A landmark case on climate change in SA

By: Wits School of Law Professor of Environmental Law Tracy-Lynn Humby

On 8 March 2017 the North Gauteng High Court in South Africa handed down judgment in the matter of Earthlife Africa, Johannesburg v The Minister of Environmental Affairs and others. Hailed as South Africa's first climate change court case, the judgment floodlights the significance, place and principled approach to climate change impact assessment in the country's established and constitutionally-based system of environmental law.

At the eye of the storm: The State's plan to procure a (private) independent power producer (IPP) to build a 1200MW coal-fired power station near the town of Lephalale in the Limpopo Province. Identified as a Strategic Infrastructure Project, the construction of the coal-fired power plant is intended to address the "acute" energy challenges that hamper South Africa's socio-economic development. However, proportionally South Africa is a heavy emitter of global greenhouse gas emissions (GHGs); coal is an emissions-intensive energy carrier; and the single largest source of GHG emissions in the country are coal-fired power plants.

The Chief Director of the Department of Environmental Affairs granted an environmental authorisation for the project without the benefit of a separate, independently researched climate change impact report. Earthlife Africa, a non-profit organisation founded to mobilise civil society on environmental and energy-related issues, appealed against this decision to the Minister of Environmental Affairs. The Minister refused to set the authorisation aside but directed the IPP, Thabametsi Power Company (Pty) Ltd, to undertake a climate change impact assessment prior to the project's commencement. Unhappy with the outcome of the appeal, Earthlife Africa approached the court to review the Chief Director's decision to grant the authorisation and the Minister's decision on appeal.

Earthlife Africa achieved victory on almost all the substantive legal points canvassed in the judgment and the court directed the Minister to reconsider the appeal.

The judgment makes it clear that:

• Climate change poses a substantial risk to sustainable development in South Africa, the ideal that lies at the heart of the right to environment in Section 24 of the Constitution.
• Because sustainable development is integrally linked with the principle of intergenerational justice, the adequate consideration of climate change impacts is necessary to protect future generations.
• Climate change is a relevant factor when the State deliberates on whether to grant an environmental authorisation for listed activities.
• The assessment of climate change impacts must take place before approval of the environmental authorisation.
• Assessment of climate change impacts in the environmental authorisation process is best accomplished by way of a professionally researched climate change impact report canvassing both mitigation and adaptation measures.
• The environmental authorisation process is the appropriate point at which to consider climate change impacts for purposes of project approval. Neither macro-level policy decisions and approvals (such as the national Integrated Resource Plan for Electricity or the national Determination on the mix of electricity generation technologies); nor post-or parallel regulatory processes (such as the need to apply for an atmospheric emissions licence) can substitute for considering climate change during the environmental impact assessment process.
• The precautionary and preventive principles underlie the need to consider climate change prior to the approval of major development projects.
• If the Minister decides to uphold an environmental authorisation on appeal, she has no power to subsequently withdraw the authorisation.

The Earthlife Africa (Thabametsi) decision is major advance for climate change regulation in a jurisdiction where the Environmental Impact Assessment Regulations currently in force fail to even mention climate change explicitly.

The judgment raises and canvases a number of interesting factual and legal issues. Part II of this series of articles on the case considers the radical disjuncture between the climate change claims made in the initial Environmental Impact Report submitted to the Chief Director, and the claims made in a subsequent specialist report.