What is the Law on Air Pollution?

Clean air is perhaps the most vital, yet most overlooked natural resource in all of human history. It’s so plentiful that most people go through it each and every day without giving it a moment’s notice, but if it were to disappear for just a couple of minutes, few animals would still be standing when it returned. This permanent abundance has led some people to ignore the more insidious aspects of air pollution but, over time, more and more images of major cities wrapped in an impenetrable layer of smog and toxins have given pause to many environmentally-minded individuals around the world. It may have even got you to ask a few questions, such as – What does the law say about air pollution? What kind of laws protect against it? And what kinds of penalties exist for people who break them? What is the Law on Air Pollution?

Air pollution is a tricky subject to deal with due to the multitude of variables inherent in its nature. Although there are multiple pieces of legislation that seek to prevent, manage, and penalise air pollution throughout the country, there are also various factors that go into determining whether air pollution has taken place and the extent to which it has been curtailed.

To give you an example, while air pollution is generally condemned by the legislature, the authorities won’t simply arrest a factory owner because one of his chimney stacks is spewing out smoke. Instead, the law would first have to see how the pollution registers against the National Ambient Air Quality Standards, which will consider things like – 

  • The specific element or particulate being released into the atmosphere
  • The concentration of this element or particulate
  • The averaging period
  • The frequency of exceedance
  • Etc
What is the Law on Air Pollution?
What is the Law on Air Pollution?

In other words, while most by-laws will state that no person may intentionally or negligently commit air pollution, the question of what constitutes air pollution is far more nuanced in its application.

What Laws Are In Place for Pollution?

As mentioned, there are multiple pieces of legislation that deal with the topic of pollution, each with its own specific laws and guidelines. They range from waste management acts to hazardous substance acts and may occasionally overlap in their implementation. 

Normally, laws will not simply state that ‘pollution is illegal’, but will instead establish distinct levels of unacceptable pollution and the ways in which they can be measured.  

With regards to air pollution specifically, the primary pieces of ordnance that need to be considered are – 

Air Pollution Laws

Legislation Resulting Laws
The Constitution of South AfricaThe Constitutional Court recently ruled that clean air is a constitutional right in South Africa. This means that citizens have a right to an environment that isn’t harmful to their health and wellbeing.  
The Air Quality Act This act provides the country with certain baseline standards when it comes to the monitoring, management and control of air quality.
Provincial By-lawsThis is where the majority of specific laws and regulations come from in terms of air pollution standards. Each province has created its own by-laws which act in accordance with the air quality standards mentioned above. 
These by-laws usually identify specific pollutants and actions which are then either regulated or outlawed. 

What can the Government do about Air Pollution?

Most provincial by-laws provide the local government with a few options that they can use to tackle the issue of air pollution, they are – 

  • Fines and/or Imprisonment – Air pollution offences as determined by the respective by-laws can be punished with imprisonment and fines of up to R300 000 with additional fines and sentences being imposed for continued offences. 
  • Mandating Remedies – Alongside fines and prison sentences, courts can also compel a guilty individual to remedy the harm that they have caused with their pollution. 
  • Damages – Courts can also force a guilty party to pay damages for harm done to another person or to their property. 
  • Mitigation of adverse effects – The guilty party may be forced to purchase equipment and/or technology that will mitigate the negative effects caused by their air emissions. 
What is the Law on Air Pollution?
What is the Law on Air Pollution?

What are the 6 Environmental Laws?

Each country has its own set of environmental laws which work either individually, or in tandem, to protect and maintain the environment. In South Africa, the main 6 environmental laws are – 

The National Environment Management Act (NEMA)
The National Environment Management: Air Quality Act
The National Environment Management: Biodiversity Act
The National Environment Management: Protected Areas Act
The National Environment Management: Waste Act
Hazardous Substances Act

Obviously, there are many other, more nuanced acts that also play a role in environmental protection legislation and governance, but those mentioned above generally provide the lion’s share of the guidance.

What are the 3 Important Areas of Environmental Law?

Although environmental laws cover a wide array of areas and concerns in modern life, the 3 most vital areas include – 

  1. Land-use Planning and Development
  2. Resource Conservation and Utilisation
  3. Waste Management and Pollution Control

It is within these 3 zones that the majority of environmental protection work is regulated and accomplished. 

Can I be Fined for Air Pollution?

Yes, you can. While the precise severity of the punishment will vary from province to province, South African by-laws do allow courts to hand out fines and prison sentences to those found guilty of air pollution. 

Obviously, these penalties will also depend on things like – the extent of your pollution, its frequency, the chemicals and particulates being released, etc., but particularly egregious pollution can result in fines of hundreds of thousands of rands and prison sentences of multiple years.  

You can also be forced by a court to pay for remedial actions as well as for damage done to individuals and their property that may have been caused by your emissions.

Although most of the air pollution rulings deal with emissions that can result in negative effects on public health or damage to property, there are also by-laws in place which regulate emissions that cause a nuisance. This can relate to anything from car sprays to dust-producing grinding tools which may not impact the health of those around you but do cause undue annoyance.  

What is the Clean Air Act of 1999?

Various ‘clean air acts’ have been implemented in different places around the world ranging from the United States to the Philippines. News coverage of these policies has led to some people using the name for South African legislation, however, in reality, the South African legislature has normally used different terminology.

The closest South African version of the Clean Air Act would probably be the Air Quality Act mentioned above. 

What is the Law on Air Pollution?
What is the Law on Air Pollution?

In Conclusion – What is the Law on Air Pollution and How is it Enforced?

Air pollution is a punishable offence in South Africa which can result in various penalties depending on the nature of the infraction. 

Not only can air pollution be punished with fines and/or prison sentences, it can also result in court orders forcing the guilty party to pay for equipment to mitigate the pollution or damages to people and property that have been affected. Additional penalties also exist for repeat offenders. 

That said, air pollution is not always easy to identify or quantify. There is a specific set of standards that determine whether or not emissions can be defined as unacceptable and therefore punishable. When dealing with each case, the courts will have to consider things like – the chemical/pollutant being emitted, the volume at which it is being emitted, the frequency of emission, etc. 

There are multiple pieces of legislation that deal with the topic of pollution and may overlap in certain areas. When dealing with air pollution, the most prominent ordinance to consider is the following – 

  • The Constitution – A recent court decision found that clean air is a constitutional right and that South Africans have the right to an environment that is not hazardous to their health. 
  • The Air Quality Act – This act provides various definitions and guidelines which help to steer local laws. 
  • Provincial By-laws – These are the specific rules which govern and regulate pollution in various areas of the country. They are all slightly different in their application but are all set in general accordance with the air quality act and other relevant national legislation.

While air pollution laws usually relate to harmful emissions which can impact the health of those around you, they can also include emissions that create a nuisance. In other words, continually creating a cloud of dust when you use an angle grinder may not impact the health of your neighbour, but it could create enough of a disturbance to be considered a form of air pollution. 

Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although our posts cite the constitution in many instances, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.

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