By Rachel Mulbry (Posted: December 3, 2014)
For years, residents in the Vaal Triangle, near Johannesburg, South Africa, complained of groundwater contamination from the nearby steel industry. Environmental activists with the Vaal Environmental Justice Alliance (VEJA) realized over a decade ago that having access to information about the industry’s environmental impacts would be essential in order to hold major polluters accountable for potentially illegal contamination. After years fighting in the courts, VEJA’s efforts were reaffirmed on November 26, 2014 by a Supreme Court of Appeal decision that dismissed an appeal by steel giant Arcelor Mittal (AMSA), forcing the company to release its Environmental Master Plan to VEJA. The Master Plan contains the documentation of pollution levels at AMSA’s facilities in the region, as well as its plans for environmental remediation. In their appeal, Arcelor Mittal argued that VEJA’s request to the company for environmental information, made in 2011 under South Africa’s Promotion of Access to Information Act (PAIA), was too vague and usurped the responsibilities of environmental regulatory agencies. The Supreme Court decision countered these arguments, stating that VEJA’s request was made in the public interest. The Court’s decision explained that in order to prove public interest, the requestor must supply a legitimate rationale for why the information is “reasonably required for the exercise or protection of his or her rights.” Arcelor Mittal’s history of environmental contamination in South Africa legitimated VEJA’s claim that access to information about the company’s environmental impacts was in the public interest. The case also highlighted the strategic legal value of comparing a company’s actions to their social and environmental commitments. Multiple annual reports from Arcelor Mittal contain a commitment to engage key stakeholders, including environmental organizations and affected communities. The company’s decade-long refusal to provide VEJA with relevant environmental information despite these commitments highlighted the discrepancy between company policy and actions. Robyn Hugo, an attorney at the Centre for Environmental Rights, which represented VEJA in the case, reiterated that the ruling “confirmed that this approach is not only disingenuous, but unacceptable.” Most importantly, the Court upheld the constitutional provision that “everyone has the right to an environment that is not harmful to their health or wellbeing” and highlighted the intrinsic connection between this right and the right of access to information. As VEJA Coordinator Samson Mokoena explained, “this judgment confirms what we have known all along – that we have a Constitutional right to know what AMSA’s impacts are on our health and the environment. Polluting companies like AMSA can no longer to try to hide this kind of information.” Moving forward, the ruling will have important implications for the governance of resource-intensive activities, including South Africa’s large mining sector. No longer will companies be able to safely assume that they can ignore or refuse requests for environmental information while publicly espousing good governance and a commitment to environmental protection. As the Court ruling concluded, “Corporations operating within our borders, whether local or international, must be left in no doubt that in relation to the environment in circumstances such as those under discussion, there is no room for secrecy and that constitutional values will be enforced.” This is an important victory for VEJA, the Centre for Environmental Rights and the residents of the Vaal Triangle. It is also represents a significant step forward for access rights champions across South Africa. The Access Initiative congratulates all those who worked to achieve this outcome. The complete Supreme Court of Appeals ruling can be found here.