Centre for Environmental Rights (CER) has challenged the Department of
Environmental and Affairs (DEA), as well as the Department of Energy (DoE) and
its IPP office to ensure that proper and thorough assessments of the
environmental impact and potential climate change effects are conducted before
the proposed Khanyisa new coal-fired power station is authorised.
CER, acting on
behalf of Earthlife Africa Johannesburg (ELA) and groundWork, is considering
legal steps against these departments and the power station developers,
including possible court action, if proposed IPP coal plants are allowed to
proceed without the afore-mentioned climate change impact assessment having
follows written objections which have been laid against the authorisation of
the Khanyisa power station because its environmental impact assessment (EIA)
failed to adequately consider the climate change impacts of the proposed power
objections have been submitted against Khanyisa’s applications for integrated
water-use and electricity generating licences, and objections have been raised
against the validity of Khanyisa’s provisional air emission licences, which it
obtained in 2015, as various amendments have been made to the proposed project,
including a capacity increase from 450 MW to 600 MW since the application of
the licence was made.
CER, on behalf
of groundWork have also objected to an authorisation and decision by the
minister of Environmental Affairs to uphold an authorisation for the KiPower
IPP power station and the Colenso IPP, where the minister said that there is no
legal obligation on the DEA to consider climate change impacts. The parties are
considering further legal action, including High Court review proceedings, in this
regard as well.
This would not
be the first such legal action taken against the DEA. In a landmark ruling in
March 2017, the North Gauteng High Court confirmed that a climate-change
assessment must be done prior to the authorisation of any new coal-fired power
station in South Africa.
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In that ruling,
the High Court recognised climate change in law and ruled that a climate change
impact assessment is required as part of the environmental impact assessment
for the authorisation of new coal-fired power stations.
ruling supported ELA’s request to set aside the environmental authorisation for
Thabametsi, a proposed 1200 MW coal-fired power station, based on the DEA’s
failure to ensure that a thorough climate change impact assessment was
conducted prior to authorising the new power station.
The court suspended Thabametsi’s environmental
authorisation until the minister of Environmental Affairs reconsiders ELA’s
appeal of the environmental authorisation based on a full climate change impact
assessment for the power station, and public comment thereon.
Thabametsi and Khanyisa are projects under the
government’s Coal Baseload Independent Power Producer Procurement Programme
(CBIPPPP). Thabametsi is one of the proposed power stations selected in the
first bidding round of the CBIPPPP, the other being the proposed 600 MW
Khanyisa power station.
Coal is South Africa’s dominant energy source, and
currently provides 77 percent of the country’s energy needs according to the
A climate resilience assessment of Thabametsi, published
in January 2017 by Savannah Environmental, an environmental consultancy,
identified several key climate-related risks to the plant. It noted that the
plant “is located in a water scarce area that is vulnerable to climate and weather
extremes, including high summer temperatures, floods (particularly during the
summer rainfall season), and droughts and wildfires”.
Although the DEA argued that the country is facing an
energy crisis that hampers economic development, and for the “over-riding
priority to address poverty and inequality”, the court found that the process
of authorising the new power station was flawed in that it failed to comply
with existing environmental legislation, which requires consideration of the
impacts of climate change and environmental concerns.
The DEA is the authority tasked with evaluating EIAs and
the issuing of environmental authorisations. Following the judgment, the DEA
said that its minister is considering how to respond to the ruling, adding that
a climate change impact assessment has already commenced and has gone out for
public comment. The assessments will be submitted to the minister in the coming
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According to CER, the judgment is relevant for all
proposed future coal-fired power stations, including those under the CBIPPPP.
This may call into question the construction of new coal-fired power stations
in South Africa.
The ruling confirmed that existing law requires an EIA to
include a comprehensive assessment of climate change impacts prior to reaching
a decision on whether to authorise a project. It also confirmed that the
Integrated Resource Plan (IRP) does not trump environmental legislation.
In the process, it was also pointed out that the CBIPPPP
design specifications are not greenhouse gas (GHG) emission-efficient. GHG
emissions are widely considered a primary driver of climate change. A GHG
assessment for Thabametsi found that the plant’s emissions of 8,2-million t of
CO2 per year are very high based on international standards.
The ruling also casts uncertainty over the future of the
proposed KiPower and Colenso IPP power stations, which the Minister of
Environmental Affairs authorised without doing climate change impact
assessments, and the Namane IPP power station, which is currently being
appealed on the same grounds.