The new Environment Code (hereinafter the “Code”) came into being with Law no. 2023-15 of August 02, 2023 on the Environment Code, published in the Journal Officiel on September 16, 2023. This law adapts, completes and reinforces the provisions of the former Environment Code dating 2001.
First and foremost, the new Environment Code makes public information a priority. Indeed, the Code now guarantees access to information by the State (article 7 et seq.) through the possibility for any person who so requests to obtain information relating to the Environment when it is available, and the dissemination by the public authority of any serious and imminent threat to health and the Environment. The State also has a duty to facilitate public participation in the decision-making process. Promoters of projects involving environmental risks will therefore have to redouble their efforts to comply with legal and regulatory requirements. Indeed, in recent years, we have frequently seen people surrounding projects, particularly mining projects, express concern about the environmental consequences of such projects, even going so far as to even going so far as to lobby the state authorities..
For the first time, reference is made to corporate social responsibility (CSR) as a complement to any support mechanism, in conjunction with the Ministry for the Environment and Local Authorities. Thus, CSR actions by companies cannot replace the requirements set out in the regulations. The Ministry of Mines and Geology also shares this interpretation of CSR.
One of the major innovations of Law no. 2023-15 of 02 August 2023 on the Environment Code is the creation of financial instruments (articles 16 et seq.). For the protection of the environment, it is provided that duties, fees and parafiscal taxes are borne by the operators of classified facilities or any person carrying out a regulated activity with an environmental impact. An exemption is provided for companies that invest in combating pollution and nuisance. Additional texts will certainly be issued to specify the basis and calculation methods for these new taxes linked to environmental protection, as well as the conditions for applying the exemption.
The new Environment Code has also made the environmental compliance procedure (articles 20 et seq.), which is required prior to the planning, development and implementation of projects with an impact on the environment, more complex. The concept of category 1 and 2 classified installations has been maintained. Category 1 includes projects subject to an environmental impact assessment with a major environmental risk, and category 2 concerns projects subject to an initial environmental analysis. The new Code retains the concepts of danger and moderate or profound alteration of the environment to distinguish these two categories.
The environmental assessment now consists of a strategic environmental assessment, an environmental and social impact study (for 1st class facilities), an initial environmental analysis (for 2nd class facilities) and an environmental audit. It may also potentially include a risk assessment, depending on the type of classified facility. As with the 2001 Code, it is also specified that public participation is an integral part of the environmental assessment process. Regulations are to be issued to specify the conditions under which these studies are to be carried out and their content.
Validation of the environmental assessment by the new body created for this purpose (the Technical Committee for Validation and Monitoring of Environmental Assessments) results in the issue of a certificate of environmental compliance by order of the Minister responsible for the environment, valid for a renewable period of 05 years. In addition to this certificate, if the environmental audit and the environmental assessment are validated, the Department of the Environment issues a declaration of environmental compliance. Finally, at the end of the project’s life or on closure, the Minister responsible for the Environment issues an environmental compliance discharge if all the provisions of the environmental and social management plan have been complied with.
It is made clear that environmental assessment is a compulsory prior step in any authorisation, approval or permit procedure. Applied to the extractive sector, this means that any application for a mining or petroleum permit or authorisation is subject to this assessment.
The concept of “classified installations” now explicitly includes mines and quarries, steam and gas pressure equipment, and industrial oil and gas installations. There is a clear determination to target the extractive sector.
The new Environment Code maintains the prior authorisation procedure for first class installations, which involves obtaining a declaration of environmental compliance, followed by a certificate of environmental compliance. For installations of second class, reference is still made to the declaration system, which leads to the issue of a receipt by the Ministry of the Environment.
The regime for the management of noxious or dangerous chemical substances has also been tightened (articles 100 et seq.), the manufacture, import, disposal, distribution, transport, transit, export and storage of which are subject to prior authorisation by the Minister for the Environment.
A major innovation is the creation of an entire chapter dedicated to the management of oil and gas activities (articles 129 et seq.). All operations in the sector, from prospecting to dismantling and the construction of pipelines for transporting hydrocarbons, are subject to prior environmental assessment, with the issue of an environmental compliance certificate setting out the procedures for implementing the environmental and social management plan, which must be taken into account at the end of the project’s life. As with mining licence holders, oil and gas licence holders are also required to set aside a guarantee in the form of a sum paid into an account opened with a financial institution designated by the State for the rehabilitation or restoration of the affected sites. It is important to remember that the mining sector still suffers from a lack of application of this provision due to the absence of regulatory texts intended to specify the conditions of implementation of this guarantee.
The chapter dedicated to combating pollution and the degradation of soil and subsoil now makes explicit reference to the mining sector (articles 175 et seq.). It is stipulated that any applicant for a mining permit must carry out an environmental assessment, including a rehabilitation and closure plan, as an integral part of the environmental and social management plan. Similarly to oil and gas activities, applicants for mining permits must have an environmental compliance certificate before starting any work. The new Environment Code also reiterates the obligations already contained in the Mining Code to rehabilitate the site and set up a rehabilitation fund.
On the criminal side, new offences have been added. In addition, the amount of fines has been considerably increased, up to a billion CFA francs. The settlement procedure has been tightened. Offences relating to the illegal dumping of noxious and dangerous substances in Senegalese waters, the illegal or clandestine import or dumping of hazardous waste on Senegalese territory, and the violation of regulations applicable to the management of toxic and dangerous substances or waste are excluded from the possibility of settling.
Finally, operators of classified facilities are given 06 months to comply with these regulations. Holders of mining permits must complete their environmental assessment within this 06-month period with a rehabilitation and closure plan approved by the competent body. There is an explicit exclusion of the stabilisation clauses provided for in the conventions with the State, in particular, for new charges arising from environmental protection measures. This confirms the State’s current desire to interpret stabilisation clauses strictly and limit them to financial, tax and customs aspects.
In short, the new Environment Code reinforces, clarifies and complicates existing environmental obligations and procedures, bringing them into line with international trends and anticipating the potential consequences of oil and gas activities in the country. There is thus a desire to better regulate and anticipate the environmental consequences of mining and oil activities. What remains to be done, however, is to adopt the various decrees and orders without which the contributions of this Code will not see the light of day.