The Department of Environmental Affairs (DEA) granted environmental authorization for the construction of a coal-fired power station, and the not-for-profit organization Earthlife appealed. The Minister of Environmental Affairs recognized that the project’s climate change impacts were not comprehensively assessed and/or considered but nevertheless dismissed the appeal and upheld the authorization. However the Minister amended the authorization, requiring a climate change impact assessment prior to the project’s commencement, to be lodged with the DEA for review. In this case, Earthlife sought a review of both the authorization and the Minister’s decision to uphold the authorization. Earthlife argued that the DEA was obliged, but failed, to consider the climate change impacts of the station prior to deciding on the authorization. South Africa is a significant contributor to global greenhouse gas (GHG) emissions, and coal-fired power stations are the single largest national source. However coal-fired stations are also an essential component of the government’s medium-term electricity generation plans. Under South Africa’s commitments to the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol, and the Paris Agreement, the Court found that climate change impact considerations are relevant, and their absence in deciding on this authorization and the consequential appeal made the authorization unlawful. The Court remitted the authorization for reconsideration with climate change and paleontological impact assessment reports, including comments from interested and affected parties, and set aside the Minister’s appeal decision.
Environmental Legal Questions:
- Does a grant environmental authorization to construct a coal-fired station require consideration of climate change impacts? Section 24O(1) of the National Environmental Management Act (NEMA) requires the granting authority to take into account all relevant factors, which may include pollution, environmental impacts, or environmental degradation likely to be caused if the application is approved or refused. Section 24O(1) is to be read with the relevant provisions of the Environmental Impact Assessment Regulations (the Regulations), which provide that the environmental impact assessment report must contain all the necessary information to reach a decision on the application. The Court found that consideration of the climate change impacts of the coal-fired power station to be relevant factors that will best be accomplished by means of a climate change impact report. The Court’s decision balanced the importance of coal for the economy and electricity production against South Africa’s national and international commitments, and the high level of GHG emissions and adverse impacts of climate change in South Africa.
- Can the Court remit the decision? As per the Promotion of Administrative Justice Act, the Court may grant any order that is just and equitable in judicial review. This includes setting an administrative action aside and remitting it for reconsideration. Earthlife sought orders setting aside both DEA’s authorization and the appeal decision in their entirety, which would require the environmental authorization process to commence anew. However, the Court found that such a remedy might be disproportionate. Thus, the Court set aside the Minister’s ruling and remitted the matter of climate change impacts to her for reconsideration on the basis of the new evidence in the climate change report.