The hearing of SA’s first climate change case

 

In South Africa’s first climate change court case, non-profit environmental justice organisation Earthlife Africa Johannesburg (ELA), represented by the Centre for Environmental Rights, presented 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.

The ELA argues that the Department of Environmental Affairs (DEA) granted the environmental authorisation for Thabametsi without adequate information about the station’s climate change impacts, and on appeal by ELA, the minister 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 power utility Eskom has been reporting excess electricity capacity since May 2016, both the minister and Thabametsi argued 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 known 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 the 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 the National Eenergy Regulator of South Africa.

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 t of CO2 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.

Contact Annette Gibbs, Centre for Environmental Rights NPC, Tel 021 447-1647, agibbs@cer.org.za

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