The law and green rights

By Anton Katz SC

In my travels in South Africa and other parts of Africa, what always strikes me is the immense poverty of so many people. And I think, if only there could be development, poverty would diminish and hopefully be eradicated. 

Improved roads and transport nodes with better infrastructure  such a hospitals, housing and schools would be a good start to improve lives. 

Without development, poverty will increase. Food may become scarce and health crises will continue. So is development the panacea? Development means — at least at some level — digging holes in the ground and pouring concrete as a foundation to the building to be constructed. It means moving communities from the rural land they live on, to make way for solid hospitals, decent school buildings and transport hubs. It means blasting under the sea to explore possible oil and gas deposits. It can result in the disruption of animal and plant life, some of which may be needed for the survival of human life. There can be no doubt that climate change — and in particular global warming — are having a profound effect on the way humans live and interact with planet earth.

Where, if anywhere, does the law fit in the green issues that arise in human activity? Does environmental justice even exist?

After World War II, the Cold War between the West and the Soviet Union began. A key feature of the Cold War was the differing philosophies concerning human rights. The West placed a premium on first generation rights — the right not to be tortured, civil and political rights, freedom of expression and religion. The Soviet bloc on the other hand believed that socio-economic rights took precedence. Those, such as the right to education, health care and housing are called second generation rights. Green rights, part of so-called third generation rights were seen as soft and not enforceable. No country took the right to a clean healthy environment seriously. At best, they were lofty aspirations. As the 1970s and 1980s progressed, the ozone layer started to become depleted and the spectre of global warming raised its head. 

So, fast forward to 1994 and the enactment of the South African Constitution. Green rights are expressly recognised in the Constitution. Section 24 states,  ‘Environment: Everyone has the right (a) to an environment that is not harmful to their health or well-being, and (b) to have the environment protected for the benefit of present and future generations, through reasonable legislative and other measures that (­i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.”

Thus, Parliament must enact environmental laws that protect human health and wellbeing, and protect the environment. And the government must take measures to give effect to those laws. Courts must protect the green rights when they are asserted, and when they are violated by government or private parties. The national Parliament and provincial and local authorities have made many laws, ordinances and by-laws concerning the environment. The kinds of human activity raised by these laws range from mining activities, building developments, the construction of golf courses and estates, the use and pollution of the ocean, river and dam water and the air and forests. More exotic topics, such as the use of biogas energy plants, the requirements for dealing with hazardous waste and photovoltaic power plants are all covered. 

Almost every human activity that impacts natural resources is covered and regulated. Most authorities try to ensure that the law is complied with. So when a developer seeks permission to build a shopping centre,  it must satisfy the local and provincial authorities that the building of the new centre will not harm the environment. An environmental impact study (EIA) must be produced in order to obtain permission to build. And EIAs must include a large range of items. They must include a basic assessment of any impact on the environment, and a scoping report. Objectors may challenge the report and ultimately the competent authority decides whether or not to approve the development. If approval is granted, it may be subject to a raft of environmental conditions. 

Earlier this year, the Pretoria High Court decided a case involving a challenge to air pollution in the Highveld Priority area. The government accepted that the high levels of ambient air pollution in the Highveld Priority Area is, in general, harmful to human health and wellbeing. The minister accepted that, “[I]n general… poor quality at the hotspots in the Highveld Priority Area has adverse consequences and impacts upon human health and well-being.” 

But the government argued that  problem was the minister’s responsibility, and that the Court could not issue any orders against the government. It was the government’s role and responsibility to allocate state resources as it saw fit, and there were other more important challenges that they were confronted with. The High Court rejected the minister’s defence, and in so doing, accepted the Constitutional Court’s comment that sustainable development requires an appreciation that economic development cannot occur without environmental protection. “[D]evelopment cannot subsist upon a deteriorating environmental base. Unlimited development is detrimental to the environment, and the destruction of the environment is detrimental to development… Yet the environment cannot be protected if development does not pay attention to the costs of environmental destruction. The environment and development are thus inexorably linked.” Sustainable development is integrally linked with the principle of ‘intergenerational justice’. This is a rejection of short-termism as it requires the state to consider the long-term impact of pollution on future generations.

In a similar vein, the Supreme Court of Appeal has accepted, “As we continue to reset our environmental sensitivity barometer, we would do well to have regard to what was said about planet Earth by Al Gore, a former vice-president of the United States and an internationally recognised environmental activist engaged in educating the public about the dangers of global warming and those steps to be taken in response, to reduce carbon emissions (for which he was a joint recipient of the 2007 Nobel Peace Prize).

“You see that pale, blue dot? That’s us. Every-thing that has ever happened in all of human history, has happened on that pixel. All the triumphs and all the tragedies, all the wars, all the famines, all the major advances… It’s our only home. And that is what is at stake, our ability to live on planet Earth, to have a future as a civilization. I believe this is a moral issue, it is your time to seize this issue, it is our time to rise again to secure our future.” 

On the importance of developing a greater sensitivity in relation to the protection and preservation of the environment for future generations, Gore had the following to say: “Future generations may well have occasion to ask themselves, ‘What were our parents thinking? Why didn’t they wake up when they had a chance?’ We have to hear that question from them, now.” *As a country, we would, do well to heed that warning.

The Pretoria High Court, in heeding these words, declared the poor air quality to be a violation of constitutional rights. And effectively ordered the minister to put in place regulations within twelve months to deal with the air pollution in the Highveld Priority area. Third generation green rights have come a long way from being lofty aspirations to having now  become enforceable environmental rights.

 * Al Gore, An Inconvenient Truth

Anton Katz is a practising Senior Counsel, former United Nations special rapporteur on mercenaries and human rights, former Acting High Court Judge, and an admitted attorney in New York. He was born and raised in Sea Point.


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