Centre for Environmental Rights – Advancing Environmental Rights in South Africa

Sent to The Honourable Edna Molewa MP, Minister of Environmental Affairs, by 11 civil society and community organisations on 6 October 2014

Published in the Mail & Guardian on 7 October 2014

Dear Minister Molewa

As civil society organisations and citizens working towards the achievement of environmental rights and environmental justice in our communities across South Africa, the signatories to this letter were alarmed by Sasol and the National Petroleum Refiners of SA (Natref)’s 2013 notification of applications for exemption and postponement of their compliance with minimum emission standards under the Air Quality Act.

When Sasol and Natref then instituted a court application against you and the National Air Quality Officer in May 2014 in an attempt to set aside most of South Africa’s hard-won air pollution regulations for big industry, we were appalled. If this litigation succeeds, it will have incalculable negative consequences for South Africa’s environment, air quality and the health of our people.

We understand from your statement in the National Assembly on 17 September 2014 that you have agreed to talk to Sasol to find a solution to this “dispute”. It is our considered view that the only just resolution is for Sasol and Natref to withdraw their court application, tender the legal costs incurred by the State to date, and take the necessary steps to comply with the law.

We urge the Minister to bear in mind the following in her talks with Sasol and Natref management:

1. Sasol and Natref’s operations all fall within the Vaal Triangle Airshed Priority Area and the Highveld Priority Area – declared by you and your predecessor in terms of the Air Quality Act because of the extremely poor air quality in these areas – which frequently exceeds South African ambient air quality standards – and in order to protect the health of people living in the Priority Areas. Sasol and Natref’s emissions are a significant cause of this poor air quality and contribute to negative health impacts.
2. The “polluter pays” principle in the National Environmental Management Act requires that “the costs of remedying pollution, environmental degradation and consequent adverse health effects and of preventing, controlling or minimising further pollution, environmental damage or adverse health effects must be paid for by those responsible for harming the environment”.
3. Sasol is an extraordinarily profitable company. Sasol’s headline earnings per share were up 14% to a record R60.16 in the year ended June 2014. During that year, Sasol’s operating profit increased by 7% to R41.7 billion. That profitability has been achieved at an extraordinary cost to our environment over many decades.
4. Despite this, one of Sasol’s key arguments is that the benefits of legal compliance are just not worth the costs. We believe that it is both inappropriate and immoral to compare the costs to be incurred by Sasol to reduce their pollution to the cost to human health if they fail to comply with air quality laws. Moreover, it is not for any single entity to determine whether or not it should comply with the law by reference to its own cost benefit analysis. It appears that Sasol’s arrogance leads it to believe otherwise.
5. If Sasol and Natref succeed with their court application, numerous polluting industries – including all of Eskom’s coal-fired power stations – will no longer have to comply with the air pollution standards that would otherwise have come into effect on 1 April 2015. The impact of this on human health and the environment will be dire. Sasol and Natref claim that, until new standards are set, they will simply comply with emission standards that they themselves have determined. This is not only unacceptable, but manifestly unfair on those facilities that have incurred the required capital costs to comply with the emission standards.
6. If you or the National Air Quality Officer grant Sasol and Natref any indulgences in relation to their obligations to comply with the emission standards, it will open the door for all polluting industries in South Africa to demand the same relaxations. This will set an appalling precedent for compliance with environmental laws in South Africa, diminish the authority of the government and the Department, and put the health and constitutional rights of South Africans at risk.
7. Since the passing of the Air Quality Act in 2005, Sasol and Natref were aware that minimum emission standards would become mandatory. As you pointed out in Parliament, Sasol was a key player in the five-year long multi-stakeholder process convened to determine appropriate minimum emission standards for big industry. It had certainty of these standards since early 2010. Subsequently, it lobbied the Department to obtain standards – published in November 2013 – that are significantly more lenient for petroleum industry combustion installations than those published in 2010. Despite this involvement – and the now-weaker standards – Sasol and Natref have failed to make the investments necessary to enable them to comply with these standards. The failure of Sasol’s and Natref’s management to approve the necessary expenditure to ensure compliance means that, regardless of the outcome of their court challenge, Sasol and Natref are likely to argue that there is not enough time to comply with the regulations when they come into effect in April 2015. This is a clear indication that Sasol and Natref’s involvement in this process was conducted in bad faith.

Sasol derived extraordinary benefits from the apartheid state. What we as civil society expect from such a company is compliance with our country’s laws, and corporate leadership and accountability. Instead, this extremely profitable company has resolved to lead the charge against the State’s efforts to protect the constitutional rights of all South Africans to an environment not harmful to their health and well-being.

The preamble to the National Environmental Management Act recognises that “many inhabitants of South Africa live in an environment that is harmful to their health and well-being”. We urge you to stand strong to protect the rights of all South Africans who already suffer disproportionately from the damage that Sasol and Natref have inflicted on our environment, and to ensure that future generations of South Africans are not destined to suffer the same fate.

Signed by (in alphabetical order):

1. CapTrust, Contact: Marie-Lou Roux ([email protected])
2. Centre for Environmental Rights, Contact: Robyn Hugo ([email protected])
3. Earthlife Africa Johannesburg, Contact: Makoma Lekalakala ([email protected])
4. Federation for a Sustainable Environment, Contact: Mariette Liefferink ([email protected])
5. Greenpeace Africa, Contact: Melita Steele ([email protected])
6. groundWork, Contact: Bobby Peek ([email protected])
7. Habitat Council, Contact: Marie-Lou Roux ([email protected])
8. Highveld Environmental Justice Network, Contact: Thomas Mnguni ([email protected])
9. South Durban Community Environmental Alliance, Contact: Desmond D’Sa ([email protected])
10. Table View Residents’ Association, Contact: Andy Birkinshaw ([email protected])
11. Vaal Environmental Justice Alliance, Contact: Samson Mokoena ([email protected])