Category Archives: Climate Change

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

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

Why Obama Just Wrote Articles in 3 Academic Journals

Bloomberg View, 22 January, 2017.

In his final two months as president, Barack Obama restricted Arctic drilling, sanctioned Russia, named new national monuments and made one last dad joke. He also moved to imprint his seal on history in a quieter way: through academic writing.

This month, Obama published a Harvard Law Review article that sums up his administration’s efforts to improve the effectiveness and fairness of the criminal justice system. In Science, Obama argued that market forces will help drive a transition to clean energy. These articles share the positive outlook and tone of Obama’s Journal of the American Medical Association article in August assessing the Affordable Care Act and suggesting future opportunities for health-care reform.

This is not a normal political strategy. Obama’s law review piece is credited as the first scholarly legal article authored by a sitting president. Few individuals worldwide – much less presidents – have had the distinction of publishing papers in law, science and medicine journals.

It’s a new year and time to face reality

Michael Liebreich BNEF, Jan 2017.

(Contributor note: Please be sure to read right to the end, you will be rewarded!)

The world will never shift to a clean energy future.

  We need to stop listening to so-called experts who say

We can avoid catastrophic climate change by eliminating the use of fossil fuels.

Engineers are smart and love solving problems.

But here’s the thing:

We still need electricity when the wind isn’t blowing and the sun isn’t shining.

It’s time to accept the obvious fact:

That more renewable energy will cause the grid to collapse.

So please abandon your hopes

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Wind and solar can produce some of the cheapest power in the world.

But only if you ignore their subsidies and hidden costs.

Coal and oil are by far the best way to provide reliable power and spread wealth.

.

Nuclear power is inherently dangerous.

We need to ignore the advocates who claim that

New nuclear technologies offer passive safety and solutions to waste and proliferation.

.

Electric vehicles will remain a niche technology.

You have to be in denial to believe

There will be game-changing reductions in battery costs and charging times.

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Progress on energy efficiency just leads to increased energy demand.

There is no credible data to suggest that

We can actually reduce overall global energy consumption.

.

We’ll still be dependent on coal and oil in 50 years.

And there’s no way

The world is shifting to a clean energy future.

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It’s a new year and time to face reality.

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But wait, isn’t that all backwards? Now read in reverse and see what you think…

SA ratifies Paris Agreement

Harald Winkler, ACDI News Digest, 2 November, 2016.

South Africa has ratified the Paris Agreement on climate change. In doing so, it has joined the growing momentum to take climate action.

87 countries had ratified already, exceeding the requirement of 55 Parties – and on 5 October, the second ‘trigger’ of representing 55% of global greenhouse gas emissions was also met. Thirty days after these two triggers were met, the Agreement formally ‘enters into force’ – on 4 November 2016.   SA snuck in with its instrument of ratification three days before, with another four countries also ratifying  (see status of ratification, so total now at 92).

Domestic ratification is required, so that South Africa’s domestic legal system supports what has been internationally negotiated. Under section 231 of our Constitution, international agreements are negotiated and signed by the Executive (231.1), but an international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces (231.2).

Here is a link to the full article