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Engen, Shell and BP refineries’ atmospheric emissions licence and compliance reports

South Durban Community Environmental Alliance and Vaal Environmental Justice Alliance v eThekwini Metropolitan Municipality and others

In this case, which is ongoing, the CER represents the South Durban Community Environmental Alliance (SDCEA) and the Vaal Environmental Justice Alliance (VEJA) in proceedings to force eThekwini Metropolitan Municipality to release the atmospheric emission licences and compliance reports of two south Durban refineries.The Municipality had refused requests for these records for the Engen Petroleum Limited (Engen) refinery and the Shell and BP South African Petroleum Refineries (Pty) Ltd (Sapref) refinery in south Durban in terms of the Promotion of Access to Information Act (PAIA), arguing that they constituted commercial information of the refineries. The Municipality claimed that the records contained trade secrets; financial, commercial, scientific or technical information, which, if disclosed would be likely to cause harm to the financial or commercial interests of Engen and Sapref; or that the information was supplied in confidence and its disclosure could put Engen and Sapref at a disadvantage or prejudice them in commercial competition. Internal appeals of these decisions also failed.

Shortly after the case was instituted, Engen offered to settle the matter insofar as it concerned Engen, tendering a heavily redacted copy of its licence and annual performance report. Our clients rejected the offer on the basis that the redaction was not justified under PAIA, in response to which Engen made another settlement offer, offering to redact much less of the information – a victory in itself. However, it transpired that the licence subsequently made available by Engen is not its most recent licence – as it had been varied in June 2015 – and therefore it is not the current and operative licence of Engen. We filed a notice of intention to amend our notice of motion to change the wording of the relief requested to provide for the current and operative licences of both parties and the latest compliance reports, however the application was subsequently withdrawn on agreement between the parties. In August 2016, Engen offered a redacted version of its current and operative licence – a new licence which the Municipality issued in 2016.  The other refinery, Sapref, has not indicated any intention to oppose the application, but the Municipality has given us heavily redacted copies of Sapref’s licence and compliance report. We have requested that the Municipality provide reasons explaining why the redactions are permissible in terms of PAIA.

The application is still pending.  SDCEA and VEJA intend to engage with the Municipalities and refineries around issues of transparency in the air emission licensing process and air quality monitoring, to potentially resolve the litigation.

We expressly acknowledge the financial support of the Open Society for South Africa, without whose support this litigation would not be possible.