Court rules against former environment minister over toxic air crisis – The Mail & Guardian

Former environment minister Barbara Creecy.

The supreme court of appeal (SCA) has rebuked the former minister of forestry, fisheries and the environment, Barbara Creecy, for her delay in publishing regulations to address dangerously high levels of air pollution on the Mpumalanga Highveld. 

Earlier this month, the country’s highest appellate court handed down judgment dismissing, with costs, Creecy’s appeal of a portion of the March 2022 landmark Deadly Air high court judgment.

The court case, which was launched in 2019 by groundWork and the Vukani Environmental Justice Movement in Action, successfully challenged the state’s failure to promulgate the necessary regulations to give effect to the objectives of the Highveld air quality management plan. 

“In the face of ongoing high levels of air pollution, the minister was dutybound to act,” wrote Betty Molemela, the president of the SCA, in the blistering judgment. “And with the passage of time, the creation of the regulations became imperative.

“By the time the application was heard in the high court, the urgency of the creation and publication of these regulations was unquestionable. The fact that the regulations were published more than 10 years after the publication of the Highveld plan is a lost opportunity in the quest for an environment that is not harmful to the inhabitants of this country.” 

The Highveld Priority Area (HPA), spanning eastern Gauteng and across the Mpumalanga Highveld, was declared a priority area in 2007. It is home to 12 of Eskom’s coal-fired power stations, Sasol’s coal-to-liquid fuels refinery and an assortment of coal-mining operations and other industries.

In March 2022, the Pretoria high court delivered a landmark ruling that the poor air quality in the HPA is in breach of residents’ section 24(a) constitutional right to an environment that is not harmful to their health and well-being. It found that Creecy had a legal duty to pass these regulations and had “unreasonably delayed” in preparing and initiating regulations to give effect to the Highveld plan.

Creecy appealed the portion of the judgment that held that the minister has a legal duty — as opposed to a discretion — to publish the regulations. This technical but significant point related to the wording of a provision of the Air Quality Act, which gives the minister the power and duty to publish the regulations. 

The issue in the appeal was confined to whether section 20 of the Act imposes an obligation on the minister to make regulations that are deemed necessary for the implementation and enforcement of approved priority area quality management plans.

Molemela said in the judgment the necessity for prescribing the regulations to ensure the implementation and enforcement of the Highveld plan is “indisputable”. The judgment noted how the environment department’s own health study concluded that low-income groups, women, youth, children and people with disabilities were disproportionately affected by air pollution, and that this has a negative effect on their health and well-being. 

“According to that health study, which focused on particulate matter (PM2.5 and PM10), if these pollutants’ levels were reduced to those allowed by the Air Quality Standards, an average of 10 000 lives could be saved,” according to the judgment. “The health study’s final conclusion was that the best course of action would be to prescribe implementation regulations as that could potentially save lives.” 

Molemela noted that the purpose of the Highveld plan was to coordinate air quality in the HPA, address all issues related to air quality in the area and provide for implementation of the plan by stakeholders.

“It follows axiomatically that once that goal had proven unachievable due to the stakeholders’ failure to co-operate, more serious interventions became necessary. Given that one of the tools provided by the Act is the creation of the regulations, and considering that the department’s opinion was that the making of the regulations was the only avenue left to preserve the health and well-being of those residing in the HPA, the minister was constrained to create and publish the regulations.”

She noted that the department’s impact assessment report noted that the main cause of the problems related to the implementation of the Highveld plan was the negative attitudes from major polluters “who did not consider the air quality management plans as binding legal documents, and that stakeholders could not be held accountable as no punitive measures could be applied”. 

“Its final conclusion was that the best course of action would be to create implementation regulations because that could potentially save lives and yield better health outcomes. 

“The department, in its impact assessment report, concluded that existing regulatory measures were insufficient to give effect to the Highveld plan, and that implementation regulations would be a more efficient means of achieving the goals set out in the plan. These are compelling factors that ineluctably point to the need to create the regulations.”

Molemela said the very fact that high levels of pollution continue unabated in the HPA despite the dangers they pose to people, is a clear attestation that the non-binding set of goals contained in the Highveld plan are insufficient to achieve the substantial reductions in atmospheric emissions that are required in the HPA. 

The Air Quality Act is one of the legislative measures envisaged in section 24(b) of the Constitution. “Thus, even if it were to be accepted that the usage of the word ‘may’ meant that the minister had a discretion whether or not to publish the regulations, it is clear that chapter four of the Air Quality Act calls for prompt, efficient and coordinated action to address dangerously high levels of air pollution,” the judgment read.

Any “dragging of feet in addressing the problems” would therefore undermine the achievement of this purpose. “Under these circumstances, it would be absurd to conclude that the minister’s delay in publishing the regulations amounted to a proper exercise of her discretion. 

“There can be no doubt that in the context of this matter, the minister’s failure to make the regulations would have amounted to an improper exercise of that discretion. This is more so the case where the minister had, in any event, elected to publish draft regulations of her own accord, thus acknowledging the need for the regulations to be created.”

The current environment minister, Dion George, published the regulations two days before the appeal hearing was held in August last year.  But the SCA found that this did not make the matter moot, because the distinct legal point is of public importance and would affect matters in the future.

“Our home has been a sacrifice zone for years and the government has been dragging its feet in taking steps to address this and the human rights violations as a result of the polluted air we breathe,” said Promise Mabilo, the coordinator of Vukani Environmental Justice Movement in Action. “We are glad it recognises that the department delayed taking measures to protect us from the toxic air pollution.”

“At this time where we are seeing a renewed assault on the fight for clean air, it is gratifying to see one of the highest courts in the land taking the protection of communities seriously,” added Thomas Mnguni, a coal campaigner from groundWork, Friends of the Earth South Africa.