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Chapter 11 - Environmental Law

Sectoral laws relating to the environment

Certain environmental laws apply to specific environmental areas in the over-arching categories of land-use planning and development, natural resources and pollution control and waste management.
When dealing with an environmental issue falling into one of these three categories, you must consider both the sectoral legislation relevant to the issue and the framework legislation.

Therefore, if you were looking for laws relating to the development of a steel mill, you would look under land-use planning and development because the law relating to planning would be important. On the other hand if you needed information regarding how to apply for a commercial fishing permit or commercial forestry permit, you would look at the laws dealing with natural resources because fish and forests are natural resources and there are specific laws that deal with the allocation of fishing and forestry quotas and licences. You may also need to consider framework legislation such as the EIA provisions contained in NEMA. [delete??] If your quota or licence application was refused you could consider using the Promotion of Administrative Justice Act to obtain reasons for the decision or to challenge the decision.

Two sectoral laws are set out briefly here, namely the National Environmental Management: Air Quality Act (No 39 of 2004) and the National Water Act (No 36 of 1998).

National Environmental Management: Air Quality Act (No 39 of 2004)

The Air Quality Act (AQA) came into effect on 11 September 2005. However, certain important sections have not yet come into operation. The object of the Act is to improve air quality and prevent air pollution through a number of measures, including setting standards for monitoring, managing and controlling air quality, and establishing fines and penalties for people who do not comply with the Act.

The AQA requires the establishment of a national framework for achieving the object of the Act and the adoption of national, provincial and local standards for ambient air quality. Ambient air refers to outdoor air and so excludes indoor air.  Importantly, the AQA makes the management of air quality the responsibility of local government through air quality management plans, pollution prevention plans, by-laws and other policies.

How does the AQA regulate air quality?

The AQA aims to regulate air through providing for:

• the establishment of a national framework for air quality;
• the monitoring of ambient air quality and emissions at the national, provincial and local levels;
• the collection and management of air quality data;
• provincial environmental implementation or management plans;
• local air quality management plans and by-laws;
• the control of certain polluting fuels;
• the control of certain fuel-burning appliances;
• the control of dust, noise and offensive odours; and
• a licensing system for certain fuels, appliances and activities.

Example

Cape Town’s Air Quality Management Unit is part of the City’s Health Directorate and works in partnership with Water Services and Environmental Resource Management. The City’s Air Quality Management Unit has developed an Air Quality Management Plan (AQMP) in terms of the Air Quality Act. The objectives of the AQMP include to:

• formulate an air quality management system for the City of Cape Town;
• specify ambient air quality standards and targets for Cape Town;
• monitor pollutants which cause brown haze and affect peoples’ health;
• improve air quality in informal areas;
• enforce current and future legislation for air quality management;
• compile a comprehensive emissions database for the City of Cape Town;
• control emissions from vehicles in the City;
• consider air quality in land use and transport planning;
• establish the negative effects of air pollution on the people who live in Cape Town;
• establish an education and communication strategy for air quality management; and
• review the air pollution situation on an ongoing basis and report on progress.

Types of air pollutants that are regulated by the AQA

Air pollutants include gases and particles that pollute the air. The AQA requires that limits and standards be set for the concentrations of these gases and particles. The following are some of the most important air pollutants:

• Carbon monoxide - its main source is burning fuel from motor vehicles as well as from burning wood and industrial processes;
• Sulphur dioxide - coal-fired power stations and diesel engines are the main sources of this gas;
• Lead - lead is found in non-lead-free fuels, paints, batteries and pipes; when it is heated it becomes a liquid and appears in the air as fine particles;
• Particulate matter - Particulates are the tiny particles in the air, such as soot, dust, smoke, pollen, ash, aerosols and droplets of liquid. This can be seen as a white or brown haze. Very small particulates can be inhaled and cause problems to health. The sources of particulates include fuels, diesel engines, wood burning, industrial smokestacks and chimneys.

The Minister has set national standards for these pollutants. While carbon dioxide is the most important greenhouse gas, contributing to global warming and climate change, it is not regulated by the AQA.

(Source: City of Cape Town - Air Quality)

National Water Act (No 36 of 1998)

The National Water Act recognises that water is a natural resource that belongs to all people and appoints the State as public trustee of South Africa’s water resources. The National Water Act regulates the way in which people obtain the right to use water and provides for just and equitable use of water resources. The main purpose of the Act is to protect, conserve and manage water resources in a sustainable and equitable way so as to take account of various factors, including:

• the basic human needs of present and future generations;
• the need to protect water resources;
• the need to share some water resources with other countries; and
• the need to promote social and economic development through the use of water.

National government, acting through the Minister and Department of Water and Environmental Affairs, is responsible for achieving this main purpose. The Minister has the final responsibility of fulfilling certain obligations relating to the use, allocation and protection of water resources.

It is not possible to deal in detail with all of the sectoral laws. Therefore, all relevant sectoral legislation has been listed according to the three over-arching categories in the checklist at the end of this chapter. The checklist can be used to help you find out the laws that will apply in a particular situation. Once it has been established which laws apply, you can then follow the steps set out in the section on Ways to resolve environmental disputes.