A judgment from the Pretoria High Court yesterday represents a major victory for Earthlife Africa Johannesburg (ELA). The decision effectively requires that the government consider the environmental and climate change impact of a proposed power station before approving it.
The application concerned a two-phase 6000MW coal-fired power station the Chief Director of Department of Environmental Affairs approved for construction and operation by an independent power provider, Thabametsi. ELA appealed this approval and was partially successful. The Minister of Environmental Affairs held that the Chief Director had not comprehensively considered the climate change impact of the power station but upheld the authorisation. Instead of invalidating the authorisation, the Minister made the authorisation conditional upon Thabametsi to undertake a climate change assessment before beginning construction and lodge the assessment with the Department.
ELA then appealed this finding and argued that authorisation should be withdrawn because the Chief Director had failed to investigate or consider the climate change impact of the power station. They argued further that the Minister’s decision to amend the authorisation was unlawful because the authorisation should not have been granted in the first place. ELA argued that the authorisation should be set aside and retaken after the impact assessment was conducted and submitted.
This argument, however, depends on the court finding that the Chief Director is required to consider the climate change impact assessment before granting any authorisation.
Although the National Environmental Management Act, 1998 mandates that the environmental impact of certain activities (such as mining activities and certain types of construction) be investigated and assessed before it can be approved. Typically, this means the relevant governmental department will consider any pollution and potential environmental degradation the activity will cause in addition to any other ‘relevant factors’. However, there is no explicit requirement that the climate change impact of a project be considered before authorisation is granted
The Department argued that there was no legal requirement for a climate change assessment to be conducted before an environmental authorisation was granted. The Department also argued that it was taking steps to address and mitigate climate change though the development of long-term policies. The Department also argued that even though coal-generated power contributes to global warming, the more pressing concern is South Africa’s energy crisis.
This concern, however, is balanced against the reality that the Thabametsi power station is predicted to generate over 8.2 million tons of carbon dioxide per year and over 246 million tons of carbon dioxide over its lifetime (representing about 1,9% of South Africa’s total emissions). Despite this, the Environmental Impact Report submitted by Thabametsi described the climate change impact of the station as being of ‘relatively small significance’.
The key question the court had to answer in light of this was whether the Chief Director and Minister failed to consider climate change impacts relevant to whether authorisation should be granted. The court found that the climate change impact was relevant to the decision and environmental authorisation was set aside.
The court ordered that the Minister reconsider the appeal filed against the environmental authorisation. While this appeal is pending, the environmental authorisation is suspended and no construction can commence. This means the Minister will have to reconsidered the environmental authorisation along with a climate change impact assessment report and a paleontological impact assessment report as well as any comments on these reports and additional information required.
This judgment marks an important recognition of the importance of climate change as a material and relevant environmental consideration.
The Reasonableness Review 