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Earthlife, an environmental advocacy non-profit in Africa, brought suit against the South African Minister of Environmental Affairs alleging that she had wrongly given permission for the building of a large coal power plant. [1] The plaintiffs argued that the environmental review, required by the National Environmental Management Act (NEMA), had inadequately accounted for the long-term impacts the plant would have on climate change. South Africa’s High Court ultimately ruled in favor of the plaintiffs, staying the development of the plant until a more in-depth analysis was performed.
Background[edit]
The case concerns the Thabamatsi Power Project, a large coal plant that would be built in 2020 and run until 2060. In order to proceed with building the plant, the project would first need to receive authorization from the Minister of Environmental Affairs according to NEMA. This authorization would only be granted if the project “considered, investigated, and reported” on the potential environmental impacts of building the plant. [2] The Minister found the reports on the quantity of emissions adequate, especially as they fell within the bounds set by the Paris Agreement. [3]
Earthlife appealed the Minister’s decision to the Department of Environmental Affairs (DEA), arguing that the environmental impact report did not adequately examine the greater impact the Project would have on climate change. The Minister denied the appeal on the basis that, while greater analysis of climate change may have made a more complete report, NEMA did not explicitly require a climate change assessment.[4] Earthlife then appealed the decision to the High Court of South Africa.
Earthlife’s argument was that NEMA’s requirement that “all relevant factors” be analyzed includes an analysis of a project’s import on climate change. [3] Furthermore, Earthlife argues that Section 24 of the South African Constitution’s guarantees that “Everyone has the right – (a) to an environment that is not harmful to their health or wellbeing; and (b) to have the environment protected, for the benefit of present and future generations” which means that the NEMA statute ought to be interpreted more broadly in service of these goals.
The DEA argues that NEMA does not require this broad, outside analysis, and as a result the initial report was adequate. They also posit that the additional analyses would levy an undue burden on infrastructural development in South Africa, and therefore the statute should be interpreted according to the text to facilitate efficiency. They also argue that the coal plant’s greenhouse gas production would fall within the acceptable boundaries set out by the Paris Agreement.
Relevant Law and Principles[edit]
- National Environmental Management Act No. 107 of 1998
- Section 23: Implementation
- South African Constitution Section 24
- Paris Agreement
Status[edit]
Justice Raymond Murphy of the High Court ruled in favor of Earthlife, requiring the Minister to approach the initial appeal de novo, with the added requirement of this climate report.[3] The Court agreed with Earthlife that NEMA did require an analysis of climate impact in these authorizations. Justice Murphy stated that the Minister was aware that the report inadequately analyzed broader climate impact yet granted the authorization anyway.
The High Court concluded that after the climate analysis is performed, if adequate, the power plant may still be allowed to be built. The Minister would ultimately be the one to decide the adequacy of the report. The Court was not interested in requiring an entirely new authorization process nor putting a stay on the authorization, in the interest of governmental efficiency.
The Court also required the respondents to pay Earthlife’s court costs.
The Minister ultimately did grant authorization for the construction of the plant after receiving a climate change report. Earthlife appealed the re-authorization in October 2019, and the appeal is ongoing. [5]
Takeaways[edit]
Earthlife is a major victory for South African environmental advocacy. It sets a precedent that future environmental authorizations will require analysis of the climate impact of the projects seeking license under NEMA.
The victory does have limits, however. The first is that the DEA retains discretion regarding authorization. This means that the same actors who allowed the inadequate application to proceed will be the judge of the update application and, in this case, the re-authorization was quickly granted. As a result, it may be less of a barrier to harmful development than it appears. The second is that the ruling has limited import on global climate policy, such as the Paris Agreement, as it focuses squarely on NEMA and the South African Constitution.