The environmental management cooperation agreement as a co-operative environmental governance tool in a segmented environmental administration

Abstract

Traditional environmental compliance is a top-down regulation method comprising of mechanisms where adherence to environmental laws is achieved through strict monitoring by authorities. This top-down regulation is the hallmark of the command and control regulation and it is also characterised by segmented environmental administration. The segmented environmental administration is underpinned by a public law relationship which is in turn pigeon-holed by the clothing of one legal subject with authority. Subsequently environmental governance in South Africa is a system in which power relations fluctuate among the players involved in managing and solving environmental problems. These fluctuation of power relations often leads to conflict and lack of cooperation between environmental authorities. The command and control method of environmental regulation is experiencing problems in South Africa. Alternative environmental regulation such as voluntary agreements vis-à-vis Environmental Management Cooperation Agreements (EMCAs) may address some of these challenges. Section 35 of the National Environmental Management Act 107 of 1998 (NEMA) EMCA is one such agreement. However EMCAs are not applicable all the time and in all situations and nor can they be used at will. The NEMA EMCA have not been used often in practice. This study argues that for the NEMA EMCA to be attractive and effectively used as an instrument of co-operative governance, it should not be mandatory that all three spheres of government must be parties to the EMCA, or else it will not be concluded or used, and the opportunity to achieve environmental compliance through cooperation may be missed.