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New legal challenges to Eskom’s ongoing air pollution

16 February 2022 at 2:34 pm

Photo: Daylin Paul
Photo: Daylin Paul

The Life After Coal campaign has submitted an appeal to the Minister of Forestry, Fisheries and the Environment challenging decisions to grant further leniency to Eskom for its failure to meet air pollution standards.

In October 2021, the National Air Quality Officer (NAQO) in the Department of Forestry, Fisheries and the Environment issued a series of decisions on Eskom’s applications for further postponements from compliance with air pollution standards, or in some cases “alternative” weaker limits in their licences. The Life After Coal campaign welcomes those decisions where the NAQO refused to grant Eskom more lenient standards for a number of its facilities.

However, a number of decisions in relation to Majuba, Kendal, Tutuka, Camden, Hendrina, Arnot, Komati, Grootvlei, and Kriel coal power stations continue to pose unacceptable hazards to people’s health. The appeal filed on 9 February 2022 relates to these stations.

The appeal was submitted by the Centre for Environmental Rights on behalf of environmental justice groups Earthlife Africa and groundWork.

Tutuka, Majuba, and Kendal coal power stations were granted more time to only comply with the legislated stricter emission limits in five years (by 2025), instead of from 2020 as prescribed by law. Life After Coal points out that Eskom has been aware of these pollution laws set under the National Environmental Management: Air Quality Act, 2004 for over a decade, and yet has delayed taking steps to comply with the Minimum Emissions Standards. Eskom has also provided no reasonable explanation as to why it waited a decade to begin, and/or adequately progress and plan for the abatement equipment installations which would ensure compliance with the mandatory emission standards.

“These stations are situated in South Africa’s air quality priority areas. In the Mpumalanga Highveld, the South African Air Quality Information System’s air quality monitoring data shows that air quality remains non-compliant with national ambient air quality standards, despite it being declared a priority area more than 14 years ago,” stresses Tim Lloyd, Centre for Environmental Rights attorney. “Allowing Eskom to continue to emit at levels which undermine these standards sanctions an untenable position imposing ongoing risks to people’s health.”

“Air pollution in South Africa causes chronic illness and death to vulnerable communities,” says Earthlife Africa’s Thabo Sibeko. “These are people who lack the financial means to move away from power stations; very often depend on stations for jobs; cannot afford adequate health services to mitigate the impacts of air pollution; face knock on negative socio-economic and psychological impacts like reduced schooling days for asthmatic children, reduced study and job prospects, and anxiety and depression caused by dealing with such impacts,” says Sibeko.

The law makes it clear that emitters cannot be let off the hook-on stricter emission standards for coal-fired power stations (or any facilities) that are based in areas where there is already non compliance with health-based ambient air quality standards, such as in the Highveld Priority Area. This also perpetuates the daily breach to Constitutional rights experienced by people living in the Highveld and other priority areas with levels of deadly coal-related air pollution. The Department’s decisions to allow a further delay in compliance render redundant the already weak Minimum Emissions Standards.

Eskom’s oldest stations – Camden, Hendrina, Arnot, Komati, Grootvlei, and Kriel – have been granted suspensions for compliance with the stricter emission standards on condition that they are decommissioned by 2030. However, the NAQO could not have granted these suspensions without detailed decommissioning schedules plans from Eskom – Eskom was legally required to submit detailed decommissioning schedules plans for these plants, as part of its applications. The majority of these old facilities were due to be decommissioned already, or are reaching their end-of-life dates. The Life After Coal campaign has previously called for the decommissioning plans, but Eskom’s decommissioning plans are nowhere to be seen. “Life After Coal urges the Department and Eskom to make these decommissioning plans immediately available on their website for public consideration and comment,” says groundWork director Bobby Peek.

In 2019, groundWork and the Vukani Environmental Justice Movement in Action launched the Deadly Air case – a Constitutional challenge requesting the court to declare that the poor ambient air quality in the Highveld Priority Area is a violation of the Constitutional right to an environment not harmful to health or well-being, and to order the government to promulgate regulations to enforce the Highveld Air Quality Management Plan. The case was heard in the Pretoria High Court in 2021, and judgment is eagerly awaited by the Highveld activists.

All legal documents can be accessed here:

For more information, or to arrange an interview, please contact:  Alexis Scholtz-Wheeler, [email protected], +27 (0)827398687