The environment gets legal status
It is now an essential element of commercial and industrial decision-making and a driver of new business areas
THE business of environmental law has witnessed a rapid evolution in recent years and demand is increasing for highquality environmental departments at larger law firms.
South African environmental law has matured and taken its place as an essential element of commercial and industrial investments and decisionmaking and is a driver of certain new business areas, such as the set of burgeoning markets for environmental commodities, including carbon, water and biodiversity offsets.
Changes in the environmental legal business model are reflected in the renaming of practices to include concepts such as “sustainability”, “environmental markets” and “natural resource management”. The new nomenclature reflects emerging awareness that the natural environ- ment cannot be dealt with in isolation from the need for human development. Modern sustainable development law seeks to achieve this “connectedness” practically and these linkages are reflected in the evolving business of environmental law.
While environmental legislation certainly existed before the democratic era, the incorporation of the “environmental right” into the 1996 Constitution, which exhorts government to legislate for environmental protection and sustainable development, led to the (then) Department of Environmental Affairs and Tourism implementing a law-reform process that, ultimately, produced the current suite of environmental legislation largely falling under the aegis of the National Environmental Management Act No 107 of 1998.
These statutes are the environmental lawyer’s toolbox and the context for their application has recently seen a marked shift arising from:
Increasing complexity of environmental legal matters and awareness of the linkages between these and other legal considerations;
A significant increase in the importance of environmental/sustainability issues in commerce and industry and a concomitant elevation in the actual and perceived financial value of these issues; and
Heightened compliance and enforcement actions by the Department of Environmental Affairs.
Among the indicators of the contextual shift is the increasing number of environmental law practitioners employed at larger “full service” firms offering a number of specialist practice areas. This is a move away from the previous character of the market in which environmental boutique (niche) law practices dominated, based on a view of environmental law as ancillary to more mainstream commercial legal disciplines.
The following is a non-exhaustive set of examples of factors contributing to the increase in demand for the services of the larger law firms’ environ-
Changes in the environmental legal business model are reflected in the renaming of practices to include concepts such as ‘sustainability’, ‘environmental markets’ and ‘natural resource management’
Increased compliance and enforcement: South African environmental law was long regarded as being comprehensive and well-articulated but lacking enforcement clout. This perception is rapidly evaporating as a result of the department establishing the Compliance and Enforcement Directorate (the Green Scorpions), which releases an annual report to record progress in enforcement — including by way of litigation the imposition of fines and associated sanctions with financial impact (such as issuing remediation orders). In addition, crim-