MELISSA FOURIE: Air pollution judgment rings the death knell for coal

The recent “Deadly Air” court judgment in the Pretoria high court may just be the straw that finally breaks the coal camel’s back. The court held that the ongoing exceedance of SA’s already weak ambient air quality standards on the Mpumalanga Highveld is a violation of the constitutional right to an environment that is not harmful to people’s health and wellbeing.

It was determined by the high court that national ambient air quality standards do have legal significance as they reflect the government’s own assessment of the content of section 24(a) of the constitution, and there must be accountability for failures to achieve these standards. Moreover, the judgment held that as far as this matter is concerned, the right to an environment that doesn’t harm your health or wellbeing is immediately realisable (must be achieved here and now), and not “progressively” realised, as the state has argued — a target that always seems to move further into the future. 

With these three findings the problem is now starkly outlined in a judgment of the high court: SA is dependent on a fleet of coal power stations that cannot meet even the weak minimum emission standards published in 2010 and that came into effect for existing coal plants in 2015. According to the state’s own reports, air pollution, mainly from these power stations, is causing as many as 10,000 premature deaths each year. 

While this might sound like a problem only on the desk of environment minister Barbara Creecy, this is not so. Creecy is constitutionally bound to enforce the law and comply with the court judgment. The real problem — and sustainable solutions — lie in the hands of the ministers of public enterprises, mineral resources & energy, finance and health.

The question before public enterprises minister Pravin Gordhan and Eskom senior management, is how to reduce Eskom’s polluting emissions (SO2, NOx and particulate matter) to ensure ambient air quality standards are met. If Eskom cannot afford the cost of pollution abatement despite knowing for decades that regulation of their emissions was coming, its only solution is to reduce the utilisation or accelerate the retirement of particularly the worst polluting coal plants.

Regardless of this judgment, several old coal-fired power stations have, and will, reach their end of lives by 2026. This they must do without further jeopardising electricity supply and continuity. To achieve that they need mineral resources & energy minister Gwede Mantashe to act: first by rapidly accelerating the procurement of electricity from renewables. Rand Merchant Bank CEO James Formby recently called on government to “supersize” the amount of power it buys from independent power producers (IPPs) in the upcoming bid window for SA’s renewable energy programme.

Noting that banks “had a huge pipeline of deals”, Formby said IPPs could easily supply another 10GW into the national grid. With a procurement-to-generation period of less than three years, this could radically reduce SA’s reliance on coal power — and thereby improve air quality. 

While that may sound transformative, environmental and social justice groups and labour unions have long argued that power generation should not only be privately owned. It is critical that Eskom itself, through regulatory adjustments and financing, be enabled to build publicly owned renewable energy and thereby secure a vested interest in the green economy.

In addition, priority must be given to enabling municipalities and communities to own embedded (decentralised) generation to ensure not only access to affordable, reliable electricity, but that ordinary people share in SA’s bountiful renewable energy resources. This will not yet be enough, but it will support the restorative justice aspect of the Just Transition. 

Another application of restorative justice was pointed out at the Presidential Climate Commission’s public meeting in South Durban recently. Rajen Naidoo, a professor from the University of KwaZulu-Natal, cited the damning findings of research into the health impacts of pollution in that area, and described how air pollution perpetuates the cycle of poverty of those affected. In many of our industrial heartlands air pollution is so damaging to people’s health that it constitutes an egregious human rights violation, and justice must be restored. In Prof Naidoo’s words: how can the transition from fossil fuels be just without restoration? 

This raises another thorny issue, which is the virtual absence of the minister and department of health on all air pollution-related matters. The health minister is also not represented on the Presidential Climate Commission. Clearly, this must change promptly.  All of this will require leadership from the finance minister, National Treasury and presidential task team set up to develop the investment plan for the just energy transition partnership with the governments of the US, UK, France, Germany and the EU, announced in Glasgow last year (though the actual scope of this financial commitment to SA appears increasingly murky). It will also require public and private finance institutions to align and facilitate these outcomes. 

The one option that is no longer available, thanks to the perseverance of activists on the Highveld, is to do nothing. For too long we have callously sacrificed the health, lives and development prospects of people living on the Highveld and other pollution hotspots in the interest of our outdated reliance on fossil fuels. That era is now coming to an end.

• Fourie is executive director of the Centre for Environmental Rights.