Radebe: "It is true that coal jobs are at risk in South Africa
In a precedent-setting victory for the environmental lobby, the high court in Pretoria has ordered the environment department to reconsider its decision to grant authorisation for the construction of a new coal-fired power station.
It said the department had not adequately looked at the effect the plant would have on climate change.
Judge John Murphy decided South Africa’s legal and policy framework “overwhelmingly” supported the conclusion that granting an authorisation required an “assessment of climate change impacts and mitigation measures”.
He disagreed with the department’s argument that a climate change impact assessment is not a requirement of environmental legislation.
The Thabametsi power plant — a 1 200MW coal-fired plant in western Limpopo — got the environmental go-ahead in 2016.
Earthlife Africa Johannesburg challenged it on the basis that the authorisation had not factored in the plant’s effect on climate change. The environmental justice organisation first lodged an internal departmental appeal and, when that failed, approached the high court.
Murphy’s decision means that any future decisions on new projects will have to look at the effect they will have on warming the planet.
That could mean developments may not go ahead because they emit too much carbon, a powerful tool for the environment department to have.
But, instead of throwing out the whole environmental authorisation, Murphy ordered the department to look at Earthlife’s internal appeal again. It will only then make a decision on the authorisation once a climate change impact assessment and a palaeontological impact assessment have been done, and comment has been received from interested and affected parties.
That opens the door for the department to find that Thabametsi has such a negative effect on the environment that development cannot go ahead.
In his judgment Murphy said the decision to grant the authorisation to Thabametsi had been taken with “scant climate change information … consisting of a single paragraph”.
That paragraph was part of the environmental impact assessment, and said: “The contribution is considered to be relatively small in the national and global context.”
No mention was made of the effect that climate change will have on the plant.
Murphy concluded that with such “scant information” the department could not have adequately assessed the impact of Thabametsi on climate change.
In their argument to the court last week, Earthlife argued that the environmental department had to consider the full effect the plant will have on global warming. It noted that, once the plant starts operating in the early 2020s, it will contribute to 2% of the country’s carbon emissions. This will grow to 4% by the 2050s, as other plants shut down.
That will accelerate global warming, something that will have a big, and negative, effect on the health of South Africa’s environment.
Earthlife argued that, because Section 24 of the Constitution guarantees everyone a healthy environment, any decision made by the environment department has to secure that right.
Environmental legislation — held under the National Environmental Management Act — reinforces this.
Environmental authorisations can therefore only be granted when all possible negative effects have been taken into account. This had not been done, it said.
In rejecting Earthlife’s original appeal, the environment minister, Edna Molewa, said that “certain negative impacts are unavoidable in a development of this nature”.
Those impacts have to be balanced against the positive impact of power generation, she said. “I am satisfied that these [climate change] impacts were identified and adequately assessed.”
In court, the department’s chief argument was based on its assertion that a climate change impact assessment is not a requirement of environmental legislation. It therefore did not need to have such an assessment before it granted the environmental authorisation.
Murphy rejected all of these lines of argument, and instructed the department to make a comprehensive decision.