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SA’s first climate change challenge in court

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South Africa’s first climate change court case was heard in the North Gauteng High Court last week.
The non-profit environmental justice organisation Earthlife Africa Johannesburg (ELA), represented by the Centre for Environmental Rights, presented arguments calling for the Minister of Environmental Affairs’ decision to uphold the environmental authorisation for the proposed Thabametsi coal-fired power station in Limpopo to be set aside.
ELA argues that the Department of Environmental Affairs (DEA) granted the environmental authorisation for Thabametsi without adequate information about the station’s climate change impacts.
It also argues tha, on appeal by ELA, the Minister of Environmental Affairs correctly called for a climate change impact assessment for the power station, but should have referred Thabametsi’s application back to the DEA to make a fresh decision about the authorisation, once properly informed by the findings of that climate impact assessment. Instead, the organisation argues, the Minister rejected ELA’s appeal, thereby upholding the authorisation.
If ELA is successful, the authorisation for Thabametsi will be set aside and referred back to the DEA. The DEA will then need to consider the full and final climate change impact assessment, along with public comment thereon, before making a decision whether to re-issue the authorisation.
Such an order by the court would also have wider implications for the consideration of climate impacts in the authorisation of future coal-fired power stations.
Both the Minister and Thabametsi argued in court that ELA’s position ignored economic considerations given South Africa’s energy crisis and developmental needs.
However, ELA states that it rejects the argument that its case is to do with energy security; instead, it contends that DEA needed to know what the power station’s climate change impacts would be before it could weigh these impacts up against any developmental needs.
ELA also disputed arguments that the consideration of climate change impacts could be more appropriately dealt with through the Air Quality Act as part of the air emission licensing process, which process is dealt with by Municipalities and not DEA.
Judgment on the case has been reserved.