On 24 February 2015, the Minister and Department of Environmental Affairs (DEA) called a media briefing at Parliament in Cape Town to announce the decisions on 118 applications by 35 large industrial polluting facilities to postpone compliance with air quality laws governing atmospheric emissions.

At the briefing, the National Air Quality Officer announced that the vast majority of applications for postponements from compliance with the so-called “minimum emission standards” have been granted for five years to national electricity service provider Eskom; to refineries such as Engen, Total, Shell, Natref and Sasol; to PPC in the cement manufacturing industry; and to Anglo American Platinum in the platinum mining sector. For all other polluting industries, these standards kick in on 1 April 2015. In some cases, the National Air Quality Officer even granted five years’ postponement of the stricter standards that apply from 1 April 2020.

So without much ado, South Africans have been condemned to at least another five years of pollution that indisputably exceeds standards developed, negotiated with the polluters and promulgated as being the minimum standards that South Africa’s air quality can tolerate.

Eskom and public health

Particulate matter – dust – is the single biggest air quality problem we have in South Africa, and high levels of particulate matter are extremely harmful to human health. Not surprisingly, twelve of the coal-fired power stations for which Eskom sought postponement are in the air pollution hotspot known as the Highveld Air Quality Priority Area, with Matimba and Medupi power stations falling within the Waterberg-Bojanala Air Quality Priority Area, and Lethabo falling within the Vaal Triangle Airshed Priority Area. In these Priority Areas, pollution already exceeds levels allowed under ambient air quality standards.

So what does granting a postponement from compliance for Eskom’s power stations in these already polluted areas mean for the health of those living there?

In 2014, an expert report calculated that granting Eskom’s applications for postponement would result in about 20,000 premature deaths, over the remaining life of the power plants – including approximately 1,600 deaths of young children – and a projected loss of 280,000 IQ points due to mercury exposure. The economic cost associated with the premature deaths, and the neurotoxic effects of mercury exposure, was estimated at R230 billion.

This report has not been substantively contradicted by Eskom or authorities. Even reports commissioned by Eskom itself, released last year only because civil society organisations requested access under the Promotion of Access to Information Act, made nonsense of Eskom’s earlier position that emissions from its coal-fired power stations were not harmful to health.

As far as we are aware, in a staggering dereliction of the state’s Constitutional duty to protect health, none of the applicants for postponements – including other large polluters like refineries and cement kilns – was required by the DEA to include in their applications comprehensive assessments of the health impacts of the five years of pollution to come.

The problem with health impacts from air pollution, thoroughly documented in many parts of the world, is their insidious nature – they are hard to identify, hard to track, and it is hard to isolate causal links. What we do know, however, is that the burden of health impacts is borne disproportionately by the poor and vulnerable, and that it exacerbates poverty and inequality. It also costs the fiscus billions of rands a year in health costs and lost productivity.

In a 4 March 2015 Business Day op-ed (Neither Eskom nor industry off the hook over emissions) by Environmental Affairs Minister, Edna Molewa, the minister acknowledges the constitutional right to a “clean living environment” and the need to “monitor” the “environmental cost of economic development”. She also states that the minimum emissions standards “aim to balance the twin imperatives of environmental protection and sustainable development”, and that “a developing country such as ours must be allowed our space to develop, particularly at a time of increased energy scarcity”. Similarly, at the briefing on Tuesday, the National Air Quality Officer explained her decisions with reference to “sustainable development”, a notoriously difficult term to define, and an easy term to abuse.

Are we as South Africans comfortable that it is sustainable development to allow activities that cause disease and death for tens of thousands of our compatriots? Is this flagrant violation of the Constitutional right to an environment not harmful to health or wellbeing reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom?

If we could say that this was temporary and that South Africa is proactively moving away from coal-power generation, perhaps the DEA could sell this outcome to residents of the Highveld. All but a few of Eskom’s stations were granted postponements for the sulphur dioxide 2020 emission standard. According to the minister, “this is to enable the facility to invest towards future compliance where possible, but also because some of these plants are due to be decommissioned around the same time”.

But Eskom has already indicated that it plans, in many cases, to apply for “rolling postponements”, essentially limiting all expenditure on pollution abatement in anticipation of the power stations’ decommissioning date. And, by the way (no matter what the president promised in SONA 2015), Eskom has also said that it needs to extend those decommissioning dates by at least another 10 years from the original dates, which only start in about 2023. No wonder activists on the Highveld and in the Vaal were talking about a “death sentence” in a press statement last week.

Industry-designed ‘roadmaps’ to compliance not enforceable

It is also necessary to comment on the generic quality of the actual postponement decisions, and the inclusion – as a kind of afterthought – of a largely unenforceable requirement for an “offset programme to reduce [particulate matter] pollution in the ambient/receiving environment. A definite offset implementation plan is expected from yourselves by 31 March 2016.”

The minister’s op-ed indicates that the postponements “give industry the opportunity to take the necessary action and retrofit their plants to enable them to comply in the near future”. She says that applicants for postponement submitted “compliance road maps indicating when they envisage having completed their tasks regarding investment in pollution control technologies”, and that the DEA “will continue to work with companies along their road to compliance, though engagement and an open-door policy”.

There is no mention of these industry-designed “roadmaps” in the postponement decisions, let alone any indication that the granting of the postponement is conditional on polluters reaching certain milestones by particular dates. Nor is there any mention of the need for an enforceable emissions reduction plan to make sure that no further postponements from compliance will be necessary. Unless these are contained in monitorable and enforceable regulations or licences, with detrimental consequences for violating those requirements, why would industry not just delay investment again?

The postponement decisions contain nothing more than an “expectation” of an implementation plan for some project to reduce pollution (with no indication as to whether this plan needs to be approved by anyone, nor what happens if it is not approved), and no minimum amount of reduction set. There is also no mention of a prioritised compliance and enforcement project to ensure compliance by these large industrial polluters. 

Civil society and community organisations – assisted by local and international experts – made lengthy, detailed legal and technical submissions on the postponement applications. There is no sign in the one and two-page postponement decisions that these quality inputs were even considered.

Also bear in mind that granting postponements for facilities in pollution hotspots expressly contradicts the Framework for Air Quality Management – published by the minister herself under the Air Quality Act – which only permits minimum emission standards postponement applications to be made for facilities in areas where air quality meets the ambient air quality standards.

Even worse, properly-considered decisions would surely have distinguished between Eskom power stations directly involved with addressing the energy supply crisis afflicting the national economy, and industrial polluters like Sasol, Engen, Total, Shell, PPC, AngloPlat and others that are simply going about business as usual?

So while Eskom and all our biggest industrial polluters have now been given breathing space, the same cannot be said for the people who live on the Highveld and around these facilities. There is an anecdote doing the rounds in Middelburg about a medical doctor who writes prescriptions for children suffering with respiratory conditions to relocate to other parts of South Africa. Sadly, not all residents of the Highveld can afford that option. Both the postponement applications by industry themselves, followed by the DEA’s ill-considered decisions to grant leniency to these big polluters, show disregard for South Africans’ constitutional right to an environment not harmful to their health and well-being. DM

Melissa Fourie is an attorney and executive director of the Centre for Environmental Rights, a non-profit law clinic and advocacy organisation that works to advance environmental rights in South Africa.