Litigation is in the air
After years of challenging government to improve the air quality in Mpumalanga, environmental justice groups are fed up and preparing to go to court to enforce citizens’ constitutional right to “an environment that is not harmful to their health or well-being” that is enshrined in Section 24 of the Bill of Rights.
Eleven years ago – in November 2007- government declared the place with the country’s filthiest air the Highveld Priority Area and vowed to clean it up.
“But countless engagements with relevant authorities are not yielding reasonable progress in addressing the severe impacts of this air pollution,” attorney Robyn Hugo told Parliament last week.
“We are now left with no option but to approach the courts on behalf of affected people residing in the Highveld to defend their constitutional environmental rights,” added Hugo who heads the Centre for Environmental Right’s Pollution and Climate Change programme.
The key polluters are Eskom’s coal-fired power stations – there are 12 in Mpumalanga – and Sasol’s giant coal-to-liquids plant in Secunda. For years, they have been spewing out dangerous levels of toxic gases such as sulphur dioxide (SO2), oxides of nitrogen (NOx) and tiny particles called particulate matter (PM).
This lethal cocktail of gases and particles pay a major role in asthma, bronchitis, heart attacks, lung disease and strokes, not just in Mpumalanga but also in Johannesburg and Pretoria where the easterly wind exposes about eight million people to the Highveld pollution.
The Centre and Greenpeace both expressed frustration last week about how the Department of Environmental Affairs (DEA) has allowed Eskom multiple postponements from the country’s Minimum Emission Standards (MES), which were adopted in 2010 and are weak even when compared to other developing countries. The MES are being phased in with one set applicable from April 2015, and stricter MES to apply five years later.
The Department was sharply criticised at a meeting of Parliament’s Portfolio Committee on Environmental Affairs last week for unilaterally allowing coal-fired plants to emit twice the amount of sulphur dioxide (SO2) previously allowed.
Greenpeace Africa’s Melita Steele accused the department of “unlawfully” lowering the minimum levels of SO2 emissions last month, saying that this enabled Eskom’s existing coal-fired plants to “emit thirty times the levels allowed in China”.
The revision allows power stations to emit 1000mg per Nm3of sulphur dioxide from April 2020, yet when the DEA published its proposal for public comment, it proposed no amendment to the level of 500mg per Nm3’, said Steele.
“This revision is most certainly unlawful,” said Hugo. “ The Air Quality Act requires that, when the Department wants to change any provisions of the notice containing the MES, it has to follow a public participation process, publish a notice in the Government Gazettewhich contains ‘sufficient information to enable members of the public to submit meaningful representations or objections’, and invite public response within 30 days.”
This was not done, but DEA official Vumile Senene stressed that the SO2 revision was “not a blanket increase”, but applied only to existing power stations and that the department had made the change after representations from “the public”.
“We had a meeting with Sasol and Eskom in January and found there is no sustainable solution to ensure compliance with SO2. We are currently sitting at 4000mg average for SO2 [for the power stations], so even getting 1000mg would be a significant improvement,” admitted Senene.
But Hugo says that unless Nomvula Mokonyane, the newly-appointed Minister of Environmental Affairs, withdraws this amendment, the Centre will resort to court to force her to withdraw it.
Committee chairperson and ANC MP Mohlopi Mapulane said that the DEA’s failure to notify Parliament about the SO2 increase seemed “dodgy” and asked the Department to provide the committee with a proper explanation.
What really irks Greenpeace, said Steele, is that the DEA keeps granting Eskom extensions to comply with the MES, yet the high level of pollution is killing people.
According to research commissioned by Greenpeace in 2014, the non-compliance of Eskom’s coal-fired power plants with the MES “would allow Eskom to emit an estimated 28,000,000 tonnes of excess SO2, 2,900,000 tonnes of NOx, 560,000 tonnes of PM10 [particular matter] and 210 tonnes of toxic mercury over the remaining life of the power plants.
“The excess emissions are projected to cause approximately 20,000 premature deaths, over the remaining life of the power plants. This includes approximately 1,600 deaths of young children. These deaths will be avoided if Eskom’s applications are rejected and full compliance with the MES is required,” according to the report.
More recent research, by UK-based air quality and health expert Dr Mike Holland, revealed in 2017 that the deaths of more than 2200 people every year, and thousands of cases of bronchitis and asthma, could be attributed to the emissions of only one pollutant from Eskom’s stations (PM2.5), costing South Africa more than R33-billion, through hospital admissions and lost working days.
End in sight
However, there is an end in sight to the rolling postponements of MES compliance – but only in six-and-a-half to 12 years’ time. The Department announced in a Government Gazette on 31 October that existing plants (which include Medupi and Kusile) would be allowed only one five-year postponement for the standards to be introduced in 2020.
The effect of this is that all power stations have until 2025 to become compliant. If they want an exemption, they have to apply for one by 31 March 2019. These “once-off suspensions” of compliance are only applicable to plants that will be decommissioned by 31 March 2030. According to Eskom, seven power stations will be closed down by 2030.
While Hugo welcomed an end to rolling postponements, both the Centre and Greenpeace said that the pace of reducing air pollution is way too slow.
Greenpeace Africa recently released a report based on satellite images from June to August, which shows that Mpumalanga “is the world’s largest nitrogen dioxide (NO2) air pollution hot spot”.
Addressing the parliamentary committee, Professor Rebecca Garland from the Council for Scientific and Industrial Research (CSIR) agreed that there was a pollution “hot spot” over Mpumalanga but said that satellite imagery did not capture the air quality “on the ground”.
“Ground-level measures of NO2 do not show a hot spot regularly,” said Garland, who added that the level of NO2 in the air was influenced by seasons and altitude and traffic.
‘Piece of propaganda’
But North West University’s Professor Harold Annegarn, called as an independent expert by the Department although most of his research work has been for Eskom, dismissed the Greenpeace report as “a piece of propaganda” that was “scientifically flawed and should be rejected”.
“Emissions are not exposures. This is a fatal flaw and a jump in logic,” said Annegarn, who asserted that the Department was addressing air pollution in a responsible manner.
But most MPs felt that the experts were downplaying the serious air pollution in Mpumalanga, which DA MP Ross Purdon described as a “national disaster”.
“Eskom is in trouble and emissions are not high on its list of priorities,” said Purdon.
“I get that Eskom is important for the economy, but when are we going to stop granting extensions? We are never going to reach our goals,” said Johanna Steenkamp, also from the DA.
The DEA’s Senene assured MPs that “new plants must be compliant and can’t apply for extensions” and that “there are now firm and clear deadlines”.
At the beginning of this month, the World Health Organisation (WHO) held its first ever conference on air pollution, which it called the “new tobacco”, blaming it for an estimated seven million deaths a year.
“More than half of all pneumonia deaths in children under five years of age are caused by air pollution. Furthermore, this early life exposure is associated with an increased risk for many chronic diseases,” said the WHO at the end of its conference.