MIKE MULLER: Green lawfare imperils just transition

Environmental lawfare waged by civil society is a threat to SA’s just energy transition. It is making the process more difficult, more expensive and more divisive than it need be.

By undermining the country’s economic sovereignty, it is leaving SA hostage to external forces and potentially poorer. But it is also leading the country further down the dangerous road of what professors Hugh Corder and Corah Hoexter have called the “judicialisation of politics”. 

Before the (ever-imminent) release of a new Integrated Resource Plan for electricity, it is now important to put the writs aside, lock up the lawyers, agree on a sensible portfolio of investments and start implementation. But we should also reflect on some of the macro impacts of lawfare and consider how it has come to influence national policy-making at the expense of formal democratic process.

“I view law much the same as a weapon. It is a means that can be used for good or bad purposes” said Maj-Gen Charles Dunlap, the US army officer who popularised the term “lawfare” in military circles in 2008. According to him, lawfare is “a strategy of using — or misusing — law as a substitute for traditional military means to achieve an operational objective”.

The “lawfare” concept that originated in 1970s’ Australian counterculture was quite different. Psychiatrist, barrister and social reformer Neville Yeomans coined the term to describe the “adversary and accusatory” character of Western utilitarian legal systems. These defective systems replaced the search for truth by the refinement of combat, he lamented. “Lawfare replaces warfare and the duel is with words rather than swords.”

Many conflicts needed mediation, he suggested — “dispute resolution by mutual compromise and co-operation rather than imposed decision ... persuasive rather than coercive, democratic rather than autocratic.” “Lawfare” was a label to denounce individualistic and accusatorial aspects of law. The converse was a respect for “deliberative democracy”, serious discussion to set priorities and agree strategies. 

Coal plants

That framing offers a useful insight into the practice of lawfare (or “environmental legal activism” as some academics prefer) in SA’s energy policy processes. The activists’ objective has been to constrain the development and use of domestic hydrocarbons, accelerate the introduction of wind and solar renewables, and block nuclear power. Their positions are usually driven by conviction (and, sometimes, material interests) rather than technical analysis, and are contrary to the strategies of most other countries. 

China, which has almost as much solar and wind power as the rest of the world combined, is still building high-efficiency coal plants such as Medupi and Kusile to reduce overall emissions from dirty, inefficient old stations. In SA, lawfare promoted onerous emission regulations for the new coal plants and discarded those benefits, increasing their cost and water use and aggravating their global warming contribution (by reducing efficiency and removing sun-screening sulphur dioxide from their emissions). The regulations also complicated and delayed implementation, contributing to load-shedding. 

Lawfare has also blocked the development of natural gas reserves, even as countries from Argentina to the US and Vietnam use gas to power their energy transitions. The logic is obvious: switching from coal to gas to generate electricity reduces carbon dioxide emissions by about 50%, immediately reducing climate impacts. The US converted 30,000MW of coal-fired stations to gas between 2011 and 2020, using existing transmission infrastructure. Since gas generation is more flexible than coal, capital costs can be paid by initial high levels of use, switching later to provide backup to manage the “intermittency” of wind and solar. 

However, for more than 15 years, SA delayed drilling to find out whether it has useful gas resources. Despite introducing tighter controls than are required for more hazardous activities, there are still no regulations to guide prospecting applications because the environment minister, having seized approval powers, lacks the ability to evaluate it.

Fewer jobs

Marine seismic surveys to identify offshore gas reserves were opposed because of alleged social and environmental impacts. The seabed to be surveyed is more than a kilometre deep, well beyond the reach of small-scale fishing operations. The technology has been used worldwide for more than half-a-century, and extensive research has found no harm to whales. But, citing inadequate community consultation, regional courts blocked the surveys.

Even if there are exploitable gas reserves, they are now unlikely to be developed given the time needed to start production. For gas to be part of SA’s transitional energy mix, as is proposed, it will have to be imported, yielding fewer local jobs, costing more and leaving SA vulnerable to volatile international markets. The resulting financial constraints is likely to delay rather than speed up the overall energy transition. 

Aside from reducing SA’s energy sovereignty, lawfare has also diverted attention from the broader social and economic development objectives of a just and equitable energy transition. The current emphasis on wind and solar generation has worrying regional implications that are little remarked upon.

Over the next decade Eskom’s transmission mapping shows that most new investment will be in the western and northern parts of the country, far from the poorer, more populated, northern provinces. This will suck economic activity away from the current energy hubs of highveld Mpumalanga and neighbouring parts of Limpopo, the Free State and the North West. A just transition should promote geographical equity as well as environmentally sustainable energy, but there are no realistic proposals to replace the livelihoods that will be lost.

These outcomes are the pernicious consequence of legally weaponised policy interventions that have overwhelmed undercapacitated government departments, which have proved unable to defend the public interest. This lawfare mimics what the military strategists call asymmetrical warfare. With limited resources, government departments must manage the affairs of a difficult country across a wide front while civil society launches targeted, single-issue attacks, financed by environmental donors (not infrequently associated with commercial interests).

Geopolitical forces

Officials’ failure to comply with the letter of administrative law and weak responses to technical challenges make it easy for more focused civil society groups to win in court. Aside from wasting public resources and delaying energy supply expansion, this lawfare is doing serious long-term damage to the public interest, closing doors to potentially valuable policy options.

In an increasingly mercantilistic world, it would be rash to ignore the geopolitical forces at work. Significant funding for environmental lawfare comes from countries that are racing to monetise their own carbon resources while there is still time. So SA should not be too quick to dismiss mineral resources & energy minister Gwede Mantashe’s complaints about the motivations of some of his many critics. 

Questions must be raised about the vulnerability of public policy to single interest lawfare. In their important 2017 article, “‘Lawfare’ in SA and its effects on the judiciary”, Corder and Hoexter cited former president Jacob Zuma’s “Stalingrad tactics” to illustrate the dangers of an excessive reliance on the courts to resolve essentially political battles. They warned that the failure of politics and politicians “to do their jobs properly” was likely to encourage continued excessive recourse to the courts.

However, as energy lawfare shows, that weapon is as likely to be wielded by well-heeled private interest groups as by errant politicians. The consequence of both will be the “loss of public confidence, the ultimate currency of judicial legitimacy”. As the lights go out and unemployment rises, that warning is more urgent than before.

• Muller, a registered professional engineer and visiting adjunct professor at the Wits School of Governance, has been on the winning side of globally significant lawfare as a civil society activist and a public official.