Our Children for the World

A just transition demands the best for the worst-off

Loggerhead turtle hatchling at Bhanga Nek, KwaZulu-Natal (2022). Photo: Author

An abridged version of this post was originally published in the Mail and Guardian.

There! I spotted a tiny creature, a second’s old turtle—a flawless replication in miniature of the loggerhead turtles I have come to know and love. Dozens emerged from their nest, embarking on the treacherous journey into the ocean and beyond. I became overcome by the sublime—the feeling of overwhelming awe when the human scale in the universe is fleetingly appreciated. Hatchling turtles are significant at the scale of the minute, as embodied by these tiny beings, and the vast.  The vast for they have repeated their rhythmic journey into and out of the ocean for millennia; for generations returning to the same spot, where I stood.

I was camping at Bhanga Nek, an optimistic example of community-led conservation. Nonetheless, this community, like all communities, is at the mercy of the economy of South Africa. 11 years of per-person production decline has left destitute an already impoverished KwaZulu-Natal.

The Bhanga Nek community-led project has aligned the protection of turtles with the community's prosperity. Unfortunately, in our courts and the national conversation, a trade-off in favour of the prosperity of turtles and other marine life has begun to win against reducing the impoverishment of our people. As a result, several companies have been interdicted to prevent them from 3D seismic surveying South Africa’s coasts for fossil fuels, primarily natural gas. Below, I argue that 1) there is a significant cost to the average South African from preventing seismic surveys, 2) that there is insufficient evidence proving harm from seismic surveying to marine ecosystems, 3) that domestic production of fossil fuels is unlikely to increase our first order carbon consumption, 4) that even if there is a moderate cost to marine wildlife or the climate, we as citizens of South Africa should still favour the production of domestic fossil fuels, and finally, 5) that our courts have not found a just balance between the rights of the collective and the rights of identifiable communities. Finally, I believe consultation must be replaced with ownership. If these communities are to have their traditional lands plundered, they should reap complete financial security.

1)   Will seismic surveying benefit the average South African?

South Africa has the highest measured unemployment rate in the world. Production per person has declined for more than a decade. Child hunger has spiked over the last two years. Consequently, South Africans existentially rely on welfare grants—from the child support grant to the older person’s grant. These grants are costly. We can pay for them either through revenue collection or debt. Revenue collection has taken a sharp decline in step with the decline in production. Any further cost to doing business from raising tax rates will further erode our productivity and thus future revenue collection as we are already on the wrong side of the Laffer curve. This has led the state to take on more debt. Interest payments on debt will be the largest budgetary expenditure, larger than education or healthcare. The fiscal health of our country is perilous.

The hero in this story of falling revenue collection has been the commodities boom. The unexpected boom led to R120bn more revenue to be collected than treasury expected (remaining 105bn lower than the previous years). Poverty and commodity exports are intimately related. Without these unexpected gains from commodities, it is unlikely the social relief of distress (SRD) grant would have been extended. With this surplus revenue likely temporary, the finance minister has signalled the SRD is unlikely to be permanent. This is all to say that it is easy to underestimate the magnitude of natural resource taxation as a source of revenue.

Seismic surveying is not guaranteed to lead to the discovery of natural resources and the tax revenues therein. Yet, petrochemical companies do not invest millions in surveying if the chances of discovery are low. With recent discoveries in Namibia and Mossel Bay, the expected value of this surveying is significant. Moreover, the chilling effect from interdicting the surveying will have a longer-term cost. Long term exploration and extraction of natural resources will decline in South Africa from the increased risk of ministerial granted explorations rights being overturned in our courts. Already, Sapref is closing down explicitly on these grounds.

The above is only the indirect benefit through revenue collection. Exports (or import substitution through improved comparative advantage) increase foreign reserves, which are essential for economic growth. A faltering engineering sector would be revitalised. Finally, and perhaps most salient to the average South African, the price of petrol and electricity could plummet, especially in the long run. You, dear reader, might be wealthy enough to forgo this reduction in fuel prices in the name of the environment, but that is undoubtedly not the democratic will of South Africa’s people. Job growth requires energy; the cheaper the energy, the more jobs.

2)   Will seismic surveying harm marine wildlife?

The original Wild Coast judgement found the likelihood of marine wildlife harm if the firms followed their submitted EMPrs, was negligible. It is beyond the scope of this piece to engage comprehensively with the expert evidence submitted. Instead, I turn to the public conversation. A panel of seven academics from the University of Pretoria published a piece in The Conversation that claims the evidence of harms to marine wildlife provides a “basis on which to act” to stop seismic surveying. Although this is not court evidence, this team would be upheld as independent experts of the highest calibre (the three tenured professors alone would suffice). Unfortunately, the seven pieces of evidence they cite do not categorically support their conclusion. With our courts and legal community having effectively no training in statistics, there is little hope that our courts can decide such cases on the facts.

1)     Plankton - McCauley et al., 2017

“Previous attempts to quantify ecological scale impacts on planktonic larvae from seismic surveys used modelling scenarios with impact ranges of < 10 m (Kostyuchenk 1971; Dalen & Knutesen, 1971) and suggested insignificant impacts compared with the naturally high turnover of plankton” (McCauley et al. 2017). Yet, we are given no substantiation for why this study provides more compelling evidence than the two studies cited. And there’s good reason we ought not to put too much weight on the evidence provided in McCauley et al. (2017). For starters, the basic requirements of data reporting and transparency—such as how the samples were collected, the sample sizes, the standard errors of the estimates, and so forth—are omitted from the study and online appendix.

Further, higher-level trophic levels, such as fish stocks, would collapse if seismic surveying significantly reduced plankton populations. Yet, such a collapse has never been reported. Even countries with politically powerful fishing industries have not banned seismic surveying, almost without exception.

2)    Turtles - Nelms et al., 2016

Now we turn to turtles, so dear to my heart. The study cited by The Conversation authors is not an experiment in itself but a “systematic review, policy comparison and stakeholder analysis”. The Conversation authors characterise the study as finding that turtles are “similarly affected by seismic surveys”. Similarly here means similarly to their characterisation of the effect of surveying on plankton, namely death. The following is the evidence cited in the systematic review. McCauley et al. (2000) found that caged turtles increased their speed and swam to the surface. Pendoley (1997) “reported no signs of panic or distress”. If there is an effect of seismic surveys, this effect has not been distinguished from the impact of the survey vessel itself (DeRuiter and Larbi Doukara, 2012). Various studies show that turtles can hear seismic sounds, but no study has found hearing damage. There is not even a single published instance of turtles becoming entrapped in the long tail buoys used in surveying. Nelms et al. (2016) provide no conclusive evidence of harm to turtles or their populations. Indeed, 2D surveys just off the coast where I fell in love with my hatchlings, have had no perceptible effect.

My dad with a green turtle in Madagascar (2007)

Photo: Author

3)    Scallops - Przelawski et al. 2018

Let me quote but a single sentence from this study: “No adverse effects on scallops that could be linked to the 2015 marine seismic survey were detected” (pg.  754).

4)    Whales

a.      Southall et al., 2013

This first study The Conversation authors cites is not peer-reviewed evidence that seismic surveys cause whale strandings but rather an investigation into an instance of whale strandings in Madagascar (Southall et al., 2013). The investigators caveat their claim by saying that it was the survey vessel's very particular movements that channelled the whales onto shore (pg. 4). There is no attempt to distinguish this from the effect of the vessel itself. And the authors provide near exhaustive qualifications to their claim:  “There may well be a very low probability that the operation of such sources will induce marine mammal strandings - animals may simply avoid them or even ignore them most of the time.” (pg. 5) and “This is the first known such marine mammal mass stranding event closely associated with relatively high-frequency mapping sonar systems.”  (pg. 4). Thus, there is no reason for South Africans to fear the loss of our magnificent whales, particularly since the EMPr submitted requires the surveying firm to conduct low volume blasts to give time and warning for whales to move away from the survey vessel.

b.    Weilgart, 2007

The second evidence cited makes a much stronger claim about the harm of ocean noise to whales (Weigart, 2007). Again, this is not a peer-reviewed study. The bulk of this paper’s analysis is on the harm to beaked whales, which do not readily occur in South Africa. Pygmy sperm whales, long-finned pilot whales, and dwarf sperm whales are the remaining species identified in the literature review as having been associated with strandings. Long-finned pilot whales do not occur in South Africa, and the dwarf and pygmy sperm whales are of “Least Concern” on the IUCN’s Red List (the lowest risk of population decline).

Nonetheless, this paper does make a persuasive case that there are harms to whales from oceanic noise pollution, even if not at the population level. However, the cause of the noise seems to matter little. The authors identify Seismic surveying as adding similar levels of noise pollution as military sonars and supertankers and natural sources (pg. 1094). It seems clear to me that appropriately implemented seismic surveying cannot be shown to have an acute effect on whales. Nonetheless, better legislation on oceanic noise is likely needed. 

­The authors cite a third unattributed note on whales, but this has no more compelling evidence than in Weilgart (2007) and a study on the frequencies of seismic blasts, which finds some “behavioural changes” but no hearing damage.

Lastly, many countries with much stricter environmental laws and higher burdens of proof for non-harm readily allow seismic surveying. Australia, which protects its barrier reef and ocean wildlife as a vital national asset, surveyed more than 15000km of the ocean every three months for years. Norway’s seismic surveying guidelines state that “experience shows that fisheries and petroleum activities can coexist at sea”, guidelines cited by The Conversation authors! With minor exceptions, such as Belize, almost no country has banned seismic surveying regardless of their dependence on fish stocks or environmentalist fervour. If no harm can be identified, there is no standing for which a case can be brought to a South African court. Indeed, the commercial fisheries—which rely on the same fish stocks as the community fishers and have far greater research capacity—did not object to the surveying.

Lastly, the precautionary principle is often misused to support environmental claims. The principle states that under scientific uncertainty, one should err against the side with the most plausibly irreversible harms. Yet, no plausibly irreversible harms have been demonstrated, while not feeding our children enough is certainly an irreversible harm.

3)   Will seismic surveying worsen global warming?

Much written on seismic surveying begins with harm to marine wildlife before pivoting to global warming. The international weight of climate change appears to motivate much being written on the surveying. Harm to marine wildlife and therein local communities (which has significant legal implications/precedent) is used to smuggle in the cause of global warming. Nonetheless, will seismic surveying worsen global warming?

The additional supply of fossil fuels will decrease the world price of fossil fuels and thus increase the quantity consumed and the CO2 produced. However, the same is true of a fossil fuel discovery anywhere on earth. Except, here, SA gets to reap the benefit.

There are three reasons to believe domestic fossil fuel production will reduce SA’s first order CO2 production. First, we primarily import fossil fuels from the Middle East, West Africa, and Mozambique. Beyond these sources' well-documented sociopolitical and environmental consequences, transporting fuel from these areas to South Africa is carbon-intensive in itself. Second, natural gas (what is most likely to be discovered) is a complement to, not necessarily a substitute for, renewable energy. Natural gas generation reduces the largest cost in a renewable grid, energy storage, i.e., batteries. Most renewable energy is collected during the day (as there is more wind, sun, etc.) and requires storage for use at night. Natural gas generators can bridge this gap as they start up and turn off quickly, unlike other generators (pg. 2). Third, South Africa is far from an entirely renewable grid; we will be using fossil fuels in the interim. Of fossil fuels, natural gas produces the lowest quantity of CO2 and other air pollutants, by far.

Whether the marginal reduction in the world price of natural gas will increase CO2 production more than the three aspects above, I cannot say for sure. However, domestic fossil fuel production would not directly put another car on the road or build a polluting factory. But it will provide South Africa with a relatively green alternative to our current overreliance on coal and crude.

4)   Does South Africa have an ethical obligation to mitigate carbon production?

I hope I have made a persuasive case that the harm from seismic surveying to marine wildlife and the climate is likely to be minimal. However, even where there is a real trade-off between carbon production and economic growth, I believe we as South Africans should often favour the latter. Were South Africa to stop producing all carbon tomorrow, the harms to South Africa from climate change would be almost identical. This is because South Africa produces less than 1.1% of global C02eq and so, at most, SA could reduce the harms of global warming to itself by 1.1% (in reality, the harm reduction is a fraction of this due to historical emissions). Africa has produced a vanishingly tiny proportion of historic global carbon. Africa is the most vulnerable continent to climate change and is predicted to be hit with the highest adaptation costs, on top of already unacceptable and growing levels of impoverishment. The point at which carbon-free energy becomes cheaper than fossil fuels (in expectation) is the point at which South Africa should switch. Any point before then would be placing the burden of climate change on those who least caused it, are least able to stop it, and who will suffer the most from it. Energy is required for development, for jobs. In a country where so many feel the absence of energy and electricity dearly, caring for global warming before our people’s prosperity is environmental elitism. We should not sacrifice our children for the world.

5)   Can the public good matter more than losses to identifiable groups?

In matters of justice, harms and benefits aggregate at different levels. Global, national, communal, and individual rights are often in tension with one another. I have made the case that at the global level, South Africa’s responsibility is proportional to its capacity to mitigate; at the national level, the tax revenue and economic stimulus of domestic fossil fuels will benefit the average South African; at the communal level and individual rights level, I have argued there is no reasonable expectation of harm.

I have argued that the provision of material rights (housing, food, education, etc.) to the average South African is substantially supported by the extraction of domestic fossil fuels. I believe that even if an identifiable group of people’s rights are curtailed, rights are always traded-off against each other. Some level of basic rights provided to the public good should render this rights trade-off just. This, if and only if non-derogable rights are always protected. Concentrated losses and diffuse benefits (to the public good) typically lead to the small number losing to organise and make claims against the public good. In contrast, the general public loses at every margin but has no one cause around which to organise.

I believe our courts err by too frequently supporting individually identifiable rights claims at the expense of the average South African. Our institutional apparatus scores low for its facilitation of inclusive economic growth. Economic growth reliably alleviates suffering more readily than judgements upholding individual rights. China is a regrettable example of how suffering can be reduced en masse, 110 000 people escaping extreme poverty every day for 20 years without commensurate human rights protection.

There is an important historical reason for this bias towards identifiable groups of people. During apartheid, there was no instantiation of the democratic will of the people, for the government was not democratic. Thus, liberal jurisprudence developed around protecting groups of people against the state's authoritarianism, evidently vital. However, we are not in apartheid—we are not China—we live in an oft underappreciated real democracy. The granting of exploration rights by a democratically elected government must be accepted as the democratic will of the people. Should those exploration rights be legal and constitutional, the courts must protect those rights.

Of course, the legality of those exploration rights is what is at stake. The LRC and Richard Spoor and Inc (those litigating in the matter) have nothing but my admiration. However, I think they have got the facts wrong in this case. Otherwise, the most cynical explanation is that they believe global warming justifies lawfare. I favour the former explanation. Nonetheless, I enjoin them and the public to reflect on the systemic reasons South Africa has experienced little poverty reduction in a decade while the rest of the world has seen more poverty reduction than ever before. Prioritising productivity and median per capita income growth is the only demonstrated path to prosperity.