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From the courtroom: What happened at the hearing of SA’s first climate change case

March 6, 2017 at 9:00 am

Community activists from Earthlife Africa Johannesburg, including activists from Lephalale in Limpopo, demonstrate outside the Pretoria High Court at the start of SA’s first climate change litigation on Thursday, 2 March 2017. Picture: James Oatway for CER
Community activists from Earthlife Africa Johannesburg, including activists from Lephalale in Limpopo, demonstrate outside the Pretoria High Court at the start of SA’s first climate change litigation on Thursday, 2 March 2017. Picture: James Oatway for CER

In South Africa’s first climate change court case last week, non-profit environmental justice organisation Earthlife Africa Johannesburg (ELA), represented by the Centre for Environmental Rights, presented compelling arguments to the North Gauteng High Court why the Minister of Environmental Affairs’ decision to uphold the environmental authorisation for the proposed Thabametsi coal-fired power station in Limpopo must be set aside.

ELA argues that:

  1. the Department of Environmental Affairs (DEA) granted the environmental authorisation for Thabametsi without adequate information about the station’s climate change impacts; and
  2. on appeal by ELA, the Minister of Environmental Affairs correctly called for a climate change impact assessment for the power station, but should have referred Thabametsi’s application back to the DEA to make a fresh decision about the authorisation, once properly informed by the findings of that climate impact assessment. Instead, the Minister rejected ELA’s appeal, thereby upholding the authorisation.

If ELA is successful, the authorisation for Thabametsi will be set aside and referred back to the DEA. The DEA will then need to consider the full and final climate change impact assessment, along with public comment thereon, before making a decision whether to re-issue the authorisation. Such an order by the court would also have wider implications for the consideration of climate impacts in the authorisation of future coal-fired power stations.

Despite the fact that Eskom has been reporting excess electricity capacity since May 2016,[1] both the Minister and Thabametsi argued in court that ELA’s position ignored economic considerations given South Africa’s “energy crisis” and developmental needs. ELA rejects the argument that its case has anything to do with energy security; instead, it contends that DEA needed to know what the power station’s climate change impacts would be before it could weigh these impacts up against any developmental needs. It is also well established that climate change will significantly impact the country’s developmental needs, which include the need for water, clean air and clean energy.

ELA also disputed arguments that the consideration of climate change impacts could be more appropriately dealt with through the Air Quality Act as part of the air emission licensing process, which process is dealt with by Municipalities and not DEA. Although greenhouse gas (GHG) emissions are a significant contributor to climate change, climate change impacts are far broader than GHG emissions, as some of these impacts include increased water scarcity, more extreme weather events (such as droughts and flooding) and temperature increases.

Judgment on the case has been reserved. Thabametsi still requires an air emission licence, a water use licence, and a licence to generate electricity from NERSA.

Thabametsi’s own reports indicate that the power station, if it proceeds, would have an operational lifespan of 40 years. It would emit 8.2 million tons of carbon dioxide equivalent each year, thereby contributing up to 2% to South Africa’s total GHG emissions by 2020, and up to 3.9% by 2050.

The power station would therefore contribute to climate change in South Africa and globally. South Africa’s own national climate change response policy confirms that the country is extremely vulnerable to the impacts of climate change.

END

Contact: Annette Gibbs, CER Communications Manager, agibbs@cer.org.za 082 467 1295

Copies of the court papers, including all parties’ heads of argument, are available here: http://cer.org.za/programmes/pollution-climate-change/legal-proceedings

  • Steven Budlender with Chris McConnachie and Palesa Sesane, briefed by the Centre for Environmental Rights, appeared for Earthlife Africa Johannesburg:
  • Gilbert Marcus SC with Emma Webber, briefed by the State Attorney, appeared for the Minister of Environmental Affairs and the Department of Environmental Affairs
  • Matthew Chaskalson SC with Isabel Goodman, briefed by Baker McKenzie, appeared for Thabametsi

[1] See http://www.eskom.co.za/Documents/StateSystemMay2016.pdf and http://www.eskom.co.za/news/Pages/Jann24.aspx.

Section 24 of the Constitution of the Republic of South Africa, 1996

Everyone has the right to an environment that is not harmful to their health or well-being; and to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation; promote conservation; and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

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