Coal miner, green activists take battle to court
Pretoria – South Africa regarded the development of new coal-fired power stations as an integral part of its drive to safeguard the country’s energy supply.
The establishment and operation of these power stations were consistent with and catered for in the State’s climate change commitments.
This was the argument advanced on behalf of Thabametsi Power Company, appointed by the Department of Energy to establish, own and operate a 630 megawatt coal-fired power station near Lephalale in Limpopo.
Arguments were delivered by Earthlife Africa and the Department of Environmental Affairs during South Africa’s first climate change lawsuit, which kicked off in the Gauteng High Court, Pretoria, yesterday.
Earthlife Africa is asking the court to revoke the environmental impact assessment for the proposed privately run Thabametsi.
In opposing the application, Thabametsi said that since 2011, the State’s policy has been to procure a significant portion of new electricity from new, independently owned coal-fired power stations.
The policy was adopted with the support of the Department of Environmental Affairs after full consideration of the climate change implications. It said the policy recognised the need to balance environmental protection against South Africa’s urgent need for additional electricity generating capacity.
But Earthlife Africa is deeply concerned about the long-term implications of the proposed power station.
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).
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Advocate Steven Budlender, acting for Earthlife Africa, told Judge John Murphy that if the answer was yes, this case had to succeed. “This is because in this case, environmental authorisation was granted without any proper climate change assessment having being done,” he said.
The case concerns the proposed 1200MW coal-fired power station, which will be in operation until at least 2061.
In February 2015, the Department of Environmental Affairs granted Thabametsi environmental authorisation regarding the building of the power station. At the time of this decision, the climate change impact of the power station had not yet been investigated or considered in any detail.
An internal appeal was lodged by Earthlife to minister Edna Molewa, in which it contested the decision. It was, among others, based on the grounds that the climate change impact of the power station had not been adequately assessed.
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.
Other factors to be considered were how it would impact on rising temperatures, diminishing water supply and extreme weather patterns.
The minister 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 so, the minister acted unlawfully and undermined the purpose of the climate change impact assessment and the environmental authorisation process. He said even if the assessment indicates that environmental authorisation ought not to have been granted, the minister has no power to now withdraw the authorisation.
Earthlife contended that it was unlawful, irrational and unreasonable for the minister to grant the environmental authorisation in the absence of a proper climate change impact assessment.
Budlender said the station would generate about 8.2million tons of carbon dioxide each year, and more than 246 million tons in its lifetime. He said experts had concluded that climate change posed high risks to the power station, particularly through increasing water scarcity at the proposed site and that the risks could not be effectively mitigated.
This information, he said, was not considered in granting the environmental authorisation.
The minister and her department opposed the application. Advocate Gilbert Marcus SC, argued on their behalf, saying there was no provision in the country’s domestic legislation which expressly stipulated that a climate change impact assessment had to be conducted before the granting of environmental authorisation.
He said the government was, in any event, taking extensive steps to address the issue of climate change. It was also developing a complex set of mitigation measures. These were still being developed, but the country was committed to putting these mitigating measures in place.