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SA’s first climate change lawsuit coming soon

February 20, 2017 at 9:00 am

Kriel Power Station in Mpumalanga, an existing coal-fired power plant operated by Eskom. Picture: James Oatway for CER
Kriel Power Station in Mpumalanga, an existing coal-fired power plant operated by Eskom. Picture: James Oatway for CER

SA’s first climate change litigation starts in the Pretoria High Court on Thursday, 2 March 2017 when Earthlife Africa Johannesburg (ELA), represented by the Centre for Environmental Rights (CER), will challenge the decision of the Minister of Environmental Affairs to uphold the environmental authorisation for the proposed Thabametsi coal-fired power plant.

As far as we are aware, this will be the first time that the South African judiciary will be required to consider the importance of and need for an assessment of the climate change impacts of a coal-fired power station, as a necessary consideration in deciding whether or not to grant an environmental authorisation.

In this case, the Minister of Environmental Affairs, as part of her decision on ELA’s appeal of the station’s environmental authorisation, required Thabametsi Power Company (Pty) Limited (the company proposing the power station) to conduct a climate change impact assessment. However, she upheld the authorisation despite the climate change impacts not having been assessed. This caused ELA to institute proceedings in the Pretoria High Court last year to challenge the Minister’s decision. According to ELA, the Minister should have set aside the authorisation, pending an adequate assessment of the climate change impacts.

Thabametsi, the Minister, and the Department of Environmental Affairs have opposed the application. They argue that there is no specific requirement in South African law for a climate change impact assessment to be conducted and that the climate change impacts had already been adequately assessed as part of the environmental impact assessment (EIA) process.

Last month, the proposed Thabametsi power station made available its draft climate change impact assessment for public comment.  The assessment reports confirm that:

  • the power station will have “significant” greenhouse (GHG) emissions and climate change impacts; and
  • that there is a high risk of increasing water shortages and drought as a result of climate change that will impact on the operation of the plant and  water availability for surrounding communities, and this risk cannot be mitigated as Thabametsi has no control over water supply issues.

This report clearly shows that – despite South Africa’s commitments under the Paris Agreements and the fact that government acknowledges South Africa’s vulnerability to the effects of climate change – Thabametsi’s environmental impact report failed woefully to assess the climate change impacts. These are significant impacts which cannot simply be ignored in an EIA – particularly not for a coal-fired power station.

ELA filed a supplementary affidavit shortly after the climate change assessment report was released to bring this to the attention of the court. Thabametsi and the Department have, however, objected to this new information being submitted, arguing that it is not relevant to the matter.  It is now in the hands of the judge to decide (1) whether the climate change impact assessment can be considered and (2) whether the authorisation should have been set aside in light of the fact that the climate change impacts of the power station had not been assessed adequately.

Coal-fired power stations are water-intensive, and major contributors not only to climate change, but also to air pollution. By 2014, air pollution emissions from Eskom’s coal-fired power plants were already causing an estimated 2,200 premature deaths per year, due to exposure to fine particulate matter (PM2.5). This includes approximately 200 deaths of young children. At the time, the economic cost to the society was estimated at 30 billion rand per year, including premature deaths from PM2.5 exposure and costs from the neurotoxic effects of mercury on children.

Climate change in itself will have significant impacts for human health, arising from – among other things – water scarcity and temperature increases. Furthermore, coal mining causes land and water pollution and renders land unusable for agriculture, thereby threatening SA’s food and water security.

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

Comments on the climate change impact assessment are due 27 February 2017.  The assessment documents can be accessed here.

The court papers for the court case (to be heard 2 and 3 March) can be accessed here, at the bottom of the page under “Earthlife Africa Johannesburg v Minister of Environmental Affairs, Department of Environmental Affairs and Thabametsi Power Project (Pty) Ltd”.

ENDS

Media queries:

Centre for Environmental Rights: Annette Gibbs agibbs@cer.org.za 082 467 1295

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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