Desiree Abrahams, Senior Programme Manager, Clean Air
According to the World Health Organisation (WHO), each year, exposure to ambient air pollution contributes up to 7 million premature deaths.1
In adults, heart disease and stroke are the most common causes of premature death attributable to outdoor air pollution. For children, respiratory infections, aggravated asthma, and reduced lung function are the main health conditions associated with air pollution, which in some extreme cases, can trigger death.
Air pollution is a threat to the health of all people in all countries around the world.
That said, data confirms that it harms people living in low- and middle-income countries the most.2 In addition, those considered the most vulnerable in society, such as children, the elderly and those suffering from underlying health conditions are also disproportionately impacted by air pollution.
Air pollution and human rights
By effecting human health so severely, air pollution impacts human rights, as per the Universal Declaration of Human Rights (UDHR), such as, the right to health (Art. 25, UDHR), the right to education (Art. 26, UDHR), the right to work (Art. 23, UDHR), and in extreme situations, the right to life (Art 3, UDHR).
Although in many air pollution legal cases, human rights arguments are legally applicable, to date, they have not been explicitly invoked.3
However, despite this, in some cases, positive human rights outcomes, such as the health and restitution to one’s way of life, have been considered of paramount importance by some judges in their summing up.
For example, the legal arguments centred on the tort of trespass in the Brian and Rodica Resendez, and Debra Taevs v. Precision Castparts Corp. case.4 The case posited that toxic pollutants were discharged from the company’s facilities and negatively affected the defendants’ way of life and property. However, the judge specifically noted that:
“Any hardship caused to the Defendants by such an injunction is greatly outweighed by the benefits resulting to Plaintiffs and the Class members: including, but not limited to, the ability to live secure in the knowledge that the air they breathe, and the land they live on and enjoy and rely on for food, are safe.” Circuit Court of the State of Oregan, 1st October 2019.
Turning to constitutional law, in March 2022, a landmark ruling5 took place in South Africa. Environmental groups6 representing communities from the Mpumalanga Highveld region sued the South African government for breaches of their constitutional rights specifically:
- Section 24(a) the right to an environment that is not harmful to human health or well-being, and;
- Section 24 (b) the right to have the environment protected.
This ruling signals the immense power of the courts to hold governments accountable for their duty to protect citizens from the consequences of adverse air pollution, and in doing so, contribute to positive human rights outcomes for citizens.
The ruling is ground-breaking on several counts.
1. The judge (Judge Collis) agreed that Section 24(a) of the Constitution provides an immediate, unqualified right to an environment that is not harmful to health and well-being, and therefore, unequivocally, “the long-standing, ongoing, and unsafe levels of air pollution in the Highveld Priority Area continue to breach this right.” [32: page 17/123].
2. The judge ordered the government to pass regulations to implement and enforce the Highveld Priority Area Air Quality Management Plan within six months of the order. [27.5: page 15/123]
The focus on immediate action highlights how the courts interpret the magnitude of harm to human health from air pollution, as it was not subjected to the ‘progressive realisation’ standard.
3. The judge issued direct responsibility to Environment Minister, Barbara Creecy, stating she has a legal duty to pass these regulations within 12 months, and noting that she had, to date, “unreasonably delayed” in preparing and initiating regulations to give effect to the Highveld Plan. [241.4. page 118/123]
4. The judge had noted that, to date, it was held that “[m]ajor polluters don't consider Highveld Priority Area Air Quality Management Plan as a legal document that can be enforced”, however, under the March 2022 judgment, it was held that:
“major polluters and other stakeholders will now be obligated to submit emission reduction plans aligned with the Highveld Plan goals, on pain of sanctions.”[206.1 page 105/123]. In this case, the major polluters cited were Eskom and Sasol.
There is no doubt that those suffering from deteriorating health outcomes, exacerbated by toxic air pollutants would like to know that their human right to health, education, and ultimately life, would be a valid enough reason to ensure the reduction or cessation of activities and practices that contribute to air pollution.
To date, this reality has remained elusive, and lawyers have struggled to effectively employ human rights legal arguments.
However, as these cases have shown, there are other innovative legal pathways that victims can explore as they seek justice for harm deriving from air pollution.
Every day, the legal world waits with bated breath as climate change litigation grows and human rights arguments become more audacious and systemic in scope, as noted by Savarasi and Aux (2019).7 Hopefully, it is only a matter of time before the same can be said for litigation concerning air pollution.
 There are exceptions such as the case of a Bangladeshi man whose expulsion order was overturned by a court in Bordeaux, France, based on health concerns, namely, it was held that returning to Bangladesh would lead to “a worsening of his respiratory pathology due to air pollution.” https://www.theguardian.com/world/2021/jan/12/bangladeshi-man-with-asthma-wins-france-deportation-fight 21/01/2021
 The environmental justice groups working together were groundwork, the Mpumalanga community organisation, Vukani Environmental Justice Movement in Action (Vukani) and the Centre for Environmental Rights.
 Savaresi A & Auz J (2019) Climate Change Litigation and Human Rights: Pushing the Boundaries. Climate Law, 9 (3), pp. 244-262. https://doi.org/10.1163/18786561-00903006