This submission is made by the Legal Resources Centre on behalf of the Environmental Justice Networking Forum, Groundwork, South Durban Community Environmental Alliance and other organizations listed in Annexure "A"

1. The LRC's submissions on the National Environmental Management Air Quality Bill ("the Bill") are made against the background of:

1.1. the serious effect which air pollution can have on health and quality of life; and

1.2 the constitutional protection of the environment

In South Africa the distribution of residential areas is such that harm to health caused by air pollution impacts disproportionately on poor communities. Hence we have been instructed by communities throughout South Africa residing close to industrial areas to make this submission to encourage the State to take all necessary steps to ensure better control over these industries so that the health of these residents can be protected. The distribution of neighbourhoods in terms of the Group Areas Act is a legacy of apartheid which lives on and results in poor communities being at the frontline of air pollution from mining dust, oil refineries, incinerators, waste dumps and combustion of dirty fuels in industry generally. Long distances which must be travelled by workers from communities to their places of employment result in disproportionate exposure to vehicle emissions. Poverty has also resulted in poor communities relying excessively on highly polluting fuels such as coal.

In terms of section 24 of the Constitution everyone has the right to an environment that is not harmful to their health or well-being and reasonable legislative and other measures must be taken, inter alia, to prevent pollution.

4. Our submissions are presented within a constitutional framework, highlighting concerns that certain provisions of the Bill may be constitutionally invalid while others may not constitute "reasonable legislative measures" in terms of section 24 (b).

In the case of Dawood and Another V Minister of Home Affairs and Another:

Shalabi and Another V Minister of Home Affairs and Another 2000 (3) SA 936 (CC) the Constitutional Court looked closely at statutory provisions which give officials a broad, unconstrained discretion in circumstances where the exercise of that discretion may result in an infringement of a constitutional right. The Court emphasised the importance of the legislator giving guidance to decision-makers and thus assisting them to exercise their discretion in a manner that would protect the constitutional rights concerned. A statutory provision which does not give the necessary guidance might be declared constitutionally invalid.

6. In the Bill there are several provisions which provide for discretionary decisions which, if not properly made, could result in environmental rights being infringed. In the submissions which follow we point to the key provisions of concern and suggest ways in which the necessary legislative guidance might be furnished.

8. In terms of section 24 of the Constitution the State is obliged to take reasonable legislative and other measures that prevent pollution. The Bill is obviously a measure being taken in accordance with that obligation.

9. We submit that section 2, setting out the "Objects of Act" should explicitly include as an object the realisation and protection of the rights contemplated in section 24. This would mean that the Minister, in section 7 of the Bill, was specifically enjoined to protect the constitutional right in all facets of the national framework.

10 We also submit that the reference in section 3 (b) of the Bill to 'progressive realisation" of the rights in section 24 is inappropriate. Unlike the right to housing and the so-called socio-economic rights (sections 26 and 27 of the Constitution) the environmental rights are not qualified in this way.

11. In several respects, which will be outlined below, we submit that the measures envisaged by the Bill are not reasonable measures to prevent pollution. Insofar as the State may rely on enactment of this legislation as providing a framework for fulfilment of its obligation to take reasonable measures, measures which do not meet the requisite standard will put the State at risk of being found in the future not to have met its constitutional obligation. It is from this perspective that we suggest reconsideration by the committee of some of the provisions of the Bill.

A. Detailed discussion: Possible Constitutional Invalidity

Examples:

· The Bill lacks legislative criteria for the development of ambient air standards (e.g. the degree of protection of health and the environment envisaged)

· Inadequate guidance for setting emission standards and for pollution

control measures for activities which require licenses ) (e.g. cost, best technology, distinction between old plants and new plants cumulative impacts, the degree of protection of health envisaged,) (1s36(b) for example allows "any practical means that could be taken to control... pollution)

· The "best practicable means" test of the Atmospheric Pollution Prevention Act has been replaced with the "any practical means"(s36(b)(ii) test, removing considerations of cost and best current technology and resulting in there being less guidance as to the exercise of discretion15. Vagueness and unduly wide discretion is given to officials

Examples:

Norms and standards to be established( s7(2)"reduction of charges", "prevention of degradation" suggest that the current baseline is an acceptable baseline from which to regulate ) for pollution control

· Whether to set emission standards or not and the degree of emissions control in terms of 9(1)(b)[see parag 18]

Contents of air quality management plans (s16)

· Whether to declare priority areas and how to manage them (s18(1) and 19(6)

· Unlimited discretion given to the Minister to grant exemptions.(s 56)

· Discretion as to whether to declare an activity a listed or a controlled emitter.

· In places meaningless language is used(eg "sound science" a meaningless term is a requirement for regulating controlled emitters) and provisions contradict other provisions(see parag18 of this memo)

B. Detailed discussion: Reasonable measures

16. Determining reasonable legislative measures.

A science of air quality management has developed over the last 30 years, from which it is fairly easy to ascertain what a reasonable measure is in order to protect health from a fairly wide range of air pollutants. Air pollutants have been studied and their effects on health are well documented. The World Health Organisation has guidelines for levels of air pollution in surrounding air (ambient air) which suggest what levels should not be exceeded in order for health to be protected.

International jurisdictions such as in Europe and the USA which have successfully tackled air quality management through law reform have created mechanisms to guide regulatory agencies in the setting of ambient (surrounding) air quality standards which will be protective of health. [For example in the US "national primary ambient air quality standards, prescribed under sub-section A of this section shall be ambient air quality standards the attainment and maintenance of which in the judgement of the administrator based on criteria and allowing an adequate margin of safety, are requisite to protect the public health". Clean air Act section 109(b)(1); 42 USC section 7409 (B)(1)]

In order to achieve compliance with these standards end in order to protect health in general, standards have also developed internationally to guide the exercise of discretion in setting standards for the control of air pollutant emissions.[Examples of such guidance and / or criteria are: US Clean Air Act section 111(a)(1) in which emission limits for criteria pollutants must reflect "the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any non air quality health and environmental impact and energy requirements) the administrator determines has been adequately demonstrated.]

It is therefore clear that reasonable legislative measures can be found in laws Internationally which could guide our law making, so as to ensure that our air quality will at a specified date be managed so that it is no longer harmful to health and wellbeing. The Bill lacks these measures, and instead gives undue discretion to the executive about when and how to introduce such measures if at all. The Bill is also contradictory as to whether key measures such as emissions standards need to be introduced at all.{see parag 14 and s9(1)(a) and (b) ]

Jurisdictions which have successfully tackled air quality have also been faced with economic arguments, e.g. businesses will have to close if required to install expensive pollution control equipment. Jobs have been threatened. This problem has been addressed in a variety of ways including:

· distinguishing between old and new plants and requiring best available technology on new plants;

· allowing a reasonable time for investment in clean technology on old plants

· factoring costs into decision making about the appropriate level of expenditure on pollution control equipment; economic instruments such as trading of emissions; green taxes and incentives.

In general air pollution control is about "technology forcing", i.e. regulatory interventions which force companies to use better and better technology to reduce pollutant emissions. Developed jurisdictions factor cost into decision making and also attempt to ameliorate the impact of costs through economic measures. This is clear for example from the US Clean Air Act section 111A(1) which refers to best system of emission reduction" but also refers to the need to "take into account the costs of achieving such reduction".

It is submitted that any legislation which is to pass muster in terms of section 24 of the Constitution must set mandatory goals which ensure the protection of health while providing mechanisms for absorbing or addressing the impact of the costs of such measures and thereby still enabling justifiable economic and social development to be promoted.

17. Specifics as to how the Air Quality Bill fails to take reasonable measures to ensure an environment that is not harmful to health and wellbeing.

17.1 Outcomes not mandated

Key features of an air quality management law that are required to achieve constitutional objectives are not mandated for example the introduction of definite or clearly ascertainable, time bound measures based on reasonable standards which would result in the protection of health. No outcome is assured that would change air quality. Mandatory provisions such as the establishment of a the national framework are watered down by wide discretion as to deadlines and standards for controls. [The Bill should provide specific legislative criteria for the Minister or province to guide them in establishing emission standards, i.e. protective of public health in the environment, considering potential local, regional and long range impacts, the best available technology (taking into consideration cost) ]

In important sections where mandatory action is expected it is absent for

example:

· There is no obligation to set up priority areas[ s18(1) ]

· There is no obligation to comply with air quality management plans[s16]

· There is no obligation to set emissions standards that would ensure that ambient air standards are achieved (see parag 18 below)

· Emission standards for licensed and controlled emitters do not have to be protective of health. [s 24 (1) and s (40) ]

The Bill does therefore not mandate the taking of administrative action which will result in the protection of health and constitutional compliance.

17.2 The Bill puts too onerous an evidentiary burden on the State

· State has to prove likelihood of significant harm before it can license new emitters

· The bill makes it more difficult to schedule an activity as requiring a licence than was the case under the Atmospheric Pollution Prevention Act

· State has to prove probable[SA CO (Ltd) v Transnet Ltd ASALR 2003(1) 335 W where it was stated that the word "likely" denoted probability as opposed to possibility.} not possible damage to health before it can declare and regulate air pollutants in terms of s9(1)

· Details are deferred to regulation where they are open to challenge in terms of administrative law, as opposed to the case if they were contained in an act of Parliament which can only be challenged as unconstitutional.

17.3 The bill waters down existing reasonable measures contained in the Atmospheric Pollution prevention Act no 45 of 1965 (APPA")

· APPA requires the protection of the public" the object of the Bill is a lesser standard "to reduce the risk to health"

· The "best practicable means" test of the Atmospheric Pollution Prevention Act has been replaced with the "any practical means"[ s36(b)(ii) ] test, removing considerations of cost and best current technology and resulting in there being less guidance as to the exercise of discretion

17.4 Focus on regulating ambient air (rather than setting emission standards to reduce large pollution sources) is cumbersome and expensive for the State and therefore unreasonable

· It creates far more work for the State, collecting data, drawing up plans etc

· The air can be polluted over the limits of what is healthy before action needs to be taken

· Ambient air standards are not enforceable without mandatory emission standards, but 5 9 puts these in the alternative

· The Bill does not distinguish between new and old plants. It is more

expensive to retrofit pollution control than fit it when new plants are built

· Emission standards are not mandatory and are not linked to achieving ambient air standards which are protective of health, nor to considerations of best technology, hence these outcomes cannot be guaranteed. In these fundamental respects the Bill fails to guarantee what is constitutionally mandated

17.5 The Bill ignores policy imperatives suggesting reasonable measures

Imperatives for air pollution control required in terms of policy[White Paper on Environmental Management Policy and White Paper on Integrated Pollution Control on Waste Management] which require the setting up of a pollution release and transfer inventory are absent.

18. The Bill is inherently contradictory and impossible to implement.

Section 9 requires the Minister to identify air pollutants that present a threat to health and wellbeing or the environment. Thereafter the Minister has a choice of setting ambient standards or emission standards for these pollutants. This contradicts section 7(1) which requires the Minister's framework to include both standards. More importantly it is impossible in regulatory terms to achieve ambient air standards without emission standards. The setting of ambient air standards alone is an ineffective regulatory tool since ambient air can be polluted by a wide range of sources. Setting emission standards alone is an ineffective regulatory tool without reference to ambient air standards. This aspect of the Bill makes it inherently self contradictory and unworkable[ Applies equally to the setting of provincial and local standards in terms of section 10 and 11 ]

19. The Bill fails to promote justifiable economic development

Emission standards are discretionary in terms of 5 9(b)(ii). If emission standards which are protective of health are not mandatory on new plants this will cause a degradation of air quality. This will discourage development [for example new tend to be built in high polluted areas] . Retrofitting plants is far more expensive than fitting technology when a plant is built. The additional cost of retrofitting will adversely impact on economic development

The Bill fails mandate clear and certain emission control standards, thus creating regulatory uncertainty which impacts negatively on investment. This therefore does not promote justifiable economic development.

Dated at CAPE TOWN on this day of JANUARY 2004

5th Floor, Greenmarket Placer