Environment minister appeals portions of landmark ‘Deadly Air’ judgment

Forestry, Fisheries and Environment Minister Barbara Creecy has “no legal duty” to prescribe regulations to implement and enforce an air quality management plan for the polluted Mpumalanga highveld under section 20 of the National Environmental Management: Air Quality Act (AQA).

This is contained in her application for leave to appeal portions of a watershed judgment by the high court in Pretoria last month that recognised that the poor air quality in the Highveld Priority Area (HPA) is in breach of residents’ constitutional rights to an environment that is not harmful to their health and well-being.

The court, according to the minister’s application, “erred” in its interpretation of section 20 as not merely vesting the minister with a discretion to prescribe regulations, “but imposing a duty on her to do so”. 

Creecy says the interpretation “impermissibly limits” her regulation-making discretion by imposing an obligation on her to prescribe regulations under that section, without due regard to the broad regulation-making powers conferred by the Air Quality Act. This obliges Creecy to prescribe regulations relating to a particular priority area rather than permitting regulations which apply to all such areas, “thus limiting the minister’s legislative discretion and autonomy”.

Air pollution hotspot

The Highveld Priority Area includes parts of Gauteng and Mpumalanga and 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.

“Due to its concentration of industrial pollution sources, residents experience particularly poor and dangerous air quality,” Pretoria high court judge Colleen Collis ruled last month.  “The poor air quality falls disproportionately on the shoulders of marginalised and vulnerable communities who bear the burden of disease caused by air pollution.”

Creecy, Collis said, had a legal duty to prescribe regulations under section 20 of the Air Quality Act to implement and enforce the Highveld Priority Area air quality management plan. “It is declared that the minister has unreasonably delayed in preparing and initiating regulations to give effect to the Highveld plan,” the judge said.

The court directed the government to prepare and implement regulations to reduce air pollution, according to section 20 of the Air Quality Act, within 12 months of the order. 

The minister’s application states: “If properly interpreted, section 20 of the AQA confers a discretion on the minister to prescribe regulations but not a duty to do so, it follows that the minister cannot be compelled to prepare, initiate and prescribe regulations within a specified time.”

‘Fettering’ Creecy’s discretion

There is no duty to prescribe regulations with a particular content, Creecy’s application maintained. “It is unlawful to fetter the minister’s discretion by prescribing the factors to which she is required to have due regard.” 

The application also challenges Collis’s order that Creecy, in preparing the regulations, among others, needs to give legal effect to the goals of the Highveld Plan, coupled with appropriate penalties for noncompliance, and for enhanced monitoring of atmospheric emissions in the priority area.

“If, properly interpreted, section 20 of the AQA confers a discretion on the minister to prescribe regulations but not a duty to do so, it follows that it is unlawful to prescribe the contents of any such regulations or the factors to which the minister must have due regard”.

This, it states, “impermissibly constrains” the minister’s discretion to determine legislative policy and the appropriate model for regulation; and “impermissibly obliges” the minister to impose obligations on other organs of state, including members of executive councils and other departments, both provincial and local, and officials responsible for minimum emission standards.

Competing interests

In her affidavit, Creecy said it was not her intention to use the appeal process to delay the drafting of regulations and that process will continue independently of any appeal.

“Indeed, I regard it as important, to ensure that the process of regulation-making is as Inclusive and cooperative as possible. The need for engagement with all Interested and affected parties is crucial if a practical and viable way forward is to be found.” 

There are self-evidently “many competing interests” at stake, she said. “The health of affected communities will continue to enjoy priority as well as an endeavour to balance these demands with the many other relevant factors.

“I thus propose to continue an engagement with affected communities, including NGOs and specialists, energy producers and industries in the area, trade unions, local authorities and all other interested parties.” 

The ambit of her appeal, Creecy said, is “relatively narrow and essentially boils down to a question of law, namely, the proper interpretation of section 20 of the AQA”. 

“The appeal against the four orders identified all have in common that they are predicated upon an interpretation of section 20 of the AQA, which holds that I am not merely vested with a discretion to prescribe regulations, but am under a duty to do so.”

The proper interpretation of section 20 of the Air Quality Act is of wider significance, she said. “This is because there are several statutes within the environmental sphere and for which I am responsible which contain similarly worded regulation-making powers. It is therefore of importance, beyond this case, to determine whether those powers also entail not merely a discretion, but also a duty.”

Disappointing

The applicants in the “Deadly Air” case, environmental justice organisations groundWork and the Vukani Environmental Justice Movement in Action, who were represented by the Centre for Environmental Rights (CER) in the matter, said in a statement they were disappointed that Creecy was appealing parts of the judgment.

“The minister’s decision to apply for leave to appeal risks further delaying concrete action being taken to reduce harmful air pollution on the Mpumalanga Highveld,” they said.

Creecy is not appealing the first part of the order that relates to the immediate realisation of section 24 of the Constitution, but rather those that relate to the interpretation of section 20 of the Air Quality Act. “Importantly, the declaration of residents’ guaranteed right to a healthy environment still stands and groundWork and Vukani will proceed to take action on this basis through their various community-based activities.” 

The department’s decision to appeal parts of this judgment risks further delaying any meaningful action being taken to lift the burden of air pollution which residents of the Mpumalanga Highveld experience every day, said groundWork’s director, Bobby Peek. 

“These are measures that are way overdue, considering that the government first recognised this area as an air pollution hotspot 18 years ago.”

Since 2004, repeated studies — and the recent high court judgment — found that air pollution in the area is responsible for premature deaths, decreased lung function, deterioration of the lungs and heart, and the development of diseases such as asthma, emphysema, bronchitis, tuberculosis and cancer and “that these ongoing harms particularly affect the lives of the elderly and children”.

Wandisa Phama, the deputy director of the Centre for Environmental Rights, said it would wait for a hearing date for the minister’s application for leave to appeal. “At this time all parties will be able to make arguments before Justice Collis and she will then decide whether another court could reasonably come to a different conclusion, or if there are other compelling reasons in the interests of justice for the disputed parts of the decision to be reconsidered.”

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

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