Trustees for the Time Being of GroundWork v. Minister of Environmental Affairs, ACWA Power Khanyisa Thermal Power Station RF (Pty) Ltd, and Others

The environmental organization groundWork has filed a motion requesting that South Africa’s High Court review and set aside the Department of Environmental Affair’s authorization to develop a 600 MW coal-fired power plant, the “Khanyisa Project," without first considering the climate change impacts of the plant. They also challenge the Minister of Environmental Affairs’ rejection of groundWork’s application to appeal the authorization. Petitioners argue this dismissal directly contradicts the Court’s decision in EarthLife Africa Johannesburg v. Minister of Environmental Affairs and Others handed down on March 8, 2017. This case considered similar authorization for a 1200 MW coal-fired plant called the Thabametsi Project. In EarthLife Africa Johannesburg, the Court held that “the climate change impacts of a proposed coal-fired power station are required to be assessed and comprehensively considered as part of an environmental impact assessment under the National Environmental Management Act 107 of 1998 before an authorization decision is reached. National Environmental Management Act Section 24O(1)(b) further requires consideration of impacts, mitigation measures, and domestic as well as international policy commitments before granting an environmental authorization. In EarthLife Africa Johannesburg, the Court recognized South Africa’s commitments under the Paris Agreement as one of the reasons that climate change is a relevant consideration for the environmental review of a coal-fired power plant. This is one of two court applications filed by groundWork in September 2017 to oppose new coal-fired power plants in the Mpumalanga Highveld –an air quality priority area. As the litigation unfolded, it emerged that the Khanyisa Project had breached the conditions of its environmental authorization and that its authorization had expired. The Department of Forestry, Fisheries and Environment (DFFE) agreed that the authorization was no longer valid. The Khanyisa Project's developer, ACWA, did not file answering papers and the matter proceeded on an unopposed basis. On May 27, 2021, the High Court declared that the environmental approval for the planned 600MW Khanyisa coal-fired power station had expired. It ordered ACWA to pay the costs of the litigation.