Winning SA’s first climate change court case: What it means for affected communities, industry, government and the people of South Africa

On 8 March 2017, the North Gauteng High Court handed down a landmark ruling in Earthlife Africa Johannesburg’s (ELA) case against the Minister of Environmental Affairs, the Department of Environmental Affairs (DEA), and Thabametsi Power Company (Pty) Limited. Referred to as South Africa’s first climate change litigation, it was the first time that South Africa’s courts were asked to decide such a case. More significant was the court’s key finding:  that ELA was correct in claiming that the Minister should have considered the power station’s climate change impacts before deciding whether to authorise it.

No appeal has been lodged by any of the parties against the judgment, and the deadline for the lodging of an appeal has now expired.

Thabametsi was selected by the Department of Energy (DoE) as one of two “preferred bidders” in the first bidding round of government’s plan to support the construction of a number of privately-owned new coal-fired power stations in South Africa, known as the Coal Baseload Independent Power Producer Procurement Programme, or CBIPPPP.

The DEA gave Thabametsi its “environmental authorisation” – i.e. environmental permission to build the power station – without adequately considering any of the climate change impacts that this project will have. This is the decision that ELA challenged in court.

The Thabametsi judgment has far-reaching implications not only for all South Africans, but also globally, given the global impacts of climate change.


What does this judgment mean for South Africa?
In short, the Thabametsi judgment confirms that:

The court ordered that Thabametsi’s environmental authorisation be suspended until the Minister makes a decision – after having considered the final climate change impact assessment – to refer the environmental authorisation back to the DEA for further consideration; to set aside the environmental authorisation; or to confirm the environmental authorisation.

This has significant implications for future fossil fuel and other large infrastructure developments, particularly the proposed projects under the CBIPPPP, which we address below.

The Thabametsi judgment should also pave the way for better policy decisions, which include consideration of climate change impacts.  South Africa is extremely vulnerable to the effects of climate change and whilst this is far from adequate, has committed, under the Paris Agreement, to pursue efforts to limit the global temperature increase to 1.5 degrees Celsius and to reduce GHG emissions from the year 2035.

Insofar as any further proposed coal-fired power stations are concerned, it is time to face the facts: the climate impacts of coal power plants cannot substantially be avoided or reduced. For that reason, it is extremely difficult for them to meet the requirements of the Constitution and of environmental laws. Clean, cheap renewable energy sources like solar and wind do not suffer from this legal constraint and should be preferred.

Download the judgment.


Watch a film clip on the court’s findings, including interviews with CER’s Nicole Löser and ELA’s Makoma Lekalakala: Clip on Thabametsi Court Victory.


What does the judgment mean for the future of coal IPPs in particular?
While the Thabametsi judgment has significant implications for future fossil fuel and other large infrastructure developments, the judgment is clearly a major blow for the future of the CBIPPPP.

The other proposed power station with preferred bidder status under CBIPPPP, the Khanyisa Power Station in Mpumalanga, received its environmental authorisation in 2013, without any assessment of its climate impacts. Environmental justice organisation groundWork, last week gave notice of its intention to challenge this authorisation, despite the time that has elapsed.

groundWork is also considering its legal options in relation to the proposed KiPower IPP Station in Mpumalanga, and the proposed Colenso IPP Station in Kwa-Zulu Natal, in respect of which the Minister rejected groundWork’s appeal relating to climate change impact assessments, inter alia on the basis that there is no legal obligation to consider climate impacts (clearly incorrect decisions in light of the Thabametsi judgment).

As for the more recent proposed IPP projects, some of which do not yet have authorisations, civil society organisations will continue to challenge these. Yesterday, groundWork and ELA submitted an appeal to the Minister against the environmental authorisation granted in March 2017 to Namane IPP power station (proposed for the same area as Thabametsi – Lephalale, Limpopo).  One of the grounds of appeal is that the environmental impact assessment and the DEA, in granting the authorisation, failed to consider the power station’s climate change impacts.

Finally, it is clear that these projects come with significant risk to investors – not only risks in relation to the environment, human health, and climate change, but also risks in relation to major civil society opposition to the establishment of new coal-fired power, which inevitably delays projects. This judgment shows that an environmental authorisation cannot be accepted as evidence of the consideration of and compliance with all environmental requirements, nor as evidence that the project is without substantial risk.

 

ELA is an NGO which mobilises civil society around environmental issues that affect people.

The Centre for Environmental Rights (CER), which represented ELA in this case, is a legal NGO of activist lawyers who work with communities and civil society organisations to protect people from the harmful environmental effects of polluting industries.

groundWork is a non-profit environmental justice service and developmental organization working primarily in Southern Africa in the areas of Climate & Energy Justice, Coal, Environmental Health, Global Green and Healthy Hospitals, and Waste. groundWork is the South African member of Health Care Without Harm and Friends of the Earth International.

Together with groundWork, the CER and ELA form part of the joint Life After Coal/Impilo Ngaphandle Kwamalahle campaign, which aims to discourage investment in new coal-fired power stations and mines; accelerate the retirement of South Africa’s coal infrastructure; and enable a just transition to renewable energy for the people.


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Some key findings from the judgment are set out below:

The Judgment

  1. The court confirmed that “coal-fired power stations … not only contribute to climate change but are also at risk from the consequences of climate change. As water scarcity increases due to climate change, this will place electricity generation at risk, as it is a highly water intensive industry”,[1] and that “[c]limate change poses a substantial risk to sustainable development in South Africa. The effects of climate change, in the form of rising temperatures, greater water scarcity, and the increasing frequency of natural disasters pose substantial risks. Sustainable development is at the same time integrally linked with the principle of intergenerational justice requiring the state to take reasonable measures protect the environment “for the benefit of present and future generations” and hence adequate consideration of climate change. Short-term needs must be evaluated and weighed against long-term consequences.”[2]
  1. The court confirms ELA’s long-standing argument that South Africa’s existing law (the National Environmental Management Act, 1998 (NEMA) and the Environmental Impact Assessment (EIA) Regulations) require climate change impacts to be assessed as part of an EIA. The judgment reads that, “[a] plain reading of section 24O(1) of NEMA confirms that climate change impacts are indeed relevant factors that must be considered. The injunction to consider any pollution, environmental impacts or environmental degradation logically expects consideration of climate change. All the parties accepted in argument that the emission of GHGs from a coal-fired power station is pollution that brings about a change in the environment with adverse effects and will have such an effect in the future”,[3] and that “(t)he absence of express provision in the statute requiring a climate change impact assessment does not entail that there is no legal duty to consider climate change as a relevant consideration … The respondents’ complaint that without explicit guidance in the law on climate change impact assessments, Thabametsi could not be required to conduct a climate change impact assessment, as there is no clarity on what is required, is unconvincing.”[4]
  1. Thabametsi and the state had argued that Thabametsi’s EIA had considered climate change impacts of the proposed plant, but found these impacts to be low. This despite the fact that the specialists had subsequently assessed the climate change impacts and stated that the magnitude of emissions would be ‘very large’. The High Court confirmed that the claims that climate change impacts were low were not supported by any evidence, nor was there any attempt to quantify the power station’s GHG emissions in the EIA.  This implies then that developers and consultants can no longer get away with generic or glib statements that the climate change impacts of their projects will, in the national or global context, not be very high.  The court notes that “[t]here is no denying, when regard is had to the scope of work report and the climate change report issued after the Minister’s appeal decision that when the Chief Director made his decision he was possessed of scant climate change information consisting of the single paragraph in the EIR, which in comparison to that in the scope of work report and the climate change report was wholly insufficient.”[5]
  1. The court found that it was not possible to weigh up the economic impacts with the climate change impacts, as DEA alleged should have been done. This weighing exercise could not have happened until DEA knew what the climate change impacts could be; in other words, this could only happen once the climate change impacts had been properly assessed.[6]
  1. Importantly, the court acknowledged that a climate change impact assessment requires more than just a quantification of projected GHG emissions – broader impacts must be considered; such as consideration of the fact that the power station will be based in a water-stressed region thereby “aggravat[ing] the impact of climate change in the region by contributing to water scarcity, raising in turn questions about the viability of the power station over its lifetime.”[7]
  1. The DEA and Thabametsi sought to rely on the IRP and the Determination to support their submission that the relevant climate change considerations had been considered by the Chief Director. There is no evidence to support the assertion that the IRP and the Determination gave adequate consideration to climate change”, held the court.  It held further that, “… in any event, … an abstract, macro-level assessment of the climate change impact of additional coal-fired power could not cast any light on the specific climate change impacts and mitigation strategies of specific coal-fired power stations located at specific sites. These relevant considerations are context specific and have to be distinctively considered. The policy instruments naturally will inform a competent authority assessing the environmental impact of a proposed coal-fired power station. But the respondents’ assertion that the instruments constitute binding administrative decisions not to be circumvented to frustrate the establishment of authorised coal-fired power stations is unsustainable, as is the notion that their mere existence precludes the need for a climate change impact assessment in the environmental authorisation process. Policy instruments developed by the Department of Energy cannot alter the requirements of environmental legislation for relevant climate change factors to be considered.”[8]
  1. The court “accept[ed] fully that the decision to grant the authorisation without proper prior consideration of the climate change impacts is prejudicial in that permission has been granted to build a coal-fired power station which will emit substantial GHGs in an ecologically vulnerable area for 40 years without properly researching the climate change impacts for the area and the country as a whole before granting the authorisation.”[9]

[1] Para 25.
[2] Para 82.
[3] Para 78.
[4] Para 88.
[5] Para 94.
[6] Para 100.
[7] Para 44.
[8] Paras 95 and 96.
[9] Para 119.