Deadly Air: A case in defence of the Right to Breathe Clean Air!

by Dimakatso Sefatsa and Khumo Lesele

High Court citation: Trustees for the Time Being of Groundwork Trust & Another vs Minister of Environmental Affairs & Others Case No. 39724/19

In a recent decision, a South African High Court was called on to consider the lives of real people who have been affected by the unsafe level of ambient air pollution that has plagued the Mpumalanga Highveld area for decades, in the north-eastern part of the country. About 4.5 million people live in this area, and the High Court application sought to highlight the breach of their constitutional right to an environment that is not harmful to their health and well-being, along with the government’s failure to enforce its own plan to remedy this public health hazard.

The Mpumalanga Highveld has been identified as one of the worst places in the world due to the high levels of air pollution. In 2007, the government declared it a ‘Highveld Priority Area’ (HPA) in terms of the National Environmental Management: Air Quality Act 39 of 2004 (NAQA). This declaration meant that government was required to intervene as “there is little doubt that people living and working in these areas do not enjoy air quality that is not harmful to their health and well-being”. The high and dangerous level of ambient air pollution, which constantly exceeds the health-based air quality standards set by government, is largely caused by the concentration of largescale coal-fired power plants and coal mines, a coal-to-liquids plant, and a petroleum refinery, among other industrial emitters, situated in and around the HPA.

Dr. Andrew Gray, an expert in air pollution control and evaluation, with over 35 years of research experience, conducted an air pollution dispersion model and health risk assessment in 2019, for the Centre for Environmental Rights (CER) – lawyers acting for the applicants. This assessment specifically looks at ambient PM2.5 pollution from 14 industrial facilities that have immensely contributed to the air pollution in and around the HPA. This pollution caused between 305 and 650 early deaths in the area in 2016. Furthermore, the assessment indicates that cumulative emissions from the 14 facilities created acute exposures in 2016 that exceeded the World Health Organization’s guidelines for daily or hourly averages for all criteria pollutants. Dr. Gray found that given the “hundreds of other sources of air pollution in and around the HPA, particularly PM and NO2, these 14 facilities contribute alarmingly high – and relatively easy reducible – percentages of national limits.”

Image credit: Daylin Paul for the CER

Following the priority area declaration, government belatedly published an Air Quality Management Plan – the ‘Highveld Plan’, which set out the mechanisms and timeframes to control and reduce the various sources of air pollution in the Highveld, including large-scale industrial emitters. Government’s overarching goal was to bring the area into compliance with health-based air quality standards by 2020. In terms of the plan, the 14 facilities mentioned above, were required to comply with the minimum emission standards, among other air quality management tools, which came into effect in 2015.  Such compliance would “reduce early deaths by 60%”, and also prevent “between 182 and 388 early deaths in and around the Mpumalanga HPA every year”.

Despite the priority area status and the Highveld Plan developed to address the unsafe levels of air pollution, government failed to reduce the ambient air pollution in accordance with its own plan and stipulated timeframes. This was largely a result of government’s initial refusal and then unreasonable delay to develop and prescribe implementation regulations to enforce the Highveld Plan, as provided for in the NAQA.

After many years of advocacy aimed at implementing the Highveld Plan, and left with no alternative, the CER, on behalf of two environmental justice organisations, groundWork and Vukani Environmental Movement (‘the applicants’), launched this constitutional challenge in June 2019 in the Pretoria High Court. Coined the Deadly Air case, the applicants argued that the toxic ambient air pollution results in the breach of residents’ right to an environment that is not harmful to their health and well-being, as enshrined in section 24(a) of the Constitution, with disproportionate impacts on women, children, and the elderly. The applicants also claim that the Minister of Forestry, Fisheries and the Environment has a legal duty to prescribe regulations under section 20 of the National Air Quality Act, 2004, to implement and enforce the Highveld Plan and that the Minister’s failure and/or refusal to do so is unconstitutional, unlawful and invalid. The government respondents, led by the Minister of the Department of Forestry, Fisheries and the Environment, denied that government is failing in its obligations to address the air pollution in the Mpumalanga Highveld. In their opposition, the government respondents argued that the applicants are not entitled to rely directly on section 24(a) of the Constitution, and that the rights in section 24 are subject to progressive realisation and the principle of sustainable development.

The Deadly Air case was heard in the Pretoria Gauteng High Court on 17 – 18 May 2021. During the course of the hearing, submissions were also advanced on behalf of the United Nations Special Rapporteur on Human Rights and the Environment, Professor David Boyd, as amicus curiae. Professor Boyd was represented by the public interest law organisation, Lawyers for Human Rights. Following oral submissions by the respective parties, judgment was reserved.

The applicants welcomed the long anticipated High Court decision in their favour, handed down by the Pretoria High Court on 18 March 2022. This is a landmark decision considering that this is the first time that the South African government has been declared in breach of a constitutional right due to the health impacts of air pollution.  Notable outcomes from the judgment include the following:

  1. A judicial declaration that the poor air quality in the Highveld Priority Area is in breach of residents’ section 24(a) constitutional right to an environment that is not harmful to their health and well-being.
  2. The High Court found that it is so that not all air pollution violates the right to a healthy environment. However, if air quality fails to meet the National Ambient Air Quality Standards (“National Standards”), it is a prima facie violation of the right. When the 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 is being threatened and infringed upon.
  3. The High Court concluded that there can be no doubt that unsafe levels of ambient air pollution directly threaten constitutional rights and recognised that the impacts extend beyond the section 24 environmental rights.
  4. The High Court concluded that – in the present matter – the right in section 24(a) is immediately realisable, and that on the evidence presented, the levels of air pollution in the HPA is not consistent with the section 24(a) right to an environment that is not harmful to health or wellbeing.
  5. Regarding the relationship between the National Air Quality Standards (“NAAQS”) and section 24(a), the High Court also found that it is unsustainable for the Minister to claim that the National Standards have no legal significance for this case. They reflect the government’s own assessment of the content of section 24(a) of the Constitution and there must be accountability for failures to achieve these standards.
  6. The High Court determined that the Minister by her own concession has to date failed to promulgate regulations proposed by her own Department as a regulatory measure that will save lives. Consequently, the applicants established an omission on the part of the Minister to promulgate regulations timeously.
  7. The High Court was emphatic that this case calls out for an appropriate declaration of rights and obligations. The Minister’s repeated denials of any breach of section 24(a) of the Constitution and any corresponding duty to establish implementation regulations calls out for appropriate correction. The declaratory orders would provide the Minister and her successors with necessary guidance on their legal obligations going forward.
Image by Daylin Paul for the CER

Importantly, this was also the first time that the office of the UN Special Rapporteur on Human Rights & Environment has intervened in a court application in South Africa. In the interests of justice, the High Court decided to consider the evidence and legal submissions on behalf of the Special Rapporteur, as these submissions were relevant to the main application, and given the public importance of this matter.

Judgment in favour of the applicants was not only unprecedented but timely in that it was handed-down 3-days before commemoration of Human Rights Day in South Africa on 21 March 2022. 18 March 2022 was indeed a memorable day not only for the recognition of section 24(a) of the South African constitution as a basic human right that is capable of immediate realisation here and now, but also the value that its protection holds for other interdependent rights such as life, dignity, and the best interests of children.

The operation and enforcement of this High Court decision is subject to an application for leave to appeal by the Minister of Forestry, Fisheries and the Environment, in terms of the Uniform Rules of Court; in the meantime, however, the vindicated applicants, and their constituencies residing in pollution-affected communities, look ahead to the implementation of the extensive order as handed down, in accordance with the findings in the judgment.

The court papers and judgment are available here.

Featured image: Daylin Paul for the Centre for Environmental Rights