SA’s first climate change suit to set important precedent

LegalBrief, 7 March, 2017.

Ironically, as SA’s first climate change lawsuit kicked off last week, the defendants were forced into taking a position they do not support, mostly because they lack the capacity to enforce legislation, writes Legalbrief.  The case began last week in the Gauteng High Court (Pretoria), with Earthlife Africa asking the court to revoke the environmental impact assessment for the proposed privately run Thabametsi power station near Lephalale in Limpopo, notes a Pretoria News report. The issue before court is whether it is necessary to properly assess the climate change impacts of a proposed coal-fired power station, before environmental authorisation is granted in terms of the National Environmental Management Act (Nema). Advocate Steven Budlender, acting for Earthlife Africa, told Judge John Murphy that if the answer is yes, this case must succeed ‘because environmental authorisation was granted without any proper climate change assessment having been done’. The report notes the case concerns the proposed 1200 MW coal-fired power station, which will be in operation until at least 2061. Budlender argued that a climate change impact assessment required, at the very least, an assessment of the extent to which a proposed coal-fired power station will contribute to climate change over its lifetime, by quantifying its greenhouse gas emissions during construction, operation and decommissioning. Environment Minister Edna Molewa subsequently agreed that the climate change impact of the power station had not been properly addressed and found that it was necessary for Thabametsi to conduct a full climate change impact assessment regarding the power station. Molewa, however, proceeded to uphold the environmental authorisation and merely required Thabametsi to complete a climate change impact assessment. Budlender said in doing this, the Minister acted unlawfully and undermined the purpose of the climate change impact assessment and the environmental authorisation process.

Full Pretoria News report

 

Opposing the application for the Minister and her department, Advocate Gilbert Marcus SC argued there was no provision in domestic legislation expressly stipulating a climate change impact assessment must be conducted before the granting of an environmental authorisation. He pointed out that the government was in any event taking extensive steps to address the issue of climate change. Earthlife lawyer Nicole Loser highlighted SA’s vulnerability to climate change, according to an SABC News report. ‘We have a national climate change response policy, which acknowledges that SA is a country extremely vulnerable to the impacts of climate change. Some of the examples of this kind of impact are water scarcity. The policy acknowledges that we will be suffering from increased drought, increase flooding, extreme weather patterns. We will also be seeing increased temperature. These are some of the things that we are already seeing and climate change is going to make this worse,’ she is quoted as saying.

Full SABC News report

Vietnam cancels nuclear reactor deal: a lesson for South Africa

David Fig in EE Publishers, 6 March, 2017.

Vietnam recently announced that it would be cancelling its contract to buy two nuclear reactors from Rosatom, the Russian nuclear vendor. The decision was subsequently ratified by the Vietnamese National Assembly in Hanoi. The vice-chair of the parliamentary committee on science, technology and environment, Le Hong Tinh, has stated clearly that the nuclear programme would not be continued.

After the purchase of the two Russian reactors, Vietnam was due to buy a further two from Japan. These plants would have been the socialist republic’s first power reactors. The orders were placed at a time of economic boom in the country during 2009 and 2010. But the more recent downturn in economic activity, the drop in electricity demand, and the doubling of the overnight cost of the reactors to $18-billion, caused the government to think again…

 

Here is the full article

Well-positioned as a partner in IPPPP

EE Publishers, 1 March, 2017.

Renewable energy, including wind and solar, benefits South Africa significantly. The country’s 2010 Integrated Resource Plan calls for the generation capacity of 17 800 MW from renewable energy sources by 2030. South Africa’s energy market has been extremely active and the Department of Energy, through the Independent Power Producers Procurement Programme, by the end of its Round 4 Expedited Window, will have awarded around 8000 MW of generation capacity. The Department of Energy called for expressions of interest, by the 20th of June, from potential strategic partners to State-Owned Companies for 600 MW of new generation capacity from gas. One such strategic partner is DRA, which has been involved in several such power projects across the African continent since 2001. One of the major projects DRA has worked on was the Arcelor-Mittal wind farm project in Saldanha on the West Coast. The project, since cancelled, was initially commissioned by iWEC Isivunguvungu and was to include the design of protection systems for an embedded generator installation.

Here is the article

Western Power Corridor pact can be revived, says Reuel Khoza

Business Day Live, 21 February, 2017

The Africa Energy Indaba hears Inga 3 hydropower project and associated infrastructure development is possible with political vision and will

The Western Power Corridor could still be revived with committed political leadership, Reuel Khoza said on Monday.

The corridor was a cooperative agreement among five Southern African countries established in 2003 to develop the Inga 3 hydropower project and associated infrastructure.

Khoza, a former Eskom chairman, is now involved in renewable power projects.

One of the speakers on a ministerial panel on increasing regional energy trade and co-operation at the Africa Energy Indaba starting on Tuesday, he is chairman of Aka Capital and independent power producer Globeleq as well as the author of several books on governance and leadership.

The corridor involved SA, Angola, Botswana, the Democratic Republic of Congo and Namibia, each of which was represented equally by its utilities in Westcor, a joint venture company. Westcor conducted feasibility studies into Inga 3, which would have provided about 5,000MG of power. Westcor also aimed to develop the 45,000MW Grand Inga project.

Here is the full article

SA’s first climate change lawsuit coming soon

Centre for Environmental Rights (CER), 20 February, 2017.

SA’s first climate change litigation starts in the Pretoria High Court on Thursday, 2 March 2017 when Earthlife Africa Johannesburg (ELA), represented by the Centre for Environmental Rights (CER), will challenge the decision of the Minister of Environmental Affairs to uphold the environmental authorisation for the proposed Thabametsi coal-fired power plant.

As far as we are aware, this will be the first time that the South African judiciary will be required to consider the importance of and need for an assessment of the climate change impacts of a coal-fired power station, as a necessary consideration in deciding whether or not to grant an environmental authorisation.

In this case, the Minister of Environmental Affairs, as part of her decision on ELA’s appeal of the station’s environmental authorisation, required Thabametsi Power Company (Pty) Limited (the company proposing the power station) to conduct a climate change impact assessment. However, she upheld the authorisation despite the climate change impacts not having been assessed. This caused ELA to institute proceedings in the Pretoria High Court last year to challenge the Minister’s decision. According to ELA, the Minister should have set aside the authorisation, pending an adequate assessment of the climate change impacts.

Thabametsi, the Minister, and the Department of Environmental Affairs have opposed the application. They argue that there is no specific requirement in South African law for a climate change impact assessment to be conducted and that the climate change impacts had already been adequately assessed as part of the environmental impact assessment (EIA) process.

Last month, the proposed Thabametsi power station made available its draft climate change impact assessment for public comment.  The assessment reports confirm that:

  • the power station will have “significant” greenhouse (GHG) emissions and climate change impacts; and
  • that there is a high risk of increasing water shortages and drought as a result of climate change that will impact on the operation of the plant and  water availability for surrounding communities, and this risk cannot be mitigated as Thabametsi has no control over water supply issues.

This report clearly shows that – despite South Africa’s commitments under the Paris Agreements and the fact that government acknowledges South Africa’s vulnerability to the effects of climate change – Thabametsi’s environmental impact report failed woefully to assess the climate change impacts. These are significant impacts which cannot simply be ignored in an EIA – particularly not for a coal-fired power station.

ELA filed a supplementary affidavit shortly after the climate change assessment report was released to bring this to the attention of the court. Thabametsi and the Department have, however, objected to this new information being submitted, arguing that it is not relevant to the matter.  It is now in the hands of the judge to decide (1) whether the climate change impact assessment can be considered and (2) whether the authorisation should have been set aside in light of the fact that the climate change impacts of the power station had not been assessed adequately.

Coal-fired power stations are water-intensive, and major contributors not only to climate change, but also to air pollution. By 2014, air pollution emissions from Eskom’s coal-fired power plants were already causing an estimated 2,200 premature deaths per year, due to exposure to fine particulate matter (PM2.5). This includes approximately 200 deaths of young children. At the time, the economic cost to the society was estimated at 30 billion rand per year, including premature deaths from PM2.5 exposure and costs from the neurotoxic effects of mercury on children.

Climate change in itself will have significant impacts for human health, arising from – among other things – water scarcity and temperature increases. Furthermore, coal mining causes land and water pollution and renders land unusable for agriculture, thereby threatening SA’s food and water security.

Together with groundWork, ELA and the CER form part of the Life After Coal/Impilo Ngaphandle Kwamalahle campaign, which aims to: discourage investment in new coal-fired power stations and mines, accelerate the retirement of SA’s coal infrastructure; and enable a just transition to renewable energy.

Comments on the climate change impact assessment are due 27 February 2017.  The assessment documents can be accessed here.

The court papers for the court case (to be heard 2 and 3 March) can be accessed here, at the bottom of the page under “Earthlife Africa Johannesburg v Minister of Environmental Affairs, Department of Environmental Affairs and Thabametsi Power Project (Pty) Ltd”.

Here is the link to the article