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.
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.