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Green Connection NPC and Another v Minister of Forestry, Fisheries and the Environment and Others - judgment

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Green Connection NPC and Another v Minister of Forestry, Fisheries and the Environment and Others - application

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In South Africa, the Green Connection NPC and Natural Justice (herein the applicants), initiated a review application against the decision of the Director General of the Department of Minerals and Energy (the DG) and the Minister of Environment, Forestry and Fisheries (the Minister) granting an environmental authorisation to conduct exploratory drillings off the South-West coast of South Africa. The application is based on the ground that the Environmental Impact Report (EIR) utilized by the DG and Minister to inform their decision did not adhere to the stipulated requirements outlined in the National Environmental Management Act 107 of 1998 (NEMA) and the Integrated Coastal Management Act 24 of 2001 (ICMA).

The issue is whether the decision to grant environmental authorization to conduct exploratory drilling off the South-West coast should be set aside in that it was taken without proper assessment of the environmental impacts of the proposed project. In praying for the authorization to be set aside, it is the contention of the applicants that the decision to grant environmental authorization was made without a thorough assessment of the environmental ramifications of the proposed project, as the EIR fails to meet the standards set forth by NEMA and ICMA. The EIR failed to consider climate change impacts associated with the use of any oil or gas discovered by the Proposed Project and to evaluate potential trans-boundary impacts of an oil spill resulting from a well blowout, particularly concerning contamination in Namibian waters and international waters. It does not adequately assess the extent of socio-economic impacts, including potential revenue losses for fishing operations and coastal communities in the area. The authorisation itself flouts section 24 of the Constitution of the Republic of South Africa which guarantees the right to a healthy environment, protected for present and future generations. It infringes on the environmental impact assessment principles in National Environmental Management Act (NEMA) enacted to give effect to the constitutional rights related to environmental protection. Consequently, the decisions made regarding the environmental authorization for the proposed project are legally flawed and subject to review and potential reversal under the Promotion of Administrative Justice Act (PAJA).
In relation to jurisdiction, GREEN CONNECTION NPC and NATURAL JUSTICE   assert that the requirements for loca standi and jurisdiction have been satisfied, in that the application is brought in their own interest, in the public interest in terms of section 38(1)(c) of the Constitution and section 32(1)(d) of NEMA and in the interest of protecting the environment in terms of section 32(1)(e) of NEMA, and that the adverse effects of the decisions under review will be experienced in the Western Cape. Hence, the Court has jurisdiction in terms of section 1 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

The Western Cape High Court has heard the case, and TotalEnergies told the court that there is a 1 in 7,000 chance of an oil spill occurring from the block. The company still holds environmental permits for the block, but is looking to transfer the majority of its interests to Shell and PetraSA. 

The High Court reviewed the lawfulness of the environmental authorization (EA) granted to TotalEnergies (with Shell as co-holder) for offshore exploratory drilling in Block 5/6/7 off South Africa’s south-west coast. The applicants challenged the EA under PAJA on several grounds, including failures to properly assess socio-economic impacts of a potential oil spill, failures to consider climate change impacts (particularly downstream emissions), failures to consider the Integrated Coastal Management Act (ICMA), and omissions in spill contingency planning. The decisions under review were the Director-General’s grant of the EA and the Minister’s dismissal of the internal appeal.

The Court held that the environmental impact assessment process was legally deficient. It found that while a catastrophic well blowout and oil spill were identified as low-probability but high-impact risks, the Final Environmental Impact Report failed to properly quantify and assess the socio-economic consequences of such an event, especially for fishing communities and coastal livelihoods. This omission breached NEMA and the EIA Regulations, which require assessment of all potentially significant impacts and risks, including low-probability, high-harm scenarios. As a result, the decision-makers failed to consider relevant considerations, rendering the EA unlawful and reviewable.

On climate change, the Court accepted that the Final EIR failed to assess the climate impacts associated with the burning of any oil or gas discovered, i.e. downstream (Scope 3) emissions. It rejected the notion that climate impacts could be ignored at the exploration stage and affirmed that climate change consequences are a relevant consideration under NEMA’s sustainability and precautionary principles. The failure to assess climate change impacts meant the decision-makers could not properly evaluate the need and desirability of the project, undermining the constitutional obligation to protect the environment for present and future generations.

The Court set aside the environmental authorization and the Minister’s appeal decision, holding that they were taken in breach of mandatory statutory duties. It emphasized the precautionary principle, the need for rigorous assessment of climate and socio-economic harm, and the constitutional centrality of environmental protection. The judgment reinforces that offshore fossil-fuel projects must confront climate change impacts explicitly and transparently at the authorization stage, not defer them to later phases.

Green Connection NPC and Another v Minister of Forestry, Fisheries and the Environment and Others

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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

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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

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

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

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.

Activities that provide lodging, food, and entertainment services to guests, including hotels, restaurants, and resorts.

This sector creates and distributes information and entertainment through television, radio, print, and digital platforms.

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

Financial support to help individuals manage the effects of unexpected events, securing their livelihoods and increasing the resilience of people and businesses to the changing climate. It’s especially vital in developing regions where everyday risks, climate-related weather extremes, or crop failures can push people into poverty. Without insurance, people may have to resort to selling assets or cutting consumption to cope with losses.

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Actions or measures to adapt freshwater systems to climate change.

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

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Any substance with chemical properties that can cause physical harm to people or damage the environment, including ammonia, carbon monoxide, phosphine, chlorine, arsenic, cadmium, mercury, pesticides, dioxins, microplastics, benzene, asbestos, aflatoxins, fluoride, methanol, and toxins from marine sources.

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

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

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