Environmental groups have dragged the minister of forestry, fisheries & the environment, Dion George, to court over the department’s decision to allow eight of Eskom’s power stations to deviate from basic air pollution standards, or minimum emissions standards.
The standards were put in place to set the bare minimum level of compliance by major polluters, putting Eskom, Sasol and ArcelorMittal SA squarely in its sights.
The legal challenge comes a month after the high court in Pretoria ruled against the government’s plan to approve new coal-fired power stations, citing failure to take into account the environmental and health impacts.
The constitutionality of the decision made by the department and the national air quality officer last year to allow Majuba, Camden, Hendrina, Arnot, Tutuka, Kendal, Kriel and Grootvlei to deviate from the minimum emissions standards will now be up to the high court to decide.
This was after Groundwork Trust and Earthlife Africa launched a legal challenge against George and the national air quality officer over the decision to allow the power stations to deviate from minimum emissions standards. The effect of the decision by the minister and the national air quality officer allows Camden, Hendrina, Grootvlei, Klei and Arnot to breach the standards until they are decommissioned by 2030.
The decision also postpones Majuba, Kendal and Tutuka’s compliance with new plant minimum emissions standards until March 2025.
Eskom announced in May that its board had sanctioned the extension of Camden, Hendrina and Grootvlei power stations’ operations until 2030.
Previous decommissioning schedules provided for Grootvlei and Camden power stations to be fully decommissioned by 2025 and Hendrina by 2026. According to Eskom’s application for Hendrina to deviate, the power station would need a flue-gas desulfurisation retrofit of R11bn and a low nitrogen oxides burner retrofit of R1.2bn.
Groundwork and Earthlife in their court papers said the decisions were subject to review as they were unconstitutional, asking the court to set them aside and remit the matter back to the minister for fresh determination.
The environmental groups charged that the minister and the national air quality officer failed to demand that Eskom provide a “clear and detailed” decommissioning schedule.
“Deviations from the minimum standards are a grave matter, as these standards are intended to protect fundamental rights. At minimum, such deviations could only be permitted where there is stringent adherence to the law, based on full and proper disclosure of information. The applicants submit that the decisions under review fall short of these obligations,” the affidavit reads.
“The decisions cannot be saved by the fact that the national air quality officer and the minister mandated that decommissioning plans be prepared, after the fact. An unlawful and invalid decision ... moreover, the minister has no power to amend or revoke the decision to uphold the suspensions on appeal, should Eskom’s decommissioning plans reveal new information that casts doubt on whether they ought to have been granted a suspension.”
The environmental groups pointed to a 2017 report by Mike Holland, an international air quality and health expert, who found that Eskom’s coal-fired power stations accounted for about 2,300 deaths a year, and the air pollution from the plants cost the economy $2.3bn a year.
“This court is not asked to determine the precise extent of Eskom’s contribution to deaths and illness in the region. That there is a hazard cannot be disputed, even if Eskom may dispute the extent of those hazards. These hazards underline the need for stringent air pollution controls and enforcement, in line with our constitution and statutory framework governing air pollution,” the affidavit reads.
Eskom in its 2024 annual report, published in December, listed its impact on the environment as one of the risks facing the company, saying there is a high appetite in society for the company to comply with relevant environmental legislation and reduce its negative effect on the environment through emissions and discharge pollution, as well as to make a positive effect on water conservation, air quality and biodiversity.
“Deteriorating environmental performance and noncompliance with laws and regulations could result in the loss of our licence to operate, the shutdown of generating plant, litigation, environmental degradation, penalties and fines,” the annual report reads.
“Eskom may fail to transition from a coal-based power system to a lower-carbon and climate-resilient company due to obstacles on the net zero pathway and no allocation to Eskom of low-carbon technology in SA’s revised Integrated Resource Plan, leading to a failure to invest in an optimal combination of clean technologies to achieve reductions in carbon dioxide emissions. This is exacerbated by the competing objectives of ensuring the security of supply and electricity affordability, as well as technological limitations which limit the rate at which Eskom and SA can transition.”
Authorities last year gave Sasol a lifeline when they gave the group the green light to measure emissions at its Secunda plant on an alternative emission-load basis rather than concentration-based limits.
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