In line with steps taken by several other departments, the Department of Environment, Forestry and Fisheries on 31 March 2020, and exercising the extraordinary powers given to the Minister under the Regulations issued in terms of the Disaster Management Act 57 of 2002, Directions were issued in which several timeframes under specific environmental legislation have been extended. The rationale for doing so is the overarching imperative to prevent and combat the spread of Covid-19 and to alleviate and minimise the effects of the consequences of the National State of Disaster on certain environmental processes, licences and reporting requirements. The Directions affect the following legislation:
- National Environmental Management Act 107 of 1998 (“NEMA”);
- National Environmental Management: Waste Act 59 of 2008 (“NEMWA”);
- National Environmental Management: Air Quality Act 39 of 2004 (“AQA”); and
- Environmental Impact Assessment Regulations, 2014 (“EIA Regulations”).
The purpose of the Directions in GN439 is an effort to ensure fair processes relating to licensing, public participation, appeals and reporting requirements. They apply to all parties, both government and private sector, the latter including applicants for or holders of licences as well as interested and affected parties. However notwithstanding these Directions, the notice provides that where any licensing authority, competent authority or appeal authority has publicly indicated that different arrangements apply to those set out in the Directions, then those arrangements will prevail over the arrangements set out in the Directions.
The Directions are divided into three groups:
- Directions relating to licences and environmental authorisations contemplated by NEMA, NEMWA, AQA and the EIA Regulations such that the timeframes specified under any of them affecting these processes or documents are extended by the number of days of the duration of the lockdown period, including any extensions of such duration, with effect from 27 March 2020 until the termination of the lockdown period.
- Directions relating to exemptions contemplated in Sections 74 to 77, the transfer of Waste Management Licences contemplated in Section 52 of NEMWA, authorisations for the export of waste tyres under the Waste Tyre Regulations, 2017 in terms of NEMWA and applications for the amendment of orders to remediate contaminated land in terms of Section 38 of NEMWA, all of which are similarly extended by the number of days for which the lockdown period continues.
- Directions relating to reporting of greenhouse gases in terms of Regulation 8 of the National Atmospheric Emission Reporting Regulations, 2015 and the National Greenhouse Gas Emission Reporting Regulations 2016, promulgated in terms of AQA, which date was originally specified as 31 March 2020, and in terms of which the date for reporting must now be read as 30 April 2020. It is not clear if this date will be further extended if the lockdown period is extended beyond 30 April 2020.
Whilst the Directions bring clarity and certainty to those laws and provisions covered by them, a few issues arise:
- For those who have pending applications under any of the affected legislation, or who were contemplating submitting such applications immediately prior to the lockdown period, there may be concerns about the implications of the delay, in particular if the lockdown is extended, where licenses or authorisations are required for projects which cannot commence until they are issued. In those cases where Covid-19 delays the project itself, the delay in the licence process, may not have significant implications. However where licences or authorisations were anticipated so that projects can commence in Q3 or Q4 of 2020, these may indeed be adversely affected.
- The delays under NEMA, NEMWA and AQA are limited to those licensing and reporting provisions listed in the Directions. There are other obligations which may arise under these Acts which are not covered by the Directions. For example timeframes set for responding to directives issued under Section 28 or compliance notices under Section 31L of NEMA are not included, and will by implication still have to be met during the lockdown period. Similarly a direction under Section 37 of NEMWA to conduct a site assessment of land which is or is reasonably believed to be significantly contaminated, is not covered. These and other examples may raise compliance challenges where laws and rules promulgated in terms of the Disaster Management Act prevent the movement of persons during lockdown. Extensions or condonation may need to be urgently sought in these instances.
- Legislation which is not included in the Directions. For example coastal waters discharge permits under Section 69(1) of the National Environmental Management: Integrated Coastal Management Act 24 of 2008. Will applications for those permits still be processed? Where compliance with conditions under these permits will be impossible due to the prevention of movement of people during the lockdown, condonation or extensions will need to be sought from the relevant authority. Then there is environmental legislation which does not fall under the Department of Environment, Forestry and Fisheries. An example is the National Water Act 36 of 1998 and the licences, reporting obligations, directives and other positive obligations regulated under it. Do water use licence applications continue during the lockdown period, will licences expire and must reporting obligations under licence conditions still continue? Urgent clarity may be required from the competent authority in these instances.