Maricella Ragudos

30 May 2022

ENVIR497C

Earthlife Africa Johannesburg v. Minister of Environmental Affairs and Others

In 2017, a nonprofit named Earthlife Africa Johannesburg and the Southern African Faith

Communities’ Environmental Institute brought a case to South Africa’s High Court seeking

judicial review of a decision by the Department of Environmental Affairs (DEA) and

authorization from the Minister of Environmental Affairs to construct a privately-held coal

power plant. In spite of South Africa’s energy crisis, the Court remitted the authorization by the

Minister of Energy in a landmark decision in climate regulation, citing climate change concerns,

the Constitution, and South Africa’s commitments under the Paris Agreement. Through a more

in-depth look at this case, there are important lessons to be drawn about environmental law in

South Africa and on an international scale. Specific to South Africa, the case confirms that there

is “legal duty to consider climate change as a relevant consideration” even though this isn’t

stated explicitly in the Constitution or the National Environmental Management Act (NEMA)

(Earthlife Africa Johannesburg v. Minister of Energy, 2017, para. 88). Internationally, this case

illustrates the relevance and the importance of the international community and the role of

international treaties and agreements like the Paris Agreement. In this paper, I will offer

background on the applicants, South Africa’s energy crisis, their role in the Paris Agreement, and

climate change in Africa. Then, I will analyze the principles to be drawn from this case for future

environmental regulation and litigation.

The first applicant in this case is EarthLife Africa Johannesburg, a nonprofit founded in

Johannesburg in 1988 that, according to their website, “seeks a better life for all people without
exploiting other people or degrading their environment” (Earthlife Africa, 2022). Even a cursory

glance through their website shows that a large part of their work is in renewable energy research

and lobbying. The second, and less oft mentioned, applicant on the case is the Southern African

Faith Communities’ Environmental Institute, a nonprofit that implores people of religious faiths

and religious organizations to increase their understanding and take action on climate change in

South Africa (SAFCEI About Us, n.d.). These are two organizations that take an environmental

justice approach to climate change— while they acknowledge the existence value of the natural

environment, the language on their websites explains a commitment to sustainability in order to

ensure a stable environment for all people now and in future generations— an important

distinction for a nation that is not even thirty years removed from brutal apartheid.

It makes sense, then, that these organizations would oppose the construction of a new

coal-fired power plant. South Africa is a notable contributor to greenhouse gas emissions

globally— their emissions are the largest of any nation in Africa— and coal power plants

comprise most of those emissions (UN Environmental Programme, n.d.). The new plant,

Thabametsi, would have been “one of the most emission-intensive plants in the world— 60%

higher than Medupi,” which is currently the largest dry-cooled coal-fired power plant in the

world, and the project itself was already at risk even before any climate litigation due to water

shortages (Toyana, 2020). Air pollution is also a major concern for environmental justice, as the

Thabametsi would have been in the same province as the other two coal power stations, Medupi

and Matimba, which are also large air polluters and approximately ten kilometers apart from

each other (Greyling, 2020).

However, South Africa is also in the middle of a decades-long electricity shortage. While

coal causes most of their greenhouse gas emissions, it’s also the foundation of their energy grid,
composing thirty percent of their energy consumption1(South Africa, 2017). Economically, South

Africa is also the fifth-largest exporter of coal in the world, and about thirty percent of the coal it

produces is exported (South Africa, 2017). While, ultimately, the project didn’t come to frthe

nation desperately needs more energy sourcese nation. Even under the coal-dependent system,

there’s still an energy shortage; in April of 2022, heavy rains dampened the coal beyond usage,

causing widespread power outages (Acharya, 2022). While there’s desperation for new energy

sources and power plants, the current system is simply unsustainable, especially under the

Nationally Determined Contribution (NDC) the Paris Agreement that is legally binding for South

Africa, and unconstitutional according to the Constitution of the Republic of South Africa

(Earthlife Africa v. Minister of Energy, 2017).

The litigation of the case begins with the DEA authorizing the construction of a privately

owned coal-fired power plant to be called Thabametsi and located in the Northwest province of

Limpopo (Toyana, 2017). Earthlife, represented by the Centre for Environmental Rights,

appealed this decision, and the Minister of Environmental Affairs upheld the DEA’s decision

despite her acknowledgment that the Environmental Impact Report (EIR) didn’t adequately

address climate change impacts (Earthlife Africa v. Minister of Energy, 2017). Earthlife then

appealed to the High Court in Pretoria for judicial review of the authorization and of the

Minister’s decision to uphold it (Earthlife Africa v. Minister of Energy, 2017). Earthlife sought

this review on the grounds that climate change impacts weren’t adequately addressed, and

therefore the DEA’s decision was invalid since the EIR was not thorough enough to give

environmental authorization. “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 authorization” and the DEA granted
this authorization on a one-paragraph EIR that the High Court called “wholly insufficient”

(Earthlife Africa v. Minister of Energy, 2017). Ultimately, the court remitted approval for

Thabametsi’s construction because the Minister failed in her obligation to consider climate

impacts in her decision.

South Africa’s Constitution is the supreme law of their land and drafted in 1996, it’s

highly progressive. Section 24 of the Constitution states that South Africans have certain

environmental rights, namely rights to “an environment that is not harmful to their health or

well-being; and to have the environment protected for the benefit of present and future

generations, through reasonable legislative and other measures that prevent pollution and

ecological degradation; promote conservation; and secure ecologically sustainable development

and use of natural resources while promoting justifiable economic and social development”

(Bank and Karsten, 2022). Additionally, NEMA requires projects that might have a notable

impact on the environment to submit a thorough, specific EIR for a government official to make

an informed decision as to whether or not the project may continue (Banks and Karsten, 2022).

These national laws outline a clear legal duty to the climate, although they do not give specific

criteria for an EIR. Regarding the ambiguity, the Court says that “an environmental impact

assessment 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… 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… [T]he climate

change impacts are undoubtedly a relevant consideration as contemplated [in NEMA]” (Earthlife

Africa v. Minister of Energy, 2017). Additionally, this was South Africa’s first ever
environmental litigation case (Toyana, 2020). Being the first case, it establishes an important

precedent for future environmental regulation. Future projects with climate impacts will be

expected to submit a climate change impact assessment (Banks and Karsten, 2022). It also

confirms that ambiguity in the legal text doesn’t dismiss responsibility to those laws.

In addition to the Constitution and NEMA, the Court cited their commitments under the

Paris Agreement as a reason to overturn the Minister’s decision. The Court says that 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 NDC”

(Earthlife Africa v. Minister of Energy, 2017). If ambiguous language in national law were

contested, an explicit duty exists under international law.

Further, this case illustrates the importance of accountability that comes with active

participation in the international community. South Africa’s emissions, while of immediate

concern domestically, will have an international impact. The legally binding nature of the Paris

Agreement offers guidance for environmental regulation within courts and holds nations

accountable to those standards they set out for themselves to mitigate the far-reaching

consequences of climate change.

In conclusion, Earthlife Africa Johannesburg v. Minister of Environmental Affairs is a

landmark environmental regulation case for South Africa and internationally. Through this case,

it becomes clear that climate impacts are necessary considerations under South African law, that

the international agreements made under the Paris Accord serve a clear purpose even in domestic

litigation, and that governments are beginning to prioritize the health of the environment and to

look to more sustainable solutions above the use of fossil fuels, which inspires faith in the law as

a tool in the fight against climate change.

Images
1
sourced from the U.S. Energy Information Administration
References:

Acharya, B. (2022, April 19). South Africa's eskom escalates power cuts as more coal units trip.

Reuters. Retrieved May 27, 2022, from

https://www.reuters.com/world/africa/south-africas-eskom-escalates-power-cuts-stage-4-

2022-04-19/

Bank, M., & Karsten, J. (2022, January 29). Climate change and South Africa: A critical analysis

of the Earthlife Africa Johannesburg and another v minister of energy and others

65662/16 (2017) case and the drive for concrete climate practices. BioOne Complete.

Retrieved May 26, 2022, from

https://bioone.org/journals/air-soil-and-water-research/volume-13/issue-1/117862211988

5372/Climate-Change-and-South-Africa--A-Critical-Analysis-of/10.1177/117862211988

5372.full

Earthlife Africa Johannesburg V. minister of environmental affairs and others, case no. 65662/16

(2017). Environmental Law Alliance Worldwide. (n.d.). Retrieved May 25, 2022, from

https://elaw.org/SA_EarthlifeAfrica_MinEnviro_Mar2017

Earthlife Africa Johannesburg V. minister of environmental affairs and others. Climate Change

Litigation. (2021, January 6). Retrieved May 25, 2022, from

http://climatecasechart.com/non-us-case/4463/

EarthLife Africa Johannesburg v. The Minister of Environmental Affairs (High Court of South

Africa, Gauteng Division June 3, 2017).

Greyling, E. (2020, December 7). Thabametsi – lessons learned from the unexpected victory that

has local activists re-energised ! Earthlife Africa. Retrieved May 27, 2022, from

https://earthlife.org.za/thabametsi-lessons-learned-from-the-unexpected-victory-that-has-l

ocal-activists-re-energised/

South Africa. International - U.S. Energy Information Administration (EIA). (2017, October 26).

Retrieved May 27, 2022, from https://www.eia.gov/international/analysis/country/ZAF

Southern African Faith Communities' Environmental Institute. (n.d.). About Us. SAFCEI.

Retrieved May 27, 2022, from https://safcei.org/about-us/

Toyana, M. (2020, December 8). Celebrating a major climate victory: Court sets aside approval

for Thabametsi Coal Power Plant. Earthlife Africa. Retrieved May 27, 2022, from

https://earthlife.org.za/celebrating-a-major-climate-victory-court-sets-aside-approval-for-t

habametsi-coal-power-plant/

Toyana, M. (2020, November 17). Exclusive: Consortium pulls plug on South Africa's

Thabametsi Coal Plant. Reuters. Retrieved May 26, 2022, from

https://www.reuters.com/article/us-climate-change-safrica-coal-exclusive-idUKKBN27X

2LC

UN Environment Programme. (n.d.). Earthlife Africa Johannesburg vs. the minister of

environmental affairs and others. EarthLife Africa Johannesburg vs. The Minister of

Environmental Affairs and Others | UNEP Law and Environment Assistance Platform.

Retrieved May 27, 2022, from

 https://leap.unep.org/countries/za/national-case-law/earthlife-africa-johannesburg-vs-mini

ster-environmental-affairs-and

What is the Paris Agreement? United Nations Framework Convention on Climate Change.

(2022). Retrieved May 26, 2022, from

https://unfccc.int/process-and-meetings/the-paris-agreement/the-paris-agreement