a conceptual analysis of environmental justice approaches

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

2

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

4

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

5

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.

8

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.

9

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.

10

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

11

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.

12

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

http://en.wikipedia.org/wiki/United_States_Reports

http://supreme.justia.com/us/426/229/case.html

13

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

14

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

16

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.

17

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

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.’

19

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).

20

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 biocentrism or ecocentrism.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 ecocentric 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 ecocentric 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”.

http://en.wikipedia.org/wiki/U.S._environmental_policy

http://en.wikipedia.org/wiki/Council_on_Environmental_Quality

http://en.wikipedia.org/wiki/Council_on_Environmental_Quality

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.

http://academics.ajula.edu/Content/ContentUnit.asp?CID=1640&u=5933&t=0

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.

http://www.gao.gov/about/index.html

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.

http://en.wikipedia.org/wiki/United_States_Reports

http://supreme.justia.com/us/426/229/case.html

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.

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,

http://www,atsdr.cdc.gov/tfacts17.pdf

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.

http://latimesblogs.latimes.com/lanow/2009/12/cleft-palates-raise-concern-about-toxic-landfill-in-san-joaquin-valley.html

http://latimesblogs.latimes.com/lanow/2009/12/cleft-palates-raise-concern-about-toxic-landfill-in-san-joaquin-valley.html

http://www.latimes.com/news/local/la-me-kettleman-city8-2009dec08,0,4302526.story

http://www.latimes.com/news/local/la-me-kettleman-city8-2009dec08,0,4302526.story

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.

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”.

http://www.epa.gov/history/topics/justice/01.htm

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/ .

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.

http://digitalcommons.law.ggu.edu/gguelj/vol1/issl/5

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


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 intergenerational 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.

http://www.ciel.org/Publications/OneSpecies_OnePlanet.pdf

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.

http://onlinelibrary.wiley.com/doi/10.1002/sd.416/pdf

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'.

http://onlinelibrary.wiley.com/doi/10.1002/sd.416/pdf

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.

http://www.sciencedirect.com/science?_ob=RedirectURL&_method=outwardLink&_partnerName=27983&_origin=article&_zone=art_page&_linkType=scopusAuthorDocuments&_targetURL=http%3A%2F%2Fwww.scopus.com%2Fscopus%2Finward%2Fauthor.url%3FpartnerID%3D10%26rel%3D3.0.0%26sortField%3Dcited%26sortOrder%3Dasc%26author%3DBruhn-Tysk,%2520Sara%26authorID%3D8143703400%26md5%3Dd8c4ec7d58abe10ae752c01f0bd7584d&_acct=C000024058&_version=1&_userid=6991156&md5=16dbd2045ddb49c27cd63f54950fd693

http://www.sciencedirect.com/science?_ob=RedirectURL&_method=outwardLink&_partnerName=27983&_origin=article&_zone=art_page&_linkType=scopusAuthorDocuments&_targetURL=http%3A%2F%2Fwww.scopus.com%2Fscopus%2Finward%2Fauthor.url%3FpartnerID%3D10%26rel%3D3.0.0%26sortField%3Dcited%26sortOrder%3Dasc%26author%3DEklund,%2520Mats%26authorID%3D7004406354%26md5%3D6bf3dc0b1b8bf5169856149a0e97dde5&_acct=C000024058&_version=1&_userid=6991156&md5=7ad5ded22544c001f4507f639c52f807

http://www.sciencedirect.com/science?_ob=RedirectURL&_method=outwardLink&_partnerName=27983&_origin=article&_zone=art_page&_linkType=scopusAuthorDocuments&_targetURL=http%3A%2F%2Fwww.scopus.com%2Fscopus%2Finward%2Fauthor.url%3FpartnerID%3D10%26rel%3D3.0.0%26sortField%3Dcited%26sortOrder%3Dasc%26author%3DBruhn-Tysk,%2520Sara%26authorID%3D8143703400%26md5%3Dd8c4ec7d58abe10ae752c01f0bd7584d&_acct=C000024058&_version=1&_userid=6991156&md5=16dbd2045ddb49c27cd63f54950fd693

http://www.sciencedirect.com/science?_ob=RedirectURL&_method=outwardLink&_partnerName=27983&_origin=article&_zone=art_page&_linkType=scopusAuthorDocuments&_targetURL=http%3A%2F%2Fwww.scopus.com%2Fscopus%2Finward%2Fauthor.url%3FpartnerID%3D10%26rel%3D3.0.0%26sortField%3Dcited%26sortOrder%3Dasc%26author%3DEklund,%2520Mats%26authorID%3D7004406354%26md5%3D6bf3dc0b1b8bf5169856149a0e97dde5&_acct=C000024058&_version=1&_userid=6991156&md5=7ad5ded22544c001f4507f639c52f807

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.

http://www.epa.gov/swerops/ej/index

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.

http://www.iied.org/docs/wssd/bp_envrights.pdf

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 ecocentric 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


Bullard, 'Overcoming Racism in Environmental Decision- Making', at 13; Bullard, Dumping in

Dixie: Race, Class and Environmental Quality, 116. 34


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


Ibid., at 10698. 40

Bullard, Dumping in Dixie: Race, Class and Environmental Quality, 116. 41


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

redistributed.

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


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


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


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


R. E Rodes, 'Social Justice and Liberation', Notre Dam Law Review, 71 (1996), 619- 20. 81


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


(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

http://www.newclearvision.com/2011/03/02/toward-an-environmental-justice-act/


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


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


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


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


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.

http://www.unece.org/about/about.htm

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


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


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.

http://www.unece.org/env/eia/eia.htm

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.

http://web.worldbank.org/WBSITE/EXTERNAL/PROJECTS/EXTPOLICIES/EXTOPMANUAL/0,,contentMDK:20064724~menuPK:4564185~pagePK:64709096~piPK:64709108~theSitePK:502184,00.html



http://live.unece.org/fileadmin/DAM/env/eia/documents/legaltexts/conventiontextenglish.pdf

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


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


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


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 prerequisite 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

prerequisite 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).


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


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 interrelated. 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 reproduced 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














information




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


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


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


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 reproduced 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:-


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?











information




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


information

To whom is it made available

?

How is it made

available

?

Is it freely

available

?

When is it made

available

?

150


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


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) (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.


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


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


(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:-


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.


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



?


?

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


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 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


Murombo, 'Beyond Public Participation: The Disjuncture between South Africa's Environmental

Impact Assessment (Eia) Law and Sustainable Development', 12. 116



Regulation 56 (6)

159

interested and affected parties are attached to the final report submitted to the


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 (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


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


(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.



?


?


?

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.


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


(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


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.





?



?

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.”

http://www.capegateway.gov.za/eadp

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 (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


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


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


(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














information




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


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


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 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?











information




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:-


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)


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.


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


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



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


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


Refer to the Fifth Schedule to Statutory Instrument No. 28 of 1997, The EIA Regulations. 90


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


195


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.



?


?

196


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:-


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


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.



?


?


?

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.


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


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


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





?



?

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 (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.


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 subsection (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


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


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


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

http://www.ejnet.org/ej/principles.html