By Tony Carnie

11 Apr 2022
original article here

Forestry, Fisheries and Environment Minister Barbara Creecy has gone on the attack, challenging the authority of the high court to force her to make new regulations to reduce harmful levels of air pollution on the Highveld.

In a media statement on 11 April, Barbara Creecy framed her decision to contest the court ruling simply as a desire to seek legal clarity on whether she was obliged to make new regulations — or whether she had the discretion to make new regulations in a manner that she preferred.

She suggested that the application for leave to appeal against “certain portions” of the 18 March High Court judgment in the so-called Deadly Air case was being sought “on a limited basis and cognisant of her statutory and constitutional duties”.

“Minister Creecy states that it is not her intention to use the appeal process to delay the drafting of regulations and that the process will continue independently of any appeal.”

She said parts of the judgment had a potentially wider significance that could impact on several statutes within the environmental sphere.

However, a closer examination of her four-page founding affidavit and her 10-page application for leave to appeal suggests that Creecy is in fact contesting the majority of the specific orders made by Pretoria judge Colleen Collis.

In her supporting affidavit, Creecy notes that soon after taking office as national environment minister, she became “acutely aware of, and familiar with, the pressing and continuing problem with air pollution in the Highveld Priority Area”.

“Every individual person residing or working in the Highveld Priority Area has my sympathy and also the sympathy of every official in the National Department. I also realised and know that the ongoing state of affairs, regarding the unacceptable levels of air pollution in the Highveld Priority Area and the potentially adverse impacts thereof, not only on the health or wellbeing of individuals but also on the environment, falls within the domain of my political and legal responsibility as Minister.”

She declares that she had “in fact prioritised the issue of air quality, not only in the Highveld Priority Area but on a national scale”.

Yet, in the more detailed grounds of appeal, the minister makes it clear that she is perturbed about attempts to limit her “discretion and autonomy” as the national environment minister — as well as the broader sub-set of orders that she believes would compel her to “impose obligations on other Organs of State, including MECs and other Departments, both provincial and local, and the officials responsible for minimum emission standards”  for air pollution by Eskom, Sasol and other polluting industries.

Initial reaction to Creecy’s appeal announcement has been muted so far. Attorneys at the Centre for Environmental Rights (CER) indicated that they wanted to consult senior counsel and clients this week to consider their legal response to the application for leave to appeal to the Supreme Court of Appeal or a full bench.

CER represents the two non-government watchdog groups (groundWork and Vukani Environmental Justice) that launched the legal action.

Nevertheless, civil society groups have been watching closely to see how Creecy will respond to the growing pressure to tighten controls on big polluters.

Separation of powers

Seemingly walking a tightrope to uphold her legal mandate as national environmental custodian, while also serving as one of several government ministers with divergent mandates, Creecy argues that Judge Collis’ order “impermissibly interferes with the separation of powers”.

Judge Collis made seven orders, one of which included 11 specific sub-orders. Creecy’s “limited appeal” contests four of these orders — including all of the 11 sub-orders.

She has not challenged the court’s initial costs order nor its key declaration that “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”.

However, she contests the bulk of the orders which direct her to take action within 12 months to prescribe new regulations to curtail air pollution that would include “appropriate penalties” for non-compliant air polluters.

Creecy and her legal representatives contend that Judge Collis erred in ruling that the Air Quality Act imposed a duty on her to prescribe regulations.

She argues that this law “leaves it to the Minister to decide whether or not to exercise such discretion”.

Should the minister decide to exercise this discretion, the law permitted her to decide on the content of any regulations, including the timing of any regulations she chose.

She says the ruling “unlawfully fetters” her legal competence, “impermissibly interferes with the separation of powers” and also limits her “legislative discretion and autonomy”.

Highveld Plan

She contests the court finding that she had “unreasonably delayed in preparing and initiating regulations to give effect to the Highveld (air pollution reduction) Plan”.

She also contests orders stipulating the need for enhanced monitoring of atmospheric emissions in the priority area, including “urgent improvement, management, and maintenance of the air quality monitoring station network to ensure that verified, reliable data are produced” and “enhanced reporting of emissions by industry in the area”.

Collis also ruled there was a need for all relevant national departments, municipalities, provincial departments and MECs to participate in the Highveld Priority Area process and to cooperate in the implementation and enforcement of the Highveld Plan.

The judge also ordered that there was a need to address the postponement or suspension of compliance with minimum emission standards by major polluters on the Highveld with a cut-off date of April 2025.

If the Supreme Court of Appeal were to endorse the finding that Creecy had a duty to make these regulations, then it should declare that the minister’s discretion should not be fettered by prescribing the specific factors she was required to consider.

A legal source familiar with the case suggested on Monday that Creecy was not reneging on her agreement to draft the implementation regulations, but was disputing that she was obliged to do so or that she was obliged to address the specific considerations contained in the court order.

“However, the order confirming the violation of constitutional rights remains. In my view, this will have to direct the wording and the manner of enforcement of the implementation regulations that the department is developing and will promulgate in due course.” DM/OBP