Centre for Environmental Rights – Advancing Environmental Rights in South Africa

On Saturday, 19 May 2018, CER Executive Director Melissa Fourie delivered the closing address at the 2018 Conference of the International Association of Impact Assessment in Durban. Here is the full text of that address.

Good afternoon to all of you.

My name is Melissa Fourie. I am an environmental lawyer, and the Executive Director of the Centre for Environmental Rights. My colleagues and I are activist lawyers who help communities and civil society organisations in South Africa realise our Constitutional right to a healthy environment by advocating and litigating for environmental justice.

Thank you to IAIA for inviting me to address you at the closing of this important conference.

A few years ago, I was part of a team of lawyers from the Centre for Environmental Rights who visited various towns on the Mpumalanga Highveld, about 2 hours east of Johannesburg. At that stage, we were consulting on and debating whether to concentrate a significant part of our litigation and advocacy work in the Mpumalanga Highveld.

Many of you will know that the Highveld is an important area for water, biodiversity and agriculture. Unfortunately, it is also cursed – some would say blessed – with large coal reserves. As a result, the Highveld contains hundreds of coal mines, mostly opencast, and most of South Africa’s coal power stations. It is also home to other large fossil fuel facilities like the enormous coal to liquids operation in Secunda, Mpumalanga.  Mpumalanga has some of the country’s worst air quality, and some of it most severe water pollution.

To get a sense of the views of people living in this area, we went to meet with a group of residents in a church hall in Pullenshoop, the town next to the Hendrina Coal Power Station. At that meeting, we met some angry young people. These young people didn’t care about air pollution and what it was doing to their health, or the destruction of the environment around them. Mostly, they were angry about the fact that they had managed to finish high school, with great difficulty, and were now unable to find jobs. They were angry that the local councillor was gatekeeping all jobs at the coal mines in the area, and that unless they were in his good books, they couldn’t get any of these jobs. They didn’t seem to care what these jobs entailed – they just wanted access to wages. In Mpumalanga, the expanded unemployment rate exceeds 40%, and is even higher for youth younger than 25.

At this meeting in Pullenshoop there were also older people, mostly women. Many of them said nothing during the meeting, merely listening as the young people expressed their anger and frustration. After the meeting, one of them came to us. Her name was Rika. She asked if we could give her a ride to Middelburg after the meeting, because she wanted to go there but didn’t have any transport. We offered her a spot in our minibus and off we went.

On the way there, Rika told us in Zulu that she lives on a farm next to the Hendrina Power Station’s ash dam. She works at the local nursery school. She has 3 children, and 6 grandchildren, all living with her and her father. Her father suffers from tuberculosis, she said. She told us that the dust in the area was terrible – dust from the ash dam when the wind blew, and from trucks driving past her house on the unpaved roads to the ash dam.

Rika youngest grandchild was just 4 months old. Rika told us that the baby frequently “loses her breath”. In fact, it turned out that the reason she wanted to go to Middelburg was because the baby was in hospital there, having been admitted a few days prior because she had been struggling to breathe.

At the time, I had my own small children, and the injustice of a 4 month old baby alone in a state hospital, struggling to breathe – apparently because of where her family happened to live,  her grandmother having to beg a lift from strangers just to visit her, took my own breath away.

The story of Rika and her family is not unique. It’s not unique in South Africa, and it is not unique globally. She is one of millions of people on the wrong end of the inequality divide. Rika’s story is the story of environmental injustice – the disproportionate distribution of environmental risks which causes poor, largely black communities to bear the brunt of environmental harms.  It is also the story of how the inequitable distribution of natural resources has resulted in shocking inequality – and in few countries is this divide as severe as here in South Africa. A March 2018 World Bank report found South Africa to be the most unequal country on earth: here, the top 10% of households account for 55% of household incomes, and 71% of household net wealth.

And of course inequality results in further disempowerment and vulnerability – the vicious cycle in which millions of people are stuck, and which those in power have little incentive to break.

At the same time, there is no doubt that not only South Africa but the entire world finds itself in a precarious environmental situation. A few weeks ago, we crossed yet another crucial climate threshold when atmospheric concentrations of CO2 exceeded 410 parts per million averaged across an entire month – up 46% from the 280 parts per million it was at the dawn of the industrial revolution. All over the world, ordinary people are not only starting to see the real effects of climate change, but are starting to understand that declining rainfall, rising temperatures, extreme weather events like storms and floods, are part of a changing climate – and that things could get much, much worse.

At the same time, along with the rest of the world, South Africa is entering into a period of radical technological and social change. The cost of renewable energy is falling so swiftly that it should be a consistently cheaper source of electricity generation than traditional fossil fuels within just a few years, according to the International Renewable Energy Agency.  This has major consequences for industry, for global financial systems, for governments across the world, and for local communities.

Of course all over the world we see vested private interests stepping up to resist this transition: fomenting and sponsoring unrest and spreading misinformation to sow fear and garner support for fossil fuels. As a result, here in South Africa, government has been excruciatingly slow to develop plans to prepare our country for this transition. Which is a pity, because resistance, as they say, is futile. The transition is inevitable. The only question is whether we can exploit competitive opportunities – particularly in Africa, with its abundant renewable resources – and how well we can support workers and local communities through this transition.

The tragedy is that the victims of this futile resistance are not coal mining and power companies (as they’d like you to believe), state-owned or private. The victims are workers who will cling onto jobs in the short term, and then be left in the lurch; it will be the unemployed who will not access new job opportunities in new renewable energy industries; and it will be residents of coal areas – people like Rika – for whom opportunities for economic development will again pass by, and who will continue to breathe in the air polluted by fossil fuel facilities. That is not environmental justice.

So what do we need to ensure environmental justice in this time of change?

Firstly, we need to defend environmental rights with everything that we have.

In the new post-1994 South Africa, we adopted a Constitutional right to a healthy environment, and we invested in a comprehensive regulatory framework with a range of provisions dealing with the proper consideration of environmental impacts before activities are undertaken; with a comprehensive licensing regime designed to mitigate and manage impacts; and enforcement provisions to ensure compliance with this framework.

Yet every year, we see more challenge, more review, more erosion of this framework – particularly in relation to environmental impact assessment, which already largely fails to consider the impacts of development on equity, and on environmental justice.  Even worse, we allow this system to be massively under-resourced, leaving the job of environmental regulation to fewer and fewer government officials, often without basic support.

In the United States, which has in many ways been a leader in environmental protection and regulation since the 1970s, it is like watching a train wreck in slow motion as the Trump administration works systematically to dismantle legal protections, and to collapse the Environmental Protection Agency. Sadly, this kind of action by a country like the United States emboldens the advocates of weakened regulation everywhere.

The decisions we make now will determine the quality of our lives and those of our children in the years to come.   The spectre of climate change and declining environmental quality requires stronger – not weaker – action.  Allowing this erosion and under-resourcing of our environmental regulatory system is not “streamlining”, it is not “compromise”, and it is not “sustainable development” – it is a deliberate betrayal of basic human rights.

To ensure environmental justice, we need to resist the ongoing attempts to erode our environmental laws; we not only need to defend EIA with everything we have, but demand that EIA steps up to new challenges such as cumulative impacts of multiple developments, and climate change – particularly the implications for environmental justice. We must demand greater resources for improved decision-making based on evidence-based science, as well as for compliance and enforcement.

That takes me to my second point, namely that we cannot have environmental justice without public access to independent science.

Where does a local resident like Rika turn for advice when she is concerned about poor air quality in her area? Where do public interest organisations like my own turn when we need technical expertise to assist clients whose environmental rights are being flouted? Who will give evidence in court about how poor air quality or polluted water is killing our people?

In 2018, scientists who care enough about environmental justice to assist people like Rika and organisations like the Centre for Environmental Rights are in short supply. Previously state-funded scientific bodies and academic research institutes are now required to generate their own income by outsourcing their services to the private sector, creating a conflict of interest for these bodies. Over the years we have seen an alarming erosion of scientific expertise in government, and of scientific and industrial research designed to promote the public interest.

The reality is that our scientific community, including scientists in government, is fast becoming less free, and less independent – and it is already largely inaccessible to the people who really need expert advice. Save for a few notable exceptions, at the Centre for Environmental Rights we have battled to get private consultants or university institutes to agree to do work for communities and civil society organisations.

I am not suggesting that this capture has been a voluntary one, and I’d like to believe that many scientists would go to great lengths to work in a space that is more independent. But it seems to me that there is a real risk that we are abandoning the idea that science should serve the public interest.

In the United States, the relatively well-resourced civil society has responded to corporate capture of science by supporting institutions like the Union of Concerned Scientists and their network of public interest experts. I would certainly motivate that South Africa – and many other developing countries – are in desperate need for similar capacity within civil society. But I think we also need to reconsider the role of scientists in the public service itself, and make sure that we build and maintain the scientific capacity within government.

I would argue that allowing science to be privatised, and scientists to be marginalised in structures of power, is to disregard the constraints of our natural environment entirely. This has disastrous consequences for people living on our planet right now, and places future generations in peril.

But even more importantly, allowing science to be privatised fundamentally undermines environmental justice. Science cannot be reserved for those who can afford it, and it cannot be used only to advance commercial interests.

We live in extraordinary times. Last year we saw scientists in lab coats marching through the streets of hundreds of cities across the world to defend the role of science in public policy and government decision-making, particularly on climate change. There is a president in the White House who seems to think that climate change is a Chinese conspiracy, and that he can bring back coal jobs. Meanwhile, China – always under-promising and over-delivering – stepping into the leadership space vacated by the Trump administration, is expanding its investment in renewable energy faster than anyone could have imagined.

So this radical transition that the global community faces is real, and it is happening now. In Pullenshoop and Hendrina, where Rika lives, we have more than 2000 coal workers facing unemployment because of the financial distress of the Optimum Mine, and who also face the imminent closure of the ageing Hendrina Power Plant. We have thousands of hectares of mining area at Optimum left unrehabilitated by the consecutive owners of the mine, and as a result we have ongoing water pollution of that already stressed catchment. And that is just the beginning.

The transition is happening, and the only question is whether this community of scientists, lawyers and policy makers, has the courage, and the ethics, to do what is necessary to change the current trajectory to ensure that the transition will be just, and sustainable. To ensure that we move to a future where most if not all our electricity is generated from clean, cheap renewable energy sources; where we create new jobs in renewable energy and associated industries, and in the rehabilitation of the mess that coal is leaving behind. A future where we re-train and support coal workers to take their place in a transformed economy; and where local people and local governments get to generate their own power. Business as usual – doing what we’ve always done – is not going to cut it.

So I will conclude these remarks with a call to action – and I’m speaking to each of you, no matter what your roles or responsibilities are. Each of us has the ability to affect the trajectory of the transition. Each of us has the opportunity to raise our voices at meetings, write perhaps unpopular but courageous reports, take brave but important decisions – to make sure that this transition takes us to a better future for all. A future that creates more jobs, less air and water pollution, more sustainable food production, greater equality, and more environmental justice.

Let us use our collective powers, knowledge and experience, to make sure that we make this transition one that takes us to a place of humanity, of compassion, and of justice.

I thank you.

ENDS