A recent decision out of the Pretoria High Court has continued the trend of recent judgments enforcing more stringent compliance with environmental authorisation processes, and the public participation process in particular.
On 02 August 2022, the Pretoria High Court heard a matter in which the South Durban Community Environmental Alliance (“SDCE”) sought to review and set aside an environmental authorisation (“EA”) granted for the construction of a mid-merit combined cycle gas power plant in Richards Bay. The EA was granted to Eskom by the Department of Forestry, Fisheries and the Environment on 23 December 2019, following the completion of a full environmental impact assessment.
The SDCE raised numerous, and ultimately unsuccessful, grounds of review, including, inter alia –
- inadequate climate change impact assessment;
- inadequate consideration of need and desirability;
- a failure to consider renewable alternatives;
- a failure to consider cumulative environmental impacts;
- inadequate water resources assessment; and
- inappropriate wetland offset.
While the court, after due consideration, found the above grounds to be without merit, it agreed with SDCE that there was indeed inadequate public participation undertaken during the EA application. In the context of the relevant provisions of the NEMA and the EIA Regulations, read with the provisions of the Promotion of Administrative Justice Act, the court held that “[i]t is one of the foundational principles of NEMA that the participation of all interested and affected parties must be promoted and the participation of disadvantaged people must be ensured”.
In particular, the court highlighted the obligations contained in section 23(2) of NEMA which provides that notice of the power plant must be given “using reasonable alternative methods, as agreed to by the competent authority, in those instances where a person is desirous of but unable to participate in the process due to illiteracy; disability; or any other disadvantage”. Regulation 42 of the EIA Regulations further provides that “[t]he public participation process must be facilitated in a manner that provides all potential interest and affected parties a reasonable opportunity to comment on the proposed project”.
Notwithstanding Eskom’s own acknowledgment that 79% of the areas affected by the proposed power plant are isiZulu speaking, the public participation process did not include any notices, boards, or advertisements (whether print or radio) in isiZulu, and there was no indication of any attempt being made invite consultation directly by the non-English speaking communities in traditional areas. While Eskom dismissed this as a “pedantic” interpretation of the public participation requirements, the Court cited the recent decision in The Federation of South African Fly Fishers v Minister of Environmental Affairs where it was found that –
“Public participation in democratic process is not the exclusive preserve of educated members of society who can read English, or the privileged few who have access to the internet. Participative democracy is one of the foundational values of the Constitution and everyone should be encouraged and enabled to participate”.
SDCE further raised the recent decision in Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources and Energy and Others, where the court held that –
“… a person who does not know of the process cannot be expected to register and participate in the process as an interested and affected person. … those who cannot read English or Afrikaans were excluded from the consultation process. Meaningful consultation entails providing communities with the necessary information on the proposed activities and affording them an opportunity to make informed representations.”
In the context of these decisions, the court found that Eskom’s failure to give notice of the proposed power plant in the local language would make it more than probable that a non-English speaking person would not have been aware of the public participation process and, as a result, would have failed to register as an interested and affected party. Furthermore, the fact that such information was made available in libraries and online has an express prerequisite that affected persons possess a certain level of education and ability to access the internet. The court found that for those who are not conversant in English, notwithstanding that they may be sufficiently educated and have access to the internet, even this is of no assistance.
In light of the above, the court ultimately agreed with SDCE and held that –
“In the circumstances while the public participation process did comply procedurally with the requirements for public participation set out by NEMA and the EIA Regulations – both in respect of the EA process generally and specifically regarding the wetland offset, I find that it did not do so adequately. There is accordingly some merit in this ground of review”.
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