Environment Minister Barbara Creecy and her senior officials were beaten (at least from a legal standpoint) late last week when the High Court in Pretoria ruled strongly against the national business guardian in the landmark Deadly Air case – and against its co-defendants, President Cyril Ramaphosa, the National Air Quality Officer and the heads of the Gauteng and Mpumalanga Provincial Environment Departments.
Judge Colleen Collis has granted a series of tough court orders in favor of two environmental justice groups who have taken to court to compel the government to uphold the constitutional right of every South African to “an environment that does not harm to his health and well-being”.
Screws tighten on big polluters and Creecy after resounding ‘deadly air’ legal victory
At a March 24 press conference, Center for Environmental Rights (CER) attorney Tim Lloyd said there was no clear indication yet as to whether Creecy and his co -Respondents would appeal all or part of the judgment, which has been described as one of South Africa’s most significant court decisions on human rights and environmental justice in decades.
Lloyd said the CER was still coming to terms with all the possible implications of the decision and was unable to predict exactly how events might unfold over the months and years to come, now that the government was put on notice to take more effective measures. against at least 12 Eskom coal-fired power stations, the Sasol fuel refinery in Secunda and other major air polluters in the Highveld priority area.
Tshepang Molefe, of activist group groundWork, had a strong message for Creecy, warning she would be seen as “undemocratic” if she opted for another round of legal wars.
“If someone were to appeal a decision like this, it would be like saying there’s something wrong with the Bill of Rights.”
Robyn Hugo, a lawyer and director of shareholder activist group Just Share, also urged Creecy to think carefully before appealing the decision – asking what message that would send to the public about her role as a minister constitutionally mandated to protect people’s health and well-being.
Nevertheless, Creecy has been walking a tightrope on this issue since his appointment in May 2019, in part because of Eskom’s claims that it is unaffordable to cut emissions or reduce harmful dust levels from its aging fleet of coal-fired electricity. stations.
Although her department released draft regulations earlier this year proposing legal penalties and other measures to compel polluters to reduce emissions levels, the fact that she and her department opposed the case from Deadly Air’s tribunal gives a strong indication that she can always choose to fight more. in a higher court.
In response to questions about whether Creecy, his cabinet colleagues and other interest groups might simply not take effective action against big polluters, Molefe said he hoped the government would not opt for new battles, but would instead view the decision as an opportunity to move away from old ways of thinking and act more decisively in the interests of people and the environment.
Lawyer Tim Lloyd said there was still a long way to go to translate the court’s decision into meaningful action on the ground, but the relief provided by Judge Collis now provided very powerful legal tools to enforce the existing air quality management plans in three declared pollution hotspots – the Highveld, Vaal and Waterberg-Bojanala priority areas.
Even in polluted areas that had not been officially designated as priority areas, the Deadly Air decision would also provide similar tools to reduce emissions, as the government’s ambient (outdoor) air quality standards were applicable to the environment. national scale.
Melissa Fourie, the former head of the Green Scorpions’ enforcement unit who left government to set up the CER, suggested the court’s decision was not just about air pollution, but also about ongoing violations human rights.
Fourie said there was “dramatic and shocking evidence” presented at the trial about the negative effects on the health of communities, from when babies were still in the womb. It reinforced generational patterns of poverty by removing sick children from classrooms due to pollution-related illnesses such as asthma, emphysema, bronchitis, tuberculosis and cancer.
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Besides regular power outages, the state’s aging coal fleet was still unable to meet minimum emission standards or ambient air quality standards.
“So we have to find an optimal path for these plants,” she said, including options for early dismantling, rehabilitation measures or by “supersizing” the rapid development of renewable energy alternatives.
Although no specific court order was sought directly against Ramaphosa, the community litigants nevertheless decided to name him as a defendant “in his formal capacity as the head of the National Executive with overall responsibility for coordinating the functions of the departments and state administration”.
In their founding affidavit, activist groups groundWork and Vukani Environmental Justice Alliance said: “The President is cited for any interest he may have in this case. The nature of this request involves a constitutional violation and has far-reaching implications.
“The urgent reduction of air pollution in the Highveld priority area requires cooperative governance across multiple government departments and levels of government. It is a matter of national interest. »
While it may be early to proclaim a meaningful victory for communities literally at the forefront of choking air pollution, eMalahleni resident Promise Mabilo had this to say in a video message for Ramaphosa and his Cabinet.
“I wish the government could take into consideration that this (health problem) is real.”
Recalling cases of local parents being advised by doctors to permanently remove their children from the eMalahleni (Witbank) area to protect the lives of their sick children, Mabilo said: “It is they (the government) who are up there to decide… and who can take serious action that will save people in high priority areas. Let them consider the right thing. DM