On Friday, Sasol gave notice that it was withdrawing its controversial litigation against the Minister of Environmental Affairs and the National Air Quality Officer to set aside certain air quality standards.
While this is a welcome step by Sasol and a victory for air quality governance, it is important to understand this decision to withdraw in the context of the ongoing battle between industry, government and pollution-affected communities around securing significant reductions in polluting emissions and improving air quality, particularly on the Highveld and in the Vaal Triangle.
In May 2014, Sasol instituted legal proceedings against the Minister of Environmental Affairs and the National Air Quality Officer to set aside a number of air quality standards (called “minimum emission standards”) applicable to Sasol’s industrial activities, and to all other big industrial polluters, including Eskom. These standards require significant reductions in the harmful pollutants that the operations of Sasol and other big industry emit.
The Department of Environmental Affairs fervently resisted Sasol’s litigation and defended the emission standards, which were first published in 2010. In December 2014, the National Air Quality Officer filed a strongly worded answering affidavit, accusing Sasol of using “tactics” and “misdirection” “to hide their delay in bringing this review application and the associated delay in having to invest in emission abatement technology towards compliance with the minimum emission standards to combat pollution”. The National Air Quality Officer also said that “what [Sasol] is in fact seeking is a judicial licence to continue with air pollution from their existing plants… unabated over the next few years”.
The postponement applications
In addition to launching litigation against the State in 2014, Sasol had also used a provision in the Air Quality Act to apply for five to ten year postponements from compliance with most of the emission standards, which kicked in on 1 April 2015.
In an open letter to the Minister of Environmental Affairs in October 2014, 11 environmental NGOs and community based organisations urged the Minister not to allow Sasol’s litigation to bring undue pressure to bear on the Department of Environmental Affairs. The letter’s signatories reminded the Minister that Sasol had been a key player in the five-year long multi-stakeholder process convened to determine appropriate minimum emission standards for big industry, and that the standards had already been weakened due to industry lobbying of the Department.
According to Samson Mokoena of the Vaal Environmental Justice Alliance: “The Minister’s attention was drawn to the fact that, despite having almost a decade to prepare for the implementation of the standards, Sasol had failed to invest in the technology and improvements that would enable it to comply with, at the very least, a majority of the standards. Sasol has continually tried to frustrate the government’s attempts to improve South Africa’s regulatory system for air quality, resulting in ongoing and unmitigated severe health risks for all those who are subjected to these poisonous emissions”.
Postponements granted and litigation withdrawn
The withdrawal of the litigation on Friday last week comes after the National Air Quality Officer, in late February, granted almost all of Sasol’s postponement applications. What this means is that Sasol can continue, for at least another five years, and in some cases for at least another ten years, to emit highly toxic pollutants in quantities far in excess of globally recognised acceptable levels, and, since 1 April, in quantities far in excess of the requirements of South African air quality legislation.
Sasol has repeatedly denied that it instituted the litigation against the State in order to put pressure on the National Air Quality Officer to grant its postponement applications. The fact that it has withdrawn the litigation now that those postponements have been granted, makes these denials highly implausible.
CER attorney Robyn Hugo explains: “Sasol claimed in its court papers that the procedure for setting the emission standards was flawed, that the costs of implementing the standards far exceed the benefits, and that, in some cases, it would be technically impossible to comply with the standards. If these claims were valid, the granting of the postponement applications would not be sufficient grounds for withdrawing the litigation”.
Sasol will tell its shareholders that the granting of its postponement applications has saved the company vast sums in capital expenditure. Even if Sasol tenders the Department of Environmental Affairs’ legal costs, which it should have to do given the huge diversion of scarce State resources this litigation required, this amount is a drop in the ocean compared to what it would have to spend to comply with the law. But shareholders should be wary of being too pleased by this news.
Tracey Davies, CER attorney: “By displaying such extraordinary unwillingness to act as a responsible corporate citizen and do everything in its significant power to invest in improving South Africa’s appalling air quality, from which millions suffer and to which Sasol is a significant contributor, Sasol is simply shoring up liability for the future.”
Signed by (in alphabetical order):
Centre for Environmental Rights, contact: Robyn Hugo (firstname.lastname@example.org)
Earthlife Africa Johannesburg, contact: Makoma Lekalakala (email@example.com)
Federation for a Sustainable Environment, contact: Koos Pretorius (firstname.lastname@example.org)
Greenpeace Africa, contact: Melita Steele (email@example.com)
groundWork, contact: Bobby Peek (firstname.lastname@example.org)
Highveld Environmental Justice Network, contact: Thomas Mnguni (email@example.com)
South Durban Community Environmental Alliance, contact: Desmond D’Sa (firstname.lastname@example.org)
Vaal Environmental Justice Alliance, contact: Samson Mokoena (email@example.com)
 This was the same provision used by Eskom to apply for postponement from compliance at all of its coal-fired power stations.