Eskom told to clean up its act, again
Government given a year to curb pumping of coal pollution into the Highveld air
A victory for the environment and a disaster for the economy.
This sums up Friday’s Pretoria high court ruling in the deadly conundrum that pitted the health of hundreds of thousands of people against Eskom’s precarious ability to keep the lights on.
Environmental activists have hailed the 123-page judgment in which judge Colleen Collis gave environmental affairs minister Barbara Creecy 12 months to implement and enforce the Highveld Priority Area (HPA) air quality management plan that will bring pollution in line with minimum emissions standards (MES).
The HPA is home to a cluster of Sasol refineries and 12 Eskom coal-fired power plants that generate more than 32,000MW of power most of the utility’s total capacity of 44,000MW. The area covers parts of Gauteng and Mpumalanga, and is home to major towns such as Emalahleni, Middelburg, Secunda, Standerton, Edenvale, Boksburg and Benoni.
The area has the dirtiest air in the world in terms of nitrogen dioxide pollutants, according to satellite data collected by Greenpeace.
Winds blow pollution from coal-fired power plants into the cities affecting about 8-million people.
But Eskom has said it cannot afford the R300bn it would cost to clean up its power stations to bring them in line with MES while failing to add extra capacity to the grid. The result of reducing power-generating capacity by a third, it said, would be more loadshedding and a disaster for the economy.
In an application to the department to postpone the implementation of its compliance with pollution standards for five of its coal-fired power stations, ordered in November, Eskom said: “If implemented, the decision will result in an immediate shutting down of 16,000MW of installed coal-fired capacity.”
Environmental affairs spokesperson Albi Modise said the department needs time to study the full judgment and its implications in law before commenting. He could not say how long this would take.
Eskom did not respond to questions.
Sasol spokesperson Matebello Motloung said the company was assessing the judgment. “Sasol has an air quality abatement programme where several projects at Secunda, Sasolburg and our joint venture Natref operations have been and continue to be implemented.
“We are committed to complying with all applicable regulatory requirements, as well as monitor and report on our activities.”
Professor Anthony Turton of the Centre for Environmental Management at the University of the Free State has been following the case closely. “It’s a good decision and it appears that constitutionality has once again prevailed and the rights of the individual upheld,” he said.
“In a country like South Africa, where we see a breakdown of law and order and government getting away with murder, we are now witnessing a consistent will by the courts to uphold the constitution and defy politicians.”
Dawie Roodt, chief economist at the Efficient Group, said the judgment will hit Eskom and Sasol hard in the pocket.
“Also, this will inevitably result in higher prices for consumers - higher inflation, higher interest rates, lower growth, more unemployment, more poverty.”
Energy analyst Chris Yelland described the judgment as a “landmark ruling”.
“It’s a long judgment that does require a lot of analysis by a lot of people, by government and Eskom, by Sasol, by NGOs and organisations like Outa. So it’s perhaps premature to expect answers on the implications.
“There is quite a significant period given to the minister to implement this, so again there is not likely to be an immediate beneficial effect on people living in the HPA and on pollution by Sasol, Eskom and the industries in that area. It is going to take time for these impacts to come through.
“We also don’t know if the minister will appeal in any way and that of course could significantly delay things. So we are looking with some interest to hear whether the minister accepts the judgment or wants to take it on appeal.
“Also, Eskom has appealed against decisions by the minister in respect of the work it has to do to bring stations into compliance with the minimum emissions standards, and I am interested to hear how this judgment may affect the internal appeals lodged by Eskom with the minister.
“It may give strength to the minister to stand firm on compelling Eskom into compliance and not to give them further extensions to the current non-compliance. Eskom has been given a lot of leeway until now and they have not done anything. It has to take into account this judgment and its affect financially, operationally and environmentally. There is also a significant affect on Sasol. I imagine they will play hard to get for a while and say they are studying the judgment before they respond in any way.”
The case started in 2019 when activists represented by the Centre for Environmental Rights (CER) approached the Pretoria high court to compel the government to stop the high pollution levels in the HPA. It was formally declared a pollution hotspot in 2007 in terms of the National Air Quality Act.
In her judgment, Collis found the HPA region was in breach of residents’ constitutional right to an environment that is not harmful to their health and wellbeing.
There is a need for enhanced monitoring of atmospheric emissions in the HPA to ensure the collection of verified, reliable data, she said, adding that real-time emissions data must be made publicly available.
Adequate financial support, resources and staffing capacity must also be made available to address the pollution issue, said the judge, ordering that costs of the application be paid by the government.
The applicants were environmental justice organisations groundWork and the Vukani Environmental Justice Movement in Action, represented by the CER.
To support the case, CER lawyers referred to a 2017 research study, commissioned by groundWork, which estimates that 2,239 human deaths a year could be attributable to coal-related air pollution in SA, as well as more than 9,500 cases of bronchitis among children aged between six and 12.
Melita Steele, climate and energy campaign manager for Greenpeace Africa, said satellite data is able to confirm that Eskom’s coal production in Mpumalanga means millions of people living in Johannesburg and Pretoria are also affected by coal pollution.
Research by groundWork shows that 82% of the pollution in the area is caused by power generation, followed by petrochemical plants contributing 12%. It was also found that the job of monitoring air quality in the area was given to the South African Weather Service in 2013, but that its five monitoring stations across the HPA were not adequate to “represent air quality in the HPA as a whole, especially given the multiple sources of significant polluting emissions, including Eskom’s coal-fired power stations, the SasolSecunda complex, numerous coal mines, and metallurgical plants”.
Vukani activist Promise Mabilo said the judgment is “not only a victory for the applicants and affected communities living in the Highveld Priority Area, but also for the affected communities fighting for their right to clean air in SA’s other priority areas the Vaal and the Waterberg”.
Director at groundWork Bobby Peek said the judgment has important implications for Eskom and Sasol, as well as for national and local government capacity for air-quality management particularly compliance monitoring and enforcement.
“The judgment is of enormous significance because it recognises that the right to healthy air is one that is realisable here and now and not gradually over time. And it means that the measures taken by the government to address the dangerous levels of air pollution on the highveld are not adequate to protect the rights of communities affected by this pollution every day,” he said.
CER attorney Tim Lloyd said the judgment “is not only a vindication of the constitutional environmental rights of the organisational applicants but, importantly, also recognises the incredible determination and bravery of the individuals who provided testimony about the dire affect that air pollution has, not only on their daily lives but also on their young children.”