Environmental Rights Blog: Despite the Supreme Court of Appeal’s warning, polluters persist with secrecy
11 December 2014 at 2:52 pm
In June 2013, as part of a wider project undertaken on behalf of the Vaal Environmental Justice Alliance (VEJA), the Centre for Environmental Rights (CER) made a request in terms of the Promotion of Access to Information Act (PAIA), to the Gert Sibande District Municipality in Secunda. The CER asked the municipality – as the relevant licensing authority – for a copy of the atmospheric emission licence (AEL) that it had issued for Sasol’s Secunda Synfuels Operations. An AEL is a licence that governs how much of each of the dangerous pollutants that are generated by Synfuels’ operations may be emitted into the atmosphere. The municipality was also asked for a copy of the facility’s most recent compliance monitoring report in terms of its licence.
The municipality refused the request, incorrectly interpreting PAIA in a number of respects, referring to Sasol as its “client” and also advising that “the facility is a national key point and that for such reasons all information is treated with confidentiality”. The CER appealed the refusal in terms of PAIA, and then spent 11 months trying to obtain a decision on the appeal.
Finally, on 27 November 2014, almost one and a half years after the request was submitted, the municipality purported to provide the CER with copies of the documents requested, as provided to the municipality by Sasol. Figures 1 and 2 show all 107 pages that were provided to the CER, and clearly illustrate Sasol’s true attitude to transparency.
As a point of comparison, the CER made an identical request, on behalf of VEJA and as part of the same project, to the City of Cape Town for the AEL and compliance report for the Chevron refinery. The City granted the request, Chevron did not object, and VEJA received an entirely un-redacted copy of Chevron’s licence (Part 1 and Part 2) and quarterly compliance report.
In terms of PAIA, the municipality is also required to provide adequate reasons, based on grounds of refusal in the Act, for refusing to disclose any part of the record. The municipality should, therefore, have provided reasons for the extensive redactions in the documents sent to the CER. It did not.
In December 2013, the CER on behalf of VEJA also made an identical PAIA request to Sasol itself. This request was also refused, on the basis, inter alia, that the request was “vague,” and “contradictory”, that the AEL contained “trade secrets”, and that, due to the status of Sasol Synfuels as a national key point, disclosure of the information “may prejudice the security of our buildings and structures, and as such cause prejudice to the security of the Republic”.
Sasol Secunda’s AEL is the document in terms of which the government regulates and sets limits on the pollution generated by the facility’s operations. The facility requires an AEL precisely because the pollutants that it emits are dangerous to human health, and have serious impacts on surrounding communities and the environment. This information is not a “trade secret”, and should be publicly available – not just in relation to Sasol, but in relation to all polluters.
In Sasol’s 2014 Integrated Report, the company stated that it had received two PAIA requests, one of which it refused and one which it granted. When pressed in recent correspondence with shareholder activist Theo Botha after Sasol’s AGM on 21 November, the company told Mr Botha, incorrectly, that the request that it had granted was the CER’s request. (See Arrogance or simple obtuseness?, Moneyweb, 1 December 2014.)
Sasol’s facilities emit hundreds of thousands of tons of poisonous pollutants into the air every year, with extremely detrimental consequences for human health. In its 2014 Sustainability Report, Sasol’s Chairman David Constable tells shareholders that the company recognises “ …that for the company and the countries within which we operate, we need to invest in the health, wellbeing and continuing development of people and their communities, and we need to foster relationships grounded in trust and respect”. And yet:
- Sasol has refused to disclose information to a community organisation, and then told shareholders that it has disclosed that information; and
- Sasol appears to have intervened in a PAIA request process between a community organisation and a public body, and redacted, without justification, the majority of information in its licence and compliance report, making the information that is not blacked out completely meaningless.
In an ironic twist, the Department of Environmental Affairs has just disclosed the atmospheric emission licences for Sasol’s NATREF refinery (which Sasol and the licensing municipality have also refused to disclose) and Infrachem facility, un-redacted, as part of its answering affidavit in Sasol’s application to set aside the minimum emissions standards under the Air Quality Act.
On 26 November 2014, in its judgement ordering ArcelorMittal to release environmental records to community organisation the Vaal Environmental Justice Alliance (VEJA), the Supreme Court of Appeal (SCA) pointed out the “dangers of a culture of secrecy and unresponsiveness”, and made it clear that where a company’s operations cause serious environmental impacts, “there is no room for secrecy and … constitutional values will be enforced”. Industrial polluters like Sasol would be well advised to heed this warning from the SCA.