Just Share has submitted comments on the latest amendments proposed to the List of Activities and associated minimum emission standards (MES), calling for the Department of Forestry, Fisheries and the Environment (DFFE) to reinforce the purpose of this legislation: to protect human health.
First published under the National Environmental Management: Air Quality Act, 2004 (AQA), on 31 March 2010, the List of Activities and MES aim to limit toxic emissions from “activities which result in atmospheric emissions which have or may have a significant detrimental effect on the environment, including health, social conditions, economic conditions, ecological conditions or cultural heritage”. It is intended to prescribe the minimum set of acceptable air pollution standards for some of the toxic emissions from different kinds of polluting activities. For instance, for coal-fired boilers (which include all of Eskom’s coal plants, and Sasol’s 17 coal boilers at its Secunda Operations), the List of Activities sets MES for oxides of nitrogen, sulphur dioxide and particulate matter. Many other toxic pollutants are emitted from coal boilers but MES are only prescribed for these three.
The latest proposed amendments state that they aim to “address regulatory shortfalls identified in the implementation” of the List of Activities. This includes “strengthening the pollution prevention and minimizing the emissions from the listed activities …” and “providing clarity for improvement of interpretation”.
This is crucial. However, the proposed amendments include the introduction of new categories of activities with weaker MES than comparable categories. This undermines the entire legislative scheme and specifically the purpose of the List of Activities. Instead, DFFE should take urgent action to strengthen MES, especially in so-called priority areas, where air pollution is dangerously high.
Since its inception (and despite extensive industry participation, over many years, in setting the MES), the List of Activities and associated MES have been significantly weakened. Just Share also argues that aspects of the legislation have been incorrectly interpreted for the benefit of industry, and notwithstanding resultant severe impacts on human health.
For instance, the Minister of Forestry, Fisheries and the Environment decided, after granting multiple MES postponements to Eskom, to allow eight coal plants to be MES-exempt. This decision is highly questionable legally – it has previously always been clear that no exemptions were permitted from these minimum standards – only postponements (and later, “suspension of compliance, for facilities to be decommissioned by 31 March 2030”).
The Minister also granted Sasol’s coal boilers an “alternative (i.e. weaker) emission limit” for sulphur dioxide until 31 March 2030, despite the deadline for full MES compliance being 1 April 2025 and despite the fact that these coal boilers will not be decommissioned by 2030. Although these sulphur dioxide MES are significantly weaker even than in other developing countries, Sasol has made clear that it anticipates seeking the further extension of this “alternative limit” beyond 31 March 2030.
Despite extensive leniency provided to industry – including wide-ranging postponements of and exemptions from MES compliance to Sasol and Eskom, the continent’s biggest emitters of toxic pollutants – Sasol has also recently instituted litigation in which it seeks an order that it is not required to comply with the emission reduction targets in the Regulations for Implementing and Enforcing Air Quality Management Plans, 2024, or the Second-Generation Highveld Priority Area Air Quality Management Plan (HPA AQMP).
Sasol has launched this litigation despite an April 2025 judgment from the Supreme Court of Appeal (SCA) that the Minister has a legal duty to prescribe regulations to implement and enforce the HPA AQMP. It held that the “very fact that high levels of pollution continue unabated in the HPA despite the dangers they pose to the community, including children, 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”.
It also pointed out that the “main cause of the challenges related to the implementation of the Highveld Plan was the negative attitudes from major polluters who did not consider the (AQMPs) as binding legal documents, and that stakeholders could not be held accountable as no punitive measures could be applied”.
These regulations make it an offence, punishable by a R5 million fine and/or five years’ imprisonment, to fail to submit or implement an emission reduction and management plan, as required.
Unless DFFE revises the proposed amendments to the List of Activities to protect constitutional rights, industry’s calculation that it would never be held accountable for MES non-compliance will prove to be correct.
Download Just Share’s comments on the proposed amendments to the List of Activities
