UN Special Rapporteur’s report is an indictment of government’s regulation of toxic air pollution
The recent report by UN Special Rapporteur on toxics and human rights, Marcos Orellana, following his 2023 visit to South Africa, is an indictment on the country’s management of hazardous substances and wastes, including toxic air pollution.
The Special Rapporteur is mandated to examine the human rights implications of toxic and other hazardous substances, and report on these to UN member states. The objective of Orellana’s South African visit was to “identify good practices and assess the country’s efforts to prevent and address the negative impacts of toxic substances on human rights”.
Orellana’s report highlights that:
South Africa is a country with enormous potential. Its people and environment are two of the country’s most valuable assets and must be protected from the detrimental impacts of toxic pollution fuelled by corporate greed and government inaction.
Environmental racism: air pollution
As the report states, “Black communities and other marginalized groups bear the brunt of the negative socioeconomic, health and environmental impacts of polluting industries and the Government’s shortcomings in the provision of basic services”. One of the many stark examples of this is in Mpumalanga, where “low-income and Black communities disproportionately carry the burden of disease caused by toxic air pollution”.
Orellana points out that South Africa’s national air quality standards are less protective than the World Health Organisation (WHO)’s guidelines, and that “real-time data on air pollution is lacking and monitoring equipment is often non-functional, due to inadequate maintenance”. This is accompanied by “a widespread lack of enforcement, owing to limited financial and human resources and the low priority given to environmental offences”.
Powerful corporate actors
These issues are exacerbated, in the air pollution context, by ongoing leniency being afforded to polluters in relation to air pollution standards – the minimum emission standards (MES). The report refers specifically to “postponements, suspensions and/or alternative limits of the (MES)” granted to Eskom and Sasol since 2015. Eskom and Sasol are the continent’s biggest contributors to toxic air pollution and biggest emitters of greenhouse gases.
In their successful efforts to delay and evade compliance with the MES (which govern industrial air pollution), both Eskom and Sasol have relied on claims that include that there will be dire socio-economic consequences should they be required to comply. This notwithstanding the fact that:
- although these standards are intended to protect human health, South Africa’s MES are weaker than those of developing countries; and
- the MES were first set in 2010, and both companies had already received permission to delay compliance with stricter standards until April 2025.
The focus on the so-called “delicate balancing act” to be struck between protecting human health and a myriad of other considerations (like economic development, energy security and jobs) is particularly familiar in the air pollution context. Despite the fact that industrial air pollution results in deaths and severe impacts on health and well-being, supposed “economic considerations” are invariably given more weight by government than protecting the constitutional rights of people who are most negatively impacted by South Africa’s heavy reliance on fossil fuels, and who remain desperately underserved by the current systems.
As the Special Rapporteur puts it:
Further weakening enforcement, postponements of or exemptions from compliance have been extended to powerful corporate actors under the guise of economic development, job creation or security.
The draft Integrated Resource Plan for electricity (IRP), for example, focuses on the risks of interruptions to electricity supply should Eskom be required to meet legislated MES and downplays the devastating health impacts of air pollution from non-compliant coal plants.
In her recent MES appeal decision, former Environment Minister Creecy granted “once-off suspensions” of MES compliance to five Eskom coal stations to be decommissioned by 2030 – meaning that these plants will never have to comply with various so-called “new plant” MES. For other coal stations, the Minister invited Eskom to apply for exemptions from MES compliance in terms of the Air Quality Act (this despite the fact that it has previously been made clear that no such exemptions from these bare minimum standards would be available, except for those stations granted once-off suspensions ahead of their decommissioning by 31 March 2030).
In justifying her decision, Minister Creecy indicated that she was required to “balance” “competing interests” such as: “the impact of non-compliance with the MES on health; ambient air quality standards; the energy crisis facing South Africa; the cost of retrofitting plants, socio-economic considerations and commitments to reducing GHG emissions”.
Similarly, in granting Sasol’s appeal for further MES leniency at its Secunda operations, Minister Creecy referred to the need to “balance” socio-economic, ecological and health impacts, commenting that SA is “plagued by high unemployment and poverty rates” and that “it is not in dispute that (Sasol) provides strategic contributions to the economy”.
Creecy did not explain why requiring Sasol to comply with very weak standards of which it has had more than 14 years’ notice – and which it has previously indicated were achievable – would impact Sasol’s ability to “(support) the local economy”.
The Special Rapporteur’s recommendations include the prohibition of “rolling postponements or exemptions of compliance” with the MES.
Way forward
It remains to be seen how, or if, the South African government will respond to the Special Rapporteur’s recommendations, including the offer of “technical support” to “(overcome) the legacy of environmental racism”.
What is certain is that without a significant change in approach from government, fossil fuel companies like Sasol will continue to get away with avoiding compliance with the law.
If South Africa is ever to achieve a just transition (now defined in legislation for the first time), there needs to be far greater interrogation of anti-climate corporate lobbying and the other false narratives around fossil fuels – including how claimed socio-economic consequences of legal compliance inevitably outweigh real, “on-the-ground” violations of human rights.
IMAGE: Leon Sadiki, Getty Images
