Hydraulic fracturing and procedural environmental rights in South Africa
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Hydraulic fracturing, the process which facilitates the extraction of shale gas from rock formation from depths of up to two miles below the earth's surface, has the potential to adversely impact environmental and the other categories of human rights. Though hydraulic fracturing is in a planning stage in South Africa, notices have been issued regarding pending administrative decision concerning applications for exploration rights to explore for natural (shale) gas largely in the Karoo region. Concerns similar to those which have been expressed in other jurisdictions regarding the process are also being raised locally. These concerns are exacerbated considering that a significant part of the population of the Karoo region have limited understanding of the issues associated with hydraulic fracturing. Many of them are also poor, which may hinder their effective access to justice. The concern that the adverse effects of hydraulic fracturing may compromise some provisions of the Bill of Rights in the Constitution of the Republic of South Africa, 1996 (hereafter "the Constitution" extends to how people are expected to deal with the challenges of enforcing their rights, especially those relating to the environment. This is because the enforcement of substantive environmental rights is not easily realisable. It is therefore necessary to examine the regulatory framework for hydraulic fracturing in relation to the protection of procedural environmental rights. The research question in this study is "to what extent does the South African legal framework pertaining to hydraulic fracturing provide for the protection of procedural environmental rights?" The study found that the enforcement of environmental rights that may potentially be violated by hydraulic fracturing can be made possible by the application of specific procedural rights. Accordingly, the research considered the legal framework of hydraulic fracturing in relation to procedural environmental rights from the perspectives of the United States of America, the United Kingdom and South African law. Three procedural rights, namely the right of access to information, the right to just administrative action and the right of access to the courts were considered with a view to draw lessons from the foreign jurisdictions for possible improvement of the South African legal framework on the subject. Findings from the study revealed some positive development in the law from the USA and the UK; perspectives that may be considered in South Africa to strengthen the enforcement of procedural environmental rights in relation to hydraulic fracturing.
- Law