consideration of fairness, equity and justice in the environmental processes that
resolve environmental problems. A Procedural Environmental Justice Model
(PEJM) has been developed for the purpose of evaluating the procedural
environmental justice content of Environmental Impact Assessment (EIA)
legislation in South Africa and Zambia. EIA as a tool for mitigating adverse
environmental impacts arising from development activities aims at identifying,
predicting, evaluating and mitigating the bio-physical, social, and other relevant
effects of development proposals prior to major decisions being taken. This makes
it an apt case study for evaluating how procedural environmental justice works.
The PEJM developed in this thesis is important because it can be used as a
mechanism for evaluating how procedural environmental justice works in
practice. Apart from developing the PEJM, this research provides an in- depth
evaluation of procedural environmental justice and proceeds, in a novel manner,
to focus on South Africa and Zambia.
The concept of environmental justice originates from the civil liberties campaigns
of the 1960s and the more recent Environmental Justice Movement in the United
States. It was historically concerned with widespread distributive inequalities
which manifested as discrimination mainly on the basis of race and economic
status in environmental matters. In more recent years, environmental justice
concerns have become more profound owing to the diversity and gravity of global
environmental problems such as global warming and climate change, natural
resources depletion and widespread air and water pollution. The effects of these
global environmental problems have been predicted to affect inhabitants of
developing countries more than those of the developed ones, thereby emphasising
procedural environmental justice concerns.
This research shows that in the present day environmental parlance,
environmental justice should be increasingly used to connote inclusiveness in
addressing global, national and grassroots environmental problems. There has
been a distinct tendency to move beyond the traditional description of
environmental justice as being distributive, or primarily concerned with the
allocation of environmental advantages and disadvantages. This is due to the
realisation that distributive environmental justice aspects are inadequate in
addressing historical and present day environmental challenges. This research
emphasises that environmental justice incorporates procedural, corrective and
social aspects of justice. The promotion of inclusive participation or procedural
environmental justice transcends all conceptions of the concept. Therefore, in
order to promote environmental justice, environmental legislation must focus on
procedural features that incorporate effective public participation mechanisms.
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Declaration
No portion of the work referred to in the thesis has been submitted in support of
an application for another degree or qualification of this or any other university or
other institute of learning.
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Copyright Statement
I. The author of this thesis (including any appendices and/or schedules to
this thesis) owns certain copyright or related rights in it (the “Copyright”)
and she has given The University of Manchester certain rights to use such
Copyright, including for administrative purposes.
II. Copies of this thesis, either in full or in extracts and whether in hard or
electronic copy, may be made only in accordance with the Copyright,
Designs and Patents Act 1988 (as amended) and regulations issued under
it or, where appropriate, in accordance with licensing agreements which
the University has from time to time. This page must form part of any such
copies made.
III. The ownership of certain Copyright, patents, designs, trademarks and
other intellectual property (the “Intellectual Property”) and any
reproductions of copyright works in the thesis, for example graphs and
tables (“Reproductions”), which may be described in this thesis, may not
be owned by the author and may be owned by third parties. Such
Intellectual Property and Reproductions cannot and must not be made
available for use without the prior written permission of the owner(s) of
the relevant Intellectual Property and/or Reproductions.
IV. Further information on the conditions under which disclosure, publication
and commercialisation of this thesis, the Copyright and any Intellectual
Property and/or Reproductions described in it may take place is available
from the Head of School of Law.
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Dedication
TO THE MEMORY OF MY BELOVED DAD
BERNARD WESTON PAULOS SAMBO
(1943- 2011)
AND
TO MY CHILDREN, THE FUTURE GENERATION
WEZI- EMMANUEL
LUSIZI- LETTICIA
AND
KASONDE- NOELLA
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Acknowledgement
First and foremost, I would like to extend special thanks to the Commonwealth
Scholarship Commission in the United Kingdom for meeting my financial
requirements during this research. I am also indebted to my supervisors Dr.
Carolyn Abbot and Dr. Angela Melville for their tireless dedication,
understanding and insightful guidance throughout the duration of this research. I
would also like to thank Mrs. Mary Platt and Mrs. Jackie Boardman for being ever
so pleasantly helpful.
I am very grateful for my mum Agnes Makwakwa Sambo and my late dad,
Bernard Sambo who continually believed in me to complete this research even in
the midst of what may have seemed insurmountable pressures. I could not have
completed this thesis without their parental encouragement and support.
I am also indebted to my husband, Musonda for his support. To my sister Angela
and her husband Kanyese, I can only say thank you ever so much for your
kindness and unwavering support over the years. To my youngest siblings,
Raymond-Sipho and Georgina-Velepi- Dokiwe, here is another standard waiting
to be surpassed! Thank you for believing in me.
I would also like to thank Suzyo for being as kind as looking after my three
children while I dedicated time to this research. My very supportive friends
Mwamba and Chilombo deserve special mention, as well as other all-weather
friends, extended family and everyone else who contributed to the success of this
research. A very big thank you, may God continue to bless you abundantly.
Lastly and most importantly, this thesis is for my lovely children: Wezi-
Emmanuel, Lusizi-Letticia and Kasonde-Noella. I have “stolen” so much time
from you in order to complete this project. I promise I will pay it all back very
handsomely, promise.
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Table of cases
REPUBLIC OF SOUTH AFRICA
1. Earthlife Africa (Cape Town) v Director-General: Department of
Environmental Affairs and Tourism and Another 2005 (3) SA 156
2. Prinsloo V Van der Linde (1997) (6) BCLR 759 (CC)
ZAMBIA
1. Zambia Sugar Plc v Fellow Nanzaluka Supreme Court of Zambia, Appeal
No. 82/2001 (Unreported)
2. Nyampala (Z) Limited and 4 others v Zambia Wildlife Authority and 6
others Supreme Court of Zambia No. 6 of 2004
THE UNITED STATES
1. Margaret Bean et.al v. South-western Waste Management Corporation
et.al 482 F. Supp. 673 (1979)
2. Washington v. Davis 426 U.S. 229 (1976)
3. St. James v. Shintech
4. Citizens against Nuclear Trash Coalition (CANT) v. The Louisiana Energy
Services (LES)
5. El Pueblo Para el Aire y Agua Limpio v. County of Kings
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Laws and regulations
REPUBLIC OF SOUTH AFRICA
1. Environment Conservation Act Number 73 of 1989
2. National Environmental Management Act Number 107 of 1998
3. The Constitution of the Republic of South Africa, Act 108 of 1996
4. Promotion of Administrative Justice Act No. 3 of 2000
5. Promotion of Access to Information Act 2 of 2000
6. Promotion of Equality and Prevention of Unfair Discrimination Act 4 of
2000
ZAMBIA
1. Constitution of the Republic of Zambia, Act No. 1 of 1991 (as amended by
Act No. 18 of 1996)
2. Environmental Protection and Pollution Control Act Number 12 of 1990
3. Environmental Management Act Number 12 of 2011
4. Mines and Minerals Development Act, 2008
5. Zambia Development Agency Act, 2006
THE UNITED STATES
1. Civil Rights Act, 1964
2. National Environmental Policy Act, 1969
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List of abbreviations
BAR Basic Assessment Report
CBO Community-Based Organisation
CA Competent Authority
CEC Committee for Environmental Co-ordination
DEA Department of Environmental Affairs
DMR Department of Mineral Regulation
DWA Department of Water Affairs
EA Environmental Assessment
EAP Environmental Assessment Practitioner
EAPASA Environmental Assessment Practitioners Association of
South Africa
ECA Environment Conservation Act No. 73 of 1989, South
Africa
ECZ Environmental Council of Zambia
EIA Environmental Impact Assessment
EIS Environmental Impact Statement or Study
EJM Environmental Justice Movement
EJNF Environmental Justice Networking Forum of South Africa
EMA Environmental Management Act No. 12 of 2011, Zambia
EMF Environmental Management Framework
EMP Environmental Management Practitioner
EPA Environmental Protection Agency of the United States of
America
EPPCA Environmental Protection and Pollution Control Act No. 12
of 1990, Zambia
EO Executive Order
FNPCELS First National People of Colour Environmental Leadership
Summit
GAO Government Accountability Office of the United States of
America (formerly known as General Accounting Office)
GDP Gross Domestic Product
I&APs Interested and Affected Parties
ICCPR International Covenant on Civil and Political Rights
KZN KwaZulu-Natal
15
NAACP National Association for the Advancement of Coloured
People in the United States of America
NEAF National Environmental Advisory Forum
NEAP National Environmental Action Plan
NEJAC National Environmental Justice Advisory Council in the
United States of America
NEPA National Environmental Policy Act of the US
NEMA National Environmental Management Act No. 107 of 1998,
South Africa
NGO Non-Government Organisation
PCB Polychlorinated biphenyls
RSA Republic of South Africa
SCLC Southern Christian Leadership Conference in the US
SEA Strategic Environmental Assessment
SIA Social Impact Assessment
SNPCELS Second National People of Colour Environmental
Leadership Summit
TIA Technological Impact Assessment
UDHR Universal Declaration of Human Rights
UN United Nations
UNCED United Nations Conference on Environment and
Development
UNEP United Nations Environment Programme
US United States of America
WSSD World Summit on Sustainable Development
ZEMA Zambia Environmental Management Agency
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CHAPTER ONE
INTRODUCTION
1. Introduction
This thesis demonstrates that procedural justice is the underlying principle of
environmental justice and evaluates the extent to which public participation in the
Environmental Impact Assessment (EIA) processes in South Africa and Zambia
reflect procedural environmental justice values. The EIA process is used as a basis
for evaluating procedural environmental justice because it is one of the few
environmental management tools that is supported by legal and regulatory
frameworks.1 EIA is therefore more effective than most environmental
management tools because it is supported by well-defined legislation and
procedural rules. This ensures that the rights and obligations of all stakeholders
are clearly defined. EIA enforcement is ensured through appropriate
implementation, monitoring procedures and other instruments.2Further, EIAs are
the most practical tools for ensuring that environmental concerns and
sustainability issues raised by communities are integrated in development
planning processes.3
Procedural environmental justice is important because it is the process through
which substantive environmental justice in the EIA process can be achieved. Yet,
a review of the literature reveals that procedural environmental justice has
received relatively little academic attention.
1 T. A. Saidi, 'Environmental Impact Assessment as a Policy Tool for Integrating Environmental
Concerns in Development', (Africa Institute of South Africa, June 2010), 2-4.; B Sadler and M
Mccabe, 'Unep Eia Training Resource Manual', (Nairobi: UNEP, 2002), 112; Cf. J. O Kakonge,
'Environmental Planning in Sub-Saharan Africa: Environmental Impact Assessment at the
Crossroads', (Yale: Yale University, 2009), 12. Legal frameworks are key to strengthening the EIA
process in many parts of the world, sub-Saharan Africa inclusive. The author conclusively states
that “without a legal requirement, many developers would omit EIAs”. See also L Aongola et al.,
'Creating and Protecting Zambia's Wealth: Experience and Next Steps in Environmental
Mainstreaming', (London: International Institute for Environment and Development, 2009), 34-
35. 2 Saidi, 'Environmental Impact Assessment as a Policy Tool for Integrating Environmental
Concerns in Development', 3-7. 3 J Holder, Environmental Assessment, the Regulation of Decision- Making (Oxford: Oxford
University Press, 2006), 33- 42.
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This research is important for three main reasons. First, it provides an in depth
evaluation of procedural environmental justice and its relationship with traditional
substantive and distributive environmental considerations.
Secondly, this research develops a Procedural Environmental Justice Model
(PEJM) as a novel framework for evaluating procedural environmental justice in
the EIA legislation of South Africa and Zambia. The PEJM is the first articulation
aimed at assessing the effectiveness of procedural environmental justice within a
legislative framework.
Thirdly, this thesis provides a comparative analysis of procedural environmental
justice between two different sub-Saharan African countries. On the one hand,
South Africa exhibits characteristics of both developed and developing countries.4
Zambia on the other hand is one of the world’s Least Developed Countries
(LDCs).5 A review of environmental justice literature shows that previous
research has focussed on the countries in the developed world notably the United
States, where the environmental justice movement (EJM) has its roots. More
recently, studies have broadened to include other jurisdictions including South
Africa and the United Kingdom. There has been comparatively less literature
focussing on environmental justice issues in the developing countries and none
specifically focus on Zambia. This research is therefore important because it
allows for a direct comparison of environmental justice practices between a more
economically developed and a developing country.
Overall, this research is a significant contribution to what procedural
environmental justice is and how it works in practice in South Africa and Zambia.
The understanding and awareness of environmental issues is also enhanced by this
4 International Monetary Fund, 'World Economic Outlook: Tensions from the Two Speed
Recovery- Unemployment, Communities and Capital Flows', (Washington D. C.: IMF Media
Services Divisions, April, 2011), 169- 71. 5 The 2011 List of Least Developed Countries in the world by the UN office of the High
Representative for the Least Developed Countries, Landlocked Developing Countries and Small
Island Developing States available at http://www.un.org/special-rep/ohrlls/ldc/list.htm
18
research as is the need for environmental law reform especially in the case of
Zambia where environment- specific legislation is still relatively underdeveloped.6
2. Research objectives
The overall aims of this thesis are to:-
1. Show that procedural environmental justice is the underlying principle of
environmental justice;
2. Evaluate the extent to which public participation in the Environmental
Impact Assessment (EIA) processes of South Africa and Zambia reflect
procedural environmental justice values.
These aims will be achieved through the following objectives:-
2.1. To understand the historical origins of environmental justice
It is important to have an understanding of the historical origins of environmental
justice. From its early origins in the United States, the environmental justice
movement (EJM) has become infused into the global environmental movement.
By the 1990s, environmental justice concerns were actively being raised in South
Africa following the realisation that environmental matters were no longer “white,
suburban issues of little relevance to the anti- apartheid struggle.”7 It is now being
argued that “calls for environmental justice can be heard from the ghetto of
Southside Chicago to Soweto Township in South Africa.”8 The evolution of the
concept will also show that although the historical meaning of environmental
6 It is significant to note at the outset that the environmental framework legislation in Zambia, the
Environmental Protection and Pollution Control Act Number 12 of 1990 was with effect from 12th
April 2011 repealed and replaced with the Environmental Management Act Number 12 of 2011.
The new legislation has introduced internationally recognised best practices in environmental
management. 7 D. A. Macdonald, 'What Is Environmental Justice?', in D. A Macdonald (ed.), Environmental
Justice in South Africa (Athens: Ohio University Press, 2002a), 1- 12 at 1; D. A. Macdonald,
'Environmental Racism and Neoliberal Disorder in South Africa', in R. Bullard (ed.), The Quest for
Environmental Justice: Human Rights and the Politics of Pollution (San Francisco: Sierra Club
Books, 2005), 255- 78 at 57. 8 R Bullard, 'Confronting Environmental Racism in the Twenty- First Century', Global Dialogue:
The Dialogue of Civilisation, 4/1 (2002), 34- 48 at 1. Robert Bullard is an eminent American
environmental justice activist and author of seventeen books addressing environmental equity,
racism, justice and sustainable development and is widely acclaimed as the ‘Father of
Environmental Justice.’
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justice focussed on the distribution of environmental goods and disadvantages
across racial and social status groups, the more recent approaches to
environmental justice have taken a multidisciplinary and global dimension.
At the local and national levels, the quest for environmental justice is cutting
across gender, demographic, health, ethnic, social and legal concerns. At the
international level, there have been increased calls for North- South dialogue on
the impact of global environmental problems and challenges such as the effect of
transboundary export of hazardous waste, impacts of climate change, global
warming, deforestation, loss of biodiversity and many other global environmental
ills.9
Arising from this, it has specifically been projected that the effects of climate
change and global warming, like those arising from environmental injustice, will
continue to affect the poorest most severely.10
In this regard, the Sub-Saharan
region of Africa in which the Republics of South Africa and Zambia are situated,
has been identified as already facing insurmountable environmental challenges
owing to climate change.11 The relevance of this geographical study area to the
climate change and environmental justice discourse further underscores the
importance of this research.
9 R Anand, International Environmental Justice: A North- South Dimension (Aldershot: Ashgate,
2004), 1. The author also explains the usage of the terms ‘North’ and ‘South’. The term South is
not just geographical but is used to reflect the common experiences of people in Asia, Africa and
Latin America denoting historically determined social and economic conditions resulting from the
colonial and imperial past, whereas North also refers to the industrialized developed countries of
the geographical North. 10
Aongola et al., 'Creating and Protecting Zambia's Wealth: Experience and Next Steps in
Environmental Mainstreaming', 5. The authors argue that Zambia is vulnerable to climate
variability and climate change and is already experiencing adverse weather patterns and hazards
such as drought, above-normal heat and floods; See also International Organisation For Migration,
'Migration, Climate Change and the Environment', (Geneva: International Organisation for
Migration, 2009), 1- 9. wherein it is stated that “the poorest have the least role in causing climate
change, yet they are being hit first, hardest and worst”; M Stallworthy, 'Environmental Justice
Imperatives for an Era of Climate Change', Journal of Law and Society, 36 (2009), 55- 74. 11
R Ingwe et. al., 'Eco- Centric and Anthropocentric Policies and Crises in Climate/Environment,
Finance and Economy: Implications for the Emerging Green Policy of the Obama Administration
for Africa's Sustainable Development', African Journal of Political Science and International
Relations, 4/1 (2010), 1- 12 at 1-3;U Grote and K Warner, 'Environmental Change and Migration
in Sub- Saharan Africa', International Journal of Global Warming, 2/1 (2010), 17- 47., who argue
that over 300 million people are faced with water scarcity as an adverse effect of climate change
and this has contributed to changes in migratory patterns in the region. See also D Arieti et. al.,
Prognosis Disaster: The Environment, Climate Change, Human Influence, Vectors, Disease and
the Possible End of Humanity? (Bloomington: Author House, 2011).
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2.2. To investigate the meaning of environmental justice
This objective will entail analysing the literature for the purpose of evaluating
environmental justice conceptions. The new multidisciplinary approach to
environmental justice is increasingly being used to advance environmental
wellbeing and sustainability through effective public participation. Environmental
justice has now assumed a new global meaning because of the emphasis that is
being placed on procedural fairness and public participation in the environmental
decision-making processes. This thesis shows that environmental justice has
evolved from its historical definition that focussed on distributive inequalities, by
seeking to understand the processes that created the injustices. The procedural
aspect of environmental justice has not been fully explored in the history of the
concept. It was however acknowledged that there was a need to evaluate the
underlying causes of distributive environmental injustice. The present conceptions
of environmental justice are continually recognising procedural justice as an
important means of securing substantive environmental justice.
2.3. To identify and analyse the features of environmental justice interpretations
that enhance procedural environmental justice in environmental matters
This thesis will identify features that enhance procedural environmental justice
and critically evaluate public participation as one of the most outstanding and
practically measurably features. This objective is important because it identifies
practical measures through which procedural environmental justice can be
evaluated in environmental legislation.
2.4. To formulate a Procedural Environmental Justice Model
Having identified public participation in environmental assessments (EA) as an
important feature of procedural environmental justice, this thesis will critically
evaluate what effective and meaningful public participation in the EIA process
means. This critical evaluation will lead to an identification of the most important
indicators for procedural environmental justice. These indicators will be used as
the basis for an evaluative framework, the Procedural Environmental Justice
Model (PEJM). This evaluative framework for procedural environmental justice is
important because it provides a basis for assessing whether the current form of
21
EIA legislation in South Africa and Zambia is likely to foster procedural
environmental justice.
2.5. To examine the extent to which the EIA legal frameworks of South Africa
and Zambia incorporate procedural justice values, using features of the
Procedural Environmental Justice Model (PEJM)
As stated in the introduction, this research shows that procedural justice values lie
at the centre of defining environmental justice. In this vein, this objective assesses
the extent to which the EIA legal frameworks of South Africa and Zambia
incorporate procedural justice values. This assessment will involve analysing the
existing legislative frameworks, case law and reviews relating to EIA in both
countries. This assessment provides insight into the practical measures that would
be likely to lead to the promotion of environmental justice.
3. Structure of the thesis
This thesis is comprised of seven chapters. Chapter two traces the historical
evolution of environmental justice and critically analyses the interpretation of the
concept in the United States where it originates from. This chapter also analyses
anthropocentrism and eco centrism as the underlying philosophical and ethical
basis of the concept, before critically discussing the conceptual relationship
between environmental justice and sustainable development, an overarching
concept in modern environmental law. Chapter two concludes by noting the
shortcomings in the historical evolution of the concept, for instance, the under-
analysis of procedural environmental justice.
Chapter three is aimed at understanding what the concept of environmental justice
means in present times. It is acknowledged that the under analysed procedural
aspect of environmental justice actually forms the basis of most definitions of the
concept. In attempting to define environmental justice, this chapter starts by
critically evaluating the two constituent elements, ‘environment’ and ‘justice.’ It
then proceeds to analyse the ways in which environmental justice has been
conceptualised in the literature, namely procedural, distributive, corrective and
social environmental justice. This discussion shows that the right of citizens to
22
participate in environmental decision-making is the basis for procedural
environmental justice, which in turn, is the basis for defining environmental
justice. This chapter links public participation and procedural environmental
justice and partially provides the background upon which chapters five and six
analyse EIA legislation in South Africa and Zambia respectively.
Chapter four builds upon chapter three by critically discussing how the broad
concept of public participation as the backbone of procedural environmental
justice is incorporated into environmental decision- making. It shows that
procedural environmental justice is not just a concept in abstract environmental
discourse, but rather that it has practical efficacy in assessing how developmental
activities can be balanced against environmental interests. This leads to a critical
analysis of environmental assessments and the formulation of a conceptual
framework for evaluating the EIA processes of South Africa and Zambia, the
Procedural Environmental Justice Model (PEJM).
Chapters five and six critically analyse South African and Zambian EIA
legislation with a view to assessing their procedural environmental justice content.
Using the PEJM developed in chapter four; these two chapters evaluate the extent
to which EIA legislation in South Africa and Zambia respectively incorporate
procedural environmental justice values. It is noted in chapter six that overall, the
South African environmental legislative framework is comparatively more
developed than that of Zambia with regard to the incorporation of participatory
features. It also follows that comparatively, procedural environmental justice
considerations are more likely to be incorporated in the EIA legislation of South
Africa than that of Zambia.
The concluding chapter provides an overview and summary of the public
participation features that are important in conceptualising procedural
environmental justice in EIA legislation of South Africa and Zambia.
Recommendations are proposed on how EIA legislation can be used as a tool to
secure procedural environmental justice. While this thesis has focused specifically
on assessing procedural environmental justice in South Africa and Zambia, the
23
use of the PEJM as an evaluative tool for EIA legislation can be extended to other
jurisdictions.
4. Conclusion
The findings of this thesis will show that although environmental justice
originated from the United States in reaction to racially influenced inequalities, it
has since evolved beyond these historical, conceptual and physical boundaries.
24
CHAPTER TWO
HISTORY AND DEVELOPMENT OF ENVIRONMENTAL
JUSTICE
1. Introduction
This chapter provides an overview of the history and development of environmental
justice. The history of the Environmental Justice Movement (EJM) is traced to the
United States. This history can be divided into four stages: nineteenth century
preservationists and conservationists; the rise of environmentalism in the 1960s;
growing concerns about the existence of environmental inequalities within discrete
communities in the United States; and finally the contemporary environmental
discourse in which environmental justice has developed as a central global concern.1
It will be shown that procedural environmental justice was not assimilated into the
first phase of the EJM. It was only incorporated during the second stage of the EJM,
and it has only recently become a central tenet of the EJM. Thus, environmental
justice has evolved from being completely ignored; to an abstract notion challenging
various issues on the basis of seemingly unsubstantiated racial discrimination claims,
to an internationally acclaimed ideal. It is also only within the fourth stage of the
EJM that the interconnection between environmental justice and other environmental
concepts such as sustainable development, are being understood.
1 According to Dowie, American environmental history falls into four ‘waves.’ M Dowie, Losing
Ground: American Environmentalism at the Close of the Twentieth Century (Cambridge: MIT Press,
1996), 8; Cf. R. E. Dunlap, 'Trends in Public Opinion Towards Environmental Issues: 1965- 1990', in
R. E. Dunlap and A Mertig (eds.), American Environmentalism- the U. S. Environmental Movement,
1970- 1990 (Washington, D.C.: Taylor & Francis Publishers, 1992), 89- 116, who argues that
widespread public concern in environmental issues emerged in the period 1960 to 1970; and this
concern declined considerably after the first Earth Day commemoration in April 1970; then in the
1980s, there was remarkable increase in public appreciation of the impact of environmental problems
and support for environmental protection; Cf. D. E Taylor, 'The Rise of the Environmental Justice
Paradigm: Injustice Framing and the Social Construction of Environmental Discourses', American
Behavioural Scientist, 43/4 (2000), 508- 80, who terms the ‘waves’ as ‘Four Environmental
Paradigms’, namely, Exploitative Capitalism, Romantic Environmentalism from 1914, New
Environmentalism in the 1960s, and Environmental Justice in the 1980s; See also D. E. Taylor,
'American Environmentalism: The Role of Race, Class and Gender in Shaping Activism', Race,
Gender and Class, 5/1 (1997b), 16- 62.
25
It is important to appreciate the ethical and philosophical perspectives of
environmental justice that emerge throughout the four waves of environmentalism,
because these mould the foundation of the concept. It will therefore be relevant to
understand how the anthropocentric and ecocentric aspects of environmental justice
have evolved through the years as a way of explaining the underlying interests for
the concept. 2 This discussion will give an insight into how the competing interests
of ecocentrism and anthropocentrism can be addressed, while promoting the
transcending objective of preserving the environment for present and future
generations.3
It must however be emphasised that this thesis supports the view that focusses on
safeguarding the environment as opposed to that which segments environmental
justice as either anthropocentric or eco-centric. Shrader- Frechette summarises this
argument by stating that “protection for people and the planet goes hand in
hand.”4There must be a balance in the rationale for environmental justice; it is not
helpful to maintain arguments on the extreme sides of either anthropocentrism or
biocentrism. The four waves of environmentalism are now discussed below.
2. First wave: conservation and preservation
The first wave, referred to as the conservationist/preservationist period, runs from
the late nineteenth century to the 1950s.5During this era, the focus was on protecting
natural resources as a reaction to what was viewed as overexploitation. This
2 Environmental ethics/philosophy is a broad subject area and this chapter will not attempt an
exhaustive analysis, save to show a general understanding of the anthropocentric and ecocentric
approaches to environmental justice. For more insight on environmental ethics and philosophy, refer
to R Eckersley, Environmentalism and Political Theory- toward an Eco-Centric Approach (London:
UCL Press Limited, 1992); A Brennan and Y Lo, 'Environmental Ethics', The Stanford Encyclopaedia
of Philosophy, (Winter 2009 Edition); A Dobson, 'Biocentrism and Genetic Engineering',
Environmental Values, 4/3 (1995), 231- 36.; J Alder and D Wilkinson, Environmental Law and Ethics
(London: MacMillan, 1999). 3 Alder and Wilkinson, Environmental Law and Ethics, 1.
4 K Shrader- Frechette, Environmental Justice: Creating Equity, Reclaiming Democracy (Oxford:
Oxford University Press, 2002), 5. 5 D Newton, Environmental Justice- a Reference Book (Santa Barbara: Instructional Horizons, Inc.,
1996), 16. Newton argues that preservationists hold the view that “there is a beauty and value in
nature that has nothing to do with the commercial value for humans. Humans have the obligation to
protect vast portions of the natural world for no other reason than inherent value.” Conservationists
believe that “natural resources must be harvested in a controlled manner so that they are available for
future generations.” Conservationism began with George Perkins Marsh’s 1864 publication entitled
Man and Nature and others like Gifford Pinchot and Theodore Roosevelt, while some of the notable
preservationists include John Muir and Aldo Leopold, author of Sand County Almanac (1949).
26
approach to protect natural resources was two- pronged. On the one hand,
conservation entailed wise management and use and on the other, preservation
focussed on the worth of the environment in its pristine state. Most of the areas with
identifiable pristine beauty were protected, leading to the development of what are
known as games reserves and national theme parks in modern times.6
The tenets of environmental justice as it later came to be understood were not
brought to the fore during this period. For instance, citizen participation in
environmental issues is not highlighted as having been under consideration in the
first wave. The conflict between preservationists and conservationists, however took
centre stage. This conflict arose because both preservationists and conservationists
advocated different underlying ethical and philosophical belief-values. The
following section examines the ethical and philosophical beliefs that underlie
environmental justice. Environmental ethical and philosophical beliefs are important
because they provide a basis for determining what is right or wrong. This
determination is achieved by assessing environmental rights and obligations, and
weighing their benefits to society.7
Environmental justice approaches can be distinguished on the basis of
anthropocentrism and bio- centrism or eco- centrism.8 A succinct definition of these
terms provides thus:-
An anthropocentric action is taken to be one in which the reason to act is
the provision of a benefit to human beings. An ecocentric action is taken
6 R Dunlap and A Mertig, 'The Evolution of the U. S. Environmental Movement from 1970 to 1990:
An Overview', in R Dunlap and A Mertig (eds.), American Environmentalism- the U. S.
Environmental Movement (Washington, D. C.: Taylor & Francis Publishers, 1992), 1- 9 at 2. 7 See generally Dobson, 'Biocentrism and Genetic Engineering'; S Coyle and K Morrow, The
Philosophical Foundations of Environmental Law: Property, Rights and Nature (Oxford: Hart
Publishing, 2004) at 1.; M Stallworthy, Understanding Environmental Law (London: Sweet &
Maxwell, 2008) at 4; L Heinzerling, 'The Environment', in P Cane and M Tushnet (eds.), The Oxford
Handbook of Legal Studies (Oxford: Oxford University Place, 2003) at 703.; C Stone, 'Should Trees
Have Standing? Towards Legal Rights for Natural Objects', South California Law Review, 45 (1972). 8 Some authors argue that “Ecocentrism” is a more preferable terminology to “Biocentrism” for
different reasons. According to Eckersley, Environmentalism and Political Theory- toward an Eco-
Centric Approach, 194, “ecocentrism is wider in application because “the prefix ‘eco’ unlike ‘bio’
encompasses not only individual organisms that are biologically alive but also such things as species,
populations and cultures considered as entities in their own right”. See further W. Fox, 'Deep
Ecology- Feminism Debate and Its Parallels', Environmental Ethics, 11 (1989), 7- 8; See also Ingwe
et. al., 'Eco- Centric and Anthropocentric Policies and Crises in Climate/Environment, Finance and
Economy: Implications for the Emerging Green Policy of the Obama Administration for Africa's
Sustainable Development', 5.
27
to be one in which the reason to act is the provision of a benefit to the
environment.9
From this definition, it is clear that the environmental beliefs during the first wave
were guided by conservationist and preservationist principles that were more
inclined to eco-centrism as opposed to anthropocentrism.
From an ecological point of view, the natural environment, which includes human
beings is affected by the anthropocentric distributional problems that environmental
justice preoccupies itself with. Most global environmental degradation arises on
account of actions by human beings. The definition of environmental justice with
merely human welfare in mind does not therefore fully address the ecological
imbalances that may arise. The question of whether or not the non-human, natural
world is a part of the concept of environmental justice includes an assessment of
mankind’s moral duty towards the natural environment. The result would be the
enunciation of a concept of non-anthropocentric, distributive justice, or ‘ecological
justice.’10
To a large extent, this is the philosophical understanding of the
environmentalism of the first wave.
One of the strongest criticisms levelled against the first wave of American
environmentalism was its perceived elitist approach and primary focus on
preservation and conservation of pristine environments. According to Shrader-
Frechette:-
…the early United States environmentalists …were the most educated
and powerful people in the country…their environmentalism consisted of
bird- watching or expensive ecotourism, not addressing areas of
greatest pollution where poor people live.(original emphasis)11
Clearly, there was some disconnect between the needs of the non-living environment
and that of human beings in the approach of the preservationists. The first wave of
9 B Donnelly and P Bishop, 'Natural Law and Eco-Centrism', Journal of Environmental Law, 19/1
(2007), 89- 101 at 90. 10
K Bosselmann, 'Strong and Weak Sustainable Development: Making the Difference in the Design
of Law', (Pietermaritzburg: University of Natal, 2002), 6. 11
K Shrader- Frechette, Environmental Justice: Creating Equity, Reclaiming Democracy (Oxford:
Oxford University Press, 2002), 4.
28
environmentalism was elitist, pursuing such a narrow agenda which “doomed
environmentalism to protecting the environment from humans”, than about
“protecting humans from the environment.”12
This argument lends credence to the
view that the environmental justice crusade should be more anthropocentric in
approach. In contrast to this view, Bosselmann argues thus:-
Ecocentrism does not force a choice between strict preservation and
redistribution; it extends intrinsic values of humans to non-humans
rather than replacing one by the other.13
Bosselmann’s view is that eco- centric and anthropocentric approaches must be
balanced against each other and neither approach must replace the other.
In the second and subsequent waves, environmentalism broadened to include
anthropocentric views. There was a growing tendency to balance the two opposing
ethical views in favour of environmental wellbeing. The following section shows
how this balanced ethical approach to environmental justice evolved during the
second wave.
3. Second wave: modern American environmentalism
In the 1960s to 1970s, during the second wave of environmental history,
environmental, social and health concerns were seen from a different perspective.
There was a subsequent shift in thinking towards keeping the environment in a better
state of cleanliness. This realisation was important not only for maintaining the
pristine beauty of the environment, but also for the benefit and health of human
beings and other living organisms. The definition of ‘environment’ was not only
based on human inclinations. It was during this era that the natural environment
started being considered for its intrinsic value. Further, a strict eco- centric approach
would condemn the human rights approach of environmental justice by arguing that
anthropocentric approaches to environmental protection perpetuate the values and
attitudes that are at the root of environmental degradation. The anthropocentric
12
R Bullard, Dumping in Dixie: Race, Class and Environmental Quality (Boston: Boulder Colo
Westview Press, 1996a), 139. 13
K Bosselmann, 'Justice and the Environment: Building Blocks for a Theory on Ecological Justice',
in K Bosselmann and B Richardson (eds.), Environmental Justice and Market Mechanisms, Key
Challenges for Environmental Law and Policy (The Hague: Kluwer Law International, 1999), 34.
29
approach would deprive the natural environment of any direct and comprehensive
protection. For example, human life, health and standards of living are likely to be
the aims of environmental protection and consequently, of environmental justice.
Thus, the environment is only protected as a consequence of, and only to the extent
needed to protect human well-being.
This period was also marked by the global realisation that industrialisation was
producing environmentally harmful effects such as radioactive waste. It was
therefore important to take measures such as environmental assessment (EA) to
protect the environment.14
Some commentators argue that the publication of Rachel
Carson’s Silent Spring in 1962 marked the beginning of modern environmentalism.
This book was the first documented analysis of the wide ranging impacts of
pesticides on natural resources and human beings, as well as the wider
environment.15
Following the publication of this book, the United States government proceeded to
enact the first anti-pollution legislation in an attempt to ‘clean up America’.16
The
United States Congress then passed the Civil Rights Act, 1964 which prohibited the
use of federal funds to discriminate based on race, colour and national
origin.17
Although it can be firmly argued that these two pieces of legislation
effectively introduced environmental justice considerations, their main concern
14
Environmental Assessments are discussed in chapter 4 15
R Carson, Silent Spring (Boston: Houghton Mifflin, 1962). Rachel Carson is known in some
literature as the “Godmother of modern environmentalism.” See also Dunlap and Mertig, 'The
Evolution of the U. S. Environmental Movement from 1970 to 1990: An Overview', 2. 16
Although enacted on January 1, 1970, the Act is entitled, National Environmental Policy Act of
1969. It is renowned for having established a United States National Policy promoting the
enhancement of the environment and also established the President's Council on Environmental
Quality (CEQ). For more detailed analysis see E. J Bevil, 'National Environmental Policy Act of
1969: Analysis and Judicial Interpretation, the Comment', Baylor Law Review, 25 (1973), 71- 91 at
71- 91.;V. M Fogleman, Guide to the National Environmental Policy Act- Interpretations,
Applications and Compliance (Westport: Greenwood Publishing Group, 1990), 1-3; 26-31. 17
Title VI, Civil Rights Act 601, 602, and 42 U.S.C. 198, Title VI, Civil Rights Act 601 states, “no
person in the United States shall on the grounds of race, colour or national origin be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any program or
activity receiving federal financial assistance.” (U.S.C. 1994) Title VI, Civil rights Act 602 requires
“agencies that disperse federal funds to promulgate regulations implementing Title VI Civil rights Act
and to create an enforcement framework that details the manner in which discrimination claims will
be processed”.
30
however, was that environmental problems had become more complex in origin,
with delayed, complex and difficult-to-detect-effects.18
There is no clear mark as to when the second wave gave way to the third. One view
projects the 1970 Earth Day celebrations as the start of the era of modern American
environmentalism and therefore the start of the third wave.19
Another view holds that
the early 1970s were but a continuation of the second wave, the only distinction
being that the current environmental legislation of the United States traces its origins
to this era.20
Either way, by the early 1970s, it was clear that social justice concerns
and civil liberties were being conceptualised from an environmental perspective. The
third wave marked a period of rapid growth for the EJM as discussed below.
4. Third wave: civil rights, social justice and environmentalism
The period between the early 1980s and late 1990s marked the third wave and it was
a very active period in the evolution of the concept. A number of activities took
place to mark the convergence of civil rights, social justice and environmentalism.
This period was initially characterised by reactive responses to adverse effects on the
environment. The anthropocentric view towards the environment, evidenced by the
infusion of social justice values of equity and fairness in environmentalism, took root
during this era. The third wave also saw the mushrooming of grassroots
organisations preoccupied with opposing the siting of locally undesirable land uses
(LuLus) in poor communities. This emergence of grassroots organisations has been
of additional significance to the development of the environmental justice cause.21
By the end of the twentieth century, environmental vigilance in the United States had
grown owing to two main factors. These were increased levels of participation in
18
See generally R. C. Mitchell, 'From Conservation to Environmental Movement: The Development
of the Modern Environmental Lobbies', in M Lacey (ed.), Government and Environmental Politics
(Washington, D. C.: Wilson Centre Press, 1989), 81- 113.; S Hays, Beauty, Health and Permanence:
Environmental Politics in the United States, 1955- 1985 (New York: Cambridge University Press,
1987). 19
R. C Mitchell, A Mertig, and R Dunlap, 'Twenty Years of Environmental Mobilisation: Trends
among National Environmental Organisations', American Environmentalism- the Us Environmental
Movement 1970- 1990 (1992), 11- 25 at 15. 20
Literature Review: A History of Environmentalism in the United States available at
http://academics.ajula.edu/Content/ContentUnit.asp?CID=1640&u=5933&t=0 accessed on
14/04/2008. 21
This is explained in section 5 of this chapter.
31
environmental decision-making matters and government’s renewed commitment to
ensuring equity22
through environmental legislation.
During the third wave, grassroots environmentalism promoted an increase in
environmental awareness and consequently in the levels to which the public took
part in the decision-making processes. The government’s enactment of legislation
aimed at ensuring equality in environmental matters meant that distributive
inequalities could be challenged. The focus of these government initiatives however,
remained on pursuing substantive environmental justice. The two factors:
government’s enactment of equality legislation and the increase in environmental
awareness coupled with the associated increase in public participation are important
because they form the foundation of procedural environmental justice in this thesis.
It must be noted that these two factors were almost non-existent during the first wave
and earlier part of the second wave. It is therefore not surprising that environmental
justice was not a priority during the first two waves of environmentalism. During the
third wave, the United States government supported initiatives aimed at encouraging
participation in environmental matters. Some case studies demonstrate that
environmental justice concerns were more prioritised during the third wave. These
case studies also revealed serious environmental injustices in the communities and
serve as relevant empirical evidence to support environmental justice arguments.
4.1. The United States General Accounting Office Study, 1983
The United States General Accounting Office (GAO)23
conducted a study in 1983
which revealed that three out of the four commercial toxic waste landfills in the
Southeastern United States were located in poor, black communities.24
This study
was important for two reasons. First, race, income and levels of exposure to
22
Environmental equity is defined in more detail in this chapter in section 4.5 23
In July 2004, it was renamed, the United States Government Accountability Office. It is “an
independent, nonpartisan agency that works for Congress and is often called the "congressional
watchdog” tasked with investigating how the federal government spends taxpayers’ money. See
http://www.gao.gov/about/index.html (visited 27 March 2011) 24
The Report documenting this study is entitled ‘Siting of Hazardous Waste Landfills and their
Correlation with Racial and Economic Status of Surround Communities,’ GAO/RCED-83-168 (June
1, 1983). At least twenty-six per cent of the population in all four communities, most of whom were
black, had incomes below the poverty level. See R. G. Roberts, ‘Environmental Justice and
Community Empowerment: Learning from the Civil Rights Movement’ (October, 1998) American
University Law Review 48, No.1, 229-267 at 231.
32
environmental hazards were for the first time publicly acknowledged as possible
factors in determining the siting of landfills. Secondly, it was clear that there was a
need for more detailed research into the subject in order to make definite
findings.25
As the next section explains, a 1987 study by the United Church of Christ
Commission for Racial Justice (UCCCRJ) went some way to filling this evidential
gap.
4.2. The United Church of Christ Commission for Racial Justice (UCCCRJ)
Study, 1987 and other environmental justice studies
The United Church of Christ Commission for Racial Justice (UCCCRJ) was the first
national study of the environmental problems that were being faced by minority and
poor communities at the time.26
This study revealed that:-
Race was a more significant predictor of where commercial toxic waste
facilities were located in the United States than were a variety of
measures of income, property values, and proximity to markets, such as
waste generators and sites needing cleanup.27
This finding was conclusive and it sent an unequivocal message that positive action
was required to correct the imbalance that had arisen. It also showed that siting of
locally undesirable land uses (LuLus) had led to numerous environmental injustices.
Following the 1987 UCCRJ Report, there have been numerous studies in the United
States documenting environmental disparities by both race and class. For example, in
1992, Mohai and Bryant completed a literature review of several environmental
inequity studies. This review confirmed the results of the 1983 and 1987 studies
showing evidence of a relationship between racial and income inequalities and
environmental risk.28
The studies gave impetus for mobilising grassroots
25
Newton, Environmental Justice- a Reference Book, 20. 26
The Report is entitled ‘Toxic Wastes and Race in the United States: A National Report on the
Racial and Socio-economic Characteristics of Communities with Hazardous Waste Sites’
Commission for Racial Justice, United Church of Christ (1987). The UCCCRJ study examined the
location of controlled and uncontrolled hazardous waste sites across the United States. The study
found that race proved more significant than socio- economic status in the siting of hazardous waste
facilities. 27
Ibid. ‘Toxic Wastes and Race in the United States: A National Report on the Racial and Socio-
economic Characteristics of Communities with Hazardous Waste Sites’. 28
P Mohai and B Bryant, 'Environmental Racism: Reviewing the Evidence', Race and the Incidence
of Environmental Hazards: A Time for Discourse: Issues, Policies and Solutions (Boulder: Westview
Press, 1992), 1- 9; A Szasz and M Meuser, 'Environmental Inequalities: Literature Review and
33
organisations that were determined to fight environmental injustices.29
These studies
also showed that much of the environmental activism during the third wave was
reactive to the siting of toxic and noxious facilities such as landfills, incinerators,
polluting factories and mines in close proximity to the disadvantaged.30
Most of
these case studies proved the existence of glaring environmental inequalities as a
result of environmental discrimination.
Further, these studies made reference to expectations of environmental equity. As a
result, concepts such as environmental discrimination, racism and equity started
gaining prominence in environmental literature. These concepts bear marked
similarities to what is now understood as environmental justice and will therefore
need to be specifically discussed later in this chapter.31
There has, however, been criticism of the ‘evidence’ used to support claims of
environmental injustice. Some of the case studies have been criticised on the basis
that environmental justice issues were exaggerated.32
Another criticism suggests that
environmental justice issues were given unnecessary prominence at the expense of
other urgent social ills such as crime.33
Some other authors challenge environmental
injustice claims on its empirical basis arguing that the advocacy associated with
environmental justice activism does not effectively pursue the interests of the alleged
Proposals for New Directions in Research and Theory', Current Sociology, 45 (1997), 99- 120 at 100-
102. 29
R Bullard, 'Anatomy of Environmental Racism', in R. Hofrichter (ed.), Toxic Struggles- the Theory
and Practice of Environmental Justice (Gabriola Island, BC, Canada: New Society Publishers,
1993b), 25; R Bullard, Confronting Environmental Racism: Voices from the Grassroots, ed. R.
Bullard (Boston: Southend Press, 1993a); J Tarter, The Environmental Justice Reader: Politics,
Poetics and Pedagogy, eds J Adamson, E Mei, and R Stein (Tucson: The University of Arizona Press,
2002b); L Pulido, 'A Critical Review of the Methodology of Environmental Racism Research',
Antipode, 28/2 (1996), 142- 159. 30
Disadvantaged people were often the poor or non- white. Refer to various studies quoted in the
work of R Hofrichter, ‘Introduction’, in R Hofrichter (ed.), Toxic Struggles: The Theory and Practice
of Environmental Justice (Gabriola Island, BC, Canada, Canada: New Society Publishers, 1993), 1-
10; B Bryant and P Mohai, Race and the Incidence of Environmental Hazards: A Time for Discourse
(Boulder: Westview, 1992); Bullard, Dumping in Dixie: Race, Class and Environmental Quality; J. R.
Timmons, Chronicles from the Environmental Justice Frontline (Cambridge: Cambridge University
Press, 2001). 31
Refer to Sections 4.3- 4.6 in this chapter 32
E. J Krieger and D. R Faber, 'Not So Black and White: Environmental Justice and Cumulative
Impact Assessments', Environmental Impact Assessment Review, (2004), 667- 94 at 681- 82. 33
Shrader- Frechette, Environmental Justice: Creating Equity, Reclaiming Democracy, 13.; Pulido,
'A Critical Review of the Methodology of Environmental Racism Research', 137
34
marginalised communities.34
Some authors, however, disputed that the underlying
reason was environmental discrimination.35
Been, for example, argues that market
dynamics and not necessarily race, were responsible for the alleged disproportionate
siting of LuLus.36
This chapter supports the view that most of these studies provided credible evidence
pointing to the prominence of environmental racism as a factor in perpetuating
inequalities. Moreover, the resultant inequalities were glaring. Environmental justice
activists were motivated by the availability of what was viewed as irrefutable
empirical evidence, together with the support of the United States government in
ascertaining the root causes of these environmental injustices. The following section
explains the terms that are used widely in environmental justice literature namely,
environmental discrimination, racism, (in) equity and justice.
4.3. Environmental discrimination
Environmental discrimination is a broad concept, which according to authors such as
Bullard arises where community members are treated disparately on the basis of
race, class, ethnic or other distinguishing characteristics.37
It is seen as the root of all
environmental injustices. The first ever court case that alleged environmental
discrimination in the United States was Margaret Bean et.al v. South-western Waste
Management Corporation et.al.38
The plaintiffs sought an injunction to prevent the
construction of a solid waste disposal facility in Houston on the grounds that it had a
disproportionate environmental impact on the black minority community. According
to Bullard, this neighbourhood was “a very unlikely location for a garbage dump
except that over 82 per cent of its residents were African American.”39
The quest for
34
C. H Foreman, The Promise and Peril of Environmenetal Justice (Washington D.C.: Brookings
Institution Press, 1998), vii- viii; 1-8.; See also Bowen, who argues on the absence of systematic
evidence of environmental injustice. W. M Bowen, Environmental Justice through Research- Based
Decision-Making (New York: Garland Publishing, 2001). 35
Newton, Environmental Justice- a Reference Book, 3. 36
V Been, 'Locally Undesirable Land Uses in Minority Neighbourhoods: Disproportionate Siting or
Market Dynamics?', Yale Law Journal, (1994), 383- 422. 37
Bullard, Dumping in Dixie: Race, Class and Environmental Quality at xvii; 14- 16. 38
482 F. Supp. 673 (1979) and reproduced in Newton, Environmental Justice- a Reference Book at
134- 37; Bullard, Dumping in Dixie: Race, Class and Environmental Quality, 34. 39
As a Sociologist, Bullard was requested by the Plaintiffs’ Attorney (his wife) to conduct a study of
the spatial location of all of the municipal waste facilities in Houston; hence he had first-hand
knowledge of this information, Bullard, Dumping in Dixie: Race, Class and Environmental Quality,
at xii- xiv.
35
an injunction failed on the basis that the plaintiffs could not prove ‘discriminatory
intent’ in the siting of the facility. The need to show ‘discriminatory intent’ was re-
affirmed by the Supreme Court in Washington v. Davis40
which held inter alia that
impermissible discrimination under the Fourteenth Amendment required a showing
of intent, not simply disparate impact.
4.4. Environmental racism
The development of the EJM in the United States and later in South Africa41
was
premised on eradicating environmental racism which is a component of
environmental discrimination. Renowned environmental activist Reverend Benjamin
Chavis, Jr., one of those who took part in the 1982 North Carolina protest,42
is
credited with having coined the phrase ‘environmental racism’. Later during the
Clinton administration, he served as a senior advisor to the transition team in the
departments of Energy, the Interior, Agriculture, as well as the EPA. During this
time, he described ‘environmental racism’ as:-
...the deliberate targeting of people of colour communities for toxic
waste facilities and the official sanctioning of a life- threatening
presence of poisons and pollutants in people of colour
communities...also manifested in the history of excluding people of
colour from the leadership of the environmental movement.43
From Chavis’ explanation above, it can be argued that where environmental racism
is officially sanctioned it is more likely to permeate decision-making processes with
the effect of rendering ensuing decisions unfair or unjust. Consequently,
environmental racism is likely to manifest as a barrier to environmental justice at the
institutional level. This environmental racism argument is supported by Bullard,
arguing that racism played a key factor in environmental planning and decision-
40
426 U.S. 229 (1976), wherein the Court went further to state that, "disproportionate impact is not
irrelevant, but it is not the sole touchstone of racial discrimination forbidden by the Constitution.” 41
G Ruiters, 'Environmental Racism and Justice in South Africa's Transition', Politikon, 28/1 (2001),
95- 103 at 95- 103. ; See also chapter 5 that discusses environmental justice issues in South Africa. 42
E. M. Mcgurty, 'From Nimby to Civil Rights: The Origins of the Environmental Justice
Movement', Journal of Environmental History, 2/3 (1997), 301- 23 43
3 March 1993, United States House of Representatives Subcommittee on Civil and Constitutional
Rights quoted in Newton, Environmental Justice- a Reference Book, 4.
36
making, and that it was reinforced by government through legal, economic and
political practices.44
The literature has shown that most inequalities borne by poorer communities in
relation to the environment arise from deep rooted institutional discrimination.45
It
has, however, been suggested that racism has been given unfair prominence as a
factor leading to environmental inequities in the United States. For example, some
authors posit that although race is a crucial factor in environmental injustices, it only
assumed importance in according race and racism some primacy in the lives of
people of colour. In so doing, factors such as class and gender that equally determine
environmental injustices are overlooked.46
Some authors also insist that the true origin of the environmental justice crusade was
the anti- toxics campaign in the United States, and not environmental racism claims.
This argument proceeds on the basis that race was an insignificant factor in the
injustices that arose from unfair siting of LuLus, and income rather than race was the
main determining factor.47
This argument has however been challenged on the basis
that almost all the documented data on the anti- toxics crusade reveals that it was the
racial minorities and poor people that ‘bore the brunt’ of LuLus.48
An example of the rise of environmental justice in the context of the anti-toxics
crusade is the Warren County, North Carolina protest action of 1982. This incident is
cited as an example of environmental racism in most environmental justice
literature.49
It is also recounted as one of the earliest protest actions in the United
States marked by large-scale civil disobedience. Some authors identify it as the first
attempt at specifically “forging the connections between race, poverty and the
44
R. Bullard, 'Environmental Racism and the Environmental Justice Movement', in M. A Cahn and
R. O'brien (eds.), Thinking About the Environment: Readings on Politics, Property and the Physical
World (New York: M. E. Sharpe Incorporated, 1996b), 196. 45
Bullard, 'Anatomy of Environmental Racism', at 25- 27; L Cole and S Foster, From the Ground
Up: Environmental Racism and the Rise of the Environmental Justice Movement (New York: New
York University Press, 2000), 10- 18. 46
Pulido, 'A Critical Review of the Methodology of Environmental Racism Research', 143; 45. 47
Ibid., at 145. 48
Bullard, Dumping in Dixie: Race, Class and Environmental Quality,35- 36 . 49
V Eady, 'Warren County and the Birth of a Movement: The Troubled Marriage between
Environmentalism and Civil Rights', Golden Gate University Environmental Law Journal, (2007)
available at http://digitalcommons.law.ggu.edu/gguelj/vol1/iss1/5.
37
environmental consequences of the production of industrial waste.”50
The
background to the North Carolina protests is that in 1978, a company called Ward
Transformer Company paid a waste removal business entity to illegally dispose of
polychlorinated biphenyls (PCB) tainted liquid.51
Consequently, this toxic substance
was dumped on the side of state roads across 14 counties in rural North Carolina.
Government regulatory authorities upon discovering the resulting pollution, arranged
to open a landfill in the town of Afton in Warren County- a community that was
home to mostly African American inhabitants.52
Although the residents of Warren County took the state and the Environmental
Protection Agency (EPA) to court, they lost the lawsuit and the landfill opened in
1982. The residents organised a series of protests, backed by national civil rights
organizations. The protesters’ main concern was the contamination of groundwater
from the landfill.53
Over 400 mostly black and non- white civil rights activists were
arrested during these protests, bringing national attention to the Warren County
landfill. In the end, although the landfill remained open, the activists had brought a
new environmental and civil rights issue to light: environmental racism.
Other cases that have been documented as alleging environmental racism and are
also consistently recounted in environmental justice literature include Kettleman City
and The Louisiana “Cancer Alley.”54
Another concept that is central within
50
G Di Chiro, 'Nature as Community: The Convergence of Environmental and Social Justice', in W
Cronon (ed.), Uncommon Ground: Rethinking the Human Place in Nature (New York: W. W. Norton
& Company, 1998b), 298- 320 at 303; B. Docherty, 'Maine's North Woods: Environmental Justice
and the National Park Proposal', Harvard Environmental Law Review, 24 (2000), 537- 62 at 542. 51
Polychlorinated biphenyls (PCBs) are a mixture of individual chemicals which are no longer
produced in the United States, but are still found in the environment. Health effects that have been
associated with exposure to PCBs include acne-like skin conditions in adults and neurobehavioral and
immunological changes in children. See the Agency for Toxic Substances and Disease Registry
(ATSDR) http://www,atsdr.cdc.gov/tfacts17.pdf (Accessed 08/04/11). Further, in 2001, it was
reported that studies had linked PCB exposure to several negative health effects, including cancer, D.
Carpenter, ‘Studies Link PCBs to Human Cancer’, 2 January 2001, Wall Street Journal (2001). 52
Mcgurty, 'From Nimby to Civil Rights: The Origins of the Environmental Justice Movement', 301-
313; E. M. Mcgurty, Transforming Environmentalism: Warren County, Pcbs and the Origins of
Environmental Justice (New Jersey: Rutgers University Press, 2007), 1- 20; 142- 150. 53
Eady, 'Warren County and the Birth of a Movement: The Troubled Marriage between
Environmentalism and Civil Rights, 42-45. 54
Kettleman City is a small farm- worker community in King’s County in California’s San Joaquin
Valley with over 95% of residents who are Latino. Despite being a small city it is home to the largest
toxic waste dump west of Alabama. See L. W. Cole and S. Foster, From the Ground Up:
Environmental Racism and the Rise of the Environmental Justice Movement (2001) 1-10; R. D.
Bullard, ‘Confronting Environmental Racism in the Twenty- First Century’ (2002), Global Dialogue,
38
environmental justice literature is environmental equity or inequity. The following
section discusses what environmental equity means.
4.5. Environmental (in) equity
Environmental discrimination determined by factors such as race, gender,55
and class
has been documented as the root cause of environmental inequity and injustice. The
term ‘environmental equity’ has been used almost synonymously with
‘environmental justice’ in the United States. Environmental equity denotes desirable
outcomes in the environmental decision-making processes.56
Both environmental
equity and justice refer to the means through which environmental inequalities can
be addressed, remedied and possibly prevented from recurring. According to the
EPA, environmental equity refers to the:-
... Distribution of environmental risks across population groups and to
EPA [our] policy responses to these distributions. While there are many
types of equity, all of which are important to EPA, this report focuses on
racial minority and low-income populations.57
Volume 4, Number 1, The Fragile Biosphere; See also newspaper articles, ‘Infant deaths, cleft palates
raise concern about toxic landfill in San Joaquin Valley’, 7 December, 2009, available at
http://latimesblogs.latimes.com/lanow/2009/12/cleft-palates-raise-concern-about-toxic-landfill-in-san-
joaquin-valley.html (Accessed 11 July 2010) and L. Sahagun, ‘Kettleman City asks: Why so many
birth defects?’ 8 December, 2009, Available at http://www.latimes.com/news/local/la-me-kettleman-
city8-2009dec08,0,4302526.story (Accessed 11 July 2010); El Pueblo Para el Aire y Agua Limpio v.
County of Kings; The Louisiana “Cancer Alley” is an industrial corridor along the Mississippi River,
home to a predominantly poor, African American community plagued with environmental pollution. 55
Newton, Environmental Justice- a Reference Book at 25., the author argues that “an interesting
feature of the modern environmental justice movement is the critical role played by women... as front
liners in protests, community action and other actions on environmental racism and inequities.” For
detailed discussion on eco- feminism, see R Stein, ‘Introduction’ in R Stein (ed.) New Perspectives on
Environmental Justice: Gender, Sexuality and Activism, (Piscataway: Rutgers University Press, 2004)
at 1- 17; G Di Chiro, 'Defining Environmental Justice: Women's Voices and Grassroots Politics',
Socialist Review, 22/4 (1992), 93- 130 at 93- 130.; D Taylor, 'Women of Colour, Environmental
Justice and Eco- Feminism', in K Warren (ed.), Eco- Feminism: Women, Culture, Nature
(Bloomington: Indiana University Press, 1997a).; M Mellor, 'Building a New Vision: Feminist, Green
Socialism', in R Hofrichter (ed.), Toxic Struggles- the Theory and Practice of Environmental Justice
(Gabriola Island, BC, Canada: New Society Publishers, 1993a), 36; C Krauss, 'Blue- Collar Women
and Toxic Water Protests: The Process of Politicisation', in R Hofrichter (ed.), Toxic Struggles- the
Theory and Practice of Environmental Justice (Gabriola Island, BC, Canada: New Society Publishers,
1993a), 107. 56
D. Taylor, 'Attracting and Maintaining the Support of Minorities', in B Bryant and P. Mohai (eds.),
Race and the Incidence of Environmental Hazards (Boulder: Westview Press, 1992), 28; P Kameri-
Mbote and P Culler, 'Environmental Justice and Sustainable Development- Integrating Local
Communities in Environmental Management', (London: IELRC, 1996) at 1. 57
Report on Environmental Equity: Reducing Risks for all Communities, EPA Office of Policy,
Planning and Evaluation, July 1992.
39
Environmental equity also represents an ideal of equal or balanced treatment and
protection for disadvantaged groups under environmental legislation.58
In contrast
with environmental justice, environmental equity focuses solely on distributive
justice and does not incorporate an understanding of the underlying causes and
processes (procedural justice) of any resultant environmental inequality. The section
below gives a brief discussion on environmental justice.
4.6. Environmental justice
It must be mentioned at the outset that chapter three of this thesis is devoted to
explaining the meaning of ‘environmental justice’. This section only serves to briefly
explain the term in specific relation to its evolution during the third wave. Despite
on-going debate as to the precise meaning of environmental justice, it is generally
accepted that at its core, the purpose of environmental justice is to achieve
environmental equity. This can be fostered by eradicating environmental
discrimination, manifested mainly as environmental racism, but including other
factors such as class, gender and other deliberate biases. The EPA defines
environmental justice as:-
The fair treatment and meaningful involvement of all people regardless
of race, color, national origin, or income with respect to the
development, implementation, and enforcement of environmental laws,
regulations, and policies. Fair treatment means that no group of people
should bear a disproportionate share of the negative environmental
consequences resulting from industrial, governmental and commercial
operations or policies. Meaningful involvement means that: (1) people
have an opportunity to participate in decisions about activities that may
affect their environment and/or health; (2) the public can contribute to
regulatory agency’s decision-making; (3) their concerns will be
considered in the decision-making process; and (4) the decision makers
seek out and facilitate the involvement of those potentially affected.59
This definition shows that environmental justice is an outcome which is defined by
fairness in the environmental decision-making processes. Without meaningfully
involving communities at the earliest stages of legislative and policy development, it
is not possible to reach the goals of environmental justice. The EPA definition makes
it clear that environmental justice is aimed at avoiding unfair environmental burdens
58
Newton, Environmental Justice- a Reference Book, 2- 6. 59
EPA Environmental Justice Webpage: http://www.epa.gov/compliance/basics/ejbackground.html.
40
on minorities in any community (distributive justice) through fair treatment and
meaningful involvement of community members (procedural justice). The
importance of procedural environmental justice in securing (substantive) distributive
environmental justice is the main focus of this thesis and will be discussed in more
detail in the later chapters.
It can be illustrated that meaningful involvement of community members in
environmental matters raises awareness (procedural environmental justice) and is
more likely to contribute towards achieving substantive environmental justice. In
1991, the United States environmental activists mobilized themselves to convene the
First National People of Colour Environmental Leadership Summit (FNPCELS).
The FNPCELS was one of the most successful initiatives for environmental justice
activists.60
The FNPCELS was important for two reasons: first, it brought together
people of colour in order to reach consensus on a “people-centred, holistic and
socially just approach to the environment”, and secondly, it broadened the
environmental justice movement beyond its “anti-toxics focus, to include public
health, worker safety, land use, transportation, resource allocation, and general
community empowerment” in environmental matters.61
The effort to bring together environmental justice activists to deliberate the ideals of
the concept was a major step towards formalising the environmental justice
movement. The FNPCELS provided publicity to environmental justice issues and
showed that these issues were not associated just with race.62
The involvement of
diverse stakeholders assisted in the success of this Summit. Another important aspect
was that this Summit also adopted the Seventeen Principles of Environmental
Justice.63
These Principles were re-affirmed at a follow up Summit, the Second
60
Timmons, Chronicles from the Environmental Justice Frontline, 10, 57- 58. 61
Bullard, 'Confronting Environmental Racism in the Twenty- First Century', 38- 42; R. Bullard,
'Introduction', in R. Bullard (ed.), The Quest for Environmental Justice: Human Rights and the
Politics of Pollution (San Francisco: Sierra Club Books, 2005a), 3. 62
C Lee, 'Proceedings: The First National People of Colour Environmental Leadership Summit',
United Church of Christ Commission for Racial Justice (New York: UCCCRJ, 1992), 13-17; D
Alston, 'Transforming a Movement: People of Colour Unite at Summit against Environmental
Racism', Sojourner, 21 (1992), 30- 31. 63
The Seventeen Principles of Environmental Justice are reproduced as Appendix I to this thesis.
41
National People of Colour Environmental Leadership Summit (SNPCELS),
convened in 2002.64
The Principles of Environmental Justice have since formed the basis of
environmental justice in the United States and beyond. They are also important
because they embody the unanimous present and future aspirations of the EJM,65
making it easier to apply them in jurisdictions outside the United States. The
Preamble elaborately defines the collective purpose of the Principles. Further, each
Principle specifies what can be achieved, making it easy to tailor the environmental
justice needs of any society accordingly. For instance, the global nature of
environmental justice claims is also alluded to in Principle 4 which calls for
“universal protection from toxic substances that threaten the right to clean air, land,
water and food”. Principle 4 is complemented by Principle 6, which demands
cessation in production of toxic, hazardous, and radioactive substances. This
Principle goes on to demand that all past and current producers of such substances
are held strictly accountable for detoxification and other environmental reparation
measures.
Of relevance to procedural environmental justice calls is Principle 7 which demands
“the right of all citizens to participate as equals at all levels of environmental
decision-making”. The aspirations in Principle 7 are complemented by Principle 16
which demands education of present and future generations on environmental and
social issues which underlie the environmental justice crusade. The following section
explains how the United States government responded to this activism.
4.7. US Government responses to Environmental Justice case studies and activism
It has been argued that the creation of the United States EPA Office of
Environmental Justice in 1992 was a direct response to calls for laws on
64
R. Bullard, 'Environmental Justice in the Twenty- First Century', in R. Bullard (ed.), The Quest for
Environmental Justice, Human Rights and the Politics of Pollution (San Francisco: Sierra Club
Books, 2005b), 19- 41 at 22- 25. 65
S. M. Capek, 'The “Environmental Justice” Frame: A Conceptual Discussion and an Application.',
Social Problems, 40/1 (1993), 5- 24 at 6.
42
environmental equity advanced at many fora, including the FNPCELS.66
One of the
office’s first tasks was the publication of ‘Environmental Equity: Reducing Risks for
All Communities’,67
one of the most comprehensive government reports to examine
environmental justice. Shortly thereafter, in February 1994, President Clinton’s
administration issued the Environmental Justice and Sustainable Development68
Executive Orders 12898 and 12852 respectively. The Clinton administration also
created the National Environmental Justice Advisory Council (NEJAC).69
The Environmental Justice Executive Order 12898, entitled ‘Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income
Populations,’70
embodied the federal government’s official environmental justice
policy and in a way, marked the pinnacle of the EJM’s official
recognition.71
Executive Order 12898 was aimed at coordinating efforts by
government agencies to address environmental justice problems as well as support
local communities in research aimed at forestalling environmental injustice.72
It
recognised the right for any group, in particular minority and low income
populations not to suffer ‘the disproportionately high and adverse human health or
environmental effects of their programmes, policies and activities’.73
Executive Order 12898 also encouraged the fair siting of LuLus, increased citizen
participation and compensation where environmental injustice occurred.74
In spite of
66
R Bullard, Growing Smarter: Achieving Livable Communities, Environmental Justice, and
Regional Equity (Cambridge: MIT Press, 2007), 23-29; Mcgurty, 'From Nimby to Civil Rights: The
Origins of the Environmental Justice Movement', 307. 67
The full report is available at http://www.epa.gov/history/topics/justice/01.htm accessed on 18th
May 2011. 68
This Executive Order created the President’s Council on Sustainable Development, a taskforce that
was created to help shape sustainable development in the United States. 69
This Advisory Council comprised of the grassroots community, academia, industry, environmental
NGOs, and other interest groups. Its mandate was to advise the Environmental Protection Agency
(EPA) on environmental justice matters. 70
According to Mayer, “Executive Orders are, loosely speaking, presidential directives that require
or authorise some action within the Executive branch...They are presidential edicts, legal instruments
that create or modify laws, procedure and policy by fiat.” Executive Orders are also referred to as
“Stroke of a pen” to infer that the American President has powers to make policy by way of signing
an Executive Order. K. R Mayer, With the Stroke of a Pen- Executive Orders and Presidential Power
(New Jersey: Princeton University press, 2001), 4. 71
See Bullard, 'Environmental Justice in the Twenty- First Century', 21. 72
Sections 1.1 and 3.3 of Executive Order 12898 entitled, “Implementation” and “Research, Data
Collection and Analysis” respectively. 73
Section 1.1 of Executive Order 12898 entitled “Agency Responsibilities”. 74
Section 1.1 of Executive Order 12898 entitled “Development of Agency Strategies”.
43
these laudable initiatives, the Order has been subject to much criticism. First,
although United States’ law and politics widely acknowledges the legal importance
of Executive Orders, 75
it is also generally settled that Executive Orders are merely
symbolic. This is explained in the words of Foreman:-
Presidents rely on Executive Orders as a relatively uncontested way to
instruct the bureaucracy, and sometimes to make largely symbolic
appeals, without expending the time or political capital necessary to
undertake legislative battles that may be unwinnable... 76
This critique suggests that Executive Orders are simply symbolic and should not be
given equal weight with legislative pronouncements.
Secondly, and in support of Foreman, authors like Rodgers argue that Executive
Orders are no more than “personal expressions of a President’s wishes” and are
therefore “fragile sources of legal power”.77
More recently, Wallace has argued that
environmental injustices occur as a result of power imbalances,78
with the effect that
“only determined advocacy and leadership will produce successful solutions to
environmental justice problems”.79
On the strength of these arguments, it can be argued that an Executive Order falls
short of the legal import necessary for addressing environmental injustice problems.
Consequently, the view in this thesis is that Executive Order 12898 may have been
an inadequate way of recognising the significance of environmental justice. On the
other hand, it can be argued that the use of an Executive Order was deliberate. From
as early as the second wave of environmentalism, the Civil Rights Act of 1964
75
K. R. Mayer, 'Executive Orders and Presidential Power', The Journal of Politicks, 61 (1999), 445-
66.; C. J. Deering and F Maltzman, 'The Politics of Executive Orders: Legislative Constraints on
Presidential Power', Political Research Quarterly, 52 (1999), 445- 66.; F. L Kirgis, 'Federal Statutes,
Executive Orders and "Self- Executing Custom"', The American Journal of International Law, 81/2
(1987), 371- 76 at 371- 76. 76
Foreman, The Promise and Peril of Environmenetal Justice, 62. 77
W. H. Rodgers, 'Executive Orders and Presidential Commands: Presidents Riding to the Rescue of
the Environment', Journal of Land Resources & Environmental Law, 21 (2001), 13- 24 at 15- 17. 78
P Wallace, 'Commentary: Environmental Justice and the Bp Oil Spill: Does Anyone Care About
the "Small People of Colour"?', The Modern American, 6/2 (2010), 64- 67 at 65. The author argues
that “one commonality between environmental justice and other social and economic justice topics is
the notion of power imbalances: relative powerlessness of those being harmed and superior power of
those causing, or allowing harm. 79
Ibid.
44
prohibited discriminatory practices.80
Therefore, the proclamation of the
Environmental Justice Executive Order was a symbolic gesture marking the United
States government’s acknowledgement of the need to specifically address
environmental injustices. In addition, efforts to enact environmental- justice- specific
legislation in the United States started in 1992, but to date, none have materialised.81
Further criticism was levelled against this Executive Order in a report by the EPA in
2004.82
This report found that the United States EPA had not provided a clear vision
for fully implementing Executive Order 12898, a decade after the Executive Order
had taken effect. It was stated that the EPA was yet to “establish values, goals,
expectations and performance measurements” for consistently integrating
environmental justice into its day-to-day operations.83
Furthermore, Bullard argues
that this Executive Order, together with efforts initiated by the EPA to promote the
fight for environmental justice, had only served to:-
Institutionalise unequal enforcement; trade human health for profit;
place the burden of proof on the “victims” and not on the polluting
industry; legitimize human exposure to harmful chemicals, pesticides
and hazardous substances; promote risky technologies such as
incinerators; exploit the vulnerability of economically and politically
disenfranchised communities; subsidise ecological destruction; create an
industry around risk assessment; delay clean up actions; and it failed to
develop pollution prevention as the overarching and dominant strategy.84
80
Title VI, Civil Rights Act 601, 602, and 42 U.S.C. 198, Title VI, Civil Rights Act 601. Supra note
25. 81
Roberts argues that the first proposed environmental justice legislation was the Environmental
Justice Act of 1992 and the second major environmental justice proposed legislation was the
Environmental Equal Rights Act of 1993, which would have enabled citizens to petition against the
construction of solid waste management facilities in “environmentally disadvantaged” communities.
The third proposed environmental justice law was the Fair Environmental Protection Act. As recent as
2009, there was the Environmental Justice Renewal Act Bill, which regrettably has also not seen the
light of day. R. G. Roberts, 'Environmental Justice and Community Empowerment: Learning from the
Civil Rights Movement', American University Law Review, 48/1 (1998), 229- 67 at 239. 82
EPA, 'EPA Needs to Consistently Implement the Intent of the Executive Order on Environmental
Justice', (Washington, D. C.: United States Environmental Protection Agency, Office of the Inspector
General, 2004), 1. 83
Ibid. 84
Bullard, 'Confronting Environmental Racism in the Twenty- First Century', at iii; Dowie, Losing
Ground: American Environmentalism at the Close of the Twentieth Century at 155, who argues that
“From the early days of its existence, mainstream environmentalists have complained publicly about
EPA intransigence” and cites five distinct examples of how lawsuits were initiated to compel the
agency to enforce laws to restore environmental justice.
45
Despite these criticisms, the Executive Order is still renowned for having signalled a
new era in the environmental justice crusade in the United States. For instance, the
environmental injustice cases that occurred after the promulgation of Executive
Order 12898 can be differentiated from those that occurred before owing to the clear
guidance prescribed in the Executive Order. An example lies in some successful
challenges against the siting of LuLus in minority areas on the- “apparent” -basis
that racial discrimination had played a part, without the necessity to prove
“discriminatory intent”.85
As discussed earlier in this chapter, in the cases prior to the
Executive Order taking effect, the courts required proof of “intent to discriminate”.86
The following case which was decided after the passing of Executive Order 12898
illustrates this point.
The case St. James Citizens v. Shintech87
was heard through the administrative
process of the EPA. Shintech had applied for a permit to build a polyvinyl chloride88
plant in Convent, Louisiana, a community with an African American population of
over 70%, of which 40% fell below the poverty line. This community already had
numerous polluting industries in close proximity to residential homes. The
Petitioners argued that Executive Order 12898 required the EPA to ensure that:-
No segment of the population, regardless of race, colour, national
origin, or income, as a result of EPA’s policies, programs, and activities,
suffer disproportionately from adverse health or environmental effects,
and that all people live in clean and sustainable communities.89
The Petitioners submitted their own environmental justice analysis as part of their
evidence before the EPA Administrator. They argued that this analysis revealed that
85
Ibid. Bullard, 'Confronting Environmental Racism in the Twenty- First Century', at 12-17, citing
the following cases and explains the issues in contention as well as the court findings: St. James
Citizens v. Shintech; Citizens against Nuclear Trash; South Camden Residents. See also R Bullard
and G Johnson, 'Environmentalism and Public Policy: Environmental Justice: Grassroots Activism
and Its Impact on Public Policy Decision-making', Journal of Social Issues, 56/3 (2000), 555- 578 at
569, citing the case Citizens against Nuclear Trash v. Louisiana Energy Services. 86
See this chapter, section 4.3 87
This case is extensively discussed in Bullard, 'Confronting Environmental Racism in the Twenty-
First Century', 16. 88
Polyvinyl chloride Polyvinyl chloride (PVC) is an addition polymer of vinyl chloride. It is heavy,
stiff, ductile, and a medium strong, amorphous, transparent material. When incinerated, PVC presents
environmental problems because of its chlorine content. See K. Marsh and B. Bugusu, 'Food
Packaging- Roles, Materials and Environmental Issues', Journal of Food Science, 72/3 (2007), 39- 55. 89
See Executive Order 12898; S. L. Johnson, 'Memorandum Affirming the U. S. Environmental
Protection Agency's Commitment to Environmental Justice', (Washington, D. C.: United States EPA,
2005).
46
if Shintech was allowed to proceed with the proposal, the low- income and minority
population in the community were likely to be disproportionately and adversely
affected by pollution on the basis of race. The EPA found that a case for
environmental racism had been proved and the Respondent was not issued with the
necessary permit.
This section has shown that there has been rapid development of environmental
justice concerns during the third wave. Projections show that environmental justice
will evolve even more rapidly during the current fourth wave and beyond.90
The
following section explains the fourth wave of environmentalism and considers
whether people’s activism and participation has moved the environmental justice
cause further than it evolved during the third wave.
5. Fourth wave: globalisation of environmental justice
The fourth wave covers the period from the late twentieth century to date. During
this period, the EJM has been projected to grow even more rapidly than it did in the
second and third waves. It must be emphasised at the outset that despite the rapid
growth of environmental justice in the United States, there is presently no legislation
that focuses on environmental justice. The growth of the concept is credited to
legislation such as -the Fourteenth Amendment of the United States Constitution,
Title VI of the Civil Rights Act, 601 and 602 and the 42. U.S. C. of 1983.91
According to Peña, the United States has a long history of failure to enact
environmental justice legislation dating from 1992 to 2011. Peña argues that the first
draft of the Environmental Justice Act, 1992 could not be enacted and that in 2005
and 2007, further futile attempts were made to have environmental justice- specific
legislation passed. As at February 2011, there was a proposal to enact a federal law
90
Dowie, Losing Ground: American Environmentalism at the Close of the Twentieth Century at 206-
7; L. P. Thiele, Environmentalism for a New Millenium: The Challenge of Co- Evolution (New York:
Oxford University Press, 1999), 16, 113, 202. 91
D. G Peña, 'Toward an Environmental Justice Act: Can Ecological Democracy Trump Partisan
Politics and Neoliberalism?', New Clear Vision, (2011).
http://www.newclearvision.com/2011/03/02/toward-an-environmental-justice-act/ .
47
specifically guaranteeing the right to environmental justice.92
To date, this legislation
has not yet come to fruition.
The expected rapid evolution of environmental justice has already manifested itself
with the concept traversing the geographical boundaries of the United States. The
concept has also evolved beyond the traditional theoretical and practical limits of
distributive justice.93
Three factors have promoted this evolution during the fourth
wave: increased grass roots awareness and organisational support, 94
promotion of
democratic practices in environmental matters combined with more concerted calls
for environmental sustainability and, public participation and accountability in the
United States and beyond. The increase in grassroots environmentalism will add
value to the environmental justice movement because of its strong belief in citizen
participation.
Citizen participation is the backbone against which environmental justice will
develop in the fourth wave. Grassroots environmentalists enhance the right to
participate by vigorous advocacy mechanisms and a sense of communal belonging.
This is evidenced in the many public interest lawsuits that are commenced by
grassroots organisations, combined with ‘clean up initiatives’.95
It is expected that
environmentalism during the fourth wave will be “democratic in origin, populist in
style, untrammelled by bureaucracy and inspired by a host of new ideologies.”96
92
Ibid. Peña, 'Toward an Environmental Justice Act: Can Ecological Democracy Trump Partisan
Politics and Neoliberalism?'. 93
Refer to chapter 1, section 2.1 94
Grassroots organisations are comprised of local communities groups drawn from a cross section of
races, class, and gender, educational and occupational groups. Bullard and Johnson,
'Environmentalism and Public Policy: Environmental Justice: Grassroots Activism and Its Impact on
Public Policy Decision-Making'; N Freudenberg and C Steinsapir, 'Not in Our Backyards: The
Grassroots Environmental Movement', American Environmentalism- the Us Environmental Movement
1970- 1990 (Washington, D. C.: Taylor & Francis, 1992), 27- 35 at 28- 32. 95
Ibid. Bullard, Confronting Environmental Racism: Voices from the Grassroots; G Di Chiro,
'Environmental Justice from the Grassroots: Reflections on History, Gender and Expertise', in D Faber
(ed.), The Struggle for Ecological Democracy: Environmental Justice Movements in the United States
(New York: Guilford Press, 1998a), 104- 36. 96
Dowie, Losing Ground: American Environmentalism at the Close of the Twentieth Century, 206-
07.
48
6. The four waves of evolution: a summary
By way of summarising the four waves of environmentalism, it has been shown that
there are shortcomings in the initiatives that were aimed at promoting environmental
justice in the United States. One important observation is that the impetus for further
evolution of environmental justice lies with citizens and the conviction of their
beliefs. A lack of procedural environmental justice considerations during the first
wave of environmentalism has been highlighted in this chapter. This earliest phase of
environmentalism was not concerned with grassroots’ needs for civil rights and
liberties. Towards the end of the second wave, however, traces of citizen awareness
and conviction to participate in environmental matters started with the
acknowledgement of distributive injustices in the siting of LuLus.
Social justice considerations were only introduced into environmental matters during
the latter years of the second wave with the merging of two of the most influential
social movements of the past few decades; environmentalism and civil rights.97
One
conception of environmental justice suggests that environmental problems cannot be
separated from other social injustices such as poverty, racism, gender,
unemployment and urban deterioration.98
During the first and early part of the second
waves, there was no prior consultation with the local communities on siting plans by
the authorities. This gave rise to widespread complaints that the poor minorities were
being targeted to live side by side with environmentally harmful substances.
In the third wave which marked the period of rapid environmental justice evolution,
calls were repeatedly made for the “free and prior informed consent” of marginalised
groups to be sought before activities were undertaken in their communities.99
This
factor among many others has led to the global development of environmental
97
Dunlap and Mertig, 'The Evolution of the U. S. Environmental Movement from 1970 to 1990: An
Overview', at 1- 10; R Bullard and B Wright, 'The Quest for Environmental Equity: Mobilising the
African- American Community for Social Change', in R Dunlap and A Mertig (eds.), American
Environmentalism- the Us Environmental Movement, 1970- 1990 (Washington, D. C.: Taylor &
Francis, 1992), 39- 49. 98
Hofrichter,‘Introduction in R Hofrichter (ed.) Toxic Struggles: The Theory and Practice of
Environmental Justice, 4; D Faber, 'The Struggle for Ecological Democracy and Environmental
Justice', in D Faber (ed.), The Struggle for Ecological Democracy: Environmental Justice Movements
in the United States (New York: Guilford Press, 1998), 1- 26 at 1. 99
Schrader- Frechette, 'Power, Justice and the Environment: A Critical Appraisal of the
Environmental Justice Movement', 77- 81.
49
justice. The discussion on the third wave has shown a radical departure from the
traditional- narrow- driven view of environmentalism in the first wave.
The fourth wave of environmentalism is being inspired by new ideologies which
have effectively broadened the interpretation of environmental justice.100
For
instance, environmental justice incorporates the anti- toxics campaign (from which
environmental justice developed in the third wave), advanced equality in health,
pollution, management of natural resources and general aspects of human life.101
The
EJM therefore aptly defined the ‘environment’ as “where we live, where we work,
where we play, where we learn and sometimes, pray.”102
This wide interpretation of -
the environment- can be extended to include social, economic and development
issues in line with the goals of sustainable development. The attainment of
environmental sustainability in the fourth wave will be an important feature for the
continued evolution of environmental justice. This makes it important to briefly
discuss sustainable development in the light of how it is likely to influence the
evolution of environmental justice.
7. Environmental justice and sustainable development
This section critically discusses sustainable development in relation to the impact it
will have on the evolution of environmental justice.103
This section will focus on a
critical evaluation of the differences and similarities between environmental justice
and sustainable development with a view to assessing how the environmental justice
discourse informs the wider sustainable development agenda.
100
Eady, 'Warren County and the Birth of a Movement: The Troubled Marriage between
Environmentalism and Civil Rights', (Available at
http://digitalcommons.law.ggu.edu/gguelj/vol1/issl/5. 101
Di Chiro, 'Environmental Justice from the Grassroots: Reflections on History, Gender and
Expertise', 104. 102
C Lee, 'Environment: Where We Live, Work, Play and Learn', 6 Race, Poverty and the
Environment, (Winter- Spring 1996), 6; J Nah- Yoon and K Stelljes, 'Enabling Environmental Justice:
Assessment of Participatory Tools', (Massachusetts Institute of Technology, 2008a). 103
A detailed discussion on the significance of sustainable development to modern environmental
law and policy cannot be successfully undertaken in this thesis. For more detailed discussion, see P
Rogers et. al., Introduction to Sustainable Development (London: Earthscan, 2008); K. Bosselmann,
The Principles of Sustainability- Transforming Law and Governance (Aldershot: Ashgate, 2008); D
Tladi, Sustainable Development in International Law: An Analysis of Key Enviro- Economic
Instruments (Pretoria: Pretoria University Law Press, 2007); M Qizilbash, 'Sustainable Development:
Concepts and Rankings', The Journal of Development Studies, 37/3 (2001), 134- 61 at 134- 61.
50
7.1. What is sustainable development?
Sustainable development was first given recognition as far back as 1892 in the
Behring Sea Fur Seals Arbitration Case between Great Britain and the United
States.104
In this case, the United States successfully defended its right to exploit and
conserve Pacific Sea Fur Seals, with the Arbitral Award, emphasising the need for
sustainable use of resources among other issues.105
More recently, widespread
popularity of sustainable development begun with the 1987 publication of Our
Common Future (also known as the Brundtland Report) by the World Commission
on Environment and Development.
The concept also formed the cornerstone of the Earth Summit and dominated the Rio
Declaration on Environment and Development.106
It now underpins most
international and national environmental legal systems in much the same way as
general concepts such as liberty, justice and equality. 107
It is acknowledged as
having a defining effect on the understanding of other concepts such as
environmental justice and environmental assessments. According to Birnie and
Boyle, sustainable development has:-
Widespread international endorsement as the central concept of
international environmental law, and that: it is clear that few states
would quarrel with the proposition that development should be
sustainable and that all natural resources should in principle be
managed in this way. This evidence, coupled with indications of
supporting State practice, might be sufficient to crystallize the opinio
juris into a normative standard of international law, or even into a
peremptory norm of international law.108
104
This case is discussed in detail in J. S Brown, 'Fur Seals and the Behring Sea Arbitration', Journal
of the American Geographical Society of New York, 26/1 (1894), 326- 72 at 326- 72; A. Wishart, The
Behring Sea Question, the Arbitration Treaty and the Award (London: Edinb & Co, 1893). 105
Ibid. Brown, 'Fur Seals and the Behring Sea Arbitration', (at 326- 72; Wishart, The Behring Sea
Question, the Arbitration Treaty and the Award; P. Sands, Principles of International Environmental
Law (Cambridge: Cambridge University Press, 2003), 561. 106
The Rio Declaration on Environment and Development, Principle 4 107
Henderson argues that environmental justice and sustainable development are distinctive principles
of South African environmental law, with sustainable development being a well-established founding
distinctive principle of environmental law, P. G. W. Henderson, 'Some Thoughts on Distinctive
Principles of South African Environmental Law', South African Journal of Environmental Law and
Policy, (2001), 139 at 163- 69; See generally R. W Kates, T Parris, and A. Leiserowitz, 'What Is
Sustainable Development? Goals, Indicators, Values and Practice', Environment: Science and Policy
for Sustainable Development, 47 (2005), 8- 21. 108
P. Birnie and A. & Boyle, International Law and the Environment (London: Oxford University
Press, 1992), 123.
51
It is also arguable that:-
The concept of sustainable development is now established in
international law, even if its meaning and effect are uncertain. It is a
legal term which refers to processes, principles and objectives, as well as
to a large body of international agreements on environment, economics
and civil and political rights.109
These views support the argument that sustainable development is an internationally
recognised concept in environmental law. Despite this widespread recognition, the
definition of sustainable development is far from precise. One of the challenges
towards a universally acceptable definition is that the concept embraces social
justice, environmental protection and economic development.110
It might therefore be
helpful to begin by analysing some of the earliest definitions and then focus on the
definitions that are relevant to environmental protection.
The Brundtland Report defines sustainable development as “development that meets
the needs of the present without compromising the ability of future generations to
meet their own needs”.111
This definition shows that sustainable development can be
achieved by recognising and making effort to meet different needs and concerns of
present and future generations. At the core of this definition are the concepts of -
‘intragenerational equity’- and -‘intergenerational equity’-.112
These two concepts
form important elements of the wider concept of justice.
109
P. Sands, 'International Law in the Field of Sustainable Development', British Yearbook of
International Law, (1994), 303, 305. Quoting Field, 'Report of the Consultation on Sustainable
Development: The Challenge to International Law', (London: Foundation for International
Environmental Law and Development, 1994), 1. 110
Tladi, Sustainable Development in International Law: An Analysis of Key Enviro- Economic
Instruments.; See also P. Sands, Principles of International Environmental Law, Volume I:
Frameworks, Standards and Implementations, (Manchester: Manchester University Press, 1994) at
198- 208., who states that sustainable development consists of four interlinked elements: needs of
future generations, sustainable use of natural resources, need for equitable use of natural resources;
and integration of environment and development. 111
G. Bruntland, Our Common Future: The World Commission on Environment and Development,
ed. G Brundtland (Oxford: Oxford University Press, 1987), 8. 112
The Brundtland Report acknowledges both intra- and inter- generational equity as being necessary
for environmental sustainability. According to Weiss, the principle of intergenerational equity is
defined in present species holding the natural and cultural environment of the planet “in common,
both with other members of the present generation and with other generations, past and future ... at
any given time, each generation is both a custodian and trustee of the planet for future generations and
a beneficiary of its fruits.” E. B. Weiss, In Fairness to Future Generations: International Law,
Common Patrimony and Intergenerational Equity (London: Transnational Publishers, 1989), 17; P. A
Barnesi, 'Beyond Fairness to Future Generations: An Intragenerational Alternative to
Intergenerational Equity in the International Environmental Arena', Tulane Environmental Law
Journal, 11 (1997), 59- 69. Intragenerational equity on the other hand, is essentially social justice
52
Following the Brundtland Report, the United Nations Environment Programme
(UNEP) 15th
Governing Council clarified that sustainable development implies:-
Progress towards national and international equity as well as the
maintenance, rational use and enhancement of the natural resource base
that underpins ecological resilience and economic growth.113
This interpretation of sustainable development by UNEP is important because it
emphasises equity, maintenance, rational use and enhancement of natural resources.
This thesis advocates procedural environmental justice as the means through which
equitable distribution of natural resources and other environmental benefits
(substantive environmental justice) can be achieved. When implemented effectively,
procedural environmental justice can contribute to achieving the goals of sustainable
development. The term ‘equity’ is widely used together with ‘fairness’ to connote
‘justice’. Although not the key focus in this thesis, these two terms are important in
understanding the ‘justice’ component in both sustainable development and
environmental justice as will be seen in chapter three.
The Rio Declaration states that “human beings are at the centre of concerns for
sustainable development.”114
This means that sustainable development seeks to
ensure that the basic needs of humanity, namely, food, clothing, shelter and
employment are met. In achieving sustainable development, human well-being and
the environment are strongly interlinked, and development cannot subsist upon a
deteriorating environmental resource base.
Environmental justice and sustainable development are further linked by their
practical anthropocentric considerations. For instance, it has been shown that
environmental justice has evolved through the first to the fourth waves by including
within present generations. See generally C Okerere, 'Global Environmental Sustainability:
Intergenerational Equity and Conceptions of Justice in Multilateral Environmental Regimes',
Geoforum, 37/5 (2006), 725. 113
Unep, 'Unep Report of the Governing Council', (Nairobi: UNEP, UN Document A/25 of 1989) at
115. 114
Principle 1 of the Rio Declaration
53
more anthropocentric concerns and seeking to balance them with ecocentric ones
demanding intergenerational and ecological justice.115
Further attempts at explaining sustainable development suggest that at the
international level, the concept can be structurally conceived as consisting of three
pillars, namely:- environmental law, human rights law and economic law.116
This
presents sustainable development as an integrated and interactive concept which
overarches a broad range of subjects and yet remains a separate concept.117
The
integrated structure of sustainable development is such that it requires support from
each of these three pillars. International environmental law is however taken as the
central pillar of sustainable development and has grown remarkably in recent
decades.118
This section has shown that sustainable development is an important environmental
concept which has economic, developmental and environmental implications,
however, what is the conceptual nexus between environmental justice and
115
One definition of ecological justice is that it is justice to nature, whereas environmental justice is
justice to human beings; it means addressing mal- distribution of environmental ‘goods’ and ‘bads’
for future human generations and the natural world. Refer to D. Schlosberg, 'Environmental and
Ecological Justice: Theory and Practice in the United States', in J Barry and R. Eckersley (eds.), The
State and the Global Ecological Crisis (Cambridge: MIT Press, 2005), 97- 116 at 98; Low and
Gleeson define ecological justice as justice for animals, living beings, living ecological systems and
human beings. See N Low and B Gleeson, ‘Introduction’ in Justice, Society and Nature: An
Exploration of Political Ecology, ed. N Low (New York: Routledge, 1998), 3-5. 116
D. Mcgoldrick, 'Sustainable Development and Human Rights: An Integrated Conception',
(London: School of Oriental and African Studies, IALS, 13 February 1999); D. Mcgoldrick,
'Sustainable Development and Human Rights: An Integrated Approach', International and
Comparative Law Quarterly, (1996), 818 at 818. 117
See generally D Reid, Sustainable Development: An Introductory Guide (London: Earthscan,
1995), arguing that the vagueness and ambiguity of the term makes it possible for divergent or even
contradictory themes to follow under it; M. Ivanova, 'Environment: The Path of Global
Environmental Governance- Form and Function in Historical Perspective', in A. Callway (ed.),
Governance for Sustainable Development: A Foundation for the Future (London: Earthscan), 45- 72
at 45- 72; M Keiner, 'Re- Emphasising Sustainable Development- the Concept of Evolutionability: On
Living Chances, Equity and Good Heritage', Environment, Sustainability and Development, 6 (2004),
379- 92. 118
P Sands, Principles of International Environmental Law, Volume I: Frameworks, Standards and
Implementations; Birnie and & Boyle, International Law and the Environment, 433- 35; F Ksentini,
'The Ksentini Report, Human Rights and the Environment', (New York: UN, 6 July 1994); A. F
Aguilar and N. Popovis, 'Lawmaking in the United Nations: The Un Study on Human Rights and the
Environment', (New York: UN, 1994) at Paragraph 24, notes that: "International environmental law
has developed to such an extent that there are some 350 multilateral treaties, 1,000 bilateral treaties
and a multitude of instruments of intergovernmental organizations that have been adopted in the form
of declarations, programmes of action and resolutions."
54
sustainable development? The following section attempts to answer this question by
identifying the differences and similarities between the two concepts.
7.2. Differences and similarities between sustainable development and
environmental justice
It is generally accepted that sustainable development and environmental justice are
conceptually related.119
Some authors, however, such as Dobson and Pedersen argue
that the two concepts can only be related depending on the interpretation of
sustainable development that is adopted.120
According to a report by the Centre for
International Environmental Law, the legal nexus between sustainable development
and environmental justice is guided by three key areas: the right to life which
includes the right to a healthy environment; the traditional and customary property
rights of indigenous and other local communities, especially those in the Global
South; and participatory and procedural rights.121
This thesis focuses on the procedural aspect of environmental justice. Both
sustainable development and environmental justice emerged as well formed policy
ideas in the 1980s. It has however been observed that the two concepts have evolved
differently. Sustainable development has evolved “from the setting of international
diplomacy”122
whereas environmental justice originates from grassroots struggles as
shown in the second and third waves.
119
J Ruhl, 'The Co- Evolution of Sustainable Development and Environmental Justice: Cooperation,
Then Competition, Then Conflict', Duke Environmental Law and Policy, 9 (1999), 161 at 169. 120
See generally O. W. Pedersen, 'Environmental Principles and Environmental Justice',
Environmental Law Review, 12/1 (2010), 26- 49. The author argues that “the concept of
environmental justice has emerged as a basis for questioning established norms of environmental law
and policy in general.” Pedersen analyses the conceptual nexus of environmental justice with
environmental principles of precaution, prevention, the polluter pays and sustainable development. In
relation to sustainable development, the author concludes that “on a theoretical level, the two concepts
may not necessarily share a common basis.” See also A Dobson, Justice and the Environment:
Conceptions of Environmental Sustainability and Dimensions of Social Justice (Oxford: Oxford
University Press, 1998) at 26, arguing that there is no conceptual nexus between sustainable
development and environmental justice “as far as distributive aspects are concerned.” 121
Centre for International Environmental Law, 'One Species, One Planet: Environmental Justice and
Sustainable Development', (Washington, D. C.: Centre for International Environmental Law (CIEL),
2002) at 10. http://www.ciel.org/Publications/OneSpecies_OnePlanet.pdf. 122
Pedersen, 'Environmental Principles and Environmental Justice', 33.
55
The relationship between environmental justice and sustainable development is also
illustrated by Principle 3 of the Environmental Justice Principles adopted by the
FNPCELS.123
It states as follows:-
Environmental Justice mandates the right to ethical, balanced and
responsible uses of land and renewable resources in the interest of a
sustainable planet for humans and other living things.
This Principle echoes the argument that environmental justice and sustainable
development are conceptually related. This position is also supported by the
universality of human rights as well as the close relationship between human rights
and the environment.124
The Brundtland Report emphasises sustainable development as being fundamentally
important in achieving global justice and justice towards future generations, thereby
suggesting that equity concerns serve as a conceptual link between these two
concepts.125
Environmental justice and sustainable development are increasingly
intertwined concepts both of which incorporate social justice and environmental
issues. 126
Sustainable development incorporates much of the equity concerns that
environmental justice seeks to address; it also requires an equitable distribution of
economic and environmental costs and benefits, community services and
opportunities to participate in decisions affecting communities. Furthermore,
sustainable development expands the environmental justice notion of distributive
justice to incorporate concerns for the poor, future generations, and the environment.
This is a wider ambit than that offered by environmental justice which is limited to
the avoidance of environmental burdens on already disadvantaged minorities.
Despite the links between sustainable development and environmental justice, there
are clearly some differences. Sustainable development is a more embracing concept
123
The FNPCELS and the 17 Principles of Environmental Justice are discussed in this chapter in
section 4.2 124
N Quental et. al., 'Sustainable Development Policy: Goals, Targets and Political Cycles',
Sustainable Development, 19/1 (2011), 15- 29 at 27.
http://onlinelibrary.wiley.com/doi/10.1002/sd.416/pdf. 125
D. Hunter, 'Concepts and Principles of International Law: An Introduction', Rajas Data Bank
Journal, (1997), 3. 126
Kameri- Mbote and Culler, 'Environmental Justice and Sustainable Development- Integrating
Local Communities in Environmental Management', at 1. http://www.ielrc.org/content/w9601.pdf.
56
as compared to environmental justice. In terms of justice considerations, sustainable
development has a wider scope of policies, stakeholders and complexities.127
It can
also be perceived as a new and extended form of justice which expands the
traditional concept of justice in terms of space and time, to include the global
community and future generations.128
As stated earlier in this section, the focus of
the conceptual nexus between environmental justice and sustainable development is
procedural justice.
The following section assesses whether sustainable development incorporates
procedural justice values and to what extent environmental justice complements the
wider sustainable development agenda in the quest for procedural environmental
justice and environmental wellbeing.
7.3. Sustainable development, public participation and procedural environmental
justice
One element in the modern understanding of sustainable development that is
reflected in environmental law is the right to participate in decision-making related
to the environment. In order to achieve sustainable development, transparent
decision-making processes and meaningful opportunities for public participation and
access to environmental information are required.129
It is argued that the social,
environmental and economic pillars of sustainable development are not adequate for
present day global environmental issues.
A new set of seven main policy pillars has been proposed to substitute the traditional
three pillar approach.130
Of these proposed pillars, one emphasises that there must be
127
Ruhl, 'The Co- Evolution of Sustainable Development and Environmental Justice: Cooperation,
Then Competition, Then Conflict', 169. 128
Bosselmann, 'A Paper Presented at the World Summit on Sustainable Development:
Environmental Law Foundations for Sustainable Development', 6. 129
Brundtland, Our Common Future: The World Commission on Environment and Development at
65, wherein it is stated that sustainable development “needs community knowledge and support which
entail greater participation in the decisions that affect the environment...[and this ] is best secured by...
promoting citizen’s initiatives, empowering peoples’ organisations and strengthening local democracy
[and]... environmental impact assessment and public access to information are important ...” 130
Quental argues that the other six pillars of sustainable development are: sustaining natural capital
(biodiversity, water, air), sustaining life support systems (ecosystems, ecosystem services, resources),
minimizing human impacts (climate change, pollution, waste, desertification, population growth),
developing human capital (human rights, political liberties, learning, equity, health, wealth),
developing social capital ( solidarity, community, culture), developing economy (economy,
57
institutional development to address public participation, good governance,
democracy, transparency and international co-operation. The UN Conference on
Environment and Development was also strong in this respect: Agenda 21 stated that
broad public participation in decision-making was one of the most important
prerequisites for the achievement of sustainable development, and further that access
to information was a key part of effective participation.131
Like environmental justice, sustainable development requires broad- based public
participation in environmental decision-making. Furthermore, as both environmental
justice and sustainable development share the belief that poor people live in poor
environments, environmental justice could arguably be a -‘route’- to greater
sustainability.132
7.4. A Summary of environmental justice and sustainable development
It is important to restate that environmental justice was historically premised on
ensuring that minorities do not face disproportionate environmental burdens. This
has been elaborated in the second and third waves. One of the underlying perquisites
in achieving this end is that the decision-making processes be fair and transparent. It
has been shown that during the second and third waves, the principle of participation
and advocacy has significantly contributed towards elevating environmental justice
activism beyond the borders of the United States. Although sustainable development
focuses on integrating social justice concerns with environmental protection and
economic development,133
this integration can only be achieved through public
participation with all stakeholders.
agriculture, consumption, employment, technology), developing institutions (good governance,
democracy, transparency, public participation and international co-operation). Quental et. al.,
'Sustainable Development Policy: Goals, Targets and Political Cycles', 27
http://onlinelibrary.wiley.com/doi/10.1002/sd.416/pdf . 131
See the provisions of Agenda 21Un, 'Results of the World Conference on Environment and
Development: Agenda 21', (Rio de Janeiro: United Nations Conference on Environment and
Development, 1992) at Para 22.3; D. P. Ghai and J. M. Vivian, Grassroots Environmental Action:
People's Participation in Sustainable Development (London: Routledge, 1992); A Tolentino, 'Good
Governance through Popular Participation in Sustainable Development', in K Ginther, E Denters, and
et.al (eds.), Sustainable Development and Good Governance (Amsterdam: M. Nijhoff, 1995), at 136;
L Schwarz, 'International Legal Protection for Victims of Environmental Abuse', Yale Journal of
International Law, 18 (1993), 373. 132
A Dobson, Fairness and Futurity- Essays on Environmental Sustainability and Social Justice
(Oxford: Oxford University Press, 1999), 3. 133
Ibid. Quental et. al., 'Sustainable Development Policy: Goals, Targets and Political Cycles'.
58
According to George, more justification on the inclusion of sustainable development
criteria into the development planning ambit of EIAs would be required and in this
regard:-
Using the Rio definition of sustainable development would entail that
only two tests are needed for whether or not a proposed development is
sustainable development: is it equitable for future generations, and is it
equitable for the present generation.134
In other words, provided intergenerational and intragenerational equity
considerations were introduced into EIA, the process would be capable of meeting
the goals of sustainable development.
Similarly, Bruhn-Tysk and Eklund agree that EIA ideals are useful in meeting some
of the goals of sustainable development. The aim of EIA, however is to weigh the
impacts of development projects on the environment. Where EIA is carried out
successfully:-
The direct and indirect effects of a project on the environment can be
assessed for both the short and long term as well as locally and globally.
In this way, the effects of the project on the environment of both present
and future generations are identified and can be used by both decision
makers and project developers.135
This argument shows that if undertaken effectively, EIA would be more likely to
foster intergenerational and intragenerational equity. This thesis acknowledges that
the EIA process involves a delicate balance between developmental issues and
environmental well-being. In order to achieve this balance, all participants must
understand the scientific and complex environmental information. As a result, non-
expert communities usually find that it is difficult to understand the EIA process. In
this regard, if public participation is carried out effectively, it becomes an important
tool for educating community members and getting feedback on proposed
developments. Bruhn-Tysk and Eklund argue that :-
134
C George, 'Testing for Sustainable Development through Environmental Assessment',
Environmental Impact Assessment Review, 19/2 (1999), 175- 200 at 176-180. 135
S Bruhn- Tysk, 'Environmental Impact Assessment- a Tool for Sustainable Development?: A Case
Study of Bio Fuelled Energy Plants in Sweden', ibid.22 (2002), 129- 44 at 132- 33.
59
...Public groups have a chance to discuss project design and to express
their concerns about the project development... the project developer
sees to it that a part of the concept of intragenerational equity is met.
Any impact affecting the public has to be mitigated in some way in order
to reduce the effects on the public to an acceptable level. 136
This argument emphasises that effective public participation in the EIA process is
important in meeting the goals of sustainable development. As shown in this section,
environmental justice and sustainable development are conceptually linked through
public participation.
8. Conclusion
The EJM has gathered considerable momentum over the years. In the 1970s and
1980s, grassroots activists revealed widespread environmental injustices such as
siting of waste facilities in poor, predominantly black areas of the United States. In
most cases, the United States government responded positively to these findings,
through both the introduction of legislation and the development of guidelines
designed to influence the day- to- day activities of the EPA.137
As a result,
environmental justice has evolved as one of the most important and dynamic fields
in environmental law and policy in the United States over the past twenty years.
During the first wave of environmentalism, social justice considerations and civil
liberties were not on the ecocentric, conservation-preservation agenda:
discrimination and inequality in environmental issues were not deemed relevant in
access to or enjoyment of the environment. This position shifted towards the end of
the second and the beginning of the third waves due to increased activism by
grassroots organizations championing equality in all aspects of human interaction.
For instance, remedial action on ‘toxic contamination issues’ as well as problems
stemming from housing, labour and transport which went beyond the
conservationist/preservationist beliefs.138
136
Ibid. Bruhn- Tysk, at 133. 137
The guidelines are designed to achieve the “fair treatment for people of all races, cultures and
incomes in the development of environmental legislation”. See the Environmental Protection Agency,
‘Environmental Justice’ Home Page; http://www.epa.gov/swerops/ej/index. 138
R Gottlieb and H. Ingram, 'The New Environmentalists', (The Progressive, 1988), 14- 15.
60
Several initiatives were undertaken to publicise cases of perceived environmental
injustice. Notable among these was the wide publicity given to the protests against
dumping of PCB wastes in Warren County which prompted the federal government
to urgently respond to the changing environmental ethos. One of the responses by
government was to sanction studies to elicit empirical data which was used to
enhance the understanding of the allegations of environmental inequity.
As a result of the concerted efforts of the EJM documented in this chapter,
environmental justice has grown into an interdisciplinary concept addressing a broad
spectrum of issues such as environmental law and politics, natural resources, land
use, civil rights, international affairs. From the restrictive historical premise of
achieving environmental equity by eradicating environmental discrimination, present
conceptions of environmental justice are being supported by more people from all
racial classes and social status.139
The collective achievements in the fight for
environmental justice can be summarised as follows:-
1. Drastic reduction in siting of LuLus in communities that staged opposition
against them;
2. Increased community awareness of environmental consequences of any
actions;
3. Preventive approach to environmental contamination enhanced in
communities;
4. Expanded citizen participation rights in environmental decision-making;
5. Protests generally viewed as psychologically uplifting and therapeutic by
members of communities affected by toxic disasters;
6. Environmental concerns and action brought to working class and minority
Americans;
7. Marked influence on how Americans think about the environment and public
health.140
139
M Adebowale, C Church, and B Kairie, 'Environment and Human Rights: A New Approach to
Sustainable Development', (London: Capacity Global, 2005).
http://www.iied.org/docs/wssd/bp_envrights.pdf. 140
Freudenberg and Steinsapir, 'Not in Our Backyards: The Grassroots Environmental Movement',
at 33- 35; Bullard, Dumping in Dixie: Race, Class and Environmental Quality.
61
Environmental justice has grown remarkably in the United States because
considerable progress has been made in four relevant areas: stakeholder participation
in the public environmental decision-making process, access to environmental data
and information and enforcement and compliance of general environmental law and
policy.141
Despite all the documented achievements that have been scored in the evolution of
environmental justice in the United States, one major drawback lies in the failure to
enact environmental-justice-specific legislation. The failure to enact the
Environmental Justice Bill could partially explain why other countries, especially the
developing ones, have continued to make reference to environmental justice without
any definite meaning, nor deliberate inclusion into legislative provisions. The
historical background to the emergence of the EJM in the United States recounted in
this chapter cannot however, be directly transplanted to other jurisdictions where
environmental concerns are taking root. What remains is for other jurisdictions to
implement the strengths of the concept that have been identified from the struggle
for environmental justice in the United States. There is no doubt that despite the
many challenges, the positive aspects in the evolution of the concept can be
integrated into the environmental, social and legislative frameworks of other
countries.
141
Bullard and Johnson, 'Environmentalism and Public Policy: Environmental Justice: Grassroots
Activism and Its Impact on Public Policy Decision-Making'; T. C. Beierle and J Crayford, Democracy
in Practice, Public Participation in Environmental Decisions (London: RFF Press, 2002); T Beierle
and D. Konisky, 'What Are We Gaining from Stakeholder Involvement? Observations from
Environmental Planning in the Great Lakes', Environment and Planning: Government and Policy,
19/4 (2001), 515- 27.
62
CHAPTER THREE
THE CONCEPT OF ENVIRONMENTAL JUSTICE
1. Introduction
Having introduced its historical development in the United States in chapter two, this
chapter provides a critical appraisal of how environmental justice has been
interpreted in the literature. In short, what does environmental justice mean? This is
far from an easy question to answer and yet is crucial if environmental impact
assessment legislation in South Africa and Zambia, or indeed elsewhere, is to be
evaluated with reference to environmental justice. There are numerous theories of
environmental justice which encompass a diverse range of environmental and social
justice issues. With its origins in the United States, environmental racism was at the
core of environmental justice concerns. 1
Since that time, however, the understanding
of environmental justice has developed beyond the issue of race and now reflects
broader notions of environmental, social and health concern, among many others.
We have also seen a shift from racial discrimination to broader considerations in
terms of ‘sustainability’, ‘fairness’, ‘equity’, ‘justice’ and other similar concepts.2
This chapter will argue and explain that environmental justice and environmental
equity, while both being desirable outcomes in environmental law, are not one and
the same concept. The literature adopts different approaches to defining
environmental justice. This chapter however focusses on the meaning of
1 The term ‘environmental racism’ has been explained in the previous chapter in section 4.4. It is
acknowledged in most literature on the subject that the environmental justice movement emerged as a
response to environmental inequalities, threats to public health, unequal protection and other social
injustices perpetrated against poor people who more often than not, were people of colour. Refer to
Bullard, Dumping in Dixie: Race, Class and Environmental Quality; Bullard, Confronting
Environmental Racism: Voices from the Grassroots. 2 See generally, B Bryant, Environmental Justice- Issues, Policies and Solutions (Washington D. C:
Island Press, 1995); R Hofrichter, ‘Introduction’ in R Hofrichter (ed.) Toxic Struggles: The Theory
and Practice of Environmental Justice; D. Schlosberg, Environmental Justice and the New Pluralism:
The Challenge of Difference for Environmentalism (Oxford: Oxford University Press, 1999); D.
Schlosberg, Defining Environmental Justice, Theories, Movements and Nature (Oxford: Oxford
University Press, 2007), 3.
63
‘environmental justice’ as a conflated term, while taking account of the separate
meanings assigned to ‘environment’ and ‘justice’.
As a concept, the phrase ‘environmental justice’ has numerous meanings. To assist
in exploring the range of definitions, this chapter adopts a taxonomic approach to
defining environmental justice, reflecting the range of meanings attributed to this
broad, encompassing concept. It uses Kuehn’s taxonomic approach as a framework
for discussion. This approach recognises environmental justice as incorporating
distributive, procedural, corrective and social justice considerations.3 It will be
shown that procedural justice advocates meaningful participation in decision-making
processes, whereas corrective justice focuses on fair punishment for lawbreakers and
fair mechanisms for addressing damage inflicted on individuals and communities.
The social justice aspect focuses on the process of bringing about a more just
ordering of society to ensure that everyone’s basic needs are met. Social justice
issues are important because they transcend human interaction and are central to any
discourse looking at distributive justice: how environmental and other goods and
benefits are distributed or shared in a community.4 It will be shown that procedural
environmental justice permeates all conceptions of environmental justice. It will
therefore be important to critically evaluate procedural environmental justice as a
defining feature of environmental justice.
2. Defining ‘environment and ‘justice’
The term, ‘environmental justice’ introduced new perspectives to the ordinary
notions of ‘environment,’ ‘justice,’ ‘fairness,’ ‘equity’ and ‘social justice’. Previous
attempts at limiting the definition of the ‘environment’ and ‘justice’ have proved to
be rather problematic and some writers agree that there can be no single embracing
definition as to what constitutes both terms.5 Despite the challenges of settling on
3 See generally Kuehn’s taxonomic environmental justice argument in R. R Kuehn, 'A Taxonomy of
Environmental Justice', Environmental Law Reporter, 30 (2000), 10631- 703. 4 Bullard and Johnson, 'Environmentalism and Public Policy: Environmental Justice: Grassroots
Activism and Its Impact on Public Policy Decision-Making', at 555- 58; Kuehn, 'A Taxonomy of
Environmental Justice', 10698- 700. 5 R. F. Fuggle and M. A. Rabie, Environmental Concerns in South Africa: Technical and Legal
Perspectives (Cape Town: Juta Law, 1983), 83- 92.
64
one definition, an attempt will be made in this chapter to provide parameters for
subsequent discussion in this thesis. As a starting point in defining ‘environmental
justice,’ it will be important to understand the meanings ascribed to the terms,
‘environment’ and ‘justice’.
There is considerable literature on theories of justice in different communities,
contexts and circumstances.6 Justice is a very subjective concept and as such, is
understood in many different ways. There is unanimity however, that it is an all-
important social virtue in different communities.7 Almost all legal and ethical
debates concerning the meaning of justice acknowledge that most conceptions flow
from or build on the theories of John Rawls. According to Rawls, the nature of
justice is such that “it appears to be done when people get what they deserve or what
is due to them.”8 This implies that the broader concept of justice incorporates aspects
of fairness and equity.
According to Been, fairness can be described in the specific case of siting locally
undesirable land uses (LuLus) through seven theoretical arguments which relate to
even apportionment, likelihood of compensation for damage, “progressive siting”,
and the power of all community members to equally veto siting proposals. 9 Fairness
would be achieved if those that benefit from the siting of LuLus are compelled to
bear some associated cost, but more importantly, if there is equal concern and
respect for others in the community.10
In partial agreement with Been, Schwartz
sums ‘fairness’- as when individuals, “get what they are due as a matter of right and
6 The discussion of justice in detail is beyond the scope of this thesis. There is a wealth of literature
on ‘Justice’ and ‘the Concept of Justice.’ For analyses on the terms, ‘Justice’ ‘equity’ and ‘fairness,’
see P. S. Wenz, Environmental Justice (Albany: State University of New York Press, 1988); J. Rawls,
A Theory of Justice (Cambridge: Harvard University Press, 1971); J Rawls, Justice as Fairness: A Re-
Statement, E Kelly (ed.) (Cambridge: Harvard University Press, 2003); V Been, 'What's Fairness Got
to Do with It? Environmental Justice and the Siting of Locally Undesirable Land Uses', Cornell Law
Review, 78 (1993), 1001- 85 at 1001; B Almond, 'Rights and Justice in the Environmental Debate', in
D Cooper and J Palmer (eds.), Just Environments, Intergenerational, International and Interspecies
Issues (London: Routledge, 1995) at 2- 20., wherein the author details the relation between modern
liberal theory of justice and environmental ethics, various forms of distributive justice with respect to
the environment and their application to environmental issues. 7 Cf. Anand, International Environmental Justice: A North- South Dimension, 122., who argues that
“justice is not a static concept with a fixed definition, rather there is no one conception of justice and
it may mean different things to different people, groups, countries and theorists” 8 Ibid. R. Anand, at 122; Rawls, Justice as Fairness: A Re- Statement, 74- 75
9 Been, 'What's Fairness Got to Do with It? Environmental Justice and the Siting of Locally
Undesirable Land Uses', 1008. 10
Ibid
65
not necessarily how much they get in relation to each other.”11
Schwartz partially
supports Been’s argument of ‘even apportionment’ by stating that fairness relates to
individuals getting what is due to them.
According to Lele and Jayaraman, equity can be applied to diverse situations in
much the same way as justice and fairness. It could mean an equal opportunity to
achieve one’s potential, or more generally, to connote fairness in the distribution
processes or the process of fostering positive discrimination and redistribution aimed
at rectifying historic and systematic disadvantages in society.12
Despite this diversity
of approach, both equity and fairness are grounded in distributive concerns. Justice
on the other hand can be distinguished from both fairness and equity because it not
only encompasses distributive, but also procedural, corrective, preventive and other
aspects of justice.13
Justice as a more embracing concept than fairness and equity can be “defined and
redefined, in the context of complex, diverse contemporary issues that have become
the subject of intense debates and disagreements in recent years.”14
As a result:-
Contemporary issues of economic, social and political significance are
bound to influence or be influenced by such inherently political and
contested issues like justice. One such area is the environment and the
discourses that shape the way the environment is defined, understood,
used or abused.15
11
P Schwartz, 'Corporate Activities and Environmental Justice: Perspectives in Sierra Leone's
Mining', in J Ebbesson and P Okowa (eds.), Environmental Law and Justice in Context (Cambridge:
Cambridge University Press, 2009), 429- 46 at 437; See also J Konow, 'Which Is the Fairest One of
All? A Positive Analysis of Justice Theories', Journal of Economic Literature, 41/4 (2003), 1188- 239
at 1188- 239. 12
S Lele and T Jayaraman, 'Equity in the Context of Sustainable Development', (Mumbai: Tata
Institute of Social Sciences (TISS), 13 April 2011), 3-4 at 3- 4; Refer more specifically to the
definition of ‘environmental (in) equity’ in the previous chapter, section 4.5: Environmental (in)
equity. 13
See J Ikeme, 'Equity, Environmental Justice and Sustainability: Incomplete Approaches in Climate
Politics', Global Environmental Change, 13 (2003), 195- 206 at 200; J Brunnee, 'Climate Change,
Global Environmental Justice and International Environmental Law', in J Ebbesson and P Okowa
(eds.), Environmental Law and Justice in Context (Cambridge: Cambridge University Press, 2009),
318- 32 at 318- 22. 14
A Ali, 'A Conceptual Framework for Environmental Justice Based on Shared but Differentiated
Responsibilities', in T Shallcross and J Robinson (eds.), Citizenship and Environmental Justice (at the
Interface Probing the Boundaries) (New York: Rodopi, 2006), 41- 77 at 45. 15
Ibid.
66
This quotation shows that the importance of environmental issues is justification for
theories of justice to apply in the same way as they do to the political and social
frameworks of societies. According to Wenz, three reasons can be given for relating
theories of justice to the environment:-
Firstly, that greater self-awareness can facilitate prudent behaviour.
Secondly, theories of justice have not been related as often to the
environmental area as to other areas of concern and thirdly; that
environmental concerns involve relationships not only among people
who live in the same society, but also among people who live in different
societies at the same time, between people of the present and those of the
future, between human and non-humans and between people and the
biosphere in general.16
These three reasons are important because they show the interaction of human beings
with the biosphere in general.
In a narrower sense, justice in the environmental context can only encompass the
distribution of, or access to, environmental goods or disadvantages, in which case the
central argument is that the distribution process needs to be fair or equitable. The
term ‘justice’ is often used loosely in some literature to mean ‘equity’ and/- or
‘fairness’.
The meaning of ‘environment’ can be analysed from two perspectives: the ecocentric
view which defines the environment to the exclusion of human beings and the
anthropocentric values approach which includes human beings.17
This thesis supports
the view that both ecocentric and anthropocentric views must be taken into
consideration for the greater benefit of environmental wellbeing. Approaches which
embrace both ecocentrism and anthropocentricism include defining the environment
as the biosphere in which humanity lives, 18
while others define it as “the complex of
natural objects and forces” within which human beings live and which “both limits
16
Wenz, Environmental Justice, xii. 17
Alder and Wilkinson, Environmental Law and Ethics, 8- 9. 18
J Glazewski, Environmental Law in South Africa (Durban: Butterworths, 2000), 9.
67
and supports” human development.19
A good example is the Brundtland report of the
World Commission on Environment and Development,20
in which the environment:-
... Does not exist as a sphere separate from human actions, ambitions,
and needs and attempts to defend it in isolation from human concerns
have given the very word “environment” a connotation of naivety in
some political circles...21
This explanation of the ‘environment’ emphasises a unitary view that does not
distinguish between anthropocentric and eco- centric interests. Such an approach in
defining the environment ensures that focus remains on promoting views and
attitudes that promote environmental protection. For the purposes of this thesis, the
‘environment’ will accordingly be interpreted widely in order to advance
environmental preservation and justice for both anthropocentric and ecocentric
interests.
This thesis assesses the procedural environmental justice content of legislation in
South Africa and Zambia. The meaning of the ‘environment’ from a legal viewpoint
determines the extent to which environmental legislation may be enforced in a
particular jurisdiction.
South African environmental legislation adopts a broad approach in which the
environment is defined to include virtually anything in the biosphere, while the
Zambian approach appears more restrictive. Section 1 (xi) of the National
Environmental Management Act Number 107 of 1998 of South Africa defines the
environment as:-
... the surroundings within which humans exist and that are made of (i)
the land, water and atmosphere of the earth (ii) micro-organisms, plant
and animal life and (iii) any part or combination of (i) and (ii) and the
interrelations among and between them; and the physical, chemical and
19
Alder and Wilkinson, Environmental Law and Ethics, 8; Newton, Environmental Justice- a
Reference Book, 248. 20
The World Commission on Environment and Development was initiated by the General Assembly
of the United Nations in 1982. It was primarily tasked with recommending measures to enhance the
environment by taking into consideration the peculiar needs of developing countries. See R. A.
Hoelting, 'After Rio: The Sustainable Development Concept Following the United Nations
Conference on the Environment and Development', Georgia Journal of International and
Comparative Law, 24 (1994- 1995), 117- 136 at 118. 21
Bruntland, Our Common Future: The World Commission on Environment and Development at xi.
68
aesthetic and cultural properties and conditions of the foregoing that
influence human health and wellbeing.
In the case of Zambia, the Environmental Management Act No. 12 of 2011 provides
that the environment is:-
The natural or man- made surroundings at any place, comprising air,
water, land, natural resources, animals, buildings and other
constructions.22
This definition falls short of including human beings and other organisms within its
ambit and this omission raises ethical concerns, namely that this legislation is likely
to be interpreted as non-anthropocentric. Environmental concerns encompass an
extremely wide ambit of innumerable and varied issues. It is therefore imperative
that what is protected by environmental law is also broadly defined.23
Despite the challenge of having wide ranging definitions of the ‘environment,’ it is
not the intention of this thesis to have a restrictive interpretation. The definitions
above show that environmental justice could equally be defined in a very broad
manner. It has also been exemplified by the legal definitions of the environment and
justice that human beings are the most influential component of the biosphere. This
can be attributed to their ability to reason and put the other organisms in the
biosphere to their use. Human beings are also responsible for massive environmental
damage. This possibly explains why most analyses of the ‘environment’ and
‘environmental justice’ tend to place anthropocentric considerations at the fore.24
Taking note of all the issues raised in this section, this thesis will interpret the
environment as a totality of the biosphere, including both living and non-living
organisms. With this understanding of what the ‘environment’ and justice mean, the
22
Interpretation Clause, Section 2 of the Environmental Management Act No. 12 of 2011 23
D. E. Fisher, Environmental Law: Text and Materials (Sydney: Law Book Company, 1993) at 6- 7,
the author explains that definitions of the environment must “specify physical, biological, ecological
and human communities, intrinsic environmental values and the interrelationship between all these
and their social, economic, aesthetic and cultural contexts...sufficiently wide to include, on the one
hand, specific elements of the environment and on the other hand, the relationship between these
elements...” 24
P Ekins, 'What Is the Environment?', (London: ESRC New Opportunites: Programme, Environment
and Human Behaviour, 2003) at 6. The author further states that ‘environment’ has multiple meanings
arising from very different situations and perceptions that people have. This is why it is quite likely
that the way people behave towards the ‘environment’ is influenced by what they perceive it to be.
69
following section analyses the meaning of environmental justice from a taxonomic
view-point.
3. Environmental justice approaches: a taxonomy of environmental justice
The interpretations of ‘environment’ and ‘justice’ are almost limitless as shown in
the preceding section. A taxonomic approach towards understanding the meaning of
environmental justice will be adopted because it shows the different aspects of the
concept. This approach also acknowledges that distributive interpretations of
environmental justice alone do not reflect the practical implications of this
multidimensional concept.25
In support of this approach, Ikeme argues that
environmental justice must be construed as a broad concept which encompasses all
justice issues in the decision-making process.26
Further, a taxonomic approach
incorporates the historical distributive perspectives and also extends and modifies
this perspective to fit into the modern multidisciplinary inclination of the concept.
Although a number of authors, notably Bullard, Kaswan, Taylor and Ikeme have
used a taxonomic approach in discussing environmental justice,27
a useful starting
point is Kuehn’s because it attempts to address some of the challenges that have been
faced in the historical distributive approaches towards the concept. These challenges
mean that conceptualising environmental justice should start with definitional
precision.
According to Kuehn, environmental justice is complex because it means different
things to different people and has international, national and local relevance,28
and
that these two challenges have not been factored into historical distributive
25
Refer to chapter 1, section 2.1 which discusses the multidimensional nature of environmental
justice. 26
Ikeme, 'Equity, Environmental Justice and Sustainability: Incomplete Approaches in Climate
Politics', 200- 204. 27
R Bullard (1996), Dumping in Dixie: Race, Class and Environmental Quality (Boston: Boulder
Colo Westview Press); A Kaswan, 1997. Environmental Justice: Bridging the Gap between
Environmental Laws and Justice. The American University Law Review, 47(2), pp. 221- 300; D E
Taylor 2000. The Rise of the Environmental Justice Paradigm: Injustice Framing and the Social
Construction of Environmental Discourses. American Behavioural Scientist, 43(4), pp. 508- 580;
Ikeme, J., 2003. Equity, Environmental Justice and Sustainability: Incomplete Approaches in Climate
Politics. Global Environmental Change, Volume 13, pp. 195- 206. 28
R R Kuehn, 2000. A Taxonomy of Environmental Justice. Environmental Law Reporter, Volume
30, pp. 10631- 10703, 10631- 10632.
70
approaches. Kuehn contends that a better understanding of environmental justice can
be achieved by capturing the underlying common causes of injustices at the
international, national and local levels. Such an approach would then make it easier
to understand the conceptual solutions required.29
This would entail understanding
what ‘justice’ means with reference to international, national and local
environmental justice conceptions from a taxonomic basis where it is defined as
distributive, procedural, corrective and social justice.30
In comparison to other taxonomic approaches, Kuehn’s taxonomic approach closely
mirrors Bullard’s first attempt to ‘map’ the various meanings of environmental
justice, although it goes beyond by focussing not only on ‘equity’ but also on more
broadly defined notions of justice.31
This disparity is evident in Bullard’s use of the
term ‘equity’ as opposed to Kuehn’s use of ‘justice’. Equity focuses more on
distributive fairness whereas justice moves beyond the distributive aspect to include
procedural fairness. There are, however, similarities between the arguments raised
by Bullard and Kuehn. In Kuehn’s words, the distributive aspect of environmental
justice refers to a wide range of issues which notably focus on “fairly distributed
outcomes, rather than on the process for arriving at such outcomes”.32
According to
Bullard, this corresponds with “geographical equity”.33
Kuehn proceeds to define procedural justice as “perceived fairness of decisions
leading to the outcome”.34
This can be equated to what Bullard terms as “procedural
equity”,35
and which Aristotle refers to as, “equal share in ruling and being
ruled”36
whereas Kaswan refers to it as “political justice”.37
29
Kuehn, 'A Taxonomy of Environmental Justice', 10681. 30
Ibid.,10682. 31
Bullard, Dumping in Dixie: Race, Class and Environmental Quality at 116; R. Bullard,
'Overcoming Racism in Environmental Decision- Making', Environmental Law Review, (1994b), 12-
15. 32
Kuehn, 'A Taxonomy of Environmental Justice', 10684. 33
Bullard, 'Overcoming Racism in Environmental Decision- Making', at 13; Bullard, Dumping in
Dixie: Race, Class and Environmental Quality, 116. 34
Kuehn, 'A Taxonomy of Environmental Justice', 10688. 35
Bullard, Dumping in Dixie: Race, Class and Environmental Quality, 116. 36
Ibid. Kuehn, 'A Taxonomy of Environmental Justice', at 10688, quoting S Heyman, 'Aristotle on
Political Justice', IOWA Law Review, 77 (1992), 851- 64. 37
A Kaswan, 'Environmental Justice: Bridging the Gap between Environmental Laws and Justice',
The American University Law Review, 47/2 (1997), 221- 300 at 233-238.
71
The third aspect in Kuehn’s taxonomy of environmental justice is “corrective
justice”, or “fairness in the way punishment for environmental damage is assigned
and inflicted on individuals and communities”.38
The fourth and final aspect of
Kuehn’s taxonomy is “social justice” which is defined as “that branch of the virtue
of justice that moves us to use our best efforts to bring about a more just ordering of
society”.39
Bullard on the other hand terms this as “social equity” which assesses “the
role sociological factors such as race, ethnicity, class, culture, life-styles play in
environmental decision-making.”40
There are notable differences in Bullard’s and Kuehn’s taxonomic arguments.
Firstly, Bullard’s work has no equivalent to Kuehn’s corrective environmental
justice. In this respect, Kuehn’s taxonomy of environmental justice is preferable as it
expands beyond Bullard’s initial conceptions. Other authors like Ikeme discuss
corrective, retributive and preventive environmental justice in the specific context of
climate change.41
This analysis so far shows that environmental justice can be broken down to
distributive, procedural, corrective and social justice. But there are a range of other
approaches discussed in the literature that appear to be extensions or modifications
of Kuehn’s taxonomic approach. For example, Kaswan argues that environmental
justice can be explained only with reference to its two broad constituent elements
namely distributive and political (procedural) justice.42
Other commentators contend
that environmental justice issues only incorporate distributive and corrective or
commutative justice.43
Using Kuehn’s argument, these two approaches would be
inadequate because they would assume that all the challenges and complexities of
environmental injustices would be understood and resolved through a limited
interpretation of justice.
38
Kuehn, 'A Taxonomy of Environmental Justice', 10693. 39
Ibid., at 10698. 40
Bullard, Dumping in Dixie: Race, Class and Environmental Quality, 116. 41
Ikeme, 'Equity, Environmental Justice and Sustainability: Incomplete Approaches in Climate
Politics', 198- 200. 42
Kaswan, 'Environmental Justice: Bridging the Gap between Environmental Laws and Justice', 221-
300. 43
Taylor, 'The Rise of the Environmental Justice Paradigm: Injustice Framing and the Social
Construction of Environmental Discourses', 508- 80.
72
One of the more recent extensions to the taxonomic approach of environmental
justice contends that the distinctions that can be made in an attempt to understand the
‘justice’ of the EJM is to look at the theoretical terrain of the concept of justice;
justice as distribution, justice as recognition and justice as procedure.44
According to
Schlosberg, recognition means that the peculiarities of minorities must be taken into
consideration, and that environmental justice should not just focus on distributive
and procedural aspects.45
A closer analysis of Schlosberg’s argument reveals that
recognition resonates well with enhanced involvement, interaction and participation
which in turn make it possible for the peculiarities of the minorities to be recognised.
In this regard, both distributive and procedural justice are given prominence in the
literature on environmental justice.46
It is more desirable, however, that more focus
is directed to the procedural aspect because it examines the underlying reasons for
the distributive outcomes that are easily observed and documented. In order to have
an effective evaluation of what each aspect of the taxonomy of environmental justice
entails, this discussion now turns to analyse each of the four main variations, namely
distributive, procedural, corrective and social environmental justice.
3.1. Distributive environmental justice
Most of the early literature on distributive aspects of justice credits Aristotle with
being the first to formulate a definition. Aristotle defined distributive justice as “the
distribution of honour, wealth, and other divisible assets of the community which
may be allotted among its members.”47
Applying and expanding upon Aristotle’s
44
D Schlosberg, 'The Justice of Environmental Justice: Reconciling Equity, Recognition and
Participation in a Political Movement', Moral and Political Reasoning in Environmental Practice
(Cambridge: MIT Press, 2003), 79- 85. 45
Schlosberg, Environmental Justice and the New Pluralism: The Challenge of Difference for
Environmentalism; Schlosberg, 'The Justice of Environmental Justice: Reconciling Equity,
Recognition and Participation in a Political Movement'; D. Schlosberg, 'Reconceiving Environmental
Justice: Global Movements and Political Theories', Environmental Politics, 13/3 (2004); Schlosberg,
Defining Environmental Justice, Theories, Movements and Nature. 46
Kaswan, 'Environmental Justice: Bridging the Gap between Environmental Laws and Justice', at
230; Ikeme, 'Equity, Environmental Justice and Sustainability: Incomplete Approaches in Climate
Politics', at 195- 206; J Agyeman, Sustainable Communities and the Challenge of Environmental
Justice. N (New York: New York University Press, 2005); J Agyeman, 'Environmental Justice and
Sustainability', in M Aatkinson, S Dietz, and E. Neumayer (eds.), Handbook of Sustainable
Development (Cheltenham: Edward Elgar, 2007); J Agyeman and R Evans, 'Just Sustainability: The
Emerging Discourse of Environmental Justice in Britain?', Geographical Journal, 2/170 (2004), 155-
64 at 155- 64. 47
Kuehn, 'A Taxonomy of Environmental Justice', 10683.
73
formulation of distributive justice in an environmental context, it was acknowledged
as far back as the 1970s that some of the solutions that had been suggested for
environmental quality had adversely impacted on poorer people.48
This appears to be
one of the earliest references to what has now developed as the distributive theory of
environmental justice. This theory is acknowledged as the most well-known because
distributional issues are the most central feature in the environmental justice
discourse.
As shown in the previous chapter, the understanding of environmental justice
concerns was premised on the assertion that environmental benefits and burdens had
been inequitably distributed to race, class and gender.49
The ill effects of
environmental problems, also understood as the by-products of industrialisation,
include pollution and locally undesirable land uses (LuLus) such as waste landfills.
The distributive aspect of environmental justice is based on the acknowledged fact
that most communities suffer the ill effects of environmental problems, but that this
is disproportionately borne by the poorer.50
Some critics of the environmental justice movement argue that what constitutes a
“community” for purposes of evaluating the distribution of environmental burdens
and benefits is not clear.51
Proceeding on the assumption that the environment is
capable of being distributed (and there are on-going debates as to whether this is
indeed the case), some authors suggest that distributive environmental justice
involves the equitable distribution of environmental problems.52
This implies that
distributive justice can only be achieved if environmental harms such as pollution are
re- distributed.
48
N Faramelli, 'Ecological Responsibility and Economic Justice: The Perilous Links between
Ecology and Poverty', Andover Newton Quarterly, 11 (1970), 81- 93 at 188. 49
See chapter 2, section 4 50
R. Bullard, 'Environmental Justice for All: Its the Right Thing to Do', Journal of Environmental
Law and Litigation, 9 (1994a), 281 at 281- 84. 51
Kaswan, 'Environmental Justice: Bridging the Gap between Environmental Laws and Justice', at
231, quoting R. Zimmerman, 'Issues of Classification in Environmental Equity: How We Manage Is
How We Measure', Fordham Urban law Journal, 21 (1994), 633. 52
Kuehn, 'A Taxonomy of Environmental Justice', 10684. Other authors such as Bullard argue that
distributive justice does not mean redistributing the environmentally harmful activities such as siting
of LuLus. Rather, it means “equal protection for all and the elimination of environmental hazards.
Refer to Bullard, 'Overcoming Racism in Environmental Decision- Making', 12- 15.
74
The real purpose of distributive environmental justice, however, should be that of
lowering risks or equalising existing risks, in line with ensuring environmental
wellbeing. It would defeat the objective of environmental preservation to argue that
any environmental risk or environmentally undesirable situation should be
redistributed in a society among the different classes of inhabitants just so that
environmental ‘equity’ may be reached. It may be ‘equitable’ that all the inhabitants
of that society face the same environmental conditions but that would not secure the
ends of environmental preservation, nor would it achieve environmental justice. The
distributive aspect of environmental justice also appears to overemphasise the
negative aspects; namely environmental hazards, rather than equally distributing
environmental benefits such as clean water and natural resources.53
As demonstrated in chapter two,54
there is substantial evidence that distributive
injustice in environmental matters exists, even in accessing the positive aspects.55
In
most of the examples of environmental injustice drawn from the United States it was
alleged that people of colour and lower income communities were not receiving their
fair share of environmental benefits. This shows that distributive inequities in
accessing environmental advantages and avoiding environmental disadvantages were
very prevalent in many communities and needed to be addressed.
In summary, the distributive aspect of environmental justice is better documented
relative to other aspects. Environmental justice, however, cannot be fully understood
by focussing only on the incorporation of equitability in the distribution of
environmental resources, but by also understanding how power relations play a role
in the distribution processes.56
The power relations that underlie distributive justice
are based on procedural fairness. Bullard argues that the guarantee of a safe and
53
Kuehn, 'A Taxonomy of Environmental Justice', at 10684. 54
Refer to chapter 2, section 4 55
R Bullard and J Glenn, 'Environmental Justice: Grassroots Activism and Its Impact on Public
Policy Decision-Making', Journal of Social Issues, 56/3 (2000), 555- 78 at 555. Bullard argues that
the incidence of environmental injustices in the United States has continued to rise despite
“significant improvements in environmental protection.” Bullard quotes other cases including Citizens
against Nuclear Trash (CANT) v. Louisiana Energy Services (LES), St James Citizens v. Shintech and
South Camden Residents v. St Lawrence Cement Co. See also Bryant, Environmental Justice- Issues,
Policies and Solutions. 56
D Hallowes and M Butler, 'Poverty and the Environment in South Africa', (Pretoria: South African
National NGO Coalition, SANGOCO Occasional Publications Series, 1998), 52- 53; Bullard,
Dumping in Dixie: Race, Class and Environmental Quality, 122.
75
healthy environment ought to be at the centre of determining these underlying power
relations. 57
The underlying power relations and processes can be equated with
procedural or political justice component which is discussed below.
3.2. Procedural environmental justice
A review of the literature shows that procedural environmental justice is often
distinguished from substantive (or distributive) environmental justice. Procedural
environmental justice refers to the opportunity for “all people regardless of race,
ethnicity, income, national origin or educational level”58
to have “meaningful
involvement” in environmental decision-making. As such, procedural environmental
justice is a process or a system; it is not just an isolated occurrence, it impacts on the
achievement of substantive environmental justice as an outcome.
Procedural justice refers to the manner in which a decision has been made, focussing
on the fairness of the decision-making process rather than on its outcome. Procedural
justice is widely recognised as the process through which (substantive) justice is
seen to be done, 59
and it focuses on “equal concern and respect”60
in the political
decision of how to distribute goods and advantages. It is therefore arguable that
when private citizens are allowed as much latitude as possible to seek remedies for
environmental damage, it would follow that public participation is enhanced. In
terms of procedural justice, environmental injustice occurs because marginalised
sections in communities are under- represented or not represented at all during the
decision-making process.61
Without any doubt, the demand for public participation in environmental decisions
affecting communities is central to the environmental justice movement. As earlier
noted, this is termed as “procedural equity” in the works of Bullard.62
The phrase
57
Bullard, 'Environmental Justice in the Twenty- First Century', 25. 58
EPA Environmental Justice Webpage: http://www.epa.gov/compliance/basics/ejbackground.html.
This definition emphasises procedural justice. 59
Schlosberg, Defining Environmental Justice, Theories, Movements and Nature, 25- 29; Pedersen,
'Environmental Principles and Environmental Justice', 37- 43. 60
R. Dworking, Taking Rights Seriously (Cambridge: Harvard University Press, 1977) , 273, quoted
in Kaswan, 'Environmental Justice: Bridging the Gap between Environmental Laws and Justice', 233. 61
Ikeme, 'Equity, Environmental Justice and Sustainability: Incomplete Approaches in Climate
Politics', 197. 62
See Bullard, Dumping in Dixie: Race, Class and Environmental Quality, 116.
76
“equal concern and respect” refers to the fact that all members of a community must
be treated equally; none of the members must be given more preferential treatment
than the others in the same circumstances. In most environmental literature,
procedural justice is also referred to as environmental democracy.63
It remains debatable, however, as to whether a just process (procedural
environmental justice) necessarily leads to a just outcome (distributive
environmental justice). This thesis will show through the development of the
Procedural Environmental Justice Model (PEJM) that a number of mechanisms need
to be put in place to support a participatory process that is both meaningful and
effective. For example, given that all the factors of democratic environmental
decision-making are in place, namely public consultations and full participation,
would that by itself guarantee that environmental advantages and disadvantages will
be justly distributed? As shall be seen later in this thesis, the other factors that would
need to be taken into consideration include the broader questions of social justice
including socio- economic factors. This shows that all the aspects of justice should
be incorporated in trying to move towards an understanding of what would lead to
environmental justice.
Generally, it has been observed that low income communities exert little influence
on the decision-making processes of legislative and environmental agencies. This is
because such communities are not represented among the interest groups that lobby
and litigate against environmental authorities.64
The poorer communities are over-
exposed to environmental risks and have fewer technical, legal and other resources
to effectively participate in the decision-making process. This lack of effective
participation can be interpreted as procedural environmental injustice.
For example, a dispute over the siting of a hazardous waste incinerator in a Latino
neighbourhood arose in Kettleman City, California and it was successfully taken to
court.65
This case was based on challenging the state agency’s failure to comply with
63
T Hayward, Constitutional Environmental Rights (Oxford: Oxford University Press, 2005), 3. 64
Kaswan, 'Environmental Justice: Bridging the Gap between Environmental Laws and Justice', 249. 65
El Pablo Para el Aire y Limpio V. County of Kings, Board of Supervisors of the County of Kings,
Waste Management Incorporated, Chemical Waste management Incorporated and State of
California, 366045 (Sacramento County April 13, 1992), Clearing house Number: 50348. This case is
77
a state environmental review statute’s public participation provisions. The Petitioners
alleged that the siting of an incinerator in a predominantly Latino community was
part of a broader pattern of discriminatory siting by the waste management company
and further that proposal documents were written in “deliberately obtuse language”
so that it would be incomprehensible.66
It was argued that a Spanish translation
would have involved and informed more members of the Latino community in the
decision-making process.67
The agency had previously provided the community with
the required documents but it had not translated them into Spanish, the only
language for at least forty per cent of the Latino community. The court found that
this failure to translate documentation had effectively excluded many citizens from
exercising their statutory right to participate.68
As noted in chapter two, one of the conceptual gaps in the evolution of
environmental justice is that procedural environmental justice has not been fully
analysed.69
The process of ensuring equitable distribution is dependent on the
political (procedural) awareness of a community. When procedural justice fails to
secure distributive environmental justice, remedial action becomes necessary.
3.3.Corrective environmental justice
The third aspect in Kuehn’s taxonomic approach is the corrective aspect of
environmental justice which involves “fairness in the way punishment for law-
breaking is assigned and damages inflicted on individuals and communities are
addressed.”70
In other words, the presumption is that environmental injustice has
occurred and environmental remediation or reparation is required. Arguably,
corrective justice could require regulatory or other agencies to develop strategies to
promote the enforcement of environmentally sound practices in areas inhabited by
disadvantaged communities. This would ensure that environmental injustice does not
recur.
extensively discussed in L Cole, 'Environmental Justice Litigation: Another Stone in David's Sling',
Fordham Urban Law Journal, 21 (1993- 1994), 523-30 at 528- 30; S. Foster, 'Race (Ial) Matters: The
Quest for Environmental Justice', Ecology Law Quarterly, 20 (1993), 721- 53 at 746- 49. 66
Ibid. Foster, 'Race (Ial) Matters: The Quest for Environmental Justice', at 746- 49. 67
Ibid. Cole, 'Environmental Justice Litigation: Another Stone in David's Sling', 528- 30. 68
Ibid. Kaswan, 'Environmental Justice: Bridging the Gap between Environmental Laws and Justice',
253. 69
See chapter 2, section 2 70
Ibid.Kuehn, 'A Taxonomy of Environmental Justice', 10693.
78
According to Ikeme, practical evidence of corrective environmental justice can be
seen at both national and international levels. At the national level, most regulatory
authorities have powers to ensure that effects of environmentally harmful activities
are corrected through clean ups and other remediation means.71
At both national and
international levels, the polluter pays principle has been argued to impose remedial
or corrective measures where distributive environmental justice has been disturbed.72
Corrective justice in other literature is also referred to as “retributive”73
,
“compensatory”74
, “restorative”75
, and “commutative”76
justice. It is more aptly
related to environmental wellbeing because environmental justice should focus much
more on responsibility for damage than retribution or punishment. In this regard,
calls for the Polluter Pays Principle would be justifiable.
Ikeme, for instance, contextualises corrective environmental justice to climate
change challenges and concludes that the Polluter Pays Principle is an example of
corrective environmental justice.77
Ikeme’s argument begins by stating that corrective
environmental justice should take into account past practices that lead to
environmental injustices; for instance, if the more developed countries are
responsible for present global environmental problems, then it is their responsibility
to develop alleviation measures. Similarly, Pedersen argues that even though the
Polluter Pays Principle was not originally aimed at “curbing environmental harm for
71
Ikeme, 'Equity, Environmental Justice and Sustainability: Incomplete Approaches in Climate
Politics', 198- 99. 72
The Polluter Pays Principle is a principle of international environmental law and practice where the
polluting party pays for the damage done to the natural environment. It seeks to shift the
responsibility of dealing with waste from governments to the entities producing it. See Pedersen,
'Environmental Principles and Environmental Justice', 31 73
K. Greenwalt, 'Punishment', Journal of Criminal Law and Criminology, (1983), 343, 349,
generally arguing that, “the concept of retributive justice is reflected in the notion that fairness to
citizens who make sacrifices by obeying the law requires that violators be punished rather than reap
benefits for disregarding legal standards” 74
Taken from the word ‘compensate’, this aspect of justice attempts to bring the victim to the
condition he would have been in, or its equivalent, had the injurious event never occurred. See
generally, Been, 'What's Fairness Got to Do with It? Environmental Justice and the Siting of Locally
Undesirable Land Uses', 1027- 68. 75
Restorative justice should have more to do with restoring nature than any individual human victim
back to its original position. See R Brooks, 'A New Agenda for Modern Environmental Law', Journal
of Modern Environmenetal Law and Litigation, 27 (1991), 31. 76
Taylor, 'The Rise of the Environmental Justice Paradigm: Injustice Framing and the Social
Construction of Environmental Discourses', 508, 537. Taylor argues that commutative justice is
concerned with the way individuals are treated during a social transaction. 77
Ibid. Ikeme, 'Equity, Environmental Justice and Sustainability: Incomplete Approaches in Climate
Politics', 201.
79
the sake of the environment” it has in practice been used as a principle of
environmental “rectification and liability”.78
It is arguable that Pedersen’s view
implicitly recognises the Polluter Pays Principle as a practical example of how
corrective environmental justice works.
Kuehn adopts the term “corrective justice” as opposed to “compensatory justice”.
Arguing for compensatory justice would suggest that provided compensation for an
environmental injustice were settled, an environmentally unjust action would be
acceptable.79
It is noteworthy that calls for corrective justice are already encompassed
within considerations of distributive environmental justice. Both corrective and
distributive environmental justice are outcomes, while procedural justice is the
process through which these two outcomes can be balanced in the interest of
environmental wellbeing. In procedural environmental justice, a just decision-
making process attempts to ensure that all the views and representations made by
members of a community are taken into consideration. The following section
considers social environmental justice, the last conception in Kuehn’s taxonomic
approach.
3.4. Social environmental justice
The fourth and final aspect of the taxonomy of environmental justice is social justice.
Social justice is a “virtue that moves us to use our best efforts to bring about a more
just ordering of society- one in which people’s needs are more fully
met.”80
According to Kuehn, social justice is “a far reaching and nebulous goal of the
environmental justice movement”.81
Similarly, other scholars argue that the primary
focus of the EJM is to attain social justice in environmental issues as opposed to
attaining environmental preservation or sustainability.82
The basis of the concept of
social justice in any civilised modern society lies in the accessibility and promotion
of human basic needs and rights. The demands of social justice are:-
78
Pedersen, 'Environmental Principles and Environmental Justice', 43-45 79
Kuehn, 'A Taxonomy of Environmental Justice', 10694. 80
R. E Rodes, 'Social Justice and Liberation', Notre Dam Law Review, 71 (1996), 619- 20. 81
Kuehn, 'A Taxonomy of Environmental Justice', 10698. 82
Dobson, Fairness and Futurity- Essays on Environmental Sustainability and Social Justice, 3.
80
…firstly that the members of every class have enough resources and
enough power to live as befits human beings, and secondly that the
privileged classes, whoever they are, be accountable to the wider society
for the way they use their advantages.83
This quotation reveals that all members of a community, their social or economic
status notwithstanding, must have access to resources enabling them to live as
human beings.
The ends of social justice can also be said to have been secured when “all members
of a society have the same basic rights, security, opportunities, obligations and
benefits.”84
Social justice has a component of distributive justice in a political
community. The introduction of social justice issues into the environmental realm,
beyond the traditional focus of wilderness preservation is what led to the
development of the EJM.85
The importance of social environmental justice cannot
therefore be overemphasised. Social justice is not restricted to natural resource
conservation or pollution control matters. As seen from the definition of the
environment earlier in this chapter, the environment can even mean the open space in
which human beings work or play. This gives the environment a very wide meaning
to the extent that it is plausible to argue that all social and economic issues in a
community are part of the environment. It has been argued that:-
Environmental justice focuses on social justice to reflect reality because
oppressed people do not have compartmentalised problems, they do not
separate hazardous waste incinerators from the fact that their schools
are underfunded, that they have no day care, no sidewalks or
streetlights, or no jobs.86
This argument is succinct in that social environmental injustices abound and there
can be no end to a discussion on social justice issues in the environmental sector.
Some examples of social environmental injustices include multinational corporations
operating in developing countries and not confronting demands that they take a
83
Rodes, 'Social Justice and Liberation', 624. 84
Ibid, 619 85
Bullard, Dumping in Dixie: Race, Class and Environmental Quality at 9- 12; See also chapter 2,
section 4 86
Kuehn, 'A Taxonomy of Environmental Justice', 10699; Bullard, 'Environmental Justice for All: Its
the Right Thing to Do', 282- 284.
81
greater role in the social welfare of the communities in which they operate.87
For
instance, these companies ought to take remedial measures for pollution that arises
from their activities. In addition, such corporations should be obliged to create social
amenities and lift the standard of living of the ordinary residents in the immediate
communities they operate in.88
In summing up this section, it has been shown that environmental justice can be
defined in terms of its distributive, corrective, social and procedural justice content.
Kuehn’s taxonomic approach shows that distributive environmental justice can best
be understood by studying the processes that yield distributional contentions. The
importance of procedural environmental justice therefore lies in the fact that it
underlies all conceptions of environmental justice.
4. Conclusion
This chapter has defined the central terms which make up the concept of
environmental justice namely, ‘justice’ and ‘environment’. Both terms have wide
definitional parameters, and consequently, the ambit of what environmental justice
encompasses is equally wide. The salient features of the concept of environmental
justice that have been identified show that the theoretical arguments about the nature
of the concept are beyond an academic exercise; that the issues that surround the
environmental justice struggle are real and reflect the aspirations of demographic
participation. Environmental justice is a real concept that reflects the day to day lives
of people as they interact with the environment. This partially justifies why it is
important to have in-depth understanding of the concept.
The distributive, procedural, corrective and social aspects of environmental justice
play an important role in understanding the full meaning of the concept. Although
the EJM has historically focussed on explaining environmental justice largely in
terms of its distributive aspect, this chapter has shown that procedural environmental
justice is the defining theme of environmental justice. The focus of environmental
justice is not only limited to securing the ends of environmental conservation, but
87
See generally Anand, International Environmental Justice: A North- South Dimension. 88
Kuehn, 'A Taxonomy of Environmental Justice', 10699.
82
also numerous other aspects of human endeavour as incorporated in social justice
considerations. The concept of environmental justice has evolved beyond focussing
on the disproportionate burdens placed on disadvantaged groups, to highlighting the
lack of real opportunities for participating in environmental decision- making.”89
What then would amount to “real opportunities for participation in environmental
decision- making”? This is one of the main questions that will be addressed in the
following chapter where it will also be shown that public participation is globally
renowned as an effective tool in seeking environmental justice. It is therefore
important that the following chapter critically evaluates the features of public
participation that must be incorporated in legislative and other mechanisms aimed at
promoting procedural environmental justice.
89
Bullard, 'Environmental Racism and the Environmental Justice Movement', 196.
83
CHAPTER FOUR
FROM PROCEDURAL ENVIRONMENTAL JUSTICE TO
ENVIRONMENTAL IMPACT ASSESSMENTS: DEVELOPING A
MODEL FOR ANALYSIS
1. Introduction
This chapter critically evaluates the role that public participation plays in achieving
procedural environmental justice in the environmental impact assessment (EIA)
process. Most importantly, it develops a Procedural Environmental Justice Model
(PEJM) by critically reviewing the relevant literature in order to identify the
minimum requirements necessary for effective and meaningful public participation
in the EIA process. These requirements have been incorporated into a PEJM which
provides the evaluative framework for assessing EIA legislation in the Republics of
South Africa and Zambia. EIA legislation is more likely to secure procedural
environmental justice if it incorporates the features of effective and meaningful
public participation suggested in the PEJM.
Without considering the ‘processes’ that bring about distributional inequity, it would
be difficult to rectify ensuing environmental injustices. This argument resonates with
the widely acknowledged belief that problems in any form are best tackled by
addressing their root causes: this is the basis upon which this thesis seeks a better
understanding of procedural environmental justice.
Section 2 begins by demonstrating that public participation is an essential feature in
achieving procedural environmental justice. It critically discusses public
participation together with the rationales in which it is grounded. This chapter
supports the argument that EIA is a participatory and practical mechanism for
managing environmental impacts arising from developmental activities. It “provides
a procedural framework for decision-making”1and relies on open, participatory and
information- rich mechanisms2 in monitoring environmental effects. In this vein,
1 J Holder, Environmental Assessment, the Regulation of Decision- Making (Oxford: Oxford
University Press, 2006) 5- 6. 2 N Craik, The International Law of Environmental Impact Assessment- Process, Substance and
Integration (Cambridge: Cambridge University Press, 2008), 5.
84
section 3 explains the conceptual link between public participation, procedural
environmental justice and the EIA process. The importance of participatory
mechanisms is widely recognised in environmental law and policy and is
exemplified by the procedural justice provisions of the Aarhus Convention which are
discussed in this chapter. The procedural justice provisions of the Aarhus
Convention have also been useful in developing the PEJM which is discussed in
detail in section 4.
2. Linking procedural environmental justice and public participation
Procedural environmental justice3 is the process through which the other conceptions
of environmental justice can be achieved.4 This section analyses the way in which
public participation is construed within definitions of environmental justice as a way
of showing its importance. In practice, public participation is at the core of
procedural environmental justice. While it is acknowledged that the environmental
justice discourse emanates from distributive justice considerations, this thesis argues
that procedural environmental justice is important in securing substantive
environmental justice objectives such as distributive justice.
Although the distributive aspect of environmental justice traditionally took centre-
stage in the literature, this is no longer the case.5 Environmental justice is now
construed much more broadly to reflect the different issues that are raised in
environmental decisions.6 For example, Schlosberg argues that environmental justice
involves an intricate balance of ‘recognition’, ‘distributional equity’ and
‘participation’.7 According to this argument, ‘participation’ is defined by “inclusive
3 The term ‘procedural environmental justice’ is defined in detail in chapter 3, section 3.2
4 Foster, 'Race (Ial) Matters: The Quest for Environmental Justice', 750; Schlosberg, Defining
Environmental Justice, Theories, Movements and Nature, 25- 29. 5 Refer to chapters 2 and 3 generally; see also Nadal who argues that the conception of environmental
justice purely in terms of distribution is limited and proceeds to reconceptualise environmental justice
in terms of grassroots perspectives which centre on challenging institutional causes of environmental
injustice and empower those suffering environmental injustice as “agents for environmental justice”.
C Nadal, 'Pursuing Substantive Environmental Justice: The Aarhus Convention as a 'Pillar' of
Empowerment', Environmental Law Review, 28/10 (2008), 1. 6 Ikeme, 'Equity, Environmental Justice and Sustainability: Incomplete Approaches in Climate
Politics', 195; J Razzaque, 'Participatory Rights in Natural Resource Management: The Role of
Communities in South Asia', Environmental Law and Justice in Context (Cambridge: Cambridge
University Press, 2009), 118. 7 Schlosberg, 'Reconceiving Environmental Justice: Global Movements and Political Theories', 102.
85
procedures and public discourse” while ‘distributional equity’ and ‘recognition’ must
be integrated. 8 In order for integration to succeed, there must be enhanced public
participation in the development, implementation and oversight of environmental
policy.9
Other authors calling for enhanced participatory measures in environmental matters
argue that environmental justice demands procedural fairness and the right to a safe
and healthy environment.10
Procedural fairness involves an understanding of the
“underlying processes, associated power structures, social relations, institutional
configurations, discourses and belief systems” that generate social injustices.11
Morrison-Saunders and Early argue that procedural fairness can be achieved when
there is effective and equitable participation by members of the public in the
decision-making processes.12
For example, in practical terms, procedural fairness is
exhibited in environmental decision-making that empowers communities to act in the
interest of the environment. Community empowerment can take very basic forms
such as enlightening citizens at grassroots level of their environmental
responsibilities and entitlements as well as facilitating their participation in
environmental decision-making.
The link between substantive environmental justice, procedural environmental
justice and public participation is neatly illustrated by Bryant, according to whom,
environmental justice is defined by the existence of:-
...Those cultural norms and values, rules, regulations, behaviours,
policies and decisions to support sustainable communities where people
8 Ibid., 113.
9 Schlosberg, Defining Environmental Justice, Theories, Movements and Nature, 12- 15.
10 D Hallowes and M Butler, 'Power, Poverty and Marginalised Environments- a Conceptual
Framework', Environmental Justice in South Africa (Athens: Ohio University Press, 2002), 51- 77 at
51- 52; 59- 60., arguing that in the context of South Africa, environmental justice is simply not
achieved through equal and fair distribution of benefits and costs, but goes to the heart of how power
relations define and re- produce development. See also Schlosberg, Defining Environmental Justice,
Theories, Movements and Nature, 8-9. 11
D. Harvey, Justice, Nature and the Geography of Difference (London: Wiley- Blackwell, 1997),
401. 12
A Morrison- Saunders and G Early, 'What Is Necessary to Ensure Natural Justice in Environmental
Impact Assessment Decision- Making', Impact Assessment and Project Appraisal, 20/1 (2008), 29-
42, 43- 45.
86
can interact with confidence that their environment is safe, nurturing and
supportive...13
This definition of environmental justice is similar to the one espoused by
Schlosberg14
which encourages an intricate balance of recognition, distributional
equity and participation at all levels. For instance, both Schlosberg and Bryant make
reference to the recognition of cultural norms and values, both of which are
important and cannot be overlooked in resolving environmental disputes in a local
community. These cultural considerations can only be taken into account if
individuals and communities are co-opted into the decision-making process.
Bryant’s definition of environmental justice implicitly brings out public participation
as an important aspect in the means towards achieving the objective of safe and
sustainable communities.
In relation to South Africa and Zambia, cultural practices with regard to natural
resource use and conservation can best be understood through interaction with and
participation by the local communities. In the absence of the necessary participation
by local community members, any environmental decision which goes against
cultural beliefs and norms could be considered an environmental injustice. From this
example, it can be inferred that there must be procedural justice in the distributive
process. A perception of fairness in this case would be more likely to be made if the
distributive process has been interactive and the participants are satisfied that it
addresses their expectations
2.1. Procedural environmental justice in law and policy
It is important to look beyond environmental injustice as an outcome and investigate
the actual underlying processes, beliefs and social relations that bring about
environmental injustices in societies. Arguably, when participation is enhanced, a
system within which all underlying issues can best be understood and resolved is
created. This underscores the importance of public participation in environmental
matters and ultimately procedural environmental justice.
13
Bryant, Environmental Justice- Issues, Policies and Solutions, 6. 14
Schlosberg, Defining Environmental Justice, Theories, Movements and Nature, 12- 15.
87
The importance of procedural environmental justice can also be looked at from the
law and policy perspective. It is particularly important to understand how procedural
environmental justice is construed in the United States because the concept
originates from there. It must however be re stated here that there is presently no
legislation that comprehensively addresses environmental justice in the United
States.15
Despite this, considerable advancement of procedural environmental justice
in the United States has been achieved largely through public participation and
procedural fairness. These initiatives have primarily been carried out through the
United States Environmental Protection Agency (EPA), whose operations were
strengthened by Executive Order 12898.16
The EPA advocates procedural
environmental justice in seeking ‘fair treatment’ and ‘meaningful involvement of all
people’ in the process of developing, implementing and enforcing environmental
laws, regulations and policies.17
This definition of environmental justice states that
meaningful involvement occurs when all members of a community that could be
potentially affected by an environmental decision have been consulted, thereby
making public participation cardinal.
It is important to consider how environmental justice is understood in South Africa
and Zambia as these are the two geographical areas under specific focus in this
thesis. Unlike the situation in the United States and South Africa, in Zambia, there is
no express definition of environmental justice in law and policy.
South African legislation establishes that environmental justice must be pursued so
that adverse environmental impacts are not distributed in such a manner as to
unfairly discriminate against any person, and particularly vulnerable and
disadvantaged persons.18
The law also stipulates that there must be equitable access
to environmental resources, benefits and services in order to meet basic human
needs, and further that measures must be taken to ensure access to environmental
15
Refer to chapter 2, section 5; See also Peña, 'Toward an Environmental Justice Act: Can Ecological
Democracy Trump Partisan Politics and Neoliberalism?'., available at
http://www.newclearvision.com/2011/03/02/toward-an-environmental-justice-act/ 16
This Executive Order is extensively discussed in chapter 2, section 4.7 17
EPA Environmental Justice Webpage: http://www.epa.gov/compliance/basics/ejbackground.html.
(Accessed on 18th May 2011). The United States Environmental Protection Agency (EPA) definition
of environmental justice has already been reproduced and discussed earlier in this thesis. Refer to
chapter 2, section 4.6 18
Section 2 (3) (c) of the NEMA
88
resources, benefits and services by categories of persons who would otherwise be
disadvantaged by unfair discrimination.19
Equally important, the law makes
provision for the use of effective participatory mechanisms in resolving
environmental disputes.20
From the NGO perspective in South Africa, the meaning assigned to environmental
justice by the Environmental Justice Networking Forum (EJNF) will be considered.
The EJNF is a leading and influential environmental justice organisation renowned
as the first organisation to advance the notion of redressing environmental injustices
in South Africa. 21
According to the EJNF, poor and vulnerable people who are most
affected by environmental damage must be given a chance to participate at all levels
of environmental decision- making.22
It understands environmental justice as
concerning:-
Social transformation directed towards meeting basic human needs and
enhancing people’s quality of life- economic quality, healthcare,
housing, human rights, environmental protection and democracy...23
This definition shows that from the perspective of environmental NGOs in South
Africa, environmental justice presupposes that ‘social transformation’ must first take
place to ensure that peoples’ basic human needs are met and quality of life enhanced.
It is worth re stating that the growth of the EJM over the years has been attributed to
merging environmental and social justice issues.24
The effect of this merger is that it
tends to promote citizen participation. In effect, environmental justice can be viewed
as a way of challenging the abuse of power which results in poor people having to
19
Section 2(3) (d) NEMA 20
Refer to chapter 5 for detailed discussions on the public participation in South Africa 21
EJNF is a leading voluntary organisation of environmental justice activists. Others include
Earthlife, Groundwork, Environmental Monitoring Group (EMG) and the Group for Environmental
Monitoring (GEM). For further reading about EJNF, see M Butler, 'Lessons from Thor Chemicals:
The Links between Health, Safety and Environmental Protection', in L Bethlehem and M Goldblatt
(eds.), The Bottom Line: Industry and the Environment in South Africa (Cape Town: Cape Town
University Press, 1997), 194- 213; M Butler and D Hallowes, 'Poverty and the Environment in South
Africa', (Johannesburg: Environmental Justice Networking Forum, 1998); J Cock and D Fig, 'The
Impact of Globalisation on Environmental Politics in South Africa- 1990- 2002', African Sociological
Review, 5/2 (2001), 15- 35. 22
Macdonald, 'What Is Environmental Justice?', 4; D Hallowes and M Butler, 'Power, Poverty and
Marginalised Environemnts- A Conceptual Framework', 51- 77 23
D. A. Macdonald, 'What Is Environmental Justice?', in D. A Macdonald (ed.), 1- 12. 24
Refer to chapter 2, section 4
89
suffer the effects of environmental damage.25
In South Africa, distributive
environmental injustices have historically resulted from ineffective participation by
concerned citizens.26
In the case of Zambia, there was no specific reference to the term ‘environmental
justice’ in any environmental legislation, until recently when new framework
environmental legislation was enacted to include environmental management
principles that focus on ‘equitability and public participation’.27
With this
innovation, it appears that the necessary political will has emerged and that Zambia
will move forward to promote procedural environmental justice principles. Other
than this recent ‘by the way’ reference to environmental justice in environmental
legislation, there is presently no mention of the term ‘environmental justice’ in the
objectives of the main environmental NGOs in Zambia.28
In summary, the prominent features in defining procedural environmental justice
are:-
1. Enhanced public participation;
2. Procedural fairness in environmental decision-making;
3. Acknowledgement and recognition of societal and cultural norms.
The first two features namely enhanced public participation and procedural fairness
in environmental decision-making have been restated in almost all the main legal
definitions in the United States, and used by NGOs in South Africa. This
underscores their importance in environmental decision-making processes.
25
Macdonald, 'Environmental Racism and Neoliberal Disorder in South Africa', 259; F Khan, 'The
Roots of Environmental Racism and the Rise of Environmental Justice', in D. A. Macdonald (ed.),
Environmental Justice in South Africa (Athens: Ohio University Press, 2002), 15. 26
See generally Khan, 'The Roots of Environmental Racism and the Rise of Environmental Justice';
Cf. Bullard, 'Anatomy of Environmental Racism', 25, wherein it is argued that “people of color in the
USA were systematically excluded from (or allowed minimal participation) in governance including
environmental decision- making.” 27
Section 6 (a) – (l) of the Environmental Management Act No.12 of 2011 refers to principles
governing environmental management e. g. equitability and public participation. 28
Some of the environmental NGOs in Zambia include Citizens for a Better Environment,
Environmental Conservation Association of Zambia, Wildlife and Environmental Conservation
Society of Zambia, WWF-Zambia.
90
3. Public participation in environmental decision- making
This section critically examines the background and importance of public
participation in environmental matters. It begins with an analysis of what –
‘participation’- entails as well as the form it should take in order to facilitate
effective and meaningful decision- making, and environmental protection. This
critical examination will also point out the rationales and legal basis for public
participation in environmental matters.
3.1. What is public participation?
There is presently no consensus on what- ‘public participation’- means,29
although it
is generally agreed that it is an important feature of any environmental decision-
making process.30
This thesis uses the term -‘public participation’- in reference to all
the different mechanisms used to draw members of the public or any interested
parties to take part in activities that lead to environmental decisions. Public
participation can be a combination of communicating, interacting and exchanging
information and opinions on issues of common interest. In the case of public
participation incorporated by operation of law, such as in EIA, it can be argued that
the inclusion of participatory mechanisms ensures that citizens can influence
decision-making, although the extent to which this is true is debatable.
The term- ‘public participation’31
- can be used in reference to an active process of
interaction and engagement amongst interested groups.32
This interaction and
29
R. S Morse, 'Prophet of Participation: Mary Parker Follett and Public Participation in Public
Administration', Administrative Theory and Praxis, 28/1 (2006), 1- 32 at 1.; T. C Beierle, 'Public
Participation in Environmental Decisions: An Evaluation Framework Using Social Goals', (Resources
for the Future, 1998), 1- 34 at 2.; F. Fischer, Citizens, Experts, and the Environment: The Politics of
Local Knowledge (Durham, NC: Duke University Press, 2000), 5. 30
J Steele, 'Participation and Deliberation in Environmental Law: Exploring a Problem‐Solving
Approach', Oxford Journal of Legal Studies, 21/3 (2001), 415- 42 at 442; M Lee and C Abbot, 'The
Usual Suspects? Public Participation under the Aarhus Convention', The Modern Law Review, 66/1
(2003), 80- 108 at 80- 81; R Few, K Brown, and Tompkins. E, 'Public Participation and Climate
Change Adaptation: Avoiding the Illusion of Inclusion', Climate Policy, 7 (2007), 46- 59. 31
It must be noted from the outset that that there is a subtle distinction between “public participation”
and “stakeholder involvement”. Stakeholder participation or involvement is however, more restrictive
than public participation. See Beierle and Crayford, Democracy in Practice, Public Participation in
Environmental Decisions, 5- 7, wherein it is argued that stakeholder participation is limited to those
affected by or can affect a decision, whereas public participation is open to the public at large without
need to prove special interest in the decision to be made. See also T. Dietz et. al., Public Participation
91
engagement must be capable of influencing the development and management of
natural resources, which in turn must enhance “well-being in terms of income,
personal growth, self-reliance or other values”.33
Participation is said to be ‘active’
where participants are given the chance to freely express their opinions whether or
not they have been solicited.34
The following section shows the forms that public
participation can take.
3.2. Form of public participation
The form that participation takes has evolved over the years from creating mere
awareness on topical issues to incorporation of local knowledge in planning and
public consultation in the environmental decision-making process.35
In recent years,
calls for public participation in environmental matters have emphasised building
“procedures and institutional structures that enhance deliberation and enable
participation”.36
It then becomes pertinent to consider the form of participation that
can support this call for -‘proceduralisation.’
Black, for example, argues that participation could either take a ‘thin’
proceduralisation approach through “egotistical bargaining and voting of interest
group pluralism” or a ‘thick’ approach through “mutuality, consensus and inter-
subjective understanding of deliberative democracy”.37
A ‘thick’ approach towards
proceduralisation of participation would correspond with a highly interactive and
discursive process of sharing ideas. The foundation of this ‘thick’ approach to
proceduralisation is “public reason, which depends on and invokes mutuality.”38
in Environmental Assessment and Decision- Making (Washington, D. C.: National Academies Press,
2008), 1. 32
P. D. Little, 'The Link between Local Participation and Improved Conservation: A Review of
Issues and Experiences', in D Western, M Wright, and S Strum (eds.), Natural Connections:
Perspectives in Community- Based Conservation (Washington, D. C: Island Press, 1994), 347- 72. 33
Ibid, 348- 49 34
B Agarwal, 'Participatory Exclusions, Community Forestry and Gender: An Analysis for South
Asia and a Conceptual Framework', World Development, 29 (2001), 1623- 248. 35
M Reed, 'Stakeholder Participation for Environmental Management: A Literature Review',
Biological Conservation, (2008), 2417- 31 at 2422. 36
J Black, 'Proceduralising Regulation: Part I', Oxford Journal of Legal Studies, 20/4 (2000), 597-
614 at 599. 37
Ibid. 38
J Black, 'Proceduralising Regulation: Part II', Oxford Journal of Legal Studies, 21/1 (2001), 33- 58
at 36.
92
Black acknowledges that such a conception of participation, though desirable, maybe
difficult to develop and sustain.39
Whatever starting point is adopted for public participation, it must serve to
encourage citizens from diverse backgrounds to take part in the running of
environment- related affairs in their communities. It is possible to encourage public
participation by introducing a system for formally capturing the views of all willing
citizens and translating them into outcomes.40
Steele’s argument for citizen
deliberation resonates with the ‘thick’ proceduralisation approach because it focusses
on citizens’ abilities to ‘solve problems’ through reflection, discussion,
communication and attempted persuasion (reasoned argument).41
According to
Steele, the aim of public participation should be problem- solving which advances
environmental protection.42
The EIA is one such process that uses participation as a
way of fostering environmental protection.
One of the earliest arguments on participation describes citizen’s participation in
terms of “a ladder” of social power structures with eight rungs rising from non-
participation to participation with citizen decision-making power.43
This ladder
metaphor views the extent and intent of citizen involvement through rungs at three
levels: non-participation (therapy, manipulation); tokenism (informing, consultation,
39
Black, 'Proceduralizing Regulation: Part I', 608; See also Ibid. Black, 'Proceduralizing Regulation:
Part II', 36, arguing that some practical questions would need to be resolved- institutional designs,
encouraging participants to take part, practicalities of venues, etc. 40
Effective citizen participation is the cornerstone of environmental democracy. See M Mason,
Environmental Democracy: A Contextual Approach (London: Earthscan, 2000), 1, who argues that
environmental democracy is “a participatory and ecologically rational form of collective decision-
making, prioritizing judgements based on long- term realisable interests, facilitated by communicative
political procedures and a radicalisation of existing liberal rights”. See also J Bohman, 'The Coming
to Age of Deliberative Democracy', Journal of Political Philosophy, 6 (1998), 399- 423; I Lowe and J
Paavola, 'Environmental Values in a Globalising World', in I Lowe and J Paavola (eds.),
Environmental Values in a Globalising World- Nature, Justice and Governance (London: Routledge,
2005), 3- 14 at 17- 18. 41
Steele, 'Participation and Deliberation in Environmental Law: Exploring a Problem‐Solving
Approach', 428. 42
Ibid., 416. 43
S. R. Arnstein, 'A Ladder of Citizen Participation', Journal of the American Planning Association,
35 (1969), 216- 24.
93
placation); and citizen power (partnership, delegated power, citizen control).
Arnstein’s original ladder of citizen participation is reproduced as Figure 4.1:- 44
Figure 4.1: Arnstein’s original ladder of citizen participation45
The strength of Arnstein’s ladder metaphor is that it depicts the graduating levels of
participation. Each step corresponds to changes in the level of citizen engagement.
According to Arnstein, the ladder conceptualises ‘participation’ as a categorical term
for ‘power’.46
Therefore, participation in the environmental decision-making process
(EIA), can be equated to a power struggle amongst the proponents of the project,
stakeholders, regulators and other interested and affected parties. Parties to the
44
Ibid., Arnstein, at 216; A Shepherd and C Bowler, 'Beyond the Requirements: Improving Public
Participation in EIA', Journal of Environmental Planning and Management, 40/6 (1997), 725- 38 at
736. 45
Arnstein, 'A Ladder of Citizen Participation', 217-218 46
Ibid., 216.
94
process must be able to decide the form of participation that gives citizen power in
accordance with the ladder metaphor.
Collins and Ison, who criticise Arnstein’s argument on the basis that it restricts
policies and practices that attempt to foster participation, give five reasons in support
of their argument:-
.... first, the assumption of the hierarchical relationship in participation
which holds citizen control up as the ‘goal’ of participation; second, that
there is a linear relationship between non-participation and citizen
control – a framing that overlooks the importance of either the process
or the existence of feedback loops which shape understandings of the
situation. The third criticism arises from the observation that Arnstein’s
ladder limits changes in the roles and responsibilities of participants to
changes in levels of power, denying the possibility of more complex sets
of relationships. The fourth criticism is that Arnstein’s ladder does not
give due credence to or understanding of context. Finally, in contested
situations where what is at issue is unresolved, Arnstein’s ladder
provides few insights into how participation might be progressed as a
collective process between all of the stakeholders involved...47
Collins and Ison confirm that participation is multi-faceted and must be approached
from various angles with the effect of ensuring a collective and active process for all
concerned parties. The form of participation that would be effective in the EIA
process should ensure collective decision-making among the numerous stakeholders.
This mode of participation corresponds with Black’s argument that advocates ‘thick’
proceduralisation of participation.
According to Agarwal,48
articipation may be passive and one sided where participants
are merely informed of decisions or “rubber stamp” decision-making without
speaking out independently. This form of ‘participation’ is termed ‘tokenism’ in
Arnstein’s ladder metaphor. Agarwal terms other forms of participation as nominal,
consultative, activity-specific and lastly, interactive and empowering participation
which is considered the highest level of participation that allows participants to
47
K Collins and R Ison, 'Jumping Off Arnstein's Ladder: Social Learning as a New Policy Paradigm
for Climate Change Adaptation', Environmental Policy and Governance, 19 (2009), 358- 73 at 369. 48
Agarwal, 'Participatory Exclusions, Community Forestry and Gender: An Analysis for South Asia
and a Conceptual Framework', 1623- 1648.
95
influence decisions.49
Interactive and empowering participation includes face to face
deliberations, problem- solving, consensus building, public hearings as well as
public comment procedure, policy dialogues, stakeholder advisory committees,
citizen juries and facilitated mediations amongst numerous others.50
The availability of numerous forms of participation notwithstanding, the most
important consideration is what should constitute ‘real opportunities’ for
participation in environmental decision- making or indeed effective public
participation in the environmental interest. The question of which form of
participation would be effective depends on the degree or level of participation that
is facilitated.51
To guarantee effective participation in the environmental sector is to
ensure that all citizens likely to be affected by environmental decisions are involved
in decision-making. An argument in point is that:-
Full public participation creates procedural, rather than substantive,
expectations for natural resources policymaking; if fair procedures are
established and all interests are represented, then the results, whatever
they may be, are acceptable.52
This argument shows that emphasis is on how the ‘process’ of participation is
conducted. The EIA process involves a negotiation of procedural and distributional
rights and duties, between and among project proponents, regulators and interested
and affected parties.53
The form that public participation takes must be structured in
such a way as to be representative of the will of the people in the community under
consideration. It is acknowledged that the form of public participation- whether
public meetings, workshops or citizen advisory committees, alone does not
necessarily determine the effectiveness of the process or its outcome.54
49
Ibid. 50
Dietz, Public Participation in Environmental Assessment and Decision- Making, 1. 51
F Coenen, ‘Introduction’ in FHJM Coenen (ed.) Public Participation and Better Environmental
Decisions: The Promise and Limits of Participatory Processes for the Quality of Environmentally
Related Decision- Making, (Amsterdam: Springer Science, 2009), 5- 11. 52
G. C Bryner, 'Assessing Claims of Environmental Justice: Conceptual Frameworks', in Mutz K.,
Bryner Gc., and Kenney Ds. (eds.), Justice and Natural Resources, Concepts, Strategies and
Applications (Washington, D. C: Island Press, 2002), 31- 56 at 45. 53
Morrison- Saunders and Early, 'What Is Necessary to Ensure Natural Justice in Environmental
Impact Assessment Decision- Making', 33. 54
C Chess and K Purcell, 'Public Participation and the Environment: Do We Know What Works?',
Environmental Science & Technology, 33/16 (1999), 2685- 92 at 2685.
96
As noted earlier in this section, while there may be no universally accepted standards
for effective participation at present, there are suggestions on some of the best
practices in the participation process. Reed devises a system of categorising ‘best
practice stakeholder participation’ in environmental management.55
These include:
the degree of participation that is facilitated,56
nature of participant engagement,57
theoretical basis of participation,58
objective for participation and lastly, consensus
building.59
Looking at the various typologies for best practice participation, it cannot
be stated with certainty what form of participation would be appropriate in every
environmental decision- making process. In this regard, a collective bargaining
process for citizens as a means towards developing democratic and participative
approaches in resolving environmental issues would be ideal.60
In the case of an EIA,
the objective for participation is that all relevant information about a proposed
project must be solicited and received in order to understand the full implications of
the project and inform the final decision. The following section discusses the
necessity for public participation.
3.3. Rationales for public participation
The justifications for public participation range from discipline to discipline, and
from one sector of the community to another. For instance, a study conducted by
Scheer and Hoppner to evaluate the public consultation process to the UK Climate
Change Act 2008, selected 152 participants to represent a range of demographics for a
citizen’s summit.61 In this study, it was found that different interest groups are usually
55
Reed, 'Stakeholder Participation for Environmental Management: A Literature Review', 2419- 20. 56
Arnstein’s Ladder is given as a prominent example. See Arnstein, 'A Ladder of Citizen
Participation', 216; Collins and Ison, 'Jumping Off Arnstein's Ladder: Social Learning as a New
Policy Paradigm for Climate Change Adaptation', 369; Agarwal, 'Participatory Exclusions,
Community Forestry and Gender: An Analysis for South Asia and a Conceptual Framework', 1640 57
Reed, 'Stakeholder Participation for Environmental Management: A Literature Review', 2420. In
this typology, Reed argues that the nature of participation can be deduced by “the direction that
communication flows between parties ... information dissemination to passive recipients constitutes
‘‘communication’’, gathering information from participants is ‘‘consultation’’ and ‘‘participation’’ is
conceptualised as two-way communication between participants and exercise organisers where
information is exchanged in some sort of dialogue or negotiation.” 58
Ibid. Reed distinguishes between ‘normative participation’ which focuses on process and
‘pragmatic participation’ focussing on participation as a means to an end, which can deliver higher
quality decisions. 59
Ibid 60
S. Mcallister, 'Human Rights and the Environment: The Convention on Access to Information,
Public Participation in Decision- Making and Access to Justice in Environmental Matters', Colorado
Journal of International Law and Policy, 10 (1998), 187. 61
A. M. Scheer and C Hoppner, 'The Public Consultation to the UK Climate Change Act, 2008: A
Critical Analysis', Climate Policy, 10/3 (2010), 261- 76 at 167.
97
“treated as a monolithic public”62 in spite of the different rationales and roles they
represent in the participation process. It is generally agreed however, that increased
public participation can facilitate informed, unanimous and well-reasoned
discussions and decisions in complex environmental matters.63
Effective public
participation can also help reduce resistance and dissent towards public decisions
generally.64
Before analysing the specific rationales, it is important to state that the Aarhus
Convention in its preamble makes an apt summary of rationales for public
participation specific to environmental decision- making.65 The Convention draws
strongly on environmental concern by enhancing the environmental information
foundation. For instance, it states that “improved access to information and public
participation in decision-making enhances the quality and the implementation of
decisions”. This can be achieved by tapping into valuable lay knowledge and
insights that can be given by the public and NGOs.66
Further, the preamble to the Convention provides that public participation
contributes to “public awareness of environmental issues” and gives the public the
opportunity to “express its concerns and enable public authorities to take due account
of such concerns.” Furthering “accountability of and transparency in decision-
making” is also noted as justification for public participation. A higher level of
accountability and transparency in turn may lead to strengthened public support for
62
Ibid., 271. 63
Steele, 'Participation and Deliberation in Environmental Law: Exploring a Problem‐Solving
Approach', 416; Lee and Abbot, 'The Usual Suspects? Public Participation under the Aarhus
Convention', 82- 85. 64
Bruntland, Our Common Future: The World Commission on Environment and Development; Lee
and Abbot, 'The Usual Suspects? Public Participation under the Aarhus Convention', 80, 82- 85; C
Okereke and K Dooley, 'Principles of Justice in Proposals and Policy Approaches to Avoid
Deforestation: Towards a Post- Kyoto Climate Agreement', Global Environmental Change, 20/1
(2010), 1- 36 at 92- 93; J Ebbesson, 'Introduction: Dimensions of Justice in Environmental Law', in J
Ebbesson and P Okowa (eds.), Environmental Law and Justice in Context (Cambridge: Cambridge
University Press, 2009), 1- 36 at 12- 20. 65
Lee and Abbot, 'The Usual Suspects? Public Participation under the Aarhus Convention', 82; 86.
The authors argue that the Aarhus Convention seems to have “mixed motives” with some of its
provisions “recognising diverse, yet interrelated motivations... perhaps the clearest and strongest link
is with improving environmental protection.” 66
The role of NGOs in public participation is given prominence in the Aarhus Convention. See Ibid.
Lee and Abbot, arguing that “the level of participation accorded to NGOs, could be the most
significant innovation of the Aarhus Convention.”
98
decisions on the environment. In this vein, public participation is advanced as a
prerequisite for legitimising environmental decisions.
The preamble to the Aarhus Convention provides for the promotion of
environmental education to further the understanding of the environment and
sustainable development. It also encourages “widespread public awareness of, and
participation in, decisions affecting the environment and sustainable development.”
It can therefore be argued that one rationale for extending participation into
environmental matters is that every citizen should play a key role in the achievement
of sustainable development.67
Public participation as the cornerstone of environmental decision-making should
encourage substantive dialogue among environmental experts and affected local
communities. This presupposes a two way communicative process and is in turn the
basis of how society manages and protects the environment.68
According to Coenen,
the varied rationales for public participation in environmental matters can fall into
one of the following three categories: 1) increasing the legitimacy of environmental
decisions and reducing the levels of conflict; 2) improving the quality of
environmental decision- making; and 3) enabling people to understand societal
environmental problems.69
These rationales are now discussed in detail in order to
have an understanding of which one would be the most relevant for the purpose of
advancing procedural environmental justice in the EIA process:-
1. Increase the Legitimacy of Environmental Decision and Reduce the Levels
of Conflict
The first goal of participatory procedures is to promote procedural legitimacy and
the acceptability of decisions in environmental matters. In order to understand the
relevance of procedural legitimacy in environmental decisions, it is worth referring
67
For a detailed discussion on sustainable development and public participation, refer to chapter 2,
section 7.3 68
Beierle and Crayford, Democracy in Practice, Public Participation in Environmental Decisions, 6. 69
F Coenen, Public Participation and Better Environmental Decisions: The Promise and Limits of
Participatory Processes for the Quality of Environmentally Related Decision- Making, 2- 5.
99
to the origins of the legitimacy concept.70
Habermas argues that legitimacy in
deliberative democracy means that a political system has a claim to be recognised
because it is right and just. Legitimacy justifies a political system’s right to power
and authority and it can also be interpreted as a means for gaining popular support
without which a system is likely to collapse.71
This interpretation of legitimacy can
also be applied to environmental decision- making. Legitimacy is considered
important because it gives environmental decisions a level of acceptability to the
applicable communities. In this case, legitimacy as the first goal also addresses
aspects of the second and third goals of meaningful participation as will be
discussed below.
According to Foster, four indicators are relevant in measuring whether participatory
procedures meet the test of legitimacy. These are as follows:-
(a) Opportunity for environmental justice advocates to participate at all
the levels of decision- making;
(b) The public must be ‘informed’;
(c) There must be responsiveness on the part of the responsible authority
to community knowledge and concerns;
(d) Shared decision- making power and influence.72
These four indicators for determining the legitimacy of an environmental decision-
making process are important because they ensure that procedural fairness and
equality are taken into account at the initial stage. These indicators are also important
for improving the quality of environmental decisions. Since procedural justice entails
fairness, equity and participatory democracy, the mechanisms for achieving
environmental justice must be multi- issue and multi- cultural.73
This underscores the
70
J Habermas, Communication and the Evolution of Society (Oxford: Polity Press, 1979) at 68; 95;
See also D. Bodansky, 'The Legitimacy of International Governance: A Coming Challenge for
International Environmental Law', AJIL, 93 (1999), 623 at 623; J Brunnee, 'Coping with Consent:
Law- Making under Multilateral Environmental Agreements', Leiden Journal of International Law,
15 (2002), 1. 71
Habermas, Communication and the Evolution of Society, 178. 72
S. Foster, 'Justice from the Ground Up: Distributive Inequities, Grassroots Resistance and the
Transformative Politics of the Environmental Justice Movement', California Law Review, (1998),
834. 73
R Hofrichter, ‘Introduction’ in R Hofrichter (ed.) Toxic Struggles: The Theory and Practice of
Environmental Justice, 9; T. Webler et. al., 'What Is a Good Public Participation Process?',
Environmental Management, 27/3 (2001), 435- 50 at 443. The authors argue that a participation
process must realise democratic principles of fairness and equality. This can be achieved by focussing
on a process that is mutually respectful and trust building amongst all participants.
100
argument that broader and more direct public participation in environmental
decision-making processes merges divergence and tends to increase legitimacy and
the substantive quality of policy decisions.74
Legitimacy of environmental decisions is especially important in EIA because the
effects of uncertain impacts inherent in the process could have far- reaching
consequences. This makes it cardinal to ensure that citizens have confidence in the
resulting decision.75
To promote legitimacy however, public participation should
among other goals, give citizens the opportunity to be informed in time about
environmental hazards and advantages, and to take the opportunity to contribute
meaningfully to environmental protection goals. The right to have access to
environmental information as well as public participation are crucial in legitimising
and improving the quality of the environmental decisions themselves.76
2. Improve the Quality of Decision- making
The second goal that public participation is expected to meet is that it should be
capable of improving the quality of environmental decisions. This goal presupposes
that the responsible authorities should be given the relevant feedback and
information for decision- making and should be obliged to take that information
into account in reaching a final decision. Public participation can improve the
quality of environmental decisions through the likely infusion of expert and local
knowledge.
This goal is anchored in a communicative process which is likely to contribute to
the systematic identification of problems and their causes, and to the consideration
of alternative strategic options.77
To exemplify this, it has been shown in chapter
two that the Environmental Justice Movement in the United States was born out of
74
R Bullard, ‘Introduction’ in R Bullard (ed.) The Quest for Environmental Justice: Human Rights
and the Politics of Pollution (San Francisco: Sierra Club Books, 2005), 10. 75
Steele, 'Participation and Deliberation in Environmental Law: Exploring a Problem‐Solving
Approach', 416. 76
J Ebbesson, 'The Notion of Public Participation in International Environmental Law', in J Brunee
and E Hey (eds.), Yearbook of International Environmental Law (8; Oxford: Clarendon Press, 1997),
51- 97 at 51. 77
Coenen, Public Participation and Better Environmental Decisions: The Promise and Limits of
Participatory Processes for the Quality of Environmentally Related Decision- Making, 2.
101
heightened public participation which resulted in a number of case studies about the
siting of toxic waste being made public. The communities of colour in the United
States generally became aware that they were being ‘dumped on’78
and over the
years, this awareness led to the development of environmental justice both within
and outside the United States. As a result of citizen participation, there was a
systematic identification of environmental problems and their causes. This example
shows that it is important to systematically understand the underlying causes of
environmental inequality in order to suggest solutions and improve the quality of
environmental decisions. It is worth re stating that the quality of environmental
decisions is determined by procedural fairness.
3. Facilitate an Understanding of Societal Environmental Problems
The third goal that determines the effectiveness of public participation in
environmental matters is that it should facilitate an understanding of environmental
problems. This goal is anchored on community members being able to appreciate the
environmental challenges they are presented with. The knowledge or awareness of
environmental problems should influence or encourage a change in the way people
behave or act.79
This is similar to but broader than the second goal in that it promotes
education and learning in environmental issues. For example, in the context of the
origins of environmental justice, concerns about distributive injustices were only
voiced after the injustice had already occurred. One reason could be that there was
inadequate prior information about the siting of undesirable land uses owing to
inadequate or non-existent public participation mechanisms.
Having evaluated the three goals of public participation, it must be noted that
increasing chances for legitimacy of environmental decisions and reducing areas of
conflict is the most important goal. Legitimacy is important because it enhances
procedural fairness which is the basis for environmental justice. The following
section discusses the international legal significance of public participation in
environmental matters.
78
Refer to chapter 2, sections 3 and 4 79
Coenen, Public Participation and Better Environmental Decisions: The Promise and Limits of
Participatory Processes for the Quality of Environmentally Related Decision- Making, 11.
102
3.4. Public participation in environmental matters: law and policy developments
Public participation has evolved into a critical feature of environmental decision-
making. The importance of public participation in environmental decision-making
dates as far back as 1948, when the provision for the guarantee of rights to
information and public participation generally were made in the Universal
Declaration of Human Rights.80
Table 4.1 below summarises some of the key
Conventions and Declarations that have referred to the relevance of public
participation in environmental decision-making:-
Table 4.1: Key Milestones in the Recognition of Public Participation in
International Environmental Matters
Year/Period Key Milestone
1948 Articles 19 and 20 (1), Universal Declaration of Human Rights
1966 Article 25, International Covenant on Civil and Political Rights
1982 Articles 18 and 23, World Charter for Nature
1992 Principle 10, Rio Declaration
1998 Convention on Access to Information, Public Participation in
Decision-making and Access to Justice in Environmental
Matters (Aarhus Convention)
2002 Paragraph 128, World Summit on Sustainable Development Plan
of Implementation
As illustrated in Table 4.1, the 1966 International Covenant on Civil and Political
Rights made reference to citizen participation, and the 1982 World Charter for
Nature went a step further to recognise the right to information as an important
feature of public participation.81
From 1982, there has been a proliferation of
initiatives articulating demands for public participation in environmental matters
which has resulted in the emergence of a strong body of norms and practices
providing for public access to environmental information, participation and justice.
80
Articles 19 and 20(1) of the 1948 Universal Declaration of Human Rights make provision for
political participation and the associated rights of freedom of assembly, opinion and expression,
which are all very pertinent to public participation. 81
Articles 25 of the International Covenant on Civil and Political Rights inscribes citizen (public)
participation, whereas Articles 18 and 23 of the 1982 World Charter for Nature require public
disclosure of conservation information “in time to permit effective consultation and participation” as
well as “the opportunity for all persons to participate, individually or with others in the formulation of
decisions of direct concern to the means of redress when their environment has suffered damage or
degradation”.
103
In more recent years, public participation in environmental decision-making has
been emphasised in international agreements and it is increasingly being accepted as
a central feature towards achieving sustainable development in national
legislation.82
It has been shown earlier in this thesis that the objectives of sustainable
development and procedural environmental justice are closely intertwined.83
This
means that environmental law and policy efforts aimed at achieving sustainable
development are also likely to promote procedural environmental justice.
Another relatively recent example of how public participation has been advanced as
a key principle of environmental good governance is Principle 10 of the 1992 Rio
Declaration which states that:-
Environmental issues are best handled with the participation of all
concerned citizens, at the relevant level. At the national level, each
individual shall have appropriate access to information concerning the
environment that is held by public authorities, including information on
hazardous materials and activities in their communities, and the
opportunity to participate in decision- making processes. States shall
facilitate and encourage public awareness and participation by making
information widely available. Effective access to judicial and
administrative proceedings, including redress and remedy, shall be
provided.
As a result of this initiative, local communities must be guaranteed three basic rights:
access to environmental information, the rights to participate in different ways
towards environmental decisions; and the right to seek redress for any shortcomings
in the decision- making process. These three rights are representative of what is
known as procedural or participatory justice and are central to understanding
procedural environmental justice.84
In addition, the three rights also emphasise
82
For instance, in recognition of public participation in environmental decision-making, Paragraph
128 of the World Summit on Sustainable Development Plan of Implementation, 2002 states: "Ensure
access, at the national level, to environmental information and judicial and administrative proceedings
in environmental matters, as well as public participation in decision-making, so as to further Principle
10 of the Rio Declaration on Environment and Development, taking into full account Principles 5, 7
and 11 of the Declaration." 83
Refer to chapter 2, section 7 84
A Kaswan, 'Reconciling Justice and Efficiency: Integrating Environmental Justice into Domestic
Cap- and Trade Programs for Controlling Greenhouse Gases', in G. G Arnold (ed.), Ethics and Global
Climate Change (Cambridge: Cambridge University Press, 2011), 323 at 337. Kaswan argues that
“participatory justice” is the ability to participate meaningfully in decisions that affect ones
community and that this is a second, central goal of the EJM after distributive justice.
104
transparency, equitability and accountability in the environmental decision- making
process.
The 2002 World Summit on Sustainable Development (WSSD) is an even more
recent example of the international significance of public participation in
environmental matters. Although the WSSD did not originate the concept of public
participation in environmental matters, it provided an innovative way of ensuring
that environmental governance was not left to interstate relations, but also extended
to embrace individual stakeholders.85
The examples given in this section show that public participation in environmental
matters has received prominence by incorporation in international environmental law
and policy. One of the most important examples of the international emphasis on
participatory and procedural rights in environmental decision-making is the 1998
Convention on Access to Information, Public Participation in Decision-making, and
Access to Justice in Environmental Matters (generally referred to as “the Aarhus
Convention”).86
Many provisions of the Aarhus Convention are relevant to public
participation and procedural environmental justice and therefore merit more detailed
discussion in the section below.
3.4.1. The 1998 Aarhus Convention: Public participation and procedural
environmental justice
The Aarhus Convention is a multilateral regional agreement which was negotiated
under the auspices of the United Nations Economic Commission for Europe
(UNECE); one of the five regional commissions of the United Nations that brings
together 56 countries located in the European Union, non-European Union Western
85
The WSSD was a multi-stakeholder initiative which included several representative groups such as
the youth, women, trade unions, indigenous people and environmental NGOs quite apart from
government representatives. See UN (2004), 'Report of the World Summit on Sustainable
Development, Johannesburg, South Africa, 26 August- 4 September 2002', (New York: United
Nations), 116; C. Brunch and M. Filbey, 'Emerging Global Norms of Public Involvement', The New
Public: The Globalisation of Public Participation (Washington, D. C.: Environmental LAw Institute,
2002), 1- 17 at 11. 86
S. Stec and L. Casey, The Aarhus Convention: An Implementation Guide (New York, Geneva:
United Nations, 2000), 10- 14; Mcallister, 'Human Rights and the Environment: The Convention on
Access to Information, Public Participation in Decision- Making and Access to Justice in
Environmental Matters', 187. McAllister argues that the Convention is a milestone in European
environmental policymaking with a number of fundamental principles enhancing access to
environmental legislation and environmental justice.
105
and Eastern Europe, South-East Europe and Commonwealth of Independent States
(CIS) and North America.87
Article 19 (3) provides that the Convention is open for
accession by any United Nations member, subject to the approval of the parties
thereto. A potential effect of this provision is that it becomes likely for nation states
from other regions of the world to accede to the Convention. This would result in the
Convention exerting global significance beyond the geographical boundaries of the
nation states that have initially ratified it. This possibility is not far-fetched owing to
the present significance of the Convention.
On this basis, this thesis argues that even in the absence of ratification, which legally
binds signatories: the Convention may be persuasive in relation to how non-
signatory nation states construe public participation in environmental matters.
According to Bende, although the ‘Aarhus procedural rights’ are not in themselves a
panacea, they have important implications in resolving global environmental
problems, especially those in developing countries.88
This shows that the provisions
of the Aarhus Convention influence environmental decision- making beyond the
physical borders of the signatories thereto. Suffice to state, the Convention is hailed
as one of the most ambitious undertakings by the United Nations towards
participatory environmental democracy.89
It brings together previously scattered
legal and institutional provisions on public participation in environmental matters
and codifies procedural rights into environmental governance, thereby representing a
shift towards international consensus in environmental matters.90
The Aarhus Convention is one of the few international environmental treaties
concerned exclusively with procedural environmental decision-making. It enshrines
public participation in environmental matters as a democratic right91
and as such is
87
For more details about the Aarhus Convention refer to http://www.unece.org/about/about.htm. 88
T. Bende, 'Public Participation and Democracy in Practice- Aarhus Convention Principles as
Democratic Institution Building in the Developing World', Journal of Land Resources and
Environmental Law, 30/2 (2010), 295- 330 at 328. 89
Stec and Casey, The Aarhus Convention: An Implementation Guide. K. Annan, ‘Foreword’. 90
See generally S. Rose-Ackerman and A. A. Halpaap, 'The Aarhus Convention and the Politics of
Process: The Political Economy of Procedural Environmental Rights', in R. O Zerbe and T Swanson
(eds.), An Introduction to the Law and Economics of Environmental Policy: Issues in Institutional
Design (20: JAI Press Inc., 2001), 27- 64 at 27. 91
Reed, 'Stakeholder Participation for Environmental Management: A Literature Review', 2417.
106
important for securing procedural environmental justice.92
The Convention is
instructive because it sets out “minimum standards” for both parties and non- parties
thereto, to build on and promote participation in environmental decision- making.93
As a result, the Aarhus Convention will be used as the foundation for the Procedural
Environmental Justice Model (PEJM) asserted in this thesis.94
The Aarhus Convention incorporates provisions that are important for procedural
environmental justice. The Preamble states that the Convention is aimed at
implementing Principles 1 and 10 of the Stockholm and Rio Declarations
respectively.95
It is further stated in the Preamble that primarily, there must be
guaranteed access to information and justice in environmental matters in order for
citizens to participate meaningfully. The Convention consists of ‘three pillars’
namely: access to environmental information, public participation and access to
justice in environmental matters.96
These three pillars are discussed below:
3.4.1.1. Access to environmental information
Access to environmental information is the starting point for public participation. In
the absence of reasonable access to information, public participation becomes mere
rhetoric.97
In the context of the Aarhus Convention, environmental information
means any information in any material form relating to the state of elements of the
environment, such as air, atmosphere, water, soil, land, landscape and natural sites,
biological diversity and its components.98
This definition includes virtually anything
that fits into the widest definition of ‘environment’ including administrative
measures, environmental agreements, policies, legislation, plans and programmes
92
See generally J Ebbesson, 'Information, Participation and Access to Justice: The Model of the
Aarhus Convention', (Paris: UNEP, 2002). 93
J. Wates, 'The Aarhus Convention: A Driving Force for Environmental Democracy', Journal for
European Environmental and Planning Law, 2/1 (2005), 1- 11 at 2. 94
This Model is discussed in detail later in this chapter in section 5 95
Principle 10 of the Rio Declaration has been discussed in section 4.2 above whereas Principle 1 of
the Stockholm Declaration states that “Man has the fundamental right to freedom, equality and
adequate conditions of life, in an environment of a quality that permits a life of dignity and well-
being, and he bears a solemn responsibility to protect and improve the environment for present and
future generations. In this respect, policies promoting or perpetuating apartheid, racial segregation,
discrimination, colonial and other forms of oppression and foreign domination stand condemned and
must be eliminated.” 96
Article 1 97
J Holder and M Lee, 'Public Participation in Environmental Decision- Making', Environmental
Protection, Law and Policy- Text and Materials (Cambridge: Cambridge University Press, 2007), 86-
134 at 86; 101. 98
Article 2 (3)
107
that would affect or be likely to affect the elements of the environment. This pillar is
important because it supports the realisation of the other two pillars of the
Convention by empowering the public with the relevant information on which to
base environmental decisions.
There are a number of factors that need to be taken into account in determining
access to environmental information. For instance, the form in which the information
is presented is cardinal. Rowan- Robinson argues that primary and secondary sources
of information present varying degrees of access to information, with primary
sources such as public registers being favoured for their original content.99
The
author further contends that the provision of environmental information in its
original form is not “an end in itself; it is a means to an end. In this case, the ‘end’ is
the promotion of stewardship.”100
In the context of this thesis, ‘stewardship’ would relate to the attainment of the wider
rationales for public participation, for instance, enabling a better understanding of
societal environmental problems and hence improving the quality of decisions.101
In
conclusion, Rowan- Robinson states that environmental information can only
contribute to meeting the aims for public participation in environmental decision-
making if four factors are met: awareness of its existence and availability to the
public; accessibility in physical and economic terms; and lastly, they must be
comprehensible. These four factors are discussed in relation to the development of
the Procedural Environmental Justice Model (PEJM) in the latter part of this
chapter.102
3.4.1.2. Public participation in environmental decision- making
The second pillar of the Aarhus Convention is of utmost relevance to this thesis
because it specifically addresses public participation. Public participation can best be
achieved where there is public awareness of environmental issues and access to
99
J Rowan-Robinson et al., ''Public Access to Environmental Information: A Means to What End?'
(1996) 8 Jel 19.', Journal of Environmental Law, 8/1 (1996), 19- 42. 100
Ibid, 20. 101
Refer to section 3.3 102
Refer to section 5
108
environmental information. The success of this pillar is anchored on the
effectiveness of the access to environmental information and access to justice pillars.
The public participation pillar is divided into three parts; participation of the public
in decisions on specific activities,103
development of plans, programmes and policies
relating to the environment,104
and in the preparation of laws, rules and legally
binding norms.105
The participatory requirements include timely and effective
notification of the public concerned, provisions for participation at an early stage as
well as prompt public notification of any decision-making process.106
The “public
concerned” is also defined as “the public affected or likely to be affected by, or
having an interest in, the environmental decision- making.”107
The definition
explicitly includes NGOs promoting environmental protection and meeting any
requirements under national law.108
These definitions are relevant to the procedural environmental justice discussion
because they show that participation must be extended to all citizens. The ambit of
the “public concerned” employed in the Aarhus Convention is inclusive rather than
exclusive, thereby promoting the participation of a range of interest groups in
societal environmental matters.
3.4.1.3. Access to justice in environmental matters
The third pillar is intended as a remedial mechanism for violations that would be
likely to arise in the decision-making process. In practice, this pillar re- affirms the
access to information and public participation pillars by empowering citizens and
NGOs to assist in the enforcement of the rules and regulations. In effect, the third
pillar can be interpreted as a form of participation in its own right. It can also be
cited as an example of corrective environmental justice in the taxonomy of
environmental approaches.109
This pillar prescribes the availability of effective
judicial mechanisms that are accessible to the public.
103
Article 6 104
Article 7 105
Article 8 106
Article 6 107
Article 2 (5) 108
Article 2 and see also Wates, 'The Aarhus Convention: A Driving Force for Environmental
Democracy', 1- 11. 109
Refer to chapter 3, section 3.2
109
The Aarhus Convention makes provision for access to justice at three levels:
reviewing access to information requirements;110
reviewing participation breaches in
relation to specific activities; 111
and challenges to shortcomings in meeting general
environmental law provisions.112
In accessing justice at any of these three levels, it is
notable that members of the public must show “a sufficient interest”113
or “maintain
impairment of a right where the administrative procedural law of a Party requires
this as a precondition”114
in order to challenge the substantive or procedural legality
under the Convention. The emphasis remains that citizens must be allowed wide
access to adjudicative authorities.115
In summary, public participation whether it be nominal, consultative, interactive or
empowering is an important feature in global environmental decision-making
processes. The Aarhus Convention has been identified as one of the most important
international instruments through which important procedural environmental justice
requirements have been codified. These requirements are that public participation in
environmental matters must promote access to relevant information and enhance the
right to empowering and interactive participation. In addition, participants must be
availed the right to seek redress in the event of dissatisfaction within the decision-
making process. These aspects are central to the development of a Procedural
Environmental Justice Model (PEJM) and will be discussed in detail below.116
The
following section is a critical description of the rationale for public participation in
environmental matters.
4. EIA as a vehicle for public participation
This section makes a conceptual link between procedural environmental justice and
environmental impact assessment (EIA). The umbrella concept of environmental
assessment (EA) will be discussed on the premise that procedural environmental
justice can occur at many levels of environmental decision-making. However, this
110
Article 9 (1) 111
Article 9 (2) 112
Article 9 (3), (4) and (5) 113
Article 9 (2) (a) 114
Article 9 (2) (b) 115
Lee and Abbot, 'The Usual Suspects? Public Participation under the Aarhus Convention', 102. 116
Refer to section 5
110
thesis focusses on decisions relating to specific development activities. Procedural
environmental justice cannot be understood in isolation from developmental
activities that impact on the quality of the environment and human life.
4.1. Meaning of environmental assessment (EA)
Environmental assessment (EA) is a broad concept that aids decision-making in
policy and developmental activities. One of the aims of EA is to anticipate and
regulate the repercussions of human activities on the environment.117
The lack of a
universally accepted definition of EA notwithstanding,118
it is generally understood
as a tool that facilitates a decision-making process explicitly and systematically
integrating environmental considerations.119
It is arguable that where effectively
implemented, EAs have the potential to contribute towards realising the aims of
sustainable development; to equitably meet developmental and environmental needs
of present and future generations.120
The practice of EA is also somewhat related to the precautionary principle of
environmental law insofar as the incorporation of prior environmental risk
assessment and the need to evaluate potentially harmful risks of activities on human
life and the environment are concerned.121
In effect, EA enhances chances for
achieving procedural environmental justice and sustainability by encouraging a
precautionary approach in addressing the effects of human activities on the
environment. By advocating a balance between the competing needs of development
and environmental wellbeing, environmental assessment ensures procedural fairness
through participation in the decision-making process.122
It can therefore be
117
Holder, Environmental Assessment, the Regulation of Decision- Making, 5- 6. 118
Ibid., 33. 119
J Glazewski, Environmental Law in South Africa (Durban: Butterworths, 2005), 269. 120
See Principle 3 of the Rio Declaration on Environment and Development; George, 'Testing for
Sustainable Development through Environmental Assessment', 180. The author argues that “EA is a
ready-made tool for applying sustainable development”. See also chapter 2, section 7 121
The detailed discussed of the Precautionary Principle is beyond this thesis. The reader is referred
to O Mcintyre and T Mosedale, 'The Precautionary Principle as a Norm of Customary International
Law', Journal of Environmental Law, 9/2 (1997), 221- 41; Principle 15 of the Rio Declaration (1992)
defines the precautionary principle in the following terms: “Where there are threats of serious or
irreversible environmental damage, lack of full scientific certainty should not be used as a reason for
postponing measures to prevent environmental degradation.” 122
Holder, Environmental Assessment, the Regulation of Decision- Making, 3.
111
concluded that the aims of environmental assessment and those of procedural
environmental justice are complemented through public participation.
An evaluation of the literature reveals that EA is a broad concept which makes a
distinction between assessments of projects on the one hand and policies,
programmes and plans on the other.123
The underlying principle in both variations of
environmental assessment remains the notion of prior inquiry into possible adverse
environmental impacts. For instance, strategic environmental assessment (SEA)
focuses on assessing the environmental impacts of decisions at the early stages of
planning, policy and program levels.124
Other terminologies used almost
synonymously with SEA include policy environmental assessment (PEA), policy
impact assessment (PIA), sectoral environmental assessment (SEA), and integration
of environmental assessment into policy-making, planning and program
development.125
EIA, which focuses on the environmental assessment of specified
developmental activities which have an impact on the environment, also falls under
the umbrella concept of EA.
The need for EA arose from the realisation that large scale global development that
had been on-going needed to be scaled in accordance with what the natural
environment could withstand.126
This realisation was emphasised in ground-breaking
publications in the 1960s and onwards which documented the need to limit the
impacts of global industrialisation on the environment.127
The international practice
123
Y. et.al. Song, 'Strategic Environmental Impact Assessment for Dam Planning: A Case Study of
South Korea's Experience', Water International, 35/4 (2010), 397- 408 at 398- 99. 124
M. Partidario- Rosario, 'Strategic Environmental Assessment: Key Issues Emerging from Recent
Practice in Environmental Impact Assessment for Dam Planning: A Case Study of South Korea's
Experience', 31; Y. et.al. Song, 'Strategic Environmental Impact Assessment for Dam Planning: A
Case Study of South Korea's Experience', 398- 399. 125
M. Partidario- Rosario, 'Strategic Environmental Assessment: Key Issues Emerging from Recent
Practice in Environmental Impact Assessment for Dam Planning: A Case Study of South Korea's
Experience', 33. 126
M Audouin, 'Modernism, Environmental Assessment and Sustainability Argument: Moving
Towards a New Approach to Project- Based Decision- Making in South Africa', (Stellenbosch:
University of Stellenbosch, 2009), 13- 19; G Gerber, 'Environmental Impact Assessment, Integrated
Development Planning and the Pursuit of Sustainable Development in South Africa: A Critical
Reflection of the Philosophy of Alternatives', (Stellenbosch: University of Stellenbosch, 2009), 12-
15. 127
Refer to Carson, Silent Spring; G. Hardin, 'The Tragedy of the Commons', Science, 162 (1968),
1243- 47; P. R. Ehrlich, The Population Bomb (Stanford: Ballantine Books, 1968); A. Goldsmith et.
al., Goldprint for Survival (London: Penguin, 1972); F. Schumacher, Small Is Beautiful- A Guide for
the Perplexed Good Work (London: Blond & Briggs, 1973).
112
of environmental assessment dates back to immediately after the 1972 Stockholm
Conference which marked heightened global awareness about humankind’s
detrimental impacts on the environment.
As noted in chapter two, the second wave of environmental activism in the United
States witnessed increased concerns over the effects of developmental activities on
environmental wellbeing.128
Although public participation in environmental issues
was not well articulated during this era, the rising levels of environmental awareness
laid the foundation for environmental justice activism. For instance, it was generally
observed that environment- related rules, regulations and practices were “out of
touch with public desires and had too many bad environmental decisions”.129
The United States is acclaimed as the pacesetter in developing EA legislation, with
the establishment of the first EA process in the National Environmental Policy Act
of 1969. Since then, many other countries have legislated for the practice on a
compulsory basis. 130
By about 1973, a number of countries such as Australia,
Canada and New Zealand had followed the United States example to introduce
national EA legislation. In the years that followed, regional cooperation for the
practice of EA started and by 1985, the European Commission Directive on EIA in
Member States had been adopted.131
This framework Directive formed a central
feature of the European EIA process and has since been amended thrice to bring it
into conformity with current EA practices.132
The practice of EA continued to develop with the establishment of an Operational
Directive on Environmental Assessment by the World Bank in 1989. EA became one
of the ten Safeguard Policies used in the World Bank to examine environmental risks
128
Refer to chapter 2, section 3 129
R Bullard, ‘Environmental Justice in the Twenty-first Century’ in R Bullard (ed.) The Quest for
Environmental Justice: Human Rights and the Politics of Pollution, 19-42 at 19-21. 130
Holder, Environmental Assessment, the Regulation of Decision- Making, 43- 44. 131
The full text of Council Directive 85/337/EEC on the Assessment of the Effects of Certain Public
and Private Projects on the Environment dated 27 June 1985 (as amended in 1997, 2003 and 2009) 132
In 1997, through Directive 97/11/EC to bring it in line with the Espoo Convention on EIA in a
Transboundary Context and to widen the scope of the EIA Directive by increasing the types of
projects it covered, Directive 2003/35/EC in 2003 to align its provisions on public participation with
the Aarhus Convention on public participation in decision-making and access to justice in
environmental matters and Directive 2009/31/EC in 2009, to amend Annexes I and II of the EIA
Directive.
113
and benefits arising from development activities funded by the Bank.133
Shortly after
this World Bank Directive, the 1991 Convention on EIA in a Transboundary Context
(‘Espoo Convention’) was adopted.134
This Convention sets out the obligations of
Parties towards assessing the environmental impact of certain activities at an early
stage of planning and lays down general obligations of States to notify and consult
each other on all major projects under consideration that are likely to have a
significant adverse environmental impact across boundaries.135
Owing to the large
number of States that have ratified this Convention, it can be argued that its
provisions are “persuasive norms” which can be adapted to enhance the practice of
EA.136
In 1992, the Rio Declaration on Environment and Development also proclaimed the
necessity for EA.137
In line with the focus of this thesis; the following section
discusses EIAs in more detail, explaining how it is relevant to the pursuit for
procedural environmental justice.
4.2. Meaning of environmental impact assessment (EIA)
One of the earliest definitions of EIA states that it is a process of examining the
environmental consequences of development actions in advance138
while the
International Association for Impact Assessment defines it as:-
133
World Bank, Operational Directive 4.01, the current version is available at
http://web.worldbank.org/WBSITE/EXTERNAL/PROJECTS/EXTPOLICIES/EXTOPMANUAL/0,,
contentMDK:20064724~menuPK:4564185~pagePK:64709096~piPK:64709108~theSitePK:502184,0
0.html (Accessed 18/03/2011) 134
The full text of the Espoo Convention is available at
http://live.unece.org/fileadmin/DAM/env/eia/documents/legaltexts/conventiontextenglish.pdf 135
Preamble, Convention on Environmental Impact Assessment in a Transboundary Context (Espoo,
1991) 136
S Marsden, 'Developing Approaches to Trans- Boundary Environmental Impact Asseement in
China: Cooperation through the Greater Tumen Initiative and in the Pearl River Delta Region',
Chinese Journal of International Law, 9/2 (2010), 393- 414 at 396. Marsden argues that “international
environmental agreements which are in force and apply to a large number of States are persuasive
norms.” The author cites the Espoo and Aarhus Conventions as examples of regional international
environmental agreements that are more likely to assume global influence. 137
Principles 17 and 19 of the Rio Declaration respectively state that “Environmental impact
assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have
a significant adverse impact on the environment and are subject to a decision of a competent national
authority” and “States shall provide prior and timely notification and relevant information to
potentially affected States on activities that may have a significant adverse transboundary
environmental effect and shall consult with those States at an early stage and in good faith.” 138
J Glasson, R Therivel, and A Chadwick, Starting Up: Early Stages- in Introduction to EIA
(London: Spon Press Taylor & Francis Group, 1999), 4.
114
The process of identifying, predicting, evaluating and mitigating the bio-
physical, social, and other relevant effects of development proposals
prior to major decisions being taken and commitments made.139
EIA depends on information from diverse sources in order to achieve these
objectives of identifying, predicting and mitigating adverse environmental effects.
This is done through an evaluation of the effects likely to arise from a major project
(or other action) which might significantly affect the natural and man-made
environment.140
The EIA process “provides a procedural framework” for sourcing the
relevant environmental information for achieving these objectives.141
As a process, it
is not primarily concerned with “regulating the substantive decision”, but rather the
process that leads to the environmental decision.142
The salient features of the European Commission Directive, the World Bank
Operational Directive, the Espoo Convention and the Rio Declaration, show that EIA
is not aimed at avoiding developmental projects that pose significant environmental
impact; but rather ensuring that these projects are carried out with the full awareness
of their possible environmental consequences.143
The EIA process generates a
thorough knowledge of the proposed project and discloses its “possible, probable or
certain effects” on the environment.144
The usefulness of EIA in sustainable development and other environmental matters
is significant. On the one hand, it can be argued that EIA can be held out as a tool for
sustainable development,145
that is to say, it is a way of integrating economic, social
139
International Association for Impact Assessment, 2009, 1 140
C Wood, Environmental Impact Assessment: A Comparative Review (New York: Longman,
1995), 1. 141
Holder, Environmental Assessment, the Regulation of Decision- Making, 5- 6. 142
Ibid 143
Wood, Environmental Impact Assessment: A Comparative Review, 3. 144
A Gilpin, Environmental Impact Assessment: Cutting Edge for the Twenty- First Century
(Cambridge: Cambridge University Press, 1995), 16. 145
Refer chapter 2, section 7; See also S. Jones et. al., 'Environmental Impact Assessment: Retrospect
and Prospect', Environmental Impact Assessment Review, 27 (2007), 287- 300 at 287. Jones states that
at present, EIAs are applied in more than 100 countries, and by all development banks and most
international aid agencies. Environmental Assessment (EA) has been institutionalised as an
instrument for integrating environment and development issues at all levels and for achieving
sustainable development. See also The World Bank, Operational Manual O.P 4.01 - Environmental
Assessment (1999).
115
and environmental considerations into decision-making.146
On the other hand,
sustainable development and EIA goals may be closely related but are not identical.
In this event, EIA cannot automatically be understood to be a tool for sustainable
development.147
Public participation, EIA and procedural environmental justice have been shown to
be interlinked throughout this thesis. According to Holder, EIA is the point at which
the law, environmental governance and regulation of decision- making meet.148
EIA
particularly contributes towards advancing direct citizen involvement in the
traditional environmental policy and decision-making processes.149
In a similar
argument, Yeater and Kurukulasuriya state that public participation, inter-sectoral
coordination and consideration of alternatives to specific development proposals are
the three fundamental mechanisms that define the success of an EIA process.150
This
chapter has argued that public participation is the basis upon which the aims of the
EIA process rest. The table below summarises the global developments in the
practice of EIA.
146
Tladi, Sustainable Development in International Law: An Analysis of Key Enviro- Economic
Instruments, 47. 147
George, 'Testing for Sustainable Development through Environmental Assessment', 176- 80. 148
Holder, Environmental Assessment, the Regulation of Decision- Making, 5. 149
J Nah- Yoon and K Stelljes, 'Enabling Environmental Justice: Assessment of Participatort Tools',
(Cambridge: Environmental Department, United Nations Institute for Training and Research, 2008b),
12. 150
Yeater Amd Kurukulasuriya, 'Environmental Impact Assessment Legislation in Developing
Countries', in S. Lin (ed.), UNEP's New Way Forward: Environmental Law and Sustainable
Development (Nairobi: UNEP, 1995), 258; Glazewski, Environmental Law in South Africa, 270.
116
Table 4.2: Key Stages in the Global Adoption of Environmental Impact
Assessment
Year/Period Key Milestone
Pre-1969 Consideration of the environmental consequences of projects is
limited. Mostly technical and economic aspects considered.
1969 Enactment of the National Environmental Policy Act (NEPA) in the
United States.
1973 and 1974 Canada, Australia and New Zealand are the first to adopt
environmental assessment procedures. Canada and New Zealand
establish administratively-based procedures, while Australia passes
environmental assessment legislation.
During 1970s Other countries, both in the industrial (e.g. France, Germany and
Ireland) and developing world (e.g. Philippines, Colombia and
Thailand), introduce formal or informal EIA procedures, or elements
thereof (e.g. requirements for impact statements as part of planning
applications for development approval). Also within this period, the
Organisation for Economic Cooperation and Development (OECD)
recommend that member states adopt EIA procedures.
1985 The European Community Directive (85/337/EEC) on EIA is passed,
stipulating minimum requirements for assessment procedures within
member states.
1989 The United Nations Environment Programme (UNEP) recommends
that member countries introduce EIA principles and procedures.
Environmental Assessment becomes a standard requirement for all
World Bank financed projects and other development banks and
donors introduce similar requirements. As a result of the need for
borrowing countries to comply with this, EA processes became widely
used in the developing world.
1991 The Espoo Convention on EIA, which requires the consideration of the
transboundary effects of development, is passed.
1992 Principle 17 of the Rio Declaration, signed at the Rio Earth Summit,
states that EIA will be introduced at the national level for proposed
activities that may have a negative impact on the environment and for
which national government approval is required. Also, capacity
building programmes are initiated by various multilateral and donor
agencies, promoting the further spread of environmental assessment
worldwide promoting the further spread of environmental assessment
worldwide. Generally, in the 1990s, there was a rapid growth in
environmental assessment training and cooperation activities.
1996 More than 100 countries have EIA systems.
1999 The World Bank updates its guidance on EIA.
2002 The Johannesburg Earth Summit is held. The Plan of Implementation
of the World Summit on Sustainable Development, which is the main
output of this Summit, states that all relevant authorities should be
encouraged to take sustainable development considerations into
account in decision-making through, inter alia, the use of
environmental impact assessment.
2007 At least 120 countries have EIA systems. (Adapted from Glasson, J, Therivel, R, and Chadwick, A (1999), Starting Up: Early Stages- In
Introduction to EIA (London: Spon Press Taylor & Francis Group)
117
4.3. Features of EIA process
It has been stated throughout this chapter that public participation is central to the
EIA process because it facilitates procedural environmental justice. When the form
of public participation adopted is inclusive and representative of the participants’
views, the resultant environmental decision is legitimised. This section examines the
features of the EIA process in order to show how public participation and procedural
environmental justice would be incorporated. Despite varying from one jurisdiction
to the other, the practical stages followed in the EIA process are generic and
internationally recognised.151
The way in which an EIA is carried out is not rigid: it
is a process comprising a series of steps illustrated as Figure 4.2:-
Figure 4.2: Generic EIA features
1. Project proposal
This is the preliminary stage where the developer gathers all the information relating
to the proposed development.
151
See generally CSIR (2003), 'EIA Project Management Manual: Practical Guide to Managing the
EIA Process', (Stellenbosch: CSIR Environmentek); B Sadler and M McCabe, (2002), 'UNEP EIA
Training Resource Manual', (Nairobi: UNEP).
1. Project proposal
2. Screening
3. Scoping 4. Prediction or
Mitigation
5. Reporting
6. Reviewing 7. Decision-
making
8. Implementation
118
2. Screening
This is the first substantive stage after the preparation, submission and consideration
of the project proposal. The purpose of screening is to determine whether or not a
project proposal requires a full-scale EIA and what the level of assessment should
be. Some countries use an initial assessment when there is uncertainty regarding the
scale of study required or where there is a small amount of information required to
take the decision, 152
while some others use a combination of practices.153
3. Scoping
Scoping focuses on selecting the relevant information to be included in the EIA and
therefore prescribes the nature and extent of the assessment by identifying issues that
are likely to be important during the EIA and eliminating those that are not.154
This
process is best carried out with the effective interaction of all the stakeholders in
order to identify key issues for investigation. In this light, scoping presents more
opportunities for participation by the wider public than screening which appears to
be restricted to those with the relevant technical knowledge. In order to be effective
however, scoping and screening must be carried out at the earliest opportunity and in
an open and inclusive manner.155
The nature and extent of community involvement
differs from one jurisdiction to the other, but is typical to hold what are known as
‘scoping meetings’.156
Ideally, scoping meetings should involve all the key players in
the proposed project.
152
UNEP, 'UNEP EIA Training Resource Manual', (Nairobi: UNEP, 2005); D Ngwenyama, 'EIA
Experience in Zambia: A Review of the Achievements and Outcomes of the EIA Process', SEA
Awareness Workshop (Lusaka, September 2008).; K Chapman and B Walmsley, 'Zambia', EIA in
Southern Africa (Windhoek: Southern African Institute for Environmental Assessment, 2003), 265-
97. 153
For example, both South Africa and Zambia adopt a combination of practices in EIA legislation. 154
Ibid. T Snell and R. Cowell, 'Scoping in Environmental Impact Assessment: Balancing Precaution
and Efficiency', Environmental Impact Assessment Review, 26 (2006), 359- 76 at 359- 367. 155
CSIR, 'EIA Project Management Manual: Practical Guide to Managing the EIA Process',
(Stellenbosch: CSIR Environmentek, 2003).; Glasson, Therivel, and Chadwick, Starting Up: Early
Stages- in Introduction to EIA; J. O. Kakonge, 'Environmental Impact Assessment (EIA) in Africa: A
Critical Review', Environmental Impact Assessment Review, 22 (2008), 163- 79; J Petts, 'Barriers to
Deliberative Participation in EIA: Learning from Waste Policies, Plans and Projects', Journal of
Environmental Assessment Policy and Management, 5/3 (2003), 269-93. 156
Snell and Cowell, 'Scoping in Environmental Impact Assessment: Balancing Precaution and
Efficiency', 360- 363.
119
4. Prediction and Mitigation
The objective of this phase is to identify how the activities of the proposed
development will impact on the various components of the environment. This
process is also referred to as ‘impact assessment’ in some literature and entails the
identification and analysis of impacts, as well as a prediction of the significance of
the impacts.157
Mitigation entails the identification of ways in which negative
impacts of the project can be avoided or minimised to limit costs, and ways in which
positive impacts can be enhanced to ensure maximum benefit. It is usual in some
practices to incorporate the ‘consideration of alternatives’ at this stage.158
The
consideration of alternatives where included, serves to inform the stakeholders of
alternative ways in which the proposed project might be implemented, if the
mitigation of adverse impacts is subsequently found inadequate.
5. Reporting
At the end of the processes enumerated above, an environmental impact statement
(EIS) is produced. It contains the integrated findings of the impact assessment and
mitigation exercise. This is the report that is submitted to regulatory authorities for
the final decision-making process.159
6. Reviewing
The environmental impact statement is submitted to the regulator and for review and
the authorities then decide whether it is of an acceptable standard or not; and whether
it is an accurate reflection of the findings. Ideally, this process must be open to
public participation.
157
UNEP, 'UNEP EIA Training Resource Manual', at 303; J Glasson et al., 'A Review of the
Evolution of Environmental Evaluation Procedures in South Africa', Journal of Environmental
Planning and Management, 40/4 (1997), 451- 63; Morrison- Saunders and Early, 'What Is Necessary
to Ensure Natural Justice in Environmental Impact Assessment Decision- Making'. 158
Petts, 'Barriers to Deliberative Participation in Eia: Learning from Waste Policies, Plans and
Projects'; Wood, Environmental Impact Assessment: A Comparative Review, 412- 17. 159
In the case of South Africa, the regulator is the Competent Authority in the provincial offices of
the Department of Environmental Affairs and Tourism, and in Zambia, the Zambia Environmental
Management Agency (ZEMA).
120
7. Decision-making
Decision-making is the final authorisation or rejection of the proposal.160
It is also
usual to approve an environmental impact statement subject to prescribed conditions.
8. Implementation
Where the proposed project is approved, a developer may be required to implement
an environmental management plan (EMP) for construction, operation and, in some
instances, decommissioning of the project.161
The EMP is a tool used to ensure that
the mitigation actions and the monitoring requirements recommended in the EIA are
systematically implemented throughout the phases of the project.
Having outlined the generic features of the EIA process, the following section
discusses the development of the Procedural Environmental Justice Model of
evaluation.
5. Developing a Procedural Environmental Justice Model
A review of the literature on public participation and environmental justice has
shown that to date, there is no universally accepted evaluative model for procedural
environmental justice. To fill this gap, this chapter has developed a Procedural
Environmental Justice Model (PEJM) which will be used to evaluate procedural
environmental justice in the EIA legislation of South Africa and Zambia. The PEJM
has been developed on the strength of the critical analysis in this chapter showing
that both public participation and procedural environmental justice are critical
considerations in EIA. The provisions of the Aarhus Convention are instructive in
ensuring that public participation leads to decisions that contribute to environmental
protection. Lee and Abbot argue that the three pillars of the Convention emphasise
160
Sadler and McCabe, 'UNEP EIA Training Resource Manual', 97. 161
ECZ, 'Environmental Impact Assessment Process in Zambia', The Enviro- Line (Lusaka:
Environmental Council of Zambia, 2007); R Marshall, J Arts, and A. Morrison- Saunders,
'International Principles for Best Practice Eia', Impact Assessment and Project Appraisal, 23/3 (2005),
175- 81.
121
that public participation can in fact improve environmental protection. In this vein,
the three pillars of the Convention can be conceived in the following manner:-
... The usefulness of access to information depends on the information being
understood by the lay public; participation depends partly on being able to
take part in dialogue; access to justice may depend on challenging technical
information on its own terms...162
This view reflects the practical usefulness of the three pillars of the Aarhus
Convention advanced in this thesis.
In more recent years, this view has been re- emphasised by the United Nations
Environment Programme (UNEP) through the issuance of guidelines for the
development of national legislation.163
The aim of these guidelines is to:-
Provide general guidance, if so requested, to States, primarily
developing countries, on promoting the effective implementation of their
commitments to Principle 10 of the 1992 Rio Declaration on
Environment and Development within the framework of their national
legislation and processes... The guidelines should not be perceived as
recommendations to amend national legislation or practice in cases
where existing legislation or practice provides for broader access to
information, more extensive public participation or wider access to
justice in environmental matters than follows from these guidelines...164
This shows that these guidelines, like the Aarhus Convention, are aimed at giving
effect to Principle 10 of the Rio Declaration165
in three key areas: access to
information, public participation and access to justice in environmental matters.
Accordingly, the PEJM framework has been derived from the three pillars of the
Aarhus Convention and focusses on evaluating the:-
1. Availability of environmental information relevant to the proposed
development;
162
Lee and Abbot, 'The Usual Suspects? Public Participation under the Aarhus Convention', 84- 86. 163
UNEP, 'Guidelines for the Development of National Legislation on Access to Information, Public
Participation and Access to Justice in Environmental Matters', (Nairobi: Governing Council of the
United Nations Environment Programme (UNEP), 2010), 1-6. 164
Ibid, 1. 165
The provisions of the Rio Declaration have been discussed in this chapter in section 3.4
122
2. Scope of participation provided for;
3. Form or nature of participation permitted and;
4. Availability of review and appeal mechanisms.
The PEJM is shown as Figure 4.3 below:-
Figure 4.3: A Procedural Environmental Justice Model
As can be seen above, the PEJM is illustrated as a clockwise circle. This means that
the availability of environmental information is the basis upon which the other three
categories rest. The discussion on the Aarhus Convention has shown that the
effectiveness of public participation is anchored on access to environmental
information.166
In like manner, the clockwise arrows in the PEJM show that access to
environmental information is the starting point in this evaluation. The illustration of
the other three categories continues with the clockwise movement to the scope and
form of participation, right through to the availability of review and appeal
mechanisms which is the final stage of evaluation.
166
The Aarhus Convention has been discussed in this chapter in section 3.4.1.
•Is public participation oral, in writing or both?
•If it is oral- how is it structured?
•If it is in writing, is it consultative?
• Who makes the final decision?
• Can it be challenged, if so on what grounds?
• What options are available in the event of a successful challenge?
•When is participation allowed in the EIA process?
•Who is allowed to participate?
•To whom is it made available?
•How is it made available?
•Is it freely available?
•When is it made available?
Availability of environmental
information
Scope of participation
Form of participation
Availability of review and
appeal mechanisms
123
Figure 4.3 illustrates that the four categories of the PEJM are individually and
collectively important in ensuring the effectiveness of public participation. Each
category will be evaluated by asking a number of questions. The answers to these
questions will be useful in assessing whether the EIA decision-making processes in
South Africa and Zambia incorporate key features of procedural environmental
justice. As shown in the preceding section, there are various approaches on how to
determine best practices in public participation. It is however evident from the
literature that there is no ‘ideal model of a one-size-fits-all’ approach to public
participation in environmental matters. The following section discusses the
categories of the PEJM:-
5.1. Availability of environmental information relating to the proposed
development
The availability of environmental information is a pre- requisite to ensuring effective
participatory arrangements in the EIA process. This information can relate to
environmental quality, environmental impacts on health and any other factors
incidental thereto.167
It is cardinal that there is a mutual agreement to provide, share
and use relevant environmental information at all stages of the process. According to
Holder, the effectiveness of EIA depends on information flow between and among
government officials, industry, environmentalists and the general public.168
The
timeous availability of information to a wide cross- section of participants is also a
pre- requisite for legitimacy of the final decision.169
It is therefore important to
evaluate the availability of environmental information to all participants in the EIA
process.
This category of evaluation will be analysed by asking the four questions shown in
Figure 4.4, which has been derived from the PEJM (shown as Figure 4.3 above). The
answers to these questions will provide an overall understanding on availability of
environmental information in the EIA process. Figure 4.4 is illustrated below:-
167
UNEP, 'Guidelines for the Development of National Legislation on Access to Information, Public
Participation and Access to Justice in Environmental Matters', 2. 168
Ibid. Holder, Environmental Assessment, the Regulation of Decision- Making, 6. 169
M Appelstrand, 'Participation and Societal Values: The Challenge for Lawmakers and Policy
Practitioners', Forest Policy and Economies, 4/4 (2002), 281- 298 at 289
124
Figure 4.4: Availability of environmental information
5.1.1. To whom is the environmental information made available?
In an attempt to ascertain who environmental information is made available to,
answers to some sub- questions are pertinent. Is information made available to
members of the public without them first disclosing an ‘interest’? Are all participants
given all the information or is there a process of non-disclosure to some sections of
the public? Are any exemptions/exclusions interpreted narrowly? Is there a
presumption in favour of disclosure? The overall assessment is whether
environmental information is widely available, and whether it has the effect of
enhancing the effectiveness of the participatory mechanisms.170
5.1.2. How is environmental information made available?
In order for environmental information to facilitate effective participation, it must be
comprehensible to those who wish to be involved in the decision- making process.
For instance, where technical information is not simplified in such a manner as to be
understood by lay participants, it does not serve any purpose, and will consequently
170
See generally M. Mason, 'Information Disclosure and Environmental Rights: The Aarhus
Convention', Global Environmental Politics, 10/3 (2010).
Availability of environmental
information
To whom is it made
available
?
How is it made
available
?
Is it freely made
availablle
?
When is it made
available
?
125
render the participation process ineffective. It is also important to consider whether
or not environmental information is readily accessible to members of the public. This
requires a consideration of the format in which the information is presented, for
example whether it is electronic or paper- based. Mutual willingness to share,
provide and use information among all the participants facilitates well- reasoned
participation in otherwise complex environmental matters, and enriches the final
decision.
5.1.3. Is environmental information freely available?
This question examines the possibility that there might be practical factors which
restrict the availability of environmental information in the EIA process. All relevant
information relating to the proposed development should be freely available to the
public. Where such information is wilfully withheld or given at a cost, it is likely to
be deemed unavailable, thereby reducing the efficiency of the subsequent steps of
public participation.
5.1.4. When is environmental information made available?
The stage at which information relevant to a development project is availed during
the EIA process is important because the timely provision of relevant information is
a precursor to participation in the EIA process. When information is availed in the
initial stages of the EIA, participants are given an opportunity to be well versed in
matters relating to the proposed development.
5.2. Scope of participation provided for in the environmental decision-making
process
The legitimacy171
of environmental decisions can be achieved by implementing
mechanisms that enable a significant number of people to effectively participate in
decision-making. The notion of effective participation in the environmental decision-
making process is however, vague and uncertain: participation by whom? An
understanding of how members of the public are drawn into participatory
mechanisms provides insight on how procedural environmental justice could work in
171
Legitimacy of environmental decisions has been discussed in this chapter in section 3.3
126
practice. Figure 4.5 is derived from the PEJM (Figure 4.3) and shows that the scope
of participation will be evaluated on the basis of two questions:-
Figure 4.5: Scope of participation
5.2.1. When is participation allowed in the EIA process?
It is obviously important that participatory mechanisms form an early part of the
decision- making process and at the very least, occur before the final decision is
reached. The stage at which public participation is permitted in the EIA process is
important because it determines whether participants are able to influence final
decisions. This consideration is also relevant in determining the legitimacy and
acceptability of the final decision.
5.2.2. Who is allowed to participate?
The broader the category of persons entitled to participate, the more informed the
final decision will be. Applicable legal and other regulatory provisions usually make
reference to categories of people who are eligible to participate in the EIA process.
Some refer to ‘the public concerned’, ‘interested parties’, interested and affected
parties’. The question of who is allowed to participate is important because it can
determine who is more likely to influence the final decision. When participation is
extended to a wider cross section of the community, it can be argued that there is
SCOPE OF PARTICIPATION
When is participation allowed in the EIA process
?
Who is allowed to participate
?
127
enhanced understanding of environmental matters arising in the context of the
proposed development.
5.3. Form of participation (How to participate)
The participatory mechanism used is important in assessing whether there is
effective participation. Whether the form of participation is written or oral, logistical
considerations of time, language, location, frequency of meetings must be evaluated.
These considerations can affect the effectiveness of public participation and
ultimately procedural fairness. The form of public participation is important because
it shows whether participants are engaged in discussions, bargaining and deliberative
democracy.172
Oral participatory mechanisms are more deliberative as they facilitate
a two-way flow of views, and are therefore more preferable in the EIA process.
From the EIA perspective in China, Zhao argues that the real impact of legal
provisions on participation in practice is limited owing to:-
(a) Significant power imbalance among project proponents, EIA
institutions and the public;
(b) Frequent unequal treatment of different categories of ‘the public’ in
the consultation process; and
(c) Weak voice of environmental NGOs.173
This observation can be used to evaluate whether participants in South Africa and
Zambia, through their oral or written comments, are able to influence final EIA
decisions.
The form of participation category of the PEJM will be discussed by seeking
answers to three questions. These questions are illustrated in Figure 4.6 which has
been derived from the PEJM (shown as Figure 4.3):-
172
L. A Maguire and E. A Lind, 'Public Participation in Environmental Decisions: Stakeholders,
Authorities and Procedural Justice', International Journal of Global Environmental Issues, 3/2 (2003),
133- 148. 173
Y Zhao, 'Public Participation in China's Eia Regime', Journal of Environmental Law, 22/1 (2010),
89- 123 at 115.
128
Figure 4.6: Form of participation
5.3.1. Is public participation oral, in writing or both?
Depending on the proposed mode of participation that is legislated for, it is
important to ascertain that it has been implemented in practice. Public participation
can involve anything from questionnaire surveys, consultation of experts, seminars,
discussion forums and public hearings. It is widely agreed though, that public
meetings allow for more deliberative engagements. As shown in this chapter,
deliberative participation is more preferable because it can contribute to ‘problem-
solving’.174
5.3.2. If it is oral- how is it structured?
Was there prior publicity of the meeting(s)? Where and how was the meeting held?
This question assesses whether participants are given any prior notice to attend
public participation initiatives. Participants who receive prior notice are more likely
to have a chance to prepare adequately for the type for public participation sessions,
more so if it is an interactive meeting. The venue for public participation meetings is
174
This has been discussed earlier in this chapter in sections 3.2 and 3.3
FORM OF PARTICIPATION
Is public participation oral, in writing or both
?
If it is oral- how is it structured
?
If it is in writing- is it consultative
?
129
critical in ensuring the success of a consultative and deliberative process. A venue
can sometimes be out of reach or intimidating to some participants, thereby barring
them from attendance and participation. The language used in the deliberations is
also important. When the majority of stakeholders speak a certain language it is only
reasonable that the consultations are held in that language or at minimum, translation
must be provided into a more widely used language.
5.3.3. If it is in writing- is it consultative?
In order to show inclusiveness in the EIA process, comments by participants must be
included in the deliberations and must inform the final decision. The public should
be seen to have had a decisional, not just consultative role. The EIA process is
usually guided by statutory and regulatory provisions relating to public participation.
These provisions set minimum standards for implementing EIA and these must be
adhered to. In practice however, some modifications are made to legal and regulatory
provisions and ideally these must not have the effect of watering down public
participation. Where the participatory process has been inclusive from the initial
stages, the input of participants is included in the final decision.
5.4. Availability of mechanisms for challenging outcomes
In order to enhance transparency and legitimacy of environmental decisions, the
public must have rights to review and/or appeal. Review processes ensure that any
shortcomings in the decision- making process are resolved administratively.
Interested and affected members of the public should also have the right to appeal to
a higher authority. The Aarhus Convention provides that access to justice shall be
“fair, equitable, timely and not prohibitively expensive”.175
In practice however,
quasi- judicial and judicial processes can be slow, time- consuming and expensive,176
thereby being reflective of the age old adage of ‘wheels of justice’ turning slowly.
The availability of mechanisms for challenging outcomes of the EIA process is
discussed from two perspectives: 1) can the final decision be challenged and if so,
how; and 2) what options are available in the event of successfully challenging the
final decision. Figure 4.7 shows the questions that are asked in evaluating this
category of the PEJM:-
175
Article 9 (4) 176
Lee and Abbot, 'The Usual Suspects? Public Participation under the Aarhus Convention', 103
130
Figure 4.7: Availability of review and appeal mechanisms
5.4.1. Can the final decision be challenged, and if so on what grounds?
This question evaluates whether the final EIA decision can be challenged, and if so,
the grounds that can be used. The sub questions for consideration in this category
relate to whether a decision can be challenged on account of procedural or
substantive shortcomings or both.177
It will also be critically evaluated, whether
participants are restricted in any way from challenging final EIA decisions.
5.4.2. What options are available in the event of a successful challenge?
One aspect of the Aarhus Convention that is relevant in the evaluation of review and
appeal mechanisms in EIA legislation is the availability of remedies. In this vein,
Lee & Abbot argue in the context of the UK that it is:-
.... debatable whether the judicial review procedure complies with the
remainder of Article 9 (4) which requires that the procedures shall
provide adequate and effective remedies, including injunctive relief as
appropriate.178
177
Article 9(2) (b) of the Aarhus Convention provides for ensuring access to a review procedure “to
challenge the substantive and procedural legality of any decision, act or omission...” 178
Lee and Abbot, 'The Usual Suspects? Public Participation under the Aarhus Convention', 103.
AVAILABILITY OF REVIEW
AND APPEAL MECHANISMS
Can the final decision be
challenged, and if so on what grounds
?
What options are available in the
event of a successful challenge
?
131
This quotation shows that there is a possibility that legal provisions may be at
variance with the practices in the day to day running of public participation
initiatives. This observation makes it important to assess whether there are legally
prescribed remedies to shortcomings in the EIA decision- making process and
whether these can be implemented in practice.
In concluding this section, it must be emphasised that the four categories of the
PEJM outlined above are inter- related. For instance, if the first category of access to
or availability of environmental information is not satisfactorily addressed, the
subsequent categories of evaluation would be adversely affected.
6. Conclusion
Public participation in environmental impact assessments (EIAs) is an important
feature for procedural environmental justice. In this chapter, procedural
environmental justice has been defined in terms of its relationship with effective
public participation. The EIA process is used to predict and plan for environmental
impacts that arise from development activities. In this vein, the EIA is the most ideal
form of EA for evaluating procedural environmental justice; it combines
environmental justice concerns, the impact of development activities, their
distribution and how these shortcomings can be addressed through effective public
participation.
The most important benefit for effective and meaningful public participation is that it
contributes towards achieving substantive environmental justice. The four categories
of evaluation embodied in the PEJM, when addressed and implemented in the EIA
process can foster procedural environmental justice. It must however be
acknowledged that even when EIA legislation provides for an effective and
meaningful public participation process, it may nonetheless be fraught with
shortcomings and difficulties, which can make procedural environmental justice
difficult to attain in practice. In this regard, it can be argued that most shortcomings
in the public participation process emanate from participants’ lack of confidence in
the participatory processes. These shortcomings can be addressed by emphasising
132
legitimacy, procedural fairness and equality as achievable goals for public
participation in environmental decision- making.
133
CHAPTER FIVE
PROCEDURAL ENVIRONMENTAL JUSTICE IN THE EIA
PROCESS IN SOUTH AFRICA
1. Introduction
This chapter critically evaluates the EIA legal framework in South Africa with a
view to assessing its procedural environmental justice content. The Procedural
Environmental Justice Model (PEJM) developed in the previous chapter will be used
for this evaluation. The PEJM evaluates four categories of the EIA process in South
Africa: availability of environmental information relating to proposed developments;
who participates in environmental decision-making; the form of public participation
and the availability of mechanisms for challenging outcomes of the EIA process. The
PEJM is re- produced below:-
The PEJM framework is specifically tailored for evaluating EIA legislation. It has
been shown in the previous chapter that EIA is primarily a procedural mechanism
•Is public participation oral, in writing or both?
•If it is oral- how is it structured?
•If it is in writing, is it consultative?
• Who makes the final decision?
• Can it be challenged, if so on what grounds?
• What options are available in the event of a successful challenge?
•When is participation allowed in the EIA process?
•Who is allowed to participate?
•To whom is it made available?
•How is it made available?
•Is it freely available?
•When is it made available?
Availability of environmental
information
Scope of participation
Form of participation
Availability of review and
appeal mechanisms
134
and as such, it provides an ideal mechanism for evaluating procedural environmental
justice.
The Republic of South Africa has been identified for the purpose of this evaluation
for three reasons: its unique socio- economic standing as an ‘upper- middle income,
developing’ sub- Saharan Africa country,1 vantage geographical location
2 and
apartheid political history.3 These three factors have given rise to specific
environmental challenges in South Africa, some of which have had significant
implications for procedural environmental justice generally, and in the EIA process
in particular. Procedural environmental justice has developed considerably in post-
apartheid South Africa. One factor that has increased citizens’ participatory rights is
that successive post-apartheid governments have enacted legislation to “spearhead
empowerment, improve integration and democratisation across environmental
issues”.4
Section 2 starts by outlining the sources of environmental law before proceeding to
Section 3 which critically discusses the evolution of the EIA process and its
1 L. Leonard and M. Pelling, 'Mobilisation and Protest: Environmental Justice in Durban, South
Africa', Local Environment, 15/2 (2010), 137- 31 at 137; IMF, 'World Economic Outlook: Tensions
from the Two Speed Recovery- Unemployment, Communities and Capital Flows', at 169- 171; See
also chapter 1, section 1 2 South Africa is a country that is rich in biodiversity; ranking as the third most biologically diverse
country in the world, with a large number of terrestrial and marine species. See generally Wcmc,
'Development of a National Biodiversity Index', (World Conservation Monitoring Centre, 1992); M
Kidd, Environmental Law (Durban: Juta Law 2008); Glazewski, Environmental Law in South Africa;
R. F Fuggle and M. A Rabie, Environmental Management in South Africa (Cape Town: Juta Law,
1996); M Kidd, Environmental Law (Cape Town: Juta & Company, 2011); P Bond, Unsustainable
South Africa: Environment, Development and Social Protest (Pietermaritzburg: Univeristy of Natal
Press, 2002); S Dover, ‘Introduction’ in S Dover (ed.) South Africa's Environmental History: Cases
and Comparisons, (Cape Town: David Philip, 2002a). 3 Pillay argues from the public sector management perspective that as a result of apartheid, South
Africans were faced with a daunting challenge to transform the country. There was need to address
the deeply entrenched poverty affecting millions of people, “a racially polarised society (in terms of
wealth distribution and opportunities), and a brutalised society with intolerably high levels of
violence, corruption, social disintegration, and moral decay.” S. Pillay, 'Corruption- the Challenge to
Good Governance: A South African Perspective', International Journal of Public Sector
Management, 17/7 (2004), 586- 605 at 588; See also D. Scott and C. Barnett, 'Something in the Air:
Civic Science and Contentious Environmental Politics in Post-Apartheid South Africa', Geoforum,
(2009), 373- 82.;S Terreblanche, A History of Inequality in South Africa, 1652- 2002
(Pietermaritzburg: University of Natal Press, 2002); M Swiling et. al., Apartheid City in Transition
(Cape Town: Oxford University Press, 1991).; D. Van Vuuren, Change in South Africa (Durban:
Butterworths, 1983). 4 E. Van Huyssteen, 'Interdependence of Plots, Processes and Partners: A Case Study of Integrated
Development Planning and Local Governance in South Africa', Planning Research 2000 Conference
(London: Planning Research 2000 Conference, London, 2000), 4-5, 10.
135
supportive legislative framework in South Africa. An assessment of the detailed EIA
participatory features is provided in Section 4, and in line with the aim of this
chapter, Section 5 uses the PEJM to critically evaluate the current EIA legal
framework. The Constitution of the Republic of South Africa plays an important role
in environmental governance. Section 6 will therefore appraise the constitutional
environmental right, together with other constitutional provisions, with a view to
establishing their effect on the statute- based EIA process. An outline of the sources
of environmental law in South Africa is provided below.
2. Sources of environmental law in South Africa
This section discusses the sources of environmental law in South Africa in order to
aid the understanding of the EIA legislative framework. South African
environmental law can be traced back to conservation statutes promulgated as early
as the sixteenth century.5 In present day South Africa, environmental law is an
amalgam of legal provisions drawn from several sources, namely international law,
common law, the Constitution, statute law and African customary law.6
The first democratic election of 1994 was the catalyst for fundamental changes to
South Africa’s legislative, policy and institutional framework. The post-apartheid era
has seen innovative legislation enacted and perceptions of the “environment” being
redefined to:-
...include the working and living space of black South Africans and
environmental law and policy being accepted as akin to other
democratic and anti-apartheid objectives.7
The EIA process is singled out for contribution towards redressing ‘apartheid
wrongs’ or the ‘injustices of the past.’ 8 Apartheid has had telling effects across the
5 Fuggle and Rabie, Environmental Concerns in South Africa: Technical and Legal Perspectives at
13- 25; Kidd, Environmental Law. 6 A. Rabie, 'Strategies for the Implementation of Environmental Impact Assessment in South Africa',
South African Public Law, (1976), 18- 33 at 19; Glazewski, Environmental Law in South Africa, 12-
14; Kidd, Environmental Law. 7 D. A. Macdonald, 'Three Steps Forward, Two Steps Back: Ideology and Urban Ecology in South
Africa', Review of African Political Economy, 75/25 (1998), 73- 88 at 73. 8 The detailed discussion of apartheid as a political ideology is beyond the scope of this thesis; suffice
to mention that apartheid is an ideology based on isolating members of a similar racial descent with
shared common history, culture and destiny. According to de Beer, white supremacy meant that
136
environmental sphere of South Africa owing to its defining characterisation of
maximising economic development in South Africa for the sake of white prosperity
and for the material protection of white supremacy.9 During the apartheid era, non-
white South Africans were alienated from participation in many issues. For instance,
most environmental issues were considered white and suburban. Environmental law
and policy was used as an explicit tool of racial oppression.10
It is clear that during
the apartheid era, procedural environmental justice was flawed because the rights to
free participation and due process of environmental law were not guaranteed to
everyone.
South Africa is bound by international environmental law. In this vein, the South
African Constitution formalises international law as an important aspect of South
African domestic law. This implies that recognised principles of international
environmental law such as sustainable development and EIA are part of the South
African environmental law framework. International environmental law is therefore
an important basis for assessing procedural environmental justice in South Africa.
African customary law is another acknowledged conventional source of
environmental law in South Africa.
The hierarchical framework of South African national law means that the
Constitution is supreme, and consequently an important source of environmental law
in South Africa.11
The Constitution provides for the general administration of
environmental law by setting out the framework for the Legislature, Executive and
Judiciary.12
It is also important because it enshrines the right of all citizens to a clean
and healthy environment.13
According to Kotze and du Plessis, the constitutional
environmental right is the basis on which the present South African environmental
“white towns and cities be created as orderly white islands in Africa, uncorrupted by the lower
civilization and unhygienic standards of black Africans.” This in effect resulted in conditions of
extreme poverty, disorder, demoralisation and numerous other environmental disadvantages in the
“black islands”. C. De Beer, The South African Disease, Apartheid Health and Health Sciences
(London: Catholic Institute for International Relations, 1986). For a detailed understanding of
Apartheid refer to H Giliomee and L Schlemmer, From Apartheid to Nation Building (Oxford:
Oxford University Press, 1989). 9 Ibid. Giliomee and Schlemmer, From Apartheid to Nation Building at iv; Van Vuuren, Change in
South Africa, 18. 10
Macdonald, 'Environmental Racism and Neoliberal Disorder in South Africa', 257. 11
Glazewski, Environmental Law in South Africa, 14- 15. 12
Section 165 in Chapter 8 of the Constitution of South Africa, Act No. 1 of 1996 13
Section 24 of the Constitution of the Republic of South Africa; Refer to section 6
137
law framework rests; it is the “rationale behind, justification for... and impetus for
environmental law and governance in South Africa”.14
South African environmental legislation is contained in a plethora of statutes and
related regulations which can be categorised as pollution control, waste management
and conservation of biodiversity and natural resources. The National Environment
Management Act 107 of 1998 (hereinafter referred to as ‘NEMA’) is often singled
out as an umbrella piece of environmental legislation.15
It endeavours to establish an
integrated environmental management (IEM) framework aimed at transforming and
coordinating diverse and fragmented sectors of the environment. NEMA also
explicitly lists social and environmental justice as guiding principles in
environmental management so as to redress social and environmental injustices of
the previous regime.16
Environmental issues have increasingly become an important consideration in the
lives of most indigenous South Africans in the past few years. There is growing
concern about exposure to pollution, either in the home or workplace. Yet, a
significant number of indigenous South Africans are continually bearing the brunt of
environmental problems.17
It therefore becomes important to analyse whether all
South Africans have access to procedural fairness in the form of being allowed to
voice concerns over developments that are taking place in their homelands.
14
L. J Kotze and A. Du Plessis, 'Some Brief Observations on Fifteen Years of Environmental Rights
Jurispridence in South Africa', Journal of Court Innovation, 3/1 (2010), 157- 76 at 166; See also C
Gearty, 'Do Human Rights Help or Hinder Environmental Protection?', Journal of Human Rights and
the Environment, 1/1 (2010), 7- 22. Gearty weighs the importance of human rights in the struggle for
environmental protection and queries the importance of environmental protection to human wellbeing.
Gearty concludes that the solution lies in emphasising mutual reciprocity between environmental and
human rights movements, especially in the wake of the climate change debate. 15
W Du Plessis and J. Nel, 'An Evaluation of Nema Based on a Generic Framework for
Environmental Framework Legislation', South African Journal of Environmental Law and Policy, 8
(2001), 1 at 35. See also footnote 19 below. 16
Section 2 (4) 17
F. Hoosen, 'An Investigation into the Role of Public Participation in Achieving Social Justice: A
Case Study of Eias Undertaken (under Old and New Regulations) in South Durban', (Johannesburg,
2010); Z Patel, 'Rethinking Sustainable Development in the Post-Apartheid Reconstruction of South
Africa', Local Environment, 5/4 (2000), 383- 99; D. A. Macdonald, Environmental Justice in South
Africa (Athens: Ohio University Press, 2002b).
138
With the understanding of the sources and hierarchical framework of environmental
law in South Africa in mind, the following section discusses EIA law and policy in
South Africa.
3. EIA in South Africa
The EIA process in South Africa is hailed by many environmental practitioners as an
integrative and holistic tool that concurrently addresses social, economic and
environmental or ecological issues.18
EIA is an important element of the integrated
environmental management (IEM)19
approach practiced in South Africa. The need
for IEM in South Africa arose from international obligations to observe
environmental standards that were being advanced at the time through the
Brundtland Report and later Agenda 21.20
Integrated Environmental Management is
defined in South African policy as:-
A philosophy that prescribes a code of practice for ensuring that
environmental considerations are fully integrated into all stages of the
development and decision-making process. The IEM philosophy (and
principles) is interpreted as applying to the planning, assessment,
implementation and management of any proposal (project, plan,
programme or policy) or activity- at local, national and international
level-that has a potentially significant effect on the environment.21
Further, South African environmental policy defines EIA22
as:-
A public process that is used to identify, predict and assess the potential
environmental impacts of a proposed project on the environment. The
EIA is used to inform decision-making.23
18
T Murombo, 'Beyond Public Participation: The Disjuncture between South Africa's Environmental
Impact Assessment (EIA) Law and Sustainable Development', Potchefstroom Electronic Law
Journal, 11/3 (2008), 2. 19
The term IEM may refer to the stand-alone process of environmental impact assessment, although
IEM is better understood in its more literal sense of providing a broader “way of thinking”, which has
evolved into a set of underlying principles and a whole suite of environmental assessment and
management tools that are aimed at promoting sustainable development EIA is a common IEM tool in
South Africa. Overview of Integrated Environmental Management, Integrated Environmental
Management, Information Series 0, Department of Environmental Affairs and Tourism, 2004 20
Gerber, 'Environmental Impact Assessment, Integrated Development Planning and the Pursuit of
Sustainable Development in South Africa: A Critical Reflection of the Philosophy of Alternatives', at
37. 21
Overview of Integrated Environmental Management, Integrated Environmental Management,
Information Series 0, Department of Environmental Affairs and Tourism, 2004, 18 22
Refer to chapter 4, section 4 23
Scoping, Integrated Environmental Management, Information Series 2 Department of
Environmental Affairs and Tourism, Republic of South Africa, 2002, 10.
139
The practice of EIAs is inherently a “public” process that informs the environmental
decision-making. This means that the practice of EIA is dependent on the
involvement and participation of several individuals in a community. This
underscores the reasons for assessing the public participation provisions of the EIA
process in South Africa and whether it is implemented in a manner that promotes
procedural justice. In order to have an understanding of how the practice of EIA has
evolved the following section discusses the EIA legal provisions under the National
Environmental Management Act (NEMA).
3.1. The evolution of EIA under the National Environmental Management Act
(NEMA)
It has been noted in section 2 that South African environmental law can be traced
back to as early as the sixteenth century.24
The history of practising EIA in South
Africa however, dates back almost four decades ago when it was practiced on a
voluntary basis. 25
According to Kidd, mandatory statutory requirements enforcing EIA were only
effected in South Africa in 199726
through the EIA regulations under the
Environmental Conservation Act No. 73 of 1989 (ECA).27
These were subsequently
repealed by the 1998 NEMA regulations. In 2006, new EIA regulations were
promulgated but these have since been repealed by the 2010 EIA regulations.
The current EIA regulations came into effect in 2010, marking the start of the
official implementation process of a new EIA regime in South Africa. The EIA
24
Refer to footnote 5 above 25
Evidence suggests that voluntary undertaking of EIA in South Africa commenced as early as 1971
just after it was legislated for in the United States. R Paschke and J. Glazewski, 'Ex Post Facto
Authorisation in South African Environmental Assessment Legislation: A Critical Review',
Potchefstroom Electronic Law Journal, (2006), 1; Fuggle and Rabie, Environmental Concerns in
South Africa: Technical and Legal Perspectives; P. D. Glavovic, 'The Need for Legislative Adoption
of a Conservation Ethic', Comparative International Law Journal of Southern Africa, 17 (1984), 144-
52 at 144- 52; Rabie, 'Strategies for the Implementation of Environmental Impact Assessment in
South Africa'. 26
M Kidd (2011), Environmental Law (Cape Town: Juta & Company), 235- 236. 27
Regulation 1182, The Identification under Section 21 of Activities which may have a Substantial
Detrimental Effect on the Environment; 1183 Regulations Regarding Activities Identified under
Section 21 (1); 1184 Designation of the Competent Authority who may issue Authorization of the
undertaking of Identified Activities in Government Gazette No. 18261 dated 5 September 1997.
140
legislative framework discussed in this section is current as at August 2010.28
NEMA lays out the EIA legislative framework in South Africa.29
Chapter five of
NEMA entitled, ‘Environmental Authorizations’ makes provision for carrying out
the EIA process in South Africa.30
Section 24 (1) of NEMA provides that:-
In order to give effect to the general objectives of integrated
environmental management laid down in this chapter, the potential
consequences for or impacts on the environment of listed activities or
specified activities must be considered, investigated, assessed and
reported on to the competent authority or the Minister of Minerals and
Energy, as the case may be, except in respect of those activities that may
commence without having to obtain an environmental authorization in
terms of this Act.
The term ‘activities,’ is used to refer to “policies, programmes, processes, plans and
projects.”31
This thesis specifically uses the term ‘activities’ to refer to ‘projects’.
Listed activities require environmental authorization from the competent authority
before commencement.32
If the project proponent is proposing the construction of a
listed activity, it is a requirement that the proposed activity be subjected to an EIA.33
Further to the foregoing, the Minister of Environment and Tourism in exercise of the
powers to prescribe and identify ‘listed and specified activities’ granted under
section 24 (2) of NEMA published new Listing Notices on the 1st July 2010 which
took effect on the 2nd
August 2010. These Notices are referred to as Listing Notices
1, 2 and 3 of 2010.34
28
The last amendments to the principal Act, the National Environmental Management Act (NEMA)
Act 107 of 1998 took effect on 1st May 2009.
29 Some sectoral environmental laws also provide for EIA. However, the provisions of NEMA take
precedence. Some notable sectoral legislation include the Development Facilitation Act 67 of 1995,
the Minerals Act 50 of 1991, the National Water Act 36 of 1998 and the Marine Living Resources Act
18 of 1998 30
Section 24 of the National Environmental Management Act, Act 107 of 1998 as amended by
Section 2 of Amendment Act No. 62 of 2008 31
Section 24 (1) 32
DEAT, 2005, The Competent Authority for administration of EIA is the Minister for the
Department of Water and Environmental Affairs (DWEA) and the nine provincial departments of
environmental affairs, although in most cases these powers are delegated to an official in the relevant
department. 33
The term “listed activities” refers to “activities which may not commence without environmental
authorization from the competent authority” and also includes “activities that may commence without
an environmental authorization but which must comply with prescribed norms and standards.” Listed
activities are identified and prescribed in Listing Notices issued by the Minister of Environmental
Affairs and Tourism pursuant to section 24 (2) of NEMA. Refer to Section 24 (2) (a)- (d) of NEMA
(as amended) 34
These Listing Notices are contained in Regulation Numbers R.544, R. 545 and R. 546 issued in
Government Gazette No.33306 dated 18th
June 2010. Prior to 2nd
August 2010, EIA Regulations 386
141
The major changes that have been introduced in the 2010 NEMA EIA Regulations
have had the effect of streamlining the EIA process. Under the previous system, it
was argued that “the EIA administrative system was overburdened by large numbers
of applications associated with insignificant projects.”35
The new (2010) regime has
streamlined the EIA process by ensuring that some activities or projects that are
considered miniscule and pose no adverse impacts on the environment are exempted
from the need for environmental authorization through the EIA process. For
example, the construction of lawns and other sporting facilities within specified
thresholds, the decommissioning of dams, and the re-commissioning of facilities
have been removed from the new Listing Notices.36
The current NEMA provisions read together with the EIA Regulations emphasise the
importance of implementing all provisions fostering public participation in the EIA
process. In so doing, the 2010 NEMA EIA regulations have addressed some of the
strongest criticisms that were levelled against the pre- 2010 EIA public participation
process. For instance, prior to the enactment of the 2010 NEMA EIA regulations, it
was argued that there was “inadequate participation in the project design and
suggestion of alternatives.”37
This has been addressed in the current EIA regulations
by Regulation 56 which entitles registered interested and affected parties to provide
written comments on:-
... ALL written submissions, including draft reports made to the competent
authority by the applicant or the EAP managing an application, and to
bring to the attention of the competent authority any issues which that party
believes may be of significance to the consideration of the application...38
(Original emphasis)
This provision can in practice encourage public participation at all stages of the EIA.
This chapter will evaluate this provision more closely in order to show whether all
and 387 of 2006 provided for the ‘listed’ and ‘specified’ activities’ which required a basic assessment
and scoping and EIA respectively. These Regulations have since been repealed by the 2010 EIA
Regulations; Regulation No.543 of the National Environmental Management Act, 1998 (Act No.107
of 1998), Environmental Impact Assessment Regulations, 2010 35
Kidd, Environmental Law, 248- 251. 36
Refer to Listing Notice 1, 544 in GG 33306 dated 18 June 2010. 37
Z Patel, 'Tools and Trade- Offs in Environmental Decision- Making', in M Donk (ed.),
Consolidating Developmental Local Government (Cape Town: University of Cape Town Press,
2008). 38
Regulation 56 (1); See also Regulation 56 (2) (a)- (h) which details the applicable reports as basic
assessment reports, scoping reports, specialist reports and reports on specialised processes,
environmental impact assessment reports, draft environmental management programmes and any
amended or re submitted versions thereto.
142
written submissions and reports relating to an EIA are subjected to public
comment.39
Further, in the current EIA regulations, no public participation initiatives can be
conducted in the period between 15 December and 2 January of every year.40
This
was a response to representations made during the consultative process to amend the
2006 NEMA EIA regulations. These representations were that public participation
initiatives should not be carried out during certain times of the year because the
participation of most interested and affected parties could then not be guaranteed.41
This requirement can only be waived in exceptional circumstances agreed to by the
competent authority.42
This provision serves to ensure that any person who may
ordinarily leave their usual area of residence during this period is not disadvantaged
from participating.
Section 24 M (1) of NEMA is another provision that emphasises the importance of
public participation in the EIA process. While it empowers the Minister to grant
exemptions from the application of any provision of NEMA, further provision is
made that, provided an environmental authorisation is required, no applicant can be
exempted from three obligations43
: co- operating and co- coordinating with the
authorities, adhering to all the general NEMA objectives44
and principles; 45
and
39
Refer to section 5.2.1 40
Regulation 54 41
South Africa has 12 public holidays in a year and 6 of which fall in the period between 15
December and 2 January. This reduces time for organising meaningful public participation initiatives.
Refer to the Public Holidays Act (Act No. 36 of 1994). 42
Regulation 54 (8); See also The Department of Environmental Affairs and Development Planning,
EIA Guideline and Information Document Series, Draft Guideline on Exemption Application, August
2010. 43
Section 24 (4) (a) 44
Section 23 of NEMA states these objectives as:
1. Promoting the integration of the principles of environmental management;
2. Identifying, predicting and evaluating the actual and potential impact on the environment,
socioeconomic conditions and cultural heritage, the risks and consequences and alternatives
and options for mitigation of activities, with a view to minimising negative impacts,
maximising benefits, and promoting compliance with the principles of environmental ;
3. Ensuring that the effects of activities on the environment receive adequate consideration
before actions are taken in connection with them;
4. Ensuring adequate and appropriate opportunity for public participation in decisions that may
affect the environment;
5. Ensuring the consideration of environmental attributes in management and decision-making
which may have a significant effect on the environment; and
6. Identifying and employing the modes of environmental management best suited to ensuring
that a particular activity is pursued in accordance with the principles of environmental
management. 45
The NEMA principles are set out in Section 2, NEMA.
143
ensuring that there is investigation of impacts, and assessment of the significance of
those impacts. The import of this provision is that public participation is the
foundation for EIA and since it is a legal requirement, strict observance is necessary.
It is also noteworthy that an applicant cannot be exempted from ensuring that public
information is accessible by all interested and affected parties during an EIA process
and is obliged to give the public reasonable opportunity to participate.46
As
emphasised in this thesis, access to information during the EIA process is an
important feature which underscores the extent to which the public can make
meaningful decisions and consequently has implications for procedural
environmental justice.47
Most of these provisions were not in existence prior the
2010 NEMA EIA regulations. It can therefore be argued that these regulations
signify an important step towards a more efficient, effective and streamlined EIA
system in South Africa.48
In terms of NEMA, EIA is meant to:-
Provide the competent authority with adequate information to make
decisions which ensure that activities which may impact negatively on
the environment to an unacceptable degree are not authorized, and that
activities which are authorized are undertaken in such a manner that the
environmental impacts are managed to acceptable levels.49
In more specific terms, the current regulations oblige project proponents to always
subject any listed activity to either the basic assessment or the scoping and
environmental impact report process, depending on the nature of the listed activity.50
A basic assessment is applied to activities that are considered less likely to have
significant environmental impacts. The basic assessment report is more concise,
although these assessments still require public notice and participation, consideration
of the potential environmental impacts of the activity, assessment of possible
46
Section 24 (4) (a) (v) 47
Refer to chapter 4 generally and to this chapter, section 5.1 48
DEAT, 'Press Release', (Pretoria: Department of Environment and Tourism, Government of South
Africa, 2010). 49
DEA & DP, 'Information Document on the Guidelines, Policies and Decision- Making Instruments
Relevant to Eia, Applications in the Western Cape', (Cape Town: Department of Environmental
Affairs and Development Planning, 2011), 7. 50
Regulations 26- 35
144
mitigation measures, and an assessment of whether there are any significant issues or
impacts that might require further investigation.51
The more thorough scoping and
environmental impact reporting process is required for activities that are likely to
have significant impacts that cannot be easily predicted. This process culminates in
the preparation and submission of a full EIA report including a draft environmental
management plan to the competent authority.52
The final decision to either grant or
refuse environmental authorisation is made by the competent authority.
4. Overview of the EIA process
This section outlines the participatory provisions of the EIA process. There are
basically two types of environmental assessments that may be sought under NEMA:
basic assessment or scoping and EIA.53
These are two different processes: the
complexity of the proposed development/activity determines which process will be
applicable. First, listed activities require a basic assessment because they are
generally perceived as “easily foreseeable, miniscule and manageable and not likely
to have significant environmental impact.”54
Secondly, specified activities require
scoping and EIA due to their being “complex and likely to have significant or
unforeseeable impacts on the environment.”55
The scoping and EIA process in South Africa involves screening, scoping, specialist
studies, integration and report writing, decision-making and project
implementation,56
as illustrated in Figure 5.1:-
51
Regulations 25 52
Regulation 34 53
See also footnote 50. 54
Murombo, 'Beyond Public Participation: The Disjuncture between South Africa's Environmental
Impact Assessment (EIA) Law and Sustainable Development', 13. 55
Ibid 56
DEA/DP, 'Guideline on Public Participation, Eia Guideline and Information Document Series',
(Cape Town: Western Cape Department of Environmental Affairs & Development Planning
(DEA&DP, 2011); CSIR, 'EIA Project Management Manual: Practical Guide to Managing the EIA
Process'.
145
Figure 5.1: EIA process in South Africa
The screening process is the first stage after the application for environmental
authorisation. This process essentially determines the necessity for an EIA in any
proposed project.57
Screening also helps determine the assessment level that may be
appropriate for a particular project i.e. basic assessment or scoping and EIA. The
importance of the screening phase is that it ensures that the level of environmental
analysis matches with the significance of the issues likely to be raised by the
project.58
The scoping phase is a ‘narrowing’ process usually undertaken by an
‘assessment team’ in order to identify any key issues of concern and guide the
development of terms of reference for the EIA.59
It also serves a useful process for
deciding the location of the proposed project site. Scoping should involve possible
interested and affected parties such as the proponent, planning or environmental
agencies, local authorities and members of the public. The EIA process follows
scoping, and thereafter, specialist studies on the proposed development are
57
Refer to chapter 4, section 4.3 58
Jones, 'Environmental Impact Assessment: Retrospect and Prospect', Petts, 'Barriers to Deliberative
Participation in EIA: Learning from Waste Policies, Plans and Projects', DEAT, 'Screening. Integrated
Environmental Management, Information Series', (Pretoria: Department of Environmental Affairs and
Tourism, 2002). 59
Refer to chapter 4, section 4.3
1. Screening 2. Scoping 3. EIA
4. Specialist studies
5. Decision- making
6. Project implementation
7. Monitoring and evaluation
146
undertaken by the relevant specialists.60
The results of the specialist report are then
integrated into the final EIA report. In the event of environmental authorisation
being granted, the final stage is project implementation and thereafter monitoring
and evaluation.
The detailed critical analysis of the EIA participatory features will be discussed in
the following section under the PEJM.61
Suffice to mention, the participatory
features in both the basic assessment and scoping and environmental assessment
report are relatively the same. This section summarises the EIA steps as follows:-
1. Both the basic assessment and scoping and environmental assessment report
start with the applicant submitting the application on the prescribed form.
2. The applicant must also give written notice to the owner of the land upon
which the proposed activity will be undertaken, in the event that the applicant
is not the landowner.62
This notice requirement is meant to ensure that the
views of any landowner are incorporated into the decision-making process. In
the 2006 Regulations, a landowner was not specifically mentioned as one to
whom such notice was due. The need to specifically notify a landowner can
enhance effective public participation because landowners ordinarily have
powers to address representations with regard to developments being
undertaken on their property. A further noteworthy feature in the 2010
Regulations is that any such notices must take into account limitations such
as illiteracy,63
disability64
or any other disadvantage65
that might affect one’s
ability to understand the notice. In such cases, alternative means of ensuring
that the contents of the notice are explained should be documented in a
manner agreed to by the competent authority.
60
Section 1, Interpretation Clause of R.543 of the EIA Regulations dated 18th
June 2010 defines
specialised process as a process to obtain information which “is not readily available without
undertaking the process and is necessary for informing an assessment or evaluation of the impacts of
an activity and includes risk assessment and cost benefit analysis”. 61
Refer to section 5 62
Regulation 21 read with Regulation 12 (2) (b) and Regulation 15 63
Regulation 15 (2) (i) 64
Regulation 15 (2) (ii) 65
Regulation 15 (2) (iii)
147
3. After the submission of the application to the competent authority, the
prescribed public participation process must be undertaken.66
This process is
detailed in Regulations 54 to 57 and includes the opening and maintenance of
a register of all interested and affected parties.67
The definition of ‘interested
and affected parties’ and the register requirement will be discussed in more
detail in the evaluation of the scope of participation in the EIA public
participation process.68
4. Once the public participation procedures have been completed, the basic
assessment proceeds to a further assessment of the potential impacts of the
proposed project on the environment. It is also considered whether, and to
what extent, those impacts can be mitigated and whether there are any
significant issues and impacts that require further investigation.69
On the
other hand, the scoping and EIA process progresses to identifying issues that
would be relevant for the consideration of the application,70
as well as
potential environmental impacts of the proposed activity71
and alternatives to
the proposed activity that are feasible and reasonable.72
This detailed
assessment constitutes the process referred to as scoping and EIA.
The following section considers these EIA participatory features in more detail.
5. Evaluating procedural environmental justice in the EIA process in South
Africa
This section critically examines the public participation features of the EIA process
in South Africa. It uses the PEJM to assess the availability of environmental
information relating to the proposed activity, scope and form of participation and
availability of mechanisms for challenging the outcome of the EIA process. The
PEJM is re- produced below:-
66
Regulation 21 (2) (a) 67
Regulation 21 (2) (b) 68
Refer to section 5.2: 69
By inference, this process must be undertaken in order to provide a Basic Assessment Report,
contents of which are detailed in Regulation 22. 70
Regulation 27 (e) (i) 71
Regulation 27 (e) (ii) 72
Regulation 27 (e) (iii)
148
The PEJM will be used in this section to evaluate the participatory provisions of both
the basic assessment and scoping and EIA processes. As already alluded to in the
previous section, both the basic assessment and scoping and EIA processes are
subject to public participation.73
This provision ensures that members of the
community can deliberate the necessity of development projects in their
communities. Although most of the projects are beneficial to the communities they
serve, it is likely that some should not proceed without being subjected to EIA. In
order to carry out an informed assessment which would confirm that the projects do
not present unmitigated harmful impacts on the environment, the EIA regulatory
framework must be effective.
The following section evaluates the EIA legal framework against the four categories
of the PEJM:-
5.1. Availability of environmental information relating to the proposed
development
The availability of environmental information relating to the proposed development
is the foundation upon which public participation and the whole EIA process
depends. In the South African context, Ridl and Couzens argue that even though the
73
Refer to section 4
•What form (s) does public participation take?
•If it is oral- how is it regulated?
•If it is in writing, what guidance is given?
• Who makes the final decision?
• Can it be challenged, if so on what grounds?
• What options are available in the event of a successful challenge?
•When is participation allowed in the EIA process?
•Who is allowed to participate?
•To whom is it made available?
•Is it freely available?
•When is it made available?
•How is it made available?
Availability of environmental
information
Scope of participation
Form of participation
Availability of review and
appeal mechanisms
149
EIA may not be a perfect tool, it nonetheless provides access to information which in
turn affords environmentalists an opportunity to ensure development considerations
do not override environmental protection.74
Further, the authors argue that the EIA
process is not focussed on providing definitive answers, but rather on placing
environmental decision-makers in a position to weigh priorities from an ‘informed’
perspective before making a decision. Ridl and Couzens conclude that:-
If, however, that process of information gathering is itself to be merely
one consideration amongst others, then the role of EIA has been
seriously lessened.75
With this background on the necessity of access to information in the EIA process,
this section seeks to assess whether information is readily available in the EIA
process in South Africa. The figure below is derived from the PEJM and it shows
how the availability of environmental information category will be evaluated:-
As illustrated in the figure above, four key questions are posed and responses elicited
on the basis of the relevant EIA legislative provisions, on the basis of what actually
happens in practice. These four questions are discussed below:-
74
J Ridl and E Couzens, 'Misplacing NEMA? A Consideration of Environmental Impact Assessment
(EIA) in South Africa', Potchefstroom Electronic Law Journal, 13/5 (2010). 75
J Ridl and E Couzens, 'Misplacing NEMA? A Consideration of Environmental Impact Assessment
(EIA) in South Africa', 11
Availability of environmental
information
To whom is it made available
?
How is it made
available
?
Is it freely
available
?
When is it made
available
?
150
5.1.1. To whom is the environmental information made available?
Regulation 54 provides that the person tasked with carrying out the public
participation process must adhere to any guidelines that may be specified by the
Minister of Environment and Tourism from time to time. In this regard, the
regulations place the obligation of ensuring that information with relevant facts is
made available to ‘potential interested and affected parties’76
The term, ‘interested
and affected parties’ is defined in the Interpretation Clause of NEMA as including
“any person, group of persons or organisation interested in or affected by such
operation or activity.”77
This also includes an organ of the State having jurisdiction
over any aspect of the operation or activity, such as local authorities and other
regulatory agencies.78
In terms of assessing how this description of ‘potential interested and affected’
parties benefits the outlook of who can have access to environmental information, it
can be concluded that the possibility of excluding any person in this wide definition
is significantly minimized. Any individual, even with a remote interest in the subject
matter of the proposed project can qualify to be a ‘potential interested and affected
person.’ For instance, environmental NGOs can pursue diverse environmental
interests that may be at stake in an EIA process under the umbrella term ‘potential
interested and affected parties’.
Although there is no case law specifically defining the term ‘interested and affected
party,’ the case of Earthlife Africa (Cape Town) v. Director- General: Department of
Environmental Affairs and Tourism,79
is relevant. In this case, the following words
from the NEMA were in dispute:-
76
There is no difference in the manner the term “public” was interpreted in the old EIA legislation.
The only difference might be the removal of the definitions of “interested and affected parties” and
“public participation” from the new regulations, leaving them only in the principal legislation as a
streamlining measure. 77
The definition under the Interpretation Clause of NEMA is read together with the provisions of
Section 24 (4) (a) (v). This definition bears close resemblance to section 2 of the Aarhus Convention
which provides, “the public means one or more natural or legal persons, and, in accordance with
national legislation or practice, their associations, organizations or groups”; and “the public concerned
means the public affected or likely to be affected by, or having an interest in, the environmental
decision-making; for the purposes of this definition, non-governmental organizations promoting
environmental protection and meeting any requirements under national law shall be deemed to have
an interest.” 78
DEA/DP, 'Guideline on Public Participation, Eia Guideline and Information Document Series', 6. 79
(2005) 3 SA 156 (c) par 59
151
…the project applicant is responsible for the public participation
process, to ensure that all interested parties, including government
departments are given the opportunity to participate in all relevant
procedures contemplated in the regulations.80
The Court construed the words ‘interested parties’ to mean that the “public” were
entitled to comment at all stages of the EIA process, including commenting on the
final environmental impact report. By holding that all information in the public
domain and in the possession of the authorities must be distributed to the public in
order for the public to participate meaningfully in the process, this case further
underscores the importance of the right to environmental information in the
participation process.”81
Therefore, in answer to the evaluative question above, the law places an obligation
on the project proponent to ensure that environmental information is made available
to all potential interested and affected parties.82
5.1.2. How is environmental information made available?
The regulations prescribe the manner in which notice of a proposed activity must be
issued. In practice, this stage is the first opportunity for potential interested and
affected parties to access environmental information relating to the proposed
development.
The regulations prescribe four distinct ways in which notice must be given. First, a
notice board must be erected, at a conspicuous place to the public; either at the
boundary or on the fence of the site of the proposed activity or any alternative place
referred to in the relevant application.83
Secondly, an applicant must give written
notice of the proposed activity to a landowner, or person exercising control over the
land on which the proposed activity will be undertaken,84
any occupiers on the said
80
Earthlife Africa (Cape Town) v. Director- General: Department of Environmental Affairs and
Tourism (2005) 3 SA 156 (c) Paragraph 59. 81
Ibid. Earthlife Africa (Cape Town) 82
Refer to section 6; See also Enviroserv, 'Public Participation Report Prepared for the Department
of Environmental Affairs', (EnviroServ Polymer Solution (Pty), A subsidiary of EnviroServ Waste
Management (Pty) Ltd, 2011). 83
Regulation 54 (2) (a); the notice board referred to must be of a specified size; Regulation 54 (4) (a)
states that it must be at least 60cm by 42cm and Regulation 54 (4) (b) provides that it must display all
the specified information in a legible manner. 84
Regulation 54 (2) (b) (i)
152
land.85
The third mandatory method of effecting notice is placing an advertisement in
one local newspaper or any official Gazette.86
Fourthly, an applicant must place an
advertisement in at least one provincial newspaper or national paper where the
activity may impact on or extend beyond the boundaries of a local municipality. In
order to ensure compliance with these notice requirements, proof is required that
notice boards, advertisements and notices to potentially interested and affected
parties were displayed, placed or given.87
In practice, proponents show proof of
compliance by making reports to the competent authority and attaching photos of
billboards and other requirements on all the prescribed sites.88
The intention of such wide notification is that as many people as possible should be
made aware of the proposed activity. It is also through this wide circulation of
notices that potential interested and affected parties are identified. In addition, the
content of the notices in the four instances outlined above must be such as to give
details of the application which is to be the subject of public participation.89
This is
an important consideration because it marks the first stage of access to information
for the potential interested and affected parties. The notice should also include the
following:-
1. Further details relating to submission of an application for environmental
authorization to carry out the proposed activity are required;90
2. Whether the activity is being subjected to basic assessment or scoping and
EIA; 91
3. The nature and location of the activity92
4. Where further information on the proposed activity can be obtained;93
85
Regulation 54 (2) (b) (ii) 86
Regulation 54 (2) (c) 87
Regulations 22 (20 (f) (ii) and 28 (1) (h) (ii) 88
Newcastle, 'Public Participation Report on the EIA for the Proposed Re- Commissioning of a Coke
Oven Battery at Arcelormittal', (2011), 29- 35. 89
Regulation 54 (3) (a) 90
Regulation 54 (3) (b) (i) 91
Regulation 54 (3) (b) (ii) 92
Regulation 54 (3) (b) (iii) 93
Regulation 54 (3) (b) (iv)
153
5. To whom representations on the activity can be made and the manner in
which they should be made.94
The four notice specifications outlined in this section are mandatory and can only be
deviated from to the extent and in a manner approved by the competent authority.95
The regulations also provide for the use of alternatives to these four distinct ways of
giving notice in order to address illiteracy, disability or other disadvantage in any
potential interested and affected party.96
The legislative innovation of the 2010 EIA
regulation to address illiteracy and other disadvantages arises from the criticism that
some communities were generally excluded from effective engagement in decision-
making in the EIA process. This exclusion manifested in a number of ways: For
instance, in the 2005 case of Earthlife Africa (Cape Town) v. Director- General:
Department of Environmental Affairs and Tourism and Another, 97
the court found
that:-
… Little provision is made in environmental and other legislation for
public participation tools that suit rural areas or for innovation in the
means to get illiterate people or highly skilled institutions to get
involved.
The inadequacy of pre- 2010 EIA legislation in making information available led
some authors to describe it as “making provision for notices in newspapers
disrespecting the illiteracy of the majority of South Africans.”98
In practice, there are
few proponents who spend additional costs to get illiterate interested and affected
parties to participate, despite current legislation making more reasonable provisions
for alternative means of communication. The innovative provisions in the current
EIA legislation are therefore timely and will contribute to addressing some of these
procedural shortcomings in public participation.
94
Regulation 54 (3) (b) (v) 95
Regulation 54 (5) 96
Regulation 54 (2) (e) 97
(2005) (3) SA 156 (CA). 98
A Du Plessis, 'Public Participation, Good Environmental Governance and Fulfilment of
Environmental Rights', Potchefstroom Electronic Journal, 2 (2008a), 1- 34 at 13- 15; See also UNDP,
'Human Development Report 2011- Sustainability and Equity: A Better Future for All', (London:
Palgrave MacMillan, 2011) wherein it is stated that in South Africa, approximately 12% of adults
over 15 years are functionally illiterate.
154
It has been a long held view that citizen involvement delays schedules.99
This view is
still prevalent among project proponents who usually have to meet strict deadlines
for project completion. In like manner, Patel100
argues that there is a tendency to
employ “elitist approaches while working with inadequately resourced communities”
during EIA processes. The notices may well reach the intended targets, but whether
those targeted have “equitable access to decision-making as a form of social
justice”101
is another matter for consideration altogether.
Patel argues that in the context of South Africa, the availability of information to
interested and affected parties might be hampered by the fact that “the South African
approach to environmental decision-making is ‘expert driven’…”102
The view is that
experts usually assess proposed activities and agree beforehand that it would be
feasible to proceed with it. This is notwithstanding the lack of feedback and input
from the community.
5.1.3. Is environmental information freely available?
In practice, information relating to advertised development activities requiring EIA
is available without cost. In this vein, it can further be argued that where information
flow is under the direct control of a proponent who is ideally inclined to proceed
with the proposed activity, the tendency to seek ‘rubberstamping’ cannot be ruled
out.103
5.1.4. When is environmental information made available?
99
Ridl and Couzens, 'Misplacing NEMA? A Consideration of Environmental Impact Assessment
(EIA) in South Africa', 86; E. Couzens and K. Gumede, 'Losing Nema: Wildlife and Environmental
Society of South Africa V Mec for Economic Affairs, Environment and Tourism, Eastern Cape, and
Others 2005 6 Sa 123 (E) Case No. 28761/05, Tpd Decided on 23 June 2006', South African Journal
of Environmental Law and Policy, (2007), 125- 34; South African Mail & Guardian Newspaper dated
30th
March 2001, “There seems to be a general drive to ensure that all developments are approved and
that no developments are rejected.” 100
Z Patel, 'Environmental Justice in South Africa: Tools and Trade Offs', School of Geography,
Archaeology and Environemtnal Sciences, (2009), 11. 101
G Visser, 'Social Justice and Post-Apartheid Development Planning: Reflections on Moral
Progress in South Africa', International Development and Planning Review, 26/4 (2004), 359- 76. 102
Patel, 'Environmental Justice in South Africa: Tools and Trade Offs', 103. 103
Ridl and Couzens, 'Misplacing NEMA? A Consideration of Environmental Impact Assessment
(EIA) in South Africa', 82- 85; A. Gunn, Eversheds, ‘EIAs- Is the Public able to participate?’15
October 2008, who argues inter alia that “Public participation and the public's right to information by
interested and affected parties, is a fundamental cornerstone of participatory environmental
democracies around the world. It is however alleged that EIA is merely a rubber stamping exercise
carried out by the applicant's consultant and given credence by the regulators.”
155
The Aarhus Convention provides insight into the development of the PEJM. It
prescribes “timely and effective notification of the public concerned” and further that
“public participation procedures should include reasonable time-frames, allowing
sufficient time for informing the public.”104
It can be argued that the question of when
information is made available can be addressed by the requirement to provide notice
to all interested and affected parties, within given timeframes.
It is however important to assess how these legal provisions are carried out in
practice and whether there are any disputes that have been addressed relating to
breach of these provisions. In the case of the EnviroServ public participation process,
environmental information was provided in form of a Background Information
Document (BID) at the initial stage of issuing notices calling for potential interested
and affected parties. The BID provided an overview of the project, including a draft
project design, details of the scheduled public meetings and stated the availability of
further information with specified persons.105
A literature review has shown that no
disputes relating to when environmental information is made available have been
reported since the enactment of the current regulations.
5.2. Scope of participation
The second aspect of the PEJM that needs evaluation relates to who is entitled to
participate in the EIA process. Regulations 54 to 57 outline the minimum public
participation requirements that need to be followed during the EIA process,
regardless of the size of the anticipated project. The figure below illustrates how this
category will be evaluated:-
104
Article 6 of the Aarhus Convention provides in part that the public concerned shall be informed,
either by public notice or individually as appropriate, early in an environmental decision-making
procedure, and in an adequate, timely and effective manner. 105
EnviroServ (2011), 'Public Participation Report Prepared for the Department of Environmental
Affairs', (EnviroServ Polymer Solution (Pty), A subsidiary of EnviroServ Waste Management (Pty)
Ltd), 4-6.
156
In order to evaluate who participates in the EIA process, it will be pertinent to
address the following two questions:-
5.2.1. When is participation allowed in the EIA process?
The starting point in answering the question of when participation is allowed in the
EIA process is regulation 56 which in part provides that interested and affected
parties must comment on all written submissions relating to the EIA process. 106
Implicit in this is that written participation is on-going throughout the EIA process.
In relation to oral participation, interested and affected parties are invited at both the
application and EIA stages. This question is also answered in the following section.
5.2.2. Who is allowed to participate?
In considering the question of who is allowed to participate, it must be noted that this
discussion touches on elements of the form that participation takes.107
The
interpretation clause of NEMA defines ‘public participation process’ as applicable to
EIA in the following words:-
In relation to the assessment of the environmental impact of any
application for an environmental authorisation, means a process by
which potential interested and affected parties are given opportunity to
106
See footnote 38. 107
Refer to section 5.3
SCOPE OF PARTICIPATION
When is participation allowed in the EIA process
?
Who is allowed to participate
?
157
comment on, or raise issues relevant to, the application. (Original
emphasis)
In line with this definition of public participation, the regulations require a proponent
to maintain a register of interested and affected parties. The wide practical
implication of ‘interested and affected parties’ has already been discussed.108
What
then is the essence of maintaining a register and how does it impact on the right to
participate of interested and affected parties generally?
The proponent must open and maintain a register of names, contact details and
addresses of all persons who have submitted written comments or attended meetings
in relation to the application of environmental authorization of the proposed
activity.109
The implication of this duty is that all persons who initially write
comments or present oral submissions at the application stage are automatically
entered into the register of interested and affected parties.
After the participation process, the regulations allow for other interested parties who
may not have attended or sent written submissions to be included in the register. The
inclusion of interested and affected parties who do not attend or send written
submissions at the initial stage can only be done when the concerned parties request
the applicant or the EAP managing the application, in writing, for their names to be
placed on the register.110
The register must be made accessible to any person who submits a request for access
thereto.111
All persons whose names and details appear in the register are entitled to
provide written comments on all written submissions that may be made by the
proponent to the competent authority. The registered interested and affected parties
are further entitled to bring to the attention of the competent authority; any issues
which they believe are significant and relevant to the consideration of the
application.112
This can only be done within timeframes approved or set by the
competent authority.113
108
The term ‘potential interested and affected person’ has been discussed in this chapter in section
5.1.1 109
Regulation 55(1) (a) 110
Regulation 55 (1) (b) 111
Regulation 55 (2) 112
Regulation 56 (1) 113
Regulation 56 (1) (a) (i)
158
The first observation on the requirement to maintain a register of interested and
affected parties is that this makes the process rather bureaucratic. It is implicit that a
person seeking to make full and effective participation must first be registered and
this is by virtue of participating at the initial stage. It follows therefore that if a
potential interested and affected party is not registered, they can be excluded from
the subsequent stages of participation, that is to say, commenting on all written
submissions and draft reports made to the competent authority by the applicant or the
environmental assessment practitioner (EAP) managing an application.114
It is also
probable that a potential interested and affected party who is not registered at initial
participation may be barred from bringing to the attention of the competent
authority; any issues which that party believes are be of significance to the
consideration of the application.
Another argument in point is that “[Environmental] impacts [mostly] emerge at
project implementation stage…”115
and if a person has not been registered prior to
this stage, they would then not be eligible to register their grievances unless they are
first registered. The idea of public participation in the EIA process is that it must be
on-going; it does not start and end at the initial stages. Any factors operating to
discourage participation at all levels of the EIA should be addressed. The process of
being entitled to participate freely is therefore faced with bottlenecks and interested
and affected parties cannot be said to have the freedom to participate in reality.
Registered interested and affected parties are entitled to comment on any reports
including the final report in terms of either a basic assessment or scoping and EIA
process before they are submitted to the competent authority.116
The EAP and
applicant are under an obligation to ensure that all the comments made by the
registered and affected parties on the draft reports are recorded117
while the interested
and affected parties are required to submit their comments on final reports to the
competent authority and copies thereof to the EAP or applicant.118
The EAP is also
required to ensure that comments of interested and affected parties are recorded in
reports and that these comments together with records of meetings held with
114
Regulation 56 (2) 115
Murombo, 'Beyond Public Participation: The Disjuncture between South Africa's Environmental
Impact Assessment (Eia) Law and Sustainable Development', 12. 116
Regulation 56 (2) 117
Regulation 56 (5) 118
Regulation 56 (6)
159
interested and affected parties are attached to the final report submitted to the
competent authority.119
This Regulation also takes cognisance of persons who may be
willing but unable to access written comments on account of lack of skills to read or
write120
disability121
or any other disadvantage,122
in which case, reasonable
alternative methods of recording comments can be provided for.
Despite the foregoing laudable provisions to enable effective participation, registered
and interested parties still remain handicapped in the monitoring and evaluation
processes after environmental authorisation has been granted.123
The following
section evaluates the form of public participation in the EIA process.
5.3. Form of participation
The form of participation by interested and affected parties in the EIA process
determines whether there is effective consultative participation or mere
‘tokenism’.124
The figure below illustrates the questions that will be evaluated in this
section:-
119
Regulation 57 (1) 120
Regulation 57 (2) (i) 121
Regulation 57 (2) (ii) 122
Regulation 57 (2) (iii) 123
Hoosen, 'An Investigation into the Role of Public Participation in Achieving Social Justice: A Case
Study of Eias Undertaken (under Old and New Regulations) in South Durban', 25. 124
Refer to Figure 4.1: Arnstein’s ladder of participation
160
5.3.1. Is public participation oral, in writing or both?
In terms of the definition of ‘public participation’ in the regulations, participation
means giving potential interested and affected parties an opportunity to “comment
on, or raise issues relevant to, an application”.125
This means that the form of
participation can either be oral or in writing, or both. One important observation on
the form of participation prescribed in the present law is that the regulations make
provision for having scheduled public meetings, whereas the 2006 regulations
restricted ‘participation’ of interested and affected parties to mere comments on
reports.126
Under the current regulations proponents use public meetings, open days
and one-on-one meetings with potential interested and affected parties.127
The most
effective form of participation is that which allows the highest level of deliberation.
Arguably, it takes a longer period of time to engage in deliberative participation in
writing because one party must wait to receive feedback and the process goes back
and forth.
125
Refer to the definition of “public participation process” in this chapter in section 5.2.2 126
Ridl and Couzens, 'Misplacing NEMA? A Consideration of Environmental Impact Assessment
(EIA) in South Africa', 95- 98. 127
EnviroServ (2011), 'Public Participation Report Prepared for the Department of Environmental
Affairs', (EnviroServ Polymer Solution (Pty), A subsidiary of EnviroServ Waste Management (Pty)
Ltd), 3.
FORM OF PARTICIPATION
Is public participation oral, in writing or both
?
If it is oral- how is it structured
?
If it is in writing- is it consultative
?
161
Ridl and Couzens argue that there is usually a lack of common understanding of the
purpose of participation between proponents and participants in the practical
implementation of the EIA regulations.128
Public input has been considered as a
time-consuming exercise by the proponents while participants have viewed the
process as a way of implementing their own decision on whether or not the proposed
development should go ahead. In order to serve the purpose of EIA, a balance must
be struck between these two approaches:-
Participation is impossible without full access to information and it
becomes meaningless if the views of participants are not included in the
decision-making process, and more so, are seen to be.129
This quotation is also proof that access to information determines the effectiveness
of public participation in the EIA process. This further underscores the significance
of the PEJM which depicts access to information as the basis of evaluating the scope
and form of public participation and access to mechanisms for challenging EIA
decisions. The following section examines the oral forms of participation provided
for in the regulations.
5.3.2. If it is oral- how is it structured?
The regulations oblige the proponent to ensure that ‘potential interested and affected
parties’ are given a ‘reasonable opportunity to participate’ in making their
representations on the proponent of the activity.130
What is reasonable opportunity
would depend on different circumstances and it may give unfettered latitude to a
proponent to decide. At the barest, interested and affected parties must be allowed to
have two-way discussions with the proponent and his team in relation to the project
and that barriers to communication must be resolved before hand. For instance,
cultural and language requirements of some interested and affected parties must be
appreciated; the existing community structures, committees and leaders must
specifically be approached to take part. The proponent must also assess the need for
separate meetings with vulnerable and marginalised groups and provide reasonable
128
Ridl and Couzens, 'Misplacing NEMA? A Consideration of Environmental Impact Assessment
(EIA) in South Africa', 95- 98. 129
Ibid., 97. 130
Regulation 54 (7) (a) and (b)
162
assistance to people with special needs.131
In practice, a range of mechanisms are
used for participation: public meetings and open days, conferences, information
desks and helplines, meetings and workshops with constituencies e.g. National
Standing Committees, NGOs and CBOs.132
5.3.4. If it is in writing- is it consultative?
The regulations give interested and affected parties the opportunity to provide
written comment on all reports in the EIA process.133
The procedure is that all reports
must first be submitted to the competent authority (regulator). At a subsequent stage,
registered affected and interested parties must then submit their comments on the
draft reports to the environmental assessment practitioner (EAP),134
and comments
on final reports to the competent authority, with copies to the EAP within forty days
of the reports being made public.135
In spite of the fact that the receipt of comments is
acknowledged and recorded, this process is neither consultative nor deliberative.
Further, although there are time frames for receiving feedback from the competent
authority or the EAP, the regulations imply that the lack of response from the
government department in question (competent authority) is acceptable.136
This
assumption that the lack of feedback is acceptable defeats the whole rationale for
public participation and renders written participation ineffective.
5.4. Availability of mechanisms for challenging decisions
The meaning of the availability of mechanisms for challenging decisions category of
the PEJM is enhanced by the Aarhus Convention whose access to justice pillar
requires aggrieved parties to resolve their grievances through “independent and
impartial bodies established by law.”137
The courts of law and other legally
constituted tribunals fit into this description. There must be ‘internal’ means of
131
DEA/DP, 2011. Guideline on Public Participation, EIA Guideline and Information Document
Series, Cape Town: Western Cape Department of Environmental Affairs & Development Planning
(DEA&DP), 11-17 132
Ibid 133
Regulation 56 (1)- (3) 134
Environmental Assessment Practitioner (EAP), means the person responsible for planning,
management and coordination of environmental impact assessments or any other appropriate
environmental instrument introduced through the Regulations. If exemption from the appointment of
an EAP has been applied for, the applicant must perform the tasks required of an EAP. 135
Regulation 56 (5)- (6) 136
Regulation 56 (9) (a) - (b); Kidd (2011), Environmental Law, 254. 137
Article 9 of the Aarhus Convention
163
challenging a decision before the matter is referred to ‘external’ authorities. This
section critically evaluates the appeal process provided under the EIA regulations
with a view to assessing whether it affords aggrieved parties any redress. The figure
below illustrates the questions that will be discussed in this category:-
5.4.1. Can the final decision be challenged, if so, on what grounds?
The final decision is made by the competent authority and any affected person may
appeal against this decision to the appellate authority (Minister), which may appoint
an independent appeals panel.138
If the affected person is dissatisfied with the ruling
of the appellant authority, the final avenue for appeal is the submission of an
application for judicial review to the High Court.139
This shows that there are two
options of challenging final decisions in the EIA process: appeal and judicial review.
These two processes are critically discussed below:-
5.4.1.1. Appeal Process
The current regulations provide for a comprehensive appeal procedure that is
consistent with the principles of administrative justice; namely, clear time-frames are
138
Section 43 of NEMA provides for the appeal procedure in the EIA process. 139
Kidd argues that “there is no automatic right of appeal against administrative decision- making;
except in the EIA process where interested and affected parties have a right to appeal. Kidd,
Environmental Law, 91, 263; See also chapter 7 of the EIA regulations, 2010.
AVAILABILITY OF REVIEW
AND APPEAL MECHANISMS
Can the final decision be
challenged, and if so on what grounds
?
What options are available in the
event of a successful challenge
?
164
set out for the giving of notice of intention to appeal, filing of the grounds of appeal
and supporting documentation.140
There is no limit either in the regulations or the
principle legislation as to the nature of ground of appeals that can be raised by an
Appellant. According to the prescribed notice of intention to appeal and the notice
forms,141
the grounds of appeal can relate to any of the following or associated
factors:-
(a) The process that was followed by the proponent/environmental assessment
practitioner/the relevant State department in reaching the decision;
(b) Matters of unacceptable environmental impacts/extenuating circumstances
not taken into account by the competent authority.
The language in both the notice of intention to appeal and the notice is very simple
and straightforward and it affords lay persons an opportunity to challenge decisions
that are deemed unfair or irregular.
The regulations empower “a person affected” to appeal against a decision of a
competent authority granting or refusing environmental authorisation.142
Two issues
are raised in this provision: what kind of decisions can be challenged and who has
the locus standi to challenge the decisions?
First, according to the regulations, “any affected person” may appeal to the Minister
against a decision taken by “any person acting under a power delegated by the
Minister under this Act or a specific Environmental Management Act.”143
From the
EIA legal provisions, any decisions made in the following three circumstances can
be challenged:-
140
Regulation 66 141
Digital copies of the notice of intention to appeal and notice to appeal forms are available at
http://www.capegateway.gov.za/eadp). 142
Regulation 60 (1) states that, “A person affected by a decision referred to in these regulations who
wishes to appeal against the decision must submit a notice of intention to appeal with the Minister,
MEC, or delegated organ of state, as the case may be, within 20 days after the date of the decision.” 143
Regulation 58 (1) (a) and (b); Section 43 (1) provides that “Any person may appeal to the Minister
against a decision taken by any person acting under a power delegated by the Minister under this Act
or a specific Environmental Management Act.”
165
1. Any person acting under a power delegated by the Minister under
NEMA or a specific environmental management Act; 144
2. Any person acting under a power delegated by that Member of the
Executive Council under this Act or a specific environmental
management Act.145
3. An organ of state acting under delegated power or duty in terms of
NEMA or the EIA Regulations.146
In very clear terms, however, the regulations state that any decision made by the
Minister of Environment and Tourism to grant or refuse to grant an environmental
authorization cannot be appealed against under the provisions of the
regulations.147
This is not to say that there is no scope for the administrative review of
Ministerial decisions. It is not usual that public decisions are left unchallenged to
curtail aggrieved parties’ rights to due process of the law.
Secondly, with regard to legal standing, any person who feels affected by the
decision has the right to lodge an appeal. There is no other qualification that
determines legal standing in this case, any member of the public affected by any
decision relating to environmental authorisation can lodge an appeal.
5.4.1.2. Access to judicial review
As seen in the appeals procedure, decisions of the Minister granting or refusing an
environmental authorisation cannot be challenged. In this case, an aggrieved party
has recourse to judicial review. Access to judicial review of decisions made under
environmental legislation is exercisable pursuant to the Promotion of Administrative
Justice Act No. 3 of 2000 (hereinafter referred to as “the PAJA”). The PAJA was
enacted to give meaning to the constitutional access to administrative clause, the
relevant parts of which provide that:-
(1) Everyone has the right to administrative action that is lawful,
reasonable and procedurally fair.
144
Section 43 (1) of NEMA 145
Section 43 (2) of NEMA 146
Regulation 58 (1) (b) 147
Regulation 58 (2)
166
(2) Everyone whose rights have been adversely affected by
administrative action has the right to be given written reasons ...148
Subsection (1) in this provision means any person can challenge administrative
action or inaction, 149
on three grounds: unlawfulness, unreasonableness or procedural
unfairness.
This thesis emphasises procedural environmental justice and it therefore follows that
procedural irregularity in the refusal or granting of environmental authorisation
(which is an exercise of administrative powers vested in the competent authority), is
enough basis for judicial review. Kotze argues that the reasons for challenging
administrative action or inaction must be “adequate, proper, relevant, and relate to
the administrative action under scrutiny.”150
5.4.2. What options are available in the event of a successful challenge?
The appeal process starts with the aggrieved party submitting a notice of intention to
appeal within 20 days of the decision complained of.151
The minister is empowered to
“confirm, set aside or vary the decision, provision, condition or directive or make
any other appropriate decision…”152
An appeal by itself does not suspend an
environmental authorization or exemption, nor does it alter any subsisting condition
or directive issued in furtherance thereof, “unless the Minister directs otherwise.”153
6. Strengthening participatory rights under NEMA: Provisions in the South
African Constitution
This section argues that whereas NEMA is the primary legislation governing the
implementation of EIA, the Constitution of the Republic of South Africa contains
overarching provisions that can be used to reinforce procedural environmental
justice. Public participation in environmental concerns in South Africa became
148
Section 33 of the Constitution; See also the Preamble to the Promotion of Administrative Justice
Act No. 3 of 2000. 149
Kidd, Environmental Law, 222; Section 33 of the Constitution provides that administrative action
should be lawful, reasonable and procedurally fair. 150
L Kotze, 'The Application of Just Administrative Action in the South African Environmental
Governance Sphere: An Analysis of Some Contemporary Thoughts and Recent Jurisprudence',
Potchefstroom Electornic Law Journal, 2 (2004), 58- 94 at 42. 151
Regulation 60 (1) 152
Section 43(6) of NEMA 153
Section 43 (7) of NEMA
167
pronounced with the end of apartheid and particularly with the enactment of the
current Constitution in 1996.154
Although the Constitution does not make specific
reference to the EIA process, it contains provisions that can enable, strengthen, and
support public participation in environmental decision-making
generally.155
Importantly, it sets minimum standards for participatory rights in
environmental issues in South Africa. In addition, section 152(e) of the Constitution
provides for community participation in all spheres of government. This section
obliges local government to encourage the involvement of communities and
community organizations in local governance issues. This provision can also be used
to argue for the protection of the environmental right, and procedural rights in the
EIA process.
As an important source of legal authority in South Africa, the Constitution lays the
basis for the achievement of procedural environmental justice. It contributes to the
realisation of participatory rights in environmental affairs and also gives impetus to
the enunciation of a procedural justice ethos: how the environmental right is to be
regulated, implemented and enforced. The governing approach to the interpretation
of the Constitution is that it should be viewed holistically- all its provisions must be
read with its overall structure and rationale in mind. The evaluation of procedural
environmental justice in the EIA process cannot therefore be achieved without
reference to constitutional provisions. The following section starts by critically
examining the constitutional environmental right and the role it plays in seeking
procedural environmental justice in the EIA process.
6.1. Constitutional environmental right
The existence of the environmental right in the Constitution “has enhanced the
number, nature and scope of legal remedies available to an individual”.156
Section 24
provides that:-
154
See generally P Fitzgerald, A. Mclennan, and B Munslow, Managing Sustainable Development in
South Africa (New York: Oxford University Press, 1997).;R Peart and J. Wilson, 'Environmental
Policy- Making in the New South Africa', South African Journal of Environmental Law and Policy, 5
(1998), 237- 66. 155
See Du Plessis, 'Public Participation, Good Environmental Governance and Fulfilment of
Environmental Rights', 28-31 156
Kotze, 'The Application of Just Administrative Action in the South African Environmental
Governance Sphere: An Analysis of Some Contemporary Thoughts and Recent Jurisprudence', 299.
168
Everyone has the right-
(a) to an environment that is not harmful to their health or well-being;
and
(b) to have the environment protected, for the benefit of present and
future generations, through reasonable legislative and other
measures that-
(i) Prevent pollution and ecological degradation;
(ii) Promote conservation; and
(iii) Secure ecologically sustainable development and use of natural
resources while promoting justifiable economic and social
development.
This quotation shows that the environmental right has two distinct parts: Section 24
(a) and Section 24 (b).157
It however remains debatable that Section 24 (a) confers
an “enforceable defensive right” whereas Section 24 (b) is merely a “right to state
performance”.158
Both aspects of the constitutional environmental right are
enforceable, according to du Plessis and Kotze, because every person and authority
in South Africa must respect any right guaranteed in the Bill of Rights.159
Section 7
(2) of the Constitution is instructive by providing that the “state must respect,
protect, promote and fulfil the rights of the Bill of Rights”.
Arguably, section 24 (b) of the environmental right only obliges the state to take
reasonable measures to ensure the fulfilment of rights contained in the Bill of
Rights.160
The enactment of NEMA together with the EIA regulations has been
considered as a response to the legal obligation conferred on the state by section 24
(b).161
It is therefore not far-fetched to argue that the constitutional environmental
right is significant in ensuring that procedural environmental justice is achieved in
157
There is an abundance of South African literature on the meaning and enforceability of the
constitutional environmental right, see Glazewski, Environmental Law in South Africa, 67- 68; 72-
81; Kidd, Environmental Law at 18- 23; I. R. Sampson, 'Incorrect Application and Interpretation of
Socio- Economic Factors in Environmental Impact Assessments in South African Law', (Pretoria:
University of Pretoria, 2010); L. Feris, 'The Socio- Economic Nature of Section 24 (B) of the
Constitution - Some Thoughts on HTF Developers (Pty) LTS V Minister of Environmental Affairs
and Tourism (Htf)', SA Publiekreg/Public Law, (2008), 194- 207; L. Feris. and D. Tladi,
'Environmental Rights', Socio- Economic Rights in South Africa (Pretoria: Pretoria University Press,
2005), 249- 266; A Du Plessis, Fulfilment of South Africa's Constitutional Environmental Right in the
Local Government Sphere (Amsterdam: Wolf Legal Publishers, 2009), 239- 54. 158
A. Du Plessis, 'Adding Flames to Fuel: Why Further Constitutional Adjudication Is Required for
South Africa's Constitutional Right to Catch Light', South African Journal of Environmental Law and
Policy, 15 (2008b), 57 at 61. 159
Kotze and Du Plessis, 'Some Brief Observations on Fifteen Years of Environmental Rights
Jurispridence in South Africa', 157. 160
Ibid 161
Ridl and Couzens, 'Misplacing NEMA? A Consideration of Environmental Impact Assessment
(EIA) in South Africa', 84.
169
the EIA process. The inherent practical effect of the environmental right is to
enhance public participation and procedural fairness generally.
In order to exploit the provisions of the constitutional environmental clause, it must
be noted that there are other constitutional clauses which are significant in promoting
procedural environmental justice in the EIA process. These include the rights to
promotion of access to information, equality, locus standi, promotion of just
administrative action, and freedom of expression and participation in political
activity. A practical application of these rights and freedoms can be used to achieve
social and procedural environmental justice in South Africa. The following section
analyses the right to access information:-
6.2. Constitutional right to access information
Section 32 of the Constitution gives “everybody” the right to access “any
information held by the state”162
and “any information that is held by another person
and that is required for the exercise or protection of any rights”.163
The Promotion of
Access to Information Act 2 of 2000 (hereinafter the PAIA) was enacted for the
purpose of ensuring the implementation of the right to information and it has been
identified as one of the most progressive pieces of legislation in the world in terms of
access to information.164
The right to access information generally fosters a culture
of accountability in governance necessary in civilized societies.165
The right to a
clean and healthy environment cannot be realised without access to information
which is also especially important in the EIA process.166
The right to access
information defines the availability of information on the proposed development and
therefore determines the whole public participation process.
The constitutional rights discussed in this section, especially the environmental
clause can therefore be extended to protect a wide range of environmental interests.
162
Section 32 (1) (a) 163
Section 32 (1) (b) 164
A Arko- Cobbah, 'The Right of Access to Information: Civil Society and Good Governance in
South Africa', World Library and Information Congress (Durban: 73 rd IFLA General Conference
and Council, August, 2007), 2. 165
Ibid. 166
Centre for Environmental Rights, 'Potential Consequences of Promotion of Information Bill on
Access to Environmental Information', Centre for Environmnetal Rights Media Release
(Johannesburg: Centre for Environmental Rights, South Africa, 2010), 1.
170
The question remains however, as to how private citizens can embark on enforcing
these constitutional rights. In order to access environmental justice through the legal
system and give effect to these provisions, private citizens must have legal standing.
6.3. Constitutional locus standi
A legal technicality that often bars litigants is the necessity for ‘legal standing’ or
locus standi, which means that a plaintiff must have a direct and personal interest in
a matter over and above the ordinary member of the public to bring an action.167
The
locus standi rule in South Africa was historically presented a significant hurdle in
environmental litigation. An example is the case of Verstappen V Port Edward Town
Board and others,168
which was decided prior to the enactment of the 1996
Constitution which introduced the environmental right and also relaxed the locus
standi requirement. In this case, although there was a clear illegality based on the
infringement of the applicant’s environmental right, the court held that the applicant
had not shown that she was likely to suffer ‘special damage’ and the application was
dismissed. The only reason the application failed was because the applicant lacked
the necessary legal standing.
With the enactment of the current Constitution, this case would have been decided in
favour of the applicant as the locus standi requirement in constitutional rights has
since been waived. Where an applicant makes an allegation that their environmental
right is likely to be infringed or has been infringed in contravention of the
constitutional provision; there is no requirement to prove special damage. All that an
aggrieved person needs to prove is the violation of their constitutional environmental
right. This flexibility reinforces the argument that the constitutional environmental
right can be applied to the benefit of disadvantaged members of the community in a
wide range of environmental issues, such as in the EIA process which is of
importance in this chapter. Section 38 provides that:-
Anyone listed in this section has the right to approach a competent
court, alleging that a right in the Bill of Rights has been infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who may approach a court are-
167
Glazewski, Environmental Law in South Africa, 185. 168
1994 (3) SA 569 (D)
171
(a) Anyone acting in their own interest;
(b) Anyone acting on behalf of another person who cannot act in their
own name;
(c) Anyone acting as a member of, or in the interest of, a group of
persons;
(d) Anyone acting in the public interest; and
(e) An Association acting in the interest of its members.” (Original
emphasis)
This provision considerably relaxes the requirement for locus standi in matters with
a bearing on the interpretation of constitutional rights. In terms of procedural
environmental justice, this means that considerable latitude is permitted for the
exercise of the environmental right and this goes a long way towards securing
environmental justice. Another constitutional provision that can support access to
procedural environmental justice is the right to equality.
6.4. Constitutional right to equality
Section 9 of the Constitution provides inter alia that:-
Everyone is equal before the law and has the right to equal protection
and benefit of the law. Equality includes the full and equal enjoyment
of all rights and freedoms….” (Original emphasis)
The constitutional right to equality has two components: a right not to be unfairly
discriminated against and another right to equal protection and benefit of the law.
These two components are relevant in addressing environmental injustice and
inequitability among community members and are therefore significant in resolving
the break- down of procedural environmental justice tenets.
Despite not making specific reference to environmental justice, these two provisions
can be directly invoked to prevent environmental discrimination and ultimately
promote procedural environmental justice in South Africa. The notion of
environmental equality in South Africa starts with the equality clause and most of
the post-apartheid environmental legislation refer to inequality in the environmental
sense. For example, natural resource conservation and utilisation legislation
recognises that the economic, social and environmental benefits of resources have
been distributed unfairly in the past and that environmental justice is one principle
172
that can promote equal and fair access to environmental benefits in these
resources.169
The equality clause can also be invoked in conjunction with the right to dignity
which is provided for under section 10 of the Constitution with the effect of restoring
distributive and procedural environmental justice. The question to ask in equality
matters is whether there has been differentiation, and if so, whether there has been
irrationality on the part of the State.170
In so doing, the issue for consideration and
resolution is whether people are treated differently in a way that ‘impairs their
fundamental dignity as human beings, who are inherently equal in dignity.’171
The
right to equality and human dignity are undoubtedly very important procedural
environmental justice mechanisms that can be used to resolve the numerous
environmental injustices suffered in South Africa.
7. Conclusion
The use of the four-point evaluative criteria of the PEJM: availability of
environmental information, scope of participation, form of participation and
availability of review and appeal mechanisms has shown that South Africa has made
remarkable achievements in environmental law reform. The EIA process has been
entrenched as a wholly procedural process which provides information that is
beneficial in the environmental, social and economic spheres in South Africa.
The realisation of procedural environmental justice in the EIA process in South
Africa started with the eradication of societal biases that previously prevented
individuals from participating in and taking control over environmental decisions.
The importance of public participation lies in it being a two-sided process: it is “an
end in itself”172
and it also contributes to “other important outcomes” such as
169
Preamble and Section 1(a) of the National Forests Act 84 of 1998 and Section 2 (b)-(c); Section 3
(2) of The National Water Act 36 of 1998 also notes that past discriminatory laws and practices
prevented equal access to water and that as a result, the purpose of the Act, inter alia is to now
promote equality in access to water. 170
See the case Prinsloo V Van der Linde (1997) (6) BCLR 759 (CC) at Para 31 wherein the
respondent claimed damages for the spread of fire and the courts were faced with the determination of
whether there was unfair discrimination on the basis of race. 171
Ibid. Prinsloo V Van der Linde (1997) (6) BCLR 759 (CC) at Para 31 172
According to du Plessis, it can for example “raise public awareness and educate the public, give
the public an opportunity to express its concerns, allow for representation of diverse interests and can
173
substantive environmental justice.173
In relation to the PEJM, the enactment of post-
apartheid legislation aimed at redressing environmental inequalities is an effective
procedural measure that has facilitated better participation in and awareness of
environmental matters. The end of the apartheid era also brought with it a new
constitutional dispensation championing fundamental rights and freedoms. The
constitutional environmental right, together with other associated constitutional
rights, has enhanced participation in environmental governance and access to
procedural environmental justice.
According to Glazewski, although legislative reforms in South Africa have made an
attempt at giving precise legal definition to the notion of environmental justice, there
is still a long way to go before the legal system can play a more effective role in the
resolution of environmental justice issues.174
In agreement with this view, Kidd
argues that the numerous environmental laws enacted show political will to secure
good environmental governance, but it is difficult to ignore suggestions that this just
reflects “paper commitment”.175
In the specific instance of EIA legislation however, the promulgation of minimum
standards is the starting point towards securing procedural environmental justice.
The PEJM has specifically shown that the existing EIA legislative provisions support
the development of procedural environmental justice. Most of the legal features that
are necessary for challenging procedural lapses in the EIA process are in existence,
although most of them have only recently been enacted and are yet to be tested in the
courts of law. For instance, although the alternative arguments advanced in section 6
of this chapter do not directly relate to the EIA process, they hinge on the
interpretation and enjoyment of rights to participation in environmental matters. It is
therefore justified to use them in securing procedural environmental justice in the
facilitate the accountability of regulators”. Du Plessis, 'Public Participation, Good Environmental
Governance and Fulfilment of Environmental Rights', 9. 173
G. Pring and S. Y. Noe, 'The Emerging International Law of Public Participation Affecting Global
Mining, Energy and Resource Development', in D. M Zillman, A. Lucas, and G Pring (eds.), Human
Rights in Natural Resource Development (Oxford: Oxford University Press, 2002), 22; See also Lee
and Abbot, 'The Usual Suspects? Public Participation under the Aarhus Convention', 98- 99; Du
Plessis, 'Public Participation, Good Environmental Governance and Fulfilment of Environmental
Rights', 9- 12. 174
Glazewski, Environmental Law in South Africa, 172. 175
Kidd, (2011), Environmental Law, 265
174
EIA process. Overall in South Africa, the problem in EIA is not the legislation, but
rather the bureaucracy with which it is administered.176
176
Ibid.
175
CHAPTER SIX
PROCEDURAL ENVIRONMENTAL JUSTICE IN THE EIA
PROCESS IN ZAMBIA
1. Introduction
The aim of this chapter is to critically evaluate EIA legislation in Zambia in order to
assess its procedural environmental justice content. The Procedural Environmental
Justice Model (PEJM) developed in chapter four will be used in this evaluation. The
PEJM is reproduced below:-
As illustrated above, EIA legislation in Zambia will be evaluated against four
categories: availability of environmental information, scope and form of
participation and availability of review and appeal mechanisms. It must be stated
from the outset that environmental law in Zambia is generally less developed than it
•Is public participation oral, in writing or both?
•If it is oral- how is it structured?
•If it is in writing, is it consultative?
• Who makes the final decision?
• Can it be challenged, if so on what grounds?
• What options are available in the event of a successful challenge?
•When is participation allowed in the EIA process?
•Who is allowed to participate?
•To whom is it made available?
•How is it made available?
•Is it freely available?
•When is it made available?
Availability of environmental
information
Scope of participation
Form of participation
Availability of review and
appeal mechanisms
176
is in South Africa. As a result, the availability of literature for the evaluation in this
chapter is also comparably less than in the South African case.1
Three reasons justify using the Republic of Zambia as a case study. First, Zambia is
categorised as one of the world’s least developed countries.2 This category of
countries is more likely to face the worst effects of global environmental challenges
such as deforestation, widespread pollution and climate change among many.3
Secondly, the Zambian economy is significantly reliant on copper mining which
accounts for nearly 75% of its Gross Domestic Product.4As a direct result of large
scale copper mining and other associated industrial activities, Zambia faces the
corresponding high risk of unmitigated environmental damage. Thirdly, despite
Zambia having had political independence for over 45 years, the development and
implementation of environmental law and policy in general is still considered to be
in its infancy.
Against this background, it is important for this chapter to critically assess the
effectiveness of EIA legislation in Zambia by evaluating its participatory features.
Chapter four has specifically shown that procedural environmental justice is a broad
term that is defined by fairness and inclusiveness in the environmental decision-
making process.5 It has also been shown that EIA is an important tool for balancing
developmental and environmental interests through public participation. Section two
of this chapter starts by outlining the history and sources of environmental law in
Zambia before moving on to Section three which critically discusses the substantive
1 The inadequacy of literature and interest in environmental law and practice in Zambia is well
explained in E. P. Sunkutu (2006), 'The Practice of Environmental Law in Zambia', Law Association
of Zambia (LAZ) Annual Legal Conference (Livingstone, Zambia). 2 A. W. Gadzala, 'From Formal to Informal- Sector Employment: Examining the Chinese Presence
in Zambia', Review of African Political Economy, 3/123 (2010), 41- 59. The author states that
Zambia, one of the most urbanised countries in sub-Saharan Africa, is also one of the poorest
countries in the world, with annual GDP per capita of US$1500 and approximately two-thirds of the
population living below the poverty line.” See also M. Ndulo et. al., 'Global Financial Discussion
Series', (London: Zambia Overseas Development Institute, 2009), 2. 3 Refer to chapter 1, section 2.1; See also MTENR, 'Formulation of the National Adaptation
Programme of Action on Climate Change', (Lusaka: Ministry of Tourism, Environment and Natural
Resources of the Republic of Zambia (MTENR), 2007b), 1- 4. 4 Gadzala, 'From Formal to Informal- Sector Employment: Examining the Chinese Presence in
Zambia', 41- 59. Gadzala argues that Zambia is the world's eleventh largest copper producer, and
mining has dominated Zambia's economy since 1928. See also R Bates and P Collier, 'The Politics
and Economics of Policy Reform in Zambia', in R Bates and A Krueger (eds.), Political and
Economic Interactions in Economic Policy Reform (Cambridge: Blackwell Publishers, 1993). 5 Refer to chapter 4, section 2
177
EIA legal framework. Section four uses the PEJM to critically evaluate EIA
legislation. In section five, the provisions of the Constitution of the Republic of
Zambia6 will be critically discussed with a view to showing whether they impact on
the development of procedural environmental justice in Zambia.
2. History and sources of environmental law and policy in Zambia
Zambia’s history in natural resources conservation, and therefore environmental law
and policy, dates back to the pre-political independence era.7 It has been argued by
environmentalists that pre-political independence legislation fostered colonial
practices aimed at facilitating resource allocation and exploitation, rather than
conserving or managing sustainable use of environmental resources.8 This is evident
in the inconsistencies in Zambian environmental legislation, coupled with a lack of
consideration for emerging principles in international environmental law. Some of
these principles are sustainable development, environmental justice and Integrated
Environmental Management (IEM), of which environmental impact assessment (EIA)
is a significant part.
The ‘environment’ has a wide definition and consequently environmental law,
regulates equally diverse interests at international and domestic levels: natural
resource conservation, climate change and pollution control to name but a few.9 The
sources of environmental law in Zambia include all Acts of Parliament and regulations
which have a bearing on the environment.10
Local customary law through traditional
institutions also plays a significant role in enhancing community participation in
6 The Constitution of the Republic of Zambia, Chapter 1 of the Laws of Zambia (as amended by Act
No. 18 of 1996) 7 J Phiri, A Political History of Zambia from the Colonial Period to the Third Republic (London:
Trenton, 2006); S Bass, 'National Conservation Strategy, Zambia', in C Conroy and M Litvinoff
(eds.), The Greening of Aid (London: Earthscan, 1998). 8 P. Mulonda, 'Implementation and Enforcement of Environmental Law in Zambia- a Legal
Perspective', Legal Framework and Environmental Capacity Component Seminar (Lusaka: Ministry
of Legal Affairs Seminar, 2000) at 1- 3; P. D. Jere, 'Executive Summary on Gaps, Inconsistencies and
Conflicts in Environmental and Related Legislation in Zambia', Harmonisation Workshop (Siavonga:
Ministry of Legal Affairs, 1999), 1- 6. 9 Anand, International Environmental Justice: A North- South Dimension, 1.
10 Acts of Parliament with a bearing on environmental law include: Zambia Wildlife No. 12 of 1998,
Water Supply and Sanitation No. 28 of 1997, National Heritage Conservation Commission, Lands,
Mines and Minerals Development and Fisheries.
178
natural resource conservation.11
Zambia is also a party to over thirty (30) international
treaties with a bearing on environmental law.12
These treaties, however, remain as
mere policy documents at domestic level for want of domestication. Some of the few
treaties that are domesticated are implemented piecemeal thereby failing to capture
their rationale.13
Thus, although international environmental law ought to be an
important source of environmental law in Zambia, its practical effect is limited by
these factors. As part of the on-going initiatives to harmonise Zambia’s environmental
law framework, domestication of relevant environmental treaties is currently
underway.14
The history of EIA legislation in Zambia dates back to 1985, when the National
Conservation Strategy (NCS) was adopted. This was the first attempt at coordinating
pre- political independence era environmental legislation and is recognised in most
environmental literature in Zambia as the government’s principal policy document.15
The NCS was the first policy document to move Zambia towards sustainable
development in the use and conservation of natural resources, 16
and meeting the basic
needs of present and future generations.17
Of relevance to this thesis, the NCS recommended policy, legislative and
institutional measures to harmonise environmental legislation. This was to be
achieved by first bringing all legislation into conformity with international and
11
For instance in the protection of wildlife, forests and fisheries, the paramount traditional ruler of
the Lozi people of Western Province is empowered to enforce sustainable resource management. 12
MTENR, 'National Policy on the Environment and Development Process, Consensus Building for
the Environmental Policy Development', (Lusaka, May 2004). 13
For instance, in the case of the Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES), some of its provisions are implemented by the Elephants and Rhinoceros
Amendment Regulations 1994 promulgated under the Zambia Wildlife Act No.12 of 1998. 14
This was confirmed through personal communication with officials from the Ministries of Justice
and Tourism, Environment and Natural Resources. See also Government of the Republic Of Zambia,
'Fifth National Development Plan 2006- 10- Broad- Based Wealth and Job Creation through Citizenry
Participation and Technologial Advancement', (Lusaka: Government of the Republic of Zambia,
2006a).; Government of the Republic Of Zambia, 'Vision 2030: A Prosperous Middle- Income Nation
by 2030', (Lusaka: Government of the Republic of Zambia, 2006b). 15
See literature in footnote 14 above, while others include P Mulonda, ‘Implementation and
Enforcement of Environmental Law in Zambia- A Legal Perspective’, (Lusaka, 2000); L Aongola, S
Bass & P Chipungu, ‘Zambia National Conservation Strategy and National Environmental Action
Plan’, in: A. Wood (ed.), Strategies for Sustainability (London: Earthscan, 1997). 16
The National Environmental Action Plan, Ministry of Environment and Natural Resources,
December, 1994, 31-33. 17
H. Chabwela, 'Provincial Environmental Policy Situation Analysis- Easter Province of Zambia',
(Lusaka: MTENR, 2005), 71.
179
regional trends, and second, by developing a more holistic approach towards
environmental management.18
By 1990, Zambia’s principal environmental
legislation, the Environmental Protection and Pollution Control Act, Chapter 204 of
the laws of Zambia (EPPCA) had been enacted. Shortly thereafter in 1992, the first
ever environmental regulatory organisation, Environmental Council of Zambia
(ECZ) was established.19
As a follow up to the NCS initiative, the National Environmental Action Plan
(NEAP) was established in 1992. The overall aim of the NEAP was to integrate
environmental concerns into the social and economic planning process of the country
in two principal ways. First, it had to take into account the findings and
recommendations of the NCS regarding the country’s prevailing economic
environment. 20
Secondly, technical information relating to environmental
management had to be updated. The second objective necessitated conducting an
overview of Zambia’s environmental problems, existing legislation and regulatory
institutions and other options for improving environmental quality.21
The NEAP was founded on three rationales: 1) the right of citizens to a clean and
healthy environment, 2) local community and private sector participation in natural
resources management and, 3) enacting legislation to support obligatory EIA of
major development projects in all sectors.22
The need for obligatory EIA regulation
in Zambia arose from the realisation that the effects of large scale mining, mainly in
the Copperbelt Province23
were devastating the environment. At this point, it was
18
See generally L Aongola, S Bass, and P Chipungu, 'Zambia National Conservation Strategy and
National Environmental Action Plan', in A Wood (ed.), Strategies for Sustainability (London:
Earthscan, 1997). 19
Environmental Council Of Zambia, 'Integration of Environmental Information into Development
Planning and Decision- Making Processes: A Zambian Case Study', (Lusaka: ECZ, 1995), 35. 20
This was the period immediately after the liberalisation of the Zambian economy. See Phiri, A
Political History of Zambia from the Colonial Period to the Third Republic.; J. Gewald, M. Hinfelaar,
and M. Macola, Towards a History of Post- Colonial Zambia (London: Leiden, 2008).; J. Van Donge,
'The Plundering of Zambian Resources by Frederick Chiluba and His Friends: A Case Study of the
Interaction between National Politics and the International Drive Towards Good Governance', African
Affairs, (2009), 69- 90.; S. Muyeba, Globalisation and Africa in the Twenty- First Century: A
Zambian Perspective (Milton Keynes: Author House UK Limited, 2008). 21
Ibid. Aongola, Bass, and Chipungu, 'Zambia National Conservation Strategy and National
Environmental Action Plan'; Bass, 'National Conservation Strategy, Zambia'. 22
Ibid 23
Refer to Figure 6.2. The Copperbelt Province of the Republic of Zambia is situated north of the
capital city, bordering the Democratic Republic of Congo. It is a region endowed with mineral wealth
like copper, coal, tin, cobalt and lead which have been exploited for over 80 years. See M.
180
recognised that Zambia needed protection from sustained pollution arising from
copper mining which remains the mainstay of the country’s economy. In 1994 the
NEAP was adopted and its third rationale, the enactment of legislation to support
obligatory EIA in Zambia, was implemented in the form of the 1997 EIA
Regulations pursuant to the EPPCA.24
As Zambia’s environmental framework legislation, the EPPCA was aimed at
maintaining environmental quality standards for water, air, waste, pesticides and
toxic substances, noise, ionizing radiation and natural resources conservation.25
Most
importantly, it regulated the conduct and review of EIA in Zambia.26
The
implementation of EPPCA was however criticised for taking a sectoral and
piecemeal approach which resulted in several conflicts and inconsistencies between
regulatory authorities and government ministries.27
For instance, the development of
environmental law and policy is spearheaded by the Ministry of Tourism,
Environment and Natural Resources, in conjunction with the Ministry of Justice.
There are other ministries tasked with sector specific issues that touch on
environmental matters, such as agriculture, fisheries and mining. In implementing
these different mandates, these ministries and departments often overlapped.28
In 2003, the government initiated the formulation of the National Policy on
Environment (NPE).29
The main purpose of the NPE was to create an umbrella
policy for the welfare of the nation’s environment and enable socio-economic
development without unmitigated adverse environmental effects.30
The NPE
established a fundamental set of premises for integrating environmental decision-
Akombelwa, 'Modelling Land Use Decision- Making in Encroached Forests, Copperbelt Province,
Zambia', (Nottingham: University of Nottingham, 2011), 56- 57; J. Chileshe, 'Copperbelt Province
Environmental Policy Situational Analysis', (Lusaka: Ministry of Tourism, Environment and Natural
Resources Zambia, 2004). 24
Environmental Protection and Pollution Control Act (Environmental Impact Assessment
Regulations) Statutory Instrument No.28 of 1997 25
Sections 22- 34, 75-79 of the repealed EPPCA 26
Statutory Instrument No. 28 of 1997 27
MTENR, 'The National Environmental Policy on Environment', (Lusaka: Ministry of Tourism,
Environment and Natural Resources, The Government of the Republic of Zambia, 2007a), 140- 147. 28
Ibid. 29
The National Policy on Environment (NPE) was adopted on 30 June 2009, The Post, Times of
Zambia, Zambia Daily Mail newspapers (27th
June-1st July 2009), Ministry of Tourism, Environment
and Natural Resources (MTENR). 30
MTENR, 'The National Environmental Policy on Environment'.
181
making in legislation, financing mechanisms, and regulation and enforcement.31
In
this regard, it is argued that EIA is an essential tool for ensuring the necessary
integration in environmental decision-making. The NPE recommended a review of
all existing legislation and the establishment of a “comprehensive legal framework
for an integrated approach to environmental care”.32
It was to be achieved through
the promulgation of new legislation to support EPPCA.33
In practice, the repeal of
EPPCA and enactment of totally new legislation was required, and this was achieved
through the enactment of the Environmental Management Act No. 12 of 2011,
(EMA). The EMA is now Zambia’s principal environmental legislation as shown in
the following section.
3. The Environmental Management Act, No. 12 of 2011, EIA and procedural
environmental justice
The 1997 EIA regulations do not have any legal basis because the principal
legislation under which this subsidiary legislation was promulgated has been
replaced by the Environmental Management Act, 2001 (EMA). This
notwithstanding, the 1997 EIA regulations have continued in operation for
administrative convenience, and are currently in use as though they had been enacted
by the provisions of the new EMA.34
The EMA provides for the continuation and renaming of the Environmental Council
of Zambia (ECZ) as the Zambia Environmental Management Agency (ZEMA).35
The function of ZEMA as a regulatory authority is to oversee environmental
protection and conservation.36
With regard to the operation of the EIA process, the
functions of ZEMA are to review environmental impact assessment reports,
31
Ibid. 32
Ibid. 33
Ibid., 61. 34
This was clarified in personal communication with the Legal Counsel of the Zambia Environment
Management Agency (ZEMA) in September 2011. In addition, it must also be noted that the 1997
EPPCA EIA Regulations are due to be repealed within the first quarter of the year 2012 in order to
pave way for new regulations that will be aligned with the new principal legislation. In view of this
background, this chapter discusses the EIA legislative framework as though the principal legislation
and the regulations have been aligned. 35
Section 7 (1) 36
Sections 9 (1) and (2) of the EMA states that environmental protection and conservation must be
achieved through sustainable management and use of natural resources, integration of environmental
matters in overall national planning, prevention of environmental degradation, and control of
pollution, amongst many others.
182
undertake environmental auditing and monitoring, 37
and ensure access to
environmental information and public participation in environmental decision-
making.38
It has been argued that the administration of EIA at national level requires
appropriate institutional arrangements that are especially designed to be moderately
free from political interferences.39
In this regard, ZEMA is a quasi-government
institution with a legal mandate to regulate the practice of EIA. In compliance with
mandate, ZEMA has established a technical task force referred to as the authorizing
agency. This agency comprises of members drawn from professional associations,
the Mines Safety departments, environmental NGOs among others.40
The
authorizing agency is obliged to act as an impartial arbitrator in the implementation
of EIA.41
This agency can therefore be viewed as a multi-sectoral and technically
competent body in relation to the task it is mandated to carry out.
3.1. An overview of the EIA legal framework
Although Zambia has generally lagged behind in legislation on environmental
matters, the enactment of the EMA is likely to change this perception.42
In fact, the
regulation and implementation of EIA in Zambia has progressed well comparative to
other countries in sub-Saharan Africa. In a 2005 review of EIA processes in five
countries of this region, it was found that Zambia was one of the few countries that
had enabling EIA legislation relating to: specific EIA regulatory guidelines, formal
provisions for public participation and an administrative authority.43
The EMA and
EIA regulations define EIA as:-
37
Section 9 (2) (j) of EMA, 2011 38
Preamble to EMA, 2011; Section 9 (2) (m); Section 86 39
J. Staerdahl et al., 'Environmental Impact Assessment in Malaysia, South Africa, Thailand and
Denmark: Background Layout, Context, Public Participation and Environmental Scope', Journal of
Trans- disciplinary Environmental Studies, 3 (2004), 1- 19. 40
Zambia, 'Environmental Impact Assessment Process in Zambia'; Environmental Council Of
Zambia, 'Zambia Environment Outlook Report', (Lusaka: Environmental Council of Zambia, 2008a). 41
See generally ECZ, 'Environmental Impact Assessment Process in Zambia'. 42
As will be noted in this chapter, this piece of legislation has only recently been enacted and it
incorporates innovative environmental provisions. These have largely been drawn from international
environmental law principles such as sustainable development, polluter pays and precautionary
principles to name but a few. 43
Economic Commission For Africa, 'Review of the Application of Environmental Impact
Assessment in Selected African Countries', (Addis Ababa: Economic Commission for Africa, 2005)
at 22- 48.; See also N Manda, 'Environmental Impact Assessment (EIA) in Zambia: How Effective Is
183
A systematic examination conducted to determine whether or not an
activity or a project has or will have any adverse impacts on the
environment.44
A ‘project’ refers to “any undertaking, development, change in the use of land, or
extensions and other alterations”45
which cannot be implemented without an
authorisation licence from ZEMA. The EMA requires that EIA should be conducted
prior to the implementation of a project that would have adverse impacts on the
environment. Section 29 provides that:-
A person shall not undertake any project that may have an effect on the
environment without the written approval of the Agency, and except in
accordance with any conditions imposed in that approval.46
This provision of the EMA means that a proponent must seek prior written approval
of the ZEMA to undertaking any project that is likely to have environmental impacts.
The process for seeking the written approval of the ZEMA is currently provided in
regulation 3 (2) of the 1997 EIA regulations.47
The authorisation process can take one of two processes depending on the nature of
the proposed development. On the one hand, the First Schedule in the regulations
enumerates the projects that only require the submission of an environmental project
brief before authorisation. An environmental project brief is prepared in respect of
projects with minimal negative impacts on the environment.48
A project brief is:-
... A report made by the developer including preliminary predictions of
possible impacts of a proposed project on the environment. This
Public Participation in the Eia Process in Zambia?', (Michigan Technological University, 2008), 8;
Kakonge, 'Environmental Impact Assessment (EIA) in Africa: A Critical Review', 163- 79. 44
Section 2 of the Environment Management Act and Regulation 2, Environmental Protection and
Pollution Control (Environmental Impact Assessment) Regulations Statutory Instrument No. 28 of
1997 45
Regulation 2 46
Section 29 (1) 47
As noted earlier in this section, the EMA does not specifically refer to the 1997 EIA regulations
that were created under the repealed EPPCA 48
Regulation 3(2) provides that an environmental project brief (EPB) is required in projects relating
to urban area rehabilitation, exploration for and production of hydrocarbons including refining and
transport, brick and earthen manufacture, glassworks, brewing and malting plants, plants for
manufacture of coal briquettes and pumped storage schemes, and bulk grain processing plants. See
also Zambia, 'Environmental Impact Assessment Process in Zambia', 5.
184
constitutes the first stage in the environmental impact assessment (EIA)
process.49
On the other hand, the Second Schedule tabulates projects that require a full EIA
process to be undertaken and an environmental impact statement submitted.50
These
projects usually have a higher degree of environmental and social disturbance. The
environmental impact statement is also described as “an extensive evaluation” of the
effects likely to arise from a project “significantly affecting the natural and man-
made environment.”51
The evaluation process contemplated in preparing the
environmental impact statement must take into account public views and the
developer is expected to organise a public consultation process.52
As noted earlier, EIA in this thesis is discussed in relation to development activities53
that cannot be undertaken without an authorisation licence. The stages of a full EIA
in Zambia, i.e. in relation to Second Schedule projects start with screening, as the
first evaluative stage among others that lead to the final decision. Figure 6.1 is an
illustration of this process:-
49
Regulation 2 50
Regulation 7 (2) provides that an environmental impact statement (EIS) is required for Second
Schedule projects such as urban development requiring the design of new townships, industrial
estates, shopping centres, major roads and dams, rivers and airport fields. 51
Zambia, 'Environmental Impact Assessment Process in Zambia', 7. 52
Regulation 8 (2) 53
Refer to chapter 4
185
Figure 6. 1: Stages of EIA in Zambia
As shown in Figure 6.1, the first stage is screening and it involves the determination
of whether a project requires a project brief under the First Schedule or a full EIA
under the Second Schedule.
In practice, the developer provides the project description and appoints a coordinator
for the environmental impact study. The regulations require that this initial stage
should be subjected to a consultative process with members of the public in the
geographical area of the proposed project. In theory, the conduct of a consultative
process at this stage should achieve effective public participation from the initial
stages of project design and organisation in the EIA process.
Figure 6.1 shows that scoping and consideration of possible impacts is conducted
after the screening process. The scoping stage is used to draw the terms of reference
for the EIA and it is also the stage at which some public consultation meetings are
usually held.54
These public consultation meetings bring together stakeholders in the
affected community such as the relevant government departments and the NGOs.
54
ECZ (1995), 'Integration of Environmental information into Development Planning and Decision-
making Processes: A Zambian Case Study', (Lusaka: ECZ); Zambia, Environmental Council of
(2007), 'Environmental Impact Assessment Process in Zambia', The Enviro- Line (Lusaka:
Environmental Council of Zambia), 6-7.
1. Screening 2. Scoping 3. Baseline
Study 4. Impact
Evaluation
5. Public Participation
6. Mitigation Measure
7. Assessment
8. Decision by developer
9. Submission of Report to
ZEMA
10. Decision by ZEMA
186
This interaction can facilitate the narrowing or expansion of the scope of the terms of
reference to incorporate specific concerns of affected communities and individuals.
The main reason for incorporating interested and affected parties at this stage is to
ensure that the extent of potential impacts is assessed with the input of the local
knowledge communities.55
Stages 3 and 4 (baseline study and impact evaluation) are usually combined, but they
do not involve any public input in practice. Although the EIA process depicted in
Figure 6.2 does not show an on-going participatory process, such a process would be
useful towards securing legitimacy of the final environmental decision. A dedicated
public participation process only takes place after the baseline study and impact
evaluation, at stage 5. The environmental impact statement should provide clear
information to the decision-maker on the different environmental scenarios: benefits
of carrying out the project, consequences of not carrying out the project and the
possibilities of alternatives.56
In order to meet these requirements, the proponent
should present all the available details on the proposed project to the community
members at a public meeting.
The preparation of the environmental impact statement should detail all the activities
that have been conducted from the screening stage such as minutes of public
consultation meetings, attendance lists, and qualifications of the consultants used,
resettlement plans and other relevant records.57
After public participation, the
mitigation and assessment stages follow. These two stages do not normally
incorporate any further public participation process. An observation at this stage is
that interested and affected parties are not part of the post-implementation phase.
Although the ZEMA are empowered to carry out post- authorisation environmental
audits to ensure compliance, 58
this omission in involving interested and affected
parties gives developers unnecessary leeway to circumvent conditions attached to an
authorisation, After completing these two stages, the developer submits the
environmental impact statement to the regulator. The decision process involves in-
55
ECZ (2008), 'Zambia Environment Outlook Report', (Lusaka: Environmental Council of Zambia). 56
Regulation 11 57
See generally MTENR, 'The National Environmental Policy on Environment'. 58
Sections 101 and 102 of the EMA and regulation 28 provide for post-assessment environmental
audits and monitoring.
187
house consultation by the regulatory authority, ZEMA, or a delegated authorising
agent, who are required to make a decision within 65 days of the date of receipt of all
relevant documents.59
According to a recent review, the practice of EIA in Zambia is generally well
established, with stakeholders having access to information and advice from the
national and regional regulatory offices.60
Despite being well established, the EIA
system is fraught with problems. The quality of EIA reports remains low, and
although there is awareness on the need for EIA, it is “still not established as an
essential component in project decision-making”.61
The lack of regulator institutional
capacity has further created an environment where political decisions take
precedence over environmental interests.62
For example, it has been argued that
ZEMA has long been viewed as a “toothless bulldog” lacking in status and political
clout.63
This stems from the fact that it lacks financial and political independence,
with annual government grants steadily decreased over the years.64
As a result it
cannot pay competitive salaries to its professional workforce which has led to low
morale among its workforce.65
This lack of institutional capacity also explains why
EIA in Zambia is largely viewed as a 'top-down’ requirement imposed by external
agencies.66
Most of these shortcomings in the EIA process will be rectified with the anticipated
alignment of the old regulations with the new principal legislation. There is however
some disquiet among some community leaders that a shift in national environmental
59
ECZ, 'Environmental Impact Assessment Process in Zambia'. 60
ECZ (2008), 'Zambia Environment Outlook Report', (Lusaka: Environmental Council of Zambia). 61
D Ngwenyama, (September 2008), 'EIA Experience in Zambia: A Review of the Achievements
and Outcomes of the EIA Process', SEA Awareness Workshop (Lusaka). 62
Glasson, Therivel, and Chadwick, Starting Up: Early Stages- in Introduction to EIA, 34. 63
N Manda, (2008), 'Environmental Impact Assessment (EIA) in Zambia: How Effective is Public
Participation in the EIA Process in Zambia?' (Michigan Technological University), 12. 64
Aongola et al., 'Creating and Protecting Zambia's Wealth: Experience and Next Steps in
Environmental Mainstreaming', 27. 65
Zambia, 'Environmental Impact Assessment Process in Zambia'; Ngwenyama, 'EIA Experience in
Zambia: A Review of the Achievements and Outcomes of the EIA Process'. 66
L Aongola, 'Implementation of International Environmental Instruments at Domestic Level',
Workshop on Harmonization of Environemntal Legislation (Siavonga: Earthscan, 1999); Aongola et
al., 'Creating and Protecting Zambia's Wealth: Experience and Next Steps in Environmental
Mainstreaming', 1-7
188
management is required and not superficial changes to legislation.67
Further,
although the practice of EIA is now considered well established in Zambia, it
remains localised in the urban areas “along the line of rail”68
as Figure 6.2 shows:-
Figure 6.2: Map showing EIA distribution in Zambia
(Adopted from Ngwenyama, 'EIA Experience in Zambia: A Review of the Achievements and
Outcomes of the EIA Process'.)
The black pin-like symbols dotted in the map of Zambia illustrated in Figure 6.2
represent development projects that have been subjected to EIA. There is a
concentration of these symbols in the areas marked Copperbelt, Central, Lusaka and
Southern Provinces, which are the more urbanised areas of the country. According to
Ngwenyama:-
67
See for example, The Post Newspaper of Zambia, 14 June 2011 article entitled, ‘Former councillor
notes flaws in environmental management,’ in which a former local authority leader is quoted as
saying there are a lot of flaws in the management of environmental issues in Zambia and further that
the decision by the Environmental Council of Zambia (ECZ) to change its name to Zambia
Environmental Management Agency (ZEMA) would be “meaningless unless the institution stands up
against the government to uphold environmental decisions”. 68
This refers to the areas closest to the main physical lines of railway and roads in Zambia which are
representative of the most urbanised areas of the country namely, Copperbelt, Central, Lusaka and
Southern Provinces. See Figure 6.2.
189
The majority of EIAs undertaken since 1997 have been in provinces
along the line of rail (the most developed areas of the country):
Copperbelt (39%), Lusaka (27%), Southern (19%) and Central (9%).
The majority (34%) have been in the mining sector, followed by real
estate (18%), energy (10%) and heavy industry (9%), agriculture (7%)
and water (7%).69
This pattern of EIA distribution indicates that EIA is practiced more in the urban
areas, with the Copperbelt Province taking the lead because of mining activities. It
therefore follows that the analysis of procedural environmental justice in this chapter
is only relevant to the more urbanised areas where the practice of EIA is well
established. This pattern can also be used to justify the argument that mining
activities in Zambia are the highest determinants of whether an EIA is carried out or
not.70
3.2. The Environmental Management Act and procedural provisions
This section critically discusses some of the new legislative provisions in EMA that
are useful for procedural fairness and improved efficiency in the EIA process in
Zambia. As noted in this chapter, with the enactment of the EMA in 2011, EIA
implementation should be significantly improved. For instance, this new Act
provides that because of the important attached to environmental protection and
management in Zambia, the provisions of the EMA must take precedence. Section 3
provides that:-
Subject to the Constitution, where there is any inconsistency between the
provisions of this Act and the provisions of any other written law relating
to environmental protection and management ... the provisions of this
Act shall prevail to the extent of the inconsistency.
This provision is important because it means that in relation to environmental
matters, the provisions of the EMA take precedence over other legislation except the
Constitution. Prior to the enactment of the EMA, it was not unusual to find other
legislation such as those aimed at boosting foreign economic investment and
69
Ngwenyama, 'EIA Experience in Zambia: A Review of the Achievements and Outcomes of the
EIA Process', 8. 70
As shown in Figure 6.2, there is no EIA activity in the Western, Eastern, Luapula and Northern
Provinces of the country and these are areas where there is little, if any mining activity.
190
development taking precedence. For instance, in the practical implementation of the
Zambia Development Agency Act No. 11 of 2006 and the Mines and Minerals Act
No. 7 of 2008, the pursuit of development and economic prosperity were placed
above environmental preservation.71
In practice, the EIA regulations were not effective because they relied on an even
more ineffective piece of legislation for implementation. For instance, the repealed
principal legislation, the EPPCA made no reference to any guiding environmental
principles whereas the present legislation does. Some of the legal inconsistencies in
implementing EIA can be resolved through the incorporation of guiding
environmental principles, some of which have been analysed in this thesis:
sustainable development, 72
the polluter pays principle,73
precautionary principle,74
integrated environmental management, public participation75
and access to
environmental information.76
This thesis has shown that availability of environmental
information is the foundation for public participation, thereby underscoring the
importance of critically discussing the EMA provisions on access to environmental
information.
4. Evaluating procedural environmental justice in the EIA process in Zambia
The PEJM will be used to evaluate the public participation features of the 1997 EIA
regulations read together with the provisions of the EMA. The PEJM is reproduced
below:-
71
For instance, the then regulator, ECZ rejected a proposal for authorisation to construct two silos
and associated road works at its Cairo road premises in Lusaka because the site was located in the
central business district (CBD) of Lusaka and was therefore not suitable for industrial activity. The
project however went ahead because it was already approved under the Zambia Development Act as a
viable project for economic development. Refer to Times of Zambia newspaper article, ‘ECZ Rejects
Proposed NMC Silos’, 29th
January, 2007. 72
Refer to chapter 2, section 7. 73
The polluter pays principles has been discussed in chapter 3 in relation to corrective environmental
justice, footnote 72. 74
The precautionary principle is relevant in environmental assessments as discussed in chapter 4,
refer to footnote 121. 75
Sections 91- 94 of the EMA 76
Refer to section 6 (a) – (l); 86, 88 and 89 of the EMA
191
4.1. Availability of environmental information relating to the proposed
development
The availability of information is important because it facilitates environmental
education in the community, and is a prerequisite for informed, unanimous and well-
reasoned communication.77
The EMA has introduced innovative provisions relating
to the availability of information.78
For instance, the ZEMA is now obliged to
“disseminate information on the environment and natural resources to public and
private users”79
and to establish and operate a central environmental information
system in which shall be “stored any findings, data and statistics generated by both
public and private bodies in the course of environmental observation and
management”.80
The Act does not contain any guidance on access to this information
system, save that proprietary interests shall be protected.81
It can therefore be
assumed that in the absence of express restriction, members of the public should be
allowed reasonable access to all environmental information under the custody of the
ZEMA in relation to on-going EIAs.
77
Refer to chapter 4, section 3.3 78
Refer to section 90 (4). These initiatives must be operational within twelve (12) months from the
date the Act took effect i.e. by April 2012. 79
Section 86 (1) (a) 80
Section 87 81
Section 90 (6), (7)
•What form (s) does public participation take?
•If it is oral- how is it regulated?
•If it is in writing, what guidance is given?
• Who makes the final decision?
• Can it be challenged, if so on what grounds?
• What options are available in the event of a successful challenge?
•When is participation allowed in the EIA process?
•Who is allowed to participate?
•To whom is it made available?
•Is it freely available?
•When is it made available?
•How is it made available?
Availability of environmental
information
Scope of participation
Form of participation
Availability of review and
appeal mechanisms
192
Section 90 of the Act also mandates the ZEMA to create and maintain a registry of
environmental information. This registry must contain references to all applicable
environmental legislation in the country as well as international treaties to which
Zambia is a party, any policies, plans, guidelines, studies, reports, decisions,
recommendations and “other publications relating to the environment published by
the Agency or the minister or the government”.82
The existence of these legal
provisions show that members of the public are entitled to access environmental
information and more specifically, information relating to the conduct of EIAs.
However, whether this actually happens in practice is the key issue to consider. This
section will evaluate the availability of environmental information in practice from
four perspectives adapted from the PEJM as illustrated in the figure below:-
4.1.1. To whom is the environmental information made available?
It can be inferred that the purpose of the EIA regulations is to ensure that there is a
flow of information among proponents, stakeholders and the general public. There is
a general assumption that information must only flow from the proponent to the
other stakeholders. It is however desirable that information also flows from the
stakeholders to the developers, as this is more likely to form the basis of subsequent
82
Section 90 (2) (a)
Availability of environmental
information
To whom is it made available
?
How is it made
available
?
Is it freely
available
?
When is it made
available
?
193
consultation and deliberation. For example, the environmental impact statement for
the Silverest Housing Development Project shows that interested and affected parties
were involved in designing the proposal as well as in the gathering of information
relevant to the proposed project.83
In another case, concerning the upgrade of a main road in the Copperbelt Province,
environmental information relating to the project was made available to government
officials at the national, provincial and district levels; local community members
comprising councillors, traditional leaders, representatives of NGOs and
Community- based organisations (CBOs) and members of the general public.84
The
incorporation of such a wide cross section of the local community facilitated the
proponent with local knowledge about the project.
4.1.2. How is environmental information made available?
The regulations provide that first, any proposed EIA process must be publicised in
detail in the public media, in a language understood in the local community for a
minimum period of fifteen (15) days.85
Further, copies of all reports and findings
relating to the proposed development must be circulated to interested and affected
parties.86
In practice, advertisements are usually placed in leading newspapers with a
circulation in the project areas. These advertisements also encourage potential
interested and affected parties to call at the ZEMA offices for further information on
on-going EIAs. The use of community radios has become common in the peri-urban
and rural areas where mainstream media and electronic communication are not
available because it addresses barriers to communication such as language.87
4.1.3. Is environmental information freely available?
With regard to the EIA process, stakeholders have a right to access any documents
relating to the process, including the decision letter by the ZEMA because they are
83
Earth Environmental Consultants, 'Environmental Impact Assessment for the Proposed Silverest
Civil Servants Housing Development', (Lusaka: Earth Environmental Consultants for Zambia
Development Agency- Henan Guoji Development Co. Ltd, 2012), ii; 11- 16. 84
RDA, 2011, Environmental Impact Statement for the Upgrading of the Kalulushi-Lufwanyama
(M18) Road, Lusaka: Road Development Agency at ii; 11. 85
Regulation 10 (2) (a) 86
Regulation 15 (1) 87
See generally M K Mwansa (2008), 'An Analysis of Community Radio as a Facilitator of Social
and Economic Development for the Poor: A Case of Zambia', 11- 14, 21.
194
public documents.88
There is no fee or levy charged for accessing any information on
environmental matters. On the contrary, fees are chargeable for the submission of
EIA reports to the ZEMA for approval.89
It must however be noted that proprietary
environmental information such as trade secrets, trademarks and anything with
copyright and patent may be restricted.90
It is difficult to state whether in practice
these seemingly wide opportunities for access to information are utilised. It can
however be argued that since these provisions have hardly been utilised because they
are relatively new and there are low levels of environmental awareness in Zambia.
Low levels of awareness have been induced by many factors stemming from
poverty, low literacy levels and a general lack of an environmental ethos,91
4.1.4. When is environmental information made available?
The regulations require developers to engage the public at the preliminary stage
where terms of reference are drawn.92
As a follow-up on the discussion in section
4.1.3 above, interested and affected parties are provided with free information
starting from the scoping/baseline stage. In practice, environmental information
relating to proposed development is accessible by request from ZEMA at any stage
of the EIA process. It is however difficult in practice to assess accessibility of the
information owing to low environmental awareness as enumerated in the previous
section.93
4.2. Scope of participation
The scope of participation is the second category for evaluation under the PEJM. The
involvement of a wide scope of participants has the potential to improve decision-
making which in turn can enhance legitimacy.94
In order to evaluate the legal
provisions relating to the scope of participation in the EIA process, it is pertinent to
ask the two questions shown in the figure below:-
88
Regulation 26 (1) 89
Refer to the Fifth Schedule to Statutory Instrument No. 28 of 1997, The EIA Regulations. 90
Regulation 27 (1) 91
These issues are also discussed in section 5 of this chapter. See generally P Matibini, (2011),
'Access to Justice and the Rule of Law: An Issue Paper Presented for the Commission on Legal
Empowerment of the Poor',
<http://web.undp.org/legalempowerment/reports/National%20Consultation%20Reports/Country%20
Files/26_Zambia/27_3_Access_to_Justice.pdf>, accessed 10 January. 92
Regulation 8 (2) 93
Section 4.1.3 94
Refer to chapter 4, section 3.3
195
4.2.1. When is participation allowed in the EIA process?
The EIA regulations define both the intent and process of public participation.
Regulation 8(2) provides as follows:-
To ensure that public views are taken into account during the
preparation of the terms of reference, the developer shall organize a
public consultation process, involving Government agencies, local
authorities, nongovernmental and community-based organizations and
interested and affected parties, to help determine the scope of the work to
be done in the conduct of the environmental impact assessment statement
and in preparation of the environmental impact statement.
In line with this provision, public participation must be on-going from the initial
stage of drawing terms of reference. In practice however, proponents are likely to
circumvent these provisions and only consult interested and affected parties at one
stage of the process in order to fulfil legislative provisions. For instance, in the
environmental impact statement for the Kalulushi- Lufwanyama road upgrade,
public consultation was only conducted at the scoping stage.95
95
RDA, 'Environmental Impact Statement for the Upgrading of the Kalulushi Lufwanyama (M18)
Road', (Lusaka: Road Development Agency, 2011), 3.
SCOPE OF PARTICIPATION
When is participation allowed in the EIA process
?
Who is allowed to participate
?
196
4.2.2. Who is allowed to participate?
The EIA regulations state that “any person” may attend a public hearing in person or
through a representative and participate in the deliberations related to proposed
developments.96
The term ‘interested and affected parties’ is also used in the EIA
regulations and the principal legislation, but it is neither defined in the legislation nor
has it been interpreted by the courts. In the EIA literature disseminated by the
regulator, the use of terms such as ‘stakeholders’ and the ‘public concerned’ in the
EIA process has been interpreted widely. The EIA regulations however, contain a
proviso that an officer presiding at the public hearing has a right to “disallow
frivolous and vexatious presentations which lead to abuse of the process”.
The legal interpretation of who is allowed to participate in the EIA process in the UK
shows that a different approach is adopted. For instance, the House of Lords in
Berkeley v Secretary of State for the Environment found that public participation is
about:-
... ‘A right to a fully informed decision on the substantive issue', but far
more fundamentally also 'requires the inclusive and democratic
procedure [...] in which the public however misguided or wrongheaded
its views maybe, is given an opportunity to express its opinion on the
environmental issues’.97
This approach reiterates the importance of listening to a cross section of interested
and affected parties, regardless of whether views are bothersome to the facilitators of
the public meeting. In agreement with the court’s view on the importance of
safeguarding public participation in EIA, Lee and Abbot argue that the exercise of
the right to participate should not depend on one’s ability to structure their
contributions in any appropriate technical or scientific terms.98
In practice, the ZEMA allows the participation of all interested and affected parties.
This means that members of the general public can attend meetings even as
96
Regulation 19 (1) of the EIA Regulations 1997, SI No. 28 of 1997 97
[2001] 2 A C 603, 615, per Lord Hoffman 98
M Lee and C Abbot, 'The Usual Suspects? Public Participation under the Aarhus Convention', The
Modern Law Review, 66/1 (2003), 99.
197
observers.99
It has however been observed that proponents are not obliged For
instance in the Zambia National Building Society reconstruction project, there was
only a single meeting held at which the proponent made presentations and answered
questions posed by interested and affected parties. This is in spite of the development
being likely to pose significant and far-reaching impacts.100
In a study aimed at assessing the effectiveness of public participation in the EIA
process in Zambia, eight environmental impact statements were evaluated using ten
procedural elements. Some of the procedural elements included inclusiveness of
public participation, publicity of participation initiatives, adherence to and credibility
of the process.101
This study concluded that inclusiveness of participation was
inadequate and could therefore be strengthened, for instance, through the use of
discussion forums conducted in local languages and at venues nearest the project
areas. Further, the study found that many participants felt alienated when unfamiliar
venues were used, and this made it difficult for them to familiarise with the project
activities and consequently hindered well informed opinions about the EIA
process.102
Furthermore, the study observed that inclusiveness in public participation
is also hampered by the regulator’s omission to ensure that minority groups (e.g. the
physically challenged, visually impaired and the illiterate) are purposively invited to
and catered for at public meetings.103
These observations show that where a wide
scope of participation in the community is not facilitated, representation is
inadequate and may negatively affect legitimacy of the final decisions.
4.3. Form of participation
The form of participation is important for evaluation because it determines whether
deliberative and consultative communication has been achieved. Some aspects of
99
Zambia, 'Environmental Impact Assessment Process in Zambia'; Environmental Council Of
Zambia, 'Lusaka State of the Environment Outlook Report', (Lusaka: Lusaka City Council and
Environmental Council of Zambia, 2008b).; Environmental Council Of Zambia, 'State of the
Environment in Zambia', (Lusaka: Environmental Council of Zambia, 2001).; Ecz, 'Ecz Register',
(Lusaka: Environmental Council of Zambia, April 2002). 100
ZNBS, 'The Zambia National Building Society Environmental Impact Statement for the Proposed
Redevelopment Project of Society House, Lusaka', (Lusaka: ZNBS, August 2011), 15- 16. 101
N Manda (2008), 'Environmental Impact Assessment (EIA) in Zambia: How Effective is Public
Participation in the EIA Process in Zambia?’ (Michigan Technological University), 1-4. 102
Ibid 103
N Manda, 'Environmental Impact Assessment (EIA) in Zambia: How Effective is Public
Participation in the EIA Process in Zambia?', 62- 65
198
participation such as language and venue have been considered in the scope of
participation and are also likely to influence the form of participation. The questions
for consideration in this category relate to whether the communication has been oral,
in writing or both, as illustrated in the figure below:-
4.3.1. Is public participation oral, in writing or both?
The regulations are not specific on the form of participation: oral or written or both.
In some provisions, proponents are clearly obliged to give interested and affected
parties the opportunity to comment on written reports.104
Yet in other provisions,
there is an obligation for the proponent to hold a public meeting at which
presentations must be made and participants given a chance to air their views.105
In
practice, proponents have taken the liberty to use either or both. For instance, in the
case of the Zambia- Democratic Republic of Congo 220KV Electricity
Interconnector project oral deliberative consultation was used.106
This form of
participation facilitated the project proponent arranging compensation for some of
104
Regulation 26 (1) and (2) 105
Regulation 8 (2) 106
Copperbelt Energy Corporation, 'Environmental and Social Impact Assessment for the Zambian
Section of the Zambia- Democratic Republic of Congo 220kv Electricity Interconnector to Be
Developed by Copperbelt Energy Corporation Plc (CEC)', (Kitwe: CEC, October, 2008), xvi- xvii.
FORM OF PARTICIPATION
Is public participation oral, in writing or both
?
If it is oral- how is it structured
?
If it is in writing- is it consultative
?
199
the interested and affected parties, without resorting to litigation. Another example is
the Silverest project, 107
in which the investigator used questionnaires, interviews,
focussed meetings and observation of projects and activities.
There is a problem in not specifying the form of participation that proponents must
use in the EIA process. Proponents are more likely to opt for a less difficult,
inexpensive and convenient manner of fulfilling the legal requirement for public
participation, lack of consultative deliberation notwithstanding.
4.3.2. If it is oral- how is it structured?
The regulations provide for the holding of meetings in the following words:-
In seeking the views of the community in accordance with sub regulation
(1), the developer shall:
(a) Publicise the intended project, its effects and benefits, in the mass
media, in a language understood by the community, for a period not less
than fifteen days and subsequently at regular intervals throughout the
process; and
(b) After the expiration of the period of fifteen days, referred to in
paragraph (a), hold meetings with the affected communities to present
information on the project and to obtain the views of those consulted.108
This provision expressly states that the purpose of public participation is to present
information relating to the proposed project and seek community views. The
implication is that participation should be structured in such a way as to be
consultative.
In the Kalulushi-Lufwanyama road upgrade project, this provision was fulfilled by
holding several prior arranged public meetings in the areas surrounding the proposed
project. The notices for all the meetings were advertised through the print media and
the local community radio for a period of three consecutive weeks prior to the
meeting. Further, notices drafted in two local languages of the area were also placed
in public places such as markets and bus stations.109
This initiative was used to
supplement notices in the mass media, and it can be assumed that more interested
and affected parties were captured.
107
Refer to footnote 83 108
Regulation 9 (2) 109
RDA, 2011, Environmental Impact Statement for the Upgrading of the Kalulushi-Lufwanyama
(M18) Road, Lusaka: Road Development Agency, 3-4
200
The structure of the meetings is not prescribed by law. In the Kalulushi-
Lufwanyama road upgrade project, all the recorded meetings started with the project
proponent’s technical team making introductory presentations on the proposed
project. At a later stage, everyone present was given an opportunity to discuss the
proposed project, and the minutes indicate that the local communities were engaged
in deliberative discussions with the proponent and his technical team. The minutes,
however, show that most issues raised by the local communities were not on the
envisaged impacts of the project in the strict sense. For instance, several issues raised
were in relation to temporary employment for the local community for the duration
of the project, with relatively fewer queries relating to the substantive issues of the
EIA.110
4.3.3. If it is in writing- is it consultative?
Other than the mandatory provisions for public meetings in the EIA legislation,
interested and affected parties are also given the opportunity to comment on all
reports that are submitted in relation to the EIA process.111
The regulations empower
the ZEMA to prescribe the process of submitting comments, including time frames,
format and substance.112
In accordance with this regulation, once the ZEMA receives
duly completed reports i.e. environmental impact statement or environmental project
brief, advertisements are placed in the print and electronic media requesting
members of the public to submit comments.
The process of analysing the written public comments and whether they are in fact
incorporated into the decision-making process is unclear. It is also unclear whether
the project proponent or the ZEMA actually solicit written comments from the
specific areas where the projects are being undertaken. Participation at this stage
should ideally target the interested and affected parties identified at the initial stage
of drawing up terms of reference, including the general public.
110
Ibid. RDA, 2011, Environmental Impact Statement for the Upgrading of the Kalulushi-
Lufwanyama (M18) Road, Lusaka: Road Development Agency, 106, 134 (Minutes of the meetings
are in Annex 3 and 4 to the document). 111
Regulation 16 (1) (c) 112
Regulation 16 (4)
201
For instance, the practice in South Africa shows that it is a legal obligation to draw
up a register of interested and affected parties in the initial stages of the EIA.113
Such
a register can be used in the case of Zambia, to give the registered interested and
affected parties an opportunity to ascertain whether their initial comments and
observations have been taken into consideration in the final reports. It also remains
unclear in practice, whether the ZEMA, upon receipt of comments at this stage,
engages the proponent or the interested and affected parties before a decision is
made. This evaluation reveals that in practice, written participation in its current use
does not meet the aim of facilitating deliberative and consultative participation in the
EIA process.
4.4. Availability of mechanisms for challenging decisions
This category analyses whether decisions granting or refusing to grant environmental
authorisation can be challenged in terms of the EIA legislation in Zambia. Suffice to
restate, this section will show that some provisions in the EIA regulations and the
EMA relating to availability of review and appeal mechanisms are at variance.114
The two questions that this section seeks to answer are illustrated in the diagram
below:-
113
Refer to chapter 5, section 5.2.2. 114
Some provisions relating to time frames in the EIA regulations contradict those in the EMA. As
earlier noted, these inconsistencies will be resolved when the newly enacted Act is aligned with new
regulations. In line with standard legal practice, however, the provisions of the principal legislation
will supersede those of subsidiary legislation in this section.
202
The answers to the two questions illustrated in the diagram above are evaluated as
follows:-
4.4.1. Can the final decision be challenged, and if so, on what grounds?
The decision made by the ZEMA to grant or reject an application for environmental
authorisation can be challenged in two ways. First, an aggrieved party can rely on the
appeal procedure prescribed in the EIA regulations115
and the principal
legislation.116
Secondly, under the provisions of the EMA, the final decision can be
reviewed in the first instance, by the ZEMA Board and subsequently by the
Minister.117
Whereas the regulations make no reference to the grounds for both
appeal and review, the EMA provides as follows:-
Without prejudice to any other grounds for review, a person may object
to the granting of a licence or other approval under this Act on the basis
that the conditions in the licence or approval do not provide adequate
protection to the environment or to human beings against the risk of
adverse effects, or otherwise fail to give effect to the purpose of this
Act.118
(Original emphasis)
This provision acknowledges that there might be other grounds for subjecting the
ZEMA decisions to review. Therefore, this section is only supplementary, thereby
115
Regulation 24 116
Section 29 (5) and section 116 117
Sections 112, 113 and 115 of the EMA 118
Section 112 (2) of the EMA
AVAILABILITY OF REVIEW
AND APPEAL MECHANISMS
Can the final decision be
challenged, and if so on what grounds
?
What options are available in the
event of a successful challenge
?
203
giving any aggrieved persons reasonable latitude to raise grounds that would have
the effect of promoting procedural environmental justice.
For instance, it has been shown in this chapter that the EMA has introduced
innovative procedural and substantive provisions that have the potential to enhance
the EIA process.119
In the event that the ZEMA authorises a development whose
environmental impact statement falls short of meeting the EMA provisions, any
aggrieved person can seek redress through review.120
In relation to the appeal
procedure, both the regulations and the EMA do not prescribe any grounds for
appeal, save to state that any person aggrieved with the decision of the ZEMA, or the
Minister under the Act” may appeal.121
4.4.1.1. Appeal process
As shown in the preceding section, there are two mechanisms for challenging final
decisions in the EIA process in Zambia. This section analyses the appeal procedure.
The regulations and the EMA both require “any party that is aggrieved” to appeal to
the Minister in writing, within ten days after receipt of the decision letter from the
ZEMA.122
The Minister must render a decision on the appeal within fourteen days
after receipt of the appeal,123
whereupon any party aggrieved with the Minister’s
decision can appeal to the High Court and subsequently the Supreme Court.124
It is
difficult to state whether there have been any appeals because these provisions are
relatively new.
4.4.1.2. Access to review
The legal provisions relating to the review process are more complicated. The newly
enacted EMA has introduced provisions for an aggrieved party to seek review, first
with the ZEMA Board, the Minister and ultimately the High Court. In the repealed
legislation, these powers to review were vested in the Minister. In contrast, the
current provisions recognise the ZEMA as a legally constituted environmental
119
Refer to section 3 120
It is yet to be seen how these review and appeal provisions will work in practice. 121
Section 116 (1) and (2) of the EMA 122
Regulation 24 (1) gives 10 days, whereas sections 116 (1) - (2) of the EMA give an aggrieved
person 30 days within which to appeal to the Minister and High Court. 123
Regulation 24 (2) 124
Regulation 24 (3)
204
regulator that takes technical environmental concerns into consideration. The
Minister, unlike the ZEMA, may not have the relevant technical knowledge, and
may be more likely to base an environmental decision on political expediency. This
new requirement to seek review from the ZEMA Board in the first instance, and not
the Minister, is likely to give more prominence to considerations for environmental
wellbeing.
For example the ECZ, forerunner to ZEMA initially rejected an environmental
impact statement for an integrated iron and steel plant project, only to have the
decision overruled by the Minister. The environmental regulator had conducted
technical assessments and reached the decision that the project was not in the interest
of the environment and nearby communities. The Minister on the other hand had
considered that the project would contribute to job creation in the local community,
the adverse environmental impacts notwithstanding.125
It must be noted that although
the Minister is still empowered to review decisions of the ZEMA, the current
legislation unlike the repealed, prescribes that the Minister shall have regard to: the
purpose of the EMA and the principles it represents, as well as relevant policies,
guidelines and standards established by the ZEMA126
In addition to the appeal and review processes prescribed in the EIA regulations and
the EMA, an aggrieved party can proceed to the High Court by way of judicial
review of administrative action or inaction. This option was particularly useful
before the enactment of the current EMA, which did not make provision for
challenging the decision of the Minister. A number of cases have proceeded to court
following unsuccessful challenge of the powers vested in the ZEMA and other
administrative agencies. For instance, in Nyampala (Z) Limited and 4 others v
Zambia Wildlife Authority and 6 others, there was a dispute relating to game
management area concessions which are granted by the Zambia Wildlife Authority
(ZAWA).127
The appellants being dissatisfied with the decision of both the ZAWA
and the Minister applied to the High Court for judicial review. The Supreme Court
125
J Nsama (10 September 2005), 'Will Kafue Steel Plant Comply with ECZ Standards', Times of
Zambia. It must be noted that the project went ahead and is presently being probed for noise pollution,
unsafe working environment, not to mention that it is located in an area zoned as residential. See J
Nsama (2012), 'Zambia: Lessons to Draw From Kafue Steel Plant Blast', Times of Zambia. 126
Section 115 (a) and (b) 127
Supreme Court of Zambia No. 6 of 2004
205
found in favour of the appellants and reiterated three basic principles of judicial
review:-
1. The remedy of judicial review is concerned not with the merits of the
decision, but with the decision- making process itself;
2. The purpose of judicial review is to ensure that the individual is
given fair treatment by the authority to which he has been subjected
and that it is not part of that purpose to substitute the opinion of the
Judiciary or of the individual judges for that of the authority
constituted by law to decide the matter in question;
3. A decision of an inferior court or a public authority may be quashed
(by certiorari) where that court or authority acted;-
(a) Without jurisdiction; or
(b) Exceeded its jurisdiction; or
(c) Failed to comply with the rules of natural justice where those rules
are applicable; or
(d) Where there is an error of law on the face of the record; or
(e) The decision is unreasonable in the ‘Wednesbury Sense,’ namely that
it was a decision which no person or authority properly directing
itself on the relevant law and acting reasonably, could reasonably
have reached (Per Lord Greene MR in the Wednesbury Case).
These three basic principles of judicial review are relevant to environmental matters
in Zambia. The first and second principles are especially important in promoting
access to procedural environmental justice because they focus on resolving
procedural impropriety and unfairness in the decision-making process.
4.4.2. What options are available in the event of a successful challenge?
The principal legislation, the EMA prescribes the remediation action that the
Minister must take after hearing a review or an appeal. In the case of both a review
and an appeal, the Minister can make one of three decisions: 1) to allow wholly or
partially, 2) dismiss or 3) refer back the matter to the ZEMA Board.128
Where a
matter has been taken to the courts for judicial review, the courts normally issue
mandamus, prohibition and/or certiorari orders to quash decisions.129
128
Section 115 (1) (a)- (c) of the EMA 129
M Fordham Judicial Review Handbook (Fifth edn; Oxford: Hart Publishing, 2008), 242-249, 363.
Mandamus is an order issued by a higher court against a lower tribunal, public body or official
directing the performance of a duty, whereas prohibition is an order to a lower tribunal, public body
or official to cease proceedings. The order of certiorari requests the setting aside of a decision where it
has been made unlawfully and is normally used in combination with an order for mandamus; an order
for certiorari sets aside the decision while an order for mandamus requires the decision-maker to re-
make the decision. In Zambia these remedies have been explained and applied in cases such as
ZADECO v. Attorney-General SCZ Judgment No. 37 of 1999, Frederick Chiluba v. Attorney-General
Appeal No. 12 of 2002, Christopher Mundia v. Attorney-General 1986 ZR 37 (SC), Derrick Chitala
(Suing as Secretary of ZADECO) v. Attorney-General 1995 SCZ No. 14 of 1995.
206
5. The Constitution and procedural environmental justice in Zambia
The current Constitution of Zambia establishes the institutional and legal framework
which defines the functions of the various organs of the state. 130
The preamble lays
the foundation for the substantive provisions and partially states:-
Pledging to ourselves that we shall ensure that the State shall respect the
rights and dignity of the human family, uphold the laws of the State and
conduct the affairs of the State in such a manner as to preserve, develop,
and utilise its resources for this and future generations.
The preamble and subsequent substantive provisions of the Constitution only make
reference to inter- and intra-generational equity, without reference to the right to a
clean and healthy environment.
Part III of the Constitution is the Bill of Rights which provides for the protection of
fundamental rights and freedoms, with the exception of socio-economic and cultural
rights such as environmental rights. This approach to exclude environmental rights
from the Bill of Rights can be contrasted with current global and regional trends
which recognise that human rights have an environmental dimension.131
Recent
studies show that in comparison with other countries in the Southern African
Development Community (SADC) region, the guarantee and implementation of
environmental rights Zambia is, at best, inadequate.132
In spite of the lack of enforceable constitutional environmental provisions, the newly
enacted EMA provides for the right to a clean and healthy environment, the exercise
of which is however subject to the Constitution. Section 4 of the newly enacted
EMA provides for the right to a clean and healthy environment in the following
words:-
130
The Constitution of the Republic of Zambia, Act No. 1 of 1991 as amended by Act No. 18 of 1996 131
K. Bosselmann, 'Human Rights and the Environment: Redefining Fundamental Principles',
International Conference on Environmental Justice: Global Ethics for the 21st Century (Melbourne:
University of Melbourne, 1997) at 27- 29. See also C Brunch, ‘Constitutional Environmental Law:
Giving Force to Fundamental Principles in Africa’, Columbia Journal of Environmental Law, (2001),
131- 203. 132
K Bindu (2010), 'Environmental and Developmental Rights in the Southern African Development
Community With Specific Reference to the Democratic Republic of Congo and the Republic of South
Africa', (Pretoria: University of South Africa), 130- 150
207
(1) Subject to the Constitution, every person living in Zambia has the
right to a clean, safe and healthy environment.
(2) The right to a clean, safe and healthy environment shall include the
right of access to the various elements of the environment for
recreational, education, health, spiritual, cultural and economic
purposes.
(3) A person may, where the right referred to in sub- section (1) is
threatened or is likely to be threatened as a result of an act or
omission of any other person, bring an action against the person
whose act or omission is likely to cause harm to human health or the
environment.
It is clear from section 4 (1) that this right is subject to the provisions of the
Constitution of Zambia, which does not oblige any organ of the state to ensure the
realisation of this right. This right can only be enforced between private citizens133
and to some extent, environmental regulators and local authorities. The government
cannot therefore be obliged to take measures to ensure its realisation as the case is in
South Africa, 134
where the exercise of the right to a clean and healthy environment
affords citizens an opportunity to participate in decision-making.
The ZEMA is amenable to the enforcement of the environmental right because it is a
quasi- government regulatory authority that can be sued in its own capacity without
recourse to central government.135
The EMA provides that the ZEMA has the
primary role of overseeing the protection of the environment through initiatives such
as reviewing environmental impact assessment reports, undertaking awareness and
ensuring the observance of environmental principles in the implementation of
developments.136
The enjoyment of the right envisaged in section 4 of the EMA can
therefore be extended to ensuring that the EIA process is conducted in such a manner
as to minimise adverse threats to human health or environmental wellbeing. This
makes the EMA environmental right an important tool that can be used to secure
procedural environmental justice.137
133
Section 4 (b) provides that any public officer can be compelled to take measures to prevent or
discontinue any act or omission threatening or causing harm to human health or the environment. This
is subject to the constitutional provisions however which limit state liability in the enforcement of
socio- economic and cultural rights in Zambia. 134
Refer to chapter 5, section 6.1 135
Section 7 (1)- (2) of the EMA 136
Section 9 137
There has been no case lodged in the courts of law seeking implementation or interpretation of
this novel provision in Zambian environmental legislation as at 31st January 2012.
208
The importance of fundamental rights and freedoms in constitutional democracies
such as Zambia is demonstrated by their incorporating in the Constitution. In the
context of Zambia therefore, it is clear that there is insufficient political will to
honour the significance of a constitutional environmental right.
By way of comparison, it has been shown that in South Africa, the right to a clean
and healthy environment is enshrined in the Constitution.138
The lack of a
constitutional environmental right in Zambia relegates citizens to seeking redress
only through the EMA, which in any case, is limited in effect. Although there is a
global trend towards a constitutional recognition of environmental values,139
this
recognition does not mean that affirmative human rights to the protection of the
environment are guaranteed. Rather, this recognition serves as a basis for developing
mechanisms to challenge infringements and adverse repercussions on human health
and environmental wellbeing.
The Constitution makes provision for matters related to the environment and natural
resources management only as “directive principles of state policy and duties of a
citizen” which are not justiciable or legally enforceable in any court, tribunal or
administrative institution or entity.140
The Constitution provides that the state shall:-
a) Endeavour to provide clean and safe water, adequate medical and
health facilities and decent shelter for all persons, and take measures
to constantly improve such facilities and amenities;
b) Promote a clean and healthy environment for all; and
c) Promote sustenance, development and public awareness on the need
to manage the land, air, and water resources in a balanced and
sustainable manner for the present and future generations.141
These constitutional principles are not justiciable; they merely guide the state in the
development and implementation of national policies, enactment of laws, and
application of the Constitution and any other laws. This lack of justiciability of the
environmental right against the state negatively impacts on the quest for procedural
138
Refer to chapter 6, section 6.1 139
See generally C Brunch, ‘Constitutional Environmental Law: Giving Force to Fundamental
Principles in Africa’, Columbia Journal of Environmental Law, (2001) 131- 203; Bindu,
‘'Environmental and Developmental Rights in the Southern African Development Community With
Specific Reference to the Democratic Republic of Congo and the Republic of South Africa', 17- 57. 140
Article 111 of the Constitution 141
Article 112
209
environmental justice in Zambia. As shown in the case of South Africa, enforceable
constitutional environmental rights can be used to promote transparency and enhance
environmental governance in the EIA process.
Another impediment to procedural environmental justice in Zambia is the general
lack of domestication of international environmental law. Despite Zambia being a
party to numerous environmental conventions, their provisions are not enforceable.
International treaty law is an important source of environmental law for state
parties.142
Consequently, this lack of enforceability of international environmental
treaties in Zambia potentially limits the extent to which procedural environmental
justice can be achieved in the EIA process. For examples, most international
practices with regard to availability of environmental information and public
participation are prescribed in international treaties.143
6. Conclusion
While the repealed environmental framework legislation, the EPPCA had inadequate
provisions to support procedural environmental justice generally, the enactment of
the EMA in April 2011 has introduced a renewed political will to address
environmental matters in Zambia. Further, the regulation and implementation of EIA
in Zambia has fared reasonably well within the sub-Saharan region since 1997.
Having evaluated the current EIA legislative framework using the PEJM, it has been
found that Zambia displays satisfactory legal provisions in relation to: availability of
environmental information, scope and form of participation and the availability of
review and appeal mechanisms.
In this vein, although the practical implementation of the EIA process is guided by
the minimum standards set in legislative provisions, it appears that project
proponents have sometimes implemented initiatives surpassing these minimum
provisions. For instance in the forms of participation, the regulations provide that
public participation shall be through public meeting and comments on reports and
142
P Sands (2003), Principles of International Environmental Law (Cambridge: Cambridge
University Press), 1-10 143
Refer to chapter 4, section 3.4
210
where applicable. Some proponents have also used innovative means such as
investigator-administered questionnaires, interviews and focussed group discussions.
In conclusion, although the substantive consultation process is inadequate due to a
general lack of environmental awareness, the public participation process itself
appears to be satisfactory and provides aggrieved persons with avenues for
procedural redress. The utilisation of appeal and review procedures in resolving
disputes in the EIA process therefore remains under-utilised due to lack of awareness
and inadequate knowledge of environmental law by legal practitioners and the
courts.144
The major shortcoming that has been pointed out is that the current EIA
legislative framework still relies on the regulations promulgated under the repealed
EPPCA. In order to enhance access to procedural environmental justice, there is
urgent need to align the EIA regulations with the innovative provisions contained in
the newly enacted EMA.
144
Sunkutu, 'The Practice of Environmental Law in Zambia', 36- 41
211
CHAPTER SEVEN
COMPARISONS AND CONCLUSIONS
1. Introduction
This thesis has demonstrated that procedural justice underlies the concept of
environmental justice and that it is reflected in practice through effective
participatory opportunities in the EIA process. The aims of this thesis have been
achieved through the objectives to:-
1. Understand the historical origins of environmental justice;
2. Investigate the meaning of environmental justice;
3. Identify and analyse the features of environmental justice interpretations that
enhance procedural environmental justice in environmental matters;
4. Formulate a Procedural Environmental Justice Model;
5. Examine the extent to which the EIA legal frameworks of South Africa and
Zambia incorporate procedural justice values, using features of the
Procedural Environmental Justice Model (PEJM).
The history of environmental justice has been traced from the United States where
distributive inequalities in the siting of locally undesirable land uses (LuLus) led to
the development of a vociferous environmental justice movement (EJM). It has been
shown that as a concept, environmental justice is mainly comprised of social,
distributive, corrective and procedural aspects. This thesis has shown that the
consideration of fairness, equity and justice in the decision-making process is the
basis of all conceptions of environmental justice. Therefore, in order to secure
procedural environmental justice, effective public participation must be incorporated
into the environmental decision-making process.
Importantly, this thesis has formulated a much needed Procedural Environmental
Justice Model (PEJM). This is a four-point evaluative framework focussing on:
availability of environmental information; scope of participation; form of
participation; and availability of review and appeal mechanisms. While the PEJM
212
has been used in this thesis to specifically evaluate EIA legislation in South Africa
and Zambia, it is also a useful tool for evaluating procedural environmental justice in
EIA legislation in other jurisdictions. The specific findings arising from the use of
the PEJM in both South Africa and Zambia are detailed as follows:-
1. Availability of environmental information
Access to information is a prerequisite for legitimacy and access to procedural
environmental justice. In practice, South Africa has a well-defined process for giving
notice and information relating to a proposed development. It has been shown that
the availability of information in South Africa is also enhanced through the
application of the constitutional right to information and the Promotion of Access to
Information Act 2 of 2000.
In the case of Zambia, although Article 20 (1) of the Constitution prescribes the right
to freely receive and communicate ideas and information, its relevance and
application in environmental matters have not been investigated. With the enactment
of the EMA which prescribes environmental awareness, education and access to
environmental information, it is anticipated that availability of information in the
EIA process will be enhanced.
2. Scope of participation
It has been noted in both South Africa and Zambia that there are adequate legal
provisions pertaining to the scope of participation in the EIA process. In terms of
who is allowed to participate, legislation in both countries makes reference to
‘interested and affected parties’ as being entitled to participate. In practice, this term
is not restrictive and includes virtually any person who has the time and interest to
respond to notices requesting public involvement in the EIA process. In the case of
Zambia, however, participation is not inclusive. Although barriers to
communication, such as language are overcome through the innovation of
community radio, illiterate and differently abled participants are not catered for.
In both countries, but more so in the case of Zambia, environmental awareness levels
are low, with the effect that most participants do not understand the purpose of EIA.
213
This is primarily because the environmental ethos is yet to take root in Zambia: local
communities tend to be more preoccupied with socio-economic concerns. In relation
to South Africa however, the prevalence of environmental law and management
practitioners to a great extent mitigates this problem. In Zambia, local communities
are more likely to view EIA public meetings as an opportunity to solicit employment
or other favours. Where prior notices have been issued detailing the nature of the
proposed developments, some communities are unable to give meaningful feedback.
In contrast, project proponents are more likely to benefit from local and traditional
knowledge as part of the scoping and baseline study processes. This allows more
sensitive consideration of alternatives, mitigation measures and trade-offs and
ensures that important impacts are not overlooked and benefits are maximized which
can enrich the final decision.
A major obstacle to effective public participation in both countries relates to when is
participation allowed in the EIA process. Although legislation in both countries
specifies that participation must be on-going, in practice however, this is open to
circumvention as a result of inadequate monitoring.
3. Form of participation
In both countries, EIA legislation provides for oral and written modes of
participation. Irrespective of the form that participation takes, it must achieve the
goal of deliberation and consultation. Generally, written forms of participation are
unlikely to secure two-way deliberative communication within reasonably short
time-frames. As evidenced in both South Africa and Zambia, the legal provisions
relating to written participation are inconsistent and are unlikely to yield consultative
feedback in practice.
With regard to oral participation, South Africa has more elaborate legal provisions
which include mechanisms for reaching out to illiterate and differently abled
participants unlike similar provisions in the context of Zambia. Although proponents
in both South Africa and Zambia seem to prefer public meetings, open days and
workshops among others, there is no prescribed format for oral methods of
participation. In both countries, however, there is need to ensure that the degree of
214
participation allowed must also contribute to raising awareness levels about the
proposed development.
4. Availability of review and appeal mechanisms
This category contributes to realising improved transparency and accountability in
decision-making and increasing public confidence and legitimacy in the EIA
process. In both countries, aggrieved persons are allowed to challenge final EIA
decisions administratively and through the courts of law. Further, the legal
provisions in both countries do not restrict the nature of the grounds of appeal.
Where the final decision is found to have been procedurally or substantively
irregular, the remedy is for the higher authority to quash the decision. The major
problem noted in both countries is that participants in the EIA process do not access
these appeal and review mechanisms. In the case of Zambia and to a lesser extent
South Africa, the underlying reason for this lack of access is the inadequacy of
awareness of these mechanisms among stakeholders.
The overall finding is that the South African environmental law framework is
considerably more developed than that of Zambia. It therefore follows that legal
mechanisms for accessing procedural environmental justice are more enhanced in
South African than Zambian EIA legislation. The South African EIA legislative
framework is defined by the National Environmental Management Act (NEMA),
together with the EIA regulations promulgated thereunder. Importantly, the
Constitution provides for the environmental right as well as other constitutional
rights which are effective in strengthening environmental governance in South
Africa.
The case of Zambia presents a relatively less developed environmental law
framework. The impact of the newly enacted Environment Management Act (EMA)
on the EIA process is hampered by the continued application of regulations that were
enacted under the repealed principal legislation, the EPPCA. Although legislative
measures to enact new EIA regulations under the EMA are presently advanced, this
thesis has evaluated the EIA process with this lacuna in mind.
215
Other factors that affect procedural environmental justice include the absence of a
sustained environmental awareness campaign in Zambia which is also exacerbated
by the underlying lack of an environmental ethos. In addition, the practice of
environmental law as a separate discipline in Zambia is still new whereas in South
Africa, environmental management, law and policy are well developed disciplines
both in practice and the academia.
2. Limitations of the research
This research has two main limitations:-
(a) Research methodology
This thesis has emphasised that the conceptual basis of environmental justice is the
inclusion of fairness, equity and justice in the decision-making processes. It has then
relied on secondary evidence to evaluate how well these principles are put into
practice. The thesis has not generated any primary empirical evidence, and a number
of concerns raised in the EIA process require testing with original empirical evidence
in both South Africa and Zambia. Some of these relate to levels or prevalence of
environmental awareness and participation levels, patterns or prevalence of
environmental awareness and participation. The conduct of empirical research,
however, would need an evaluative framework, which is provided by this thesis.
(b) Legislatives changes
In both South Africa and Zambia, fundamental legislative amendments have taken
place during the course of this research (2007- 2012). For instance, at the
commencement of this research, the literature review conducted in respect of South
Africa yielded materials focussing on the implementation of the 2006 EIA
regulations. By 2008, proposals at advanced legislative stages had been reached to
overhaul the EIA legal framework. This legislative overhaul resulted into the repeal
of significant sections of the NEMA and the subsequent enactment of the 2010
regulations. This overhaul meant that the basis of evaluating the participatory
features of the EIA legal framework in South Africa had shifted significantly.
216
In the case of Zambia, the EPPCA which had been Zambia’s framework legislation
since 1990 was repealed and replaced with the new EMA in April 2011. This
legislative transformation occurred at a stage when this thesis was nearing
completion, but the change was too significant as not to be taken into consideration.
The enactment of the EMA has had a positive impact on this thesis because it has
moulded the chapter on Zambia is such a way as to merit meaningful comparison
with the South African EIA legal framework.
3. Prospects for further research
There are many research opportunities in (procedural) environmental justice. Some
of these are:-
1. The literature review conducted in this thesis reveals that there is a research gap
in both South Africa and Zambia with regard to primary empirical research on
environmental justice generally. Future research can be conducted using the
PEJM and incorporating primary empirical evidence.
2. Environmental justice is a multi-disciplinary concept and the law is only one
means through which it can be realised. In both South Africa and Zambia, there
is inadequate research on environmental justice either from a strictly legal or
multidisciplinary perspective.
3. This research has been limited to evaluating EIA legislation for its procedural
environmental justice content. There are numerous pieces of legislation in South
Africa and Zambia, the totality of which have significant procedural
environmental justice implications and these have not been evaluated in this
thesis. In the specific case of Zambia, further research can be conducted once the
newly enacted environmental legislation is aligned.
4. Law and policy implications and recommendations
The main difference between South Africa and Zambia is that environmental law
reform in Zambia is still in its infancy, whereas in South Africa, environmental law
217
jurisprudence is well-developed. Although it can be argued that political and
economic interests override environmental consideration in both countries, this
problem is more evident in Zambia owing to its less developed economic status. At
present, the EIA legislative framework in South Africa is fairly remarkable but
bureaucratic in its implementation. In the case of Zambia, there is need to
significantly enhance the environmental law framework. The specific legal and
policy implications are detailed below:-
1. In both countries, legislative precision is required to define environmental
justice and dictate its objectives. The law must prescribe procedural measures
for access to environmental justice through clear and deliberate provisions in
line with the innovation of the PEJM: availability of information, form and
scope of participation and specified avenues for resolving disputes in
environmental decision-making processes. More importantly, the use of the
PEJM can be explored beyond South Africa and Zambia.
2. In the case of Zambia, the Constitution needs to be amended to include an
enforceable right to a clean and healthy environment. This will provide the
parameters for citizen action in environmental protection and will be an
acknowledgement that environmental injustices have to be addressed within
the legal framework.
3. The courts in Zambia need to have a good understanding of environmental
law principles in order to arrive at informed decisions which are necessary in
the sound environmental management and dispensation of environmental
justice. In addition, legal practitioners in Zambia need to be equipped with
the necessary interest, knowledge and skills to conduct environmental
litigation which is important in resolving environmental injustices.
218
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APPENDIX
Appendix I: The Seventeen Principles of Environmental Justice
1 Environmental justice affirms the sacredness of Mother Earth, ecological
unity and the interdependence of all species, and the right to be free from
ecological destruction.
2 Environmental justice affirms the sacredness of Mother Earth, ecological
unity and the interdependence of all species, and the right to be free from
ecological destruction.
3 Environmental justice mandates the right to ethical, balanced and responsible
uses of land and renewable resources in the interest of a sustainable planet for
humans and other living things.
4 Environmental justice calls for universal protection from extraction,
production and disposal of toxic/hazardous wastes and poisons that threaten
the fundamental right to clean air, land, water and food.
5 Environmental justice affirms the fundamental right to political, economic,
cultural and environmental self-determination to all peoples
6 Environmental justice demands the cessation of the production of all toxins,
hazardous wastes, and radioactive substances, and that all past and current
producers are held strictly accountable to the people for detoxification and the
containment at the point of production
7 Environmental justice demands the right to participate as equal partners at
every level of decision-making including needs assessment, planning,
implementation, enforcement and evaluation.
8 Environmental justice affirms the right of all workers to a safe and healthy
work environment, without being forced to choose between an unsafe
livelihood and unemployment. It also affirms the right of those who work at
home to be free from environmental hazards.
9 Environmental justice protects the rights of victims of environmental injustice
to receive full compensation and reparations for damages as well as quality
health care.
10 Environmental justice considers governmental acts of environmental injustice
as a violation of international law, the Universal Declaration on Human
Rights, and the United Nations Convention on Genocide.
11 Environmental justice recognizes the special legal relationship of Native
Americans affirming their sovereignty and self-determination.
12 Environmental justice affirms the need for an urban and rural ecology to clean
up and rebuild our cities and rural areas in balance with nature, honouring the
cultural integrity of all our communities, and providing fair access for all to
the full range of resources.
255
13 Environmental justice calls for the strict enforcement of principles of
informed consent, and a halt to the testing of experimental reproductive and
medical procedures and vaccinations on people of colour.
14 Environmental justice opposes the destructive operations of multinational
corporations.
15 Environmental justice opposes military occupations, repression and
exploitation of lands, peoples and cultures
16 Environmental justice calls for the education of present and future
generations, which emphasizes social and environmental issues, based on our
experience and an appreciation of our diverse cultural perspectives.
17 Environmental justice requires that we, as individuals, make personal and
consumer choices to consume as little of Mother Earth’s resources and to
produce as little waste as possible; and to make the conscious decision to
challenge and reprioritize our lifestyles to ensure the health of the natural
world for present and future generations
Source: http://www.ejnet.org/ej/principles.html