EIA decision-making and administrative justice: an empirical analysis

Abstract

Environmental impact assessment (EIA) is implemented in most countries as an administrative procedure. In this context, it is subject to the principles of administrative justice. However, to date, no empirical research has been conducted to determine the extent to which EIA decisions comply with the principles of administrative justice. In this paper, empirical data from 42 EIA cases in South Africa are used to establish EIA compliance with the administrative justice principles of lawfulness, procedural fairness and reasonableness. This is achieved by measuring EIA decisions against specially developed key performance indicators (KPIs). Overall, decisions were found to mostly comply with the principles of administrative justice. However, questions arise with regards to the quality and substance of the information feeding into the decision-making process and on which decisions are ultimately based.

EIA decision-making and administrative justice: the substance of just decisions

“…To address the aim of this article 42 EIA cases that were previously reviewed for conformance to administrative justice principles (Alberts et al 2021b) were now also reviewed against specially designed key performance indicators (KPIs) relating to EIA report substance, that is to say the substantive quality of the information provided in the EIA reports -see Tables 1 and 2. Alberts et al (2021b) found that in terms of conformance to administrative justice principles of lawfulness, reasonableness and procedural fairness…”

“…A distinction can however be made between 'administratively correct' EIA decisions and 'good' EIA decisions (Alberts et al 2021b) KPIs were chosen that are empirically measurable and for which data could be obtained from EIA case files. The KPIs addressed South African minimum legal requirements and international best practice for EIA report substance, based on an adapted and contextualised Lee and Colley method (Adapted from Alberts et al, 2020;Alberts et al 2021a;Sandham et al 2008aSandham et al , 2020 -see Table 2.…”

“…Environmental impact assessment (EIA) is increasingly understood internationally as a policy instrument that should deliver more sustainable outcomes (Pope et al 2004;Cilliers et al 2020;Roos et al 2020). However, the original intent of EIA as envisaged by Caldwell (1988) was to protect the public and the environment from the consequences of reckless or inadequately informed policies or decisions (Caldwell 1988;Alberts et al 2021b). The desire to reinforce administrative accountability was specifically stated by Caldwell (1988) to be one of the key factors that shaped the development of EIA, and it is this desire that created the nexus between EIA and the field of administrative justice.…”

“…Given that EIA is implemented in most countries globally as an administrative procedure subject to administrative justice principles, it is surprising that the EIA effectiveness literature, for the most part, has not explicitly considered EIA within the context of administrative justice with the notable exceptions of Retief et al (2020) and Alberts et al (2021b). Alberts et al (2021b), specifically, showed that EIA does as a whole -for 42 cases evaluated against specifically designed key performance indicators (KPIs) in the South African context -deliver on the internationally accepted principles of administrative justice, namely: lawfulness, reasonableness and procedural fairness. The research concluded that 'EIA decisions made for the sample of cases evaluated can, on the whole, be considered administratively just' (Alberts et al 2021b: p.15).…”

“…For purposes of this research, the term EIA report substance is synonymous with EIA report quality. However, we use the term substance here as it aligns better with the administrative justice literature, in that it forms the basis on which administrative decisions are made (Retief et al 2020, Alberts et al 2021b). The quality or substance of EIA reports has been a particular focus of international and South African EIA research (Sandham et al 2008a;Jalava et al 2010;Bond et al 2018).…”