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SA’s first climate change lawsuit coming soon

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What is believed to be South Africa’s first climate change litigation starts in the Pretoria High Court on 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.
ELA beieves this will be the first time 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 (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. According to ELA, the assessment reports indicate 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.
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.
The court is being asked to decide whether the climate change impact assessment can be considered, and 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.