That the government’s attempt to push through a huge, expensive and unnecessary procurement of nuclear power plants has been derailed by two small environmental lobby groups is another wonderful victory for SA’s vibrant civil society.
The entire process not only reeked of corruption, but was also undertaken with cynical and breathtaking arrogance by a minister of energy, a president and a Cabinet that clearly viewed the rights of the public to be nothing more than to vote every five years to put them in power.
At every step of the way — the original determination under the Electricity Regulation Act; the intergovernmental agreements on nuclear co-operation, particularly the one with Russia; and in the processes at the National Energy Regulator of SA (Nersa) — the executive and officials acted unlawfully, says the court.
But, thanks to our Constitution and to the raft of carefully considered legislation that was put in place by Parliament in the first decade of our democracy, South Africans are not just voting cattle. In various ways, these all insist that the public must be consulted on a decision of such magnitude, with such enormous ramifications for the country.
Wednesday’s judgment by the High Court in Cape Town sends everyone back to the beginning to start, as Judge Lee Bozalek says in the judgment, with a clean slate. This means that SA once again has a chance for rational and progressive energy policy-making, that, since President Jacob Zuma’s very keen interest in nuclear energy, has been subverted.
The starting point will have to be the Integrated Resource Plan (IRP) of 2016, which is in the making at present after public submissions and has not yet been adopted by the Cabinet. The court makes clear that to rely on the outdated IRP from 2010, that is the basis on which the need for nuclear power was established, is not going to fly.
The IRP, which is a 20-year planning tool that should be updated every two years, is still a battleground between the die-hard nuclear lobby and those who argue for a least-cost scenario in which the optimal energy mix is one of solar photovoltaic, wind and natural gas power generators. A group of expert advisers to the previous minister of energy, Tina Joemat-Pettersson, as well as the renewables sector advocate the latter. In their version, no nuclear power is required in the foreseeable future.
At every step of the way, the executive and officials acted unlawfully, says the court
The Department of Energy, which drafted the IRP, has imposed artificial limits on how much renewable energy can be built, for reasons that are not well explained. The result is that nuclear energy will be required only by 2037. Under one scenario, which appears suspiciously to have been inserted into the IRP at the last minute, new nuclear power is required by 2025. Eskom’s acting CE, Matshela Koko, latched onto this scenario to justify the rush to procure.
But now, before that can happen, an IRP must be completed; a determination to procure nuclear must be made; Nersa must concur with that determination, which to do so requires it to hold a public-consultation process.
Only then, and assuming that all the ducks are put back in a row and procedures are followed, will Eskom be able to restart the procurement process.
Assembling the ducks this time will not be as easy. The Cabinet might find its rational mind and approve an IRP that does not include nuclear power in the foreseeable future. The public might object so strongly during the Nersa process that it will be difficult for it to concur.
All in all, the Southern African Faith Communities’ Environmental Initiative and Earthlife Africa, the two lobby groups that brought the court action, have kicked the process out into the future and we all owe them a debt of gratitude.