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Air Pollution and Environmental Health,
the Role of Legislation
Bobby Peek
GroundWork
 

Programme

1. Introduction: Constitution commitments and conflict

It is popular practice in presentations such as these to depart from the position democratically adopted in the South African Constitution and Bill of Rights (Section 24), which states:

Everyone has the right to:

(a) to an environment that is not harmful to their health or well-being; and

(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that:

(i) prevent pollution and ecological degradation;

(ii) promote conservation; and

(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

Our constitution was developed for many reasons, however, considering the theme of this conference "Environmental Security in Africa", we have to consider that this environmental right has also been developed to prevent conflict between the citizens of South Africa, as well as between South Africa and our neighbours and South Africa and the other countries of the world.

The issue of global security and conflict resolution should be a continuous agenda item for all governments. However, as evidenced in the recent international Oilwatch Conference in Durban, it is clear that countries on the African continent and in other parts of the world have an alternate agenda that seeks to increase conflict and foster environmental insecurity through their actions. In Africa, the Sudan Government has been recently linked to using crude oil money to buy arms to further entrench the civil war in Sudan. Petronas, a Malaysian petrochemicals company (which owns Engen - South Africa) has also been implicated in gross human rights violations in Sudan through its oil exploration processes (Mail and Guardian, May 26, 2000 and Solma, 2000).

In South East Asia, the Burmese Military regime has been implicated with the multi-national oil company Total in murdering local Burmese citizens, forcing them into slave labour and raping local village women (EarthRights International, 2000).

These atrocities are reported to take place because local peoples do not want their environments destroyed. Thus, the theme of this gathering is important to provide for the future security within the Southern African context, which is also being threatened by conflict due to the exploitation of resources that result in environmental damage, as evidenced in Angola.

2. Legislation: To quell the groundswell of discontent

At a more local level in South Africa, it is clear that there are serious concerns that conflict could arise between local people on the one hand, and government and industry on the other, if appropriate environmental legislation is not developed and implemented. This would give meaning to our constitution and foster harmony amongst civil society, government and industry.

It is a recognised fact that our constitution is only as good as the implementation thereof. The present situation with regards air pollution legislation and environmental health is dismal to say the least, and does not give meaning to our constitution. One only has to witness the recent uproar in the South Durban, Sasolburg and Cape Town areas by civil society to understand that as South Africans we face a challenge to urgently develop, enforce and monitor legislation that will protect all South Africans. This will quell the growing discomfort amongst civil society about the perceived lack of will by government to protect. If left unchecked, this discomfort could manifest itself into a deepening conflict, leading to the retardation of much needed economic development in South Africa.

This groundswell of public consciousness around air pollution has also been experienced in Mozambique, where local residents in Maputo have vociferously campaigned against the development of a Danish sponsored toxic waste incinerator, which locals and the international environmental community claimed would expose them to harmful chemicals such as dioxins.

3. Southern African Awareness: Joint action

The importance of air pollution in the Southern Africa context was recently acknowledged by the South African government when the United States government and the National Aeronautics and Space Administration (NASA) initiated an investigation into air pollution over the region. This process, termed Safari 2000, aims to "understand the sources of the dozens of emissions in the atmosphere (like sulphur dioxide, carbon monoxide, methane and ozone), how they are dispersed and chemically transformed in the air, where they are deposited and how they affect regional ecosystems." (Financial Mail, 25 August 2000).

If air pollution is recognised to be a problem that receives regional attention, we have to start questioning what local significance the South African parliament is affording air pollution as an environmental threat that could lead to conflict at a local level.

4. Resources: No money, no action, no respect!

In a meeting with South Durban civil society on Tuesday, September 19, 2000, Minister Moosa highlighted that his budgetary speech in May 2000 made it clear that he was taking brown environmental issues seriously. Statements such as, "there is rampant lawlessness among industrial polluters ... and ... it is our intention to put industrial polluters on terms this year." These statements are clear to the public that polluters will be dealt with strictly. However, what must be questioned, is how the Minister is going to do this, and does the budgetary allocations within the Department of Environmental Affairs and Tourism (DEAT) allow for his words to be transformed into action.

This position is clearly not supported the by the DEAT budget which has seen a shrinking in allocations to brown environmental issues.

In a recent press article after the budgetary speech in May, DEAT staff monitoring pollution said that due to "lack of funds" the DEAT efforts is hamstrung to keep abreast of potentially dangerous increases in pollutants (The Star, 25 July 2000). This lack of funding is also witnessed in South Africa’s government funding of Safari 2000. Instead of being addressed through the DEAT, funding for the project was used from the Department of Arts, Culture, Science and Technology. (Financial Mail, 25 August 2000) Although this funding and inter-department collaboration is most welcome, surely it should have been the financial responsibility of the DEAT.

The impact of such reductions in budget allow for companies to flout the law, as in the case of Sasol Polymer in South Durban that has had three chlorine leaks this year, which resulted in adjacent communities being treated and hospitalised due to the effects of chlorine inhalation. The DEAT of environmental affairs have on the first two occasions allowed the plant to resume operations without taking any punitive measure against the senior managers of the plant or Sasol. The result of this is that slogans such as: "Call for gas-leak factory to stay closed; Shut Gas Plant" is going to become slogans common to many neighbourhoods in the country, which have a right to call for the closure of these plants if government cannot enforce the law. Kim Fraser, Sasol Polymer’s general manager’s statement in response to Valli Moosa’s decision to close the plant was that the Minister’s had adopted "an unfortunate stance", highlights the disregard industry has for community health and Minister Moosa’s responsibility for environmental governance. (Daily News, 15 September 2000).

Minister Moosa’s statement that he is "heartened by the depth of concern from fellow cabinet ministers and members of parliament on the need to curb pollution" (The Mercury, 20 September 2000) must be interpreted by cabinet ministers as a call for more funding to be allocated to the DEAT and for this funding to be directed into brown environmental issues rather than just conservation-based issues.

If parliament fails to increase the capacity of DEAT, there is going to be a strain on the resources of departments such as Welfare, Health and Trade and Industry. The poor and vulnerable citizens of South Africa, in whose communities most of the polluting industries are placed, will continue getting ill, relying on the Department of Health for medication, and relying on the department of Welfare if they are non-productive through illnesses caused by high levels of pollution. From a financial and developmental position, there will be lost days at work, with the result being a loss for our broader economy.

5. Present legislation

5.1 National Environmental Management Act 107, of 1998

The new National Environmental Management Act, 107 of 1998, includes environmental justice and sustainable development as two of the principles, which are to guide the interpretation, administration and implementation of this Act, as well as all other laws concerned with the protection of the management of the environment. This is the first time that the principle of environmental justice has been recognised in SA law.

Government has also committed itself to processes of public participation in environmental governance. The National Environmental Management Act (NEMA) recognises "that the law should establish procedures and institutions to facilitate and promote public participation in environmental governance". (Preamble to National Environmental Management Act, 107 of 1998)

These policy and legislative changes represent a welcome shift away from the previous, Apartheid government’s narrow conservation-emphasis, to a developmental policy and legislative framework which specifically seeks to show redress for Apartheid’s environmental toll on poor, marginalised and vulnerable black people. However, despite this, the budget allocation within the Department of Environmental Affairs and Tourism (D.E.A.T.) still disproportionately favours conservation. This bias towards conservation is reflected in the approach - outlined in the NEMA – which the D.E.A.T. has chosen for monitoring and regulating the environment and for enforcing environmental laws.

In the Preamble to the NEMA it is stated "that the law should facilitate the enforcement of environmental laws by civil society". (Ibid.) Both in the Preamble and in various provisions of the NEMA there is found a frank admission that government will not do the job of investigating, identifying or prosecuting violations of environmental laws. Instead of creating governmental capacity to implement an environmental management system, the Act relies overwhelmingly upon self-regulation by polluters and private enforcement (civil prosecution). In the absence of a governmental inspectorate, private enforcement is the primary bulwark against environmental degradation and harm to human health. Thus there is an urgent need for civil society to be given the capacity to step into this new, participatory role of managing the environment and monitoring and enforcing environmental laws.

In recent statements, the Ministry of Environmental Affairs and Tourism adopted a different public approach with firm statements that indicates that the DEAT will be taking firmer action, rather than relying on self-regulation (Meeting between Minister Moosa and civil society on Tuesday 19 September 2000). Indeed Moosa mentioned that industry will only take action if there is enforcement of the laws. This is a welcome shift away from the DEAT’s recent positioning towards self-regulation, in the form of the proposed Environmental Management Cooperation Agreements (EMCAs), where government seeks industry to voluntary manage its pollution.

5.2 Environmental Conservation Act 73, of 1989

Through recent interaction with the DEAT, often it is witnessed that there is a lack of willingness to request industry to develop operating systems that will not impact negatively on civil society. This reluctance is often interpreted as being due to a lack of suitable legislation to deal with the problem of industry. This, however, is not the case.

Reviewing the Environmental Conservation Act 73, of 1989 (ECA), it is clear that section 31 (a) gives powers to the "Minister, competent authority, local authority or government institution where environment is damaged, endangered or detrimentally affected."

(1) "If, in the opinion of the Minister or the competent authority, local authority or government institution concerned, any person performs any activity or fails to perform any activity as a result of which the environment is or may be seriously damaged, endangered or detrimentally affected, the Minister, competent authority, local authority or government institution, as the case may be, may in writing direct such a person to- cease such activity; or to take such steps as the Minister, competent authority or government institution, as the case may be, may deem fit within a period specified in the direction, with a view to eliminating, reducing or preventing the damage, danger or detrimental effect".

It is clear from this section within the ECA that the DEAT has the power to review permit conditions of industry in order that damage to the environment is reduced and/or prevented. Although community groupings have since democracy vehemently questioned and opposed oil refinery practices within South Africa, the Chief Air Pollution Control Officer (CAPCO) has reviewed only the Engen refinery permit, and this was after community stakeholders and industry worked on the terms and processes of pollution reduction. Not all communities have the capacity that is found in South Durban, and thus it is important that the DEAT takes a more responsible and responsive role in dealing with polluters.

5.3 Air Pollution Prevention Act 1965

The date on the Air Pollution Prevention Act of 1965 (APPA) reflects the archaic nature of this piece of legislation. This act is based on protecting the environment via the establishment of guidelines that are not enforceable, rather than standards. The present law reform processes are establishing legislation that will repeal the APPA.

6. Legislation - what is needed? Protection of health

The recent press investigation, which found that leukaemia rates are 24 times higher than the national average in South Durban is the reason that legislation is needed. These concerns are not only valid in South Durban. Areas such as Richard’s Bay, the Vaal Triangle, Sasolburg, Secunda, Cape Town and Umkomaas in Kwa Zulu Natal (where the background level of asthma is 26%), are all areas that are potential centres of conflict if the DEAT does not take its responsibility seriously.

Standards

Government must set in place standards for pollution emissions and ambient air quality that will bring them into line with international standards where the majority of multi-national cooperations have their headquarters.

Technology

New industry needs to be promoted in order that the present archaic technology is replaced with technology that will ensure that no harm is brought onto communities.

Monitoring

Government’s independent capacity to monitor air pollution must be improved, and reliance on industrial data must be reduced.

Enforcement

Levels of enforcement of the present and future legislation are critical. Legal sanction through steeper fines, jail terms or the closure of companies must be implemented.

Research

Government must develop capacity to conduct research in order that decision making within government can be informed by independent research.

Budgetary constraints

Budgetary allocations to the DEAT and other departments dealing with environment must increase.

Participation

Government must set in place regulations on participation through legislation so that communities have structured and legal right to engage in the governance of their local environments.

Conclusion

The self-regulatory framework for polluters is being abused. It has been left to the private sector (businesses, industries, mines etc) to police themselves with respect to emissions into the environment. And, while communities now have the legal standing to take on the polluters and defend themselves in court, the present limited access that communities have to scientific and technical information, legal services, and so on means that the scale is still tipped in favour of wealthy polluters. Those communities wishing to defend themselves will come up against highly paid and skilled people employed by the polluters. Communities will thus need technical assistance and expertise to assist them in understanding and meaningfully engaging with other stakeholders. This needs to be urgently complemented by government developing its capacity to deliver on its constitutional commitment.