ANALYSIS: 'Baptism of fire' for environment minister as govt taken to court over air quality

On the face of it, the court action against new environment minister Barbara Creecy by environmental activists is to get her to crack down on the highveld’s hazardous air pollution. 

The sub-text of the court action appears to be: how will the new minister deal with coal, entrenched in the South African economy, but by far the biggest source of toxic air pollution in the highveld. 

Environmental activists acknowledge that their court action is a "baptism of fire" for the new minister, who is just two weeks into her job. But they say the matter is so serious, as the pollution causes hundreds of deaths every year and thousands to be admitted to hospital, that the matter can no longer wait. 

"It’s not an easy situation for the new minister. It’s a baptism of fire. It’s about a legacy she inherited,” said Centre for Environmental Rights (CER) lawyer Timothy Lloyd. The activist organisations say Creecy needs to make regulations to curb air pollution in the highveld hotspot where emissions of toxic pollutants are sometimes up to four times higher than the World Health Organisation (WHO) guidelines, and they are taking her to court in a bid to get her to do so. 

CER has filed papers in the Pretoria High Court on behalf of its clients groundWork, an environmental rights organisation, and the Vukani Environmental Justice Movement in Action. The court action highlights several issues: that South Africa generally has good environmental policy but often poor implementation; that this sometimes forces citizens to take government to court in order to get it to do its job; and importantly, the problem of coal. 

Court papers say the bulk of the air pollution in this area is from 12 of Eskom’s coal-fired power stations. Coal underpins the South African economy, as it generates over 90% of our electricity. But the exploitation of the country’s abundant coal supplies comes at a high cost to human health – both from mining and from electricity generation – while it is also responsible for making South Africa one of the highest per capita emitters of climate-changing carbon in the world. 

It is government policy to move away from coal to a low carbon economy, but it is also policy in the integrated resource plan that coal will form a significant part of our power generation for decades to come. 

There are technologies available to clean up emissions from coal power stations, but cash-strapped Eskom has said it cannot afford to fit new cleanup technology onto its ageing coal-fleet. Court papers say Eskom has applied for postponements to meet the new emissions standards, and in some cases has applied for the laws to be suspended for those power stations that will be decommissioned by 2030. 

Another big highveld polluter is Sasol’s coal-to-liquid refinery in Secunda. There are also metallurgical smelters, brick and stone works, and factories that produce fertilisers, chemicals, charcoal and explosives. It is also where a third of the country’s coal is mined. All of these industries produce a soup of hazardous air pollutants, including sulphur dioxide (SO2) nitrogen dioxide (NOx), mercury and what is known as “particulate matter” – particles of soot and dust.

All of these are hazardous to human health and the environment. Activists have been fighting against this air pollution for years. In 2007, the situation appeared to turn a corner. After the introduction of new air pollution legislation, the then environment minister declared this area a priority in terms of combating air pollution. Called the Highveld Priority Area, it spanned over 31 000 square kilometres, partly in Gauteng and mostly in Mpumalanga, and included nine municipalities and about 4 million people. 

According to court papers, the minister said at the time "there is 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". A management plan was drawn up and a comprehensive implementation plan. However the Department of Environment’s own review – the 2018 State of Air Report - showed that the pollution was as bad as ever over a decade later. Court papers cite an example when the four DEA monitoring station in the Highveld Priority Area recorded 355 incidents where large particulate matter had exceeded the 24-hour standard during a year, and 285 incidents where it had exceeded the standards for fine particulate matter.

The national standards allow these emissions to exceed standards only four times a year. The DEA report stated, "Particulate matter is still the greatest national cause for concern…. as there is no threshold below which it is not harmful to human health". 

Court papers say the issue is compounded as some of the monitoring stations in the area are not working, or working below par, so the true level of toxic pollutants is unknown. The CER commissioned a US atmospheric scientist Andy Gray to study the situation.

He found that Eskom’s 12 power stations, Sasol’s Synfuels facility and the Natref refinery, all in the priority area, were responsible for the lion’s share of the air pollution. Court papers say Gray found that in 2016 cumulative emissions from these 14 facilities created acute exposures that exceeded the WHO guidelines for daily or hourly averages for all pollutants. 

Another expert, Peter Orris, who CER commissioned to conduct a review of health impacts, said air pollution from burning coal had "profound effects on health", particularly on children, the elderly, pregnant women and those suffering from asthma, heart and lung disease. 

Orris stated that the high levels of pollution in the Highveld Priority Area constituted "an immediate and significant public health hazard that should be remedied to save lives and allow current and future generation of South Africans to live longer and healthier". 

In October 2017 the CER, with groundWork and the Highveld Environmental Justice Network released a report called "Broken Promises" which outlined the failure of government to clean up the air pollution in the Highveld Priority Area. The then minister of environment affairs was given a copy and asked for a response – which was eventually given in May 2019 by her successor, Nomvula Mokonyane.

While she acknowledged that the air quality was not at acceptable levels, she said it was not necessary to make regulations to enforce the air quality management plan for the priority area. Lloyd said the CER and its clients found this unacceptable. "Air pollution has created a public health crisis affecting thousands of people in this area. We know that hundreds of people die premature deaths from air pollution – between 350 and 650 every year. There are around four million people living in and around the Highveld Priority Area."

Now the environmental groups are asking the Pretoria High Court to declare the environment minister’s refusal to prescribe regulations as unconstitutional, unlawful and invalid, and to set it aside. They also ask the court to direct the minister to initiate regulations within six months. Lloyd said because CER viewed the matter as an issue of national importance, it had also cited President Cyril Ramaphosa as a respondent.

"The president has oversight of the executive and we want him to make sure the DEA does what it should. We want it added to President Ramaphosa’s very long list." New minister Creecy acknowledged in a press statement that there were "challenges" with air pollution in the Highveld, but added that she would prefer to find solutions "outside a court process". 

But groundWork director Bobby Peek says they would not drop the court case "just for more talk", which they had been engaged in for 12 years. "We recognise this is a new administration, but she is the minister of environment. If she accepts what the court papers ask of her and puts in place regulations to monitor and reduce air pollution to meet emission standards and ambient air quality, then fine, we could drop the case. But not for just more talk,” Peek said.