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Climate secrecy: Government hides data of worst greenhouse gas emitters


Nicole Loser is an attorney in the Pollution and Climate Change Programme at the Centre for Environmental Rights (CER). Loser is a leading expert in public interest climate law and has been at the forefront of a number of key environmental justice legal battles, including a 2017 court victory in the landmark Thabametsi case which was South Africa’s first climate change litigation.

Key climate change records, including companies’ plans to reduce greenhouse gas emissions, remain unavailable to the public. In fact, polluters’ proposed future greenhouse gas emission reductions are deliberately withheld by the Department of Environment, Forestry and Fisheries.

Across the globe, the stark reality of an inescapable climate crisis threatens humanity; with the poor, the young and other vulnerable sectors of society most at risk. Reducing the country’s greenhouse gas (GHG) emissions is critical to mitigating our exposure to climate change impacts, to which South Africa – in government’s own words – is “extremely vulnerable”. As such, we have a right to know not only how much South Africa’s biggest GHG emitters, like Eskom, contribute to this vulnerability, but also their plans – if any – to slash these emissions.

Despite this backdrop, key climate change records – like details of companies’ plans to reduce their GHG emissions, and the audit reports demonstrating whether there is compliance with those plans – remain unavailable to the public. In fact, polluters’ proposed future GHG emission reductions are deliberately withheld by the Department of Environment, Forestry and Fisheries.

For several years, the Centre for Environmental Rights (CER), has sought to gain access to GHG emission data – including through the formal process under the Promotion of Access to Information Act. In December 2019, the CER filed an appeal to the Minister of Environment, Forestry and Fisheries against the department’s refusal to disclose GHG emission data in relation to 16 of South Africa’s biggest emitters; including Eskom, Sasol and ArcelorMittal. The minister’s appeal decision is awaited.

“Corporations operating within our borders… must be left in no doubt that, in relation to the environment … there is no room for secrecy and that constitutional values will be enforced,” said Judge Mahomed Navsa, of the Supreme Court of Appeal in his 2014 judgment in the case of Company Secretary of ArcelorMittal South Africa v Vaal Environmental Justice Alliance. More than five years later, the very same ArcelorMittal withholds information about its GHG emissions, and the department supports this secrecy.

The department argues that information such as companies’ anticipated GHG emission reductions, is commercially confidential. It has, however, not ventured to explain – as legally required – how the disclosure of anticipated emission reductions would place their commercial interests at risk. It is worth pointing out that many other jurisdictions require GHG emission information to be published online as a default. If public disclosure doesn’t harm commercial interests in Australia, for example, why would it in South Africa?

The law does allow certain information to be withheld where a genuine threat to commercial interests exists. What is not permitted is refusing to disclose information to avoid commercial losses from reputational damage. What’s more, no information can be withheld if the access request is made in the public interest and if the full disclosure may reveal evidence of imminent environmental risk. If the public interest in disclosure strongly outweighs the claimed harm to commercial interests, it must be made available. This is clearly the case for GHG emission data.

Full transparency is a crucial component in holding polluters and government accountable and increasing our prospects of a liveable future for all. In the last five years, South Africa has experienced record temperature highs, droughts, and fires. Erratic weather patterns affect livelihoods and food prices and exacerbate the already-high poverty levels. These costs are predicted to escalate, as climate-related disasters get larger in extent and magnitude.

Faced as we are with a human rights crisis of enormous proportions, we must act urgently. Reducing GHG emissions is crucial for reducing our exposure to these impacts, and public access to and awareness of GHG emission data is a key component to ensure the necessary mitigation action is taken. Concerns for protecting profits of polluting fossil fuel companies are dwarfed, not to mention unjustifiable and unlawful, when stacked against the public interest in accessing climate data.

When the CER wrote to the companies directly to request the information the department had refused to release, some (Sappi, for example) provided all the data, while others (Eskom and ArcelorMittal for example), refused to make the records available. When an access request is made to the regulator, the companies cannot dictate its decision: the department is legally required to exercise its own discretion to withhold or disclose the requested information. Here the department has preferred secrecy over transparency.

President Cyril Ramaphosa recently told Business Unity South Africa that “We need to up our own game when it comes to being more and more aware of climate change.” As one example of the significant ambition needed to limit the climate crisis: global coal-use in electricity generation must fall by 80% below 2010 levels within the next decade to avoid exceeding the 1.5°C limit and risk our planet becoming uninhabitable.

There is no time for protracted application processes and legal squabbles for the public to access what should be public data. Companies’ GHG emissions and reduction plans have significant impacts on our lives and the lives of our future generations. As a basic minimum and a first step: an online, publicly-accessible and up-to-date database is required, showing details of all emitting facilities in South Africa – their current GHG emissions per facility and intended emission reductions.

Without climate transparency, we are tackling the climate crisis in the dark. DM


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