Pretoria – South Africa’s first climate change lawsuit kicked off on Wednesday 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.
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. “This is because in this case, environmental authorisation was granted without any proper climate change assessment having been done,” he said.
The case concerns the proposed 1200 MW coal-fired power station, which will be in operation until at least 2061.
In February 2015 the Department of Environmental Affairs granted Thabametsi an 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 ground that the climate change impacts 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 is how it will 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 this, 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 withdraw the authorisation she gave on this basis.
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 will generate about 8.2 million tonnes of carbon dioxide each year and more than 246 million tonnes in its lifetime.
According thim experts concluded that climate change poses high risks to the power station, particularly through increasing water scarcity at the proposed site and that these risks cannot 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 that there is no provision in our domestic legislation which expressly stipulates that a climate change impact assessment must be conducted before the granting of an environmental authorisation.
He said government is in any event taking extensive steps to address the issue of climate change. It is, among others, developing a complex set of mitigation measures, These measures are still under development, but the country is committed to putting these mitigating measures in place.The case is proceeding.