Coal plant faces climate change challenge in court
Earthlife Africa demands a comprehensive climate-change impact assessment for the Thabametsi power plant in Limpopo, writes Melissa Reitz
SA’s first climate-change litigation will be heard on Thursday in the High Court in Pretoria when nongovernmental organisation (NGO) Earthlife Africa contests a decision by the environmental affairs minister to authorise a proposed Limpopo coal-fired power station.
Challenging the department’s decision to sign off the Thabametsi power plant without a comprehensive climate-change impact assessment, the NGO, represented by the Centre for Environmental Rights, lodged an appeal that was dismissed by the minister.
It is now asking the court to instruct that such an impact assessment be conducted.
Earthlife Africa is part of the Life After Coal campaign, which discourages investment in new coal-fired power stations. It is arguing that, by ordering an impact report, the minister acknowledged that the highly significant climate-change impacts arising from coal stations need to be considered.
The Department of Environmental Affairs admits that although an environmental impact assessment was conducted for the Thabametsi project, climate impacts were not comprehensively assessed. But it says there is no legal obligation for climate-change assessments to be conducted.
"The environmental impact assessment regulations and the National Environmental Management Act are clear that a decision maker in deciding whether to grant an environmental authorisation, must evaluate all relevant considerations; including any pollution, environmental impacts or environmental degradation likely to be caused and this would necessarily include the impacts of climate change," says Centre for Environmental Rights attorney, Nicole Löser.
"The fact that climate change is not specifically mentioned in the act or the regulations does not mean that the applicant and decision maker need not consider climate-change impacts." In contrast to the environmental impact assessment report that harmful emissions will be "relatively small", Thabametsi’s climate-change report released earlier this year confirms that the power station will have "significant" greenhouse gas emissions and climate-change impacts which would lead to increased water shortages and drought for the surrounding communities in the already water-stressed Waterberg area.
The department and Thabametsi are objecting to the tabling of this report in court, saying it was filed too late.
The judge must decide whether the climate-change report can be admitted to court and whether the environmental authorisation should have been set aside on the grounds that the climate-change impacts of the power station had not been fully assessed.
Earthlife Africa argues that the minister’s decision to uphold the authorisation is "irrational and unreasonable" and that she has misinterpreted her legal power as neither the department nor its minister may revoke the Thabametsi project if the climate report and public comment necessitates it.
The minister’s decision, says the NGO, renders the climate-change assessment a "tick a box exercise" and makes a mockery of the public participation process.
Power to Amend
But the Department of Environmental Affairs says the minister does have the power to amend the authorisation and if Thabametsi transgresses amendments, authorisation can be withdrawn.
Director of appeals for the department Ziyaad Hassam says the impact assessment has a dual purpose and may also be used to "inform future policy formation and the setting of greenhouse gas emission targets, as well as aiding the department to fulfil its reporting obligations under national law".
Despite being a signatory to international agreements such as the UN Framework Convention on Climate Change, the Kyoto Protocol and the historic 2015 Paris Agreement, SA is still among the 20 largest carbon dioxide emitters.
The environmentalists are arguing that the decision to authorise Thabametsi is in contravention of SA’s international commitments.
"With SA being a signatory to the Paris Agreement ... failure to give adequate consideration to climate-change impacts would amount to a breach of the constitutional right to an environment not harmful to health and wellbeing for current and future generations," says Löser.
However, Environmental Affairs Minister Edna Molewa argues that SA is committed to meeting electricity demand through a combination of technologies including coal and clean energy.
Thabametsi, which will generate up to 1,200MW for the national grid, is one of 10 proposed coal-fired power stations that have applied for environmental authorisation.
It plans to sell its electricity to Eskom in terms of the Department of Energy’s coal-baseload independent power producer procurement programme.
As one of two preferred bidders in the programme, Thabametsi is under pressure to reach commercial and financial closure with all authorisations in hand and any litigation against it resolved.
SA is particularly susceptible to climate change due to its low and variable rainfall; large impoverished communities; shortage of safe drinking water; and high incidence of disease.
Coal-fired power stations are water-intensive and major contributors to climate change and air pollution. By 2014, more than 2,000 deaths of young children and premature babies were estimated annually from exposure to fine particulate matter in emissions from Eskom’s coal-fired power plants. Coal mining has also been blamed for causing water pollution, making land unusable for agriculture and threatening food and water security.
"We hope this litigation will send a strong message to government, and to other prospective coal-independent power producer projects, that climate change impact assessments – particularly of coal-fired power plants – can no longer be ignored. There are significant impacts to the environment and to human health which must be assessed," says Earthlife Africa senior programmes officer Makoma Lekalakala.