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Are you thinking about global warming? The legal requirement in South Africa

15 November 2017

During March 2017 the High Court of South Africa in Pretoria handed down a decision that has been hailed in some quarters as a victory in the fight against dirty energy and global warming. The court's decision in isolation isn’t a decisive victory for the proponents of clean energy, but it does add an important tool that can be used in future fights, not only against coal fired power stations, but also in broader environmental challenges against the dirty energy and extractive sectors.

Earthlife Africa Johannesburg asked the court to set aside the Department of Environmental Affairs' decision to grant an environmental authorisation to the preferred bidder, Thabametsi Power, that was selected to build a 1,200 MW coal fired power station near Lephalale in the Limpopo Province. If set aside, construction would be delayed until a new environmental authorisation could be applied for and granted.

Earthlife argued that the environmental authorisation should be set aside because a climate change impact assessment had not been conducted, meaning firstly that all the relevant environmental factors had not been considered before the environmental authorisation was granted and, secondly, that the decision to grant an environmental authorisation without considering a climate change impact assessment rendered the decision irrational and unreasonable.

The court decided in Earthlife's favour, setting aside the environmental authorisation. The matter was referred back to the minister's internal appeal process, giving the minister the opportunity to consider the climate change impact assessment report that had been prepared by Thabametsi Power after its initial environmental authorisation was granted.

The court didn't, however, prohibit the construction of coal-fired power stations, and didn't make any decision on whether the construction of additional coal-fired power stations should be permitted or restricted in the future. This allows the minister to decide to grant an environmental authorisation after weighing up all the relevant factors, which now includes the potential global warming impacts and South Africa's international commitments on climate change.

The narrow questions that the court considered was whether the minister had a legal obligation to consider global warming impacts of the project and if so, did the minister have sufficient information when taking the decision to properly consider global warming as a relevant factor.

Earthlife argued that before the minister grants an environmental authorisation, all criteria set out in the National Environmental Management Act, No 107 of 1998 (NEMA) must be considered. The act requires the minister to "take into account all relevant factors, which may include …" going on to list various factors including pollution, environmental impacts and environmental degradation (section 24O). Earthlife argued that even though the section doesn't specifically list climate or global warming impacts as a factor, these impacts fall into the non-exhaustive list of "relevant factors" and must be considered.

The department argued that there was no South African law requiring the preparation of a climate change impact assessment. It also argued that South Africa's international obligations to reduce greenhouse gas emissions were broadly framed and in the discretion of the government, which must take into account the government's over-riding priority to address poverty and inequality. Thabametsi Power added the arguement that to introduce a mandatory assessment the entire legal regime governing environmental impact assessments must be challenged.

The court agreed with Earthlife; NEMA's list of "relevant factors" is non-exhaustive, meaning that the minister must consider any relevant factor even if it is not specifically listed.

The court examined the legislative and legal framework that governs South Africa's climate change and energy policies to determine if climate change impacts are "relevant". It considered domestic policies such as the National Climate Change Response White Paper of 2012, the Integrated Resource Plan for Electricity 2010-2030 (IRP) adopted by the South African cabinet, the Department of Energy's binding determination on the mix of energy generation technologies that was adopted in terms of the Electricity Regulation Act No 4 of 2006, and South Africa's international obligations. The legal framework overwhelmingly supports the argument that the assessment of climate change impacts and mitigation measures are relevant factors that must be considered as part of the environmental authorisation process.

After finding that the minister must consider climate change impacts, the court turned to the question of if the minister had enough information at the time to properly consider this factor.

When the minister granted the environmental authorisation, only an environmental impact assessment reports (EIR) was considered. The EIR didn't quantify the greenhouse gas emissions, stating only that "while quantification of the relevant contribution … is difficult, the contribution is to be considered to be relatively small in the national and global context". It also didn't consider the impact that the coal fired power station could have on global warming, and the effects that global warming would have on water scarcity in the region. The EIR was also directly in conflict with a later climate impact report that found that the emissions from the power station could constitute up 3.9 percent South Africa's total emissions after 2025.

The court found that the minister didn't have all the legally required information when making the decision to grant the environmental authorisation, and was unable to weigh up the competing factors before making the decision.

The court didn't prohibit the building of the coal powered power station, but only ordered that the decision to grant the environmental authorisation was to be remitted back to the minister so that the minister could consider the climate change impact assessment report and comments on the report submitted by any interested and affected parties.

The decision in this case should serve as a call for all parties to fully consider potential impact that projects may have on South Africa's commitments to curtail global warming.

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