Our Burning Planet


Energy, land and law: This year, it’s personal

Smoke billows from a fire burning at East Gippsland, Victoria, Australia. (Photo: EPA-EFE / Delwp Gippsland)

If history brings insight and insight brings clarity, 2020 must be the year humanity responds with effective action to the greatest threat it has ever faced. From Rockefeller’s Standard Oil to Exxon Mobil and our own coal sector, the fossil fuel industry has consistently beaten the lawmakers — now our world is on fire. But with rich nations like Australia suddenly on the climate frontlines, the courts may be ready to push back. For South Africans, who’ll be directly affected by a raft of climate-related cases set down for 2020, the outcome couldn’t be more personal.

I. Fuel for the fire

Laws are spider webs through which the big flies pass and the little ones get caught.”

Two centuries back, when the French novelist Honore de Balzac wrote these words, the stakes were lower. The sixth mass extinction was not yet a lived reality, the polar ice caps were not yet disappearing into the sea and Paris, Balzac’s hometown, was not sweltering in 40°C summer heat. Anthropogenic carbon emissions, or what there were of them, came mostly from oil lamps, wood fires and coal stoves — James Watt’s steam engine, although commercialised, was three decades away from ushering in the industrial age. The world may or may not have been a happier place, but it was more or less intact.

By the late 1800s, around the time that Swedish chemist Svante Arrhenius was calculating the connection between C02 emissions and the Earth’s temperature — a doubling in greenhouse gas content, the Nobel laureate concluded, would heat the planet by 5-6°C — the system was primed for the great unravelling.

Because what was clear, even then, was that the law had been outgunned by the energy industry. The Standard Oil Company, the world’s first major fossil fuel conglomerate, had eliminated the competition to seize control of 95% of US oil production, and the government was trying to break the company up. But founder John D Rockefeller had created a maze of holding structures and trusts, which rendered Standard Oil impervious to public investigation.

You could argue its existence from its effects,” wrote Ida Tarbell in her celebrated history of the conglomerate, “but you could not prove it.”

Tarbell may have been familiar with Balzac’s metaphor about spiders and flies. She had faced the commercial Machiavellianism of the Gilded Age head-on, when her father — a small oil producer — had refused Rockefeller’s offer of a buy-out. Her personal experience of the consequences of that decision had gestated for 30 years, until she parlayed it into what Smithsonian Magazine termed a “redefinition” of investigative journalism: a 19-part series (and book) that unearthed the kickbacks, collusions and conspiracies upon which Rockefeller had built his empire. In the end, Tarbell’s muckraking achieved what the US government, acting alone, could not — by the time she was done, Standard Oil was no more.

Fast forward 120 years, past the short-lived hiatus of the Progressive Era (when, thanks in no small part to Tarbell, social and political reform held out for once against Big Money), and Balzac’s metaphor was back with a vengeance. In late October 2019, Exxon Mobil found itself in the New York State Supreme Court, on charges of lying to its shareholders about the potential future costs of the climate crisis. On its merits, the case was sound, with the state prosecutor leaning on the ground-breaking work of journalists to argue that “the company failed to manage the risks in the way it promised.” But the judge, who refused to recuse himself after it was revealed that he held $250,000 in Exxon stock, dismissed the case on 10 December 2019, ruling that there was “no proof” the company had duped investors.

And so Exxon Mobil, which in 1982 had correctly predicted in an internal memo (obtained by the above-mentioned journalists) that carbon concentration in the atmosphere would rise around 25% by 2020, had escaped the web. One of the world’s largest carbon emitters, the company had been modelling climate change scenarios for 40 years, acknowledging in its earliest documents “once the effects are measurable, they may not be reversible and little could be done to correct the situation in the short term”.

Needless to say, given its understanding that “mitigation of the ‘greenhouse effect’ would require major reductions in fossil fuel combustion,” the conglomerate had zero intention of sharing its findings with investors or the general public. But more to the point, the culture of secrecy was hardwired into its DNA — because Exxon, along with Chevron and BP, had been one of the companies formed out of the US government’s eventual dissolution of the Standard Oil empire in 1911.

It was hardly a surprise, then, that these same three companies would be welcomed at the negotiating table at COP25, the feted “last-ditch” international climate conference that took place in Madrid while the judge was giving Exxon a free pass in New York. If one big fly could buzz through the web, they all could — and on the other side, they could work their plan to eat the spider, the trees and the forest itself. As 350.org, the world’s largest climate activist organisation, stated in the press release issued on 15 December 2019: “COP25 was a success for the fossil fuel industry — their interests have won, effectively blocking the process and undermining the end result. As time ran out, the COP looked more and more like a hostage situation inside a burning building — together with most negotiators, people and planet were held captive as the fossil fuel industry and a few loud governments who have been delivering on their agenda took over the process.”

That same week, monster wildfires were poisoning the air in the largest city of one of the loudest pro-fossil fuel governments, Scott Morrison’s Australia. By the end of the month, on the cusp of the new year, 4,000 Australian holidaymakers would be trapped by a different fire on a beach in the state of Victoria, granting the world a graphic and horrifying picture of what climate change could do.

Not that the world hadn’t seen such pictures before, just that most of the images had been emanating from its poorer parts. Suddenly, climate change had become a personal issue for the rich too. Which meant that, finally, the law had a chance of submitting itself to change.

II. Fat in the fire

If there’s one overriding take-home from the history that stretches from Standard Oil through to Exxon Mobil and the failures of COP25, it’s that climate change does not pay attention to national borders. Although the United States may have done the most to place the fossil fuel industry above the law on the international stage, by 2019 the effects were truly global. Going into 2020, then, there has never been more pressure on the law to adapt — to catch, in Balzac’s words, the big flies.

On 20 December 2019, in the midst of all the apocalyptic news, the highest court in the Netherlands gave an indication of the pushback to come. After a six-year fight, the judge ruled in favour of the non-profit Urgenda Foundation, which had argued that the Dutch government had an explicit duty to protect its citizens from climate change and to reduce its carbon emissions 25% (against 1990 levels) by the end of 2020.

According to David Boyd, the UN special rapporteur on human rights and the environment, the ruling was “the most important climate change court decision in the world so far, confirming that human rights are jeopardised by the climate emergency and that wealthy nations are legally obligated to achieve rapid and substantial emission reductions”.

But the case wasn’t confined to just rich nations, because after the initial ruling in 2015 (a ruling the Dutch government would repeatedly appeal), copycat actions were inspired in countries as hard-up as Pakistan and the Philippines. In South Africa, 2020 is likely to bring a ruling at the intersection of human rights and the burning of fossil fuels that, for our citizens at least, is equally significant.

Known as the “Deadly Air” case, the outcome will have a direct impact on the lived daily experience of tens of thousands of South Africans, with a knock-on effect for the rest of us that will become increasingly personal in the years ahead. At the core of the case is the fact that it has now been more than 12 years since the South African government officially recognised the lethal levels of airborne pollution on the Mpumalanga and east Gauteng Highveld. In that time, with international experts linking our coal-fired power and fuel plants to thousands of deaths per year, costing the economy in excess of an annual R30-billion, almost nothing has been done.

The founding affidavit may not specifically mention climate change, but for a number of reasons, the Deadly Air matter is situated at the heart of the global zeitgeist. Like the Dutch case, it goes directly at government, with the president himself named as the third respondent; like the Exxon case, it implicates our largest carbon emitters, Eskom and Sasol. Also, reflecting a trend now sweeping the world, it has been brought to court by civil society.

The applicants in the Deadly Air matter are Groundwork and the Vukani Environmental Justice Movement in Action, non-profits that speak for the South Africans who live in the pall of the Eskom and Sasol plants — the men, women and children who literally cannot breathe because of our government’s fixation with coal. In this sense, the groups are ideologically and spiritually aligned to the Urgenda Foundation in Holland, which focuses on “the transition towards a circular economy using only renewable energy”.

This year, given that Eskom applied in December 2019 for an air pollution exemption at two of its largest plants, the Deadly Air matter moves from code-red to code-purple. In an interview with Bloomberg, a Finnish expert remarked that the exemptions “would cause an estimated 6,000 to 12,000 premature deaths over the remaining life of the plants, a health burden and economic burden that far exceeds the costs of the equipment required to comply with the standards”.

Meanwhile, the renewable alternative, as we learned last month during stage 6 load shedding, remains tied up in ANC-sponsored contractual tape. With the cost of the transition estimated by leading researchers at the University of Stellenbosch at around R6-billion (a paltry figure next to Eskom’s R460-billion in corrupt, coal-fired debt), there is significant wind and solar capacity already available to the grid that’s languishing in something called the “maximum export rule”.

In other words, renewable energy in South Africa, the lowest-cost option at around 60 cents per kilowatt-hour, the option that could deliver the country millions of new jobs and potentially reinvigorate the economy — and hence the best option in the long-run for the trade unions — is a victim of the same historical conspiracy that began with Rockefeller’s Standard Oil. As the world begins to experience the first real ravages of climate breakdown, the fossil fuel industry reigns, as ever, supreme.

With the DA and the EFF slugging it out at the margins, blind to this larger context and retreating into their own chaotic versions of right- and left-wing populism, the year ahead is unlikely to deliver a parliamentary corrective.

Which brings us back to the courts.

Another thing that happened during the December 2019 blackouts was the request lodged by the City of Cape Town for an expedited hearing on its application to the Gauteng High Court to buy energy “directly” from independent power producers. By this, stated acting Cape Town mayor Ian Neilson, what was meant was “cleaner energy”. The outcome of the application, which couldn’t be more personal for the residents of the Mother City — and which, if successful, could change the game for the entire country — will hopefully be apolitical.

With any luck, we’ll hear sometime in the first half of 2020.

III. Wood for the trees

But again, both globally and locally, the fury at the carbon princelings and the elite interests they represent is now driven almost exclusively from the bottom-up. In Australia, on 2 January 2020, we got a raw picture of this fury when Prime Minister Morrison toured the burnt-out towns in the continent’s southeast. The heckling, the swearing, the reluctance of the residents and the firefighters to shake his hand — when Morrison brushed it off by saying he didn’t “take it personally,” suggesting that “angry” people tend to “fixate,” he had no idea how right he was.

Because for those people, who had lost either their homes or their colleagues, climate change was no longer an abstract issue. It was now intensely personal, and in this the Australians were in sync with the victims of another unprecedented weather event that spilled over into the new year, the record-setting rainfall that inundated the Indonesian capital of Jakarta, killing dozens and displacing 35,000.

After the failure of COP25, the rage of these vanguard victims of the new climate normal had been channelled by South Africa’s Tasneem Essop, executive director of Climate Action Network International. In Madrid, Essop had witnessed first-hand the self-serving politicking of the negotiators from Australia, Brazil, Saudi Arabia, China, Japan and the United States, who had blocked the summit’s key agreement. The experience left her in little doubt as to the current and future source of honest climate leadership.

We recognise that this is going to be in our hands,” she told Democracy Now, “so citizens across the world, the youth, indigenous, women, the workers, all of us have to be united”.

The urgency in these words is hard to overstate. In the developed world, where people aren’t used to living with the stresses that assault the majority of South Africans, climate fatigue and eco-anxiety are reaching pandemic levels. The BBC is running podcasts with titles like “The End of the World Has Already Happened,” in which philosopher Timothy Morton explores his depression and angst. Even George Monbiot, one of Britain’s hardiest environmentalists, admitted in his Guardian column on New Year’s Day to his “rising sense of panic”.

In a choice between panic and anger, however, it’s probably best to embrace both. They are equally appropriate responses to the situation in which we find ourselves and will no doubt be the predominant emotions as we move into the coming decade. Also, as fuel for some of the other climate-related legal cases that await us in South Africa in 2020, they are going to prove useful.

At the end of November 2019, within minutes of the announcement that President Ramaphosa had signed the Traditional and Khoi-San Leadership Bill into law, human rights attorney Johan Lorenzen confirmed that the Xolobeni community and the Land Access Movement of South Africa would see him in the Constitutional Court. Known for good reason as the “Bantustan Act,” it effectively legislates that 18-million rural South Africans, whose security of land tenure is enshrined in section 25(6) of the Constitution, can be deprived of their water and soil without their prior and informed consent.

The Bantustan Act is about the climate because it’s about the mines — its covert purpose is to allow mining houses to bypass the precedent-setting Maledu and Xolobeni judgments and get at the minerals in the former Bantustans. With some of these conglomerates admitting in their submissions to the Carbon Disclosure Project that mining is becoming a zero-sum game, drawing near-term scenarios in which either the mines will have water or the surrounding communities will, the act is a climate time-bomb.

Like the wildfires in Australia, the droughts in South Africa are going to get worse. Water and food security are very soon going to be the most pressing concerns for the majority of this country’s citizens. Some time before the end of February 2020, the Supreme Court of Appeal is expected to review a judgment passed against 4,000 rural South Africans — a judgment in which the communities that live in the shadow of a massive anthracite coal mine had argued, unsuccessfully, that the mine’s owners were violating their “environmental, land and traditional rights” and desecrating their graves.

The case, first heard in the Pietermaritzburg High Court, was a victory for Mineral Resources and Energy Minister Gwede Mantashe and his co-respondent the Ingonyama Trust. On 25 March 2020, if the matter isn’t postponed again, the same court will hear whether this Trust has been charging South Africans unlawful rent. As Daily Maverick contended at the time, the ultimate impact of the postponement was that fossil fuel executives and their “traditional authority” vassals in coal-rich KZN could continue to act with impunity.

But in the face of the almost unbelievable stories, emerging by the hour from Australia, which right now is showing the world the grimness of its climate future, there’s an even greater cause for panic and rage: the oil and natural gas deposits that have been discovered off South Africa’s Indian Ocean coast. In October 2019, an appeal was lodged by 18 activist groups against the licence granted to Sasol and Italian oil company ENI to drill for these deposits. ENI, it so happens, is currently involved in one of the largest corporate corruption scandals of all time, a trial in Milan where it stands accused (alongside Shell) of paying a $1.1-billion bribe to convicted money launderer and former Nigerian oil minister, Dan Etete.

If this appeal is unsuccessful, if the Constitutional Court doesn’t rule the Bantustan Act unlawful, if the Appeal Court doesn’t overturn the judgment against the communities in northern KZN and if the Ingonyama Trust isn’t put in its place, it will signal the onset of environmental hell for all South Africans.

Blessedly, there are activists, lawyers and ordinary citizens who are already doing their best to ensure that doesn’t happen. In 2020, when climate change is sure to get a whole lot more personal for South Africans and humanity at large, their ranks will be joined.

Imagination is the only key to the future,” as Ida Tarbell once said. “Without it, none exists — with it, all things are possible.”

She would have known. Fuelled by her anger, she took down an oil company that used to be the biggest in the world. DM

Absa OBP

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