South Africa’s High Court was recently asked to determine whether, under the National Environmental Management Act 107 of 1998, “relevant” considerations for environmental review of plans for a new 1200 MW coal-fired Thabametsi Power Project include the project’s impacts on the global climate and the impacts of a changing climate on the project. Notably, the project would operate until about 2060. The court, after observing that the statute does not expressly contemplate climate change, held that such considerations are relevant and that their absence from the environmental review of the project made its approval unlawful. This question came before the court as a result of EarthLife Africa Johannesburg’s appeals. The first appeal was submitted to the Minister of Environmental Affairs to challenge the adequacy of the project’s environmental review; EarthLife argued that the review was invalid because it largely ignored climate change. The second was submitted to the High Court in Pretoria to challenge the Minister’s mealy-mouthed determination that the review was legally valid even though it would have to be supplemented by a climate change analysis because issues related to climate mitigation and adaptation had not “comprehensively assessed and/or considered.”
The court cited several reasons, including South Africa’s commitments under the Paris Agreement, for its conclusion that climate change is indeed a relevant consideration for the environmental review of the Thabametsi Project. Because the review approved by the minister effectively ignored climate change, the court held it to be legally invalid.