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Climate Litigation South Africa - Earthlife Africa Johannesburg Law Environment and Development JournalLEAD SETTING THE SCENE FOR CLIMATE CHANGE LITIGATION IN SOUTH AFRICA: EARTHLIFE AFRICA JOHANNESBURG V MINISTER OF ENVIRONMENTAL AFFAIRS AND OTHERS [2017] ZAGPPHC 58 (2017) 65662/16 Jean-Claude N. Ashukem COMMENT VOLUME 13/1 LEAD Journal (Law, Environment and Development Journal) is a peer-reviewed academic publication based in New Delhi and London and jointly managed by the Law, Environment and Development Centre of SOAS University of London and the International Environmental Law Research Centre (IELRC). LEAD is published at www.lead-journal.org [email protected] ISSN 1746-5893 COMMENT SETTING THE SCENE FOR CLIMATE CHANGE LITIGATION IN SOUTH AFRICA: EARTHLIFE AFRICA JOHANNESBURG V MINISTER OF ENVIRONMENTAL AFFAIRS AND OTHERS [2017] ZAGPPHC 58 (2017) 65662/16 Jean-Claude N. Ashukem This document can be cited as Jean-Claude N. Ashukem, ‘Setting the Scene for Climate Change Litigation in South Africa: Earthlife Africa Johannesburg v Minister of Environmental Affairs and Others [2017] ZAGPPHC 58 (2017) 65662/16’ 13/1 Law, Environment and Development Journal (2017), p. 35, available at http://www.lead-journal.org/content/17035.pdf Jean-Claude N. Ashukem LLD (NWU); LLM (NWU); Maîtrise en Droit (Yaoundé); Licence en Droit (Yaoundé). Postdoctoral Fellow North-West University of the Potchefstroom Campus. Email: [email protected] Published under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 Unported License TABLE OF CONTENTS 1. Introduction 37 2. The Facts and Issues of Law 37 3. The Court’s Decision and Reasoning 39 4. Analysis 41 Law, Environment and Development Journal 1 2 INTRODUCTION THE FACTS AND ISSUES OF LAW On 8 March 2017 the Gauteng High Court handed The case concerns the proposed construction of a down a judgment in the case of Earthlife Africa 1200MW coal-fired power station in the outskirt of Johannesburg v Minister of Environmental Affairs and Lephalale in the Limpopo Province that will be in others.1 The applicant was Earthife Africa2 and the operation until 2061. The project is intended to address Minister of Environmental Affairs, the Chief Director: the acute energy challenges that hamper South Africa’s Integrated Environmental Authorisations Department socio-economic development. On 25 February 2015 of Environmental Affairs (DEA), the Director: the Chief Director of the DEA granted an Appeals and Legal Review Department of environmental authorisation to Thabametsi (the Environmental Affairs and the Thabametsi Power fourth respondent) for the construction of a proposed Project (PTY) Ltd were the respondents (first, second, coal-fired power station.3 It is estimated that during third and fourth respondents). The decision sets the the 40 years period of its activity the proposed coal- scene for climate change litigation in South Africa, as it fired power station would emit greenhouse gas (GHG) is the very first case in this regard. Here, the court was in an ecologically vulnerable area, the negative climate required to deal with two issues, namely a review of change impacts of which on Lephalale and the country the decision of the Minister of Environmental Affairs as a whole ought to be considered or investigated relating to the granting of environmental authorisation before granting the environmental authorisation.4 The for the construction of a coal-fired power plant, and authorisation application was made and considered in the obligation of the Minister to reconsider conducting terms of the Environmental Impact Assessments a climate change impact assessment report for the (EIA) Regulations (the Regulations)5 of the National proposed coal-fired power station. The decision Environmental Management Act 107 of 1998 illustrates the role of South Africa’s courts in affirming (NEMA) that provides the procedures to be followed the country’s international climate change obligations in conducting EIAs. Thabametsi, appointed Savannah and the duty and responsibility of the state to curtail Environmental Pty Ltd to carry out the EIA process, the adverse impacts of climate change in the context and a scoping report was conducted.6 of socio-economic development activities. The applicant argued that the climate change impacts This case note presents a background of the case and of the proposed coal-fired power station were relevant analyses the judgment in order to demonstrate its factors and that the Chief Director should have contribution in laying the foundation for future climate considered them when making his decision. The change litigation. respondents rejected this claim and argued that in as much as there is no domestic legislation and there are 1 [2017] ZAGPPHC 58 (2017) 65662/16. 2 Earthlife Africa is a non-profit organisation founded to 3 S 24 of the NEMA requires that any listed activity needs mobilise civil society around environmental issues. It is to obtain an environmental authorisation before its also an interested and affected party as contemplated by commencement. The NEMA was amended in 2013. section 24(4)(v)(a) of the National Environmental 4 Earthlife (n 1) 119. Management Act (NEMA) 107 of 1998, and is therefore 5 Environmental Impact Assessment Regulations GN R entitled to a reasonable opportunity to participate in 543 in GG 33306 of 18 June 2010. It must be borne in procedures for the investigation, assessment and mind that the EIA Regulations were changed in 2014. communication of the potential consequences or For details see the Environmental Impact Assessment impacts of activities on the environment. As an interested Regulations GN R 982 in GG 38282 of 4 December and affected party, Earthlife Africa has the standing to 2014. Listing notice 2 of Regulation 2014 was amended bring a review application in its own interest, in the in regulation 2017 under GN R326 in GG 40772 of 7 public interest, and in the interest of protecting the April 2017. environment- NEMA, s 32(1). 6 Earthlife (n 1) 38. 37 Climate Litigation South Africa - Earthlife Africa Johannesburg no regulations or policies that explicitly stipulate a power to vary a decision on appeal in terms of section requirement to conduct a climate change impact 43 of the NEMA,11 and inserted an additional assessment prior to the granting of an environmental condition, which provides that: authorisation, the applicant’s interpretation of the governing legislation was unsubstantial and thus The holder of this authorisation must should be set aside.7 The only obligation for South undertake a climate change impact Africa is to reduce GHG emissions and this is broadly assessment prior to the commencement framed without prescribing particular measures for the of the project, which is to commence government to reduce GHG emissions. The no later than six months from the date respondents argued that measures to reduce GHG of signature of the Appeal Decision. emission are discretionary8 and the South African The climate change impact assessment government in exercising this discretion has taken must hereafter be lodged with the appropriate steps and measures, including the Department for review and the development of a complex set of mitigations recommendations contained therein measures, to address climate change impacts in the must be considered by the Department.12 context of socio-economic development activities in the guise of the National White Paper on Climate The Minister argued that her decision could not be Change of 2011. They further contended that although impugned as irrational, unreasonable or unlawful, coal-fired power stations are heavy emitters of GHG, because clause 10.5 would serve a dual purpose. First, the applicant had failed to consider the broader it would enable the gathering of emissions data to be development context in recognising South Africa’s used, among other purposes, for monitoring and energy crisis, and that the government was taking reporting. Second, it would enable the DEA to measures such as the construction of a coal-fired plant determine if it was necessary to amend or supplement to address the energy crisis.9 the conditions of the environmental authorisation to introduce additional mitigation measures if the The applicant appealed against the second respondent’s emissions were higher than those provided in its grant of the environmental authorisation to the first carbon budget, or posed an unexpected and respondent- the Minster of Environmental Affairs. unacceptable health risk to the surrounding Instead the Minister refused to set the authorisation communities.13 aside on 7 March 2016, but directed Thabametsi Power Company (Pty) Ltd to undertake a climate change The applicant contended that both the Chief Director impact assessment prior to the project’s and the Minister acted unlawfully, irrationally and commencement. Unhappy with the outcome of the unreasonably in granting the environmental appeal, the applicant approached the court to review authorisation in the absence of a climate change impact the Chief Director’s decision authorising the grant of assessment, and that their action undermined both the environmental authorisation and the Minister’s the purpose of the climate change impact assessment decision on appeal. and the environmental authorisation processes, because the climate change impact assessment would In her appeal decision of 7 March 2016, the Minister have clearly indicated that the environmental recognised that the climate change impacts of the authorisation should not be granted. Relying on the proposed coal-fired power station were not decision in Fuel Retailers Association of Southern Africa ‘comprehensively assessed and/or considered’ prior v Director-General: Environmental Management, Department to the issuance of the environmental authorisation by of Agriculture, Conservation and Environment, Mpumalanga the second respondent.10 The Minister then attempted Province, and Other,14 the applicant argued that in as to amend the authorisation, seemingly relying on the 11 NEMA (n 2) s 43(6). 7 ibid 16. 12 Clause 10.5 of the inserted new condition of the 8 ibid 16. environmental authorisation. 9 ibid 19. 13 ibid 20. 10 ibid 7.
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