Abstract

Keywords

Climate change; regulatory framework; South Africa.

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Climate change is:1

The ongoing trend of changes in the earth's general weather conditions as a result of an average rise in the temperature of the earth's surface often referred to as global warming.

Due to the rise in human activity, in line with industrial and population growth and activities such as deforestation,2 there has been an increase in the emission of greenhouse gases (GHG) into the atmosphere, such as carbon dioxide, methane and nitrous oxide.3 The release of these gases has adversely impacted on the earth's natural environment and on the ability of the climate to adapt to an increasing rise in the earth's temperature.4 Currently, there are global efforts focused on the mitigation of climate change, which attributes extreme weather changes to "human activities".5 If the increase in average global temperature is not kept under 2 degrees, there may be "potentially catastrophic" impacts, especially on countries such as South Africa.6 Increasingly, the global population has become more aware of its role in causing climate change and there are efforts to ameliorate this man-made disaster.7

As countries unite to discuss and implement ways of mitigating these effects through the implementation of the United Nations Framework on Climate Change (UNFCCC), the Kyoto Protocol8 and more recently the Paris

Agreement,9 it remains each individual country's responsibility to ensure that it contributes to the solution rather than to the problem. Although a united effort is needed to mitigate climate change,10 it is recognised that countries' capabilities and available resources are not equal.11 This is catered for by the common but differentiated responsibilities principle, which acknowledges the inequality between the priorities of developed countries and those of developing countries.12

As a developing country and as a non-Annexe 1 country in terms of the Kyoto Protocol, South Africa is not one of the countries obliged "to take the lead" on climate change.13 As one of the highest contributors of GHG emissions due to its heavy reliance on coal,14 also as a water stressed country15 and a country that would be greatly disadvantaged by the effects of climate change,16 arguably South Africa should take a stronger stance against the effects of climate change. Despite this, the country's climate change laws are arguably not as advanced as they could be to overcome the environmental challenges.

The landmark Paris Agreement, adopted by almost 200 parties, highlights the increased global efforts to combat climate change.17 South Africa's role in such an endeavour must therefore increase to ensure its own wellbeing

as well as to do its part for the rest of the world.18 A step in the right direction was made in the judgment of Earthlife Africa Johannesburg v Minister of Environmental Affairs,19 (the Thabametsi case), which considered whether the impacts on climate change of a coal-fired power station constitute "a relevant factor" to be considered in an environmental impact assessment report for the purpose of obtaining an environmental authorisation in terms of the National Environmental Management Act (NEMA).20 This case note explores the impact of the judgment on the law on climate change and will argue that, while the existing regulatory framework has made a significant contribution to discharging South Africa's climate change responsibilities, the framework needs to be more robust to ensure a positive contribution to combatting climate change.

This note initially explores South Africa's current energy practices, thus setting the context for the understanding of the importance of the Thabametsi case judgment. The existing legal framework is then examined in the context of a description of South Africa's particular vulnerability to climate change. The facts and outcome of the case are discussed thereafter with the view that the state as custodian of the environment must ensure its protection through a comprehensive climate change regulatory framework.

South Africa's economy is "energy intensive"21 with coal as the dominant fuel,22 due to the substantial coal resources that the country enjoys.23 South Africa's significant coal reserves rank it as the third largest exporter of coal. These reserves also primarily fuel South Africa's electricity production with at least 77% of its energy coming from coal.24 The ample reserves of coal generally mean that the country's energy supply is secure.25 However, the historical context of the country has resulted in a population characterised by abject poverty and inequality with a large number unable to access

energy generally, and electricity in particular.26 It is because of this legacy that the country's energy policies are necessarily driven towards the alleviation of inequality, poverty and by association other socio-economic ills such as unemployment.27 The abundance of coal therefore is offered as a compelling reason to use it as the cheaper energy source of choice, to address the critical issues faced by the country.28 At the same time, South Africa acknowledges the need for sustainable development,29 which places the use of coal as an energy choice at odds with sustainable development on account of its high GHG emissions.30 Although the country must address its obligation to reduce GHG emissions, the use of coal-fired power looks set to be the preferred source to ensure the socio-economic challenges of the country are overcome.31 Progress has been made towards using cleaner alternative sources such as renewable energy through the Renewable Energy Independent Power Producer Procurement Programme (REIPPPP).32 Additionally investment has been made by the Department of Mineral Resources and Energy in various sectors such as energy efficiency and public transport in order to reduce emissions.33 The country's energy sector has also set the target to be "environmentally sustainable" by 2030. Despite this progress, the country's energy policies still prioritise coal. For example, the Integrated Resource Plan (IRP)34 envisages 6.3 MW of coal as part of the energy mix,35 and over 90% of South Africa's electricity is derived from coal.36 In addition the updated IRP of 201937 shows that coal

is still a part of the energy policy.38 Interestingly, the IRP also includes emission reductions as an objective,39 and the IRP 2019 also records the non-binding guidelines suggested by the International Labour Organisation (ILO) for a "just transition towards environmentally sustainable economies".40 Arguably, this is a sensible approach since it is because of the existence of the well-established coal-fired system that the country has both the resources and the knowledge in coal-based systems and can address energy needs faster in this way.41 To this end, the IRP 2019 provides that "South Africa should not sterilise the development of coal resources" and states that this should be done with the adoption of "cleaner coal technologies".42 Notably, however, there is a lack of deeper discussion specifically on climate change. While there are discussions and while South Africa is a part of negotiations surrounding climate change, including GHG emission reductions and caring for the environment, a specific inclusion of the link to climate change is missing.43 The prioritisation of coal use is also supported by the shortage of electricity experienced by the country, which necessitates long periods of load shedding, thereby crippling the country's growth efforts.44 It is this critical balance that the country must achieve, to ensure that its population has access to energy, which includes access to electricity, but also to ensure environmental sustainability.45 The Constitution46 itself recognises that sustainable development includes environmental protection, social needs and economic development and thus this interplay, in the South African context, requires the use of coal.47 Coal usage contributes to economic growth goals but negatively impacts on the natural environment. It is recognised that climate change adaptation is important for sustainable development but a balance needs to be attained between social progression and protection of the earth's resources.48 There are many instances where effective environmental governance is hampered because decisions by the state prioritise economic development over environmental protection.49 The Thabametsi case highlights this delicate balancing act and shows how the country should begin to move towards a

proper consideration of climate change while still addressing its energy requirements.50

In order to appreciate the significance of the Thabametsi judgment, it is necessary to discuss the existing South African laws and policy around climate change. Since climate change means:

A change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods51

and where rapidly rising temperatures are a consequence of these changes, the earth's natural resources are not able to recover as well or as fast as they should.52 These natural resources form part of the natural environment that provides food security, water and other resources necessary for human survival.53 It is therefore no stretch of the imagination to conclude that protection of the environment is key to the mitigation of climate change and its effects.54

The Constitution in section 24 specifically guarantees the right to "an environment that is not harmful to … health or well-being".55 The section also provides for the protection of the environment "for the benefit of present and future generations", which involves containing pollution and ensuring sustainable development, among other things.56 This provision effectively requires the state to ensure that the environment is protected for the benefit of the public for successive generations and is the overarching provision for the protection of the environment.57 This means that South Africa will have to look at its policies on GHGs (discussed below) again. While it is important to address current energy needs, it is equally important to ensure that any action taken today does not jeopardise the environmental future.58

The policy on climate change is provided for in the National Climate Change Response White Paper (the White Paper).59 At the outset the White Paper recognises South Africa's particular vulnerability to the effects of climate change.60 It also refers to the balance required between contributing to the worldwide effort to reduce GHG emissions and to "successfully tackl[ing]" its developmental goals.61 Significantly, the White Paper accepts that climate change is "one of the greatest threats to sustainable development"62 while at the same time also seemingly stating that overcoming the country's socio-economic challenges such as poverty and unemployment would take precedence.63 The White Paper also acknowledges the role that South Africa must play in reducing GHG emissions as a member of the global community.64

As such, the White paper considers both adaptation and mitigation measures with an admission that the country's emissions are mostly from the energy industry.65 A number of Near Term Priority Flagship Programmes are discussed in recognition of the urgency required in addressing climate change. These programmes will include measures to mitigate and adapt to climate change.66 Overall, the White Paper considers the government's approach to climate change and the role it should play in the near and long term. It is informed by section 24 of the Constitution and NEMA as well as the United Nations Millennium Declaration and the UNFCCC.67

While there is a policy aimed at regulating climate change, there is no specific piece of legislation that provides for climate change overall.68 There is, however, legislation at national level that regulates the use of natural resources. The NEMA incorporated the Constitution's provisions and paved the way for further legislation on specific areas in the environment such as

the Air Quality Act69 whose purposes are, among others, to prevent pollution and secure sustainable development,70 and which in the preamble specifically incorporates the wording of section 24 of the Constitution. Other Acts pertaining to the safeguarding of the environment include the National Water Act,71 which recognises water as a scarce resource that is "unevenly distributed" in South Africa.72 Its purpose includes consideration of preserving water for the future through "sustainable use in the public interest,"73 and the Mineral and Petroleum Resources Development Act (MPRDA),74 which protects the sustainable development of the state's minerals.75

As a signatory to the UNFCCC, the Kyoto Protocol and the more recent Paris Agreement South Africa is obliged, amongst its other responsibilities, to formulate its responses to the responsibility to mitigate GHG emissions and "mainstream climate change considerations into social, economic and environmental policy".76 While acknowledging these responsibilities, as a developing country its economic growth and the eradication of poverty are key priorities.77 The role of access to energy and specifically electricity is a mandatory concern for the government if the country is to achieve its developmental goals.78 The intermittent load shedding the country has experienced since 2008 has reached critical proportions, resulting in so-called stage 6 load shedding 79 with crippling effects on the economy.80 The fact that the electricity industry is mainly coal-based, however, directly conflicts with the world's call for cleaner energy paths.81 As pointed out by Humby, this conflict is further evident in the country's commitments in terms of the Paris Agreement, where the country has recently adopted a Peak,

Plateau and Decline approach to its GHG emissions on account of its developmental needs.82

While the White Paper was published in 2011 setting out the state’s policy on climate change, it has taken over eight years for further development. In 2019, however, the Carbon Tax Act83 was passed, which effectively imposed a tax on carbon dioxide GHG emissions.84 As with the White Paper and the National Development Plan (NDP), the Carbon Tax Act acknowledges the increasing urgency of managing GHG emissions, which cause climate change.85 It also recognises the necessity to manage South Africa's own wellbeing, together with its responsibility as a global citizen to partake in the efforts to mitigate the effects of climate change for the sake of sustainable growth.86 More importantly, it seeks to achieve more environmentally responsible behaviour with the imposition of a tax on harmful emissions and offers rewards as incentives to promote the use of cleaner energy.87 It is the first piece of legislation that speaks specifically to climate change, although it is not a comprehensive law that covers all aspects of climate change in all sectors. The time taken from formulation of the policy on the carbon tax initiative in 201388 to the promulgation of the Act in 2019 reflects the somewhat slow progression towards a greener economy. This is also reflected in the fact that since the appearance of the White Paper there has been minimal movement in the specific regulation of climate change.

Specifically, in June 2018 the government released the Climate Change Bill,89 which is aimed at giving effect to the policy set out in the White Paper.90 Included in the Bill's objectives is to provide for an "effective management of climate change impacts"91 and to make a "fair contribution to the global effort".92 It also recognises the goal of sustainable development by ensuring that the socio-economic priorities of "economic, employment and environmental development" must proceed in a sustainable manner.93

The protection offered in section 24 of the Constitution is reiterated in the Bill's principles, which provide for the protection of the climate for the future.94 In line with the common but differentiated responsibilities doctrine,95 South Africa's limited capabilities in respect of the mitigation of climate change are also recognised.96 Generally, the Bill deals largely with the establishment of bodies to administer the climate change mitigation envisaged by it.97 Since the time frame for commentary closed,98 the Bill has yet to become enforceable. Thus, while there has been movement towards the regulation of climate change, this movement remains ineffectual.

The urgent need for South Africa to change its approach to its energy demands is a result of the unique impact climate change will have on the country. In this regard, much has been said about South Africa's vulnerability to climate change.99 According to the Intergovernmental Panel on Climate Change (IPCC), while climate change is a concern for the world at large, the experiences of the effects of climate change are vastly different between regions.100 South Africa's situation is akin to that of the rest of Africa, which is a heavily populated continent.101 Among other climate change effects, the continent's temperature has increased and will continue to increase because of human behaviour.102 This increase, specifically in Southern Africa, is far above the naturally changing environment103 and has led to much hotter summers and warmer winters together with an increased probability of heat waves in South Africa.104 Africa's vulnerability to climate change affects human rights,105 and increases the strain on the economy in areas such as agriculture, which in turn threatens food security, from which

the poorest would suffer the most.106 Water scarcity is also a concern as the prevalence of droughts increases, also impacting on food security.107 Water scarcity was of particular concern in the Thabametsi case as the coal-fired power station would strain the already scarce water resources in the Limpopo area.108 Other related negative effects include an impact on general health, an increase in malnutrition,109 and would include the occurrence of diseases such as malaria.110 The continent's ability to adapt is hampered by a lack of implementation of climate change management measures, especially where they would be useful in addressing poverty and other economic concerns prevalent to the region.111 This rings true in the South African context as South Africa's vulnerability surely mirrors the region's vulnerability.112 For example, an expected increase in sea levels will negatively affect the coastal areas with high lying areas such as Gauteng experiencing more flooding and increased temperatures which could lead to the introduction of malaria.113 As Van der Bank and Karsten point out, there has been a significant increase to the average annual temperature in South Africa which will negatively impact on water, food security and natural resources such as the ecosystems and biodiversity.114

It is therefore clear that addressing climate change requires a radical change from the current practices and approach to energy and that climate change is in fact "a deeply economic and social problem".115 It must therefore be acknowledged by the government that pursuing economic growth and mitigating climate change are not separate endeavours and are in fact recognised as "interrel[ated]".116 As pointed out by Winkler et al, this same recognition is evident in international instruments such as the UNFCCC, in which sustainable development is a key objective together with lowering GHG emissions.117 It is unfortunate, however, that climate change is often overlooked in favour of economic development especially in areas with concerns about poverty and inequality.118

The matter relates to the granting of an environmental authorisation required for activities listed in terms of section 24(1) of NEMA. Thabametsi Power Company (Pty) Ltd, the fifth respondent, an independent power producer (IPP), sought to construct a coal-fired power station in the Limpopo Province.119 Its application for environmental authorisation was granted by the Chief Director early in 2015. Earthlife Africa Johannesburg (Earthlife), unsuccessfully appealed the Chief Director's decision to the Minister of Environmental Affairs (the Minister) hence the High Court appeal.120 The matter brought before the court concerned Earthlife's application to review the Minister's decision. The application for review was brought in terms of section 8 of the Promotion of Administrative Justice Act (PAJA)121 because Earthlife argued that the Department of Environmental Affairs (DEA) had failed to consider relevant information and that this was "unlawful, irrational and unreasonable".122

Since the regulations to the NEMA require that the construction of a coal-fired power station undergoes an environmental impact assessment,123 the dispute at hand concerned the content of this report. Section 24O of the NEMA outlines the criteria to be considered in the granting of an environmental authorisation. Specifically section 24O(b)(i) states that "all relevant factors" must be considered, which includes "pollution, environmental impacts or environmental degradation likely to be caused".124 The authorisation granted to Thabametsi did not specifically consider the climate change impacts of the coal-fired power station on the surrounding region and Earthlife therefore challenged the authorisation on this basis.125 Despite upholding the authorisation, the Minister had conceded that the climate change impacts of the project had not been sufficiently considered. She thus amended the authorisation granted by adding a condition to it.126 The condition required Thabametsi to undertake a climate change impact assessment before embarking on the project.127

In its appeal Earthlife argued that a climate change impact assessment is a relevant factor for the purposes of section 24O and ought to be fully undertaken and included in any environmental impact assessment (EIA) report before an application for environmental authorisation can be considered.128 Such a climate change impact assessment would include assessments of the potential contribution of a coal-fired power station to climate change over its lifetime, its resilience to the effects of climate change on its operation, its water supply and increases in temperature and how the "effects may be avoided, mitigated or remedied".129

Even though the Minister, in the appeal decision, required a climate change impact assessment to be conducted before the power station could begin construction, the condition did not allow for the authorisation to be withdrawn should such an assessment show that an authorisation should not have been granted.130 On this basis Earthlife considered the granting of the authorisation by the Chief Director in the first place, without the consideration of a climate change impact assessment, as "unlawful, irrational and unreasonable".131

It was therefore Earthlife's contention that a proper interpretation of section 24O of the NEMA together with its Regulations,132 compels the conduct of a climate change impact assessment before the granting of an environmental authorisation.133 This, read together with Regulation 31(2), which provides that the EIA report must contain all necessary information including the physical, biological and social impacts on the surrounding environment, among others,134 means that a climate change impact assessment is a relevant factor for section 24O(1)(b) and necessary information in terms of Regulation 31(2).135 If the relevant and necessary information is not contained in the assessment, an authorisation cannot be granted.136 Earthlife's position was also based on the interpretation of the country's broader environmental laws and policies such as section 24 of the Constitution and its membership in bodies such as the UNFCCC.137

The DEA pointed out, correctly, that there is no specific provision in South African law or policy requiring a climate change assessment for an

environmental authorisation and that no such obligation exists under international law either.138 While the DEA emphasised its commitment to addressing climate change, it highlighted South Africa's developmental needs, which at present outweigh the climate change concerns.139 It agreed with the premise that energy is a key contributor to the country's continued growth and development.140 The country is, however, constantly plagued by a lack of electricity specifically and the crippling effects of load shedding.141 As a result, using the country's ample coal resources is an effective way to address the pressing electricity needs.142 Unfortunately, the use of coal results in increased GHG emissions, which is at odds with the move to cleaner energy.143

The DEA's argument was that the above considerations show that the continued use of coal is necessary for the near future at least, to meet the country's energy needs.144 It therefore asked the court to take this into account when considering the DEA's position in granting the environmental authorisation to Thabametsi.145

In order for the court to decide if indeed the Chief Director's decision to grant the authorisation was irregular, the court needed to decide whether the assessment of possible climate change impacts were a necessary requirement for an environmental authorisation.146 In answer to this question, the court found that "on a plain reading of section 24O(1) of the NEMA…" a climate change impact assessment is "indeed relevant".147 The court found that the GHG emitted from a coal-fired power station constitutes pollution, and that this pollution has adverse effects on the air and the environment. This finding was something all parties agreed on.148

As stated above, the overarching environmental provision informing South African environmental laws and policy is found in section 24 of the

Constitution. It specifically protects the right to a healthy environment149 and expressly provides for the protection of the environment for the present as well as for the future.150 The court highlighted the connection between sustainable development and mitigating the effects of climate change. It also stated that the needs of the present must be considered in the light of ensuring a safe environment for the future.151 As discussed above, achieving this delicate balance is exactly the challenge presently faced by the country.152 However, even though the use of coal may seem to be the easiest path to take, continuing with its use may compromise the achievement of sustainable development.153

Among other provisions the court analysed section 24O(1)(b) of the NEMA, where the relevant factors required to be considered for an environmental authorisation include pollution and environmental degradation.154 The principles of environmental management in section 2 of the NEMA are an aid to the authorities considering environmental authorisation. These principles are binding on the authorities when taking decisions under the NEMA and specifically encourage sustainable development.155 The court also considered the position internationally in instruments such as the UNFCCC, which requires all member states to consider and counteract the effects of climate change in all matters related to the environment.156

Taking all of these factors and others into account, it is not surprising that the court concluded that climate change is a relevant factor in terms of section 24O(1) of the NEMA and is something that must be considered before an environmental authorisation can be granted.157 Consequently, the court found that the decision taken by the Chief Director was reviewable under the sections of the PAJA since the decision had been taken without his having all the relevant information before him.158 In considering the Minister's decision, it was pointed out that the Minister, in her decision on the appeal, also found that a climate change impact assessment was necessary and was lacking in the information before the Chief Director initially. It also correctly suggested that, in this light, the better decision would have been to ask that the Chief Director consider the granting of the

environmental authorisation anew instead of upholding the authorisation with a condition.159

The court's ruling has changed the way that EIAs will be performed going forward and has shown that a climate change impact assessment is a relevant factor to consider before allowing new coal-fired power stations to be built.160 This is in line with the context in which South Africa finds itself in terms of its vulnerability to climate change and its own growth challenges.161 In the absence of specific legislation in this area, this case holds particular significance to climate change jurisprudence162 and arguably signals the start of the radical change that is needed. This may also consequently change the planning of the future provision of energy and lead to cleaner ways to use coal.163 The decision may also indicate the court's view that, while South Africa's socio-economic priorities remain crucial to its continued development, securing sustainable development requires giving equal regard to climate change.164 In the course of the matter, a further GHG assessment and a climate resilience assessment was undertaken by the Fifth Respondent. Their results directly contradicted the earlier reports considered by the Chief Director before he granted the environmental authorisation and showed the potential for substantial damage to the surrounding environment.165 The court's "powerful statements associating climate change impact assessment with sustainable development"166 and its finding that a climate change assessment is a relevant factor in an EIA aptly shows the importance of the relationship between climate change and energy usage.167

The court's decision marks the start of continuing litigation ultimately highlighting the need for more focused and responsive regulation on the issue of climate change.168 The decision accords with South Africa's strong stance in climate change negotiations and shows that the absence of a specific statutory obligation does not exclude an existing legal duty to

protect against the impact of climate change.169 The case also highlights the crucial role of judicial review in the legal system. Since there is no specific law pertaining to climate change the provisions of PAJA were used. There is a strong case to be made, especially considering the importance of climate change in the survival of the earth, that specific climate change laws are necessary.170 While the court's adjudication of the matter before it granted adequate relief in this case, waiting for the law to offer relief on a case-by-case basis constitutes a piecemeal approach to an issue that calls for a solid regulatory foundation.171 As the custodian of public property, the government is obliged to advance the sustainability of the environment and in so doing improve the country's ability to withstand the effects of climate change.172 It can therefore be argued that the lack of comprehensive legislation specifically governing climate change constitutes a failure of the state to protect the resources entrusted to it and the rights afforded in section 24 of the Constitution.173 Furthermore Van der Bank and Karsten argue that one of the aims of so-called "climate litigation" is to hold the government accountable to their "policy commitments".174 The courts have indeed acknowledged that while judicial decisions do contribute to a change in the legal climate they are episodic and in certain cases comprehensive legislation is necessary.175

It is therefore clear that to achieve the sustainable development required for South Africa's growth and to address climate change, an effective mitigation plan is required. This can be successful only if South Africa formulates an effective legal framework that specifically regulates the country's responses and adaptation to climate change.176 While a comprehensive policy document exists together with the formulation of a Bill, and some regulation towards the mitigation of climate change in the form of the Carbon Tax Act has recently been enacted, the required urgency is still lacking. Instead of

aligning the developmental goals with climate change, thereby arguably achieving both important goals simultaneously, South Africa continues to fall back on its past practices. Thus, while the Thabametsi judgment has made a "meaningful contribution"177 to the country's consideration of climate change, the journey's end to effective climate change mitigation remains a distance away.

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List of Abbreviations