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Environmental groups take government to High Court over violation of Constitutional right to clean air

10 June 2019 at 9:00 am

Groups claim pollution from coal-fired power plants in the Highveld Priority Area violates right to a healthy environment under the Constitution

Mpumalanga, South Africa—On Friday, 7 June 2019, environmental justice group groundWork [1] and Mpumalanga community organisation Vukani Environmental Justice Movement in Action (Vukani) [2] launched landmark litigation demanding that government clean up the air in the Mpumalanga Highveld.

groundWork and Vukani, represented by the Centre for Environmental Rights (CER) [3], claim that government has violated the Constitutional right to a healthy environment for the people living and working in the Highveld Priority Area (HPA), by failing to improve the deadly levels of air pollution in the HPA.

“Living in Witbank, one of the most polluted areas in the country, has hugely affected our health and lives. Both government and industry have continuously failed to deal with the problem, irrespective of our efforts to engage with them to ensure they take steps to protect human health. Together with groundWork, Vukani has decided to use litigation to push government to take urgent steps to deal with the high air pollution and in the interest of our health and to protect our right to clean air”, says Vusi Mabaso, Chairperson of Vukani.

In 2007, the then Minister of Environmental Affairs designated the HPA because of its poor air quality. At the time, the Department of Environmental Affairs (DEA) acknowledged that it was an air pollution hotspot 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 wellbeing”. Nearly 5 years later, in 2012, the Minister published an air quality management plan (“the HPA AQMP”) to clean up the Highveld Priority Area’s air pollution. But since then, little has changed.

Mpumalanga accounts for about 83 percent 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 in Sasolburg contributing large amounts of pollution. In a new independent study attached to the court papers, Dr Andy 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 2016.

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 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 high levels of air pollution in and around the Highveld Priority Area constitute an immediate and significant public health hazard that should be remedied to save lives and allow current and future generations of South Africans to live longer and healthier,” says Professor Peter Orris, Head of Occupational and Environmental Medicine at the University of Illinois, who is quoted in the court papers.

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 AQMP. The groups were forced to launch this case because of the repeated failure of government to enforce air quality laws.

“groundWork and the communities we represent have consistently been highlighting the issue of air pollution and its negative impacts on human health, and our lived experience is that government is not holding the big polluters to account. This is a public health crisis that can no longer be ignored,” says Bobby Peek, Director of groundWork.

An October 2017 report by the Centre for Environmental Rights, 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 AQMP, 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 wellbeing of people in the HPA. Expert analysis  included in the court papers (see pages p293 and p329) 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.

The Environmental Affairs Minister is now required, by early July 2019, to make available, all the records relating to her decision not to promulgate regulations to make the HPA AQMP enforceable, and the reasons for this decision. groundWork and Vukani can then amend and supplement their application within 10 working days. If the respondents – the Minister, the National Air Quality Officer, the President, and the two relevant MECs in Gauteng and Mpumalanga – intend to oppose this litigation, they are required to file their notice of opposition either by early July 2019.


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Download: Court application, with annexures

Hashtags: #DeadlyAir #UmoyaObulalayo

[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 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. @CentreEnvRights

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.