With South Africa under a three-week coronavirus lockdown, the Minister of Environment, Forestry and Fisheries, Barbara Creecy, has gazetted sulphur dioxide (S02) air pollution standards (called minimum emission standards, or MES) considered to be twice as weak as the previous standards.
Instead of Eskom, Sasol, and other facilities with coal boilers having to meet the original SO2 standard of 500 mg/Nm3, they will now only be required to comply with MES doubly as weak (1000 mg/Nm3). The new limits apply either by Wednesday, April 1, 2020, or by the delayed dates that these companies have already been given by the National Air Quality Officer.
Research presented by the Life After Coal Campaign to the Minister and the Department has shown that 3,300 premature deaths would be caused by doubling the SO2 standard just for Eskom’s coal-fired power stations, as a result of increased risk of lower respiratory infections, increased risk of stroke, and increased risk of death from diabetes.
The weakening of the standard makes South Africa’s 2020 SO2 standard – which exists to protect people’s health and human rights – about 28 times more lax than in China, and 10 times weaker than India’s.
The sequence of events
For more than six years, the Life After Coal Campaign claims it has been opposing efforts by industry – in particular the two biggest polluters, Eskom and Sasol – to delay and evade meeting more stringent air pollution standards. When the MES were first promulgated in 2010, despite their active participation in the multi-year process to set them, both Eskom and Sasol sought to be completely exempt from the MES.
Subsequent to that failed attempt, and instead of making the investments required to meet the standards, both companies have brought multiple applications to the National Air Quality Officer in the Department of Environment, Forestry and Fisheries – the majority of which have succeeded – to delay compliance with the MES. In 2014, Sasol brought a court application seeking to set aside the majority of the MES in their entirety – which it withdrew when it was allowed by the National Air Quality Officer to postpone MES compliance.
In October 2018, then acting Environment Minister Derek Hanekom published the doubled SO2 MES limit without inviting public comment, as the Air Quality Act requires. In April 2019, after numerous calls for the standards to be withdrawn, environmental justice group groundWork was forced to go to court to set aside the unlawful notice. In May 2019, Minister Mokonyane withdrew the notice and gave the public 30 days to comment on the same proposal to weaken the SO2 standard.
In July 2019, the Life After Coal Campaign, along with four community-based organisations, submitted evidence-based objections to the proposed doubling of the standard:
- Research demonstrates that an estimated 3,300 premature deaths would be caused – just from Eskom’s pollution – by doubling the SO2 standard, as a result of increased risk of lower respiratory infections, increased risk of stroke, and increased risk of death from diabetes – with approximately 1,000 of these premature deaths estimated in Gauteng.
- The studies also show profound health impacts on children, the elderly, pregnant women, and those already suffering from asthma, heart, and lung disease.
Almost nine months since comment was invited on the proposal, and on the eve of the standards coming into effect, Minister Creecy has now decided to publish substantially more lenient MES for implementation.
In a media statement on March 27, 2020, the Department contends that Eskom and Sasol – the “major emitters of sulphur dioxide” – are not in the financial position to make the necessary investments required to ensure compliance. The Department states that industry had argued that their facilities should be “grandfathered”, i.e. allowed to operate without taking amendments to laws and their mandatory Constitutional obligations into account.
The Life After Coal Campaign disputes that it is even lawful for the MES to be further weakened. The previous standards were first published on March 31, 2010 after a lengthy participative process involving both Sasol and Eskom.
Robyn Hugo, attorney and head of the Centre for Environmental Rights Pollution & Climate Change Programme says: “Industry, including Eskom and Sasol, has had an entire decade to prepare for legal compliance with standards already weaker than several other developing countries. In these circumstances, and despite the fact that the new standard is three-and-a-half times stricter than the current SO2 MES, it is hard to defend the Minister’s argument that weakening the standard promotes progressive realisation of the Constitutional right to an environment not harmful to human health or wellbeing.”
The Life After Coal Campaign has provided evidence to the Minister and the Department that industry has significantly inflated the costs and technical challenges of achieving MES compliance, and downplayed the benefits for human health and wellbeing.
“Air pollution from coal mining and power already kills thousands of people every year. Instead of enforcing compliance with our already-weak standards, government has effectively legalised these deaths”, says Bobby Peek, Director of groundWork.
“The Department says that it did not want to undermine the viability of key industries. The question is how viable these industries can be when this amendment means that their pollution will be responsible for the premature deaths of thousands of people?”
The President, the Environment Minister, the National Air Quality Officer, and the Mpumalanga and Gauteng MECs already face a court challenge from groundWork and eMalahleni-based community group the Vukani Environmental Movement, in relation to their collective failure to improve the toxic air quality on the Mpumalanga Highveld.
“This failure of government to respect and realise the Constitutional right to a healthy environment is why groundWork and the Vukani Environmental Movement launched the Deadly Air litigation: to force government to comply with its Constitutional obligations to protect our people,” says Peek.
If the Minister fails to provide satisfactory reasons for her decision to weaken the MES under the Promotion of Administrative Justice Act, 2000, the partners in the Life After Coal Campaign say they will have no option but to approach the High Court to set aside the Minister’s decision.
