Eskom’s Khanyisa faces new legal challenge

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Published Apr 28, 2017


Johannesburg -The

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

been completed.

This challenge

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.

Another application

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.

The court’s

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.


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