Appeal of the Approval of Environmental Authorisation Application issued for Exploration Drilling within Offshore Block ER236, KZN, South Africa; Auth Ref 12/3/236
This is a request that the decision to approve the Environmental Authorisation Application for exploration drilling be reconsidered and set aside and that any drilling activity be suspended pending the finalisation of the appeal procedure. I need not remind you that the provisions of the National Environmental Management Act, 1998 (Act No. 107 of 1998) (NEMA), read with the relevant regulations, provide for the suspension of any environmental authorization pending the appeal.
The grounds of the appeal are set out hereunder:
1. FLAWED REGULATORY REGIME
That the approving authority for oil and gas environmental authorization sits with the Minister of Mineral Resources and Energy, who’s mandate is the swift pursuit of oil and gas development, defies fairness and justice. It is my contention that the aforesaid Minister should not be tasked with decisions and actions relating to environmental concerns. The impartiality of the Minister in matters relating to the environment, and its protection in terms of the Constitution and NEMA, cannot be guaranteed, regard being had to the Minister’s primary function being the particular subject matter of the authorisation for the exploration drilling for offshore (and onshore) oil and gas. It is my contention that this conflict of interest diminishes and compromises the sound environmental management function provided for in Section 24 of the Bill of Rights. It goes without saying that, as a further result, the implementation of NEMA and its EIA regulations as applied in the application subject to this appeal is compromised.
Furthermore, the Minister of Environment possesses only appellate jurisdiction in this appeal process with the result that the Department of Environment has not properly scrutinized this application for authorisation. Accordingly, the EIA process has not been subjected to the expected and requisite inquiry or environmental protection provided for by NEMA.
The issue of the legislative anomaly as set out above and its resultant lack of procedural fairness is the primary basis of my objection to the authorization that forms the subject matter of this appeal as all decisions to date have been influenced by the mandate of MPRDA. Evaluations and recommendations for these decisions have come from Petroleum Agency SA, whose mandate it is to promote, regulate and facilitate exploration and production of oil and gas (Section 71 (i) MRPDA). These decisions,therefore, lose sight of the devastating effect on the environment of oil and gas exploration, and they lose sight of the principle relating to the right to a healthy environment which is enshrined in the Constitution.
Therefore, it is imperative that any appeal to this application is fully and properly considered.
2. NEED AND DESIRABILITY OF THE PROJECT: ALTERNATIVES TO CLIMATE CHANGE OPTION REMAIN UNCONSIDERED
The relationship between greenhouse gas emissions and climate change-related impacts, such as the rise of the sea level, is quantifiable. For the Department of Minerals to proceed with this application as it does, understanding the science of global warming, is reckless and ill conceived. It cannot be denied that the alternatives to the extraction of fossil fuels is the investigation and use of renewable energy.
The consequence of completely disregarding the contribution that offshore oil and gas exploration has to climate change is to ignore the (now universally accepted) fact that the subject of the authorization represents a significant threat to the environment and to biodiversity, not to mention the public’s constitutional right to an environment that is protected for the benefit of current and future generations. This irresponsible risk-management amounts to gross negligence, an unjustifiable dereliction of duty and an abuse of public trust.
3. SUBSTANDARD MANAGEMENT OF ENVIRONMENTAL IMPACTS OF PETROLEUM EXPLORATION AND PRODUCTION
Offshore oil and gas in KZN is a new and large sector and despite numerous requests there has been no Strategic Environmental Assessment (SEA) undertaken. Considering the potential for massive pollution being present, a rigorous, independent and proactive SEA should have been undertaken to inform the environmental viability of this offshore oil and gas proposal.
Insufficient attention has been given to investigating and considering the socio-economic impacts of the exploration process.There has been no Cost Benefit Analysis for this application. Consequences of a blowout, or accidental release, of oil and/or gas (or associated materials), to the tourism, fisheries and recreational industries have not been properly considered.
Contemporary research such as The Economic Contribution of the Ocean Sector in South Africa (Hosking et al 2014) as well as the Review of Ocean Economy Activities within the South African Exclusive Economic Zone with Particular Reference to the Offshore Oil and Gas, Fishing and Mining Sectors (Ken Findlay; CPUT Research Chair: Oceans Economy, July 2018) finds flaws with the valuation of the oil and gas sector which was undertaken by the Operation Phakisa consultancy firm, McKinseyand which is presented in the Phakisa Document (Offshore Oil and Gas Exploration: Final Lab Report for Operation Phakisa).
Despite the lengthy duration of this application process, at no time did either Sasol or ENI request to undertake any Biological Baseline studies to satisfy the concerns raised by various stakeholders. There remains no information or knowledge of the deep offshore marine environment in the Areas of Interest, therefore there is still no real data of what exploration drilling could potentially impact upon in terms of biodiversity. Remotely Operated Vehicle surveys to seek a suitable location for the wellhead is not deemed as a baseline survey (MPRDA Reg 49(1) (scoping) and Reg 50 (EIA)).
According to the document under scrutiny, it is proposed that various Management and/or Standard Operating Plans are guaranteed to be in place before exploration commences, which include the Waste Management Plan; Oil Spill Contingency Plan; Well Control Contingency Plan; Fisheries Management Plan; Decommissioning Plan; Financial Provision Determination Plan; Maintenance Plan; Shipboard Oil Pollution Emergency Plan; Emergency Response Plan; Oiled Wildlife Response Plan and the Environmental Awareness Plan. None of these plans were subjected to Public Participation or the scrutiny of an external moderator. This failure to safeguard the public consultation process is contrary to the NEMA principles and to best practice standards for public consultation in environmental law.
The Oiled Wildlife Plan must be of questionable integrity since the agency mandated by DEFF to deal with stranded animals in KZN is Ezemvelo KZN Wildlife, who, firstly, have not been requested to view or comment on a plan as yet, and, secondly, are severely underfunded and do not possess the infrastructure, the equipment or the facilities to deal with oiled animals. No government department in KZN is able to cope with an increase in stranded animals.
No guidelines, plans or choices for dispersant use have been provided. An explanation of their chemical components, toxicity, potential for bioaccumulation, ecological impacts through the water column and on the shoreline, and their specific function have not been provided. Proof of immediate availability of dispersants, considering this is of primary importance in effecting recovery rates, has not been provided.
4. LACK OF PROVISION OF MITIGATORY SAFEGUARDS
Significant arguments as to why proper guidelines and serious mitigation are needed regarding Vertical Seismic Profiling (VSP), Seismic Surveys (both 2D and 3D) and multibeam bathymetric surveys involved in the offshore oil and gas sector have been submitted over the past 3 years. There is currently no Ocean Noise Policy, nor suitable mitigation standards, for this application which requires decibel standard mitigation. These seismic operations require sector policy and standards.
Noise exposure parameters based on noise-induced threshold shift measurements (namely Temporary Threshold Shift (a noise-induced threshold shift that fully recovers over time) and Permanent Threshold Shift (a noise-induced threshold shift that does not fully recover over time) should have been developed for this application with the view to reduce, maintain, or manage noise levels for marine fauna. A Marine Mammal Observer 500m visual radius remains insufficient as a precautionary management objective for the acoustic footprint of this application.
Invasive species management, including risk to fisheries, continues to be downplayed and understated. The EIA acknowledges that the likelihood of invasive species being introduced is high yet it does not take into account the impacts of the structures in the vicinity of the well head which will become stepping stones for the further movement of alien and invasive species.
The EIA understates the risk not only to protected and threatened species but also species of economic value and viability. There are no sufficient arguments within the EIA that show that various species, already at risk and under pressure from various anthropogenic sources, will be at low risk or that the risk is negligible. Assumptions on species, such as the coelacanth, are invalid and attempts to severely down-play the unknowns and potential risks on this species.
According to Braithwaite et al (2015) increased offshore anthropogenic activities, such as offshore mining, are likely to generate additional energy costs to migrating humpback whale populations. Therefore, energy related to reproduction would be jeopardized because the demand for energy would be funnelled into other related survival activities such as having to travel greater distances to avoid an area and changing swimming speeds. While local disturbances to behaviour may be minor, the costs of repeated disruptions may accumulate over a long journey (such as a migration) and thus collectively have a major impact on the energy stores of the whales. Given the historical anthropogenic pressure (whaling) on the Humpback whale population and its recent population comeback, it is a disgrace that exploration will be occurring in their direct migration channels, thus disturbing and changing the behaviour of the population, at an unknown cost.
It has been shown that fundamental problems and gaps in existing legislation mean that biodiversity protection has been given inadequate consideration at various stages of this regulatory process. This urgent appeal to the Department of Environment, Forestry and Fisheries is to correctly apply the NEMA regulations and principles and to fulfill the department’s obligations in terms of Environmental policy and responsibility, by ensuring that the provisions and principles of the Constitution and those of the NEMA are accurately applied and acknowledged.
Braithwaite, J.E., Meeuwig, J.J., Hipsey, M.R. 2015. Optimal migration energetics of humpback whales and the implications of disturbance. Conservation Physiology3: doi:10.1093/conphys/cov001.
Findlay, K. 2018. Review Of Ocean Economy Activities Within The South African Exclusive Economic Zone With Particular Reference To The Offshore Oil And Gas, Fishing And Mining Sectors. Oceans Economy, Cape Peninsula University of Technology, South Africa, p20.
Hosking, S., Du Preez, D. , Kaczynsky, V., Hosking, J., Du Preez, M., Haines, R. 2014. The Economic Contribution Of The Ocean Sector In South Africa. Journal for Studies in Economics and Econometrics, 38 (2)
McKinsey. 2014. Unlocking the Economic Potential of South Africa’s Oceans, Marine Transport and Manufacturing Executive Summary. Department of Planning, Monitoring and Evaluation. 2014. Operation Phakisa: Offshore Oil and Gas Final Lab Report-2014 Cape Town. Available at : https://www.operationphakisa.gov.za/operations/oel/pmpg/Marine%20Protection%20and%20Govenance%20Documents/Marine%20Protection%20and%20Govenance/OPOceans%20MPSG%20Executive%20Summary.pdf
McKinsey has been implicated in corruption scandals in South Africa, severely undermining its credibility. See http://www.corruptionwatch.org.za/tag/mckinsey/ ; https://ewn.co.za/2018/07/09/mckinsey-s-new-boss-apologises-to-south-africans-over-corruption-scandal ; https://www.huffingtonpost.co.za/2018/05/02/mckinsey-execs-will-personally-pay-back-eskoms-moneya23425865/; https://www.biznews.com/global-citizen/2017/12/26/mckinsey-sa-gupta-graft-scandal