Judgment bars government from approving new coal-fired power stations

A ruling made by the Gauteng Division of the High Court in Pretoria on Wednesday will make it difficult for the government to approve the development of any new coal-fired power stations in future.

The landmark ruling reviewed and set aside the provision in the country’s current Integrated Resource Plan (IRP2019) for 1,500MW of new coal-fired generation capacity and two decisions aimed at implementing it.

The ruling was based on the failure of the minister and energy regulator Nersa to consider the effect of the envisaged new coal-fired power station on the environment, especially on the health of children and future generations.

Brandon Abdinor, a climate advocacy lawyer and head of the pollution and climate change programme at the Centre for Environmental Rights in SA (CER), said the ruling would result in an increase in the accountability of government in its decision-making and would apply to a range of government decisions in future. “It recognises that future generations will bear the brunt of climate change, and the impact of decisions must be considered.”

The IRP is government’s plan for future power generation and sets out the energy mix for years to come. It indicates how much new generation capacity will be added to the national grid, when and which technology will be used, for example coal generation, nuclear, hydro or solar.

The IRP2019 was first published in October 2019 and provided for 1,500MW of new coal-fired generation capacity to be added to the country’s electricity network between 2023 and 2027.

Gwede Mantashe in his capacity as minister of mineral resources and energy at the time issued a determination for the new coal capacity and Nersa concurred with it. These decisions are legislated requirements to implement the provisions of the IRP.

During the court process, the applicants, the African Climate Alliance (ACA), Vukani Environmental Justice Movement in Action (VEM) and the Groundwork Trust represented by the CER, called for the records relating to Mantashe’s and Nersa’s decisions.

The records, provided only after the environmental groups obtained a court order to compel them to provide a full record, did not show any evidence that the negative effect of a new coal-fired power station on the environment and the health of the nation had been considered.

The applicants argued that Mantashe and Nersa thereby had flouted their constitutional obligation to children. In terms of the constitution, children’s rights are paramount.

The court rejected Mantashe and Nersa’s argument that constitutional rights could be limited, by finding that they failed to show that such limitation was reasonable and justifiable in these circumstances.

It further found that Nersa’s public consultation on the matter was inadequate. “A mere lip service was paid to it.”

The court set aside the IRP2019 as far as it provides for the new coal-fired generation, Mantashe’s determination of it and Nersa’s decision to concur.

The ruling comes as the department of electricity and energy, which took over the responsibility for the IRP after the election in May, is finalising the IRP2024, which will replace the IRP2019.

Titus Mathe, CEO of the SA National Energy Development Institute (Sanedi), which leads the process, said that the IRP2024 entailed “almost a remodel” of the draft IRP2023. The draft was published for comment in January 2024 and maintained the provision for the new coal-fired power stations.

As the responsibility for the IRP shifted from Mantashe after the May elections, President Cyril Ramaphosa and Kgosientsho Ramokgopa, as minister of electricity and energy, were added as respondents in the matter. Unlike Mantashe and Nersa, they did not oppose the application.

When the case was first filed, Mantashe said that securing the right to use coal for new power plants was worth a court battle, Bloomberg reported.

In drafting the IRP, a least-cost base case is usually developed, which is then adjusted according to policy decisions.

While policy decisions were widely considered the purview of the executive in terms of the constitutional principle of separation of powers, with this ruling, the court confirmed that in exercising its executive power, decisionmakers should comply with their constitutional obligations, said Abdinor. If not, the court may intervene.

The ACA said in a statement: “This judgment serves as a landmark legal victory for climate activists and reinforces the importance of considering environmental and health impacts in government decision-making. It underscores the constitutional right to a healthy environment and the government’s duty to protect the wellbeing of its citizens, especially future generations. This case sets a precedent for future legal challenges against environmentally harmful projects and emphasises the need for transparent and participatory decision-making processes.

Mantashe and Nersa were ordered to pay the applicants’ legal costs.