Earthlife Africa Johannesburg v Minister of Environmental Affairs and Others (65662/16) [2017] ZAGPPHC 58; [2017] 2 All SA 519 (GP) (8 March 2017)

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[2017] ZAGPPHC 58
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Earthlife Africa Johannesburg v Minister of Environmental Affairs and Others (65662/16) [2017] ZAGPPHC 58; [2017] 2 All SA 519 (GP) (8 March 2017)

IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
8/03/2017
Case number: 65662/16
REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
EARTHLIFE
AFRICA
JOHANNESBURG
Applicant
and
THE
MINISTER OF ENVIRONMENTAL
AFFAIRS
First
Respondent
CHIEF
DIRECTOR: INTEGRATED ENVIRONMENTAL
AUTHORISATIONS
DEPARTMENT
OF
ENVIRONMENTAL
AFFAIRS
Second
Respondent
THE
DIRECTOR: APPEALS AND LEGAL REVIEW
DEPARTMENT
OF ENVIRONMENTAL AFFAIRS
Third
Respondent
THABAMETSI
POWER PROJECT (PTY) LTD
Fourth
Respondent
THABAMETSI
POWER COMPANY (PTY) LTD
Fifth
Respondent
JUDGMENT
Murphy
J
1.
This application raises concerns about the environmental impacts of
the decision to build a 1200MW coal-fired power station near

Lephalale in the Limpopo Province.The power station is to be built by
the fifth respondent ("Thabametsi") and is intended
to be
in operation until at least 2061.
2.
A party seeking to construct a new coal-fired power station requires,
amongst other things, an environmental authorisation to
be granted by
the relevant decision­ makers in the Department of Environmental
Affairs ("DEA"). Section 24 of the
National Environmental
Management Act
[1]
("NEMA") provides that any activities which are listed or
specified by the Minister of Environmental Affairs must obtain
an
environmental authorisation before they may commence. The
construction of a coal­ fired power station is one such listed

activity and the third respondent, the Chief Director of the DEA
("the Chief Director"), is designated as the competent

authority to decide on environmental authorisations for these power
stations. On 25 February 2015, the Chief Director granted Thabametsi

an environmental authorisation for the proposed power station. The
applicant, Earthlife Africa ("Earthlife"), appealed
against
the grant of authorisation
[2]
to the first respondent, the Minister of Environmental Affairs ("the
Minister"), who, on 7 March 2016, upheld the decision.
Earthlife
now seeks to review both the decision to grant the environmental
authorisation and the appeal decision of the Minister.
3.
Earthlife is a non-profit organisation founded to mobilise civil
society around environmental issues and is an interested and
affected
party ("IAP") as contemplated in section 24(4)(v)(a) of
NEMA and is thus entitled to a reasonable opportunity
to participate
in public information and participation procedures for the
investigation, assessment and communication of the potential

consequences or impacts of activities on the environment. It also has
standing in terms of section 32(1) of NEMA to bring a review

application in its own interest as an IAP, in the public interest and
in the interest of protecting the environment.
An
overview of the issues
4.
Earthlife maintains that the Chief Director was obliged to consider
the climate change impacts of the proposed power station
before
granting authorisation and that he failed to do so. The government's
National Climate Change Response White Paper of 20012
("the
White Paper") defines climate change as an on-going 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 (global
warming) due, primarily, to the increased concentration
of greenhouse
gases ("GHGs") in the atmosphere that are emitted by human
activities. These gases intensify a natural
phenomenon called the
"greenhouse effect" by forming an insulating layer in the
atmosphere that reduces the amount of
the sun's heat that radiates
back into space and therefore has the effect of making the earth
warmer.
5.
Section 24(1) of NEMA requires that the environmental impacts of a
listed activity must be considered, investigated, assessed
and
reported on to the competent authority tasked with making a decision
on environmental authorisation. Therefore, once an application
for
environmental authorisation has been made, an environmental impact
assessment process must be undertaken. An environmental
impact
assessment is meant to provide competent authorities with all
relevant information on the environmental impacts of the proposed

activity.
[3]
Section 240(1) of NEMA obliges competent authorities to take account
of all relevant factors in deciding on an application for

environmental authorisation, including any pollution, environmental
impacts or environmental degradation likely to be caused if
the
application is approved or refused. Earthlife asserts that the
climate change impacts of a proposed coal-fired power station
are
relevant factors and contends that at the time the Chief Director
took his decision, the climate change impact of the power
station had
not been completely investigated or considered in any detail.
6.
A climate change impact assessment in relation to the construction of
a coal fire power station ordinarily would comprise an
assessment of
(i) the extent to which a proposed coal-fired power station will
contribute to climate change over its lifetime,by
quantifying its GHG
emissions during construction, operation and decommissioning; (ii)
the resilience of the coal-fired power station
to climate change,
taking into account how climate change will impact on its operation,
through factors such as rising temperatures,
diminishing water
supply, and extreme weather patterns; and (iii) how these impacts may
be avoided, mitigated, or remedied.
7.
In her appeal decision, dated 7 March 2016, the Minister recognised
that the climate change impacts of the proposed development
were not
"comprehensively assessed and/or considered" prior to the
issuance of the environmental authorisation by the
Chief Director.
She accordingly chose to amend the authorisation, (seemingly relying
on the power to vary a decision on appeal
in section 43(6) of NEMA),
by the insertion of an additional condition.
8.
The new condition in the environmental authorisation, namely clause
10.5, provides:
"The
holder of this authorisation must undertake a climate change impact
assessment prior to the commencement of the project,
which is to
commence no later than six months from the date of signature of the
Appeal Decision. The climate change impact assessment
must thereafter
be lodged with the Department for review and the recommendations
contained therein must be considered by the Department."
9.
Despite the Minister finding that a fuller assessment was required,
she upheld the environmental authorisation, subject to the
added
condition. Earthlife contends that in so doing the Minister acted
unlawfully and undermined the purpose of the climate change
impact
assessment and the environmental authorisation process, because in
the event of the envisaged climate change impact assessment

indicating that environmental authorisation ought not to have been
granted in the first place, the Chief Director and the Minister
would
have no power to withdraw the environmental authorisation on this
basis.
10.
Earthlife contends therefore that it was unlawful, irrational and
unreasonable for the Chief Director and the Minister to grant
the
environmental authorisation in the absence of a proper climate change
impact assessment and hence that the decision should
be set aside in
terms of section 8 of the Promotion of Administrative Justice Act
[4]
("PAJA"). It is not disputed that decisions granting
environmental authorisation constitute administrative action in
terms
of the PAJA.
[5]
11.
Earthlife relies on various grounds of review. First, it claims that
there was material non-compliance with the mandatory preconditions
of
section 240(1) of NEMA which requires the consideration of all
relevant factors in reaching a decision on environmental
authorisation,
including the climate change impact of the proposed
coal-fired station.
[6]
It maintains furthermore that the absence of a climate change impact
assessment rendered both the impugned decisions irrational
and
unreasonable
[7]
and finally that the Minister committed material errors of law in
reaching her decision.
[8]
Earthlife therefore prays for the matter to be remitted back to the
Chief Director in terms of section 8(1)(c)(i) of PAJA for
reconsideration and a fresh decision on environmental authorisation
after the final climate change impact assessment report has
been
completed. This, it asserted, is necessary to preserve the integrity
and lawfulness of the environmental authorisation process.
12.
Earthlife's case centres on the proposition that section 240(1) of
NEMA, properly interpreted, requires, as a mandatory pre-requisite,
a
climate change impact assessment to be conducted and considered
before the grant of an environmental authorisation. It infers
this
from the wording of section 240(1) of NEMA, read together with
various provisions of the Environmental Impact Assessment
Regulations,
[9]
("the Regulations") interpreted in light of South Africa's
domestic environmental policies, section 24 of the Constitution,
and
South Africa's obligations under international climate change
conventions. The application for review accordingly invites
determination of whether the DEA is obliged to fully assess the
climate change impacts of a proposed coal-fired power station before

environmental authorisation is granted in terms of NEMA; the argument
of Earthlife essentially being that a climate change impact

assessment must be conducted before environmental authorisation is
granted in order for the relevant decision-makers to determine

firstly whether the construction of a coal-fired power station should
be allowed at all, or, if authorised, the conditions and
safeguards
that should be imposed to limit and address its climate change
impacts.
13.
Section 240(1) imposes peremptory requirements.
[10]
Decision-makers must make their decisions in compliance with NEMA and
must consider all relevant factors. Section 240(1) reads:
"If
the Minister, the Minister of Minerals and Energy, an MEC or
identified competent authority considers an application for
an
environmental authorisation, the Minister, Minister of Minerals and
Energy, MEC or competent authority must -
(a)
comply with this Act;
(b)
take into account all relevant factors, which may include -
(i)
any pollution, environmental impacts or environmental degradation
likely to be caused if the application is approved or refused;
(ii)
measures that may be taken -
(aa)
to protect the environment from harm as a result of the activity
which is the subject of the application; and
(bb)
to prevent, control, abate or mitigate any pollution, substantially
detrimental environmental impacts or environmental degradation;
(iii)
the ability of the applicant to implement mitigation measures and to
comply with any conditions subject to which the application
may be
granted;
(iv)
where appropriate, any feasible and reasonable alternatives to the
activity which is the subject of the application and any
feasible and
reasonable modifications or changes to the activity that may minimise
harm to the environment;
(v)
any information and maps compiled in terms of section 24(3),
including any prescribed environmental management frame-works,
to the
extent that such information, maps and frame-works are relevant to
the application;
(vi)
information contained in the application form, reports, comments,
representations and other documents submitted in terms of
this Act to
the Minister, Minister of Minerals and Energy, MEC or competent
authority in connection with the application;
(vii)
any comments received from organs of state that have jurisdiction
over any aspect of the activity which is the subject of
the
application; and
(viii)
any guidelines, departmental policies and decision making instruments
that have been developed or any other information in
the possession
of the competent authority that are relevant to the application; and
(c)
take into account the comments of any organ of state charged with the
administration of any law which relates to the activity
in question."
14.
Section 240(1) of NEMA is to be read with the relevant provisions of
the Regulations, which prescribe what must be contained
in an
environmental impact assessment report. Regulation 31(2) provides
that the environmental impact assessment report must contain
all
information that is necessary for the competent authority to consider
the application and to reach a decision. The relevant
information
includes a description of the environment that may be affected by the
activity and the manner in which the physical,
biological, social,
economic and cultural aspects of the environment may be affected by
the proposed activity and a description
of identified potential
alternatives to the proposed activity with regard to the activity's
advantages and disadvantages.
[11]
Regulation 31(2)(k) requires the report also to include a description
of all environmental issues identified during the assessment
process
and an indication of the extent to which the issues could be
addressed by the adoption of mitigation measures. The report

furthermore must address each identified potentially significant
impact, including: (i) cumulative impacts; (ii) the nature of
the
impact; (iii) the extent and duration of the impact; (iv) the
probability of the impact occurring; (v) the degree to which
the
impact can be reversed; (vi) the degree to which the impact may cause
irreplaceable loss of resources; and (vii) the degree
to which the
impact can be mitigated.
[12]
Regulation 34(2)(b) obliges the competent authority to reject the
environmental impact assessment report if it does not substantially

comply with the requirements in regulation 31(2).
15.
These provisions signify that if a climate change impact assessment
is a relevant factor as envisaged in section 240(1)(b) of
NEMA then
it will follow that the information is necessary for the purposes of
regulation 31(2). Where relevant information is
missing the
environmental impact assessment report must be rejected under
regulation 34(2)(b) and environmental authorisation should
be
refused.
16.
The DEA (the first, second and third respondents) argued that
Earthlife's interpretation of the governing legislation is
unsustainable.
In their submission, there is no provision in our
domestic legislation, regulations or policies that expressly
stipulates that
a climate change assessment must be conducted before
the grant of an environmental authorisation. Likewise, no such
provision exists
as part of South Africa's obligations under
international law. South Africa's international obligations to reduce
GHG emissions
are broadly framed and do not prescribe particular
measures that the government must implement to reduce emissions. Such
measures,
in its opinion, fall within the government's discretion. In
the exercise of its discretion, the government is taking steps to
address
the issue of climate change and is in the process of
developing a complex set of mitigation measures.
17.
The DEA pointed out that it has committed to developing policies and
measures to be formulated at a national level for application
at a
sectoral and company level to be reviewed and adjusted in light of
the latest available science. The approach envisages that
the DEA
will intervene periodically to change the conditions imposed on GHG
emitters in environmental authorisations.
18.
The mitigation measures and sectoral plans are aimed at balancing
South Africa's development needs with its climate change imperatives.

The country is facing acute energy challenges that hamper economic
development and is currently heavily dependent on coal and reliant
on
a significant proportion of its liquid fuels being generated from
coal. In the short-term (up to 2025), South Africa faces significant

rigidity in its economy and any policy driven transition to a low
carbon and climate resilient society must take into account and

emphasise its over-riding priority to address poverty and inequality.
19.The
DEA, in view of these considerations, and while conceding that
coal-fired power stations are heavy GHG emitters, argued that

Earthlife's submissions lose sight of the broader developmental
context and rest on its general opposition to the use of
coal-generated
power. Its stance fails to recognise that South Africa
is facing an energy crisis and that the government is given scope
within
the domestic and international environmental law regime to
make adjustments to address that crisis. Some measure of
coal-generated
energy is necessary to meet South Africa's current and
medium-term energy needs. It is against this background, the DEA
contended,
that the Minister's decision must be assessed.
20.
The Minister in her answering affidavit averred that the Chief
Director had adequately considered the climate change effects,
but
had not conducted a comprehensive assessment, and she imposed
condition 10.5 requiring a fuller climate change impact assessment

for that reason. She reasoned that condition 10.5 would serve a dual
purpose. First, it would enable the gathering of emissions
data to be
used,
inter alia
, for monitoring and reporting purposes.
Secondly, it would enable the DEA to determine if it was necessary to
amend or supplement
the conditions of the environmental authorisation
to introduce additional mitigation measures, for instance where it
was found
that the emissions were significantly higher than provided
in its carbon budget, or posed an unexpected and unacceptable health

risk to surrounding communities. In the context of the prevailing
regulatory regime and socio-economic context, she submitted,
her
decision cannot be impugned as irrational, unreasonable, or unlawful.
21.
Thabametsi aligned with the DEA and advanced similar arguments,
though emphasising different aspects. It submitted that the
review
should not succeed for two principal reasons - which echo those
relied on by the DEA. Firstly, in its view, Earthlife's
challenge to
the outcome of the internal appeal is based on a fundamental
misreading of the Minister's decision. The decision did
not concede
that a relevant factor had not been considered. The Minister accepted
that climate change had been adequately considered
by the Chief
Director for the purposes of the environmental authorisation, but
called for a climate change impact assessment to
be undertaken for
future use. Her decision and approach were reasonable, rational and
lawful. Secondly, while climate change is
a relevant factor for the
DEA to consider, the regulatory regime does not require the conduct
of a climate change impact assessment
as a mandatory prerequisite to
the grant of an environmental authorisation. There is no statutory or
other basis for reading such
an obligation into the regime.
22.
Thabametsi went somewhat further and advanced other grounds for
dismissal of the application on the basis of an allegation that

Earthlife has brought the review in pursuit of its political or
strategic objectives. Besides seeking to introduce a requirement
of a
comprehensive climate change impact assessment as a jurisdictional
prerequisite to the grant of an environmental authorisation,

Earthlife, it alleged, seeks to prevent Thabametsi from ever being
permitted to construct and operate its proposed power station.
This,
Thabametsi maintains, is apparent from Earthlife's public statements
recording its absolute opposition to the establishment
of any new
coal-fired power stations in South Africa and its admitted use of
litigation as part of a broader strategy to halt the
construction of
any coal-fired power stations.
23.
Earthlife understandably considers coal-fired power stations an
inappropriate means to generate electricity since other forms
of
power generation are more sustainable and less damaging to the
environment. In its opinion, a climate change impact assessment
is
necessary not only to ascertain what conditions and safeguards should
be imposed to limit the power station's climate change
impact, but
also to determine whether a proposed coal-fired power station should
be permitted at all. It is motivated by a vision
that all coal-fired
power stations should not be permitted because they contribute to CO2
emissions globally. The review undeniably
(but not in my opinion
illegitimately) is directed at derailing the establishment of the
Thabametsi power station by depriving
Thabametsi of the environmental
authorisation it requires to be appointed as an independent power
producer.
24.
Thabametsi, however, developed two preliminary arguments, (going
beyond the issues of the rationality, reasonableness and legality
of
the two impugned decisions), which supposedly flow from the alleged
strategic positioning by Earthlife. It argued that the objectives

pursued by Earthlife cannot be competently achieved through these
review proceedings. Earthlife's attempt to introduce a mandatory

assessment, if it is to succeed, requires a challenge to the
legislative regime governing environmental impact assessments. And

any attempt to prohibit coal fired power stations entirely, obliged
Earthlife to attack the Minister of Energy's determination
that 2500
MW of baseload energy must be generated from coal.
[13]
The review must fail, moreover, in Thabametsi's view, because it is,
in truth, a challenge to a regulatory framework which Earthlife

failed to challenge when it was promulgated and cannot indirectly and
belatedly challenge in the present proceedings. For reasons
which
will appear later, I do not accept this argument. The review sought
by Earthlife is premised on a narrower basis aimed at
the decision of
the competent authorities and is within the scope of PAJA. Thabametsi
additionally accused Earthlife of blowing
hot and cold in relation to
the Minister's decision: it has engaged extensively in the climate
impact assessment process required
by the Minister's decision and in
so doing has used the decision, which it contends is invalid, to seek
to impose substantial additional
obligations on Thabametsi.
Consequently, it argued that the review is incompatible with the
election that Earthlife made in deciding
to engage with the climate
impact assessment process that flowed from the Minister's decision.
Government's
climate change and energy policies
25.
South Africa is significant contributor to global GHG emissions as a
result of the significance of mining and minerals processing
in the
economy and our coal­ intensive energy system. Coal is an
emissions-intensive energy carrier and coal-fired power stations
emit
significant volumes of GHGs, which cause climate change. Coal­
fired power stations are the single largest national source
of GHG
emissions in South Africa. South Africa is therefore particularly
vulnerable to the effects of climate change due to our
socio-economic
and environmental context. Climate variability, including the
increased frequency and intensity of extreme weather
events will be
consequential for society as a whole. South Africa is moreover a
water-stressed country facing future drying trends
and weather
variability with cycles of droughts and sudden excessive rains.
Coal-fired power stations thus not only contribute
to climate change
but are also at risk from the consequences of climate change. As
water scarcity increases due to climate change,
this will place
electricity generation at risk, as it is a highly water intensive
industry.
26.
Be that as it may, coal-fired power stations are an essential feature
of government medium-term electricity generation plans.
The clearest
expressions of government policy are contained in the White Paper,
the Integrated Resource Plan for Electricity 2010-2030
("the
IRP") and the Department of Energy's binding determination ('the
Determination") on the mix of electricity
generation
technologies, adopted in terms of the Electricity Regulation Act.
27.
The White Paper sets out South Africa's vision for an effective
climate change response and the long-term, just transition to
a
climate-resilient and low-carbon economy and society. It proposes
that climate change be addressed through interventions that
build and
sustain its social, economic and environmental resilience and making
a fair contribution to the global effort to stabilise
GHG
concentrations in the atmosphere. The DEA has confirmed, in its
answering affidavit, that it has taken steps to give effect
to the
policy objectives identified in the White Paper, including the
development and implementation of a National Climate Change
Response
Adaptation Strategy; the development and implementation of a GHG
emission reduction system; and the adoption of a national
GHG
mitigation framework. But the White Paper expressly recognises that
South Africa's reliance on coal for electricity generation
will
continue to be a significant contributor to GHG emissions. A shift to
low-carbon electricity generation options will only
be possible in
the medium term, and not immediately. Consequently, South Africa's
GHG emissions are expected to increase and peak
in the short term,
before plateauing and declining over time.
28.
The steps being taken by the DEA mentioned earlier include developing
a set of mitigation measures,
inter alia
identifying desired
sectoral mitigation contributions. This entails defining desired
emission reduction outcomes for each sector
and sub­ sector of
the economy, based on in-depth assessment of the mitigation
potential, best available mitigation options,
science, evidence and a
full assessment of the costs and benefits. Where appropriate, these
desired emission reduction outcomes
will flow down to the individual
company or entity level.
29.
The policy also aims at defining company-level carbon budgets for
significant GHG emitting sectors. This involves drawing up
carbon
budgets for significant GHG emitting sectors and sub-sectors. The
carbon budget for each sector or sub-sector will then
be translated
into company-level desired emission reduction outcomes. Mitigation
plans will be sought from companies and economic
sectors for whom
desired emission outcomes have been established.
30.
As stated earlier, these measures are still under development and
must be formulated at a national level and then applied at
a sectoral
and company level. In order to develop and implement these measures,
the DEA requires detailed, complete, accurate and
up-to-date
emissions data. Two essential elements for the definition of desired
emission reduction outcomes and the development
of carbon budgets are
(i) emission data and (ii) data to monitor the outcome of specific
mitigation actions. The data gathered
in the climate change impact
assessment for the Thabametsi power station will contribute toward a
pool of baseline data that can
be used for monitoring purposes. The
mitigation system is intended to be dynamic and flexible. The
prescribed measures will be
regularly reviewed and adjusted in light
of the latest available science, the success of this mix of
mitigation policies and measures,
new accessible and affordable
technology, increased capability and emerging mitigation
opportunities. This approach envisages that
the Department will
intervene periodically to change the conditions imposed on GHG
emitters. For example, the Department may amend
the conditions of an
emitter's environmental authorisation to impose a reduced carbon
budget or new mitigation requirements.
31.
South Africa's electricity generation plans for the period 2010 to
2030 are set out in the IRP which records government's policy
on the
future use of different technologies to meet South Africa's energy
requirements. The IRP was prepared by the Department
of Energy in
consultation with various government departments (including the DEA),
and was amended pursuant to a public participation
process. Concerns
about the threat of climate change and the need to reduce carbon
emissions were given attention. The IRP was
ultimately adopted by
Cabinet, and thus represents the policy of government as a whole.
32.
The IRP determines that additional energy-generating capacity is
required to meet South Africa's energy requirements for 2030
and that
such capacity must be provided by a mix of generation technologies.
When deciding on the required mix, the Department
of Energy sought to
achieve an appropriate balance between the expectations of different
stakeholders. It carefully considered
key constraints and risks,
including: reducing carbon emissions; new technology uncertainties
such as costs, operability and lead
time to build; water usage;
localisation and job creation; regional development and integration;
and security of supply. Ultimately,
the IRP determined that in order
to secure the continued and uninterrupted supply of energy, the
following mix of generation technologies
were required: a nuclear
fleet of 9,6 GW; 6,3 GW of coal; 17,8 GW of renewables; and 8,9 GW of
other generation sources. That entailed
bringing forward anticipated
coal generation projects, originally expected only after 2026, for
earlier implementation and envisaged
that coal-fired power plants
would be established by independent power producers in order to avoid
security supply concerns.
33.
Section 34 of the Electricity Regulation Act
[14]
("the Electricity Act") empowers the Minister of Energy, in
consultation with the National Energy Regulator,
inter
alia
to determine that new generation capacity is needed to ensure the
continued uninterrupted supply of electricity; determine the
types of
energy sources from which electricity must be generated, and the
percentages of electricity that must be generated from
such sources;
require that new generation capacity must be established through a
tendering procedure which is fair, equitable,
transparent,
competitive and cost-effective; and to provide for private sector
participation.
34.
On 19 December 2012, the Minister of Energy, in consultation with the
National Energy Regulator, in terms of section 34(1) of
the
Electricity Act, determined that 2500 megawatts of new electricity
generation capacity would be generated from coal, and that
such
coal-generated electricity would be produced by independent power
producers ("the Determination"). The Determination
gave
binding effect to aspects of the electricity generation policy
outlined in the IRP including those aspects of the IRP that
required
the construction by independent power producers of coal power
stations using fluidised bed combustion technology like
that proposed
by Thabametsi. The government has at a general and national level had
due regard to the climate change implications
of such an approach in
order to safeguard the security of South Africa's energy supply and
to strike a balance between environmental
protection and sustainable
development.
35.
South Africa's international obligations similarly anticipate and
permit the development of new coal-fired power stations in
the
immediate term. South Africa has signed and ratified the UN Framework
Convention on Climate Change, acceded to the Kyoto Protocol
and
signed the Paris Agreement (but not yet enacted it domestically). The
UN Framework Convention and the Kyoto Protocol oblige
developed
countries, identified in Annex I to the Convention, to adopt measures
to mitigate climate change and to limit GHGs to
set emissions
targets. South Africa is not an Annex I country, and is not bound to
any emissions targets under these treaties.
The Paris Agreement
requires State parties to commit to Nationally Determined
Contributions ("NOC"), which describe the
targets that they
seek to achieve and the climate mitigation measures that they will
pursue. South Africa's NOC expressly anticipates
the establishment of
further coal-fired power stations and an increased carbon emission
rate until 2020 and records that climate
change action takes place in
a context where poverty alleviation is prioritised, and South
Africa's energy challenges and reliance
on coal are acknowledged.
South Africa has adopted a system that is reliant on new
coal-generated power, but anticipates decreased
reliance on coal
across all emissions sources, over time.
The
decision of the Chief Director to grant environmental authorisation
36.
The Thabametsi Project is viewed by the Department of Energy as a
critical project to meet the country's electricity demand
in terms of
government policy under the IRP and Determination and has been
registered as a strategic infrastructure project due
to its economic
and social importance. Thabametsi submitted a bid to the Department
of Energy to be appointed as an independent
power producer (IPP)
under the Department of Energy's Coal Baseload IPP Programme to
construct the 1200MW coal-fired power station.
The Department of
Energy has now appointed Thabametsi as a preferred bidder meaning
that it is on the path to approval. However,
Thabametsi is still
required to secure outstanding regulatory approvals as well as
satisfying various commercial requirements before
it can reach
financial and commercial close.
37.
The construction of the Thabametsi power station will occur in two
phases of 600MW each. Tenders under the Coal Baseload IPP
Procurement
Programme are awarded following a competitive bidding process, as
detailed in the Request for Qualifications and Proposals
for New
Generation Capacity ("Request for Proposals"), which sets
out the procedures and requirements for this bidding
process. The
Legal Qualification Criteria, incorporated as volume 2 in the Request
for Proposals, states that in order for a bid
to be considered, a
project must have an environmental authorisation, issued under NEMA,
together with a number of other environmental
licences and approvals.
38.
Thabametsi's application for environmental authorisation was made and
considered under the Regulations,
[15]
which specify the procedure that must be followed in conducting an
environmental impact assessment. In accordance with the Regulations,

Thabametsi appointed an independent environmental assessment
practitioner, Savannah Environmental (Pty) Limited ("Savannah"),

to carry out the environmental impact assessment process. Savannah
was then required to conduct a scoping and environmental impact

reporting process.
[16]
The scoping process is designed to allow the competent authority to
give direction on the environmental impacts that must be investigated

and reported on, taking into account comments received from
interested and affected parties. The Chief Director approved the
scoping
report, without imposing any requirement to consider climate
change impacts. Savannah proceeded to conduct the environmental
impact
assessment. It then prepared draft and final environmental
impact assessment reports ("the EIR") which were submitted

to the Chief Director.
39.
On 25 February 2015, the Chief Director granted the environmental
authorisation for the Thabametsi power station, subject to
several
conditions. The Department of Environmental Affairs issued an amended
integrated environmental authorisation on 17 March
2015. The
authorisation authorises the applicant to undertake various listed
activities subject to the conditions stipulated. None
of the
conditions relates specifically or explicitly to the question of
climate change or GHG emissions. However, various listed
activities
are made conditional upon the applicant obtaining other environmental
licences under other environmental legislation.
Thus, for example,
the authorisation subjects the construction of facilities or
infrastructure for the storage of ore or coal to
the acquisition of
an atmospheric emissions licence ("AEL") in terms of the
National Environmental Management: Air Quality
Act
[17]
("NEMAQA").
Under Item 26 it is recorded that an AEL is required under NEMAQA for
the release of emissions to the atmosphere
and that such process will
also require an environment impact assessment.
40.
Annexure 1 to the authorisation is titled: "Reasons for
Decision". Under the heading "key factors considered
in
making the decision", it is recorded that the DEA in reaching
its decision took the following into consideration - a) the

information in the environmental impact report of May 2014; b) the
mitigation measures included in that report, and the environmental

management plan; c) the comments received from the Directorate:
Authorisations and Waste Disposal Management; d) comments from

interested and affected parties as included in the report; and e) the
objectives and requirements of relevant legislation, policies
and
guidelines, including section 2 of NEMA. The following conclusions
are then recorded:
"After
consideration of the information and factors listed above the
Department reached the following conclusions:
a)
The identification and assessment of impacts are detailed in the EIR
dated May 2014; and sufficient assessment of the key identified

issues and impacts have been completed.
b)
The procedure followed for impact assessment is adequate for the
decision­ making process.
c)
The proposed mitigation of impacts identified and assessed adequately
curtails the identified impacts.
d)
A sufficient public participation process was undertaken and the
applicant has satisfied the minimum requirements as prescribed
in the
EIA regulations, 2010, for public involvement."
41.
Earthlife first became aware of the proposed power station on
publication of the draft EIR in early 2014. It therefore missed
the
opportunity to make representations on the scoping report. It
presented comments on the draft EIR in April 2014 submitting
that it
be rejected or at least be sent back to Savannah for amendment. Its
criticism of the draft EIR was that it was superficial
with
insufficient detail. In addition, it took issue with the lack of
information regarding the water allocation for the project
and the
need for the project to be assessed together with the coal mine which
will be the main source of coal supply to the power
station. It noted
that a waste management licence ("WML"), water use licence
("WUL") and an atmospheric emissions
licence ("AEL")
are all required. It placed on record that it desired the opportunity
to participate in all of these
processes and to be kept informed of
their progress. It pointed out that the sourcing of water and water
treatment cannot be left
to the operational phase of the project as
there had to be a prior determination of availability. It raised
various concerns in
relation to the assessment of impacts on inter
alia fauna and flora, wetlands, surface water, groundwater, air
quality, noise,
visual impact, traffic and biodiversity. It did not
however raise the issue of climate change.
42.
As indicated in Annexure 1 to the authorisation, Savannah filed its
final EIR report in May 2014. It too failed to address the
climate
change impacts of the proposed coal-fired power station in any
detail. The only reference to climate change is contained
in an air
quality impact assessment forming part of the final EIR and attached
as Annexure AA14 to the answering affidavit. It
recognised that
indirect impacts associated with sulphur dioxide and nitrogen dioxide
emissions relate to acidification, and those
associated with carbon
monoxide and carbon dioxide relate to global warming. It asserted
that climate change impacts are expected
to be relatively small and
low. The sole observation on the matter in the final EIR stated:
"The
magnitude of indirect impacts associated with the operational
scenarios relates to the relative contribution to acidification
and
global warming. While quantification of the relative contribution of
the Thabametsi Power Station is difficult, the contribution
is
considered to be relatively small in the national and global context.
The significance of the indirect impacts is therefore
anticipated to
be low for all operational scenarios.
43.
The final EIR did not quantify the anticipated GHG emissions from the
power station, more specifically the likely CO2 and methane
(CH4)
emissions from the coal­ fired power station - the primary
contributors to climate change. Instead, the report focused
on
emissions of S02, N02, and particulates. Earthlife believes this
oversight was due to the report focusing on localised issues
of air
quality rather than considering broader climate change impacts.
44.
Nor did the EIR address the impact that climate change may have on
water scarcity in the region and how this will impact on
the power
station. The power station will require 1,500,000m3 of water each
year in a highly water stressed region and hence is
likely to
aggravate the impact of climate change in the region by contributing
to water scarcity, raising in turn questions about
the viability of
the power station over its lifetime. Climate change thus poses risks
to the Thabametsi coal-fired power station
over its lifetime.
45.
Subsequent to the Minister's appeal decision imposing condition 10.5
in the environmental authorisation, Savannah prepared a
climate
change impact assessment report ("the climate change report")
and made it accessible for public review on 27
January 2017. This
prompted Earthlife to file a supplementary affidavit dealing with
some aspects of this report. The respondents
collectively objected to
the admissibility and relevance of this evidence. I am satisfied that
the climate change report is admissible
and that the filing of the
supplementary affidavit should be permitted. Admittedly, the climate
change report was not before the
decision-makers when they made their
decisions. It cannot be said that they acted unreasonably by ignoring
a report that did not
exist. But the climate change report does not
introduce new facts that should have been dealt with in the founding
papers. It speaks
directly to the question in issue: were the impacts
of climate change properly considered before authorisation was
granted? The
climate change report contradicts certain of the
allegations made in the decisions under review and in the answering
affidavits,
and casts doubt upon the reasons and conclusions
contained in Annexure 1 to the authorisation. It is relevant to the
sufficiency
of the consideration given by the Chief Director to the
impact of climate change at the time he granted the environmental
authorisation.
46.
The climate change report addresses climate change in two parts.
Appendix D comprises a detailed assessment of the likely GHG

emissions from the Thabametsi power station over the period of its
construction, operation and decommissioning ("the GHG emissions

report"). Appendix F is a climate change resilience assessment
("the resilience report") dealing with how climate
change
will impact the power station over its lifetime.
47.
The GHG emissions report estimates that the power station will
generate over 8.2 million tonnes of carbon dioxide per year and
over
246 million tonnes of carbon dioxide over its lifetime. The report
characterises these emissions as very large by international

standards based on a GHG magnitude scale drawn from standards set by
various international lender organisations such as the International

Finance Corporation, the European Bank for Reconstruction and
Development. The expected emissions could constitute 1,9% to 3,9%
of
South Africa's total GHGs - the larger percentage hopefully
reflecting a higher ratio of a declining emissions rate after 2025

when other coal fired power stations are decommissioned. The GHG
emissions report compares the project favourably with the existing

fleet of power stations run by Eskom, South Africa's sole producer of
electricity. It states:
"The
Project has relatively high emissions intensity...compared to
coal-fired plants, and a similar emissions intensity to
that of
Eskom's current fleet... and coal fired plants
specifically...However, the emissions intensity of the plant
represents
an improvement on the three oldest Eskom coal-fired power
plants that are due to be decommissioned before 2025."
48.
These relatively high GHG emissions stem from the technological
limitations in the design of the power station and the fact
that it
will not be able to make use of carbon capture and storage, an
acknowledged effective emissions mitigation technique.
49.
The EIR made no attempt to consider how climate change may impact on
the power station itself over its lifetime and how this
power station
may aggravate the effects of climate change. The resilience report
confirms that climate change in fact poses several
"high risks"
that cannot be effectively mitigated, most significant being the
threat of increasing water scarcity in
the Lephalale district.
Increasing water scarcity in the region will affect the operation of
the plant and deprive local communities
of water. It expresses doubt
that the Mokolo Crocodile Water Augmentation Project ( "the
MCWAP" involving piping water
from the Mokolo dam and the
Crocodile River catchment area) will be able to provide sufficient
water for the power station as climate
change increases in pace. The
risks of water scarcity cannot be fully mitigated.
50.
The findings and conclusions of the GHG emissions report and the
resilience report are accordingly undeniably at variance with
the EIR
that served before the Chief Director in May 2014 and upon which he
relied to grant authorisation, which, unlike the detailed
analysis in
the GHG emissions report, contained no quantification of CO2
emissions. The EIR made only passing mention of climate
change
impacts, describing these as being of "low" and "relatively
small" significance, when it now seems these
impacts are
potentially substantial.
51.
In his reasons for his decision filed in the appeal to the Minister,
the Chief Director repeated the assertions on climate change

contained in the EIR that while quantification of the relative
contribution of the Thabametsi power station to climate change was

difficult, the contribution to GHG emissions was considered to be
relatively small in the national and global context and that
the
significance of the indirect impacts was anticipated to be low for
all operational scenarios. There is no evidence convincingly

supporting that conclusion, which subsequently has been demonstrated
to be false by the GHG emissions report. It is for that reason
that
Earthlife contends the decision of the Chief Director is reviewable
as irrational and unlawful in that relevant considerations
were
ignored and the uncritical repetition of the EIR's claims of low
impact is suggestive of a failure by the Chief Director to
apply his
own mind to the climate change impacts.
Earthlife's
appeal to the Minister
52.
Section 43(1) of NEMA provides that any person may appeal to the
Minister against a decision taken by any person acting under
a power
delegated by the Minister under NEMA or a specific environmental
management Act. In terms of section 43(6) of NEMA, after
considering
such an appeal the Minister may confirm, set aside or vary the
decision or may make any other appropriate decision.
53.
Earthlife lodged an appeal with the Minister in terms of section 43
of NEMA on 11 May 2015 in which it raised the question of
climate
change directly for the first time. The appeal requested the Minister
to set aside the decision to grant the environmental
authorisation on
various grounds. Most relevantly for present purposes, the fourth
ground of appeal alleged that the Chief Director
had failed to take
into account the state's international and national obligations to
mitigate and take positive steps against
climate change.
54.
In paragraphs 89-105 of the appeal, Earthlife emphasised that climate
change will continue to impact on water resources, air
quality, human
health, biodiversity and marine fisheries and that South Africa has
an international obligation to commit to the
reduction of GHG
emissions as part of a global solution to a global problem. The
government has confirmed its commitments in the
White Paper where it
has listed as one of its strategic priorities the need to prioritise
"the mainstreaming of climate change
considerations and
responses into all relevant sector, national, provincial and local
planning regimes". Earthlife thus concluded
that, as part of the
integrated environmental authorisation process envisaged by Chapter 5
of NEMA and the requirement in section
240(1)(b) to consider relevant
policy and information in deciding whether or not to grant an
authorisation, the GHG emissions and
climate change impacts of the
project should have been taken into account by the Chief Director
before granting the authorisation.
55.
According to Earthlife, in order to meet these legislative and policy
requirements, the environment impact assessment process
as a matter
of policy should include climate change considerations in full as
part of "climate change screening". Such
screening must
tackle both mitigation (potential contribution to further GHG
emissions) as well as adaptation measures. Every development
decision
must be based on its contribution to both mitigation and adaptation
aimed at maximising reduction in direct and indirect
GHG emissions,
maximising the potential for further mitigation and optimising
adaptation to impacts over the full life of the development.

Earthlife submitted to the Minister that such was not considered by
the Chief Director "either adequately or at all".
In
addition, water availability is "a severe climate change concern
for South Africa". It cautioned that the access to
water in the
Lephalale area is anticipated to be a problem in the future and
pointed out that the authorisation process had not
adequately
addressed the problem. Its concerns have subsequently been taken on
board and are now reflected in the discussion of
the MCWAP in the
resilience report of January 2017.
56.
Paragraph 105 of the appeal summarises Earthlife's ultimate concern
about the climate change issue in relation to the authorisation

process. It reads:
"The
failure to consider climate change implications shows a lack of
policy coherence with the national climate change response
policy and
a disregard for the provisions of NEMAQA and NEMA which require
consideration of international obligations and GHG emissions
as set
out above. Furthermore, this shows a failure to consider the
anticipated and fast-approaching impacts of climate change,
in this
particular instance, diminishing water resources, which will, no
doubt, have a significant impact on this project, as well
as other
projects and people living within the area and the surrounding
environment."
57.
The other grounds of Earthlife's appeal ranged across a variety of
issues, some touching indirectly on climate change. They
alleged
variously that the Chief Director and the DEA failed to apply the
principles of national environmental management; failed
give effect
to the general objectives of integrated environmental management in
relation to waste management; did not properly
consider
representations from IAPs; and did not consider alternatives, in
particular the "no-go option", being the abandonment
of the
project entirely and developing renewable energy sources in the
interests of effective mitigation of climate change.
58.
Earthlife's second ground of appeal was that the Chief Director
failed to take into account the air quality impacts of the project

and in so doing contravened NEMAQA. The object of NEMAQA is to
protect the environment by providing reasonable measures for the

protection and enhancement of the quality of air; the prevention of
air pollution and ecological degradation; securing ecologically

sustainable development while promoting justifiable economic and
social development; and generally to give effect to section 24(b)
of
the Constitution in order to enhance the quality of ambient air for
the sake of securing an environment that is not harmful
to the health
and well-being of people.
[18]
59.
Thus, although NEMAQA is primarily concerned with the quality of
ambient air, it is secondarily concerned with other kinds of

pollution and environmental degradation. Section 39(b) of NEMAQA
provides that when considering an application for an AEL, the

licensing authority must take into account inter alia the pollution
being or likely to be caused by the carrying out of the listed

activity and the effect or likely effect of that pollution on the
environment, including health, social conditions, economic
conditions,
cultural heritage and ambient air quality. Likewise, in
terms of section 39(c) of NEMAQA, the licensing authority must take
into
account the best practicable environmental options available to
prevent, control, abate or mitigate that pollution and to protect
the
environment from harm as a result of that pollution. Section 1 of
NEMAQA defines "pollution" as having the meaning
assigned
to it in section 1 of NEMA, which defines it to include any change in
the environment caused by substances emitted from
any activity where
that change has an adverse effect on human health or well-being or on
the composition, resilience and productivity
of natural or managed
ecosystems, or on materials useful to people, or will have such an
effect in the future. This all-embracing
definition of pollution thus
encompasses the emission of GHG as a form of pollution. Emission is
essentially defined to mean any
emission or entrainment process that
results in air pollution.
60.
In paragraph 93, dealing with the issue of climate change under its
fourth ground of appeal, Earthlife referred to section 43(1)
of
NEMAQA, to reinforce the point that national legislation recognises
the need to curb GHG emissions and address climate change
in that
NEMAQA requires that an AEL must specify GHG measurements and
reporting requirements. Likewise, the National Framework
for Air
Quality Management
[19]
("the 2012 National Framework") acknowledges that
"specialist air quality impact assessments must consider
greenhouse
gas emissions as well". Section 43(1) of NEMAQA
requires an AEL to specify inter alia: i) the maximum allowed amount,
volume,
emission rate or concentration of pollutants that may be
discharged in the atmosphere over the life of the listed
activity;
[20]
ii) point source (a single identifiable source and fixed location of
atmospheric emission) emission measurement and reporting
requirements;
[21]
iii) any other operating requirements relating to atmospheric
discharges, including non-point source or fugitive emissions;
[22]
and iv) greenhouse gas emission measurement and reporting
requirements.
[23]
61.
Earthlife disputed the claim in the EIR that air quality impacts had
been adequately considered in the environmental authorisation
process
and complained that it had not had proper notice of the process.
However, it emerged in argument before me that the AEL
process is
still to be finalised and Earthlife is participating in that process.
The implications of that has become a matter of
importance and
debate.
The
Minister's appeal decision
62.
On 7 March 2016, the Minister handed down her decision on the appeal.
The decision deals ad seriatim and thoroughly with all
the grounds of
appeal. In response to the appeal grounds that the DEA had
contravened the principles of NEMA and the existing environmental

policies the Minister made significant relevant observations and
findings. Thus she noted Earthlife's contention that a detailed

climate impact study needed to be conducted to assess the impacts of
climate change, in particular for water resources estimated
to be
available for the project, as well as the impacts of the project on
GHG emissions and adaptation to a changed climate, and
that the IAPs
should have been granted an opportunity to make submissions in
relation to such studies and that the DEA should have
considered
these studies and the comments received before making any decision in
relation to the environmental authorisation. She
noted also
Thabametsi's contention that the impacts of GHG emissions and climate
change were considered in the air quality assessment
and the risk
assessment study. She stated:
"In
evaluating this ground of appeal..l note furthermore that the
Atmospheric Impact Report, which will form part of the AEL

application process, will provide details of the facility's impact on
human health and the receiving environment. Since this application

was not submitted as an integrated application, information in this
regard will consequently be required during the AEL application

process."
63.
Earthlife's third ground of appeal alleged that the Chief Director
failed to take into account the cumulative impacts of the
project.
The impacts it addressed included biodiversity, habitat destruction
and the associated loss of species, and importantly
the cumulative
impact of the project on the water supply and hence the resilience
issue, in that the water supply from the MCWAP
might prove
insufficient. The Minister in her decision did not address this
concern with much specificity. She merely stated that
the EIR had
taken note of the significant cumulative impacts and concluded with
the following general observation:
"I
note furthermore that a project of this nature will have certain
impacts which will not be comprehensively mitigated or
prevented, but
that these concerns must be weighed against the interests of the
project, as well as the social and economic benefits
derived from the
project. Certain negative impacts are consequently unavoidable in a
development of this nature, but I am satisfied
that these impacts
were identified and adequately assessed, and that mitigation measures
were put in place, having considered all
relevant specialist
recommendations."
64.
The failure of the Minister to specifically address the water supply
issue when discussing the question of "cumulative
impacts"
is ameliorated to some extent by her ultimate decision to compel a
fuller climate change assessment, where the matter
could and
subsequently has been investigated.
65.
In dealing with the fourth ground of appeal, the Minister clearly
accepted that a climate change assessment was a relevant factor
in
deciding whether to grant the authorisation. She evidently accepted
Earthlife's contention that as part of the integrated environmental

process envisaged by chapter 5 of NEMA and the requirement of section
240(1)(b) of NEMA the Chief Director was required to take
into
account the GHG emissions and climate change impacts of the project.
She noted Earthlife's contention that "these factors
were not
considered, either adequately or at all". Her finding and ruling
on the issue reads as follows:
"In
evaluating this ground of appeal, I am aware that climate change
issues were addressed, to some extent, in the air quality
assessment
and impact study, and the Department considered these factors prior
to the issuance of the EA.
I
must emphasise that in order for the country to meet its long-term
electricity demand, a mix of power generation technologies
must be
pursued, which includes coal-fired power stations. must stress
furthermore that the Department's commitment to identifying
cleaner
power technologies in the medium and longer term.
However,
I concur with the appellant in that climate change impacts of the
proposed development were not comprehensively assessed
and/or
considered prior to the issuance of the EA
In
view of the above, the EA is accordingly amended by the insertion of
condition
10.5
of the EA".
66.
The new condition obliged Thabametsi to undertake a climate change
impact assessment prior to the commencement of the project
to be
lodged with the DEA for review and consideration of the
recommendations. This assessment, as discussed, is underway. A draft

climate change report has been published and is the subject of an
on-going process in which Earthlife is an active participant.
67.
Despite agreeing with Earthlife that the climate change impact had
not been properly assessed, the Minister went on to uphold
the
environmental authorisation, such according to Earthlife amounting to
a reviewable irregularity.
Events
subsequent to the appeal to the Minister
67.
Subsequent to the Minister's decision various extensions of time were
granted for submitting the climate change report. There
was also some
uncertainty about the nature and scope of the Minister's decision,
leading to correspondence and further engagement
between the parties.
68.
On 23 March 2016, the third respondent, the Director: Appeals and
Legal Review of the DEA ("the Appeals Director"),
wrote to
Earthlife and stated that the instruction by the Minister that
Thabametsi undertake a climate change assessment did not
constitute
an acknowledgement by the Minister that the decision to issue the
environmental authorisation was unlawful and further
that the
directive made it clear that Thabametsi could not commence with the
project until such time as the assessment had been
concluded and
submitted to the DEA for consideration.
69.
At a meeting with the Appeals Director on 13 April 2016, the legal
representatives of Earthlife were advised that the DEA may
decide to
amend or revoke the environmental authorisation, depending on the
findings of the assessment. There was debate in subsequent

correspondence about whether the revocation of the authorisation at a
later date would be legally feasible.
70.
The draft scope of work report for the climate change impact
assessment was made available for comment by IAPs on 22 April 2016.

On 25 May 2016 Earthlife submitted comments and detailed
recommendations on what the climate change impact assessment should
consider.
These recommendations included submissions that: i) the
boundary definition take cognisance of activities giving rise to
indirect
emissions, namely mining and the transportation of coal; ii)
the baseline study must not be limited only to the project's GHG
emissions
but must consider the baseline environment; iii) the
assessment must include consideration of the project's cumulative and
life
cycle emissions and the external costs associated with climate
change impacts - being changes in net agricultural productivity,

human health, property damages from increased flood risk, and the
value of ecosystem services; iv) the basis of the assessment
of
impacts on the built environment be broadened to adopt the protocols
of the Sabin Centre for Climate Change Law for consideration
of
relevant factors using multiple scenarios including the most severe
climate change projections; and v) the use of recognised
global
standards on how to measure, manage and report on GHG emissions.
71.
After further dispute about Earthlife's opportunity to influence the
report, the final scope of work report was made available
to the IAPs
for comment on 9 October 2016, with comments due on 10 November 2016.
It appears that the DEA took on board some of
Earthlife's
recommendations and proposed that: i) the full life cycle of the
project be considered; ii) the carbon footprint of
the project be
calculated for construction and decommissioning; and iii) the
resilience to the impacts of climate change be addressed.
Earthlife
would prefer other of its recommendations to be taken into account,
such as cumulative emissions, the social cost of
the emissions
associated with the project and the specific impact on the Waterberg
region in Limpopo. It also emphasised that all
these tasks should
have been completed before the environmental authorisation was
granted by the Chief Director.
72.
Earthlife thus has participated in and sought to influence the
outcome of the climate change impact assessment currently being

conducted in terms of the condition imposed by the Minister on
appeal. Its participation has put Thabametsi to further expense
of
approximately R1 million to date to accommodate the additional
concerns that it has raised in its response to the draft scope
of
works report.
73.
Thabametsi, as mentioned earlier, contends that Earthlife's
participation in the process conducted pursuant to the dismissal
of
the appeal is fundamentally at odds with its decision to bring the
review. The former is premised on the finding that the environmental

authorisation is valid, while the latter seeks to set the
authorisation aside. Thabametsi argues that Earthlife should not be
permitted to blow hot and cold by participating in both of these
mutually exclusive processes. A party cannot approbate and reprobate

by asserting that an adjudicator's decision is valid, entitling it to
participate in the scoping process and at the same time seek
to
challenge the validity of the decision. By taking a benefit under an
adjudicator's decision, the party will generally be taken
to have
elected a particular course and will be precluded from challenging
the adjudicator's decision.
[24]
74.
Earthlife in its replying affidavit rejected this contention,
claiming that it has made it clear throughout that its participation

in the climate change impact assessment process does not constitute a
waiver of its rights to bring the review. In paragraph 5
of its
comments on the draft scope of work report its legal representatives
stated:
"Our
client's rights to take the Minister's appeal decision on review
remain fully reserved. The following submissions are
made without
prejudice to those rights. Nonetheless, our client recognises the
need for the CCIA to be conducted properly, irrespective
of the
outcome of any potential litigation."
I
see no basis upon which Earthlife should be denied its reservation.
The election rule is not an absolute bar. There has been no
prejudice
to the other parties through its participation. While Thabametsi has
incurred additional expense by reason of the scope
of works report,
the ultimate reason for that is because the DEA accepted the
objective merit of the proposals. Earthlife added
in its replying
affidavit that no matter what the outcome of the litigation, the
climate change impact assessment will need to
be completed and it
must be done properly and will need to be considered in taking a
fresh decision. That proposition is true and
will have a bearing upon
the remedy for any proven irregularity.
75.
As discussed earlier, Savannah in fulfilment of condition 10.5 of the
authorisation introduced by the Minister on appeal has
now finalised
the climate change report and made it accessible for public review on
27 January 2017. The report and its annexures
run to more than 400
pages. The report states that it "is made available for public
review for a commenting period of 30 days,
beginning 27 January 2017,
and ending 27 February 2017".
The
review of the decision of the Chief Director
76.
Although the appeal to the Minister is an appeal in the wide sense,
that is, a rehearing of, and fresh determination of the
merits of the
matter,
[25]
it is still necessary to review the decision of the Chief Director.
Irregularities committed by the Chief Director are relevant
to the
extent that they have not been overtaken by or cured in the appeal
proceedings.
77.
The position taken by the Minister in relation to the decision of the
Chief Director is somewhat ambiguous. Her decision to
vary the
conditions of the authorisation suggests that she regarded the
decision as irregular. However, in the answering affidavit
the
Minister averred that she considered the decision of the Chief
Director to be valid and rejected the fourth ground of appeal

accordingly. As will appear more clearly later, the alleged failure
of the Chief Director to properly exercise his discretion,
if proven,
could only have been cured on appeal had the Minister substituted her
own decision on the authorisation after receiving
and taking into
consideration the relevant information purportedly ignored.
[26]
She did not do that. Nor did she set aside the Chief Director's
decision and remit it. She upheld it and varied the conditions
of the
authorisation. It is still necessary therefore to decide whether the
administrative action of the Chief Director was tainted
by
irregularity.
78.
The answer depends partly on whether climate change impacts had to be
considered in granting Thabametsi environmental authorisation.
A
plain reading of section 240(1) of NEMA confirms that climate change
impacts are indeed relevant factors that must be considered.
The
injunction to consider any pollution, environmental impacts or
environmental degradation logically expects consideration of
climate
change. All the parties accepted in argument that the emission of
GHGs from a coal-fired power station is pollution that
brings about a
change in the environment with adverse effects and will have such an
effect in the future. All the relevant legislation
and policy
instruments enjoin the authorities to consider how to prevent,
mitigate or remedy the environmental impacts of a project
and this
naturally, in my judgement, entails an assessment of the project's
climate change impact and measures to avoid, reduce
or remedy them.
79.
Section 240(1)(b) of NEMA expressly requires the competent authority
considering an application for an environmental authorisation
to take
into account all relevant factors including: i) any pollution,
environmental impacts or environmental degradation likely
to be
caused; ii) measures that may be taken to protect the environment
from harm as a result of the activity and to prevent, control,
abate
or mitigate any pollution, substantially detrimental environmental
impacts or environmental degradation; iii) the ability
of the
applicant to implement mitigation measures and to comply with any
conditions subject to which the application may be granted;
iv) any
feasible and reasonable alternatives to the activity and any feasible
and reasonable modifications or changes to the activity
that may
minimise harm to the environment; and v) any guidelines, departmental
policies and decision making instruments that have
been developed or
any other information in the possession of the competent authority
that are relevant to the application. These
requirements, as
mentioned earlier, are peremptory. The Regulations also require that
the environmental impact assessment report
to contain all information
that is necessary for the competent authority to consider the
application and to reach a decision including
an assessment of each
identified potentially significant impact.
80.
NEMA, like all legislation, must be interpreted purposively and in a
manner that is consistent with the Constitution, paying
due regard to
the text and context of the legislation.
[27]
Section 2 of NEMA sets out binding directive principles that must
inform all decisions taken under the Act, including decisions
on
environmental authorisations. The directive principles serve as
guidelines by reference to which any organ of state must exercise
any
function when taking any decision in terms of NEMA or any statutory
provision concerning the protection of the environment.
They guide
the interpretation, administration and implementation of NEMA, and
any other law concerned with the protection or management
of the
environment. Competent authorities must take into account the
directive principles when considering applications for environmental

authorisation.
[28]
The directive principles promote sustainable development and the
mitigation principle that environmental harms must be avoided,

minimised and remedied. The environmental impact assessment process
is a key means of promoting sustainable development, by ensuring
that
the need for development is sufficiently balanced with full
consideration of the environmental impacts of a project with
environmental impacts. The directive principles caution
decision-makers to adopt a risk-averse and careful approach
especially
in the face of incomplete information.
81.
As a matter of general principle, the courts when interpreting
legislation are duty bound by section 39(2) of the Constitution
to
promote the purport, spirit and objects of the Bill of Rights in the
process of interpreting the provision in question.
[29]
The
approach mandated by section 39(2) is activated when the provision
being interpreted implicates or affects rights in the Bill
of Rights,
including the fundamental justiciable environmental right in section
24 of the Constitution. Section 24 reads:
"Everyone
has the right -
(a)
to an environment that is not harmful to their health or well-being;
and
(b)
to have the environment protected, for the benefit of present and
future generations, through reasonable legislative and other
measures
that -
(i)
prevent pollution and ecological degradation;
(ii)
promote conservation; and
(iii)
secure ecologically sustainable development and use of natural
resources while promoting justifiable economic and social
development."
82.
Section 24 recognises the interrelationship between the environment
and development. Environmental considerations are balanced
with
socio-economic considerations through the ideal of sustainable
development. This is apparent from section 24(b)(iii) which
provides
that the environment will be protected by securing ecologically
sustainable development and use of natural resources while
promoting
justifiable economic and social development.
[30]
Climate change poses a substantial risk to sustainable development in
South Africa. The effects of climate change, in the form
of rising
temperatures, greater water scarcity, and the increasing frequency of
natural disasters pose substantial risks. Sustainable
development is
at the same time integrally linked with the principle of
intergenerational justice requiring the state to take reasonable

measures protect the environment "for the benefit of present and
future generations" and hence adequate consideration
of climate
change. Short-term needs must be evaluated and weighed against
long-term consequences.
83.
NEMA must also be interpreted consistently with international law.
Section 233 of the Constitution provides that when interpreting
any
legislation, every court must prefer any reasonable interpretation of
the legislation that is consistent with international
law over any
alternative interpretation that is inconsistent with international
law. Therefore, the various international agreements
on climate
change are relevant to the proper interpretation of section 240(1)(b)
of NEMA. Article 3(3) of the UN Framework Convention
enacts a
precautionary principle requiring all states parties to take
precautionary measures to anticipate, prevent or minimise
causes of
climate change. Article 4(1)(f) of the UN Framework Convention
imposes an obligation on all states parties to take climate
change
considerations into account in their relevant environmental policies
and actions, and to employ appropriate methods to minimise
adverse
effects on public health and on the environment.
84.
As explained earlier, the DEA argued that there is no provision in
our domestic legislation, regulations or policies that expressly

stipulates that a climate change impact assessment must be conducted
before the grant of an environmental authorisation and no
such
express provision exists as part of South Africa's obligations under
international law to reduce GHG emissions, which are
broadly framed
and do not prescribe particular measures. Thabametsi similarly
disputed whether section 240 of NEMA and regulation
31 of the
Regulations will better advance policy if interpreted to require such
an assessment.
85.
They emphasised that the absence of a legislated framework and
prescribed limits for GHG emissions rates means there is no standard

to which the DEA could hold Thabametsi for the grant of an
environmental authorisation. Thabametsi in particular argued that it

is anathema to the rule of law to hold a party to requirements or
constraints that have not been so enacted. The rule of law, enshrined

in section 1 of the Constitution, requires that rules must be enacted
and publicised in a clear and accessible manner, to enable
people to
regularise their affairs with reference to them. Substantive
requirements of the kind pressed for by Earthlife should
not be read
in to the legislative regime, particularly so where the DEA has
deliberately refrained from adopting regulations that
require a GHG
emission assessment and pollution prevention plan.
86.
Thabametsi argued further that if Earthlife considers section 24 of
the Constitution to require a detailed climate change impact

assessment to be conducted for the environmental authorisation of
coal-fired power stations, then it must challenge NEMA and/or
the EIA
regulations as unconstitutional for the failure to adopt such a
requirement. It cannot disregard the absence of the requirement
from
the relevant legislation, and seek to invoke the constitutional right
directly to read it in. Doing so violates the principle
of
subsidiarity.
87.
These arguments, to my mind, are something of a mischaracterisation
of what Earthlife seeks to achieve with this review. Admittedly

though, Earthlife in its heads of argument and founding papers did
take the position that the decisions were unlawful because the

absence of a climate change impact assessment constituted material
non-compliance with the mandatory requirements of section 240(1)
of
NEMA read with the 2010 EIA Regulations. On this basis, the impugned
decisions would be reviewable for want of jurisdiction
in terms of
the constitutional principle of legality, section 6(2)(b) of PAJA
(which permits review for non-compliance with a mandatory
procedure
or condition), and perhaps in terms of sections 6(2)(f)(i) and
6(2)(i) of PAJA on the ground that the decision contravened
a law or
was not authorised by the empowering provision or was otherwise
unconstitutional or unlawful. In argument, however, Mr
Budlender, who
appeared for Earthlife, retreated from this position and confined his
criticism of the Chief Director's decision
to the assertion that in
granting the environmental authorisation without having sight of a
climate change impact assessment report
he overlooked relevant
considerations. The decision accordingly falls to be reviewed and set
aside in terms of section 6(2)(e)(iii)
of PAJA.
88.
The absence of express provision in the statute requiring a climate
change impact assessment does not entail that there is no
legal duty
to consider climate change as a relevant consideration and does not
answer the interpretative question of whether such
a duty exists in
administrative law. Allowing for the respondents' argument that no
empowering provision in NEMA or the Regulations
explicitly prescribes
a mandatory procedure or condition to conduct a formal climate change
assessment, the climate change impacts
are undoubtedly a relevant
consideration as contemplated by section 240 of NEMA for the reasons
already discussed. A formal expert
report on climate change impacts
will be the best evidentiary means of establishing that this relevant
factor in its multifaceted
dimensions was indeed considered, while
the absence of one will be symptomatic of the fact that it was not.
89.
The respondents' complaint that without explicit guidance in the law
on climate change impact assessments, Thabametsi could
not be
required to conduct a climate change impact assessment, as there is
no clarity on what is required, is unconvincing. As
Earthlife
correctly pointed out, an environmental impact assessment process is
inherently open-ended and context specific. The
scoping process that
precedes an environmental impact assessment provides opportunity for
delineating the exercise and guidance
on the nature of the climate
change impacts that must be assessed and considered.
90.
The respondents further argued that the power station project is
consistent with South Africa's NOC under the Paris Agreement,
which
envisages that South Africa's emissions will peak between 2020 and
2025. Again I agree with Earthlife that this contention
misses the
point. The argument is not whether new coal-fired power stations are
permitted under the Paris Agreement and the NOC.
The narrow question
is whether a climate change impact assessment is required before
authorising new coal-fired power stations.
A climate change impact
assessment is necessary and relevant to ensuring that the proposed
coal-fired power station fits South
Africa's peak, plateau and
decline trajectory as outlined in the NOC and its commitment to build
cleaner and more efficient than
existing power stations.
91
In conclusion, therefore, the legislative and policy scheme and
framework overwhelming support the conclusion that an assessment
of
climate change impacts and mitigating measures will be relevant
factors in the environmental authorisation process, and that

consideration of such will best be accomplished by means of a
professionally researched climate change impact report. For all these

reasons, I find that the text, purpose, ethos and intra- and
extra-statutory context of section 240(1) of NEMA support the
conclusion
that climate change impacts of coal-fired power stations
are relevant factors that must be considered before granting
environmental
authorisation.
92.
I turn now to consider whether the Chief Director did in fact
consider or ignore the relevant climate change impacts.
93.
In its founding affidavit, Earthlife proceeded from the supposition
that the Minister in the appeal had found that the Chief
Director had
failed to consider the relevant factors of climate change impacts as
evidenced by her decision to impose the new condition
in the
authorisation. As it saw the situation, there was no information
before the Chief Director dealing with the direct GHG emissions
of
the power station, the cumulative emissions from all the activities
associated with the power station, the problem of water
scarcity or
any analysis on how climate change will impact on the efficiency and
continued operation of the power station over
its expected lifetime.
94.
There is no denying, when regard is had to the scope of work report
and the climate change report issued after the Minister's
appeal
decision that when the Chief Director made his decision he was
possessed of scant climate change information consisting
of the
single paragraph in the EIR, which in comparison to that in the scope
of work report and the climate change report was wholly
insufficient.
As explained, the EIR did not deal with the project's full life-cycle
emissions, the carbon footprint of the project
calculated for
construction and decommissioning, the activities associated with the
project - mining and coal transportation, and
the project's
resilience. The Minister and the DEA fully appreciated this, as is
reflected in the Minister's decision and the constructive
approach
followed subsequently by the DEA in relation to the scope of the
works report. Additionally, the air quality assessments
do not
meaningfully attempt to quantify the GHG emissions from the power
stations, though it must be kept in mind that the AEL
process under
NEMAQA is still underway.
95.
The DEA and Thabametsi sought to rely on the IRP and the
Determination to support their submission that the relevant climate

change considerations had been considered by the Chief Director.
There is no evidence to support the assertion that the IRP and
the
Determination gave adequate consideration to climate change. But in
any event, as Mr Budlender correctly submitted on behalf
of
Earthlife, an abstract, macro-level assessment of the climate change
impact of additional coal-fired power could not cast any
light on the
specific climate change impacts and mitigation strategies of specific
coal-fired power stations located at specific
sites. These relevant
considerations are context specific and have to be distinctively
considered.
96.
The policy instruments naturally will inform a competent authority
assessing the environmental impact of a proposed coal-fired
power
station. But the respondents' assertion that the instruments
constitute binding administrative decisions not to be circumvented
to
frustrate the establishment of authorised coal-fired power stations
is unsustainable, as is the notion that their mere existence

precludes the need for a climate change impact assessment in the
environmental authorisation process. Policy instruments developed
by
the Department of Energy cannot alter the requirements of
environmental legislation for relevant climate change factors to be

considered.
97.
The contention that the climate change impacts of additional
coal-fired power stations were considered in making the IRP and
the
Determination, precluding any further need for this assessment of
climate change impacts in the environmental impact assessment

process, is also not legally sustainable by virtue of the decision of
the Constitutional Court in
Fuel
Retailers Association of Southern Africa v Director-General:
Environmental Management, Department Of Agriculture, Conservation
And
Environment, Mpumalanga Province
.
[31]
That case concerned an environmental authorisation granted for the
construction of a petrol service station. In granting the
authorisation,
the competent authority made a similar argument to the
one advanced here, suggesting that it was unnecessary to consider the
socio­
economic impacts of the project, as these impacts had been
fully considered by the local authority in granting zoning approval
in terms of an Ordinance. The Ordinance required an assessment of the
need and desirability of the proposed project. The Constitutional

Court held that NEMA required more than a mere assessment of need and
desirability, with the consequence that the competent authority
had
misunderstood the nature of the NEMA requirements. It stated:
"The
environmental authorities assumed that the duty to consider need and
desirability in the context of the Ordinance imposes
the same
obligation as the duty to consider the social, economic and
environmental impact of a proposed development as required
by the
provisions of NEMA. They were wrong in that assumption. They
misconstrued the nature of their obligations under NEMA and
as a
consequence failed to apply their minds to the socio­ economic
impact of the proposed filling station, a matter which
they were
required to consider. This fact alone is sufficient to warrant the
setting aside of the decision."
[32]
98.
In the final analysis, the respondents' reliance on the IRP and the
Determination to excuse the lack of consideration of the
specific
climate change impacts in relation to the Thabametsi power station
basically misconstrues the nature of their duties under
section
240(1) of NEMA.
99.
The DEA argued that Earthlife's complaint is not that the climate
change impacts of the project were not considered but rather
that
insufficient weight was placed on these impacts. This, it said, does
not constitute a ground of review. The sufficiency or
the relative
weight to be accorded to a relevant consideration is properly a
matter for the decision-maker. It relied in this regard
upon
MEC
for Environmental Affairs and Development Planning v Clairison's
CC
[33]
where the Supreme Court of Appeal stated:
"It
has always been the law, and we see no reason to think that PAJA has
altered the position that the weight or lack of it
to be attached to
the various considerations that go to making up a decision is that of
the decision-maker. As it was stated by
Baxter:
'The
court will merely require the decision-maker to take the relevant
considerations into account; it will not prescribe the weight
that
must be accorded to each consideration, for to do so could constitute
a usurpation of the decision-maker's discretion.'
...
The law remains, as we see it, that when a functionary is entrusted
with a discretion, the weight to be attached to particular
factors,
or how far a particular factor affects the eventual determination of
the issue, is a matter for the functionary to decide,
and as he acts
in good faith (and reasonably and rationally) a court of law cannot
interfere".
100.
The respondents submitted that the Chief Director considered and
weighed the relevant factors and made a decision in good faith
and
accordingly there is no basis for the court to interfere with those
decisions. I do not agree. The issue we have to do with
in this case
is not whether the weighing of the factors was reasonable.
Earthlife's case is that the Chief Director was unable
to perform the
weighing exercise because they did not have the relevant information
to balance the climate change factors against
the other relevant
factors. As Mr Budlender put it, it is simply impossible to strike an
appropriate equilibrium where the details
of one of the key factors
to be balanced are not available to the decision-maker.
101.
On this basis, there was indeed non-compliance with the provisions of
section 240(1) of NEMA, with the result that the impugned
decisions
stand to be reviewed on the grounds that the Chief Director
overlooked relevant considerations. His decision accordingly
would
normally fall to be reviewed in terms of section 6(2)(e)(iii) of
PAJA. There is also merit in the submission that the Chief
Director's
decision was not rationally connected to the information before him.
In upholding the environmental authorisation, the
Chief Director
relied exclusively on the statement in the EIR that the climate
change impacts of the project were relatively small
and low. These
assertions were not supported by any evidence in the EIR. Without a
full assessment of the climate change impact
of the project, there
was no rational basis for the Chief Director to endorse these
baseless assertions. This, as Earthlife correctly
asserted, is an
indication that the Chief Director failed to apply his mind. The
decision is thus reviewable under section 6(2)(f}(ii)
of PAJA as
well.
The
review of the decision of the Minister
102.
Earthlife submitted that it is plain from the Minister's appeal
decision that she accepted that a climate change impact assessment

was relevant to the environmental authorisation and that it should
have been completed and considered before taking a final decision
on
whether to grant the authorisation and this had not happened.
103.
Earthlife, the DEA argued, proffers an incorrect reading of the
Minister's decision. On a proper interpretation, it said, the

Minister did not find that the climate change impact of the project
had not been adequately assessed. The Minister merely stated
that she
concurred with Earthlife "in that the climate change impacts of
the proposed development were not comprehensively
assessed and/or
considered prior to the issuance of the EA". Earthlife, the DEA
argued, has erroneously equated the term "comprehensively"

with "adequately" or "properly", thereby
distorting the meaning of the Minister's statement. The true import

of the Minister's decision is that the climate change impact of the
project was adequately assessed in the EIR, had been considered,
"to
some extent", in the air quality assessment and the water impact
study, and that the Chief Director considered these
factors prior to
the issuance of the authorisation.
104.
The Minister, the DEA argued, was moreover fully aware of the IRP and
the Determination which were discussed in the EIR and
raised by
Thabametsi in the internal appeal. As a consequence, the Minister
decided to uphold the environmental authorisation.
However, she
recognised that the climate change impacts of the project had been
adequately, but not comprehensively, assessed.
As such, she ordered
that a climate change impact assessment of the Thabametsi power
station be carried out. As mentioned, the
Minister saw a climate
change impact assessment as being intended to collect data for use in
the formulation of policy and mitigation
measures, to assess and
monitor the climate change impact of the Thabametsi power station and
to determine whether and when it
is necessary to amend or supplement
the conditions in its environmental authorisation.
105.
This understanding of the Minister's reasons is contradicted by the
appeal decision itself. Nowhere in the decision does the
Minister
state or imply that the climate change impact had been adequately
addressed. If the climate change impact had been adequately
addressed
then there was no logical reason for ordering a full climate change
impact assessment before construction of the power
station. A careful
reading of condition 10.5 shows that the Minister has placed the
project on hold until the climate change assessment
is completed. It
is doubtful that the climate change impact assessment was intended
exclusively as a future emissions' monitoring
exercise when condition
10.5 requires that it must be completed before any construction of
the power station can commence.
106.
The interpretation of the DEA is also belied by the fact that the DEA
now purports to recognise that the outcome of the climate
change
assessment might necessitate an amendment or even ultimately a
withdrawal of the environmental authorisation granted. In
its
founding affidavit Earthlife averred that the Chief Director and the
Minister are functus officio and have no express powers
under NEMA or
the Regulations to withdraw the authorisation if they later change
their mind, in light of the final climate change
impact report. While
the Chief Director does have the power to amend the conditions
attached to the authorisation if that is considered
necessary,
[34]
Earthlife pointed out that a power of amendment is not a power of
withdrawal. The DEA in response argued that the environmental

authorisation may be amended and subsequently withdrawn if the
climate change impact assessment warrants this outcome. In so
arguing,
the DEA in effect conceded that the purpose of condition
10.5 was to consider climate impacts for the purpose of the
authorisation.
107.
For that reason, I am persuaded that the Minister did find that the
Chief Director had not sufficiently considered relevant

considerations and sought to remedy the irregularity or defect. The
Minister appreciated that climate change impacts were relevant
and
had not been sufficiently assessed, necessitating an investigation of
these impacts. She correctly found that a climate change
impact
assessment needed to be conducted. But she perhaps erred in upholding
the environmental authorisation. Instead of sustaining
the fourth
ground of appeal and remitting the matter back to the Chief Director,
as she might prudently have done, she upheld the
authorisation and
ordered to be done that which should have been done before the
authorisation was granted. The appeal under section
43 of NEMA is a
wide appeal involving a determination de novo where the decision in
question is subjected to reconsideration, if
necessary on new or
additional facts, with the body exercising the appeal power free to
substitute its own decision for the decision
under appeal.
[35]
The Minister therefore could have (and perhaps should have) adjourned
the appeal and similarly directed Thabametsi to undertake
a climate
change impact assessment for consideration in the appeal process and
thereafter to have substituted the Chief Director's
decision with her
own. This the Minister did not do.
108.
The DEA's answering affidavit introduced an explanation for the
Minister's decision that was not initially presented by the
Minister
in her decision or in the correspondence between Earthlife's legal
representatives and the DEA seeking clarification of
the appeal
decision. At paragraphs 76 to 80 of the founding affidavit, Earthlife
alleged that if the final climate change impact
report warrants the
withdrawal of the environmental authorisation, then the Minister's
hands will be tied, as she has no automatic
powers of withdrawal. In
response, at paragraph 86 of the DEA's answering affidavit, the
respondents admitted that even if the
final climate change impact
assessment merits it, the withdrawal of the environmental
authorisation would not be permitted, but
a similar result might be
achieved using the powers of amendment under Regulation 43 of the
Regulations, coupled with the non­
compliance process under
sections 31L and 31N of NEMA.
109.
This begs the question of what the Minister can do legally if the
climate change impact assessment ultimately concludes that
the
project should not go ahead on account of the climate change risks.
If the Minister has the power to withdraw or revoke the
authorisation
on receiving an unfavourable climate change impact report then her
appeal decision could conceivably be reasonable,
rational and lawful.
But if she lacks that power, then Earthlife and other IAPs have been
denied full opportunity to influence
the outcome and a decision that
ought rightly not have been made in the first place will have to
stand.
110.
It is common cause that NEMA contains no express provision permitting
revocation of an authorisation by a competent authority
on the
grounds that it was granted without consideration of relevant
factors. In terms of regulation 43 of the Regulations, the
Chief
Director may amend an environmental authorisation, after providing
IAPs an opportunity to make representations and allowing
a right of
appeal. After an amendment has been effected a compliance officer may
issue a notice under section 31L of NEMA where
there is
non-compliance. A failure to comply with a compliance notice will
permit the Minister to revoke the environmental authorisation
under
section 31N of NEMA. Earthlife submitted that the power of amendment
cannot be used for the ulterior purpose, no matter how
well intended,
of engineering the ultimate revocation of Thabametsi's environmental
authorisation for the initial failure to consider
climate change
impacts, and any attempt to do so would be reviewable. The only
remedy, it submitted, is for the authorisation to
be set aside by the
court and the process to begin afresh.
111.
Mr Marcus SC, on behalf of the Minister, submitted that the
protective nature of NEMA and the duty of the Minister to act in
the
environmental interest might permit a finding that the Minister has
an implied power under NEMA to revoke the authorisation.
Mr Budlender
countered that such would be inconsistent with the functus officio
principle which dictates that a person who is vested
with
adjudicative or decision-making powers may, as a general rule,
exercise those powers only once in relation to the same matter.
The
result is that once such a decision has been given it is (subject to
any right of appeal) final and conclusive. Such a decision
cannot be
revoked or varied by the decision-maker.
[36]
112.
The doctrine of functus officio is primarily intended to foster
certainty, fairness and finality in the administrative process.

However, in
Retail
Motor Industry v Minister of Water
[37]
Plasket AJA qualified the application of the principle by stating
that the principle is not absolute in that certainty and fairness
at
times have to be balanced against the equally important and practical
consideration that requires the reassessment of decisions
in order to
achieve efficient and effective public administration in the public
interest.
113.
Professor De Ville in his seminal work
Judicial
Review of Administrative Action in South Africa
[38]
discusses the approach to this question in German administrative law.
There the revocation of a beneficial administrative decision
in the
absence of explicit legislative authority is permissible where,
because of a subsequent change in circumstances, the organ
of state
would have been entitled not to have made the disposition and a
failure to revoke the action would jeopardise the public
interest, or
secondly in order to prevent or eliminate serious harm to the public
good. The principle is a salutary one. However,
there is no such
power provided in PAJA and I doubt that our common law has been
developed to include such in our body of administrative
law. The
predominant view in our law remains that the functus officio
principle will apply to final decisions where rights or benefits
have
been granted and when it would be unfair to deprive a person of an
entitlement that has already vested.
114.
That being the case, once the Minister made the decision to uphold
the environmental authorisation, despite the absence of
a climate
change impact assessment, her decision was final and vested
significant rights in Thabametsi. Although there are various
powers
in NEMA to amend and suspend the authorisation, if the climate change
report demonstrates that the power station will cause
irremediable
harm to the extent that the authorisation ought not to have been
given, none of these provisions can be lawfully relied
upon to revoke
the authorisation.
116.
Accepting that the Minister and other officials have no power to
withdraw the environmental authorisation if the climate change
impact
assessment warrants that outcome, the Minister's belief that other
remedial powers might achieve a similar result was mistaken
and to
the extent that she took her decision on this mistaken belief then
her decision was based on a material error of law. Section
6(2)(d) of
PAJA permits judicial review where the action was materially
influenced by an error of law affecting the ultimate outcome.

Material errors of law are also grounds for review under the
principle of legality. In the premises, the Minister's appeal
decision
is reviewable on this ground. Earthlife submitted that the
decision was also irrational and unreasonable for similar reasons.
There
is merit in that proposition too.
Remedy
117.
The court in proceedings for judicial review in terms of section 8 of
PAJA may grant any order that is just and equitable including
an
order setting aside the administrative action and remitting it for
reconsideration. In the notice of motion Earthlife seeks
orders
setting aside both the authorisation and the appeal decision in their
entirety, remitting the application for environmental
authorisation
back to the Chief Director for reconsideration and directing him to
consider a climate change impact assessment report,
a paleontological
impact assessment report, comments on these and any additional
information that he may require in order to reach
a decision. Such an
order would basically require the environmental authorisation process
to commence anew, and would be predicated
upon the proposition that
for obviously sound reasons the climate change impact assessment
should precede the decision to authorise
the project.
118.
Mr Budlender referred to
Communities
for a Better Environment v City of Richmond
,
[39]
a decision of the Court of Appeal of the State of California, to
underscore the point that in environmental cases the time to consider

the climate change impact is before, not after, granting approval. In
that case the City of Richmond approved Chevron's application
to
construct an energy and hydrogen renewal project subject to a
requirement that Chevron hire an independent expert to identify

emissions and possible mitigation measures within a year. The Court
of Appeal endorsed the view that the City had improperly deferred
the
formulation of greenhouse gas mitigation measures by allowing Chevron
to prepare a mitigation plan up to a year after the project's

approval for the obvious reason that a study conducted after approval
of a project will inevitably have a diminished influence
on
decision-making. Mitigation measures ought to be identified and
formulated during the environmental impact report process and
before
final approval was sought. The Court of Appeal held:
"The
solution was not to defer the specification and adoption of
mitigation measures until a year after Project approval; but,
rather,
to defer approval of the Project until proposed mitigation measures
were fully developed, clearly defined, and made available
to the
public and interested agencies for review and comment."
[40]
119.
The judgment is obviously on point by virtue of its facts being
analogous to the facts in this case. I accept fully that the
decision
to grant the authorisation without proper prior consideration of the
climate change impacts is prejudicial in that permission
has been
granted to build a coal-fired power station which will emit
substantial GHGs in an ecologically vulnerable area for 40
years
without properly researching the climate change impacts for the area
and the country as a whole before granting the authorisation.
And at
first glance that may justify the environmental authorisation being
reviewed and set aside, and the matter being remitted
to the Chief
Director for a fresh decision upon final completion of the climate
change impact assessment. However, such a remedy
in the circumstances
of this case might be disproportionate.
120.
Courts are obliged to fashion just and equitable remedies aimed at
the proven irregularities. Ordinarily, a remedy will be
just and
equitable if it aims to rectify the administrative action to the
extent of its inconsistency with the law. In accordance
with the
principles of severance and proportionality a court, where
appropriate, should not declare the whole of the administrative

action in issue invalid, but only the objectionable part. Where it is
possible to separate the good from the bad in administrative
action,
the good should be given effect.
[41]
121.
Although the decision of the Chief Director was irregular, the
essential and most consequential defect was the Minister's treatment

of Earthlife's fourth ground of appeal during the appeal process. As
explained earlier, had the Minister upheld the fourth ground
of
appeal, as she should have, she would have had two options. Either
she could have referred the matter back to the Chief Director,
to
whom she had delegated the function in the first place, or more
appropriately, she could have adjourned the de nova appeal,
directed
Thabametsi to obtain a climate change impact report, and on the basis
of the new evidence reconsidered the application
for environmental
authorisation afresh - something she would have been entitled to do
in terms of section 43 of NEMA. Consequently,
the more proportional
remedy is not to set aside the authorisation, but rather to set aside
the Minister's ruling on the fourth
ground of appeal and to remit the
matter of climate change impacts to her for reconsideration on the
basis of the new evidence
in the climate change report. The appeal
process must be reconstituted, not the initial authorisation process.
Although undoubtedly
a less intrusive remedy, section 43(7) of NEMA
operates to suspend the environmental authorisation pending the
finalisation of
the appeal.
122.
None of the parties pleaded for such a remedy, nor was it, beyond an
oblique reference to the possibility of curing defects
by way of a
wide appeal, canvassed in argument. The discretion bestowed upon
courts by section 8 of PAJA to do what is just and
equitable, and
proportional, nonetheless permits me to grant such relief. I am
minded to this result also by the fact that the
initial climate
change report has been completed and made available for public
comment. The reconstituted appeal process can proceed
with requisite
speed to the advantage of all parties and will be restricted to
consideration of whether environmental authorisation
should be
granted in light of the potential climate change impacts.
123.
The chosen remedy gives some recognition to the arguments advanced by
Mr Chaskalson SC on behalf of Thabametsi in relation
to Earthlife's
participation in the process pursuant to the appeal. Although he
submitted that Earthlife's decision to participate
in the climate
change impact assessment precluded the present review proceedings,
such as to justify their dismissal, he accepted
that the underlying
facts equally support restraint in the grant of remedy. Earthlife's
participation in the process subsequent
to the appeal warrants
confining its continued participation to the narrow issue in
contention, namely the climate change impacts,
and not opening up the
authorisation process ab initio to reconsideration before the Chief
Director and another fresh appeal before
the Minister.
124.
Much time was expended in argument on the implications of NEMAQA
requiring consideration of climate change impacts in the AEL
process.
The argument was advanced by Mr Marcus SC and Mr Chaskalson SC that
there was no need to remedy any failure to consider
climate change
impacts in the authorisation process under NEMA because they will be
fully considered in the AEL process. While
it is correct that GHG
emissions will be dealt with in the AEL process, there is some doubt
about the scope and extent of such
an investigation. The power to
grant or refuse an AEL does not vest in the DEA at national level.
The licensing authority will
be the air quality officer of the
Waterberg District Municipality. While the NEMAQA process will
involve an investigation of GHG
emissions in determining whether to
grant an AEL, that does not alter the peremptory statutory duty of
the Chief Director and the
Minister to thoroughly investigate climate
change impacts in terms of section 240 of NEMA with regard to
national and international
consequences.
125.
Earthlife has had success and I see no reason why it should not be
awarded its costs. The complexity and national importance
of the
matter justified the employment of two counsel.
Orders
126.
The following orders are made:
126.1 The ruling of
the first respondent, forming part of her decision of 7 March 2016 in
terms of
section 43
of the
National Environmental Management Act 107
of 1998
, and dismissing the applicant's fourth ground of appeal set
out in paragraphs 89 to 105 of its appeal dated 11 May 2015, is
reviewed
and set aside.
126.2 The
applicant's fourth ground of appeal is remitted back to the first
respondent for reconsideration in terms of
section 43
of the
National
Environmental Management Act 107 of 1998
.
126.3 The first
respondent is directed to consider:
126.3.1
a climate change impact assessment report;
126.3.2
a paleontological impact assessment report;
126.3.3
comment on these reports from interested and affected parties;
126.3.4
any additional information that the first respondent may require in
order to reach a decision on the applicant's fourth
ground of appeal.
126.4 The costs of this application
are to be paid, jointly and severally, by the respondents, such costs
to include the costs of
employing two counsel.
________________
JR
MURPHY
JUDGE
OFTHE HIGH COURT
Date
Heard: 2 and 3 March 2017
Date
of Judgement: 8 March 2017
Counsel
for Applicant: Adv S Budlender
Adv
P Seseane
Adv
C McConnachie
Instructed
by: Centre for Environmental Rights
Counsel
for the First to Third Respondents: Adv G Marcus SC
Adv
M Maenetje
Adv
E Webber
Instructed
by: State Attorney, Pretoria
Counsel
for the Fifth Respondent: Adv M Chaskalson SC
Adv
I Goodman
Instructed
by: Baker & McKenzie
[1]
Act
107 of 1998.
[2]
In
terms of section 43 of NEMA
[3]
J
Glazewski (ed)
Environmental
Law in South Africa
(2013) para 10.1.1.
[4]
Act
3 of 2000.
[5]
Fuel
Retailers Association of Southern Africa v Director-General:
Environmental Management, Department of Agriculture, Conservation

and Environment, Mpumalanga Province, and Others
2007 SA 4
(CC) at para 38
[6]
Section
6(2)(b) and section 6(2)(e)(iii) of PAJA.
[7]
Section
6(2)(h) and section 6(2)(f)(ii) of PAJA.
[8]
Section
6(2)(d) of PAJA.
[9]
Environmental
Impact Assessment Regulations GNR543, GG 33306, 18 June 2010.
[10]
Maccsand
(Pty) Ltd v City of Cape Town and Others
2012 (4) SA 181
(CC) at para 12.
[11]
Regulation
31(2)(d) and (g).
[12]
Regulation
31(2)(1)
[13]
Made
on 19 December 2012 in terms of section 34(1) of the Electricity
Regulation Act 4 of 2006.
[14]
Act
4 of 2006
[15]
In
2014 the Regulations were substituted by the 2014 EIA Regulations in
GG 38282. In terms of the transitional provisions in Chapter
8 the
201 Regulations continue to apply to all pending applications and
appeals. As a result, the Regulations of 2010 continue
to apply to
Thabametsi.
[16]
Regulation
20
[17]
Act
39 of 2004
[18]
Section
2 of NEMAQA.
[19]
GN
919 GG 37078 of 29 November 2013
[20]
Section
43(1)(g) of NEMAQA
[21]
Section
43(1)(i) of NEMAQA
[22]
Section
43(1)(h) of NEMAQA
[23]
Section
43(1)(1) of NEMAQA
[24]
PT
Building Services Ltd v ROK Build Limited
[2008] EWHC 3434
(TCC) para 26;
Chamber
of Mines of South Africa v National Union of Mineworkers and Another
1987 (1) SA 668
(A) at 690D-G; and
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
[2008] ZACC 16
;
2009 (1) SA 390
(CC);
2009 (2) BCLR 111
(CC) para 54.
[25]
Tikly
and others v Johannes NO and others
1963 (2) SA 588
(T) at 590G-591A
[26]
T
antoush
v Refugee Appeal Board and Others
[2007] ZAGPHC 191
;
2008 (1) SA 232
(T) at paras 80-81
[27]
Cool
Ideas 1186 CC v Hubbard and Another
2014
(4) SA 474
(CC) at para 28.
[28]
Sections
23 and 24 of NEMA
[29]
See
Makate
v Vodacom (Pty) Ltd
2016 (4) SA 121
(CC) at paras 87-89
[30]
Fuel
Retailers Association of Southern Africa v Director-General:
Environmental Management, Department of Agriculture, Conservation

and Environment, Mpumalanga Province, and Others
2007 (6) SA 4
(CC).
[31]
2007
(6) SA 4 (CC).
[32]
para
86.
[33]
2013
(6) SA 235
(SCA) para 20 and para 22
[34]
Regulation
43 of the Regulations.
[35]
Kham
and Others v Electoral Commission and Another
2016 (2) SA 338
(CC) at para 41
[36]
DM
Pretorius:
The
origins of the functus officio doctrine with specific reference to
its application in administrative law
(2005) 122 SAU 832 at 832
[37]
2014
(3) SA 251
(SCA) at para 24
[38]
At
pg. 78
[39]
184
Cal.App.4th 70
(2010).
[40]
At
497.
[41]
Johannesburg
City Council v Chesterfield House (Pty) Ltd
1952 (3) SA 809
(A) at 822D