Case name:    Earthlife Africa Johannesburg v. The Minister of Environmental Affairs and Others

Jurisdiction:    South Africa

Type of claim:    Challenge to environmental authorization for coal-fired power plant for failure to adequately consider climate change impacts.

Summary of result:    Court orders the decision be remitted to the Minister for reconsideration based on new evidence in climate change impact report.

Judgment final:        No

Court instances:

Source for Decisions:    http://climatecasechart.com/

Source of claims   

Public Law- Administrative Law- Judicial Review- Environmental Impact Assessment:

National Environmental Management Act 107 of 1998 (NEMA): Section 24; Section 24O; Section 43.

Promotion of Administrative Justice Act (PAJA) 3 of 2000: Section 6; Section 8.

Administrative Decision Maker failed to take account of all relevant factors in deciding on an application for environmental authorization (NEMA s.24O).

The decision should be set aside in because it was unlawful, irrational and unreasonable for the Chief Director and the Minister to grant the environmental authorisation in the absence of a proper climate change impact assessment (PAJA s.8).

The decision should be remitted for reconsideration as it was based on a material error of law (PAJA s.6)

Constitution of the Republic of South Africa, 1996, Section 24

Paris Agreement to the United Nations Framework Convention on Climate Change, Dec. 12, 2015, T.I.A.S. No. 16-1104.

Summary of Judgment

Facts and claims of the parties

The applicant, Earthlife Africa, seeks judicial review of an environmental authorization (EA) granted to the Thabametsi Power Company to build a 1200MW coal-fired power station near Lephalale, a coal-mining town in the Northernmost province of Limpopo.

The Gauteng Division of the High Court of South Africa reviewed the original decision of the Chief Director and the Minister’s review of that decision.  The Court ultimately set aside part of the Minister’s ruling on Earthlife’s appeal and remitted the issue of climate change impacts to her for reconsideration based on the new evidence in the climate change impact assessment (CCIA) that was submitted after the original authorization.  The Court suspended the EA pending the Minister’s review of the decision.

The National Environmental Management Act (NEMA) requires an environmental impact assessment (EIA) for the approval of coal-fired power plants. The DEA granted Thabametsi’s application for an EA despite the fact that the EIA did not address the project’s impact on the climate, how it will aggravate climate impacts that will be felt in the region such as water scarcity, or the project’s resiliency to climate change.

Once an application for an EA has been made, an EIA must be undertaken (s.24(1)). NEMA obliges the decision maker to take account of all relevant factors in deciding on an application for an EA, including any pollution and environmental impacts or degradation likely to be caused if the application is approved or refused (s.24O(1)). An interested and affected party (IAP) has standing under NEMA to bring a review application in its own interest, in the public interest and in the interest of protecting the environment (s.32(1)).

As an IAP, Earthlife appealed the EA granted by the Chief Director to the Minister of Environmental Affairs, who upheld the decision. In the appeal decision the Minister recognized that the climate change impacts were not comprehensively assessed or considered prior to the approval. The Minister amended the authorization under s.43(6) of NEMA. The amended EA required the holder undertake a CCIA before commencing construction.

Earthlife seeks review on the grounds that there was: non-compliance with mandatory provisions in s.24O(1) of NEMA; the absence of a CCIA renders the impugned decision irrational and unreasonable; and the Minister committed material errors of law in reaching her decision. Earthlife’s case centres on the premise that section 24O(1) of NEMA, properly interpreted, requires a CCIA to be conducted and considered before the grant of this EA.

The respondents argued that the law does not specifically require a CCIA and it cannot be required as there exists no specific guidelines for preparing one. The court rejected both arguments noting that an EIA ins inherently open-ended and context specific and climate change impacts are a relevant consideration as contemplated in NEMA. The Court also cited South Africa’s Nationally Determined Contribution (NDC) under the Paris Agreement as further evidence that a CCIA was necessary.

High Court Judgment

The Court finds that the initial decision to grant the EA was based on information that was wholly insufficient. It consisted of a single paragraph on climate change impacts. The Court then turned to the Minister’s decision to dismiss Earthlife’s appeal of EA decision. The Court found that the Minister was correct in that a CCIA was needed.  However, she appeared to have misunderstood her legal authority and thus, there was a material error of law in her decision. The Minister believed she had the power to revoke the EA if the newly ordered CCIA warranted it. That was incorrect. The Court recognized that it could have set aside the EA and sent the matter back to the DEA for a fresh decision.  However, since a CIAA had been prepared in the meantime, the Court opted to set aside one part of the Minister’s ruling, thus sending the appeal back to the Minister for reconsideration.