Judgment in application to halt Eskom’s gas power plant in Richards Bay reserved

The landmark legal challenge against Eskom by two environmental justice groups to set aside the authorisation of a major gas-to-power plant will drag on even longer after the Pretoria high court reserved judgment on Tuesday.

This comes after civil society organisation groups including the South African Durban Community Environmental Alliance (SDCEA) and groundWork filed an application last year to set aside the authorisation of an environmental impact assessment (EIA) for a 3 000 megawatt gas-to-power plant.

In December 2019, Eskom was granted an environmental authorisation to develop a gas-to-power plant by Sabelo Malaza, the chief director of integrated environmental authorisations in the department of environmental affairs, to construct the Richards Bay combined cycle power plant assessment.

Eskom’s chief executive, André de Ruyter, had previously advocated for gas-fired power to ensure system stability during a shift to cleaner energy.

The civil society organisations challenged this authorisation and last year argued that there was inadequate assessment of the project’s effect on climate change. Their case is being represented by law firm Cullinan & Associates and supported by Natural Justice and Green Connection.

“Evidence shows that a gas power plant, such as the proposed plant, emits as many greenhouse gases as other fossil fuels, like coal, during the entire life-cycle of a project,” they said.

During the court proceedings on Tuesday, Andrea Gabriel SC and Ian Learmonth, on behalf of the civil society organisation applicants, maintained the argument that the proposed gas-to-power plant’s effects on climate were not adequately considered in the environmental impact assessment. Furthermore, alternative energy sources, including renewables, were not considered. 

“Arguments were also heard about the need and desirability of the plant. While the EIA suggested that the gas plant would support the onboarding process of renewable energy, expert evidence by RMI [Rocky Mountain Institute] showed this claim to be erroneous. The RMI report confirmed that there was no need for gas plants to be built this decade,” Natural Justice said in a statement.

Their bone of contention was that South Africa is one of the world’s top 20 greenhouse gas emitters and therefore needs to do its fair share as a global citizen to curb soaring climate gas emissions.

In a joint statement last week, the civil society organisations cited the Earthlife Africa judgment of 2017, where the constitutional court stated that climate change impacts must be assessed before issuing environmental authorisation for a proposed project.

The statement mentioned that the decision-makers should have considered that renewable energy is an alternative fuel source.

“The gas-to-power plant will be linked via a pipeline from the Richards Bay Port. The impact of this was not considered in the EIA, and hence it failed to consider the cumulative impacts of the pipeline, as well as the many other gas projects proposed in Richards Bay.”

It added that the public participation process for this development was also flawed, as many people were excluded.  

They also argued that the assessment report failed to consider the cumulative harmful effects of the pipeline.

Building up to the case, Natural Justice filed an expert report which found that the 3000MW of combined cycle capacity would not be needed until 2041.This follows President Cyril Ramaphosa’s address to the nation on 25 July about the energy crisis in which he, among many decisions and proposals, said, “We will release a request for proposals for battery storage by September this year, and a further request for gas power as soon as possible thereafter.”

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