South Africa’s First Climate Change Case
Earthlife Africa Johannesburg v. The Minister of Environmental Affairs and others
The High Court of South Africa, Gauteng Division, Pretoria recently ruled in favour of Earthlife Africa Johannesburg on the basis that when granting an environmental authorisation (EA) to the Thabametsi Power Project, a director of the Department of Environmental Affairs (Chief Director) did not properly consider the climate change impacts of the project.
The National Environmental Management Act obliges the Chief Director to take into account all of the relevant factors in deciding on an application for an EA. In February 2015, the Chief Director granted Thabametsi an EA after purportedly considering such relevant factors. Earthlife subsequently appealed to the Minister of Environmental Affairs against the grant of the EA on several grounds, including a failure by the Chief Director to consider the climate change implications of Thabametsi.
In considering the appeal, the Minister recognised that the climate change impacts of the proposed development were not "comprehensively assessed and/or considered" prior to the issuance of the EA. She accordingly chose to amend the authorisation by imposing a condition on Thabametsi, to undertake a climate change impact assessment prior to the commencement of the project.
Earthlife then brought the matter before the High Court, arguing that it is a mandatory pre-requisite of NEMA, that a climate change impact assessment should be conducted and considered before the granting of an EA. Earthlife sought to have both the decision to grant the EA and the appeal decision of the Minister, reviewed.
Both the Department of Environmental Affairs and Thabametsi argued that there is no provision in South African domestic legislation, regulations or policies that expressly stipulates that a climate change assessment must be conducted as part of the application process for an EA. Similarly, they argued that Earthlife's challenge to the outcome of the appeal was based on a fundamental misreading of the Minister's decision. Earthlife, they argued, had erroneously equated the term "comprehensively" with "adequately" or "properly", thereby distorting the meaning of the Minister's statement. The Minister, they argued, upheld the EA because the climate change impacts of the project had been adequately, but not comprehensively, assessed. As such, she ordered that a climate change impact assessment of the Thabametsi power station be carried out.
The Court however, disagreed and held that the Minister clearly accepted that a climate change assessment was a relevant factor in deciding whether to grant the EA. The Court held that nowhere in the decision does the Minister state or imply that the climate change impact of Thabametsi had been adequately addressed. It held that if the climate change impact had been adequately addressed then there was no logical reason for ordering a full climate change impact assessment before construction of the power station.
It concluded that the legislative framework created overwhelming support for the conclusion that an assessment of climate change impacts and mitigating measures are relevant factors that must be considered by the competent authority before granting an EA.
Although the Court did not declare the EA to be invalid,1 the Court held that the appropriate remedy in the circumstances, is to rather to set aside the Minister's ruling and to remit the matter of climate change impacts to her for reconsideration as part of the appeal on the basis of the new evidence in the climate change impact report. The appeal process, not the initial authorisation process must, as such, be re-constituted, with such process being restricted to consideration of whether the EA should have been granted in light of the potential climate change impacts.
Implications on Future Projects
The question now arises as to whether a climate change impact assessment is required before competent authorities may authorise new coal-fired power stations under NEMA.
The judgment confirms that the text, purpose, ethos and intra- and extra-statutory context of section 240(1) of NEMA supports the conclusion that, climate change impacts of coal-fired power stations are relevant factors that must be considered before granting an EA. The judgment doesn’t make it clear as to whether the requirement for climate change impact assessment applies only to applications for coal-fired power stations or to any development where climate change impacts are relevant, however it would seem that the judge intended the latter position to apply.
The judgment creates further practical complications for project companies. How does an applicant determine the measurement parameters and thresholds applicable to a climate change study? If this judgement is to set precedent, the DEA will need to explain
- how an applicant must measure the climate change impacts of its project;
- what is the maximum threshold level is of climate change; and
- whether this study applies to coal-fired plants that use cleaner technology such as ultra-supercritical.
If the Court is in fact correct, project companies would need to expend significant capital and resources on these climate change assessments in order to evidence:
- the extent to which a proposed coal-fired power station will contribute to climate change over its lifetime, by quantifying its GHG emissions during construction, operation and decommissioning;
- the resilience of the coal-fired power station to climate change, taking into account how climate change will impact on its operation, through factors such as rising temperatures, diminishing water supply, and extreme weather patterns; and
- how these impacts may be avoided, mitigated, or remedied.
The full decision, which may be subject to appeal, can be accessed here.