Power vs Pollution: Minister George's Balancing Act

On 31 March 2025, the Minister of Forestry, Fishing and the Environment, Dr Dion George, announced that Eskom would be granted exemptions, permitting it to exceed the Minimum Emission Standards. This article discusses the prerogative of government officials in their decision-making, and the importance of this discretion in balancing competing societal interests. This discussion will examine Minister George's decision to grant the exemptions, the considerations involved, and the resulting impact.

The National Environment and Management: Air Quality Act No. 39 of 2004 sets out the Minimum Emission Standards, which impose limits on the quantity and types of emissions from power stations. These Standards are necessary to align Eskom's operations with the environmental rights in section 24 of the Constitution, to reduce the environmental harm of emissions, and to encourage investment in less harmful, alternative technologies. Eskom's application for exemption from the MES was considered in light of the decommissioning of two power stations and the time needed for the remaining stations to transition to renewable energy.

The two power stations scheduled for decommissioning received longer exemption periods than the six other power stations, as their aged infrastructure would hinder compliance with the MES. Additionally, upgrading the infrastructure to ensure compliance would be redundant, making the exemption the most appropriate solution for these power stations. The decision to grant the exemptions was made in consultation with the National Environmental Consultative and Advisory Forum, the Centre for Environmental Rights, and other stakeholders.

This consultative decision-making process ensures representation and consideration of diverse perspectives, and holds entities like Eskom accountable for their impact and the advancement of environmental justice. Dr George's address emphasized that the exemptions were not without limits. It was important that the exemptions were not granted as a "blanket reprieve," to prevent them from ultimately undermining the purpose of the MES and the National Environment and Management Act, the enabling legislation. Therefore, the exemptions are contingent upon additional conditions, which will be included in Eskom's Air Emissions License.

Some of the conditions include:

1. Health interventions, such as Air Quality Monitoring Stations and Community Health Screening Programs, to support communities adversely affected by emissions. This condition acknowledges the current impact of emissions on surrounding communities, which may be exacerbated by increased emissions. Furthermore, this condition holds Eskom accountable for the impact of their operations on surrounding communities' section 24 Constitutional right to an environment that is not harmful to their health.

2. Emission reductions of pollutants, specifically through the use of flue gas desulphurisation in the stations.

3. The acceleration of renewable energy technologies in power stations, highlighting the urgent need for Eskom to transition to renewable energy to advance environmental sustainability.

These conditions highlight the application of the principle of proportionality in government officials' decision-making. This ensures that decisions do not exceed what is necessary to achieve a legitimate goal. Minister George's address detailed the specific exemptions for each power station, including conditions aimed at minimizing the adverse impact of increased emissions.

These conditions allow Eskom's power stations to continue operating as the primary electricity supplier, while promoting transparency to the public and ensuring that environmental rights are not unnecessarily infringed upon.

Minister George noted that without the exemptions, Eskom would likely have been operating illegally from 1 April 2025. This would have resulted in the immediate shutdown of the illegally operating power stations and the inevitable return of loadshedding.

In granting the exemptions, Minister George attempted to find a middle ground in what he described as "the South African people being held for ransom by Eskom" through the loadshedding crisis.

These exemptions indicate the degree of flexibility that can be applied to environmental compliance standards to balance ecological sustainability with justifiable economic and social development, as required by the Act.

Government officials are empowered through administrative law to apply a degree of flexibility in their decisions. Without this flexibility, the rigid application of laws like the MES could lead to impractical outcomes or outcomes not in society's best interest.

The discretion of government officials in interpreting or applying regulatory frameworks is essential for adapting the law to specific circumstances, such as the environmental and socio-economic impact in this case.

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Tebogo Shange is a final-year LLB student at the University of Pretoria who currently serves as the Chairperson of the Student Disciplinary Advisory Panel.