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ENVIRONMENTAL MANAGEMENT: AN INTRODUCTION

1

CHAPTER 1


J G Nel and L J Kotzé

1.1 INTRODUCTION

Environmental management is an elusive concept subject to frequent, but often imprecise, use. It also has evolved rapidly, over a very short time span when compared to other management disciplines and related scientific fields. Environmental management means different things to different people, especially depending on the context in and the purpose or objectives for which it is used. The authors argue that the concept is strongly embedded in the legal sciences (specifically environmental law), and that it is, additionally, also a management or governance strategy which ultimately is aimed at shaping or changing the behaviour of people in their environment. Put differently, environmental management is not management of the environment. It is rather a management or governance strategy deriving its authority from a well-established legal mandate with as its primary objective the regulation of the effects of peoples’ activities, products and services on the environment.

This chapter commences by exploring key concepts; proceeds to analyse the concept of environmental management; reflects on the challenges facing environmental management; distinguishes between environmental governance and environmental management; reflects critically on some of the challenges facing environmental governance, especially fragmentation, and unpacks the concept of integrated environmental management. The chapter concludes with some observations on what environmental management may mean in South African context.

1.2 DEFINING KEY CONCEPTS

1.2.1 Exploring the concept ‘environment’

Rabie, 1 in an earlier edition of this book, remarked that:

There is no general agreement on exactly what the concept 'environment' encompasses. Curiously enough, its meaning is often simply taken for granted and many commentators and even official publications discuss environmental problems without attempting to define 'environment'. It is obvious, nevertheless, that any meaningful classification and discussion of environmental problems, as well as any advocacy of the cause of environmental conservation, presuppose clarity over the pivotal concept of environment.

Little has changed since this earlier perspective. In an attempt to provide some clarity on this vague concept, it is argued in this chapter that the term ‘environment’ may be defined from either an exclusively ‘green’ perspective or a perspective that integrates ‘green’ issues with social, cultural and economic, or ‘brown’ issues. It argues, in addition, that 'environment', for the purpose of environmental management, may and should be considered from both a legal and scientific point of view.

1.2.1.1 Green perspectives on the ‘environment’

One perspective of the term ‘environment’ is that it should address the ‘green’ environmental agenda only, i.e., the biotic

2 and abiotic

3 elements of the earth system, including

the interacting ecosystem processes. The biotic and abiotic ecosystem elements, including their interactions, recycling of matter by means of biochemical cycles

4 within a closed system

5 in line

with the law of conservation of matter,6 as well as the movement of energy through ecosystems

in line with the first and second laws of thermodynamics,7 generally are understood to constitute

1 Rabie “Nature and Scope of Environmental Law” in Fuggle RF and Rabie MA (eds) Environmental Management in

South Africa (1992) 83. 2 Biotic elements refer to the living elements of ecosystems such as animals, humans, plants and micro-organisms.

3 The abiotic elements are the non-living elements of ecosystems such as water, land, soil, air, energy, light and so forth.

4 Matter is recycled continually in closed systems. A biochemical cycle is the transportation and transformation of

chemicals in ecosystems. The most important biochemical cycles include the nitrogen, phosphorous and carbon cycles. 5 A closed system is a system where energy can enter or leave the system, but matter is recycled.

6 This law dictates that in any ordinary action or reaction, matter is neither created nor destroyed. Matter may be

transformed only from one form to another. 7 The first law of thermodynamics dictates that energy may neither be created nor destroyed; it may only be transformed

from one form to another. The second law of thermodynamics dictate that every time that energy is transformed its

ENVIRONMENTAL MANAGEMENT IN SOUTH AFRICA

2

the ‘green’ elements of the environment. It also covers issues such as environmental degradation, protection of threatened species and ecosystems, vulnerable habitats and biodiversity, eradication of alien, invasive species and maintenance of ecosystem services.

8 A

typical definition of the environment from the green perspective is proposed by Colby:9

The environment is the complex of biotic, climatic, soil and other conditions which comprise the immediate habitat of an organism; the physical, chemical and biological surroundings of an organism at any time.

The abiotic elements of the environment are bounded by the characteristics of a closed

system and the imperatives of the law of conservation of matter. This law explains issues such as the reality of pollution, the need for effective waste management,

10 conservation of green

capital11

or global common goods,12

maintenance of environmental services and environmental sectoral quality issues including, inter alia: air quality and climate protection, water quality and quantity management, soil protection, protection of agriculturally productive land, protection of health and food security.

1.2.1.2 ‘Brown’ perspectives on the environment

The antithesis to the green capital doctrine argues that human beings are an integral and indivisible part of the earth system and that ‘brown capital’ or social issues may not be separated from the green environment.

13 This perspective adds social issues to the

environmental debate, including: patterns of production and consumption equity imbalances manifested by inequitable access to opportunities, resources and services;

14 and those

individuals and groups15

challenged by poverty, disease, unemployment, crime and environmental injustice. Brown issues often also address the vulnerabilities of excluded groups based on culture, gender age, race, religion and the indigent in the event of catastrophes. The brown elements of the environment also may include building resilient communities, including arrangements to prevent, manage and recover from disasters or set backs.

16

Managing the cultural resource base often is considered also to be a subset of the ‘brown’ environment. Cultural resources may include resources that are significant from an aesthetic, historic, scientific, spiritual or social value for past, present or future generations.

17

The concept ‘environment’ is complicated even further when it fuses with the principles of sustainability and sustainable development as economic and development issues are added to the debate.

1.2.1.3 A legal definition of the concept ‘environment’

Attributing a meaning to the concept ’environment’ for the purpose of law is a potentially challenging task. An effort to define ’environment’ reaches beyond the realms of a mere exercise in semantics. One requires a proper, practical and realistic definition to identify the depth and reach of this concept, especially insofar as the National Environmental Management

ability to do useful work is reduced. 8 Ecosystem services are processes by which the natural environment produces resources useful to people, akin to

economic services. They include, for example: provision of clean water and air, pollination of crops, mitigation of environmental hazards, pest and disease control, cultural services such as spiritual, recreational and cultural benefits as well as supporting services such as nutrient cycling that maintain conditions for life on earth. 9 Colby (1989) Environmental management in development: the evolution of paradigms. http://www-

wds.worldbank.org/servlet/WDSContentServer/WDSP/IB/1989/11/01/000009265_3960928125138/Rendered/PDF/multi_page.pdf at 23. 10

Effective waste management acknowledges the need to drive the waste management hierarchy of waste avoidance, minimisation, recycling and re-use, and as a last resort, responsible disposal, including the principle of integrated pollution control and waste management that do not allow transfer of waste from one medium to another. See also in this regard Kotzé A legal framework for integrated environmental governance in South Africa and the North West Province (2006) 41-46, 105-133. 11

Green capital refers to the intrinsic value of natural resources, biodiversity and ecosystem functions and services as opposed to brown or social capital and fiscal capital. Recognition of all three forms of equity underpins the triple bottom line doctrine. 12

Global common goods that local governments may have jurisdiction over include: air, climate, water, soil, biodiversity, healthcare and services and food security. 13

Reagen An Ecological Basis for Integrated Environmental Management (2006) 819-833; and Barrow Developing the Environment – Problems and Management (1995) 22. 14

Access to services may include, amongst others, services such as public health, nutrition, housing, education energy, sanitation, waste services education and access to affordable transport, energy and water. 15

Groups often are differentiated by age (the youth and the aged), class (income patterns and access to resources), sex (the role of women) and the disadvantaged (based on race or minority groups). 16

The concept of environmental justice also comes to mind when brown issues are raised. 17

In the South African environmental context, cultural resources are regulated by, inter alia, the South African Heritage Resource Agency.

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

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

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

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

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

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

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

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

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

http://www.greenfacts.org/glossary/drafts/MA/nutrient-cycling.htm

http://www-wds.worldbank.org/servlet/WDSContentServer/WDSP/IB/1989/11/01/000009265_3960928125138/Rendered/PDF/multi_page.pdf%20at%2023




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Act 107 of 1998 (NEMA) defines environment as: …the surroundings within which humans exist and that are made up of- (i) the land, water and atmosphere of the earth; (ii) micro-organisms, plant and animal life; (iii) any part or combination of (i) and (ii) and the interrelationships among and between them; and (iv) the physical, chemical, aesthetic and cultural properties and conditions of the foregoing that influence human health and well-being.

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It is easy to revert to this definition since it is generally considered (and intended) to be

the official legal definition. The matter is, however, not as simple. How should this definition be interpreted as it fails to answer a number of pertinent questions? Does it lean more towards an anthropocentric or ecocentric approach? How are cultural issues addressed in the definition? Does the definition relate to the built environment or the natural environment, or to both? Are there other definitions or interpretations of ’environment’ that may have a bearing on NEMA’s definition? Perhaps more important for the purpose of this chapter, what is the prominence of social, economic and environmental considerations in this definition, or for that matter, any other relevant definition? The authors turn to a brief historical review and analysis of the legal perspective of this concept to suggest some answers.

The Environment Conservation Act 73 of 1989 (ECA) was the first comprehensive environmental framework act which adopted generic elements and definitions applicable to environmental law, governance and management in South Africa. The act defines “environment” as: …the aggregate of surrounding objects, conditions and influences that influence the life and habits of man or any other organism or collection of organisms.

19

This definition has not been repealed by NEMA and still may be used for the purpose of

interpreting and applying the ECA provisions that also have not been repealed by NEMA.20

In 1994, a general environmental policy was issued in terms of section 2(1) of ECA.

21 This policy

does not define environment, but reiterates that: Every inhabitant of the Republic of South Africa has the right to live, work and relax in a safe, productive, healthy and aesthetically and culturally acceptable environment.

22

Although section 2(1) of ECA consequently has been repealed by NEMA, it may be argued that at the time of writing this policy has not been repealed along with this section, especially when considering the “sunshine clause” in NEMA which preserves some regulations and also policies of ECA.

23

The Constitution of the Republic of South Africa, 1996 (Constitution), introduced an entirely new approach to environmental law, governance and management by providing for a right to an environment that is not harmful to health or well-being.

24 The introduction of this

environmental right heralded an important break from the past approach as is evidenced by ECA and its policies. ‘Environment’ is not defined in the Constitution. Notwithstanding, it is pertinent to define ‘environment’ so as to determine the scope and reach of section 24, especially given that this is the primary constitutional entitlement to environmental protection in South Africa. ‘Environment’ in the constitutional context, should be interpreted in a manner which will

18

Section 1. 19

Section 1. 20

See also Glazewski Environmental Law in South Africa (2 ed 2005) 9. The definition may, for example, be used when interpreting and applying Part VI of the Act which deals with the control of environmental pollution. Where another environmental act cross-references to the definition of “environment” in ECA, it follows that the ECA definition must continue to be used for interpretation purposes of that particular act. See, for example, the Development Facilitation Act 67 of 1995. 21

General Policy in terms of the Environment Conservation Act, 1989 (Act No 73 of 1989) GN 51 published in Government Gazette 15428 of 21 January 1994, 22

Preamble. 23

Section 50(1) of NEMA only repeals certain sections of ECA, including, inter alia, section 2. It does, however, not repeal regulations and policies issued under ECA. 24

Section 24 states that: 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.


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“…promote the values that underlie an open and democratic society based on human dignity, equality and freedom”.

25 There also are some contextual considerations when defining

‘environment’ for purposes of the Constitution. These include, amongst others, that section 24 is not the only right governing policies that affect the conditions of human life since, inter alia, the rights to life, human dignity, equality, access to water, housing and health care also are relevant.

26 On the one hand, one therefore should apply a restrictive interpretation to

‘environment’, since the environmental right is not the only right that may be invoked to guarantee acceptable human conditions of human life. On the other, and in the absence of any clear understanding of the concept, one also can apply a very broad interpretation to include the natural environment, anthropogenic environment, cultural processes and socio-economic influences and considerations. One may, indeed, be more inclined to follow an extensive construction of ‘environment’ in the constitutional context if this interpretation “…promote[s] the values that underlie an open and democratic society based on human dignity, equality and freedom”.

27

Partly as a consequence of the aforesaid constitutional developments, the White Paper on Environmental Management Policy (White Paper) was drafted.

28 Any interpretation of

‘environment’ arguably also should be based on a construction of the White Paper and the definition in NEMA. The policy states that: …the word environment refers to the conditions and influences under which any individual or thing exists, lives or develops. These conditions and influences include: the natural environment including renewable and non-renewable natural resources such as air, water, land and all forms of life; the social, political, cultural, economic, working and other factors that determine people’s place in and influence on the environment; natural and constructed spatial surroundings, including urban and rural landscapes and places of cultural significance, ecosystems and the qualities that contribute to their value.

29

The White Paper furthermore specifically emphasises that people are part of the environment and are at the centre of concerns regarding sustainability.

30

Other sectoral environmental acts either do not define environment, or when it is defined, the relevant act refers to the NEMA and ECA (albeit to a lesser extent) definitions.

31

‘Environment’, however, has been interpreted in the landmark decision BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment and Land Affairs (BP-decision).

32 Reflecting on the ECA definition, the Court stated that:

This broad and inclusive definition of the environment is consistent with international law as contained in various international conventions and treaties. It incorporates all the specialist and older categories of “pollution”, “conservation”, “health” and similar concepts. In line with international law, the environment is a composite right [sic] which includes social, economic and cultural considerations in order to ultimately result in a balanced environment…in promulgating the ECA, South Africa chose to embark upon the extensive approach to environment by giving it a comprehensive definition, which is as all embracing as may be imagined. The broad definition of “environment” in my view would include all conditions and influences affecting the life and habits of man.

33 This surely would include socio-economic conditions and

influences.34

In this instance, the Court clearly opted for a more extensive approach to interpretation

by specifically emphasising social, economic and environmental considerations to be included within the definition. The same extensive approach arguably also may be followed in future when interpreting NEMA’s definition.

This interpretation, read with the NEMA definition and the White Paper on which NEMA is based, suggests that ‘environment’, at least from an environmental law perspective, should be interpreted as broadly as possible, especially in so far as such an extensive interpretation will promote constitutional values, safeguard the health and well-being of people (including cultural

35

and social issues as they are embedded in anthropocentrism); advance economic development

25

S v Makwanyane 1995 6 BCLR 665 (CC) par [10] per Chaskalson P. 26

See, for example sections 9, 10, 11, 26 and 27 of the Constitution. 27

S v Makwanyane 1995 6 BCLR 665 (CC) par [10] per Chaskalson P. 28

White Paper on Environmental Management Policy for South Africa N 749/1998 in Government Gazette No 18894 of 15 May 1998. 29

Ibid at 5. 30

Ibid. 31

See, for example, the National Environmental Management: Biodiversity Act 10 of 2004, the National Environmental Management: Protected Areas Act 57 of 2003, the National Environmental Management: Air Quality Act 39 of 2004, the Mineral and Petroleum Resources Development Act 28 of 2002. 32

2004 3 All SA 201 (W). 33

Own emphasis. 34

Paras [34]-[37]. 35

Cultural issues in environmental context fall outside the scope of exclusive environmental framework legislation, such as NEMA and, hence, also outside the jurisdiction of DEAT. Cultural issues are specifically dealt with by the South African Heritage Resource Agency in terms of, inter alia, the National Heritage Resources Act 25 of 1999.


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and afford the required degree of ecologic protection (from an ecocentric point of view) that will ensure a desired ecological condition over time without eroding natural, financial and social resource bases. Such an approach also will accommodate both the brown and green issues referred to above.

1.2.2 Defining 'management'

The Deming Management Model36

is widely adopted and used by the environmental management fraternity, especially as far as ISO 14001-based environmental management systems are concerned. This model holds that management should, as a minimum, include the identification or planning of issues, doing or implementation of the planning outcomes and checking or verification of the implemented arrangements that are topped by review and improvement of all the phases of the management cycle. In line with the principles of the Deming Cycle, it is fair therefore to argue that any management process as a minimum should include planning, doing, checking and acting elements.

1.2.3 Defining ‘environmental management’

Environmental management therefore should be the planning, doing, checking and acting activities of managers and governing agents as they relate to either the green environment or combinations of green and brown environmental elements. A concise and generic definition of the concept ‘environmental management’ remains elusive, notwithstanding the generic insights gained from the concepts ‘environment’ and ‘management’ above. Review of the literature also confirms that the concept remains poorly defined. The concept is often explained by focusing on the characteristics of both environmental managers and environmental management as well as the challenges of environmental management, rather than defining the concept itself.

1.2.3.1 Focus on environmental managers

The focus on the characteristics of environmental managers to distil potential generic truths about the nature of environmental management often results in perspectives such as the need and ability of environmental managers who come from very diverse backgrounds to, amongst others: manage or control humanly induced environmental impacts and to deal with diversity and complexity from both a systems and futuristic point of view.

Barrow37

argues that the environmental management profession is a very diverse one, but that most environmental managers share common characteristics.

38 Barrow

39 also focuses

on the role of the environmental manager in environmental management by arguing that: Environmental management cannot hope to master all of the issues and environmental components it has to deal with. Rather, the environmental manager’s job is to study and control processes to try and reach particular objectives.

This statement confirms the management element of environmental managers. The diverse backgrounds of environmental managers also are alluded to by Barrow

40 who defines

environmental management as: …a generic description of a process undertaken by systems-orientated professionals with a natural science, social science, or less commonly, an engineering, law, or designs back ground, tackling problems of the human-altered environment on an interdisciplinary basis from a quantitative and/or futuristic viewpoint.

This definition focuses on some characteristics of environmental managers such as the multi-disciplinary backgrounds of practitioners as well as a systems perspective of environmental issues, while environmental management is seen to be futuristic.

Piasecki, Fletcher and Mendelson41

argue that corporate environmental managers also differ from other managers in the private sector in so far that they need to drive legal compliance, exceed legal compliance to seize business opportunities, be prepared to take calculated

36

The Deming Cycle is a well known management model based on the plan, do check and act cycle and the principle of continual improvement. 37

Barrow Environmental Management and Development (2005) 15. 38

Most environmental managers are involved with: ...deliberate efforts to steer the development process to take advantage of opportunities, ensure no critical limits are exceeded; try to avoid threats, mitigate problems; and prepare for unavoidable difficulties by improving adaptability and resilience. Ibid at 15. 39

Barrow Environmental Management – Principles and Practice (1998) 5. 40

Ibid. 41

Piasecki, Fletcher and Mendelson Environmental Management and Business Strategy : Leadership Skills for the 21st

Century (1999) 3.


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business risks and deal with a wide range of external parties with diverse agendas. Apart form general management responsibilities, the comprehensiveness of the challenges and skills required by environmental managers set them apart from other leaders in the corporate world.

Environmental managers also must be sensitive to the culture and the management model within which they function. In the private sector, both the business reality and corporate culture matter, while politics and positioning by different interests may frame environmental management in the public sector. One of the most significant challenges facing environmental managers is to design and integrate the environmental management strategy and practise with the core strategies and processes of the organisation that they serve.

If environmental management is to some extent characterised by a profile of environmental managers, then it should be fair to argue that environmental management may very well be whatever environmental managers do! Distilling the characteristics of environmental managers, however, does not provide insights that are succinct enough to direct any debate on the nature and extent of environmental management per se - apart perhaps from insights such as diversity and complexity and the fact that most share common characteristics, perspectives and challenges.

In line with some authors who explored the characteristics of environmental managers to distil generic characteristics of environmental management, others also explored the characteristics of environmental management as a profession.

1.2.3.2 Focus on environmental management characteristics

Other attempts to define the concept of environmental management provide some insights into some of the generic characteristics.

Barrow42

defines environmental management as: …a process concerned with human-environment interactions, which seeks to identify what is environmentally desirable, what are the physical, economic, social and technological constraints to achieving it; and what are the most feasible options.

This definition focuses on the human-environment interface, implying that choices and trade-offs need to be made to identify the best outcomes when environmental, social and economic parameters are considered. This definition of environmental management makes provision for the consideration of social and economic issues alongside the classical green issues. Jørgensen

43 also argues that environmental management solutions should be feasible

economically and technically. . Colby

44 has an anthropocentric and utilitarian perspective of environmental management

as he defines environmental management as the:

.....the field that seeks to balance human demands upon the Earth’s natural resource base with the environment’s ability to meet these demands on a sustainable basis.

Barrow45

also differentiates between natural resource management and environmental management. The former is primarily concerned with the management of renewable resources, while environmental management has a wider, temporal and spatial application. This insight into the nature of environmental management, as it differs from natural resource management, introduces the concepts of spatial and temporal scales, while confirming the diversity of issues that are to be addressed in terms of environmental management.

The ISO 14001: 200446

requirements dictate that activities, products and services of organisations are managed to reduce the actual and potential impacts on the receiving environment. This perspective confirms that the environment is not managed, but that the activities, products and services are managed to prevent undesired change to the affected environment. ISO 14001:2004-based management systems also demand that positive impacts be optimised, allowing for trade-offs to be made between negative and positive impacts, adding yet another dimension of trade-offs or choices to the concept of environmental management. The focus on actual and potential impacts also dictates both a preventive and corrective approach to managing activities, products and services. The principle that activities, products

42

Barrow Environmental Management and Development (2005)15. 43

Jørgensen “Introduction” in Hansen and Jørgensen Introduction to Environmental Management (1991) 1-11. 44

Colby (1989) Environmental management in development: the evolution of paradigms http://www-wds.worldbank.org/servlet/WDSContentServer/WDSP/IB/1989/11/01/000009265_3960928125138/Rendered/PDF/multi_page.pdf at 33. 45

Barrow Developing the Environment – Problems and Management (1995) 32. 46

International Organisation for Standardisation Environmental management systems – requirements with guidance for use (2004).





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and services need to be managed also expands the traditional focus of environmental management on activities only.

47 The ISO 14001 model for environmental management dictates

that aspects48

rather than impacts associated with activities, products and services be managed. This means a pre-active or futuristic approach rather than a re-active, end of pipe or historic solution to historical environmental challenges.

The diversity of characteristics distilled by the various authors referenced in this chapter is perhaps a function of both the complexities inherent to the nature of the concept and the fact that the concept is an evolving one.

1.2.3.3 Environmental management - an evolving concept

With time, the concept environmental management has evolved and is still evolving49

to become increasingly nuanced and intricate as: awareness and an understanding of matters environmental improves and escalates; the environmental management tools available and used, proliferate;

50 both the intensity and focus of environmental advocacy groups explodes and

the profound impact of environmental law reform processes intensifies.

This increase in complexity also spawned new and evolving terminologies that, amongst others, include concepts such as: sustainability and sustainable development,

51 corporate social

responsibility52

and corporate governance,53

and new perspectives such as triple bottom line approaches to environmental management,

54 the Natural Step

55 and Ecological Foot Printing.

56

Other areas where environmental management has evolved, include inter alia: shifts from an advocacy foundation to a goal driven approach;

57 movement from a top-down,

technocratic and elitist approach to a bottom-up and consultative approach;58

movement away from a reactive, symptoms and corrective focused approach, to a pre-active, cause-based and preventive approach;

59 as well as a progression from a focus on local issues to regional and

global issues60

and even a movement away from domination by the natural sciences to a shared interest by diverse academic disciplines.

61

Colby62

argues that the paradigms for environmental management have evolved from the initial polarised positions of ‘economics and development’ versus ‘ecology and conservation’, to a continuum of environmental management paradigms that range from frontier economics, environmental protection, resource management and eco-development, to a deep ecology paradigm that reintroduces the principles of ethics into the environmental management debate.

Nattrass and Altomare63

also characterise the evolving sustainability learning curve of particularly the private sector starting from a phase called Unconscious Incompetence or legal non-compliance phase before 1970s, through the phases of Conscious Incompetence (compliance and beyond compliance) through the 1970s and 1980s and Conscious Competence (eco-efficiency) in the 1990s, to Unconscious Competence (sustainability) beyond 2000.

The nature and extent of every paradigm then determines how environmental management is perceived and defined (See Table 01).

47

OHSAS 18001:1999 also demand management of facilities. 48

An environmental aspect is defined in ISO 14001:2004 as: “…an element of an organisation’s activities, products and services that can interact with the environment”. Aspects may deemed to be the causes of impacts by activities, products and services. Management of aspects in stead of impacts is by design pre-active. 49



Ibid at 4. 52

Piedade and Thomas ‘The Case for Responsibility – Arguments from the Literature’ 2006 4(2) South African Journal of Human Resources Management 57-64. 53

Institute of Directors King Report on Corporate Governance for South Africa (2002). . 54

Savitz and Weber 2006 The Triple Bottom Line: How Today’s Best-Run Companies are Achieving Economic, Social and Environmental Success— and You Can Too (2006). 55

Nattras and Altomare Dancing with the Tiger – Learning Sustainability Step by Natural Step (2002). 56

Wackernagel and Rees Our Ecological Footprint – Reducing Human Impact on the Earth (1996). 57



Reagen An Ecological Basis for Integrated Environmental Management (2006) 12, 819. 60

Ryding Environmental Management Handbook (1992) 1. 61


Colby (1989) Environmental management in development: the evolution of paradigms http://www-wds.worldbank.org/servlet/WDSContentServer/WDSP/IB/1989/11/01/000009265_3960928125138/Rendered/PDF/multi_page.pdf at 15. 63

Nattras and Altomare Dancing with the Tiger – Learning Sustainability Step by Natural Step (2002) 41.





8

MODEL PHASE 1 PHASE 2 PHASE 3 PHASE 4

Road to Sustainability

64

From pollution control to prevention

Product Stewardship improved - recover, re-use and recycle

Cleaner technologies

Sustainable Vision

Natural Capital65

Increasing productivity of natural resources used in the production processes

Closed loop systems with no waste or toxicity

Changes the business model from products to services

Reinvest in natural capital to restore, sustain and expand the planet’s ecosystem

Sustainability Learning Curve

66

Legal Compliance

Beyond Compliance

Eco-efficiency Sustainable Development

MODEL PHASE 1 PHASE

2 PHASE 3 PHASE 4 PHASE 5

Colby’s67

Five Paradigms of Environmental Management in Development

Frontier Economics

Deep Ecology

Environmental Protection

Resource Management

Eco-Development

MODEL PHASE 1 PHASE 2 PHASE 3

Raufflet’s68

Three Dimensional Model, 2006

Incrementally reduces environmental input and output impacts

Adaptive redesign of organisational behaviour patterns to mimic ecosystem functioning

Radical transformation of the entire production and consumption patterns

TABLE 01 EVOLVING ENVIRONMENTAL MANAGEMENT MODELS AND PARADIGMS

1.2.3.4 Environmental management challenges

In the absence of a clear and universal definition of the concept environmental management, a review of the literature suggests that authors often revert to a discussion of the challenges of environmental management to explain its inherent complexities. The challenges covered include: complexities and scales, complexities associated with cyclical processes as well as various dilemmas or contradictions.

1.3 Complexities and scales

Barrow69

argues that the environment and environmental management are fundamentally complex. Complexity is caused, inter alia, by the interconnectedness of environmental elements;

70 the indirect, cumulative and synergistic causes of effects that are not

readily predictable71

and the diversity of environments and environmental conditions72

that are dynamic, ever-changing and evolving.

73

Scale issues add another dimension of complexity as environmental management may be challenged by both spatial and temporal scales and related issues. Spatial challenges may range from local, through regional to global scales that contribute to increased scale related

64

Hart ‘A Natural-Resource-Based View of the Firm’ 1995 20(4) Academy of Management Review 986-1014. 65

Lovins et al ‘A Road Map for Natural Capitalism’ 2002 Harvard Business Review on Business and the Environment 1-34. 66

Nattras and Altomare Dancing with the Tiger – Learning Sustainability Step by Natural Step (2002) 41. 67

Colby (1989) Environmental management in development: the evolution of paradigms. http://www-wds.worldbank.org/servlet/WDSContentServer/WDSP/IB/1989/11/01/000009265_3960928125138/Rendered/PDF/multi_page.pdf. 68

Raufflet ‘Re-Mapping Corporate Environmental Management Paradigms’ 2006 36 (2): International Studies and Organisation 59. 69

Barrow Environmental Management and Development (2005) 16. This assertion has also been explored and proved to some extent above where we investigated the legal and scientific complexities of the concept ‘environment’. 70




Barrow Environmental Management and Development (2005) 38.

http://www-wds.worldbank.org/servlet/WDSContentServer/WDSP/IB/1989/11/01/000009265_3960928125138/Rendered/PDF/multi_page.pdf




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complexities,74

amongst others transboundary,75

trans-media76

and trans-sectoral77

issues and diverse jurisdictional mandates.

78 Temporal complexities are caused by the futuristic, predictive

and preventive nature of environmental management and may be exacerbated by the lack of knowledge of future needs,

79 the inability to correctly predict long term effects

80 and the

complexities of inter-generational resource need challenges.81

This complexity of the issues at hand necessitate an integrative, co-ordinating,

82

multidisciplinary, precautionary;83

pre-active;84

interdisciplinary, co-operative and holistic85

approach,

86 or macroscopic perspective

87 that remains flexible, adaptive and creative. New

perspectives also are required as environmental science that supports and informs environmental management, should be: ....more than the sum of its components from other sciences, it is a synthesis, an integration of these components which gives a new understanding of our relations to the environment.

88

Different dimensions of environmental management, i.e., the perspectives of politicians,

civil society, NGOs and CBOs, bureaucrats, donors and interest and affected groups have diverse needs and expectations that also contribute to complexity as each have diverse needs and expectations.

1.3.1 Complexities caused by closing the loop of processes

Environmental management often also is perceived as being complex due to the fact that it often is not approached as a series of cyclical processes that consist of a number of steps or phases linked or interfaced with supporting processes, all of which require consideration. Three classical cyclical processes are the project, product and management cycles. 1.3.1.1 Project cycle processes

Environmental management should cover the entire project cycle. A typical project cycle has clearly identifiable start and end points, with clearly distinct principal phases and sub-phases and complex interfaces with other supporting processes such as procurement, redesign and planning as well as contractor management. A generic project cycle is illustrated in Figure 1.

Three distinct principal phases may be identified: the planning and design phase, the procurement and contractual phases as well as the implementation phase with sub-phases such as construction, commissioning, operations, redesign, optimisation, expansion and modification, maintenance, decommissioning, dismantling and rehabilitation—all culminating in a brown fields redevelopment that reinitiates the planning and design cycle.

In order to achieve effective environmental management and governance, the entire project cycle, as well as the interfaces with supporting and outsourced processes,

89 need to be

addressed. As indicated in Figure 1, different environmental management tools may be used for the different phases of the project life cycle. These tools are planning tools such as; project design processes, Environmental Impact Assessment (EIA) or Environmental Risk Assessment (ERA) and design specifications; management tools such as Environmental Management Plans (EMP); checking and acting tools, which may include amongst others auditing, reporting; and communication tools. Softer tools such as tender and contractual specifications, service level agreements, communication and training and awareness tools may be used to manage the environmental issues associated with outsourced processes.

74


Across spatial, administrative and mandate boundaries of different line function. 76

Air, land, water and biota. 77

Across traditional policy boundaries. 78

Barrow Environmental Management – Principles and Practice (1998) 10-11. 79





Owen and Unwin (eds) Environmental Management – Readings and Cases (1997) 7. 84


The general idea behind holism is that all the properties of a given system (biological, chemical, social, economic etc.) cannot be determined or explained by the sum of its component parts alone. Instead, the system as a whole determines how the parts behave. 86

Hopfenbeck The Green Management Revolution – Lessons in Environmental Excellence (1993) 21. 87

Jørgensen ‘Introduction’ in Hansen and Jørgensen Introduction to Environmental Management (1991) 3. 88

Ibid. 89

Outsourced process may include, inter alia: design, procurement, legal services, construction, maintenance staff, etc.

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


10

FIGURE 01 THE PROJECT LIFE CYCLE AND INTEGRATED ENVIRONMENTAL MANAGEMENT

One of the biggest challenges of environmental management is to extend the classical environmental management focus on activities and products also to apply environmental management principles to services. Services seldom generate direct environmental impacts, but in most cases they act as catalysts for down stream activities that may generate secondary or tertiary knock-on impacts. Banks are a good example.

1.3.1.2 Product cycle

Harmful products and substances also should be managed throughout the product cycle from raw material sourcing and processing, procurement, transportation, manufacturing, packaging, retailing, using, disposal culminating with recycling and re-use and, where unavoidable, responsible disposal. Softer and often intangible environmental management tools such as the provision of information, training and awareness, procurement specifications, influencing of outsourced suppliers and service providers are used for these ‘outside the gate’ activities, products and services. 1.3.1.3 Environmental management tool cycle Environmental management is characterised by a plethora of environmental tools, while new or modified tools, methods and techniques constantly become available. The biggest challenge to environmental managers is to select the correct tool for the correct job. A fairly valid generalisation is that almost none of the tools provide an omnibus environmental management or governance solution of one type and size to fit all. To ensure effective environmental management and governance, it is fair to argue that environmental managers need to select, adopt, implement and use a series of environmental management tools.

Using the elements of the Deming Management cycle, it may be argued that environmental management tools or combinations of such tools should, as a minimum, have planning, doing, checking and acting (PDCA) characteristics. Other tools such as performance indicators and criteria and communication and reporting tools may be added to the PDCA suite of tools to increase environmental management effectiveness (see Table 02).

IdentificationIdentification

Preparation /

reconnaissancePreparation /

reconnaissance

Decision to proceedDecision to proceed

Conceptual

DesignConceptual

Design

Detail DesignDetail Design

Appraisal and

ChangesAppraisal and

Changes

Construction / Implementation Construction / Implementation

Commissioning Commissioning

Operations Operations

Closure / Decommissioning Closure / Decommissioning

Termination: Dismantling /

rehabilitation Termination: Dismantling /

rehabilitation

Planning and Design

Use Planning tools throughout planning and design to identify environmental

impacts, aspects and risks (EIA) and develop management plans (EMP)

Tender

Specifications

Contractor /

Supplier section

Contract

Implement management

(EMP), checking (monitor & audit),

reporting and communication tools

(reports) to manage environmental

impacts and aspects

Identification

Design

Construction

Expansion / Modification Expansion / Modification

Greenfields

Development

Operational Phase

Commercial Loop

Brownfields

Development

Manage

Change

audit

EIA, EMS

audit

controlchanges audit

auditinstruction

training

EMS instructiontraining

hand over documents

audit

designspecifications

designspecifications

EIA commences

awareness

Audit instructiontraining


11

ANALYTICAL AND

PLANNING TOOLS

CRITERIA AND

STANDARDS

MANAGEMENT OR DOING

TOOLS

CHECKING AND ACTING

TOOLS

REPORT AND COMMUNICATION

TOOLS

Environmental, Social and Cultural Impact Assessment

Legislation and national standards, i.e., SANS standards and guidelines

Environmental Management Systems

Environmental and Social Monitoring and Measuring

Environmental and Social Reporting

Triple Bottom Line Reporting

Strategic Environmental Assessment

ISO 14001 standard and other guidelines

Emergency Plans

Inspection, Analysis and Records

Environmental and Social Communication

Risk Assessment

SA 8000 Social Accountability

Administrative tools, i.e., standard operating procedures

Environmental and Social Auditing

Statutory Reporting

Life Cycle Assessment

AA Accountability

Environmental Management Plan

Improvement Management

Public participation

Disaster Planning

Sectoral environmental performance standards

Disaster Management Plan

EMP performance monitoring

Triple Bottom Line GRI requirements

Continual improvement tools

TABLE 02 THE PDCA CYCLE AND ENVIRONMENTAL MANAGEMENT TOOLS

1.3.1.4 Dilemmas

Complexity is exacerbated by a number of inherent dilemmas and paradoxes90

that challenge environmental managers. Barrow

91 argues that environmental management faces a

number of dilemmas: ethical, efficiency, equity, liberty, uncertainty and evaluation dilemmas. Ethical dilemmas challenge perceptions about what needs to be protected against which

losses. Efficiency issues ask the question of how much is enough for whom, while equity dilemmas consider who benefits and who will subsidise decision outcomes. Liberty dilemmas consider the extent to which civil liberties are to be curtailed to change behaviour for the common good, while uncertainty dilemmas are caused by inadequate information and the need to make rapid decisions. Evaluation dilemmas are caused when apples are to be compared with oranges.

Uncertainty often is fuelled by knowledge gaps, inadequate science92

and data, unproven threats,

93 unpredictability of impact-response relationships

94 and the effect of time-

delayed and synergistic responses. Conflict furthermore arises from diverse needs and perspectives such as: anthropocentrism versus ecocentrism,

95 or protectionism versus quality of

life sentiments. Environmental management is, therefore, fundamentally value driven,96

requiring trade-offs

97 to be made between diverse and competing needs, interests and elements, as an

optimum balance needs to be achieved amongst competing issues, needs and value systems.

1.4 ENVIRONMENTAL GOVERNANCE AND ENVIRONMENTAL MANAGEMENT

To be effective, environmental management should be integrated with all levels or spheres of decision-making, ranging from strategic or policy levels to operational levels of

90

Finco and Nijkamp ‘Pathways to Urban Sustainability’ 2001(3) Journal for Environmental Policy and Planning 289-302. 91



Barrow Environmental Management – Principles and Practice (1998) 9-10. 94

Ibid at 26. 95


Reagen An Ecological Basis for Integrated Environmental Management (2006) 12, 810-823. 97

Barrow Developing the Environment – Problems & Management (1995) 32.


12

organisations. This imperative is valid for both the private and public sectors.

1.4.1 Environmental management by the public sector

Environmental management by the public sector is inherently complex as a differentiation may be made between: environmental governance, the notion of being governed by others, environmental management of own activities, products and services as well as management and protection of global common goods and ecological services.

All three elements of environmental management should be adopted by all three spheres of government in South Africa (national, provincial and local) as well as all line functionaries or departments in each sphere. The complexities caused by a fragmented system of environmental governance in South Africa is unpacked further, while the complexities associated with the three elements of environmental management at the local sphere is explored as a case example. Fragmentation, it is argued, is but one of many challenges which may challenge a sustainable environmental management or governance effort in South Africa. Fragmentation, as explained below, also aptly illustrates the legal underpinnings of environmental management and governance and the fact that the design of a legal system may have a profoundly negative impact on the effectiveness of any environmental governance and management system. 1.4.1.1 Fragmentation, integration and environmental management (a) Fragmentation. Environmental governance is fragmented horizontally as mandates are vested in separate, autonomous line functioning organs of state

98 and vertically with

environmental governance mandates shared between the national, provincial and local spheres of government. Fragmented structures result in disjointed decision processes that culminate in uncoordinated and often duplicated governance efforts and instruments such as policies, legislation, processes, authorisations, requests for information, and tools. Horizontal and vertical fragmentation of environmental governance is divided by both media,

99 and sectoral

100

parameters. The Department of Environmental Affairs and Tourism (DEAT) also does not assume the role of a strong, centralised lead agent that has total control over all environmental matters. DEAT rather acts as a co-ordinator by providing framework guidance, since control over environmental matters is still to a large extent fragmented between various spheres and line functions of government. This decentralised governance structure may exacerbate duplication and inconsistency between various competencies. Sectorally fragmented legislation, in addition, often results in duplication and overlap of the environmental governance effort. The impact of this fragmentation on sustainable, holistic and integrating governing processes is wide ranging and is characterised by, inter alia:

Disjointed and incremental decision-making processes;

Duplication and overlap of the governance effort, with all organs of state focusing on environmental authorisation processes, without having resources available to do post-authorisation follow-up;

101

Costly delays in decision-making;

Inefficient arrangements between organs of state that control similar activities or proposals;

Significant gaps in control arrangements, whilst some significant issues are not controlled at all;

Inconsistent behaviour by government officials;

Conflicting conditions in authorisations;

Ineffective governance; and

Externalisation of governmental inefficiencies to development costs, and hence resulting in negative impacts on development in South Africa and opposition from the

98

These line functionaries include, amongst others, the Department of Environmental Affairs and Tourism, the Department of Mineral and energy, the Department of Water Affairs and Forestry, the South African Heritage Resource Agency, and the Department of Agriculture. 99

Environmental media in this context include biota, land, air and water. 100

Sectoral fragmentation includes, amongst others: mining, radio-activity, waste, agriculture, development planning, heritage resource management, and conservation. 101

Post-decision follow-up may, however, improve significantly with the newly-established Environmental Management Inspectorate in terms of Chapter 7 of NEMA. See the discussion elsewhere in this book.


13

development orientated organs of state to the current regime of environmental governance in South Africa.

102

(b) Integration and cooperation. In an attempt to establish a more integrated or cooperative approach to environmental governance, the South African legal framework makes extensive provision for Co-operative Environmental Governance (CEG) in, inter alia, the Constitution of the Republic of South Africa, 1996 (Constitution); NEMA; sectoral environmental legislation

103 and the Intergovernmental Relations Framework Act 13 of 2005 (IRFA). These are

reflected on briefly below.

(i) Constitutional provisions. Sections 40(1)-(2) of the Constitution provide that whilst the South African government consists of distinctive national, provincial and local spheres, these spheres are inter-dependent and inter-related and must observe and adhere to the constitutional provisions on co-operative governance. All governance activities further must be conducted within the parameters of chapter 3 which provides for co-operative governance.

104 This chapter

primarily aims to "…shape the attitudes of the levels [sic] of government to fit the co-operative model of federalism" that exists in South Africa.

105 Whilst evidence

106 suggests that the current

attitude of, especially governmental bodies responsible for the environment, towards sustainable service-delivery is less than favourable, section 41 provides for more detailed obligations that should be employed to reshape prevailing attitudes and uncooperative governance practices.

107

Although each sphere and line function of government retains its unique character, they are precluded from acting independently. Instead, spheres and line functions are required to co-operate in mutual trust and good faith based on inter-related and coordinated mutual and reciprocal relationships.

108 The constitutional provisions on co-operative governance

furthermore presuppose a three-tiered relationship. Co-operation must take place in a horizontal sense (within each sphere between, for example, the legislative and executive branches of provincial government and between different departments), vertically (between all three spheres of government and between the various departments in each sphere) and between a sphere and organ of state that is not part of that particular sphere.

109 It may be deduced that constitutional

provisions on co-operative governance provide a balance between self-rule and shared-rule in order to create a more efficient administration through associations and partnerships.

110 The

constitutional provisions on co-operative governance are especially significant for governance activities relating to the environment. Schedules 4 and 5 of the 1996 Constitution designate the

102

See Kotzé A legal framework for integrated environmental management in South Africa and the North West Province (2006) 17-18. 103

Most environmental acts in South Africa contain provisions on CEG to a greater or lesser extent. Given length constraints of this chapter these are not discussed. 104

See also Bray 2005 Journal of Contemporary Roman-Dutch Law 359-361. 105

De Waal, Currie and Erasmus The Bill of Rights Handbook (4 ed 2001) 24. 106

Centre for Environmental Management Report on an Environmental Management System for the North-West Province (2004). 107

Section 41 states that: All spheres of government and all organs of state within each sphere must (a) preserve the peace, national unity and the indivisibility of the Republic; (b) secure the well-being of the people of the Republic; (c) provide effective, transparent, accountable and coherent government for the Republic as a whole; (d) be loyal to the Constitution, the Republic and its people; (e) respect the constitutional status, institutions, powers and functions of government in the other spheres; (f) not assume any power or function except those conferred on them in terms of the Constitution; (g) exercise their powers and perform their functions in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere; and (h) co-operate with one another in mutual trust and good faith by - (i) fostering friendly relations; (ii) assisting and supporting one another; (iii) informing one another of, and consulting one another on, matters of common interest; (iv) co-ordinating their actions and legislation with one another; (v) adhering to agreed procedures; and (vi) avoiding legal proceedings against one another.

108 Bray ‘Focus on the National Environmental Management Act: Co-operative governance in the context of the National

Environmental Management Act 107 of 1998’ 1999 6(1) South African Journal of Environmental Law and Policy 3. 109

Burns Administrative Law under the 1996 Constitution (2 ed 2003) 45. 110

Bray ‘Focus on the National Environmental Management Act: Co-operative governance in the context of the National Environmental Management Act 107 of 1998’ 1999 6(1) South African Journal of Environmental Law and Policy 4. Lawrence ‘How manageable is South Africa’s new framework of environmental management?’ 1999 South African Journal of Environmental Law and Policy 61-61 states in this regard that:

Partnerships between, among and within the national, provincial and local spheres of government, in conjunction with organs of civil society, is a defining characteristic of the South African version of intergovernmental relations seen as integral to democratic rule.


14

environment as a functional area where national and provincial spheres have concurrent legislative competence.

111 Because it is envisaged that conflict may arise due to this shared

competence, it is especially significant that the provisions on co-operative governance must be invoked to address such conflict.

112 It may be derived from the foregoing that the importance of

constitutional provisions relating to co-operative governance for the establishment of sustainable environmental governance efforts should not be underestimated. Bray

113 states in this regard

that:

…co-operative governance…may be regarded as the backbone of integrated environmental management [or governance] in a constitutionally transformed South Africa.

(ii) Environmental framework provisions. NEMA gives effect to the constitutional provisions on co-operative governance in an environmental context. This is evident from the long title of the act which states that one of its primary aims is to provide for CEG by establishing principles for decision-making on matters affecting the environment, institutions that will promote co-operative governance and procedures for co-ordinating environmental functions exercised by organs of state.

114 NEMA acts as environmental framework legislation and, as such, conforms to the new

form of public administration and governance which should be based on the constitutional imperative of co-operative governance.

115 Reflecting on the importance of NEMA in establishing

CEG, Nel and Du Plessis116

argue that:

One of the main features of NEMA is the attempt to achieve co-operative governance between different line functions in the international context as well as between same and different spheres of government.

This is done by way of various provisions and principles that relate to CEG. Certain institutions and mechanisms also are established in terms of NEMA that should further CEG. Chapter 1 of NEMA contains a set of environmental management principles which constitute the foundation of all activities to be undertaken in terms of the provisions of the Act. These principles apply throughout South Africa to actions, or governance efforts and activities, of all spheres of government and all line functions.

117 One of the objects of the principles is to guide decision-

making and actions of environmental authorities throughout their governance tasks. Section 2(4)(b) requires environmental management, or governance, to be integrated, by acknowledging that all elements of the environment are linked and inter-related. This may entail that where decision-making necessitates cross-sectoral or inter-governmental action, that such decisions not only be integrated, but that they also must reflect consultation with all relevant departments that may be involved in each particular case. The principles further state explicitly that there must be inter-governmental coordination and harmonisation of policies, legislation and actions relating to the environment.

118 Actual or potential conflicts of interest between organs of state

furthermore should be resolved through conflict resolution procedures.119

Chapter 2 of NEMA provides for the establishment of the National Environmental Advisory Forum (NEAF) which is representative of all relevant stakeholders in environmental governance.

120 The NEAF has as its

main objective to act as an advisory body for the Minister of the DEAT on matters pertaining to environmental management and governance by setting objectives and priorities for environmental governance.

121 Although not explicitly stated, these objectives and priorities may

also include any matter relating to the achievement of CEG. Section 7 establishes the Committee for Environmental Coordination (CEC). The CEC

is the primary institution responsible for the achievement of CEG in terms of NEMA. The CEC is responsible for scrutinising, reporting and making recommendations on environmental

111

Bray ‘Legal perspectives on global environmental governance: South Africa’s partnership role (Part 2)’ 2005(3) Journal of Contemporary Roman-Dutch Law 361-363. 112

See in this respect, Bosman, Kotzé and Du Plessis ‘The failure of the Constitution to ensure integrated environmental management from a co-operative governance perspective’ 2004 19(2) SA Public Law 411-421. 113

Bray ‘Focus on the National Environmental Management Act: Co-operative governance in the context of the National Environmental Management Act 107 of 1998’ 1999 6(1) South African Journal of Environmental Law and Policy 2. 114

Long title of the NEMA. 115

Lawrence ‘How manageable is South Africa’s new framework of environmental management?’ 1999 South African Journal of Environmental Law and Policy 61. 116

Nel and Du Plessis 2001 ‘An evaluation of NEMA based on a generic framework for environmental framework legislation’ 2001 8(1) South African Journal of Environmental Law and Policy 35. 117

Section 2(1). 118

Section 2(4)(l). 119

Section 2(4)(m). 120

Glazewski Environmental Law in South Africa (2 ed 2005) 142-143. 121

Sections 3(1)-3(2).


15

implementation plans, and investigating and making recommendations regarding the assignment and delegation of functions between organs of state under NEMA or any other law affecting the environment and regarding the practical working arrangements, including memoranda of understanding (MOU), between the organs of state represented by members and other organs of state.

122 The CEC also is responsible for investigating and recommending the establishment

of mechanisms in each province, for providing a single point for the receipt of applications for authorisations, licences and similar permissions required for activities under legal provisions concerned with the protection of the environment. The CEC will become involved specifically where such authorisations, licences or permissions are required from more than one organ of state,and procedures for the coordinated consideration of such applications by the organs of state are required.

123 The CEC is mandated further to make recommendations to coordinate

environmental impact assessment (EIA) as contemplated in chapter 5 of NEMA, including co-operation in EIA procedures and requirements and making determinations regarding the prevention of duplication of activities required in terms of chapter 5.

124

Chapter 3 of NEMA provides for procedures, or mechanisms, to facilitate CEG.125

These mechanisms include environmental implementation plans (hereafter EIP) and environmental management plans (hereafter EMP). It is required of every national department listed in schedule 1 to NEMA, who exercises functions that may affect the environment and every province, to prepare an EIP within one year of the promulgation of NEMA and at least every four years thereafter.

126 Furthermore, it is required of every national department listed in

schedule 2, as exercising functions involving the management of the environment, to prepare an EMP within one year of the promulgation of NEMA and at least every four years thereafter.

127

An EMP and EIP also may be consolidated.128

The purpose of EIPs and EMPs is to coordinate and harmonise environmental policies, plans, programmes and decisions of the various national departments that exercise functions that may affect the environment or who are entrusted with powers and duties aimed at the achievement, promotion and protection of a sustainable environment, including provincial and local spheres of government, in order to minimise the duplication of procedures and functions. EIPs and EMPs also must promote consistency in the exercise of functions that may affect the environment, give effect to the principle of co-operative governance in chapter 3 of the 1996 Constitution, secure the protection of the environment across the country as a whole, prevent unreasonable actions by provinces in respect of the environment that are prejudicial to the economic or health interests of other provinces or the country as a whole and enable the Minister of DEAT to monitor the achievement, promotion and protection of a sustainable environment.

129 Because the primary aim of EIPs and EMPs is to

facilitate CEG, these instruments also may contribute significantly to oblige environmental authorities to consider the environmental implications of their administrative actions.

130

Chapter 8 provides for environmental management co-operation agreements (EMCAs). The Minister, provincial and local authorities may enter into an EMCA with any person or community for the purpose of promoting compliance with the section 2 principles of environmental management.

131 An EMCA is primarily aimed at enhancing partnerships with all

relevant interested and affected parties in order to achieve more effective involvement in governance activities.

132 This is done by way of adopting a "…co-operative and participative

approach to environmental management, rather than a coercive and regulatory approach as has been the case in the past".

133

122

Sections 7(3)(a)-(b). 123

Section 7(3)(c). 124

Section 7(3)(d). Further tasks include: making recommendations aimed at securing compliance with the principles set out in section 2 and national norms and standards contemplated in section 146(2)(b)(i) of the 1996 Constitution; making recommendations regarding the harmonisation of the environmental functions of all relevant national departments and spheres of government; advising the Minister on providing guidelines for the preparation of environmental management plans and environmental implementation plans and endeavouring to ensure compliance with the principles set out in section 2(2) by making appropriate recommendations, requiring reports from its members and advising government on law reform. 125

See also Glazewski Environmental Law in South Africa (2ed 2005) 143-147. 126

Section 11(1). 127

Section 11(2). The following EMPs and EIPs, amongst others, have been published in the Government Gazette: GN R354 published in Government Gazette No. 23232, 28 March 2002. GN R 249 published in Government Gazette No. 22022, 16 February 2001. 128

Section 11(3). 129

Section 12. 130

Couzens ‘NEMA: A step closer to coherence?’ 1999 6(1) South African Journal of Environmental Law and Policy 17. 131

Section 35(1). 132

Bray ‘Focus on the National Environmental Management Act: Co-operative governance in the context of the National Environmental Management Act 107 of 1998’ 1999 6(1) South African Journal of Environmental Law and Policy 8-9. 133

Glazewski Environmental Law in South Africa (2ed 2005) 158.


16

(iii) Intergovernmental Relations Framework Act 13 of 2005. The system of inter-governmental relations in South Africa has been in a state of continuous development since 1994.

134 A national legal framework for the effective facilitation of inter-governmental relations

has been developed recently. Section 42(2) of the Constitution states that an Act of Parliament must establish or provide for structures and institutions to promote and facilitate inter-governmental relations as well as provide for appropriate mechanisms and procedures to facilitate settlement of inter-governmental disputes.

135 This act has been developed in the form

of the Inter-governmental Relations Framework Act 13 of 2005 (IRFA).136

The Act may, in addition to the provisions on CEG discussed above, contribute to enhance the CEG effort in South Africa.

137 Specific objectives of the IRFA include: to provide, within the ambit of co-

operative governance as established by the Constitution, a framework for the various spheres of government and all organs of state to facilitate coordination in the implementation of policy and legislation, including coherent government, effective provision of service, monitoring and implementation of policy and legislation as well as the realisation of national priorities.

138 The

Act recognises that the South African governance framework is fragmented along three autonomous, yet, inter-dependent and inter-related spheres and that all spheres must provide effective, efficient, transparent, accountable and coherent governance in order to secure the well-being of people and the progressive realisation of their constitutional rights.

139 Further, that

one of the most pervasive challenges facing government is redressing the legacies of apartheid and discrimination, which arguably includes the fragmented environmental governance effort in South Africa and that this challenge is best addressed through a concerted effort by all spheres of government to work together in the provision of services.

140 The Act also recognises that co-

operation in government depends on a stable and effective system of governance for regulating the conduct of relations and the settlement of inter-governmental disputes.

141 The Act applies to

all spheres of government and to all organs, departments or line functionaries that exist in these spheres.

142 Chapter 2 provides for a number of inter-governmental structures that may be

employed to establish co-operative governance. These include the President’s Co-ordinating Council (PCC) and inter-governmental forums in the national, provincial and local spheres of government. These forums act as a platform for inter-governmental consultation and discussion, and although they are not deemed to be executive decision-making bodies, they may adopt resolutions or make recommendations in terms of agreed procedures.

143

The paragraphs above explained fragmentation at the macro level of governance, i.e., fragmentation between the line functions, different spheres, legislation, mandates, jurisdictions, processes and governance mechanisms. Environmental governance is complicated further by various other complexities at micro level of governance, including, inter alia, fragmentation within a specific sphere, diverse interests and mandates. The complexities that confront the local sphere of government are explored as a case study. 1.4.2 Case example: Environmental management complexities at the local sphere of government

The case study on the institutional complexities that may challenge environmental managers at the local sphere of government is illustrative of but one sphere of government. All other spheres of government, including the private sector, have particular institutional imperatives that need to be considered when environmental management programmes are designed in order to overcome what Piasecki, Fletcher and Mendelson

144 call the ‘green wall’ in

organisations. One of the key success factors of effective environmental management is a strategy to scale this proverbial ‘green wall’.

134

For a comprehensive discussion, see Reddy ‘Intergovernmental relations in South Africa’ 2001 20(1) Politeia 28-29. 135

The Act recognises that whereas various acts of Parliament already provide for co-operative governance, it is necessary to complement these acts by establishing a general legislative framework applicable to all spheres and to all sectors of government, to ensure the conduct of inter-governmental relations in the spirit of the 1996 Constitution. See the preamble. Hence, although not specifically stated, this general legislative framework also will apply to environmental authorities. 136

Published in Government Gazette 27898 of 15 August 2005. 137

It is noted in this regard that, although the Act does not relate to CEG specifically, since it is a legislative framework that deals with co-operative governance and inter-governmental relations in general, it also will be applicable to environmental authorities. 138

Section 3. 139

Preamble. 140

Preamble. 141

Preamble. 142

Section 2(1). 143

Section 29. 144

Piasecki, Fletcher and Mendelson Environmental Management and Business Strategy : Leadership Skills for the 21st

Century (1999) 11.


17

The local government-environmental management interface has perhaps one of the most complex institutional configurations. The complex elements are illustrated in Fig 2. Environmental management at the local sphere of government often is influenced by one or any combination of the four principal environmental management contextual dimensions: resource- based imperatives, political realities, stakeholder-based dimensions and administrative dispensations.

145

All four environmental management contextual dimensions are driven by distinct interest groups, each with their own perspectives and agendas. The resource-based dimension is driven by resource provider interests, either private or donor-funded agencies, national or regional governments, or internal interests that have the skills and networks to drive, direct and influence environmental management processes and outcomes.

Political realities and agendas on the other hand, are steered by the interests of elected politicians in all spheres of government. The interests of stakeholders, including civil society, non-governmental organisations (NGOs) and community-based organisations (CBOs), as well as the agendas of appointed administrative staff and consultants, may be powerful drivers of both environmental management processes and issues identified and managed at the local sphere of government.

The resource-based contextual dimension refers to all the resources146

required to initiate and drive environmental management processes at the local sphere of government and may, inter alia, include a local authority’s own resource base, funded or unfunded mandates from national or provincial governments and resources obtained from donor-funded programmes. Differences in access to resources may partly explain the vast differences in environmental management performance of local government in South Africa.

FIGURE 02 COMPLEX LOCAL GOVERNMENT – ENVIRONMENTAL MANAGEMENT INTERFACES

The political contextual dimension may serve as a catalyst to drive environmental management at the local sphere of government, ranging from global political trends and initiatives to the national and also the local political agendas.

The third contextual dimension entails stakeholder engagement in environmental management as it should be a bottom-up and participative process, involving the public and other stakeholders as partners in the process. A participation-based approach to environmental management may be challenging as diverse interests may be represented, adding to the scope and complexity of the issues to be addressed.

The fourth contextual dimension that may influence efficient and effective environmental management at the local sphere of government refers to the administrative arrangements of cities that may, in turn, be influenced by political leadership and the availability of resources.

145

Nel ‘Policy Responses at the Local Sphere of government: Complexity and Diversity’ in Geyer International Handbook of Urban Policy, Volume I: Contentious Global Issues (to be published 2007).

146 Resources refer to available funds, skills, infra-structure, equipment, time, data and information, as well as

administrative processes that are conducive to policy identification, development, adoption and implementation.

Political

Dimension

Political Interests and Agenda

Administrations Interest and Agenda

Ag

end

a o

f R

eso

urc

e P

ro

vid

ers

Sta

keh

old

er/ Sh

areh

old

er In

terest / A

gen

da

Stakeholder

Dimension

Resource

Based

Dimension

Administrative

Dimension

Local

Aut

horit

ies

as G

over

nor

Local Authorities

as Governed

Entities

Custodians

of Global Com

mon

Goods and

EnvServices

Local

Econo

mic

Dev

elop

men

ts

Socia

l Equ

ity


18

The most important administrative issues include, amongst others: capacity and skills and the configuration of the institutional and administrative framework, including mandates to drive and direct environmental management that is holistic, trans-media, trans-sectoral and trans-boundary.

Environmental management at the local sphere is further complicated by the fact that local governments have multiple roles in environmental management. Local governments are governed simultaneously by other spheres of government, whilst they also act as a governor, managers of global common goods and environmental services as well as being drivers of local economic and social development. Like most other organisations, some of the activities, processes, services and facilities of local government are governed by organs of state in other spheres of government. As a governed entity, local governments need compliance-based environmental management to demonstrate compliance to those policies and other command and control requirements that apply directly to them.

The mandates of cities to manage and drive local economic development147

to provide for a vibrant local economy,

148 to improve social equity and access to resources as well as to

build sustainable communities and cities, should depend on three strategies.149

The first strategy entails establishing viable local economies to eradicate poverty

150 by means of policies

that create a supportive framework for investment, local entrepreneurship, economic diversity and human resource development.

151 This strategy also includes the adoption and

implementation of pro-poor152

policies regarding the provision of services such as housing, nutrition and public health services.

153 The second strategy requires policies and programmes

that foster peace, as well as the prevention of conflict, crime, violence and social exclusivity and by enhancing, amongst others, gender equality.

154 According to ICLEI

155 and the OECD,

156 the

third strategy should be to empower local authorities and especially vulnerable sectors to provide for and recover from natural, industrial and/or fiscal disasters that normally affect the challenged sectors of society the most.

The fifth mandate of local authorities is to govern environmental behaviour of others in line with the mandates that they have received. This normally entails governing, inter alia, production and consumption patterns of both the public and private sectors that function in their areas of jurisdiction, as well as issues such as the prevention of pollution and environmental degradation, management of waste streams, hazardous goods and substances, pathogens, transportation and protection of the biosphere.

The fact that local authorities are challenged to be both regulators of others and being governed as well and that they often need to drive local economic development and to act as custodians of the environmental common goods, means that environmental management at the local sphere of government may be very challenging and complex.

1.4.3 Environmental management in the private sector

Raufflet157

argues that there is a “...great deal of confusion about what corporate environmental management actually means”.

Environmental management in the private sector is driven primarily by the need to demonstrate legal compliance, to a lesser extent to meet business needs and, in some instances, also for ethical reasons. Raufflet,

158 quoting various sources concluded that the

corporate environmental management effort has taken various forms such as:

147

United Nations Human Settlements Programme Local Authorities in the north and the south and the Millennium Development Goals www.millenniumcampaign.org .

148 Evans et al. .Governing Sustainable Cities (2005).

149 International Council for Local Environmental Initiatives Local Action 21 and Management of the Global Common Goods www.localaction21.org/global_common_goods.htm .

150 Ayre and Callway ‘Outcomes from the World Summit for Sustainable Development’ in Ayre and Callway (eds) Governance for Sustainable Development – A Foundation for the Future (2005) 13-42.

151 International Council for Local Environmental Initiatives Local Action 21 and Management of the Global Common

Goods www.localaction21.org/global_common_goods.htm . 152

United Nations Human Settlements Programme Local Authorities in the north and the south and the Millennium Development Goals www.millenniumcampaign.org . 153

Hams ‘Local Environmental Policies and Strategies after Rio’ in Agyamen and Evans (eds) Local Environmental Policies and Strategies (1994) 23-46.

154 Simms ‘Economy: ‘The Economic Problem of Sustainable Governance’ in Ayre and Callway (eds) Governance for Sustainable Development – A Foundation for the Future (2005) 73-89.

155 International Council for Local Environmental Initiatives Local Action 21 and Management of the Global Common Goods www.localaction21.org/global_common_goods.htm .

156 Organisation for Economic Co-operation and Development Shaping the Urban Environment in the 21

st Century

www1.oecd.org/dac/urbenv/dac-s21c_fulldoc.pdf . 157

Raufflet ‘Re-Mapping Corporate Environmental Management Paradigms’ 2006 36(2) International Studies and Organisation 57. 158

Ibid at 56.

http://www.millenniumcampaign.org/

http://www.localaction21.org/global_common_goods.htm


http://www.millenniumcampaign.org/



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The adoption of the principles of sustainable development supported by environmental action plans;

Commitments made and action plans adopted to reduce the levels of the worst pollutants and to substitute the most toxic products with less hazardous substances;

The adoption of voluntary programmes ranging from ISO 14001-based management systems, life cycle analyses, organisational learning approaches to ecological sustainability, to approaches such as the Natural Step and industrial ecology;

Linking their environmental management efforts with social and ecological activism that range from local to global issues.

Others have developed, adopted and implemented a plethora of in-house environmental

management protocols in order to ensure consistent corporate environmental behaviour by operations.

Like the public sector, environmental management should be integrated with all the levels and functions of organisations, ranging from strategic, corporate-wide arrangements that are in line with the principles of corporate governance, to operational levels.

Environmental management in the private sector also range from addressing only the green agenda to programmes that are labelled ‘sustainable development’ or even social corporate responsibility-based programmes, where the green agenda is merely a subset of green and brown and even also financial performance issues that are either integrated or managed separately. It also ranges from:

.....simple, short term adjustments designed to respond to the social legitimacy of firms...... to a ..... complete

rethinking and restructuring of production process .... to a phase where ..... far reaching re-examination of corporate activities that goes beyond analysing their effects on the natural environment to look also at a firm’s broader social and economic role.

159

In some instances companies have combined their environmental management

portfolios with occupational health and safety and even quality management requirements, creating even more complex combinations of management approaches.

Environmental management by the corporate world is often characterised by a plethora of tools and jargon that complicates comparisons of performance between organisations, while corporate mixed messages and disconnection of what is being communicated by corporate head offices and what is actually done at operational levels, ”…makes it difficult to see beneath the surface of some corporate environmental responses”.

160

1.5 INTEGRATED ENVIRONMENTAL MANAGEMENT

The term Integrated Environmental Management (IEM) in South Africa has been used to mean different things, while it also has evolved over time.

Nel and Du Plessis161

identified and discussed the following interpretations and uses of the term Integrated Environmental Management: IEM as a synonym for environmental impact assessment (EIA); IEM as meaning integrated environmental governance, i.e., the alignment of fragmented and disjointed environmental governance effort by numerous organs of state that operate at different spheres of government; IEM as meaning adoption of NEMA principles and tools by other organs of state in line with the duty of co-operative governance and IEM as meaning the adoption of a holistic and integrative perspective of planning and decision processes by considering numerous parameters to inform the decision-making processes.

DEAT162

lists nineteen principles that underpin IEM in South Africa and confirms that:

Initially, IEM in South Africa was associated with authorisation of controlled activities........but that ..... IEM has shown to have evolved to be an underlying philosophy and set of principles, supported by a wide range of environmental assessment and management tools that are aimed at promoting sustainability.

In order to ensure integration of the environmental governance and management effort

in South Africa, Nel and Du Plessis163

argue that IEM should encompass more than principles, a

159

Ibid at 57 160

Ibid. 161

Nel and Du Plessis ‘Unpacking integrated environmental management – a step closer to co-operative governance?’ 2004 19(1) SA Public Law 181-190. 162

DEAT, 2004, Overview of Integrated Environmental Management, Integrated Environmental Management, Information Series 0, Department of Environmental Affairs and Tourism (DEAT), Pretoria. 163

Nel and Du Plessis ‘Unpacking integrated environmental management – a step closer to co-operative governance?’ 2004 19(1) SA Public Law 181-190.


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philosophical foundation and a series of tools and processes. IEM actually should integrate a wide range of issues that affect both environmental management and governance such as: the efforts of all the organs of state at all three spheres of government; tools that cover all the phases of the PDCA cycle; all the separate line functions of government mandated to govern elements of the environment; integration of suitable tools along the decision and planning phases of a project; integration of environmental governance tools as well an integrated perspective on all the environmental media. See Fig 03.

FIGURE 03 DIMENSIONS OF INTEGRATED ENVIRONMENTAL MANAGEMENT.

It may be concluded from the foregoing that 'integration' in terms of IEM should include: integration, or alignment of authorisation arrangements between the various spheres of government; integration or alignment of authorisation arrangements within the same sphere of government, but between various line functions; recognition of the integrated nature of the environmental management cycle to include all PDCA elements of the Deming-management approach; recognition of the need to address all the phases of a project or development cycle, from planning and design through authorisation, to construction and use, including post-authorisation follow-up and verification of conformance to authorisation conditions by competent authorities; integrated use of various environmental governance tools and implementation strategies, including command and control, fiscal, and civil-based instruments, as well as agreements to ensure sustainable governance efforts; recognition of the human-environment system as a closed system that requires an integrated perspective on the various environmental media in order to prevent intra-media transfer of impacts; alignment of governance policies and strategies across the various spheres and autonomous line functions; alignment of administrative practices, procedures and instrumentation of separate, autonomous line functions of all spheres and line functions to achieve effective and integrated service-delivery efforts; integration between the various spheres and line functionaries of government; integration of the environmental management cycle and integration of decision-making cycles in the environmental management process.

164

1.6 CONCLUSION

As a generic, succinct and universally acceptable definition or characterisation of environmental management remains hard to find, and since it is accepted generally that the field of environmental management is evolving continuously, a distillation of an initial typology of characteristics may have to suffice to recommend some fundamental and generic characteristics of the concept as it may be understood at the time of writing.

Distilling perspectives from the referenced authors and various perspectives above, the

164

Centre for Environmental Management Report on an Environmental Management System for the North-West Province (2004) 65.


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following generic characteristics are proposed:

The scope of what is deemed to be environmental management may range from green to brown to economic, social and ecological issues, including issues related to patterns of consumption and production. This may be attributed to the wide and almost all-encompassing definition of ‘environment’.

Environmental management should, as the name suggests, fundamentally be a management and public administration science, which is, amongst others, based on other disciplines such as law and economics, as well as natural, human and engineering disciplines.

The scope of environmental management is expanding, fusing with concepts such as sustainability, triple bottom line, corporate governance and corporate social investment.

Environmental management should be executed by both the private and the public sectors.

Management, both at private and public sector levels, should address planning, doing, checking and acting (PDCA) elements.

Environmental management is not concerned with managing the environment; the primary focus should be to manage the behaviour of humans and performance of organisations in line with environmental principles, criteria, standards and legislation.

Activities, products, and services should be managed.

The focus of environmental management primarily should be preventive, supported by corrective or reactive action where required.

Environmental management should manage both the negative and positive impacts of activities, products, services and facilities, requiring trade-offs between positives and negatives including the green, brown, social, ecological and economic dimensions of the environment.

Environmental management should be a series of cyclical processes that consist of a number of steps or phases linked or interfaced with supporting processes. These include the project, product and management cycles.

There are various tools or mechanisms available for environmental management. These tools or mechanisms should, as a minimum, have planning, doing, checking and acting (PDCA) characteristics.

IEM is not clearly defined in South Africa and may mean different things, depending on by whom it is used and in which context it is used. IEM should be an integrated management strategy which primarily should be aimed at integrating the current fragmented management or governance effort.

Co-operative governance, as it is firmly embedded in the current legal framework also can contribute to establish a more sustainable environmental management or governance effort and also should, as a consequence, address some of the complexities and challenges facing environmental management in South Africa.

It has also been demonstrated that environmental management is characterised by

other complexities because of, inter alia, the interconnectedness of environmental elements, the unpredictability of how these elements interact and the fact that they also are dynamic. Governance challenges may be caused by amongst others, fragmentation of the governing effort and the often poorly understood distinction between an organ of state or sphere of government as being simultaneously a governed and a governing institution. The concept environmental management has changed significantly over time and it continues to evolve. A generic and succinct definition of the concept remains elusive. The debate in South Africa and indeed the world on what should be considered to be both environmental and environmental management, is expected to continue in the courts and board rooms and amongst the diversity of both practitioners and academics.

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