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The polluter pays principle is an environmental law concept that requires any person or entity that causes pollution to be responsible for the costs of managing such pollution in order to prevent or repair harm caused.

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Sizwe sama Yende

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Individuals and communities in South Africa affected by adverse climate change due to fossil fuels pollution can sue responsible companies for loss and damage.

This is according to a report released by the Centre for Environmental Rights (CER) on March 20.  The Polluter Pays for Climate Change Loss and Damage report focuses on the devastating floods in Durban, KwaZulu-Natal, in 2022 that left 443 people dead and 48 missing.

The unprecedented floods also damaged 26 000 houses, 600 schools and 84 health facilities. Government was left with a huge bill of R10 billion to repair transportation, communication, water and electrical infrastructure while various sectors recorded major losses - manufacturing (R431m), agriculture (R12.6m), construction (R18m), wholesale and retail (R46m), and warehousing and logistics (R33m).

The United Nations Climate Change Conference (COP 28) reached a milestone last year when it approved the operationalisation of the loss and damage fund and mobilised US$800 million from various countries.

Poor countries in Africa, which contributed less to greenhouse gas emissions, were the most affected by climate change. 

POLLUTER PAYS PRINCIPLE

CER researchers and authors of the report believe that the South African law of delict made provisions for claims against carbon majors or polluters.

The National Environmental Management Act 107 of 1999 (NEMA), the report says, also adopted the polluter pays principle which states that: “The costs of remedying pollution, environmental degradation and consequent adverse health effects and of preventing, controlling or minimising further pollution, environmental damage or adverse health effects must be paid for by those responsible for harming the environment.”

The polluter pays principle is an environmental law concept that requires any person or entity that causes pollution to be responsible for the costs of managing such pollution in order to prevent or repair harm caused.

Co-author of the report, Michelle Sithole, said that many of carbon majors (big companies responsible for climate-changing carbon and methane emissions) were based outside South Africa in countries such as Saudi Arabia, Russia, US and the UK.

“In this regard one would set their sights on a foreign carbon major, however the preference would be for one with a South African subsidiary,” Sithole said.

ATTRIBUTION SCIENCE

She said that the application of attribution science would be used to determine if climate change was responsible for the KZN floods or not. “Initial studies by World Weather Attribution have already established a link between the KZN floods and climate change. Attribution science will play an important role in bringing cases against carbon majors/polluters, in showing that it is more probable than not that a carbon major’s actions caused or contributed in a significant way to the KZN floods,” she said.

The report, however, indicated that an initial wave of climate change lawsuits against fossil fuel producers in the mid 2000s, mainly in the USA, were generally not successful.

“That said, the work put into litigation in a developing field is mostly ultimately constructive as evidence resources are built, experts are sourced and legal arguments are expanded and refined. There was a lull in cases brought, until the carbon majors report described above was released. This knowledge, along with the rapid development of attribution science, were among the factors which saw a resurgence of legal action of this type, and there are currently around 60 cases filed against carbon majors.”

KZN CLAIM

The report indicates that compensation in the KZN case could be claimed for losses of public infrastructure, both built and ecological; loss of homes, goods and community infrastructure in both formal and informal settings.

Furthermore, compensation could be claimed for loss of access to services, including healthcare, education and sanitation; damage to food production resources, including small scale farming;  physical and mental health impacts, including individual and collective trauma;  loss of access to transport and the ability to be economically active; losses to businesses, formal and informal;  loss of a sense of place, social cohesion, stability;  loss of tangible and intangible heritage; and environmental harm beyond obvious and quantifiable ecosystem services.

“Some of these items reflect the growing exploration of non-economic loss and damage – that which cannot simply be replaced via monetary compensation. It is essential to ensure that the pursuit of redress is informed by the principle of climate justice,” the report says.

“Poor people and communities do not have access to many of the resources required to rebuild their lives, and appropriate forms of compensation and how these are applied must be prioritised.”

POLLUTERS MUST REDRESS CLIMATE CHANGE

The report indicates that the law would need to be developed for polluters to take responsibility for redress for climate change.

The responsible parties could be forced to take part in climate resilient upgrading of informal settlements;  climate resilient upgrading of formal infrastructure and public assets; enhancing and replicating interventions such as the community ecologically based adaptation measures; enhancing and replicating the community based flood early warning system and other inclusive disaster response measures;  creating green jobs and green economy initiatives that address unemployment and poverty while increasing economic climate resilience.

Scientist and founder of the Climate Accountability Institute, Richard Heede, along with Professor Marco Grasso, released a paper in 2023 which makes the case for reparations claims against the top 20 carbon majors.

The research indicates that the cumulative cost of climate damages (based on loss of GDP) for the period 2025 to 2050 is broadly estimated at US$99 trillion.

The paper posits apportioning this amount equally across: fossil fuel producers; consumers who use the products; and the political authorities who should be taking action and failing to do so.