On 21 May 2014, Sasol Synfuels (Pty) Ltd, National Petroleum Refiners of South Africa (Natref) and Sasol Chemiese Nywerhede Beperk, launched review proceedings, in the North Gauteng High Court, seeking to set aside various minimum emission standards contained in the Listed activities and associated minimum emission standards, identified in terms of section 21 of the National Environmental Management: Air Quality Act, 39 of 2004, GN 893, GG 37054 of 22 November 2013 (the “2013 Minimum Emission Standards”).

The Centre for Environmental Rights (“CER”), on behalf of affected communities has opposed this application.

Background

According to the Mail & Guardian Online article titled “Eskom spurns air quality controls”, published on 14 March 2014, South Africa committed, at the Copenhagen Climate Change Conference held in 2009, to lower emissions of carbon dioxide by 42% by 2025.

This commitment was passed into law in 2010 by the promulgation of the List of 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, 2010 (the “2010 Minimum Emission Standards”).

The 2010 Minimum Emission Standards were repealed by the 2013 Minimum Emission Standards on 22 November 2013, which provide for the following compliance time frames:

  • New plants must have complied with the standards by 01 April 2010.
    Note: Emitters became aware of this deadline as from 2005. The compliance timeframes provided for in the 2010 Minimum Emission Standards are the same as those listed in the 2013 Minimum emission standards;
  • Existing plants, by 01 April 2015; and
  • Existing plants wanting to establish a new plant, by 01 April 2020.

Postponement of time frames

The Minimum Emission Standards make provision for the postponement of compliance timeframes for existing plants. An application for such a postponement must include:

  • An air pollution impact assessment compiled by a person registered as a professional engineer or a professional natural scientist;
  • A detailed justification and reasons for the application;
  • A concluded public participation process, as specified in the National Environmental Management Act, 107 of 1998 Environmental Impact Assessment Regulations.

The National Air Quality Officer may grant a postponement of the compliance time frames for an existing plant for a period, not exceeding 5 years per postponement.

Such a postponement may also be withdrawn on good grounds, following representations from the affected plant and affected communities.

Eskom’s request

According to the Mail & Guardian article, Eskom has requested to be exempt from the Minimum Emission Standards for 16 of its plants, on the basis that most of them are old and will cease operation by 2020.

Eskom has also requested an exemption for its new megaplant, at Medupi, on the grounds that “it is not practically feasible or beneficial to South Africa, for Eskom, to fully comply with the Minimum Emission Standards.”

Eskom started the construction of Medupi in 2005 and in terms of the 2013 Minimum Emission Standards, the plant should have been compliant by 01 April 2010.

Eskom maintains that “Medupi could not be delayed because it was urgently needed to meet national electricity demand”, a demand that Eskom stated would reduce the health affects caused by the burning of wood and coal.

Eskom maintains that the cost implication of retrofitting the whole fleet would amount to R200 billion, increasing electricity prices by 10% for consumers.

Centre for Environmental Rights

The CER application, opposing Eskom’s submission, raises the following grounds:

  • “There are significant errors, inaccuracies and inconsistencies in Eskom’s modeling and other documents;
  • Eskom has widely over-estimated the costs of compliance with the Minimum Emission Standards;
  • Eskom does not meet the requirements for a postponement as set out in National Environmental Management: Air Quality Act, 39 of 2004 (“NEM:AQA”), the 2012 National Framework for Air Quality Management in the Republic of South Africa, and the Regulations prescribing the format of the Atmospheric Impact Report, GN 747, GG 36904 of 11 October 2013;
  • Granting the applications will permit increased pollution in declared Priority Areas, which is contrary to the aim of the declaration of such areas;
  • Granting the applications would have a significant detrimental impact on human health, and violate section 24 of the Constitution of the Republic of South Africa, 1996, NEM:AQA, and other air quality management laws and policies of South Africa;
  • Granting the applications means that the public will continue to bear the brunt of Eskom’s poor planning and non-compliance with the law, with health impacts worsening instead of improving. Eskom considers the installation of emission abatement processes to be too costly, but the future effects on health, the environment and water resources as a result of coal fired power stations and coal mining may be extremely costly for the country as a whole;
  • There is no legal basis for Eskom’s offset proposal, nor sufficient information to evaluate it; and
  • As a result of the above, a decision made by the National Air Quality Officer to grant the applications for postponement would be reviewable under the Promotion of Administrative Justice Act, 3 of 2000”.

The Department of Environmental Affairs has reiterated that any application by Eskom will be taken on a case-by-case basis. It would have to guarantee the “constitutional rights of South Africans to an environment that is not harmful to health and wellbeing”, while “ensuring that economic growth is not hampered”.

It is this balance that will need to be achieved to ensure a sustainable future for all South Africans.

It appears that, while South Africa has environmental legislation that aims to achieve and ensure such a balance, it is the enforcement thereof that remains the major challenge.