Barbara Creecy faces first major court action as SA’s new minister of environmental affairs

June 10th, 2019, Published in Articles: EE Publishers

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Just days after World Environment Day on Wednesday 5 June 2019, South Africa’s new Minister of Forestry, Fisheries and Environmental Affairs, Barbara Creecy, faces a huge wake-up call as environmental justice groups  launch a major legal action demanding that government clean up the air in the Mpumalanga Highveld.

On Friday 7 June 2019, groundWork and the Vukani Environmental Justice Movement in Action launched landmark litigation by serving 522 pages of meticulously documented court papers on the Minister of Environmental Affairs, the National Air Quality Officer, the President of South Africa, and the two relevant MECs in Gauteng and Mpumalanga.

groundWork and Vukani, represented by the Centre for Environmental Rights (CER), claim that government has violated the constitutional right to a healthy environment of the people living and working in the Highveld Priority Area (HPA), by failing to improve dangerous levels of air pollution in the area.

The environmental justice groups present documents that show the levels of ambient air pollution in the HPA are in breach of the Section 24(a) constitutional right to an environment that is not harmful to health or well-being. Furthermore, they state that the Minister of Environmental Affairs’ refusal to prescribe regulations to address the poor air quality in this area is in breach of the Minister’s statutory and constitutional obligations.

In 2007, the then Minister of Environmental Affairs designated the HPA for attention because of its poor air quality. At the time, the Department of Environmental Affairs (DEA) acknowledged that the HPA was a hot-spot of extremely poor air quality, and that “there was little doubt that people living and working in these areas do not enjoy air quality that is not harmful to their health and well-being”.

Nearly five years later, in 2012, the Minister published an air quality management plan for the HPA to clean up the area’s air pollution, but since then, little has changed.

Mpumalanga accounts for about 83% of South Africa’s coal production, and Eskom owns the 12 coal-fired power plants located in the area in and around the HPA. The area has been plagued with deadly air quality for decades, with the high concentration of coal-fired power plants in the province, Sasol’s coal-to-liquids plant located in Secunda, and the Natref refinery, contributing large amounts of pollution.

In a new independent study attached to the court papers, Dr. Andrew Gray, an expert in air and health risk modelling, found that these 14 facilities were responsible for the lion’s share of air pollution in the HPA.

Human exposure to toxic chemical compounds emitted by the coal plants, such as sulphur dioxide, heavy metals like mercury, and fine particulate matter, results in chronic respiratory illnesses such as asthma, bronchitis and lung cancer, and contributes to strokes, heart attacks, birth defects and premature death. Dr. Gray estimates in the court papers that emissions from the 14 facilities mentioned above caused between 305 and 650 early deaths in and around the HPA in 2016.

The environmental justice groups are asking the court to declare the current levels of air pollution on the Highveld a violation of people’s constitutional rights, and to force government to take meaningful action to implement and enforce the HPA air quality management plan. The groups say they were forced to launch this case because of the repeated failure of government to enforce air quality laws.

An October 2017 report by the CER, in collaboration with groundWork and the Highveld Environmental Justice Network, titled “Broken Promises: Failure of the Highveld Priority Area“, outlined the failure of government to achieve the HPA’s goals, and the steps necessary for comprehensive clean-up of the area’s air.

When the then Minister of Environmental Affairs eventually responded to these demands on 9 May 2019 – after several letters from the CER – she took the view that, although air quality was not at acceptable levels, “desired improvements will not happen over a short period of time, but rather progressively over time”.

She also indicated that it was not necessary to make regulations to implement and enforce the HPA air quality management plan, as the plan is simply one of several tools to address air pollution and “it was never meant to be a regulation but instead a plan that seeks to promote collaboration between stakeholder[s] and articulate shared vision and goals.”

“It is unacceptable for government, almost 12 years after the HPA’s declaration, to say that adequate progress has been achieved towards protecting the health and well-being of people in the HPA. Expert analysis  included in the court papers shows that thousands of school children and the elderly are acutely affected by the area’s air pollution, and the supporting affidavits in this case paint a devastating picture of how this poor air quality impacts residents’ daily lives. It is high time that the South African government prioritises the human rights of the families residing in this pollution hotspot”, says Tim Lloyd, attorney at CER.

Notes

  1. groundWork is a non-profit environmental justice organisation working primarily in Southern Africa in the areas of Climate & Energy Justice, Coal, Environmental Health, Global Green and Healthy Hospitals, and Waste. groundWork is the South African member of Health Care Without Harm and Friends of the Earth International. @groundWorkSA
  2. Vukani Environmental Justice Movement in Action is a community organisation based in Witbank. Its focuses mainly on environmental and social issues affecting disadvantaged communities in the area, and uses community mobilisation as a tool to address environmental challenges.
  3. The Centre for Environmental Rights (CER) is a non-profit organisation and law clinic based in Cape Town, South Africa. CER is a group of activist lawyers who help communities and civil society organisations in South Africa realise their Constitutional right to a healthy environment by advocating and litigating for environmental justice.
  4. groundWork, Earthlife Africa and the CER form part of the Life After Coal/Impilo Ngaphandle Kwamalahle campaign. This is a joint campaign which aims to: discourage the development of new coal-fired power stations and mines; reduce emissions from existing coal infrastructure and encourage a coal phase-out; and enable a just transition to sustainable energy systems for the people.

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