‘Deadly air’: South African court gives polluters one year to clean up act

Despite pledges to clean up the air we breathe and measures to reduce polluting chemicals in the atmosphere, toxic air pollution still continues to affect many groups, especially in the developing world. A landmark court judgement in South Africa has struck a heavy blow against the polluters as well as sloppy government efforts to enforce legislation. Mushtak Parker reports.

The violations on meeting air quality standards established by national, provincial and local authorities, whether in Shepherd’s Bush in London, New Delhi in India or Witbank in Mpumalanga province in South Africa, have become so nauseatingly routine that residents feel they are fighting an endless, losing battle in their human right to breathe in clean air.  

Delhi and Mpumalanga are two of the most polluted places on earth fuelled by the ravages of climate change, wantonly high emissions from coal-fired power stations and petrochemical plants, policy inaction and lip service paid by governments to international standards. 

Air pollution – a problem without frontiers

Air pollution is a universal phenomenon. It is one health metric that does not discriminate in terms of GDP growth, quality of health systems, access to medicines, economic status, colour or class. But emerging countries, including in Sub-Saharan Africa, bear the brunt of the consequences due to lack of resources, policy lag and inertia, and the rush to develop and modernise almost at any cost. 

In April this year, the World Health Organisation (WHO), on the launch of its updated air quality database, warned that 99% of the world population in the year 2020 breathed air that exceeded WHO air quality pollution limits. Despite over 6,000 cities in 117 countries now monitoring air quality, the people living in them are still breathing unhealthy levels of fine particulate matter and nitrogen dioxide (NO2), with people in low- and middle- income countries suffering the highest exposures. 

The WHO estimates that about 7m deaths each year, including 750,000 children, are attributable to exposure to air pollution, which is a contributor to climate change and one of the biggest environmental threats to human health. This includes some 4m deaths from illness attributable to household air pollution, from inefficient cooking practices that use polluting stoves paired with solid fuels and kerosene.

Inhaling dirty air increases the risk of cardiovascular and respiratory diseases like pneumonia, asthma, chronic obstructive pulmonary disease and lung cancer, and increases the risk of severe Covid-19.

At last November’s Glasgow Climate Summit, John Kerry, US Special Climate Envoy, derided the $2.5trn that went into subsidising oil, gas and coal over the past six years. This at a time when the rich nations had failed to meet their $100bn goal of annual finance for poorer nations struggling to adapt to the climate crisis. “That’s a definition of insanity. We’re allowing to feed the very problem we’re here to try to cure. It doesn’t make sense,” he rued.

Activists fight back 

But people are fighting back. In recent times, three women activists have been taking on governments, the heavy polluters and even the casual climate deniers, all beholden to their narrow economic self-interest and the powerful fossil fuel lobbies. 

“After surviving a pandemic,” says Dr Maria Neira, WHO Director, Department of Environment, Climate Change and Health, “it is unacceptable to still have 7m preventable deaths and countless lost years of good health due to air pollution. 

“That’s what we’re saying when we look at the mountain of air pollution data, evidence, and solutions available. Yet too many investments are still being sunk into a polluted environment rather than in clean, healthy air.” 

In the UK there have been several citizen-led court cases against successive governments failing to meet WHO-recommended air quality standards. Despite litigation, the phasing out of leaded petrol and eventually diesel, and a transition to electric vehicles, local councils and governments have failed to impact air quality to the extent required. 

One turning came in December 2020, when Rosamund Adoo-Kissi-Debrah made history as a London coroner ruled that her nine-year-old daughter Ella’s death in 2013 was directly caused by air pollution. It was a world first to have air pollution listed as a cause of death.

It took Rosamund seven years to get it changed from ‘acute respiratory failure’; to ‘air pollution due to poor air quality’, thanks to a chance review of Ella’s case by Prof Sir Stephen Holgate, one of the UK’s leading experts on asthma and air pollution. He concluded that there was a direct link between her condition and levels of toxic gases and harmful airborne particles. 

Yet only in April this year, governing Conservative MPs voted against amending the Environment Bill to set the UK’s air quality targets in line with the strict WHO guidance by 2030. South Africa’s air quality standards for particulates and NO2, according to the latest WHO data, are on a par with those in the UK and way above those in Kenya. But they all fail to meet the updated recommended lower air quality guidelines of the WHO.

Perhaps the most telling blow for the polluters and their political masters came in March 2022 when Judge Colleen Jane Collis of the Gauteng High Court in Pretoria, South Africa upheld a “Deadly Air” class action complaint brought by climate justice activists, NGOs and human rights lawyers three years ago. They argued that poor air quality in the Mpumalanga Highveld coal belt is a breach of the constitutional rights of its four million residents. 

To add insult to injury on the Ramaphosa government’s ineffective clean air policy, she gave South Africa’s Minister of Environment, Forestry and Fisheries Barbara Creecy a year to clean up the government’s act by enforcing a Clean Air Highveld Plan drawn up a decade ago and ensuring the right to clean air. She declared that “the Minister has unreasonably delayed in preparing and initiating regulations to give effect to the Plan.”

World’s most toxic cluster

The biggest polluters in South Africa by far are Eskom, the debt-ridden electricity utility, and the state-owned petrochemical giant Sasol. The Mpumalanga Highveld region has 12 coal-fired power stations, which have gained a reputation as being the most toxic and polluting group in the world.

Eskom’s Emalahleni coal mine in Mpumalanga, one of 15 across the country, which supplies most of its coal feedstock, has contributed to making South Africa the 12th biggest CO2 and the largest SO2 emitter in the world.

Coal accounts for 80% of South Africa’s energy mix. The devastating court judgement and the UK/EU’s $8.94bn concessional funding pledged at COP26 in Glasgow to wean South Africa off its dependence on coal over the next five years, merely serve to highlight the moral ambiguities of clean air policies and politics.

In her 123-page judgement, Judge Collis ruled that “if air quality fails to meet the National Ambient Air Quality Standards, it is a prima facie violation of the right. When failure to meet air quality standards persists over a long period of time, there is a greater likelihood that the health, well-being and human rights of the people subjected to that air are being threatened and infringed upon.” 

Poor air quality, she added, “falls disproportionately on the shoulders of marginalised and vulnerable communities who bear the burden of disease caused by air pollution.”

The links between human rights, health, and environmental protection are well-established in international law, accepted by states in agreements but often selectively implemented in practice. 

Need for constant vigilance

That citizens are being forced to seek recourse with the help of activists through the courts, via costly complaints against governments and powerful utility and corporate interests, reinforces the need for constant vigilance and calling out. 

In April, the Special Rapporteur on Human Rights and Sustainable Environment, in a disturbing report to the UN Human Rights Council, describes “the ongoing toxification of people and the planet, which is causing environmental injustices and creating ‘sacrifice zones’, extremely contaminated areas where vulnerable and marginalised groups bear a disproportionate burden of the health, human rights and environmental consequences of exposure to pollution and hazardous substances.”

These, in reality, are areas where disadvantaged communities suffer extreme exposure to toxic chemicals, and where their rights are intentionally compromised – ostensibly for economic growth. To be able  to breathe God’s clean air is an inborn right for all people, as well as fauna and flora, and no amount of economic expediency or company profit should be allowed to infringe this.