Law as an environmental safety net

The environmental footprint of large projects like oil and gas in Namibia, is increasingly in the spotlight with the world’s focus now squarely on environmental, social and governance issues. Credit: Leon Louw for WhyAfrica

Law as an environmental safety net   

Environmental law provides a ‘safety net’ should developments fail to address an environmental problem, Minette Le Roux, Principal Environmental Specialist and Head of the Environmental Department at NSDV tells WhyAfrica during a recent interview.

By Leon Louw owner and editor of WhyAfrica

Minette, you have an environmental background and work for a law firm. Please tell us how your career has evolved.

After spending more than 14 years working as an environmental consultant and environmental assessment practitioner, I soon came to realise that the relationship between human beings and their environment is a complex one, requiring a holistic and interdisciplinary study.

The protection of the environment is a big, if not the biggest, contemporary issue facing humanity. Environmental concerns are varied and multifaceted. For this reason, the study of the legal rules pertaining to the protection of the environment (environmental law) is important.

Environmental law provides the norms and standards for solving and/or preventing environmental problems and ideally should also provide a sound basis for environmental policy, planning and management.

Being an environmental consultant and environmental assessment practitioner and constantly working with various environmental laws I soon became aware of the divergence in terms of what legal practitioners and environmental practitioners know when it comes to environmental management and protection. Therefore, I pursued studying towards an LLB degree and will be completing my degree in the next few months.

The opportunity to work in a law firm and head the environmental department is the ultimate exposure to combine these two backgrounds, and NSDV had the same vision. By combining these two disciplines (environmental science and environmental law) my goal for the future is to help prevent environmental problems by adopting a holistic approach towards the environment while being aware of the multidisciplinary and long-term nature of managing a sustainable development.

Why is it important for a country’s regulators to enforce environmental law at a time when economies around the world, and especially in Africa, are in dire straits and industrial development is urgently needed? What will the consequences be if we do not implement environmental and social policy?

Environmental management is a multidisciplinary activity in which the competing interests of the economy, the environment and people’s quality of life needs to be balanced to satisfy the needs and aspirations of all people and future generations.

Environmental law is infused with notions of equity, transformation, redress, and justice. These notions play a critical role in current environmental management and will play a critical role in future environmental management. It is important for a country’s regulators to enforce environmental law. In the first place, these laws provide a ‘safety net’ should developments fail to address an environmental problem.

Secondly environmental law can act as a ‘brake’ on a development that harms the environment. Finally, environmental law provides a right to people to participate in the environmental decision process. The consequences of not having environmental law will result in developments taking place without securing ecological sustainable development and use of the natural resources. This will hinder justifiable sustainable economic and social development.

Environmental and Social Governance (ESG) is the new buzzword but what does it mean? How important is it for companies and institutions to not only comply with ESG standards, but to improve those standards continuously?

Environmental and Social Governance (ESG) is a measurement the market expects of companies and the product(s) and/or service(s) that they produce. ESG measures the impact that a company has on the environment within society in producing its product(s) and/or service(s). Products and services with higher ESG scores can:

  • Command a premium on competing products
  • Differentiate itself from competing products
  • ESG is essentially a key driver in measuring a company’s progress and maturity. Government incentives and taxations are rapidly moving to incorporate ESG scores, and JSE-listed companies are required to disclose their ESG impact, obliging companies to incorporating ESG into their business models.

How can NSDV assist companies in complying with ESG regulations, or to develop ESG goals that will assist them in improving their ESG standing and ability to get funding for new projects? Do you have a toolbox to track a company’s ESG performance, for example? Please tell us more about these products and services.

NSDV was recently approached by a client to assist them in building an ESG scorecard that was aligned to both the global standards and JSE-adopted ESG metrics.

They wanted to highlight the ESG value of their mining waste processing technology to their South African mining clients. NSDV used the global and JSE ESG framework to map our clients’ activities to the specific ESG areas that their business will impact on.

Next, NSDV built the data-gathering templates they required, into which the on-site measurements could be captured. Once the groundwork was complete, NSDV developed the actual formulas necessary to create the scorecard. NSDV is now able to deliver a monthly scorecard to the client to track the ESG improvements they’re delivering for their own clients.

Do you believe that some large multinationals are guilty of ‘greenwashing’? How can society hold decision makers and large companies accountable for their actions to ensure that what they claim is really implemented on the ground? 

For a company to become ‘sustainable’, ‘ethical’, ‘green’, ‘climate neutral’ or ‘fair’, to name just a few, their improvements need to be continually measured to their own baseline – in other words, what was their current position prior to their ‘green’ initiatives being implemented?

Together with this the improvements should be aligned to the country’s global commitments to environmental protection. Once a company’s ‘green’ initiatives do not align to global commitments people will continue to perceive it as ‘green washing’.

There is a need for a community response that focuses on prevention and regulation rather than reparation and adjudication, and that focuses on the control and avoidance of environmental harm and the conservation and sustainable development of natural resources. This explains why the emphasis of international environmental law is on the development of supervised treaty regimes to protect the environment.

Society can contribute to the drive for ‘sustainable’, ‘ethical’, ‘green’, ‘climate neutral’ or ‘fair’ by continuously being involved in environmental matters.

Society needs to become aware of their right to a clean and healthy environment and should use the remedies available to them to ensure this right is given effect. Society should be aware that environmental law could aid in providing a ‘safety net’ should developments fail to address an environmental problem.

Environmental law could aid in stopping a development that harms the environment and environmental law provides a right to people to participate in the environmental decision process.

In your view, is civil society in African countries strong enough to oppose big business when their rights and the environmental laws of that country or people are impinged on and threatened? How can African countries strengthen their environmental laws and at the same time give indigenous communities a stronger voice in disputes with big business and national or local governments? (Perhaps there are examples of legislation in other parts of the world that can serve as guidelines?)

Civil society’s opposition to large businesses infringing on their rights and environmental laws are just as strong as the legislation of that country allows for. A weak environmental legislative framework will pose less of a ‘safety net’ for people to oppose an environmental problem or preventing a development from harming the environment. Furthermore, an environmental legal framework that does not provide people a right of participation in the decision making will provide less or even no protection to civil society when opposing large business from harming the environment.

For African countries to strengthen their environmental laws and provide civil society with a stronger voice, African countries should actively participate in the negotiations and ratification of Multilateral Environmental Agreements (MEAs).

Businesses like mining companies are increasingly looking to offset their impact by investing in conservation projects. What would your advice be for a mining company when they look to offset their footprint? Which projects should they be investing in, how should they go about it, and what are the legal aspects involved? Would NSDV get involved in these projects? 

The mining sector should explore carbon reduction technology, carbon sequestration and offsets, as well incorporate the aim to be carbon neutral at closure into their closure and rehabilitation planning.

On-the-ground actions that could be taken by the mining sector to become a cleaner and more sustainable sector include amongst others the sourcing of clean energy through the development of renewable energy supply (solar PV plants, off-site wind; energy storage); using low carbon fuels or electrification for heavy machinery (hydrogen trucks); capture and use of methane in underground mines for electricity generation; using smart technologies and digitalisation of mineral processing; reworking/reclamation existing mine residue stockpiles or deposits by utilising new extraction technologies and utilising technology to produce ‘cleaner’ minerals or metals.

Most of the above actions would require an environmental authorisation and/or licence prior to commencing with such activities.

NSDV can assist with carbon and biodiversity offset projects, as well as conducting the process for obtaining environmental authorisations and/or licence for these projects.

Minnette Le Roux, Principal Environmental Specialist and Head of the Environmental Department at NSDV. Image credit: NSDV

Leon Louw is the founder and editor of WhyAfrica. He specialises in natural resources and African affairs.        

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