The Department of Environmental Affairs (DEA) granted environmental authorization for the construction of a coal-fired power station, and the not-for-profit organization Earthlife appealed. The Minister of Environmental Affairs recognized that the project’s climate change impacts were not comprehensively assessed and/or considered but nevertheless dismissed the appeal and upheld the authorization. However the Minister amended the authorization, requiring a climate change impact assessment prior to the project’s commencement, to be lodged with the DEA for review. In this case, Earthlife sought a review of both the authorization and the Minister’s decision to uphold the authorization. Earthlife argued that the DEA was obliged, but failed, to consider the climate change impacts of the station prior to deciding on the authorization. South Africa is a significant contributor to global greenhouse gas (GHG) emissions, and coal-fired power stations are the single largest national source. However coal-fired stations are also an essential component of the government’s medium-term electricity generation plans. Under South Africa’s commitments to the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol, and the Paris Agreement, the Court found that climate change impact considerations are relevant, and their absence in deciding on this authorization and the consequential appeal made the authorization unlawful. The Court remitted the authorization for reconsideration with climate change and paleontological impact assessment reports, including comments from interested and affected parties, and set aside the Minister’s appeal decision.
Environmental Legal Questions: