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Holding the Line: CER’s 2018 in review

12 December 2018 at 9:00 am

CER attorney Matome Kapa at Eskom's Matimba Coal Power Station in December 2018
CER attorney Matome Kapa at Eskom's Matimba Coal Power Station in December 2018

Robyn Hugo, Head of Pollution & Climate Change at CER, at Eskom’s Kendal Coal-fired Power Plant in July 2018

In October 2018, the United Nations Intergovernmental Panel on Climate Change (IPCC) released a landmark scientific report warning that there are only a dozen years left for action if global warming is to be kept to a maximum of 1.5°C above pre-industrial levels. Beyond 1.5°C, even half a degree will significantly worsen the risks of drought, floods, extreme heat, and poverty for hundreds of millions of people. Even an increase of 1.5°C, which now looks increasingly ambitious, will have dramatically detrimental impacts for South Africa and its people, putting at risk water and food security, biodiversity, human health and economic development.

Against this backdrop, the attorneys at the Centre for Environmental Rights have spent most of 2018 holding the line against further investment in coal developments, and in advocating for accelerated decommissioning and rehabilitation of Eskom’s polluting coal power stations and the coal mines that service them. We have worked to encourage progressive and proactive planning to ensure that the transition away from fossil fuels, already underway, results in a more just, equitable, and sustainable South Africa. We have advocated for increased legal protection for our precious strategic water source areas as a way to strengthen the country’s ability to adapt to a changed climate.

Together with our two partners in the Life After Coal campaign, groundWork and Earthlife Africa, as well as Greenpeace Africa, we have vigorously resisted an Integrated Resource Plan (IRP) for electricity that contains any new coal, that grossly underestimates the external costs to health and the environment of existing coal power generation, and that constrains renewable energy. We also launched a report on the cost of treatment of coal polluted water to show how electricity planning ignores the enormous costs of coal mining and coal-fired power on water resources. Depending on the contents of the final IRP still awaited, it may still be necessary to challenge this document and future electricity determinations in court.

The Life After Coal campaign has continued to resist authorisations for all new independently-owned coal power plants (coal IPPs). In May 2018, we published a report by the University of Cape Town’s Energy Research Centre that showed that the two frontrunner coal IPPs – Thabametsi and Khanyisa – would cost South Africa an additional R19.68 billion compared to a least-cost electricity system. Moreover, the report showed that the two coal IPPs are not needed to meet South Africa’s electricity demand. Where future capacity is needed, this is met more cheaply – and with far fewer harmful impacts – by other electricity sources such as wind, solar PV, and flexible gas generation.

At this stage, not a single coal IPP has commenced construction, and Thabametsi and Khanyisa face significant hurdles in court in a series of legal challenges brought by CER on  behalf of groundWork and Earthlife Africa – particularly after the 2017 judgement of the High Court secured by Earthlife Africa, represented by CER. That judgment held that climate impacts of coal power plants had to be considered before deciding applications for environmental authorisations (now recognised as South Africa’s first climate change litigation). Earlier in 2018, we launched new litigation to set aside the environmental authorisation issued for Thabametsi by the late Environment Minister Molewa despite its climate impact assessment showing staggering climate impacts. That case is still pending. We also made representations to the National Energy Regulator to refrain from licensing these projects, and we have engaged directly with the Department of Energy, National Treasury, as well as the four private banks and the Development Bank of South Africa regarding their proposed funding for Thabametsi and Khanyisa, urging them not to finance these projects given the substantial associated climate change risks.

Air pollution at ground level in Eastern Gauteng in July 2018

Representing groundWork and Mpumalanga residents affected by air pollution, CER attorneys are preparing for court action to demand that government takes reasonable measures to clean up Mpumalanga’s dirty air and the ongoing violation of Constitutional rights. This is particularly important for the health and well-being of residents of the Mpumalanga Highveld, which contains hundreds of coal mines and 12 of Eskom’s 15 coal-fired power stations. The Highveld is also home to other large fossil fuel facilities like Sasol’s enormous coal to liquids operation in Secunda, one of the biggest point sources of carbon dioxide emissions in the world As a result, Mpumalanga has some of the most severe water and air pollution in the country. The health impacts of SA’s #DeadlyAir are devastating, and yet the Department of Environmental Affairs has failed to implement its own air quality management plan for Mpumalanga and take enforcement action against Eskom, despite compelling evidence of violations of air quality laws.

Our Wildlife Project has continued to highlight the negative implications of the “sustainable use” approach to wildlife – including South Africa’s threatened and protected species – promoted by the wildlife industry. In June 2018, in partnership with the Endangered Wildlife Trust, we published the findings of our review of the regulation of the welfare of wild animals in SA. This report, entitled Fair Game? Improving the Regulation of the Well-being of South African Wildlife, revealed major gaps in legislation and the implementation of our laws, leaving the well-being of wild animals without adequate protection. It recommends the clarification of the legal mandate for wildlife welfare, and the updating of legislation; and calls for greater investment in compliance monitoring and enforcement, as well as a standardised and transparent permitting system for activities involving and affecting wildlife.

Our Corporate Accountability & Transparency Programme launched its latest Full Disclosure report in June 2018. Entitled Full Disclosure: the Truth about Mining Rehabilitation in South Africa and based on an independent assessment by Intellidex, it found that neither the law, nor the accounting standards governing company disclosures, ensure the necessary transparency and accountability about financial provision for environmental rehabilitation, i.e. the money that mining companies are legally required to set aside to rehabilitate environmental damage.

Activist Tokelo Mahlakoane with former Constitutional Court Judge Bess Nkabinde at the graduation ceremony of the 2018 Environmental Rights & Remedies School for Activists.

CER’s support for environmental justice activists continued this year. We held our second Environmental Rights & Remedies training course for activists in Cape Town from 22 August to 6 September 2018 to provide 15 seasoned activists from communities affected by environmental rights violations with new tools for their activism, and to empower them to use the law to assert their rights, encourage and enforce compliance, and hold government and the private sector accountable for violations of environment law. Former Constitutional Court Judge Bess Nkabinde officiated the graduation ceremony for the  activists, who now join a network of graduates across the country.

CER attorneys and other activists at the Sasol AGM 2018

In November 2018, attorneys from our Corporate Accountability and Transparency Programme joined other activists from the Vaal Environmental Justice Alliance, Save the Vaal, Justica Ambiental and shareholder activist organisation Just Share, at corporate giant Sasol’s Annual General Meeting. While protesters demonstrated outside Sasol’s headquarters in Sandton, our activists – each with a single share in hand – challenged and interrogated Sasol’s board and management on social issues, rehabilitation funds, air pollution, and climate change. Sasol is one of South Africa’s top two greenhouse gas emitters (second only to Eskom).

Judgment Day: Mashile Phalane and Ernest Mahlalela from MEJCON-SA with Head of Mining at CER, Catherine Horsfield, and CER attorney Timothy Lloyd

Our year ended on a high note with a long-awaited court victory in the Mabola case, in which CER attorneys represent a coalition of eight civil society organisations resisting the development of a large new coal mine inside a declared protected area and strategic water source area. On 8 November 2018, the High Court in Pretoria set aside the permission given by the late Environment Minister Molewa and the former Mineral Resources Minister Zwane to allow this mine inside the Mabola Protected Environment, setting an important precedent for the integrity of South Africa’s entire protected areas network. At the time, the Ministers’ permission was the first in SA for a new mine in a protected environment. The coalition challenging the mine includes the Mining and Environmental Justice Community Network of South AfricagroundWorkEarthlife Africa JohannesburgBirdLife South Africa, the Endangered Wildlife Trust, the Federation for a Sustainable Environment, the Association for Water and Rural Development (AWARD) and the Bench Marks Foundation, and is represented by the CER.

The mining company has since applied for leave to appeal parts of that judgement (an application that will be resisted), and a number of other appeals and court proceedings are still pending. Recently, the Mpumalanga MEC published a notice of intention to exclude the mining area from the Mabola Protected Environment – a step also being opposed by civil society organisations. Learn more about and donate to this important campaign!

This year, our hard-working and committed attorneys have continued to face threats and attacks from many quarters, and on many platforms. While attacks on environmental rights defenders is a global phenomenon that has only increased over the past few years, this kind of conduct is not acceptable in a Constitutional democracy that guarantees not only environmental rights, but also freedom of expression. It is also time for both industry associations and Chapter 9 institutions to stand up and protect those who defend environmental rights in the public interest, and for future generations.

We are deeply grateful for the unwavering support we receive from our partners, local and international, funders, our Board, and all the individuals who support our work, celebrate our victories, and encourage us when times are tough.

If you would like to be part of the important work of the Centre for Environmental Rights, please consider supporting the work of the Centre for Environmental Rights through a donation. We are a registered public benefit organisation, and issue Section 18A certificates to all donors on request. Your donation, however small, can help us to continue with this crucial work. Visit our Support Us page for details.