The issue of independence is complex and a matter with which the authorities continue to grapple, particularly when it comes to the work of environmental consultants, the payment of EAPs and their involvement in different project phases. Greater clarity is needed to ensure the viability of the sector as well as the effectiveness of environmental assessments.
SRK, as an environmental services consultancy in South African and across Africa, is poised to speak on the correlation between effective integrated environmental management and the quality and ethical values of professionals working in the environmental assessment field. We echo the sentiments of most consultants active in this field today.
Rule 17 of the Rule Book of the EAP Board of South Africa states: "Where an EAP is employed by an organisation that is either the proponent of development or stands to benefit directly from development proposed by an outside party, and undertakes environmental assessment work for that organisation (so-called 'in house' work), his/her environmental assessment work must be subject to review by an independent EAP."
This principle is informed by the industry's professional rules and codes of conduct, which require registered professionals to be ever mindful of the interests of the public and environment. Regulation 17 to the Environmental Impact Assessment (EIA) Regulations stipulates that an EAP or person compiling a specialist report must be 'independent'.
If Rule 17 is read in conjunction with the definition of 'independent' in Chapter 1 of the EIA Regulations, it's presumably aimed at EAPs who work for a proponent (are not independent and not legally required to be). SRK's position is it will not be both proponent and EAP on a project. However, SRK believes Rule 17 in no way prevents or compromises the independence of 'in-house' specialists (such as botanists or air quality experts) appointed by the (SRK) EAP to work on aspects of an EIA.
While SRK's views are grounded in experience, we're concerned there are mixed messages coming through from South Africa's competent environmental authorities.
SRK has had sight of official correspondence which appears to interpret Rule 17 as applying to specialists employed by the same organisation as the EAP conducting an EIA. As such some provincial competent authorities have instructed independent EAPs to appoint specialists from outside their own organisation. Others accept that each specialist is bound by an individual code of ethics and simply require specialists to submit a declaration of independence.
SRK supports the latter position since it is not apparent how one category of specialist is more or less independent than another: neither work for the proponent and both are independent and bound by the same professional ethics and integrity. Furthermore, discriminating against certain classes of specialists may constitute a restraint of trade and also has ramifications for the viability of the consulting sector.
Chapter 1 of the EIA Regulations provides further clarification, noting that an EAP or a person compiling a specialist report is independent where there is no business, financial (other than fair remuneration), personal, other interests, or circumstances that could compromise the objectivity of that EAP or person in performing such work.
Regulation 18 of the EIA Regulations makes allowance for a competent authority to disqualify an EAP or person compiling specialist reports if they have reason to believe these persons are not complying with the requirements of Regulation 17 regarding independence. These onerous requirements appear to be mitigated to some extent through Section 24I, which permits the Minister to appoint an external specialist reviewer in instances where inter alia a high level of objectivity is required.
In its simplest form, the requirement that a specialist should not benefit financially should a development go ahead is a mechanism to promote an objective assessment during the planning phases. In essence, specialists (and EAPs) are required to act in a professional, ethical and unbiased manner by setting aside their personal circumstances, a notion that gained traction in the IEM Information Series published by the national Department of Environmental Affairs (DEA) in 2004.
It's important to note that South Africa is the only country in Africa that requires specialists (and EAPs) to submit a declaration of independence. In our experience working in Africa, the independent of specialists is generally accepted, as is the fact that the EAP will review specialist reports to ensure their objectivity. Indeed, SRK is confident that 'in-house' specialists are independent. Furthermore, all our reports, including those of 'in-house' specialists, are subject to internal review.
In spite of this, SRK has noted the tendency by South African regulatory bodies to accentuate independence over quality, with the DEA emphasising ethical conduct as part of quality assurance. It may be that the South African requirement for objectivity and independence is aimed at promoting trust and building confidence in the EIA process among the public and regulators.
While the move by some provincial authorities to request peer review of 'in-house' specialist reports may be an attempt to pre-empt questions around independence, it may actually undermine the integration of the EIA process, with EAPs being relegated to packaging information supplied by a suite of separate specialist reports.
In this respect, the selection of the best specialists with appropriate levels of experience and expertise is critical. Decisions should override a 'tick box' approach of determining the acceptability of an EIA on the basis of whether the specialists are 'in-house' or not. EAPs should have access to all specialists and not be confined further in their selection from an already small pool.
Another consideration is that while (external) specialists have experience in their own discipline, they may have limited exposure to practical considerations of projects requiring environmental assessment. Although these challenges are not insurmountable, they can be avoided by using 'in-house' specialists who typically benefit from wider exposure and can work more efficiently, thereby reducing EIA time and costs.
Concerns related to the appropriate selection of the specialists will naturally extend to the selection of peer reviewers. Peer reviewers whose understanding of the project is inadequate may reduce, rather than improve, the value of a report compiled by 'in-house' specialists. An unintended consequence of another layer of review is that the EAP will have less time to integrate specialist findings and compile an integrated assessment, and the quality of EIAs could decline. Additional review time is likely to undermine current attempts by government to amend the EIA Regulations to limit the time frame for an EIA process to 300 days.
Another independence issue often raised by stakeholders is that proponents may see themselves as 'owners' of EIA reports and entitled to dictate their content. As a larger environmental consultancy (also employing 'in-house' specialists) SRK is mindful of its reputation and, due to its size, is in the enviable position of being able to withstand such interference.
While SRK is not opposed to peer review, it seems that similar concerns with regard to interference can be extended to the issue of peer reviewers, who are also ultimately paid by proponents. Seen as a means of ensuring a thorough and appropriate assessment, somewhat like peer reviews for scientific publications, it holds merit. If it is communicated as a means of ensuring independence and is instituted automatically when using 'in-house' specialists it makes a mockery of ethics and integrity.
In the final analysis, the competent authorities should have the ability to independently assess the EIA as a whole. Their independence, as government employees, should be beyond question. In projects that are deemed to require (external) specialist review, the competent authority has the power to appoint the necessary expert(s) at the cost of the applicant.
A third independence issue is whether EAPs should be precluded from involvement across the concept, prefeasibility, feasibility, design phases of a project and should only be permitted (have an 'interest') in one phase, typically the feasibility (EIA) phase. To deny this spread of involvement potentially contradicts the notion that environmental input should be included at every stage in order to find integrated sustainable solutions for projects.
Although the EIA Regulatory Framework imposes onerous obligations on EAPs, competent authorities presently possess the oversight tools that ensure objectivity. With this in mind and given the issues set out, SRK would strongly question any general statement by competent authorities compelling EAPs not to use 'in-house' specialists or to ensure they are peer reviewed. We believe this decision cannot be taken until there is a reason for such action in a particular EIA.
Ultimately we argue that each case should be taken on its merits and a decision regarding the independent review of specialists and EAP reports should be based on the specific circumstances of a particular EIA, rather than as a general requirement.
