Creecy to get legal advice on #deadlyair case on Friday

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  • Last week a high court ruled that the poor air quality in the Highveld Priority Area is in breach of a constitutional right.
  • Minister Barbara Creecy is set to receive legal advice on the ruling on Friday.
  • The applicants believe if government decided to appeal the ruling, it would be "undemocratic".

It would be "undemocratic" for government to appeal a landmark ruling that declared the poor air quality in the Highveld Priority Area as a breach of people's constitutional rights.

This was the sentiment at a media briefing on the outcomes of the so-called "Deadly Air" case - hosted by the Centre for Environmental Rights (CER) on Thursday - where applicants shared their views on a possible appeal by the government. It is as yet unclear what government's next steps will be, with Forestry, Fisheries and Environment Minister Barbara Creecy set to receive legal advice this week.

The matter was first lodged in 2019 by environmental justice groups groundWork and Vukani Environmental Justice Movement in Action, which the CER represented. The case was heard at the North Gauteng High Court in Pretoria in May 2021.

Judge Colleen Collis handed down the ruling on Friday.

"Poor air quality falls disproportionately on the shoulders of marginalised and vulnerable communities who bear the burden of disease caused by air pollution," noted Collis.

The judge added that not all air pollution violates the right to a healthy environment. However, if air quality fails to meet National Ambient Air Quality Standards, it is a violation of rights.

"When the failure to meet air quality standards persists over a long period of time, there is a greater likelihood that the health, well-being, and human rights of the people subjected to that air is being threatened and infringed upon," Collis said.

Collis ordered Creecy to - within 12 months - draft regulations to implement and enforce the Highveld Priority Area Air Quality Management Plan. This plan aims to clean up the air to meet the required standards.

The Department of Forestry, Fisheries and Environment has received the judgment and is studying it. Responding to questions in the National Assembly on Wednesday, Creecy noted the judgment and said she would receive legal advice on the way forward by Friday.

READ | Court orders government to clean up dirty air in Mpumalanga, Gauteng

"There is a particular timeframe within which the minister would have to file an application for leave to appeal," said Timothy Lloyd, attorney at the CER.

Lloyd however, stressed that it is "complete speculation" as to whether the government intends to appeal.

Thomas Mnguni, community campaigner at groundWork, noted that if government were to choose to appeal the ruling related to the violation of a constitutional right, that would "very undemocratic".

The court had also laid out 11 specific considerations the minister has to make in drafting the regulations. According to Lloyd, these were calls from the applicants. "To have it reflected in the court judgment is powerful."

Lloyd said that the declaration by the court could be used as an advocacy tool to ensure that an air quality management plan is in place and properly enforced. If that happens, there will be a reduction in outdoor air pollution and a reduction in health impacts on residents. 

Minister does not object to regulations

Creecy had told members of Parliament that before the matter went ahead to court, she had offered a settlement to organisations, which involved drafting regulations. But the organisations had decided to pursue the case. She emphasised that she does not object to the regulations.

In an emailed response to Fin24, Lloyd said that the state attorney had written to applicants about the settlement proposal, but this was four months after the application was filed. "The settlement proposal in the letter was that the minister had initiated the process to develop regulations in terms of section 20 of the Air Quality Act and the application should therefore be withdrawn," Lloyd explained.

He said that the applicants did not accept the minister's offer on several grounds. For one, the settlement did not provide any acknowledgement of the ongoing breach of the relevant constitutional right. The settlement also did not meet all the requirements the applicants set out to achieve in the case.

Melissa Fourie, executive director at the CER, said that the judgment comes when the country is mapping out its just transition. She noted that Eskom is a significant contributor to air pollution in the area.

The Highveld Priority Area includes parts of Gauteng and Mpumalanga. It is home to 12 of Eskom's coal-fired power stations, Sasol's coal-to-liquid fuels refinery and other coal-mining operations.

The state-owned coal fleet cannot meet minimum emissions standards and, by extension, air quality standards, all the while being unable to ensure energy security which is evident in persistent load shedding, Fourie said.

"We have to find a path or optimal way forward for these power plants, which is going to be a combination of accelerated decommissioning and reduced utilisation of various coal plants," said Fourie. The decommissioning of these coal plants will be essential for South Africa to meet its emission reductions targets or Nationally Determined Contribution, aligned to its Paris Agreement commitments.

Renewable energy will have to fill the void filled by decommissioned coal plants, Fourie added. "Clearly, what we need is a rapid and radical acceleration of renewable energy rollout over the next 10 years, but starting now."

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