/ 28 February 2017

​Environment dept says its hands are tied in SA’s first climate change case

Steam rises at sunrise from the Lethabo Power Station
The ANC is now in principle open to taking on private equity partners in state-owned entities such as Eskom. (Siphiwe Sibeko/Reuters)

South Africa’s environmental affairs department is defending the construction of a coal-fired power station, because it doesn’t have the regulation in place to stop it from being built. Officials in the department say they “hate this case” but have to uphold the law.

The case centres on an environmental authorisation the department granted to the Thabametsi power plant, outside the town of Lephalale in Limpopo. The vast supply of coal under the fertile farmland of the surrounding Waterberg is the reason why Eskom has built its Matimba and Medupi power stations there.

The energy department asked private companies to bid to supply an additional 2 500MW of capacity for the national grid. Thabametsi was given preferred bidder status in October 2016.

To get that status, the 1 200MW plant had to get an environmental authorisation. This required that Thabametsi conduct environmental impact assessments, looking at the plant’s impact on scarce water resources and local air quality. But the assessments did not look at the impact the plant would have on accelerating global warming as a result of the carbon dioxide that will come from its smokestacks once the plant is completed by 2021.

There is no requirement in South African law for new industrial facilities to consider this impact. In an attempt to change this, Earthlife Africa Johannesburg internally appealed the granting of the environmental authorisation. When it lost that appeal, the nongovernmental organisation approached the Pretoria high court to set aside the decision as “unlawful and invalid”, because the minister had granted the authorisation without a climate change assessment.

The case is the first of its kind in South Africa and could be precedent-setting.

The group says South Africa should not be building power plants that help warm the planet. This warming will have a disproportionate impact on the country, and is already making itself felt in shifting rainfall patterns and increased temperatures.

But if a plant has to be built, then it should only be after comprehensive studies to see what impact the plant, and its peers, will have on the environment, says Earthlife.

Such studies are scarce in South Africa, although the World Bank last year said air pollution killed at least 20 000 people in the country each year.

Earthlife’s case rests on two things: first, that Section 24 of the Constitution guarantees people access to a healthy environment; and second, that South Africa is party to the Paris Agreement on climate change, along with 195 other countries, and must do its part in ensuring that average global temperatures do not increase by more than 2°C.

Economists and environmentalists have already torn South Africa’s plan as part of that agreement to shreds. The plan allows the country to increase its emissions by 50%. Climate Action Tracker, a group that analyses country plans, says: “If most other countries were to follow South Africa’s approach, global warming would exceed 3°C to 4°C.”

In its answering affidavit and heads of argument, the environment department’s director of appeals and legal review, Ziyaad Hassam, sticks to a procedural argument: “The department acknowledges that coal-fired power stations are heavy greenhouse gas emitters, but accepts that some measure of coal-generated energy is necessary to meet South Africa’s current and medium-term energy needs.”

He also says there is no legal requirement for a climate change impact assessment to be done so that a plant may get environmental authorisation. The National Climate Change Response Adaptation Strategy sets out the plan for developing legislation, but few of its components are in place. Hassam says: “The white paper provides policy direction, but does not contain any binding obligations.”

Regarding the Paris Agreement and international climate legislation, he says: “South Africa’s obligations have not been enacted in national legislation” and, as a result, “they do not bind parties within the Republic”.

But the real reason for this response, say officials in the department, is that the department is unable to enact the legislation that would allow it to force new coal-fired power stations to do climate change impact assessments because of strong opposition from other departments and companies.

If this legislation was in place, assessments could be done and the department could reject applications based on the impact of a plant.

The officials asked not to be named as they did not have permission to speak to the Mail & Guardian.

A so-called Green Scorpion from the Environmental Management Inspectorate, which inspects polluting industrial facilities, says: “We’re in this absurd position of defending something that we do not believe in defending.” Despite “all the will in the world”, their department has been unable to make significant progress with climate change legislation. “We hate this case. But what else can we do but apply the law and use the tools available to us?”

Another official, working to collect data from companies on their emissions, says: “This is huge. It’s the kind of precedent-setting case that we should be fighting on the right side of history.”

A consultant who works for one of the companies trying to block the legislation and data collection says government departments, lobbyists and companies have fought to prevent legislation that would have helped the environment department. “What we have now is a situation where companies are refusing to do even the simple things, like telling the government how much they are emitting.” That means the building blocks of climate legislation cannot be put together. “So we’re a long way off government being able to know what a plant should emit and holding it to that.”

In the department’s affidavit, Hassam admits as much: “There are presently no sanctions within the legal framework for companies that do not reduce their greenhouse gas emissions [but] the department is in the process of developing and implementing a comprehensive mitigation system.”

Thabametsi power plant manager Shunsuke Takahashi says in his answering affidavit that the plant should not be the victim of Earthlife, which he says has as its stated intention the need to prevent “the establishment of any coal-fired power stations”. He has accused the organisation of trying to “compel the introduction of stricter climate change regulation than currently exists”.

“It would be unfair and oppressive to refuse Thabametsi an environmental authorisation for the failure to submit a climate change assessment”, given that this assessment is not a legal requirement.

The case started on Thursday, with the department and Thabametsi defending it against Earthlife. A judgment for the applicants would see South Africa’s climate legislation given a dramatic boost. A judgment against them would mean a victory for the environment department, but a blow for its attempts to get the sort of legislation that would allow it to lower the country’s carbon emissions.