South Africa's High Court was 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. 

After the decision of the High Court, the Minister of Environmental Affairs reconsidered the permit application in light of a newly finalized climate change impact assessment and again approved of the environmental authorization for the plant on January 30, 2018. The Minister reasoned that while the power plant would have significant GHG emissions and therefore cause climate change impacts, the power generation benefits of the project outweighed the harms. 

On March 26, 2018, EarthLife Africa and Trustees for the Time Being of the Groundwork Trust challenged the Minister's decision, asking the court to set aside the decision as unlawful for failing to consider site-specific climate change impacts associated with the project.

On November 19, 2020, the High Court, pursuant to an agreement between applicants and defendants, issued an order setting aside all governmental authorizations for the coal-fired power plant. The Court also ordered the defendants to pay court costs. 

EarthLife Africa Johannesburg v. Minister of Environmental Affairs and Others

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EarthLife Africa Johannesburg v. Minister of Environmental Affairs and Others - judgment

Filed

South Africa

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An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Justice is the ethical and political framework that addresses fairness, including issues of responsibility, rights, and structural inequity.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

People who are less able to respond to the effects of climate change due to having limited financial or physical assets

Zoning and spatial planning are both methods for guiding the distribution of people and activities in a space, and are regulatory restriction.

A company that is owned wholly or partially by the state, typically operating in key sectors.

Either money or something of monetary value is transferred between two or more organisations, people or countries.

Conditions that enhance the feasibility of adaptation options. Enabling conditions include finance, technological innovation, strengthening policy instruments, institutional capacity, multi-level governance and changes in human behaviour and lifestyles.

Actions or measures to adapt freshwater systems to climate change.

Actions to adapt human health, healthcare systems and well-being to climate change.

Actions and measures to adapt and increase resilience of societies and the economy to climate change.

Actions or measures to adapt freshwater, coastal and marine systems to climate change.

The release of heat-trapping gases, primarily from human activities such as burning fossil fuels, agriculture and industry.

A long-lived, colourless gas, chiefly emitted from fossil fuel combustion, deforestation and cement production.

A potent, short-lived greehouse gas, largely released from livestock, fossil fuel extraction and waste management.

Actions to reduce emissions in energy generation and supply.

Extreme weather refers to events where a weather variable exceeds (or falls below) a threshold. Meaning it is significantly different from the average or usual weather pattern.

A drought is an extended period of unusually dry weather marked by a significant and sustained lack of precipitation, falling below a specific threshold over a large area for more than a month

Terrestrial means "of the earth" and relates to the risks to ecological system that includes all living organisms and their interactions within land-based environments, such as forests, grasslands, and deserts.

Air pollution involves harmful contaminants in the air, affecting both indoor and outdoor environments. It can lead to health issues like respiratory diseases and heart problems, and climate impacts such as global warming. Pollutants can damage plants, trees, habitats, and water bodies like rivers and lakes.

Social inclusion is the process of improving the terms on which individuals and groups take part in society—improving the ability, opportunity, and dignity of those disadvantaged on the basis of their identity.

Oil is a combustible liquid fossil fuel composed mainly of hydrocarbons, occurring as crude oil and refined into petroleum products such as petrol, diesel and kerosene.

Coal is a combustible sedimentary rock formed from carbonised plant matter, rich in carbon and hydrocarbons, and occurring in several main types including hard coal and brown coal.

People with different national or cultural traditions from the dominant population

Social and cultural groups that share collective ancestral ties to the lands and natural resources where they live, occupy or from which they have been displaced

Work that is productive and delivers a fair income, security in the workplace and social protection for all, better prospects for personal development and social integration, freedom for people to express their concerns, organize and participate in the decisions that affect their lives and equality of opportunity.

People who have left their homes, whether through force, voluntarily, or a mixture of both

Activities of industries that extract natural resources, such as mining, oil, and gas, for commercial use.

The activities of industries involved in the production, distribution, and sale of energy, including electricity, gas, and renewables.

This sector involves managing waste treatment, sanitation, pollution control and environmental cleanup.

Activities that involve planning, designing and building infrastructure, residential, and commercial structures.

This sector involves the wholesale and retail selling of goods.

This sector involves activities to move goods and people, alongside the storage of products.

Activities of government agencies and institutions that provide public services, enforce laws and manage public resources.

This sector includes firms and individuals offering specialised expertise in fields such as law, accounting, consulting, science and engineering.

Activities that involve the cultivation of crops and raising of livestock for food, fibre, and other products essential for human life and industry.

Activities involving the catching, processing, and selling of fish for food, recreation, and industry.

This sector involves the distribution, treatment, and conservation of water resources.

Climate change impacts our society by disrupting the natural, economic and social systems we depend on. Physical hazards and underlying vulnerabilities can lead to increased resource competition for food and water, which can heighten the risk of conflict.

Slow onset events evolve gradually from incremental changes over many years or from increased frequency or intensity of recurring events. As defined in the Cancun Adaptation Framework (2010), slow onset events include risks and impacts from rising temperatures, desertification, biodiversity loss, land and forest degradation, glacial retreat, ocean acidification, sea level rise, and salinization.

EarthLife Africa Johannesburg v. Minister of Environmental Affairs and Others - judgment

Policy instrument

Risk

Impacted group

Just transition

Renewable energy

Fossil fuel

Greenhouse gas

Economic sector

Adaptation/resilience

Finance