Earthlife Africa Johannesburg v. Minister of Environmental Affairs and others, Case no. 65662/16 (2017)
Earthlife Africa Johannesburg sought judicial review of a decision by the Department of Environmental Affairs (DEA) granting an environmental authorization for a coal-fired power plant and of decision by the Minister of Environmental Affairs not to withdraw the authorization as part of an appeal of the authorization.
The Gauteng Division of the High Court of South Africa, sitting in Pretoria, reviewed the original decision and the Minister’s review of that decision. The Court ultimately set aside part of the Minister’s ruling on Earthlife’s appeal and remitted “the matter of climate change impacts to her for reconsideration on the basis of the new evidence in the climate change report” that was submitted after the original authorization. The Court suspended the environmental authorization pending the Minister’s review of the decision. Id. at paras. at 119-121.
The National Environmental Management Act (NEMA) requires an environmental assessment for the approval of coal-fired power plants. The DEA granted Thabametsi’s application for environmental authorization even though the underlying environmental impact assessment report (EIR) did not address the proposed project’s impact on the climate, how it will aggravate climate impacts that will be felt in the region such as water scarcity, or the project’s resiliency to climate change.
Rejecting the argument that the law does not specifically require a climate impact assessment, the Court says:
The absence of express provision in the statute requiring a climate change impact assessment does not entail that there is no legal duty to consider climate change as a relevant consideration . . . . [T]he climate change impacts are undoubtedly a relevant consideration as contemplated [in the National Environmental Management Act][.]
Id. at para 87.
The Court also dismisses the argument that a climate impact assessment cannot be required because no explicit guidelines exist for preparing one. The Court explains that “an environmental impact assessment is inherently open-ended and context specific. The scoping process that precedes an environmental impact assessment provides opportunity for delineating the exercise and guidance on the nature of the climate change impacts that must be assessed and considered.” Id. at para. 89.
The Court refers to South Africa’s Nationally Determined Contribution (NDC) submitted under the Paris Agreement to find further evidence that a climate impact assessment was needed: “A climate change impact assessment is necessary and relevant to ensuring that the proposed coal-fired power station fits South Africa’s peak, plateau and decline trajectory as outlined in the NDC[.]” Id. at para. 90.
After reviewing South Africa’s relevant legislation, the Court determines that “climate change impacts of coal-fired power stations are relevant factors that must be considered before granting environmental authorisation.” Id. at para. 91.
In turning to the DEA’s decision granting environmental authorization, the Court finds that the DEA issued its decision based only on “scant climate change information consisting of [a] single paragraph in the EIR, which . . . was wholly insufficient.” Id. at para. 94.
In turning to the Minister’s decision to dismiss Earthlife’s appeal of DEA’s decision to grant the environmental authorization, the Court finds that the Minister “correctly found that a climate change impact assessment needed to be conducted.” Id. at para. 107. But the Court finds that the Minister may have misunderstood her legal authority and that there was a material error of law in her decision. The Court recognized that it could have set aside the environmental authorization and sent the matter back to the DEA for a fresh decision. However, given the circumstances that a climate change impact assessment has since been prepared, the Court opts to set aside one part of the Minister’s ruling, thus sending the appeal back to the Minister for reconsideration.
A few other aspects of the decision are worth highlighting:
— The Court rejects the DEA’s assertion that although “coal-fired power plants are heavy GHG emitters” the government “is given scope within the domestic and international environmental law regime” to address the energy crisis that South Africa is facing. Id. at para. 19.
— The Court also addresses the argument that climate impacts do not need to be considered if coal is part of an adopted Integrated Resource Plan (IRP). The Court finds first that there is “no evidence to support the assertion that the IRP . . . gave adequate consideration to climate change” and also that “an abstract, macro-level assessment of the climate change impact of additional coal-fired power could not cast any light on the specific climate change impacts and mitigation strategies of specific coal-fired power stations located at specific sites. These relevant considerations are context specific and have to be distinctively considered.” Id. at para. 95.