Eskom’s emissions are not compatible with the South African constitution

The World Health Organisation (WHO) considers air pollution to be the greatest environmental risk to people’s health. In South Africa, where everyone has the constitutional right to an environment not harmful to their health, the residents of the Mpumalanga highveld are enveloped by a deadly concoction of air pollutants on a daily basis. This is largely because of the entrenched coal-based economy in the area.

A major contributor to the highveld’s status as one of the most polluted hotspots in the world is a cluster of 12 Eskom coal-fired power stations, sewn into a tapestry of dirty coal mines. The pollution from Eskom’s power stations is estimated to cause hundreds of premature deaths every year, including children, while accounting for 40% of South Africa’s carbon dioxide emissions. An undesirable reputation in the era of the climate crisis, to say the least.

Yet, Eskom submitted another round of applications for permission to further delay compliance with South Africa’s air pollution rules. The minimum emission standards are air pollution limits that the government established to protect people’s health and wellbeing. Eskom’s latest suite of applications aims to postpone, or completely avoid, compliance with these limits for 14 of its 15 coal-fired power stations.

This, in addition to the fact that a number of Eskom’s polluting coal-fired power stations have contributed to an alarming track record of non-compliance with its environmental licences — violations with lethal effects .

For years, environmental justice organisations have battled to ensure that Eskom’s stuttering power stations comply with the law. In opposition to Eskom’s latest attempt to dodge compliance with these air-pollution limits, these organisations have cast a spotlight on the heart of the problem:

The Eskom we have now is fundamentally incompatible with the South African constitution.

Section 24 (a) of the constitution guarantees everyone the immediate right to an environment not harmful to their health and wellbeing. Section 24(b) requires the government to protect the environment through reasonable legislative and other measures, for present and future generations. These measures must secure ecologically sustainable development and use natural resources, while promoting justifiable economic and social development. The government and Eskom, as an organ of state, are legally obliged to respect, protect, promote and fulfil the Bill of Rights, in a democratic state founded on the rule of law.

The crucial developmental segments “must secure ecologically sustainable development … while promoting justifiable economic and social development”, read with “for present and future generations”, impose necessary thresholds for government decision-making. This also offers a binding, value-based and revolving inquiry for both our present society and that which we seek to secure.

I cannot say for certain what the drafters of our constitution envisaged when they inserted these phrases, but I am confident that the current electricity crisis and our suffocating dependency on coal is not the scene they had in mind. One only needs to take a drive through parts of eMalahleni — the place of coal — to see the extent of the municipal erosion, amid the chronic air pollution.

Indeed, the people of South Africa deserve much better, and the constitution tells us so; however, Eskom’s existing degenerative model is seemingly incapable of getting us to a version of truly sustainable development that is consistent with the constitution. This boil(er)s down to three key observations .

An outdated power utility

Eskom is an outdated, monolithic utility fixated on a fuel base from the second industrial revolution. As a 2019 report by Groundwork, titled Down to Zero, puts it: “it was founded on colonial and apartheid dispossession and cheap labour and driven by cheap and dirty energy from coal. The model of building big coal-fired base load to supply ‘cheap and abundant’ power to energy intensive industries was the model of the MEC minerals energy complex]. Over the last decade, this model has fallen apart even as Eskom and government tried to reproduce it.”

In its “justifications” to further delay compliance with South Africa’s air pollution laws, Eskom constantly reminds us that it generates about y 95% of South Africa’s electricity supply. Arguably, therein lies one, if not the, root cause — Eskom’s monopoly status has provided an immense amount of power and influence for a single entity (and vested stakeholders around it) to wield in any regime, never mind a constitutional democracy. Because of a combination of factors, this has culminated in a power utility that drains the public purse and was regarded as the single biggest risk to South Africa’s economy in 2017. Consequently, it remains one of the greatest risks to the fulfilment of many basic rights guaranteed in our constitution.

Deadly emissions

Although Eskom reported in 2018 that it had achieved an electricity access rate of 90%, this has come at an unsustainable cost to public health and South Africa’s GDP. Aside from the adverse environmental and social effects caused along the coal cycle, Eskom itself estimates that the emissions from 13 of its coal-fired power stations in the Highveld, alone, resulted in an additional 320 premature deaths and a R17.6-billion baseline health cost, in 2018. Independent studies show that these annual figures are much higher, but still, such collateral damage “to keep the lights on” cannot be perceived as “justifiable economic and social development”. This is especially so in a democratic society founded on human dignity, the achievement of equality, and the advancement of human rights and freedoms.

Civil society organisations have been criticised for advocating for a health-centred approach to sustainable development, with opponents calling it simplistic and inappropriate. Well, public health professionals around the globe, in chorus with the WHO, think it’s a well-founded approach. The Covid-19 pandemic has taught us we would do well to heed these expert calls.

The rule of law matters

Ours is a democracy that is based on the rule of law and the supremacy of the constitution. The purpose of South Africa’s air pollution laws is to give effect to section 24 of the constitution, as well as to protect other basic human rights that depend on a healthy environment. To date, Eskom, South Africa’s chief polluter, uses provisions in South Africa’s air quality legislation to successfully undermine the full application of these limits. Of even greater concern is that Eskom is reported to be in discussion with the government about being formally exempt from compliance with the minimum emission standards.

The public has effectively been strong-armed into submission — we are told to choose between electricity supply on a rotational basis or the enforcement of health-based laws that would purportedly result in a national black-out. This ultimatum is the antithesis of the version of sustainable development that is consistent with section 24 of the constitution.

Quite simply, there is an apparent disconnect between the transformative potential of South Africa’s much lauded-constitution and Eskom’s mode of operation. This has since been exacerbated by misguided and sluggish electricity planning by the government, lumping our Bill of Rights’ aspirations into the baseload mega-project basket, and it is reasonable to conclude that this approach has come up short.

So where to from here? Eskom’s 13th chief executive in the past decade, André de Ruyter, has already identified the nub of the issue in one of his many recent interviews about his turnaround actions at Eskom — “we can’t carry on doing things like we’ve always done”. A good start, and Eskom’s latest financial results reinforce this sentiment. Clearly, the need to reduce Eskom’s deadly air pollution and decarbonise the electricity sector, while simultaneously addressing the power utility’s debt spiral, demands rapid and deep reform.

It is encouraging that there are a range of feasible demands and basic principles tabled by external stakeholders to achieve a “new Eskom” as part of a sustainable electricity sector. One of these demands is that Eskom receives no exemption from compliance with air pollution laws. It is important that these external recommendations direct the implementation of Eskom’s own just transition strategy, in which it has committed “to a lower carbon future” where there is “no compromise on environmental integrity”.

These calls for urgent change are largely couched in a combination of Eskom’s debt and governance crisis, the evolving energy technology landscape and cheaper renewables, Eskom’s ageing fleet of coal-fired power stations, and the global shift away from fossil fuels. These are all valid factors and evidence that the inevitable transition to a life after coal is well underway.I would, however, add one other justice-oriented factor; one that is, and has always been, non-negotiable: the constitution of the Republic of South Africa compels a new Eskom; an Eskom that complies with the rule of law and, true to its own vision, provides “sustainable power for a better future ”; an Eskom that secures ecologically sustainable development for present and future generations.