In the discussions of distributive justice there are two categories of things that can be distributed, the benefits and the burdens of society. It will be argued that the burdens created by business externalities (industry) are unfairly paid for by the environment and local, rural communities. This paper will look specifically at the effects of mining pollution in South Africa; the effects on the environment and people. Mining is one of South Africa’s biggest industries. This is hardly surprising due to its seemingly endless abundance of mineral resources. In 2017, the mining industry contributed 8 per cent towards South Africa’s gross domestic product (GDP). The country currently boasts having the fifth largest mining sector in the world with regards to the global GDP rankings (Brand South Africa, 2018). Additionally, South Africa sits with the top producing carbon emissions countries and has an incredibly carbon-intensive economy (Alton, et al, 2014:344).
Rawls’ theory of justice (justice as fairness) will be used to supplement the author’s argument that the burden’s created by business externalities are unequally distributed in society. This is to the disadvantage of the environment and society specifically, local, rural communities. In the ensuing paragraphs there will be a discussion on defining the problem and an explanation as to why the distribution is unjust. Following that, Rawls’ theory of the distribution of burdens will be elaborated on and finally, the theory will be applied to a case study of the South African mining industry, carbon taxes, the physical concerns associated with this and South Africa’s plan going forward. It appears that Rawlsian theory is sufficient to explain whether or not the environment and local, rural communities are facing injustice however, Rawlsian theory needs supplementing with regards to answering how to supersede historic injustice. The difference principle will be supplemented with Jeremey Waldron’s theory of superseding historic injustice.
1. WHAT IS THE PROBLEM AND WHY IS THE DISTRIBUTION UNJUST?
1.1 THE PROBLEM
The primary concern is that the mining industry produces both air and water pollution which is not responsibly or sustainably dealt with. This affects the health of the environment and, in turn, effects the living conditions for many people. The constitution of South Africa dictates clearly that all people have “a right to an environment that isn’t harmful to their health or well-being” (Constitution of the Republic of South Africa, 1996). A solution to this pressing issue is not within the scope of this paper however, it will discuss the unjust distribution of pollution; why it is unjust to distribute the burdens created by industry to the environment in light of Rawls theory of justice. It is important to note at the outset that it is not viable to put a stop to this industry as it continues to be a significant foreign exchange earner, as well as being critical to the country’s socio-economic development in that it creates job opportunities (Brand South Africa, 2018).
So, how does mining pollution affect the environment and communities? Mining pollution, also known as industry effluent, seeps into natural water sources via water drainage and causes pollution of streams (Jennett & Wixson, 1972:2104). This water often comprises a high fluoride concentration (1mg/1) which is higher than normal surface stream water. The most notable mining pollution is in the form of AMD (acid mine drainage). This type of pollution received a lot of attention in South Africa in late 2010 due to the contamination of a potable drinking source in Krugersdorp from the gold mines. McCarthy (2011:1) states that the problems of AMD are far wider than have been admitted before and to fully comprehend the impacts “it is necessary to take a much broader geographic view”. AMD is created when, during the mining process, there is an increase in exposure of pyrite-bearing rock to oxygenated water (McCarthy, 2011:2). This results in the generation of acid which in turn leaks into the water system.
The Vaal River is arguably the most important catchment area in South Africa as it provides water to Gauteng which is densely populated. This is important as a “large proportion of the coal deposits and all of the gold deposits lie within the Vaal River catchment” (McCarthy, 2011:2). There are processes in which polluted water can be treated to become potable however, it is almost three times more expensive than normal and cannot be used to ameliorate the general state of polluted rivers in the area (McCarthy, 2011:5). This poses a threat to the health of communities whose livelihoods depend on natural water systems. This water is unhealthy due to dangerously high acidity levels, high salinity and elevated sulphate concentrations (McCarthy, 2011:5).
1.2 WHY IS THIS UNJUST?
Rawlsian theory claims that this incident is unjust because someone (industry) is benefitting at the expense of someone else (the environment and society). This could only be justified in terms of the utilitarianism argument however, Rawls refutes the perfectionist argument with a convincing and critical analysis of its failings. Industry and firms in the past treated the environment as a dumping ground and an opportunity for exploitation however, after intense resource exploitation it is consequently impossible to ignore any longer. The way in which industry benefits is that it does not physically pay for the damage it does to the environment which, in past years, was not fully understood and thus was easy to get away with. But as science improves there is a better knowledge of the impact of AMD on the environment. This shows that there is no excuse for getting away with polluting water systems as the understanding of how it occurs is irrefutable scientific fact. In this way it can be understood that the injustice occurs as the damaged environment is lived in by communities who are being poisoned by their water systems which could have in fact been avoided with better management from mining firms and government regulations and enforcement.
2. WHAT DOES RAWLS SAY ABOUT THE DISTRIBUTION OF BURDENS?
2.1 DUTY OF ASSISTANCE
It is necessary to understand first why Rawls maintains that we should help burdened communities in order to bolster the thesis set out in the introduciton. Loriaux (2009:577) has a convincing argument highlighting Rawls main points. Loriaux explains that in the last few decades globalisation has impacted society in two ways: first, is the degree to which contemporary wealthy communities have the most capacity ever seen to help in the process of poverty improvements. This is due to “technological advances and sustained industrialisation” (Loriaux, 2009:577). The second way that globalisation has impacted society, according to Loriaux, is that the promotion of free trade on a global level has created deeply entrenched dependencies between communities who are involved in specific industry (Loriaux, 2009:577).
Rawls claims that we have a ‘duty of assistance’ to help ameliorate the situation of those living in worse conditions to us. This stems from his well-known tendency to limit the degree of egalitarian distributive justice to the domestic sphere, or “domestic liberal institutions” (Loriaux, 2009:577). Rawls defines the concept of ‘duty of assistance’ as helping improve the lives of others if they are indeed in a space where they are barred from having a just or decent political regime. This does not automatically mean that resources belonging to the wealthy should be transferred to the poor but rather that those who are “well-ordered” should help create decent institutions (Loriaux, 2009:578). This can only occur in societies where the minimal standards of international acceptability are met. These are defined as societies that uphold liberal democratic values and respect human rights (Loriaux, 2009:578). In this way Rawlsian theory can be applied to South Africa as the country has experienced difficulty due to past social and economic historic injustice, another contributing factor that Rawls highlights (Loriaux, 2009:578).
2.2 JUSTICE AS FAIRNESS AND THE ORIGINAL POSITION
John Rawls’s theory of justice is encapsulated by the phrase, ‘justice as fairness’. Rawls maintains that the justice of social institutions is not based on utilitarianism and their propensity to “maximise the sum…of certain advantages” but instead to measure their propensity to counterbalance the “natural inequalities” originating from one’s birth, aptitudes, and socio-economic situation, and to group those certain resources to serve the common good (Nagel, 1973:221). In light of this and the duty of assistance it is clear Rawls would call for a radical rethinking of how burdens are distributed in society today. In line with Rawls argument it would also follow that not only should the effected environment and communities be alleviated of their burdens, but they should be given additional help with righting the living conditions of those that have been victims of historical injustice and have been barred from being able to be part of a decent political (and economic) regime.
Rawls’ moral epistemology follows a certain process whereby he first explains that ethics should be dealt with as science is and not as a grand metaphorical ideal (Nagel, 1973:221). Ethics must develop though persistent engagement whereby the tension between theory and praxis is understood. The interplay between the theoretical and particular observation is not a science experiment (although it follows a scientific approach) and should be treated rather as “substantive moral judgements” (Nagel, 1973:221). Nagel (1973:221) explains that we can think of this in terms of linguistics: ethics discovers our moral sense just as grammar is seen to discover our linguistic competence. This conception of Rawls’ epistemology is inspired by his being a part of the social contract theorists. It must be mentioned that Rawls’ was quite different to his predecessors. Rawls uses an artificial device, called the ‘original position’, through which he develops principles of justice. This original position allows individuals to decide on their preferred principles of justice under a veil of ignorance in order to disallow bias and personal agenda to cloud moral judgements made for the many. The veil is important in deciding which principles of justice all people should and can follow.
2.3 TWO PRINCIPLES OF JUSTICE
The functional, or rather practical, doctrine that Rawls promulgates appears to be a “pure form of egalitarian liberalism” (Nagel, 1973:222) that has been borne from Rawls applying his veil of ignorance. The controversy of the doctrine lies in its features of anti-perfectionism (discussed earlier as Rawls’ rejection of utilitarianism), the idea of the primacy awarded to liberty and lastly, the circumstance by which Rawls’ doctrine is more democratic about liberty than other goods (Nagel, 1973:222). The metric to which institutions in society are measured by Rawls is not by their propensity to maximise the amount of specific advantages, but rather they are measured based on their propensity to respond to and neutralise the natural inequalities that arise from conditions of one’s circumstance at birth. These resources would thus be pooled and be available to those in society serving the common good (Nagel, 1973:222). Rawls measures the common good based on a set of restricted and basic benefits that individuals may have. These are individual and political liberty, advantages arising from economic and social standing, and an individual’s perceived self-worth (Nagel, 1973:222)
Rawls continues that institutions’ level of justice and treatment of the public is based on its adherence to two principles: the principle that the most amount of equal liberty must be accessible to all and second, the difference principle. The difference principle explains that both social and economic inequalities must be organised so that they serve the least-advantaged individuals in society or, in simpler words, the inequalities are permitted only in the distribution of primary economic and social advantages that benefit everyone (Nagel, 1973:222). Nagel concludes this thought by explaining that liberty, for Rawls, is prior in the sense that it cannot be forgone for advantages, except if they are incredibly limited or unjust and may prohibit the “the meaningful exercise of equal liberty until material conditions have improved” (Nagel, 1973:222) . This interpretation is radically divergent from the concept of ordinary equality of opportunity as this enables an excess of encouragement to the “morally irrelevant contingencies of birth and talent” (Nagel, 1973:222). In essence, that which truly matters is that all citizens are given the basic circumstances in order to realise her own aims.
3. CASE STUDY: SOUTH AFRICAN MINING INDUSTRY AND CARBON TAXES
AMD is considered the most concerning problem arising from the mining industry in South Africa. It occurs on mines which produce both coal and gold (Ochieng, Seanego, & Nkwonta, 2010:3351). As said above, the highly acidic water that becomes contaminated from mining activities is not able to be integrated into the natural water system consisting of rivers and underground watercourses. This level of acidity requires that the water is treated, to a certain degree, to attempt to “nullify or neutralise” the pollution (Ochieng, Seanego, & Nkwonta, 2010:3351). This case study will look specifically at the quality of water from the Blesbokspruit, Klip and Wonderfontein areas which have now shown to be “below standard due to the presence of acid mine drainage” (Ochieng, Seanego, & Nkwonta, 2010:3351).
3.1 PHYSICAL CONCERNS
With regards to the impact of AMD on communities situated locally to a mine, the acid drainage may damage the water system to such an extent that it is unfit for agricultural use which impacts heavily those who subsistence farm (Ochieng, Seanego, & Nkwonta, 2010:3353). Areas affected by AMD are often associated with a decrease in game fish, used for eating, especially see in species such as trout. This has impacts for “outdoor recreation and tourism” (Ochieng, Seanego, & Nkwonta, 2010:3353) which further impacts local communities who benefit from subsistence trade and seasonal holiday goers. Therefore it can be seen to what extent AMD can affect different industry and affect the lives of locals, aquatic reserves and additionally, it can “stunt terrestrial plant growth and harm wetlands” (Ochieng, Seanego, & Nkwonta, 2010:3353). Despite some critics maintaining that the concern for the environment is not warranted due to water being easily treated however, the treatment process is not always enforced. It is mentioned above that it is also a costly process to treat water but the main consideration going forward is how the government should enforce the treatment at a policy level. When this occurs mining activities will be a step closer to being a just industry. Later, there will be a discussion on a new plan that South Africa has for enforcing environmental justice, the carbon tax.
It is apparent that the surge of AMD existence in the water system threatens the water reserves of South Africa which are increasingly scarce. This scarcity is due to the nature of the South African climate but is being further exacerbated due to climate change and drought (Universal Periodic Review of South Africa, 2017:2). As a consequence in areas affected by mining activities food security decreases and so too does human health. This is a violation of the South African Constitution as the lack of health and food security might not be a threat if the mining industry took more responsibility. However it is not all doom and gloom. Technological advancements have soared to such an extent that much of the problem of industry effluent can be managed. But again, this needs to be enforced as it is an expensive process and will be avoided by industry if left to their own devices. An example of the technology that has been developed is the Rhodes Biosure process. This technology has been locally developed and is, to date, “the most cost-effective biological treatment option” developed for the reduction of sulphates in the effluent produced by mining (Universal Periodic Review of South Africa, 2017:2). This process is also revolutionary in that it does not require the addition of chemicals to water.
3.2 SOUTH AFRICA’S PLAN GOING FORWARD – CARBON TAXES
In line with the concern for a lack of government enforcement with regards to responsibility for pollution, the mismanagement of both mining and coal-fired power generation is responsible for not only water pollution but also air pollution, destruction of arable land, and biodiversity loss, violating the human rights of hundreds of communities, including their rights to life, health, water, food, culture and a healthy environment” (Universal Periodic Review of South Africa, 2017:2). South Africa is in fact making headway with regards to rectifying the injustice of businesses not paying for their pollutants and is in the process of implementing a carbon tax which will begin to take effect in 2019 (Alton, et al, 2014:344). The government has started “ambitious reductions” in an attempt to reduce its carbon emissions and greenhouse gas emissions (Alton, et al, 2014:344).
Alton et al (2014:344) explain that the degree to which changes are expected to be made will see a complete overhaul of industry in South Africa and “imply a structural transformation of the…economy”. The introduction of carbon taxes is the way in which the government is trying to combat a multitude of concerns. The carbon taxes will not only help with reducing carbon emissions but will also reduce other pollutants which will occur as a consequence of companies attempting to reduce their incredibly high carbon tax. The only politically sticky issue here is that Eskom, the state energy provider, will be exempt from carbon taxes (Winkler & Marquard, 2011:55).
3.3 WILL THIS PLAN HELP MORE THAN JUST THE ENVIRONMENT?
South Africa’s policy adjustments for carbon taxes will be revolutionary in terms of decreasing environmental degradation but will it help rectify the fact that the burdens of society’s industry have been paid for by local, rural communities and the environment in the past, and still currently? Rawlsian theory has so far been sound in understanding and making sense of whether injustice is in fact rampant. However, is Rawls capable of explaining how to supersede historic injustice in contemporary society in light of carbon taxes? Hendrix (2014:77) states that in discussion on superseding historic injustice, Rawls falls short and that a better a more solid argument comes from Jeremy Waldron. Hendrix (2014:77) explains that Waldron’s argument is more plausible with regards to moral aspirations as Waldron emphasises the complexity of real-life examples. Albeit a historical injustice may have taken place, its unjustness comprises the injustice that it “promised for the future” (Waldron, 1992:14).
Although, the above rejects the importance of Rawls’ difference principle which is sounds in terms of the theory for superseding historic injustice. In practice, Waldron makes some promising suggestions. To consider an action to be unjust is to “commit oneself to putting a stop to the ongoing situation” or in simpler terms, the acknowledgement of an injustice is a promise or commitment by a person to prevent the continuation of the specific injustice by being obliged to help in the development of remission (Waldron, 1992:14). Moreover, the injustices that have happened must not be thought of as “bygones” due to the fact that injustice persists and creates deeply entrenched tensions. The example that Waldron uses is in line with the expropriation and abuse of the Aboriginals in Australia. This is problematic on a few counts, the injustice is still being felt today as well as being perpetuated by the legal system.
Waldron thus suggests that because the historical losses of property can expire in moral relevance over time there is need for a revised metric for assessing what historic injustice needs reparations (Waldron, 1992:16). He continues by conceding that the extent to which historically grounded claims continue to be forceful requires pursuing future-focused justice. This is because past claims based on injustice need to be understood in terms of their fairness inside of a greater social matrix. In this view, one cannot ignore the burdens placed on the environment as they have not expired in moral relevance over time and instead the culmination of continued pollution has worsened the situation for all South Africans.
Thus, Waldron wants to move towards a divergent future, different to the future we seem to be headed to. Historically-grounded claims of industry destroying natural spaces (the common good) and ruining them for others can be understood as a more “general social practice of distributing resources in historically-constituted and non-egalitarian ways” (Hendrix, 2014:75). Thus, reimbursement grounded on historical losses, similar to most other suggestions of how to award property rights appears to give individuals control over resources for “morally arbitrary and therefore indefensible reasons” (Hendrix, 2014:75) . In conclusion, the theory needs to be substituted by a more sound egalitarian argument. In this way the government and concerned communities should aim to achieve the egalitarian goal instead of being consumed by past actions that cannot be changed in hindsight. The suggestion then is to switch the focus from utilitarianism theories to a more egalitarian perspective where “arbitrary compensation” is avoided. The argument has thus come full circle and we return to Rawlsian theory and should focus on the difference principle in practice. The tension between praxis and theory can be misleading. The difference principle becomes the final destination.
In light of the application of Rawls’ theory of justice to the burdens created by business externalities, the paper’s thesis is maintained that it is in fact unjust to distribute the burdens created by industry to the environment, which in turn effects the health of society. It is unjust as industry (mining actions) gains profits from the unjust distribution as they do not pay or take responsibility for the environmental degradation that they cause. Meanwhile the environment becomes polluted and potable drinking water is wasted. Additionally, rural, local communities who struggle financially have to make do with dangerously high levels of acidity in their water system which is damaging to subsistence agriculture. Rawlsian theory works well in terms of understanding the specific aspects of the distribution of burdens in society however, Rawls is limited in terms of his theory in making reparations for historic injustice. Simply implementing carbon taxes is not enough, according to Waldron’s argument, in attempting to rectify past injustice.
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