Why environmental impact assessments need to be more than a legal hurdle

Striking a balance between preserving the environment and promoting wellbeing for present and future generations, as well as the promotion of economic and social development as enshrined in the Constitution (the right to the environment), is becoming an increasingly contentious issue in South Africa and worldwide. 

Part of this process are Environmental Impact Assessments (EIAs) in terms of the National Environmental Management Act 107 of 1998, which are essential legal measures that must be obtained before development — construction — can start. 

The purpose of EIAs is to ensure that potential environmental consequences and implications of proposed projects and developments are systematically evaluated. The primary aim is to identify, predict and assess environmental effects, both positive and negative, that could result from the implementation of projects or developments. 

Through this process, parties (developers, communities, state agencies and environmental stakeholders) and decision-makers can ultimately make informed choices, considering environmental factors and adopting measures to mitigate adverse effects.

EIAs are viewed as measures that balance development goals and environmental protection, which contributes to sustainable development by promoting environmentally responsible decision-making. 

When encountering narratives detailing the pollution of water resources, loss of biodiversity and erosion of arable land, individuals frequently derive reassurance and comfort from the knowledge that legal and bureaucratic safeguards are in place to mitigate environmental destruction. 

But in Cape Town (a city akin to many key port cities in postcolonial nation-states), the involvement and role of private capital in local developments, encompassing both local and international investors and entities, often conflicts with environmental protection, as we enter increasingly severe periods of the climate crisis. 

Against this background, and drawing on research we have conducted across the City of Cape Town, we highlight how EIAs, and the people involved in these developmental processes, can be unjustly aligned with wealthy stakeholders (often developers). 

In 2022, 12 developments were under construction in Cape Town, worth over R3.5 billion. In addition, there were numerous developments, within and outside of the city centre, that did not fall within the scope of this reporting. 

The rapid expansion and investment in private developments in Cape Town has been characterised by many as beneficial for all living in the area, however, this is unlikely to be the case.

Organisations such as Ndifuna Ukwazi, which are dedicated to achieving urban land justice, have shown that the commercialisation of the city has intensified, highlighting questions and concerns over environmental protection even more. 

In the process of getting a development approved, a core element is obtaining an EIA as mentioned above. Adopted in the 1970s in the US, and in 1989 in South Africa under the Environmental Conservation Act, later replaced by the National Environmental Management Act, EIAs are supposed to function as a mediator between development and environmental protection. 

Aligned with global assessment frameworks, the Western Cape government’s EIA process is largely dependent on “specialist studies”. These studies, and the practitioners and specialists who undertake them, do not exist in a political or economic vacuum. 

Research that we conducted in various sites across the metropolitan area shows how these specialist studies are often tainted by the “commercialisation of scientific knowledge”, as other researchers have shown more broadly. 

For example, while an area called the “food basket” of the city, namely the Philippi Horticultural Area, is zoned as agricultural land, my doctoral dissertation shows how developers continually commission reports from EIA specialists that allow development to go ahead. This is illustrated by the widely publicised case of the Oaklands City development in the south-west of the Philippi Horticultural Area. 

The expertise held by EIA practitioners is not immune to the pressures of a contract being awarded or not. Furthermore, while civil society and interested and affected parties might occasionally enlist independent EIA practitioners to contest commissioned reports favouring developers, the substantial expenses involved in such a process often results in a prolonged and costly struggle that ultimately tips the balance in favour of developers. 

The fact that developers are often courted by the City of Cape Town compounds this advantage. After years of attempting to stop the Oaklands City development, this relationship between the City of Cape Town and the developers was revealed.

Such a critique has also been developed in relation to the Two Rivers Urban Park in Cape Town, dubbed the “Amazon development”, with Amazon Web Services as anchor tenant. This has been largely contested on grounds of meaningful consultation and public participation, a hidden narrative in the broader context concerning the EIA process. 

The Two Rivers Urban Park is on a floodplain at the confluence of the Black and Liesbeek rivers. Within the context of an increasingly neoliberal-leaning city administration, various stakeholders revealed that the developers were carefully coached through the EIA process to ensure the development would go ahead. 

This flies in the face of various reports that speak to the ecologically vulnerable state of the Two Rivers Urban Park precinct as well as its value as water variability (flooding and drought) becomes more common in the area. 

The relationship between development dictated by private/international investment and ecologically robust cities is often considered to be mutually beneficial by the city’s administration. This is the fundamental premise of the much-acclaimed book A House Divided (2019) by Crispian Olver, on the Democratic Alliance’s rule of the Western Cape. 

Against the backdrop of the 2018 water crisis in Cape Town, Olver uncovers “back-stabbing, feuds and back-room deals” in his examination of the relationship between local politicians and developers in the agriculturally sensitive Philippi Horticultural Area and other places. 

But throughout the field of (critical) urban political ecology, capital expansion and the conservation of nature are at odds with one another. While civil society in South Africa has long criticised politicised exclusionary development and infrastructure, the environment has been largely left out of our politics. 

Case studies about the “capturing” of EIA processes are mistakenly read in isolation from one another. Across the City of Cape Town (and in other provinces and cities), there are numerous examples where essential processes designed to protect the environment from the influence of private capital are circumvented, indicating a wider systemic issue. It appears there is an increasing tendency for financially supported developments to trump environmental conservation.

EIAs, therefore, should not simply be seen as legal hurdles that need to be cleared for a development to go ahead. The completion of these processes, and the adherence to their findings, should always be interpreted through a lens of erring on the side of caution for the sake of the wellbeing of present and future generations.

Matthew Wingfield is a research fellow at Stellenbosch University. Tina Gama-Kotze is the research and didactics lead at Boston City Campus.