CAPE TOWN. Two groups of environmental rights organisations have given notice of their intention to seek consent to be admitted as friends of the court (amici curiae) in court proceedings launched in May 2014 by Sasol and the National Petroleum Refiners of SA Ltd (Natref) against the government.
Sasol and Natref’s application aims to set aside the majority of South Africa’s air pollution regulations for big industry. These regulations are aimed at curbing emissions of dangerous pollutants which have serious negative health and environmental impacts.
The groups of organisations are:
- Earthlife Africa, Greenpeace Africa and Federation for a Sustainable Environment, represented by the Centre for Environmental Rights; and
- groundWork, South Durban Community Environmental Alliance, Table View Residents Association, CapTrust and Habitat Council, represented by the Legal Resources Centre.
All the organisations involved in this intervention are of the view that if the application is successful it will significantly set back the implementation of South Africa’s National Environmental Management: Air Quality Act, 2004 and efforts to improve air quality in South Africa.
“We regard this action by Sasol and Natref as nothing short of a complete onslaught on South Africa’s hard-won air quality legislation, and a blatant attempt to undermine the Constitutional right of every South African to an environment not harmful to health and wellbeing,” says Bobby Peek, director of environmental justice NGO groundWork.
Background to the minimum emissions standards, and the litigation
On 21 May 2014, Sasol Synfuels (Pty) Ltd, Natref and Sasol Chemiese Nywerhede Beperk (of which Sasol Infrachem is the relevant operating division), instituted legal proceedings against the Minister of Environmental Affairs and the National Air Quality Officer.
In these proceedings, Sasol and Natref are asking the High Court to set aside a number of Minimum Emission Standards for 8 sub-categories of activities in the National Environmental Management: Air Quality Act’s “List of Activities” published by the Minister, despite having also applied to postpone compliance with the Standards. The List of Activities applies to Sasol and Natref’s operations (and the operations of several other polluting industries) and establishes minimum standards for air pollution emissions which the Minister believes have or may have a significant detrimental effect on the environment, including health, social conditions, economic conditions, ecological conditions and cultural heritage.
The List of Activities eventually published by the Minister was the end result of a lengthy multi‑stakeholder process convened to determine appropriate minimum emission standards for a broad range of industrial activities which have a significant detrimental health and environmental effect. Sasol and Natref played an integral role in these extended consultation and participation processes, alongside many other industries and civil society organisations.
Despite their participation in this standard-setting process, Sasol and Natref submitted applications for exemption and postponement from compliance with the same emission standards on 15 April 2014. All industries which applied for authorisation or were authorised before 1 April 2010 are required to comply with so-called “existing plant standards” by April 2015, and with stricter “new plant” standards by April 2020. The List of Activities makes provision for postponement of compliance with the emission standards. Given that these are minimum standards, no exemption is legally permissible. As a result, Sasol has subsequently been compelled to replace its exemption applications with applications for postponement of the standards.
Sasol, Natref and Eskom’s applications for postponement and exemption from compliance with the minimum emission standards have been opposed by civil society and community organisations, and the outcome of these applications is awaited. Several of these civil society organisations participated in the multi-year multi-stakeholder negotiations that preceded the setting of emissions standards.
“The final published standards were clearly a compromise falling short of what is actually achievable using best available technology. As a result, South Africa’s minimum emission standards are already more lenient than those required of big industry in other parts of the world, including other countries in which Sasol operates,” says Samson Mokoena, coordinator of the Vaal Environmental Justice Alliance.
“Despite being actively involved in setting the emission standards, and knowing about them for several years, Sasol and Natref have failed to take the necessary steps to enable compliance with the standards. In its public statements and annual reports, Sasol claims to be committed to sustainable development. This litigation makes it clear that these public statements are simply greenwash, designed only to provide false comfort to shareholders who take these claims at face value,” says Tracey Davies, attorney at the Centre for Environmental Rights.
“Rather than setting an example by genuinely committing to reducing its environmental impacts, Sasol and Natref are instead leading the vanguard of big industry determined to profit at the expense of our health, our environment, and the quality of life of future generations,” says Dr Koos Pretorius of the Federation for a Sustainable Environment.
“Compliance with the law should not be optional, and it is completely outrageous that mega-polluters like Sasol and Natref are wasting time and money by challenging air quality legislation, which has been set to protect people’s health. Pollution is a huge problem in this country, and people’s lives are at risk – compliance by mega-polluters is the only socially and environmentally just option,” says Melita Steele, Senior Climate and Energy Campaign Manager for Greenpeace Africa.
Sasol’s recent financial results
Sasol’s headline earnings per share were up 14% to a record R60.16 in the year ended June 2014. During that year, the energy group’s operating profit increased by 7% to R41.7bn.
Sasol’s emissions, and contributions to South Africa’s total emissions
- As reported in Sasol’s 2013 Sustainable Development Report, from 1July 2012 to 30June 2013 the company emitted:
- 158,400 tonnes of nitrogen oxides, or NOx (433.9 tonnes per day and 18 tonnes per hour);
- 214,600 tonnes of sulphur oxides, or SOx (587,9 tonnes per day and 24.4 tonnes per hour);
- 11,710 tonnes of particulates (fly ash) (32 tonnes per day and 1.3 tonnes per hour); and
- 47,500 tonnes of volatile organic compounds, or VOC (130 tonnes per day and 5.4 tonnes per hour).
- These pollutants cause severe damage to health, as described in the Air Quality Guidelines issued by the World Health Organisation (WHO). NO2, (which falls under the bracket of NOx), is said to be “a toxic gas with significant health effects”. A recent review of the WHO Guidelines (WHO 2013 Review) cites studies suggesting associations between long-term exposure to NO2 and respiratory and cardiovascular mortality, and also with children’s lung function.
- Exposure to SO2 (which falls under the bracket of SOx) for periods as short as ten minutes can lead to changes in pulmonary function and respiratory symptoms and the WHO Guidelines also noted “significant associations between SO2 and mortality”.
- In relation to particulate matter, major findings considered in the WHO 2013 Review include further support for the effects of exposure to particulate matter and mortality and morbidity, studies linking exposure to particulate matter to adverse birth outcomes and childhood respiratory disease and emerging evidence suggesting links between exposure to particulate matter and neurodevelopment, cognitive function and chronic diseases.
- A key VOC emitted by Sasol is benzene. The WHO states that exposure to benzene is a major public health concern. In support of this, it has noted that it is a “well-established cause of cancer in humans” and benzene has been officially classified by the International Agency for Research on Cancer as carcinogenic to humans.
- Sasol’s total global GHG emissions for the 2012-2013 period amounted to 70,7 million tonnes.
- Sasol also operates the world’s largest single point emission source.
- Copies of the court papers can be downloaded here: http://cer.org.za/programmes/pollution-climate-change/legal-proceedings
- Copies of Sasol’s applications can be downloaded here: http://cer.org.za/programmes/pollution-climate-change/legal-proceedings
- Eskom’s applications were opposed by the Centre for Environmental Rights on behalf of groundWork, Earthlife Africa Johannesburg (ELA), the Vaal Environmental Justice Alliance, and 10 other community groups. Sasol and Natref’s applications were opposed by the Legal Resources Centre on behalf of the South Durban Community Environmental Alliance, the Vaal Environmental Justice Alliance and the Greater Middleburg Residents Association. Eskom, Sasol and Natref’s MES applications and objections thereto are available at: http://cer.org.za/programmes/pollution-climate-change/legal-proceedings
- http://www.sasol.co.za/sites/default/files/content/files/13269_Sasol%20SD%20HR-1.pdf at p44 and p60.
- These figures relate to Sasol’s global operations.
- At p16.
- http://www.euro.who.int/__data/assets/pdf_file/0004/193108/REVIHAAP-Final-technical-report-final-version.pdf at p73.
- http://whqlibdoc.who.int/hq/2006/WHO_SDE_PHE_OEH_06.02_eng.pdf?ua=1 at p18.
- At p6.
- ‘Exposure to Benzene: A Major Public Health Concern’, by the World Health Organisation, at p2, available at: http://www.who.int/ipcs/features/benzene.pdf
- Sasol’s Sustainable Development Report 2013 at p21 and p58.