Earthlife case to test law
Government taken to court for failing to factor in the impact of climate change in its approval of a coal-fired power station
In a first for SA, the fight to prevent climate change is making its way into the courtroom.
Environmental group Earthlife Africa Johannesburg, represented by the Centre for Environmental Rights, has brought a case against environmental affairs minister Edna Molewa and her department for their decision to uphold environmental authorisation for the proposed Thabametsi coal-fired power station.
In February 2015 the department granted environmental authorisation to Exxaro’s Thabametsi power project to construct a 1,200MW power plant near Lephalale in Limpopo.
Earthlife Africa initially appealed to the minister to reconsider because a climate change impact assessment had not been conducted, but Molewa upheld the authorisation. She agreed that a climate change assessment was necessary and that the department’s chief director had not adequately assessed the climate change impact of the project. She ordered that an impact assessment be conducted within six months.
But Earthlife Africa is still unhappy. “The minister’s decision effectively turns the climate change impact assessment into a ‘tick-box’ exercise, as the environmental authorisation cannot be withdrawn in light of the contents,” it says in an affidavit.
Advocate Steven Budlender, for Earthlife Africa, says Thabametsi’s own experts have concluded that its power station will have “very large” greenhouse gas emissions. They concluded that the power station will generate approximately 8.2Mt of CO² each year and more than 246Mt of CO² in its lifetime.
SA’s Medupi and Kusile power stations have technology to remove sulphur dioxide emissions, as well as for carbon capture and storage. Even then, they will produce more than 30Mt of CO² each year; but they are also four times the size of the proposed Thabametsi plant.
Budlender says government has signed and ratified international agreements such as the Paris agreement on climate change, which commits SA to combat climate change.
But advocate Gilbert Marcus, representing the department in its heads of argument, says there is no provision in domestic legislation to stipulate that a climate change assessment needs to be conducted before environmental authorisation can be issued.
SA is still drafting climate change legislation.
“SA’s international obligations to reduce greenhouse gas emissions are broadly framed — they do not prescribe particular measures that government must implement to reduce emissions. Such measures fall within government’s discretion,” says Marcus.
Earthlife wants the minister’s decision to be set aside.
Environmental law expert and ENSafrica senior associate Andrew Gilder says there are compelling reasons why the judge could dismiss the case; should the judge side with Earthlife, he would be essentially be creating law.
Draft environmental impact assessment regulation requiring that climate change be taken into account was released in 2008, but it does not form part of the law yet.
ENSafrica director of mining and environmental law Lloyd Christie says the judge could dismiss the case on the grounds that there is no law for him to rule on, or that the case is premature.