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If Barbara Creecy appeals against the ‘Deadly Air’ judgment, it will not be a good look for government

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Robyn Hugo is Director: Climate Change Engagement at Just Share. Before joining Just Share in 2020, Hugo was head of the Pollution & Climate Change programme at the Centre for Environmental Rights, where she and her team launched the landmark ‘Deadly Air’ constitutional litigation.

The Pretoria High Court has recognised the poor air quality in the Mpumalanga Highveld as a breach of residents’ constitutional rights to an environment not harmful to their health and wellbeing. The landmark judgment was preceded by nearly a decade of work by a legal team led by the author, Robyn Hugo.

On 18 March 2022, groundWork and the Vukani Environmental Movement succeeded in the “Deadly Air” litigation brought by the Centre for Environmental Rights (CER).

Judge Colleen Collis of the Pretoria High Court confirmed what many residents and activists have known for more than a decade: that air pollution in the Highveld Priority Area (HPA) is so severe that it breaches the constitutional right to an environment not harmful to health or wellbeing, and that government must hold big polluters to account.

The court held that the Minister of Forestry, Fisheries and the Environment, Barbara Creecy, and her predecessors in that role, have unreasonably delayed in promulgating regulations to implement and enforce the HPA air quality management plan: “regulations proposed by her own Department and which her own Department has concluded will save lives”.

Screws tighten on big polluters and Creecy after resounding ‘deadly air’ legal victory

Different estimates have been provided for numbers of deaths and illnesses resulting from HPA air pollution, but both the Department of Forestry, Fisheries and the Environment (DFFE) and Eskom have commissioned research that reveals that this pollution results in significant mortality and illness. Neither made this information public. 

Redacted versions of Eskom’s health studies were obtained only through a CER access to information request. DFFE only disclosed its health studies when compelled to do so in the “Deadly Air” litigation process. The court noted that this failure “is contrary to the special duties of transparency that are imposed on organs of state in constitutional litigation. Organs of state are duty-bound to assist the courts by providing a full and frank account of the material facts where constitutional rights are at risk.”

It is not controversial — as confirmed by the court — that HPA air pollution is responsible for premature deaths, decreased lung function, deterioration of the lungs and heart and the development of diseases like asthma, emphysema, bronchitis, tuberculosis and cancer. It is also well documented that the elderly and children — as well as other vulnerable groups — are most at risk of suffering these impacts.

Government and industry have long been very well aware of the impact of these toxic emissions. I will never forget the bald-faced lie in Eskom’s first background information document (in 2013) — that kicked off its multi-year campaign to avoid legal compliance with pollution standards — that “power station emissions do not harm human health”.

Sasol’s Secunda factory, which produces liquid fuel from coal (and which is also the largest single point source emitter of greenhouse gases on Earth), and Eskom’s 12 coal-fired power stations are the major sources of the foul air quality in the HPA, including particulate matter, sulphur dioxide (SO2) and oxides of nitrogen. Eskom is the largest emitter of health-hazardous SO2 on Earth.

Both Sasol and Eskom were intimately involved in the multi-year, collaborative process to set pollution standards for different types of polluting activity (called the minimum emission standards, MES). Prior to this, SA had no statutory limits for toxic emissions. The list of activities became law from April 2010, but MES compliance was only required from 2015 (with stricter MES from 2020).

Nevertheless, both Sasol and Eskom have fought tooth and nail to avoid having to comply with these laws, submitting a series of applications to postpone or even be exempt from compliance.

The MES, which Sasol and Eskom argue are so onerous, are in fact hopelessly weak and inadequate. The SO2 MES are some 28 times weaker than China’s, and 10 times weaker than India’s.

Despite the MES making clear that no postponements beyond April 2025 are permitted (unless facilities have detailed decommissioning plans and will be decommissioned before April 2030), in October 2021, the DFFE’s National Air Quality Officer, Thuli Khumalo, granted various of Eskom’s latest series of MES applications, including, controversially, by providing some “alternative” weaker limits in their licences.

Khumalo was the air quality officer from October 2012 until she was appointed, in late 2021, as Chief Operating Officer of the Presidential Climate Commission (PCC). Minister Creecy wants the PCC to oversee public consultation on the latest MES outcomes.

This MES saga once again illustrates the outsized power of lobbying to influence government decisions; lobbying that harms the public interest that the government is supposed to champion.

Both Sasol and Eskom have treated legal compliance with air pollution laws as a “journey”. Both have complained about the costs of compliance, ignored the costs of non-compliance and downplayed the impacts of their emissions. Eskom has regularly threatened load shedding as the inevitable result of it being required to install the necessary pollution abatement equipment.

No acceptable explanations have been provided for the companies’ failures to act timeously to ensure compliance with the mandatory MES, of which they have had knowledge for at least 12 years.

Sasol and Eskom rely on their central role in the economy to justify an ongoing and lethal breach of constitutional rights. The strangling of renewable energy deployment — by the Department of Mineral Resources and Energy and other fossil fuel interests, and also, particularly in the past, by Eskom itself — has guaranteed the success of this strategy. This “holding to ransom” is billed as “engagement” with decision-makers. 

In Sasol’s Form-20F filed with the United States Securities and Exchange Commission, it notes that it obtained MES postponements until April 2025, but that meeting the SO2 emission standards before 31 March 2025 “remains a challenge”, and that it continues “to engage with [DFFE] and the local licensing authorities as necessary”.

Similarly, in response to a question about carbon tax during its interim results presentation on 21 February, Sasol’s chief financial officer, Paul Victor, indicated: “on the carbon tax side, we’re still very much engaging quite heavily with … through the industry with Treasury … So we are also quite eager to see what the delivery in the Budget speech will be in the next couple of days. And hopefully, that will provide more clarity when the minister of finance speaks to the nation about carbon tax and its future.”

“Engaging quite heavily” indeed: in his Budget speech of two days later, the finance minister extended the first phase of the carbon tax — which makes provision for companies to receive 60%-95% tax allowances such as rebates or exemptions — until 2026. This came in circumstances where South Africa’s climate risk is severe, and a meaningful carbon tax is widely acknowledged as an essential tool to reduce GHG emissions.

It is the government’s role to resist pressure from vested interests and stand up for the people of South Africa. Judge Collis had little patience for Minister Creecy’s argument that economic development has inevitable negative impacts on health and wellbeing, an argument which, in the context of SA’s socioeconomic conditions, amounts to a justification for sacrificing the wellbeing of the poor for the continued enrichment of those with economic power.

And this is from the minister constitutionally mandated to protect our health and wellbeing.

If the minister appeals against the “Deadly Air” judgment, that would be akin to the Australian Environment Minister’s sadly successful challenge of last year’s landmark court ruling that found that she had a “duty to take reasonable care” to protect Australian children “from emissions of carbon dioxide into the Earth’s atmosphere”.

Not a good look. DM

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All Comments 4

  • reality check:

    if Creecy and the affected parties do not appeal this, all but the less-than-ten-year-old facilities will shut down. It is not feasible to retrofit 40 and 50 year old plants. When they close, so goes the power, oil, jobs, etc. it would literally be better to relocate 3 million people

    • Thanks Johan. Eskom is already heavily in debt and constrained on what it charges for electricity. There are no easy answers here. It’s not as if Eskom is profitable.

      Forcing the closure of the old plants by 2025 will cause the electricity crisis to become much more severe. This article creates the incorrect impression that there are not very difficult trade offs to consider.

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