6 October 2020 at 9:28 am
This week, the Centre for Environmental Rights honours a decade of litigation, advocacy and activism for environmental justice: it has been 10 years since CER opened its doors in 2010.
Where it all started
In the late 2000s, although section 24 of the South African Constitution guaranteed the right to a healthy environment, the concept of “environmental rights” was still relatively new in South Africa. Implementation of the environmental laws promulgated to give effect to that right was slow, and compliance and enforcement hampered by flawed tools, and limited resources. The lack of transparency and accountability from corporate and state actors in respect of environmental governance was of great concern. The horrific environmental and social legacy of our mining industry was evident, yet new mining and production rights were being granted at pace, without regard for that legacy, and in places that our government had itself identified as being of biodiversity or hydrological sensitivity and importance. Moreover, mining-affected communities were already suffering the consequences of mining rights being granted without adequate community consultation or benefit-sharing, and seeing the destruction of their livelihoods and heritage.
It was in this context that the idea of a legal organisation to support the non-profit environmental sector in South Africa took root. A year of intensive consultation with NGOs and community organisations across South Africa grew into the formal establishment of the Centre for Environmental Rights in October 2009.
In April 2010, with only a handful of staff, working with existing NGOs and community organisations, the new Centre set out to shift these trends using the law. While building a legal case for the declaration of no-go areas for mining, we challenged new mines being proposed, or already underway, in sensitive areas; we started collecting and publishing evidence of disclosure of impacts and compliance by companies, and tracking the results of compliance monitoring and enforcement by government.
In 2014 we achieved our first precedent-setting court judgment: we represented the Vaal Environmental Justice Alliance in a challenge of steelmaker ArcelorMittal South Africa’s refusal to grant or recognise VEJA’s right to access records about the pollution and environmental impacts coming out of AMSA’s Vanderbijlpark Plant. In its judgment upholding VEJA’s right to access the records, the Supreme Court of Appeal said:
“Corporations operating within our borders… must be left in no doubt that, in relation to the environment in circumstances such as those under discussion, there is no room for secrecy and that constitutional values will be enforced.”
In 2017, we represented Earthlife Africa in South Africa’s first climate change case. The Thabametsi judgment, now globally recognised as a key judgment on climate change, found that government should have considered the climate change impacts of a new coal-fired power station before deciding whether to authorise it – and set aside the approval given for this emissions-intensive facility.
In 2018, a coalition comprising the Mining and Environmental Justice Community Network of South Africa, Earthlife Africa, the Endangered Wildlife Trust, BirdLife South Africa, the Federation for a Sustainable Environment, the Association for Water & Rural Development, the Bench Marks Foundation and groundWork, represented by CER, secured a High Court judgment setting aside approvals for a proposed new coal mine in the Mabola Protected Environment – also a strategic water source area. In 2019, that judgment remained intact despite attempts by the mining company to challenge it in the Supreme Court of Appeal and the Constitutional Court.
In 2020, acting for groundWork, we secured a ruling in the Water Tribunal that not only set aside the water use licence for the proposed Khanyisa coal plant, but also, for the first time, confirmed that water licensing authorities must consider the impacts of climate change as relevant factor when deciding whether or not to grant water use licences to coal-fired power stations. In 2020 we also successfully appealed to the Minister of Environmental Affairs to make greenhouse gas emission data and emission reduction plans of South Africa’s biggest emitters public.
Beyond litigation, together with our partners, CER has done crucial advocacy work over the past decade to promote transparency in environmental governance, and accountability of corporations for environmental impacts and violations, as well as of the public and private financial institutions that finance them.
Our Full Disclosure series of reports has exposed the failure of listed companies to disclose their true compliance status to shareholders; shortcomings in the reporting and oversight of funds for environmental rehabilitation by mining companies; the failure of coal mining companies to comply with their water licences; and the failure to report climate risk and plans to address that risk.
Through our annual Environmental Rights & Remedies School for Activists, we have provided 65 community activists from across the country with skills and legal tools to scale up their local campaigns for environmental justice. These activists are networked, and operate as hubs for environmental rights information in their communities all over South Africa – but particularly in areas impacted by mining and other polluting industries.
Our work aimed at holding corporations to account has not been without challenge. We have seen an increase in threats to our organisation, our staff, our partners and activists – part of a global trend of intimidation of and attacks on environmental and human rights defenders.
During this decade, CER has grown to a mid-size organisation of lawyers and activists, and we continue to invest in an organisational culture that embraces excellence, diversity, inclusion and transformation. Creating a hub of public interest environmental law – a space for lawyers with a passion for using the law for environmental justice, and to train a new generation of public interest environmental lawyers – is something of which we are incredibly proud.
The next decade
Many challenges lie ahead in the next decade, and time is of the essence.
South Africa’s over-reliance on coal for power generation is devastating the lives, health and livelihoods of communities in our coal areas. Yet the shackles of coal are preventing South Africa from taking advantage of its superior renewable energy resources and to transition to clean, cheap electricity from renewable energy. Moreover, government continues to support new harmful and unnecessary coal developments that will cost the country, and become stranded assets.
In 2021, the Deadly Air case should go to court for the first time. This is a Constitutional case brought by groundWork and Mpumalanga-based community organisation Vukani Environmental Justice Movement in Action, represented by CER, that demands that government act to protect the Constitutional rights of the people living in the Mpumalanga Highveld from the unacceptable air pollution and its devastating impacts on their health and wellbeing.
We must also support our partners in challenging plans to develop another nascent fossil fuel industry – fossil gas – at a time when the move away from fossil fuels is urgently needed for a liveable climate, and especially since there are feasible, cleaner and cheaper alternatives to fossil fuel electricity.
Devastating drought, at least partly caused by climate change, has ravaged large parts of the country, exacerbating existing problems of poorly maintained infrastructure and dysfunctional local governments. This has left many rural South Africans, in particular, without reliable access to water – a situation that has become acute during the COVID-19 pandemic. As the climate crisis escalates, South Africa’s water and food security is predicted to deteriorate further, with impacts that disproportionately affect women, young people (as well as our future generations) and South Africa’s rural communities.
It is clear to us that the climate crisis and the ecological breakdown that is already evident, but that will continue to get worse, cannot be addressed simply by improving our environmental regulatory system: a much broader, inclusive, intersectional approach is required to address the systemic discrimination that props up the exploitation of people and planet that has brought us into a climate emergency.
CER is part of a vibrant and growing movement of organisations, networks and individuals – beyond the traditional environmental sector – that want a society based on justice and equality in which all people and the environment can thrive, now and in the future, recognising the way in which our environment sustains all life on earth.
To achieve this goal, we need an informed, resourced and diverse environmental and climate justice movement led by and serving those most affected by the exploitation of people and planet. We need laws and policies affecting the environment and climate that promote and secure Constitutional rights, and are implemented and enforced in a transparent, lawful and accountable way. We need institutions with power to hear the concerns of the environmental and climate justice movement, to rely on sound science, and to take action to address environmental and social injustice, the climate crisis and ecological breakdown.
CER is committed to use our resources, power and influence to work with partners and activists to progress these goals over the next decade.
We would like to say thank you to the following people and institutions:
- the early supporters of CER, who helped bring this institution to life;
- our amazing current and past staff members: CER is nothing without you;
- our dedicated current and past Board members, who hold us accountable;
- our loyal campaign partners, who put up with court deadlines and our legalese with good grace;
- our incredible and longstanding international partners Earthjustice and ELAW: thank you for everything;
- the community activists whose dedication to justice for their communities inform our work and inspire us every day;
- our peer group of public interest environmental and social justice lawyers, whose solidarity we value so much;
- the advocates and technical experts who devote so much time, energy and thought to our cases;
- our funders, big and small, who support us and challenge us;
- the journalists who have covered our work, and kept us honest over the last decade;
- Justice Albie Sachs, who addressed CER’s opening event in 2010, and came to encourage and inspire us at a time when things were tough.
CER now has a new online donation facility on our website. Your support is gratefully received.