Centre for Environmental Rights – Advancing Environmental Rights in South Africa

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In May 2015, environmental justice organisation Earthlife Africa Johannesburg (ELA), represented by attorneys at the Centre for Environmental Rights (CER), asked the Minister of Environmental Affairs to set aside the approval of the proposed 1200MW Thabametsi coal-fired power station near Lephalale in the Waterberg, Limpopo.

ELA, together with partner organisation groundWork and community networks in the Vaal, the Highveld and KwaZulu-Natal (KZN), argue that energy from renewable sources should be prioritised over coal-fired power because of coal’s detrimental impact on the environment and human health.

The Minister of Environmental Affairs has now decided the appeal against the approval of Thabametsi by the Department of Environmental Affairs (DEA).  On 7 March 2016, she dismissed the appeal, but amended and added certain conditions to the authorisation. More specifically, the developer – Thabametsi Power Project (Pty) Ltd – has been given six months to conduct a climate change impact assessment and a palaeontological impact assessment before the project can start.

This is the first time that the Minister has required a climate impact assessment for an environmental approval for a coal-fired power station.

Although the Minister’s acknowledgement that the climate impacts of coal-fired power generation must be assessed is a significant victory, we have a number of concerns about the decision. These include:

• The Minister has not prescribed the scope of the climate impact assessment or the palaeontological impact assessment.
• The Minister has required the reports of both assessments to be submitted to the DEA for review, but did not require interested and affected parties to have an opportunity to comment on the assessments.
• The Minister has not made it clear that the authorisation – which had been suspended by the appeal – remains suspended pending consideration and approval or rejection of the climate and palaeontological impact assessments by the DEA. ELA and the CER believe that the authorisation must remain suspended until that decision is made by the DEA.
• Most importantly, by requiring these additional impact assessments, the Minister has conceded that material impacts were not assessed before the approval was granted, which is contrary to the requirements of the National Environmental Management Act. We believe that the Minister’s decision to uphold the authorisation, despite these deficiencies, makes it subject to review by the High Court.

CER will write to the Minister on ELA’s behalf, requesting clarification on these issues, and ELA will then evaluate whether to challenge the appeal decision in court.

Although the law requires a comprehensive assessment of all impacts of a proposed development, climate change impacts are rarely given adequate consideration – despite their importance on both a national and global level. ELA’s appeal argued that climate change impacts are much broader than merely a calculation of the project’s expected greenhouse gas (GHG) emissions – consideration must also be given to the impact that the project will have on already-limited water resources and land productivity, which will worsen as a result of climate change.

The Thabametsi power station is one of eleven proposed privately-owned coal-fired power plants (independent power producers (IPPs)) which have, or are expected to submit bids to sell electricity to Eskom under the Coal Baseload Independent Power Producer Procurement Programme (CBLIPPPP).  ELA, groundWork and the South Durban Community Environmental Alliance have launched appeals against two other proposed IPPs, namely KiPower in Mpumalanga and Colenso in KZN. The outcomes of these appeals are awaited.

A new coal-fired power station requires multiple regulatory approvals, including an environmental authorisation (often incorporating a waste management licence), an atmospheric emission licence, and a water use licence.

Notes:

• See CER’s previous newsflashes on Thabametsi at http://cer.org.za/news/media-release-earthlife-africas-appeal-pushes-back-new-coal-fired-power-station-in-water-stressed-limpopo and http://cer.org.za/news/newsflash-fight-against-new-limpopo-coal-power-station-raises-key-climate-change-and-water-issues
• A report by the South African Heritage Resource Agency (SAHRA) indicated that the land proposed for the power plant is considered to be of high palaeontological sensitivity.  SAHRA required that a palaeontological impact assessment be conducted, but this was not submitted as part of the final environmental impact report or made available to interested and affected parties for consideration and comment – as is required by the National Environmental Management Act.
• The first bid submission date under the CBLIPPPP was 2 November 2015, with the second phase bid submission to close on a yet-to-be-announced date towards the end of 2016 (having been extended from 8 March 2016).