In South Africa’s first climate change litigation the court’s key finding was that Earthlife Africa (ELA) was correct in claiming that the Minister should have considered the new power station’s climate change impacts before deciding whether to authorise it.
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.
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.
Far-reaching implications for global impacts of climate change
In short, the Thabametsi judgment confirms that:
- neither the DoE’s Determination calling for new coal-fired power, nor the Integrated Resource Plan for Electricity (IRP) trumps environmental legislation. Each project’s climate change and other environmental impacts must be individually assessed, and the DEA, or other environmental authority, must independently exercise its discretion on whether or not to allow a project to go ahead;
- coal-fired power stations are significant contributors to climate change, and climate change poses a substantial risk to sustainable development in South Africa;
- our existing law, the National Environmental Management Act, 1998 (NEMA), requires an EIA to include a comprehensive assessment of climate change impacts for all projects with potentially serious climate change impacts before a decision can be made as to whether to authorise the project;
- the EIA assessment of climate change impacts must not simply be a quantification of the project’s greenhouse gas (GHG) emissions: it must also include an assessment of the broader climate change impacts (like water scarcity and health), and how the project would make them worse. The assessment must also consider the extent to which the viability of the project itself will be affected by those climate change impacts; and
- in considering whether to authorise a development with significant climate change impacts, the environmental authority must determine which, if any, measures are required to reduce its emissions, and to ensure the resilience of the project and the surrounding environment to those impacts.
Thabametsi’s authorisation to be suspended
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.
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.
Are we over coal yet?
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 judge comments that it is not illegitimate for ELA to aim to derail the establishment of the Thabametsi coal-fired power.
- The DEA must now give proper consideration to the unavoidably-significant GHG emissions of these plants, and to the other major risks posed by their operation (for example, their potentially severe impacts on scarce water resources). The DEA will, in all future applications, have to weigh these heavy risks against any claimed social or economic benefit from the power stations.
- The proponents of each CBIPPPP project must include a comprehensive assessment of the climate change impacts of each project.
- It is worth noting that the CBIPPPP specifications, as designed by the DoE for the coal plants, are not GHG emission-efficient. In other words, the CBIPPPP specifications mean that the plants use designs and low quality coal, which result in high GHG emissions. These are not low-carbon coal plants. This means that a meaningful reduction of GHG emissions by these coal power plants is largely unfeasible.
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 KwaZulu-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).
More environmental litigation coming – watch this space
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.