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SCA judgment sets precedent for public access to enviro information

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SCA judgment sets precedent for public access to enviro information

22nd June 2015

By: Schalk Burger
Creamer Media Contributing Editor

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The Supreme Court of Appeal’s (SCA’s) November 2014 judgment, ordering steel producer ArcelorMittal South Africa (AMSA) to hand over the 2003 Environmental Master Plan for its Vanderbijlpark steel plant to environmental pressure groups, confirmed the right of civil society to environmental information from both public and private organisations, three civil society organisations argued on Monday.

The Centre for Environmental Rights, local environmental justice organisation Groundwork and environmental pressure group Vaal Environmental Justice Alliance (Veja) further said that the judgment should act as a warning to companies and government agencies to disclose environmental information to interested parties to enable those parties to determine whether their rights to a healthy environment have been impacted.

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The judgment was expected to materially influence the current case in the KwaZulu-Natal High Court against the eThekwini metropolitan municipality to release the atmospheric emission licences and compliance reports of two south Durban refineries – the Engen refinery and the Sapref refinery owned by Shell and BP South Africa – in terms of the Promotion of Access to Information Act (Paia).

The municipality had refused requests for these records, arguing that they contained trade secrets; financial, commercial, scientific or technical information, which, if disclosed would likely cause harm to the financial or commercial interests of Engen and Sapref; or that the information was supplied in confidence and its disclosure could put Engen and Sapref at a disadvantage or prejudice them in commercial competition.

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Internal appeals against the municipality’s decisions had also failed.

Centre for Environmental Rights pollution and climate change programme head attorney Robyn Hugo noted that the SCA’s unanimous November judgment was the leading case in the rights of citizens to environmental information, and lower courts could, thus, be approached for pronouncement when seeking to access environmental information from private or public organisations, without limiting associated rights to appeal such pronouncements.

The request for access to the Vanderbijlpark plant master plan document, which contained environmental information about air and water pollution undertaken by an expert toxicological third party on behalf of AMSA, had been granted with regard to the Paia.

University of the Witwatersrand Centre for Applied Legal Studies deputy director Lisa Chamberlain said the Paia provided for specific sensitive commercial and/or financial information to be redacted to protect the financial or commercial interests of an organisation, and that this could, therefore, not be a reason to refuse environmental information to concerned or affected parties.

Groundwork director Bobby Peek, meanwhile, commented that national and provincial departments often had access to documents containing environmental information, as these documents were submitted for water-use and air-emissions licences. He hoped that the judgment would mean that such licensing information would be made automatically available to the public.

Veja coordinator Samson Mokoena added that the organisation would consult with its partners and citizens in the Steel Valley area to determine their expectations.

Further, the organisation said it remained open to engaging with AMSA on any and all issues related to environmental and pollution matters, including public engagement, remediation or compensation.

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