Willemien du Plessis Obligations placed on local government by environmental law and the consequences of failing to comply Conference on Local Government.

Willemien du Plessis

Obligations placed on local government by environmental law and the consequences of failing to comply

Conference on Local Government LawPort Elizabeth

5-6 November 2014

• Based on chapter 3 in • Du Plessis A (ed)

Environmental Law and Local Government in South Africa

• (2014 Juta) to be published

• Chapter 3: • Nel J, Du Plessis W and Du Plessis A

"Instrumentation for local environmental governance"

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Local government acts as

• Regulator

• Regulated

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Section 24 Constitution

• 24. Everyone has the right to• (a) 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.

Regulated

Regulator3

What is the environment?

• “environment.’ means the surroundings within which humans exist and that

• are made up of—– (i) the land, water and atmosphere of the earth:– (ii) micro-organisms, plant and animal life:– (iii) any part or combination of (i) and (ii) and the

interrelationships among and between them: and– (iv) the physical, chemical, aesthetic and cultural

properties and conditions of the foregoing– that influence human health and well-being

– S 1 National Environmental Management Act 107 of 1998

Whose reponsibility?

National?Provincial?

Local?

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REGULATOR

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Le Sueur v Ethekwini Municipality (9714/11) [2013] ZAKZPHC 6 (30 January 2013)

• "there is nothing in the Bill of Rights itself to suggest that the protections offered by Section 24 of the Constitution are only binding on National and Provincial spheres of Government.

• Quite evidently these obligations apply to all three spheres of Government.

• Municipalities may not legislate in conflict with Section 24 of the Constitution.

• It is evident that Section 152(1)(d) of the Constitution requires that Local Government “promote a safe and healthy environment”.

• Together with the reference in Section 24 of the Constitution to reasonable legislative and other measures to promote ecologically sustainable development, justifiable economic and social development as well as the promotion of conservation is also binding on a Municipality when it exercises its powers and performs its functions as set out in Parts B of Schedules 4 and 5 of the Constitution and

• those allocated to it in terms of Section 156(1)(b) of the Constitution and Section 156(4). "

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Le Sueur v Ethekwini Municipality

• "Section 156(1)(b) provides that a Municipality has the executive authority and the right to administer not just matters listed in Parts B of Schedule 4 and 5 but also:-

• “Any other matter assigned to it by National or Provincial legislation”.• Accordingly, Section 156(4) of the Constitution provides indications

that even matters reserved for National and Provincial legislative authority in Parts A of Schedules 4 and 5 may be dealt with at Municipal level. It provides:-– “The National Government and Provincial Governments must assign to a

Municipality, by agreement and subject to any conditions, the administration of a matter listed in Part A of Schedule 4, or Part A of Schedule 5 which necessarily relates to Local Government, if:-

– The matter would most effectively be administered locally; and– The Municipality has the capacity to administer it”

• Section 156(5) provides that “a Municipality has the right to exercise any power concerning a matter reasonably necessary for or incidental to, the effective performance of its functions.”

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Le Sueur v Ethekwini Municipality

• "It is apparent that although matters relating to the environment may be said, in terms of the Constitution, to be the primary concern or sphere of National and Provincial responsibility that Local Governments in the form of Municipalities are in the best position to know, understand, and deal with issues involving the environment at the local level.

• The first respondent correctly submits, in my view, that the framers of the Constitution did not intend thereby to allocate legislative powers amongst the three spheres of Government in hermetically sealed, distinct and water tight compartments."

• EVEN• "[26] In addition, Section 2(4)(f) of the Local Government; Municipal

planning and Performance Management Regulations published on 24 August 2001 requires spatial development frameworks reflected in an integrated development plan to:-

• “contain a strategic assessment of the environmental impact of the spatial development framework”.

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Local Government various instruments

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AS REGULATED

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As regulated: Local governments

• need to know the applicable law;• need to manage own environmental

authorisations, permits and licences; • need to ensure and assure compliance to all

applicable environmental law; and • avoid prosecution and litigation

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1. Know the law

• Important to know which laws apply to – Activities– Products– Services

• Who the regulatory agencies are• How the laws apply to the municipality

• Possible instrument: Legal register

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Complexity of SA Environmental Law

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Know the lawActivitySpecific

environmental duty

Authorisation required

Agreement/lease to be concluded

Permission required

Undertaking of any activity listed under s 24 of NEMA

  X    

Control of the spreading of weeds on municipal land.

X      

Establishment and management of communal and small waste facilities

X X    

Undertaking of waste management activities listed in the NEM:WA

  X    

Commencement, undertaking or conducting of a waste management activity

  X    

Specific measures applying to waste tyres, especially the measures pertaining to the reuse, storage, stockpiling and recovery of these tyres

X      

Cutting, collection, removal transportation, and disposal of indigenous trees or natural forests

  X    

Prohibition of the use of asbestos and materials containing asbestos X      

Preparation and maintenance of firebreaks when a veld fire originates on land belonging to the municipality.  

Municipality to consult with neighbouring owners before preparing a firebreak

X      

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Management of dams with a safety risk x      

Management of water services works and purification of waste water

X      

Generation, transmission and distribution of electricity

  X    

Supply of electricity reticulation services X      

Energy efficiency standards pertaining to street lighting and lighting in buildings

X      

Construction of gas transmission, storage, distribution, liquefaction or re-gasification facilities or the operation of such facilities

 X

Undertaking any activity listed in terms of the NEM:AQA

 X

Activities in the coastal zone   X    

Occupation of, construction, building, erection of any building, road, barrier or structure on or in coastal public property

    X  

Claiming of an exclusive right to use or exploit any specific coastal resource in any part of, or that is derived from coastal public property

X

(Concession)

Erection of bathing houses or tents, beach shelters, tea rooms, construction or improvement wharves, piers, jetties or landing stages, or the carrying out of any work of public utility

    X  

Designation of an area as a recreational area where vehicles may be used for recreational purposes in the coastal zone

      X

ActivitySpecific

environmental duty

Authorisation required

Agreement/lease to be concluded

Permission required

Polluter pays principle

• S 19 National Water Act and s 28 of National Environmental Management Act

• Even if the Municipality is not the polluter it may still be held liable!

In June 2014, three babies died in Bloemhof from drinking contaminated water. It was a

national tragedy. The municipal manager resigned ahead of two criminal lawsuits, the

mayor was fired. The Minister of Water Affairs Edna Molewa promised swift

intervention and R20 million to fix the problem. But during the same time – in fact, up until last week - more than eleven infants

have died in a tiny spot on the map called Biesiesvlei, close to a slightly larger spot on

the map called Sannieshof. But there is no national intervention – yet.Daily Maverick 9 July 2014

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Example: s 28 NEMA

• S 28 – Duty of care & Polluter pays principle• (1) Every person who causes, has caused or may cause significant

pollution or degradation of the environment must take reasonable measures to prevent such pollution or degradation from occurring, continuing or recurring, or, in so far as such harm to the environment is authorised by law or cannot reasonably be avoided or stopped, to minimise and rectify such pollution or degradation of the environment.

•    (1A) Subsection (1) also applies to a significant pollution or degradation that-

•        (a)     occurred before the commencement of this Act; •        (b)     arises or is likely to arise at a different time from the actual

activity that caused the contamination; or •        (c)     arises through an act or activity of a person that results in a

change to pre-existing contamination. • [Sub-s. (1A) inserted by s. 12 (a) of Act 14 of 2009.]

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S 29 NEMA (cont)

• (2) Without limiting the generality of the duty in subsection (1), the persons on whom subsection (1) imposes an obligation to take reasonable measures, include an owner of land or premises, a person in control of land or premises or a person who has a right to use the land or premises on which or in which-

•        (a)     any activity or process is or was performed or undertaken; or

•        (b)     any other situation exists, •

which causes, has caused or is likely to cause significant pollution or degradation of the environment.

Similar measures in terms of

National Water Act

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Strict liability!!!!

2. Specific environmental duties, e.g.

• to appoint suitably qualified staff – E.g. a pest control operator who applies herbicides and pesticides must be

registered in terms of ss 3 and 7bis of the Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act 36 of 1947; air quality officer - NEMAQA

• to register such staff with environmental authorities of the provincial and national spheres (e.g. s 62(2)(b) of the Water Services Act)

• Municipalities may also be required to keep environmental records• and to perform in terms of specific norms and standards such as:

– air quality standards issued in terms of the National Environmental Management Air Quality Act 39 of 2004 (NEM:AQA);

– water quality standards set by the Minister in terms of the Water Services Act 108 of 1997;

– national standards to control noise • May also be required to conduct prescribed monitoring (s 9 Water Services Act)

• submit regular performance reports (s 34(2) NEMAQA; s 7 & 9 NEMWA)• and establish and maintain public communication • NEMA empowers the competent authority to request a defaulting

municipality to submit an environmental audit report on the actual or potential harm to the environment.

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3. Manage environmental authorisations, permits and licences

• Detailed and specific conditions• The validity of the authorisation needs to be managed and maintained in

terms of: – permit validity and environmental performance time frames; – changes to the name of the legal person who is the licence holder;– changes to the nature of the authorised activity, process or facility; and – the ability of the licensee to sustain compliance to the conditions of the

authorisation. • Instrument: e.g. dedicated environmental authorisation register together with

authorisation management plans. • The persons in charge of the regulated activity should also adopt and use a

management of change (MOC) control procedure to ensure that incremental changes do not over time cause any breaches of the conditions of authorisations.

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4. Compliance management

• It is similarly important for municipalities to know whether they are indeed compliant with the applicable environmental law and what needs to be done to objectively demonstrate sustained compliance.

• Instruments to achieve, maintain and demonstrate compliance with the requirements of applicable South African environmental law are – environmental management or compliance plans, – legal compliance audits and inspections, as well as– performance monitoring.

• The integrity of both internal legal compliance audits and auditor competence can be quality assured in terms of the ISO 19011: 2011 Guidelines for Auditing Management Systems.

• The outcomes of a legal base-line audit are normally reported in a formal audit report.

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Non-compliance

• Directive – in terms of legislation e.g.– S 19 National Water Act ; S 28 of NEMA– Non-compliance – fine or imprisonment or both

• If did not comply with environmental impact assessment requirements– Administrative fine– S 24G rectification application– Possible prosecution

• Personal criminal liability & Corporate liability (e.g. as municipal manager)– Again – fine and imprisonment / both– S 48 of NEMA that protected municipalities against criminal prosecution has

been repealed.– Although ch 3 of Constitution states – avoid litigation – see more and more cases

where municipal managers (and corporate directors) are brought to trial– If fine – tax payer that bears the brunt of the fine and the possible "pollution" –

therefore necessary to rather try to remedy or use instrumentation to prevent pollution or degradation to environment

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How to avoid prosecution?

• First remember:• In terms of NEMA – trustee of

the environment – s 2• In terms of s 28 of NEMA –

duty of care• To prevent pollution and

environmental degradation• And to take reasonable

measures

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Integration of decision-making & need for cooperative governance

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Other reasonable measures

• a) municipal integrated development planning (IDP);

• b) performance management; • c) budgeting and funding; • d) supply chain management; • e) human resource management; and • f) internal auditing

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E.g. IDPNational regulator/ role/ role players /

instruments of relevance

Provincial / district level regulator / role/ role

players /

Instruments of relevance

SMP to be developed by municipality

Act Section(s)      SMPs

relationship with IDP

Water Services Act 12-16National Department of Environmental and Water Affairs

Provincial offices of Water Affairs

Water services development plan

Part of IDP process / draft separately

NEMWA 11(4) To be approved by MEC

All three spheres of government has the mandate depending on category of waste

Integrated waste planTo be included in IDP

NEMBA 39

National biodiversity framework with norms and standards- municipality to comply with norms and standards

South African Biodiversity Institute (SANBI)

No specific SMP

No specific SMP but IDP must be aligned with and should incorporate norms and standards

NEMBA 76(2)(b)

Monitoring, control and eradication plan for invasive species on land under their control

Include in IDP

NEMAQA7 and 9, 15-16

National air quality framework & national standards

District MunicipalitiesAir quality management plan

Include in IDP

In conclusion

• As Regulator – local government may ensure that there is an environment that is not detrimental to health and well-being

• As Regulated – ensure that does not create an environment that is detrimental to health and well-being

• How?– Use instruments available to local government – adapt existing instruments to

also ensure that decision-making takes the environment into account– Appoint competent staff / train staff in environmental legal compliance– Make use of auditing – King III reporting expects triple bottom line reporting –

Auditor-General already audits compliance to environmental law– Ensure that contractors are also aware of environmental laws and need for

compliance (e.g. illegal dumping, medical waste, hazardous waste etc)– Make use of incentives to staff, marketing etc (Green Drop, Blue Drop etc)– ENSURE COMPLIANCE TO THE LAW– Avoid criminal and civil litigation ……

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Thank You!