Michael Kidd November 2009

 “Laws are good but their enforcement is inadequate”  Dernbach 2 November 2009: ‘The USA has a well-developed and reasonably effective body of environmental law, yet this has not prevented continuing deterioration of the environment’.  Cf. Boyd Unnatural Law (Canada)

A law will be effective where it achieves its purpose – or ‘its planned goals and objectives’. A Iaw will be efficient where it achieves its purpose at the least cost, ‘in terms of government administrative costs and the costs imposed on the economy in terms of complying with the regulations’. Colin Kirkpatrick & David Parker ‘Regulatory impact assessment: An overview’ in Kirkpatrick & Parker (eds) Regulatory Impact Assessment: Towards Better Regulation? (2007) at 2.

 Slippage ‘has an inevitable cost in terms of damage to our concept of the rule of law. Widespread noncompliance with formally binding requirements undermines the concept that good citizens – and, even more so, government officials – obey the law. For this reason, as much as it engages our interest, and as much as it may be in some respects socially beneficial, slippage must also remain a troubling concept’.  Daniel A Farber ‘Taking slippage seriously: noncompliance and creative compliance in environmental law’ (1999) 23 Harvard LR 297 at 325

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Congress has a ‘notorious propensity’ to ‘pass unrealistic or symbolic statutes that invite an exceptional degree of slippage’. (Farber at 311)

 National Environmental Management Act  s 24. (1) In order to give effect to the general objectives of integrated environmental management laid down in this Chapter, the potential impact on—  (a) the environment;  (b) socio-economic conditions; and  (c) the cultural heritage,  of activities that require authorisation or permission by law and which may significantly affect the environment, must be considered, investigated and assessed prior to their implementation and reported to the organ of state charged by law with authorising, permitting, or otherwise allowing the implementation of an activity.

 NEMA (as amended )  S 24 Environmental authorisations  (1) In order to give effect to the general objectives of integrated environmental management laid down in this Chapter, the potential impact on the environment of listed activities must be considered, investigated, assessed and reported on to the competent authority charged by this Act with granting the relevant environmental authorisation.

 Comprehensive list of activities (i.e. long)  Comprehensively-regulated process  Competent authority has to consider environmental, social and economic impacts (Fuel Retailers case – CC)  Process time consuming  EIA process seen as (and publicly characterised as) impediment to development by government

 We cannot be held hostage by butterfly eggs that have been laid, because environmentalists would care about those things that are important for the preservation of the environment, while we sit around and wait for them to conclude the environmental studies.  Minister of Housing, Lindiwe Hendricks in 2006:

 How to deal with delays?  Incorporate deadlines for decision-making in the regulations (i.e. competent authorities have to decide within a stipulated number of days)  What is the effect of imposing deadlines?

 Insertion of new sections 24K and 24L into NEMA: ◦ Consultation between competent authorities and consideration of legislative compliance requirements of other organs of state having jurisdiction ◦ Alignment of environmental authorisations  Why require an applicant to go through more than one authorisation process for the same activity (in some cases, requiring the authorities to ask and answer essentially the same questions)?

 Did the legislator consider these issues before legislating?

 Regulatory Impact Assessment is a method of policy analysis, which is intended to assist policy-makers in the design, implementation and monitoring of improvements to regulatory systems, by providing a methodology for assessing the likely consequences of proposed regulation and the actual consequences of existing regulations. Colin Kirkpatrick and David Parker Regulatory Impact Assessment : Towards Better Regulation (2007) 1

THE OECD REFERENCE CHECKLIST FOR REGULATORY DECISION- MAKING 1.Is the problem correctly defined? 2.Is government action justified? 3. Is regulation the best form of government action? 4. Is there a legal basis for regulation? 5. What is the appropriate level (or levels) of government for this action? 6. Do the benefits of regulation justify the costs? 7. Is the distribution of effects across society transparent? 8. Is the regulation clear, consistent, comprehensible and accessible to users? 9. Have all interested parties had the opportunity to present their views? 10. How will compliance be achieved? OECD Recommendation of the Council of the OECD on Improving the Quality of Government Regulation (1995).

THE OECD REFERENCE CHECKLIST FOR REGULATORY DECISION- MAKING 1.Is the problem correctly defined? 2.Is government action justified? 3. Is regulation the best form of government action? 4. Is there a legal basis for regulation? 5. What is the appropriate level (or levels) of government for this action? 6. Do the benefits of regulation justify the costs? 7. Is the distribution of effects across society transparent? 8. Is the regulation clear, consistent, comprehensible and accessible to users? 9. Have all interested parties had the opportunity to present their views? 10. How will compliance be achieved? OECD Recommendation of the Council of the OECD on Improving the Quality of Government Regulation (1995).

1.Is the problem correctly defined? What is the underlying purpose of environmental impact assessment? Is it necessary to evaluate so many different activities and different types of activities? Is it necessary to consider the environmental, economic and social impacts of these activities? Is it necessary to authorise activities that have been authorised under separate processes where the same (or essentially the same) issues have been considered? Would it not be more appropriate to consider activities in specified geographic locations (sensitive environments) rather than activities wherever they may be carried out? etc

THE OECD REFERENCE CHECKLIST FOR REGULATORY DECISION- MAKING 1.Is the problem correctly defined? 2.Is government action justified? 3. Is regulation the best form of government action? 4. Is there a legal basis for regulation? 5. What is the appropriate level (or levels) of government for this action? 6. Do the benefits of regulation justify the costs? 7. Is the distribution of effects across society transparent? 8. Is the regulation clear, consistent, comprehensible and accessible to users? 9. Have all interested parties had the opportunity to present their views? 10. How will compliance be achieved? OECD Recommendation of the Council of the OECD on Improving the Quality of Government Regulation (1995).

What is the appropriate level (or levels) of government for this action? National government? Provincial government? Local government? Does the chosen level of government have the:- Money? Human resources (number and expertise)? If not, is this likely to be addressed positively?

THE OECD REFERENCE CHECKLIST FOR REGULATORY DECISION- MAKING 1.Is the problem correctly defined? 2.Is government action justified? 3. Is regulation the best form of government action? 4. Is there a legal basis for regulation? 5. What is the appropriate level (or levels) of government for this action? 6. Do the benefits of regulation justify the costs? 7. Is the distribution of effects across society transparent? 8. Is the regulation clear, consistent, comprehensible and accessible to users? 9. Have all interested parties had the opportunity to present their views? 10. How will compliance be achieved? OECD Recommendation of the Council of the OECD on Improving the Quality of Government Regulation (1995).

Is the regulation clear, consistent, comprehensible and accessible to users? Who are the users? Not just citizens but also the competent authorities… See Silvermine Valley Coalition v Sybrand van der Spuy Boerderye and others 2002 (1) SA 478 (C) HTF Developers (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2006 (5) SA 512 (T) and HTF Developers (Pty) Ltd v Minister of Environmental Affairs and Tourism [2007] 37 SCA 37 (RSA)

THE OECD REFERENCE CHECKLIST FOR REGULATORY DECISION- MAKING 1.Is the problem correctly defined? 2.Is government action justified? 3. Is regulation the best form of government action? 4. Is there a legal basis for regulation? 5. What is the appropriate level (or levels) of government for this action? 6. Do the benefits of regulation justify the costs? 7. Is the distribution of effects across society transparent? 8. Is the regulation clear, consistent, comprehensible and accessible to users? 9. Have all interested parties had the opportunity to present their views? 10. How will compliance be achieved? OECD Recommendation of the Council of the OECD on Improving the Quality of Government Regulation (1995).

How will compliance be achieved? In order for regulatory compliance, citizen requires competent authority to carry out its responsibility timeously and reasonably (and correctly)…

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