A judicial review heard in the Western Cape high court this week has questioned the environmental authorisation process for TotalEnergies’ offshore oil and gas exploration rights between Cape Town and Cape Agulhas.
(Chesnot/Getty Images)
A judicial review heard in the Western Cape high court this week has questioned the environmental authorisation process for TotalEnergies’ offshore oil and gas exploration rights between Cape Town and Cape Agulhas.
The applicants, the Green Connection and Natural Justice, who are represented by environmental law firm Cullinan & Associates, said their landmark legal action to review and set aside the environmental authorisation “challenges the government’s failure to properly assess the devastating risks posed by oil and gas exploration”.
This includes oil spills, climate change impacts and threats to small-scale fishers.
Their case is focused on the state’s decision to grant environmental authorisation to TotalEnergies EP South Africa Block 567 (Pty) Ltd (Teepsa), which permits it to conduct exploratory drilling for fossil fuels off the country’s south west coast.
The applicants participated in the process that led to the granting of the environmental authorisation.
The respondents are the minister of forestry, fisheries and the environment and the minister of mineral resources and energy, the director-general of the department of mineral resources and energy as well as Teepsa.
On 17 April 2023, the director-general of the former department of mineral resources and energy granted an environmental authorisation to Teepsa to conduct exploration well drilling in Block 5/6/7. On 24 September 2023, the environment minister dismissed the joint appeal by the applicants against the initial decision.
According to the applicants’ heads of argument, the bulk of their review grounds are premised on the final environmental impact assessment report failing to meet the standards imposed by the National Environment Management Act (Nema) and the National Environmental Management: Integrated Coastal Management Act (ICMA).
Specifically, they contend that the decisions to grant the environmental authorisation were unlawful and irrational in six respects.
Among these are that the final environmental impact assessment report failed to properly assess — and the state respondents failed to consider — the socio-economic effects of the proposed project, “which a well blowout and consequent oil spill will have on the fishing industry and small-scale fishers”.
The applicants argued that the state respondents failed to consider the factors prescribed by the ICMA and failed to properly assess and consider the need and desirability of the proposed project in relation to the climate change impacts, “which will be caused by burning any gas discovered by the proposed project”.
The state respondents failed to assess and consider the transboundary effects of the proposed project both on Namibia and on international waters. Neither the final environmental impact assessment report, nor the environmental management programme report, included Total’s oil spill contingency plan or blow out contingency plan, they argued.
“Accordingly, the final environmental impact assessment report’s failure to assess the impacts of an oil spill on fisheries, the factors prescribed by the ICMA, the relevance of climate change impact to the need and desirability of the proposed project, and the transboundary impacts of an oil spill, render the decisions to grant the environmental authorisation unlawful, irrational and unreasonable.”
Although TotalEnergies has since announced its withdrawal from exploration activities in Block 5/6/7, it has now filed a joinder application to include Shell as a party in the legal proceedings.
“The application is made on the basis that Shell holds a commercial interest in the right, and that it will become the exploration operator in the future. However, the Green Connection and Natural Justice oppose this move, arguing the exploration right has lapsed and that Shell has no legal standing in the case.”
Teepsa said in its heads of argument that the applicants have “conflated the considerations that are only relevant to production operations with the considerations relevant to exploration operations”.
“The information the applicants say should have been placed before the decision-makers was either in fact placed before the decision-makers and considered, or, on a proper scientific approach, is simply not capable of reliable ascertainment at the stage when authorisation is sought for exploration operations.”
The applicants would prefer that no new oil and gas exploration be authorised, it maintained. “They wish to ensure that the various stakeholders — including the public, the government and those whose skill lies in discovering new sources of energy — remain ignorant of whether South Africa is possessed of hitherto unknown sources of energy.
“That is the essence of their objective. But there is no warrant for this court to assist the applicants in achieving that objective, given its sterilising effect. Ignorance about South Africa’s energy options cannot be in the interests of the country or its people.”
The environment minister noted in his heads of argument that, since the 1940s, 358 offshore wells have been drilled in the waters of South Africa for the purposes of oil and gas exploration and production, with no recorded economic losses incurred by fishers as a result of blowouts or oil spill.
The government has also established several measures and legal frameworks to mitigate the risks associated with blowouts and oil spills.
The minister said Nema mandates Teepsa to take reasonable measures to contain oil spills, clean up, remedy effects and assess the effects on the environment and public health.
“Under Nema, Teepsa is obligated to implement measures aimed at preventing, controlling, and minimising blowouts and oil spills. Additionally, Teepsa is responsible for bearing the costs associated with the remediation of blowouts and oil spills that occur during the exploration and production phases of operations.
“The applicants’ case is premised on the assumption that there exists no distinction between the environmental impact assessment for the oil and gas exploration phase and production phase and that the final impact assessment report supporting the environmental authorisation also encompasses the oil and gas production phase.”
This assumption is “erroneous” in both legal and factual contexts, the minister argued. “The environmental impact assessment for listed activities specifically for the proposed well drillings, [is] restricted solely to oil and gas exploration.”
The scope of the environmental impact assessment for oil and gas exploration encompasses activities such as seismic surveys, exploratory drilling and preliminary geological studies.
“The data available and presented during the exploration phase is comparatively limited due to the uncertainty regarding seafloor conditions. The environmental impacts are minimal due to minor seafloor disturbance and low emissions. If oil and gas reserves are discovered within the block, Teepsa will be obligated to apply for a production right to the minister.
“If Pasa [Petroleum Agency of South Africa] accepts the application, Teepsa is required to apply for the environmental authorisation for listed activities in terms of section 24 of Nema or oil and gas production; consult the interested and affected parties, including the fishing sector and other marine users, and compile another detailed environmental impact assessment report with scientific studies dealing with, inter alia, blowouts and oil spills during the oil and gas production stage.”
The minister stressed that until the oil and gas reserves are discovered in the block, there are no grounds in law or fact to assume that the environmental impact assessment encompasses both the exploration and production phase.