Biodiversity Law Centre comments on Flexible EIA proposal
The Department of Forestry, Fisheries and the Environment (“DFFE”) is proposing a major overhaul of South Africa’s environmental impact assessment (“EIA”) system.
Known as the “Flexible EIA System”, the proposal aims to replace the current approach, where listed activities automatically trigger predetermined assessment processes, with a more flexible system that considers the environmental sensitivity of the area in which a development is proposed.
At first glance, this appears sensible. Environmental risk is not determined by activity alone. The same development may have very different consequences depending on whether it is proposed in a heavily transformed industrial area or within a sensitive ecosystem. The Biodiversity Law Centre supports efforts to reform a system that has long been criticised for inefficiency, fragmentation, and poor integration with broader environmental planning.
However, while the proposal identifies many of the right problems, it has its sequencing fundamentally wrong.
The proposal depends on preconditions that do not yet exist
The proposed system requires environmental authorities to determine the sensitivity of the receiving environment before deciding whether a development requires assessment and, if so, how rigorous that assessment should be.
To make these decisions, the proposal relies heavily on environmental management frameworks (“EMFs”), bioregional plans, conservation plans, screening criteria, and other strategic planning tools.
The problem is that these tools are not available across most of South Africa.
Our review found that fewer than 10% of South Africa’s district municipalities currently have an up-to-date EMF. While most districts have integrated development plans, the planning instruments that the proposed system depends on remain absent, incomplete, inconsistent, or outdated across much of the country.
The proposal also relies on environmental information systems and screening criteria that have not yet been developed. Environmental authorities are expected to exercise informed discretion using tools that remain aspirational.
These are foundational requirements for the system to function lawfully and rationally, not a minor implementation detail to be addressed at a later date.
Without comprehensive planning instruments, nationally consistent screening criteria, and accessible environmental information, the proposed system cannot deliver the context-sensitive decision-making it promises. A flexible system cannot be more adaptive if the information needed to understand the context does not exist.
The proposal does not achieve its stated purpose
The proposal states that the new system will improve efficiency, adaptability, stakeholder engagement, environmental protection, and regulatory compliance.
However, there is little evidence that the mechanisms proposed will actually achieve these outcomes.
The proposal introduces new screening processes, pre-application requirements, and additional administrative steps before a development can proceed. Any efficiency gains therefore depend entirely on enough projects being screened out early to offset the additional burden created by these new procedures. No evidence has been provided to demonstrate that this will occur.
The proposal also places considerable emphasis on flexibility. In practice, this flexibility is achieved through broad administrative discretion. Environmental authorities will be required to decide whether a development requires assessment and what level of scrutiny should apply.
Discretion is not inherently problematic. However, discretion can only be exercised rationally when supported by reliable information, clear standards, and adequate institutional capacity. The proposal currently offers none of these with sufficient certainty.
The proposal’s “early exit” mechanism is particularly concerning. Under this approach, developments may be authorised on the basis of a Statement of Insignificant Impact prepared by the applicant or environmental assessment practitioner. This risks allowing developments with unidentified impacts to proceed without meaningful scrutiny, specialist investigation, or public participation.
The proposal also fails to explain how cumulative impacts will be assessed. Environmental harm rarely occurs through a single project. More often, it results from multiple individually insignificant developments that collectively degrade ecosystems over time. A system that screens projects out before cumulative impacts are properly considered risks weakening environmental protection rather than strengthening it.
Ultimately, the proposal promises flexibility, efficiency, and improved environmental outcomes, but the mechanisms proposed are not rationally connected to those objectives.
The public participation process is legally deficient
Meaningful public participation is one of the cornerstones of environmental governance in South Africa.
Yet the proposal seeks to make public participation flexible, with the extent of consultation determined by the perceived significance of a project’s impacts.
This creates a circular problem.
Communities may be excluded because impacts are considered insignificant, but those impacts may only appear insignificant because affected communities have not yet been consulted.
Local communities often possess knowledge that does not appear in environmental databases or planning instruments. Cultural heritage sites, customary land uses, local ecological knowledge, and community concerns frequently only emerge through meaningful engagement.
Public participation is therefore not simply a procedural requirement. It is one of the primary mechanisms through which environmental decision-makers obtain information and ensure accountability.
The consultation process for the proposal itself also raises concerns.
Stakeholders were asked to comment on a fundamental restructuring of South Africa’s environmental assessment system based largely on a PowerPoint presentation rather than a draft legal instrument. Screening criteria, thresholds, assessment routes, and other core components of the proposed system remain undefined. A detailed concept note appears to have existed for months before consultation began but was not made available to stakeholders during the public participation process.
Meaningful public participation requires more than consultation on broad intentions. It requires a genuine opportunity to engage with the actual mechanisms that will give effect to reform.
Reform is necessary, but it must be properly sequenced
The Biodiversity Law Centre agrees that South Africa’s environmental assessment system requires reform. More strategic planning, stronger integration, and greater responsiveness to environmental context are all worthwhile objectives.
However, flexibility cannot be built on absent planning frameworks, incomplete information systems, and undefined screening criteria.
Before environmental authorities are given broader discretion, the tools needed to guide that discretion must first exist.
The DFFE has identified real shortcomings in the current system. But replacing one flawed system with another is not reform.
A flexible EIA system may ultimately prove beneficial. For that to happen, however, the foundations must be built first.
Our full comments, together with a summary of key issues raised, is available below: