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Landmark Deadly Air case: 10 000 deaths annually can be avoided

Ten thousand deaths on the Mpumalanga Highveld could be avoided every year if the government took action to bring air pollution levels into compliance with the government’s national ambient air quality standards.

This was said in the opening arguments of Steven Budlender, senior counsel for the applicants in the landmark Deadly Air case, which centres on toxic air pollution in Mpumalanga, home to 12 of Eskom’s 15 coal-fired power plants, Sasol’s coal-to-liquids plant and the NatRef refinery in Sasolburg.

The hearing is being held virtually in the high court in Pretoria from 17 to 19 May. The applicants are Vukani Environmental Justice Movement, a community environmental justice organisation in Mpumalanga, and environmental justice group groundWork

The organisations, represented by the Centre for Environmental Rights, have asked the court to declare that the poor ambient quality in the Highveld is a violation of section 24 of the Constitution, which provides that “everyone has the right to an environment not harmful to their health or wellbeing”, and that the government take further steps to improve air quality in the area.

It’s common cause, Budlender said, that dangerous levels of air pollution in Gauteng and Mpumalanga are among the worst in the world. 

“This is not one of those cases where the parties are at odds about whether there is a problem,” he argued. “In fact, the admissions that the [forestry, fisheries and environment] minister [Barbara Creecy] makes under oath — and that the minister’s own study makes — are terribly revealing because what they make clear is that firstly, the levels of air pollution in this region are not in compliance with the national standards for air quality. Secondly, and more importantly, if they were brought into compliance, at least 10 000 lives per year could be saved in this area.”

This is an “extraordinary position”, Budlender said. 

In her answering affidavit, Creecy does not dispute that there is ongoing air pollution, and that the national ambient air quality standards are being exceeded in several hotspots in the Highveld Priority Area (HPA). 

She acknowledges that the seven goals of the plan have not been fully achieved, and that some will not be achieved within the original timeframes. 

This, Budlender charged, is an understatement. Although Creecy has produced six pages of draft regulations, “she hasn’t even formally published them, never mind enacted them”. 

“This is not a case where the minister says: ‘I will make regulations for the HPA, give me six months.’ On the contrary, she resists the idea that she has a legal duty to do so,” he said.

“These are ordinary people who have nowhere else to live because they have jobs they rely on or because they have got family members who can’t move … They are the ones who are exposed to this polluted ambient air, who cannot get access to proper healthcare services and they are the ones who suffer the most.”

An independent study attached to the court papers, by Andy Gray, an expert in air and health risk modelling, found how the 14 facilities were responsible for the bulk of the pollution in the HPA, with Gray estimating that their emissions caused between 305 to 650 early deaths in the region in 2016.

He also found that as many as 2 239 premature deaths annually can be attributed to air pollution from power plants in South Africa.

According to the applicants, human exposure to toxic chemical compounds emitted by the coal plants, such as sulphur dioxide, heavy metals like mercury, and fine particulate matter results in chronic respiratory illnesses such as asthma, bronchitis and lung cancer, and contributes to strokes, heart attacks, birth defects and premature death. 

Budlender argued that the department admits this is a problem first identified in 2007 and returned to in 2012. 

In 2007, the then-minister of environmental affairs designated the highveld as a priority area under the Air Quality Act because of its poor air quality. Five years later, in 2012, an air quality management plan was published to clean up air pollution in the region.

But little has improved since then, according to the applicants.

Budlender said the litigation was not “some ephemeral debate” about policy or an “obscure” debate about principles. “This is actually a case about real people and real lives. It is a case where people die as a consequence of the failure to have healthy air … The problem hasn’t been solved and it’s about whether this [court] should, as the respondents appear to say, fold its arms and do nothing.” 

Apart from Creecy, the other respondents are the president, the National Air Quality officer, and the MECs for agriculture and rural development in Gauteng and Mpumalanga. 

The respondents, Budlender said, don’t dispute that there is a problem “but don’t provide a solution to the problem” either.

“What they effectively seek is that this application should be dismissed in its entirety even though the effect of that would be to say that this court and our Constitution can do nothing about a situation where 10 000 lives a year, in one area, could be saved if air pollution was dealt with

“That is simply not the way our Constitution works. Our Constitution uses real remedies for real people when their lives are threatened, and ended, by something like this.”

The sole objective of the 2012 plan was to reduce air pollution to a level that complied with national standards, with seven goals set to achieve this by last year. 

“What we now know is that nine years later … none of these goals have been achieved. Levels of air pollution in the area remain well above national standards and impose an ongoing threat to the health and well-being of the Highveld residents,” Budlender said.

There is no legal mechanism in place for implementation and enforcement, he said. 

“Our submission is that the way to remedy this is that the minister ought to exercise her powers under section 20 of the Air Quality Act, which allows the minister to prescribe regulations necessary for implementing and enforcing these plans. In other words, she can give them teeth and our case is that she is obliged to do so.”

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Sheree Bega
Sheree Bega is an environment reporter at the Mail & Guardian.

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