“Minimum” emission standards minimised again: Sasol’s air pollution appeal succeeds

Sasol has once again been gifted leniency for its non-compliance with air pollution standards legislated to protect human health.

On 5 April 2024, Minister of Forestry, Fisheries and the Environment, Barbara Creecy, granted Sasol’s appeal against the July 2023 decision by her Department’s National Air Quality Officer (NAQO). The NAQO had refused Sasol’s application to measure its coal boilers’ SO₂ emissions using a “load-based” limit much weaker than the concentration-based limit prescribed in the legislation setting the minimum emission standards (MES) (“the List of Activities”).

The Minister states that her decision was informed by advice from the National Environmental Consultative and Advisory (NECA) Forum (initially constituted in August 2022 to provide her with “practical options to resolve the issues arising in respect of non-compliance with the (MES)”). However, the Minister has not made the NECA Forum’s advice public, nor was it provided to Just Share, which opposed Sasol’s appeal.

Although the Minister’s decision asserts that she takes air pollution health impacts seriously, she failed to engage with Just Share’s submissions that granting Sasol’s appeal would result in approximately 50-130% higher negative impacts on human health than MES compliance.

The MES aim to limit harmful air pollution by prescribing the bare minimum pollution standards for different types of toxic pollutants – including those from coal boilers. The Minister acknowledges that industry has had ample time to ensure that they can meet these standards: the MES were first published on 31 March 2010. They stipulate that one set of MES must be complied with by April 2015, and a stricter set by April 2020. The List of Activities also makes provision for MES compliance to be postponed if certain conditions are met.

Despite Eskom and Sasol’s active participation in the multi-year process to set these standards, both entities initially applied to be completely exempt from the MES. The then Minister rejected these illegal exemption applications, and Eskom and Sasol have applied instead for multiple consecutive postponements.

In May 2014, whilst its first MES postponement application was pending, Sasol brought a court application seeking to set aside most of the MES in their entirety. This application was opposed by the then NAQO, who called Sasol out for its “opportunistic” and “misleading” application. She also referenced its “apparently deliberate obfuscation of the whole concept of (MES)”.

When the NAQO thereafter granted Sasol’s pending application to postpone MES compliance, Sasol withdrew its court application – which implies that the litigation was instituted to pressure the NAQO into approving the postponements. Sasol’s recent claim, in its 2023 climate reports, that its ability to comply with its 2030 greenhouse gas emission reduction target is contingent on the success of this SO₂ appeal, seems cut from the same cloth.

Despite damning evidence of devastating health impacts from their air pollution, Eskom and Sasol secured “rolling postponements” of MES compliance. Activists and affected communities were therefore enormously relieved, when, in 2018, the List of Activities was amended to clarify that only one postponement of 2020 MES – for a maximum of five years – is permitted. Unless a facility had been granted a “once-off suspension of compliance” and would be decommissioned by 31 March 2030, it must comply with the 2020 MES before 1 April 2025.

But Sasol and Eskom have both sought further indulgences by relying on paragraph 12A of the legislation to seek “alternative” emission limits or loads, arguing that this is a stand-alone provision that allows them to ignore the deadline to meet the MES. The Minister’s 5 April appeal decision now supports this interpretation.

Just Share and other NGOs argue that this reading renders the MES compliance deadline in the 2018 legislative amendments redundant.

In her rejection of Sasol’s application, the NAQO relied on the fact that only one postponement of compliance with the 2020 MES is permitted, and that Sasol had already been granted that indulgence. Her decision states that, “to consider any deviation from the MES, including by an alternative emission limit, after the March 2025 compliance deadline, would be contrary to the purpose of the (List of Activities) and the empowering legislation”. Precisely.

When Just Share sought clarity from the Minister on her interpretation of paragraph 12A in August 2023, she responded that the outcome of litigation instituted by the Centre for Environmental Rights, which seeks declaratory relief on the meaning of the provision, should be awaited. However, the Minister apparently based her paragraph 12A interpretation in the Sasol appeal decision on a legal opinion from Professor Halton Cheadle. Just Share was not provided with this legal opinion.

Just Share has also asked the Minister for the reports of the “SO expert panel” established in September 2019 to “provide strategic and technical guidance towards effective management of SO₂ emissions from old and existing plants”. Without awaiting the recommendations of this expert panel, her Department, in 2020, made the relevant SO₂ emissions doubly as weak as when they were first published in 2010. The result is that the SO₂ emission limits for coal boilers and coal-fired power stations are now approximately 10 times weaker than the equivalent standards in India and about 28 times weaker than the standards in China. In August 2023, Just Share sought reasons for any refusal to make these expert panel reports available.

The Minister neglected to respond to this request, and, to date, both prior and follow-up requests for these reports remain unanswered. The only plausible reason for the Minister refusing to make these reports public is that the SO₂ expert panel did not support her decision to make the SO₂ MES weaker, i.e., the Minister sought expert advice and then ignored it.

The Sasol appeal decision also makes it likely that the Minister intends to approve the multiple pending MES appeals brought by Eskom on which the NECA Forum has advised her.

In 2013, long after its own studies had revealed severe human health impacts from its air pollution, Eskom brazenly claimed that “power station emissions do not harm human health”. It seems inescapable that industry never intended to comply with the bulk of these pollution standards. Its calculation that it would never be held accountable for non-compliance also appears to have been correct.

Whatever her interpretation of paragraph 12A, the Minister’s claims to take public health seriously are clearly undermined by granting applications that will result in pollution far above minimum legal limits. This is especially acute in the case of SO₂, given the Department’s long history of buckling to industry pressure to weaken and delay these MES.

The Minister’s reference in her appeal decision to Sasol’s “strategic contributions to the country’s economy”, makes clear to the millions of people impacted by its toxic emissions that economic considerations trump their right to an environment not harmful to health or wellbeing.

Meanwhile, Sasol’s shareholders, in their own bubble, celebrate this “win”.

This article was first published in the Daily Maverick on 23 April 2024.

By: Robyn Hugo

IMAGE: Bloomberg / Contributor

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