CLIMATE CHANGE LITIGATION
Court pours water on coal-fired power station plan
The High Court in Pretoria has recognised the significant effects climate change has on SA by setting aside a decision by Environmental Affairs Minister Edna Molewa to authorise a new coal-fired station.
SA’s first yet climate change litigation, brought by Earthlife Africa, represented by the Centre for Environmental Rights, contested the decision to grant environmental authorisation for the Thabametsi coal-fired Limpopo power station despite the lack of a climate-change impact assessment. Molewa dismissed Earthlife’s appeal against the authorisation, but called for a full climate-impact report while upholding the authorisation for the project.
Earthlife Africa, part of the Life After Coal campaign, which aims to discourage investment in new coal-fired power stations, argued that Molewa had acted unlawfully in failing to set aside the authorisation, undermining the purpose of a climate-change impact assessment. The Department of Environmental Affairs admitted that although an environmental impact assessment was conducted for the project, climate impacts were not comprehensively assessed as the department was not legally required to do so.
The court referred the decision back to Molewa and ordered that she reconsider Earthlife Africa’s appeal, taking into account a full climate change-impact assessment and all public comments.
The judgment stated that climate-change impacts of coal-fired power stations are relevant factors to be considered prior to granting environmental authorisation.
"We are very pleased with this decision, not only for Earthlife, but for all South Africans, given that SA is extremely vulnerable to the impacts of climate change," says Centre for Environmental Rights attorney Nicole Löser.
"The significant contribution of coal-fired power stations to these impacts cannot be ignored and the court has now confirmed that climate-change impacts needed to be assessed before the minister could have made a decision to uphold Thabametsi power station’s environmental authorisation."
Earthlife argued in court that climate change – which significant research has proven is exacerbated by greenhouse gas emissions from industries such as coal-fired power stations – has an effect on water resources, air quality, human health, biodiversity and fisheries and that SA has an international obligation to reduce its emissions.
Thabametsi’s report says its greenhouse gas emissions are estimated to be "very large by international standards", with an expected 8.2-million tonnes of carbon dioxide generated yearly, equating to more than 246-million tonnes in its 40-year lifespan.
"We now call upon the minister to give full and proper consideration to Thabametsi’s climate change impacts – which the project’s environmental consultants have found will be significant – in making a decision on whether to uphold Earthlife’s appeal," says Earthlife Africa senior programmes officer Makoma Lekalakala.
Molewa and Thabametsi’s lawyers argued that Earthlife Africa’s position ignored SA’s "energy crisis" and developmental needs that the additional power station will improve by adding 1,200MW to the national grid and creating more than 7,000 jobs.
However, Eskom said in January that its "improved generation performance and new build programme have delivered excess capacity for the country" and that it now has a surplus of 5,600MW at peak hours that can meet any increase in demand until 2021.
As a signatory to the 2015 Paris Agreement, SA has outlined its plans in the Integrated Resource Plan for Electricityto mitigate climate change. But while it recognises the need to move to low-carbon power generating, it says this is not immediately possible and SA’s greenhouse gas emissions will increase before declining.
Thabametsi, which is being financed by five banks, including Nedbank, Standard Bank and Absa, is scheduled to be commissioned in 2021 and estimated to burn coal beyond 2025, the year SA committed to peaking its carbon emissions in the country’s Nationally Determined Contribution under the Paris Agreement. This means either that SA will not meet its climate change obligations, or that the power plant will not be able to operate for its full expected life span, becoming a "stranded asset".
"We are alarmed to see SA’s big banks committing to the financing of a project which entrenches SA’s reliance on coal for decades to come," says Löser.
Thabametsi is one of 10 proposed independent coal-fired power stations that have applied for environmental authorisation from the Department of Environmental Affairs. As one of two preferred bidders in the Department of Energy’s coal baseload independent power producer procurement programme, it is under pressure to reach commercial and financial closure with all authorisations and litigation resolved.