1. IMPLICATIONS OF THE HIGH COURT JUDGMENT IN THE MATTER BETWEEN EARTHLIFE AFRICA JOHANNESBURG V MINISTER OF ENVIRONMENTAL AFFAIRS AND OTHERS IN RESPECT OF THE PROPOSED THABAMETSI COAL-FIRED POWER STATION

2. PRESENTATION OUTLINE Summary of the Thabametsi case.
Implications of judgment on future projects with significant climate change implications. 

3. SUMMARY OF THE CASE
This case sought to review and set aside the decision by the Department to grant approval for the construction of a 1200MW coal-fired power station and the Minister’s decision to dismiss an appeal by Earthlife.
Earthlife maintained that the Department was obliged to consider the climate change impacts of the proposed power station before granting an (environmental authorisation) EA and that it failed to do so.
In the 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 issuing of the EA and amended the EA by inserting an additional condition for the applicant to undertake a climate change impact assessment prior to construction.

4. SUMMARY OF THE CASE
The climate change assessment is currently underway and the draft report was made available at the time of the Court proceedings. The final report will be submitted for consideration in June 2017.
The Court held that a plain reading of section 24O(1) of NEMA confirms that climate change impacts are indeed relevant factors that must be considered prior to the issuing of an EA and that the injunction to consider any pollution, environmental impacts or environmental degradation logically expects consideration of climate change impacts.
The court also held that 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.  

5. SUMMARY OF THE CASE
The Court held, however, that the Minister should have instead adjourned the appeal and directed Thabametsi to undertake a climate change impact assessment for consideration in the appeal process and thereafter to have substituted the Department’s decision with her own.
Earthlife sought the setting aside of both the EA and the appeal decision in its entirety, and requested that the EA and appeal processes commence anew.
The Court held that the more proportional remedy is not to set aside the EA, but rather to set aside the Minister’s ruling only in respect of the ground of appeal which dealt with climate change and to remit the matter of climate change impacts for reconsideration on the basis of the new evidence in the climate change report.
The reconstituted appeal process, the court held, can therefore proceed with requisite speed to the advantage of all parties.

6. THE DEPARTMENT’S ARGUMENT
Climate change was adequately assessed during the EIA process, but was not comprehensively assessed.
Climate change assessment was not necessarily a prerequisite for EA purposes, but would be important for continued monitoring of the project and for data collection.
In the absence of emission thresholds, it would be premature to include a requirement in the EIA process making it mandatory for companies to consider climate change impacts.
It was also considered inappropriate to assess climate change implications on a project-specific level. These considerations were comprehensively assessed during the development of the Integrated Resource Plan for Electricity
The climate change impact assessment would allow the Department to gather detailed information on current and anticipated future greenhouse gas emission rates, which was necessary to meet its current obligations under international law.
A climate change impact assessment would also enable the Department to monitor and assess the climate change impacts of the Thabametsi power station and to determine whether it is necessary to amend or supplement the conditions in its environmental authorisation.

7. SUBSEQUENT STEPS TAKEN AND IMPLICATIONS OF JUDGMENT ON FUTURE PROJECTS WITH SIGNIFICANT CLIMATE CHANGE IMPLICATIONS
The Department has recently published National Greenhouse Gas Emission Reporting Regulations to introduce a single national reporting system for transparent reporting of greenhouse gas emissions(GHG’s).  Companies that conduct certain activities must register and report GHG Emissions.  The Declaration of Greenhouse Gasses as priority pollutants and the National Pollution Prevention Plans Regulations will also soon be published for implementation.
All projects that may have significant climate change impacts will have to be subjected to a climate change impact assessment in future.
A task team has been established to develop a climate change protocol that will be used as yard stick to measure the adequacy of all climate change impact reports during the EA process.
The protocol will be consulted on and adopted by all 11 eleven competent authorities