Environmental legal compliance through self-regulation in the petrochemical industry in South Africa

Abstract

Traditionally, command and control regulation in environmental management is known for its hierarchical top-down state-led approach to compliance. This approach involves instruments where the conduct of the regulated community is prescribed by a firm environmental legislative regime through strict monitoring and the penalising of non-compliant behaviour. The petrochemical industry in South Africa operates its business activities in this inflexible state-led regulatory framework to accomplish legal compliance in its environmental management practices. Conventional regulation to secure environmental protection is shifting to a new self-regulatory approach with emerging responsiveness in the industry. A need for a governance model that underscores sustainable development through cooperative partnerships between the state, regulated community and other actors is developing. The study aims explore environmental legal compliance through self-regulation in the petrochemical industry in South Africa. In exploring the main aim of the study three broad objectives will be pursued, that is self-regulation and hybrid environmental governance, environmental legal compliance audits as well as the South African legal framework which provide the regulatory context for these concepts. Environmental governance suggests an innovative interpretation of what "reasonable legislative and other measures" contemplated in section 24 of the Constitution as well as “voluntary organisation or sector-based instruments” in terms of section 23A of the National Environmental Management Act 107 of 1998 (NEMA) may assume to provide in terms of environmental protection. A mixture of self-regulation environmental management instruments to bring about legal compliance in a hybrid arrangement between different stakeholders to move environmental governance inside the walls of the industry with government oversight is proposed. Taking on different management standards in a single environmental management system specifically designed for the petrochemical industry could result in improved environmental performance related to the management of environmental aspects contemplated in ISO 14001:2015. Sustainable integrated environmental management could be realised through the monitoring of and assurance to conditions contained in authorisations, permits, and licences integrated into a company's environmental management plans. Achieving environmental performance in the petrochemical industry through environmental compliance could be encouraged following a risk-based methodology towards environmental protection through legal audits. The concerns of the state, community and the industry regarding environmental protection, socio-economic interest and profitability are collectively addressed on a mutually beneficial basis within a new paradigm of hybrid governance where environmental protection is no longer the prerogative of the state only. It is argued in this study that the adoption of regulated self-regulation through hybrid environmental governance in the petrochemical industry within the legislative provisions thereof could provide for an innovative governance approach to ensure environmental compliance. The study also proposes recommendations for environmental governance from a self-regulatory perspective for the petrochemical industry, academia (legal) and the regulator.