Earthlife Africa Johannesburg v The Minister of Environmental Affairs and Others

Earthlife Africa, a non-profit environmental organisation, sought to review decisions by the Chief Director of the Department of Environmental Affairs (DEA) granting environmental authorisation for a 1200MW coal-fired power station near Lephalale, Limpopo, to be built by Thabametsi Power Company, and the Minister of Environmental Affairs' decision upholding that authorisation on appeal. The power station was expected to operate until at least 2061. The Chief Director granted environmental authorisation on 25 February 2015. Earthlife appealed to the Minister on 11 May 2015, arguing inter alia that climate change impacts had not been adequately considered. On 7 March 2016, the Minister upheld the authorisation but added condition 10.5 requiring Thabametsi to undertake a climate change impact assessment within six months, to be submitted to the DEA for review. Earthlife contended that the environmental impact assessment report (EIR) considered by the Chief Director contained only a single paragraph on climate change, stating impacts would be "relatively small and low" without supporting evidence or quantification of greenhouse gas (GHG) emissions. A subsequent climate change report prepared after the Minister's decision estimated the power station would emit over 8.2 million tonnes of CO2 annually and 246 million tonnes over its lifetime, constituting 1.9-3.9% of South Africa's total GHG emissions, with high resilience risks including water scarcity that could not be fully mitigated.

• Whether climate change impacts are relevant factors that must be considered before granting environmental authorisation under section 24O(1) of the National Environmental Management Act (NEMA)
• Whether the Chief Director's decision was reviewable for failing to consider relevant climate change impacts
• Whether the Minister's appeal decision was lawful in upholding the authorisation while acknowledging climate change impacts had not been comprehensively assessed
• Whether the Minister had power to withdraw the authorisation if the subsequent climate change assessment warranted it
• The appropriate remedy where administrative decisions fail to consider relevant climate change factors
• The application of the functus officio principle to environmental authorisations
• Whether participation in a climate change assessment process precludes review of the underlying authorisation

1. The Minister's ruling dismissing Earthlife's fourth ground of appeal regarding climate change impacts is reviewed and set aside. 2. The fourth ground of appeal is remitted to the Minister for reconsideration under section 43 of NEMA. 3. The Minister is directed to consider: (a) a climate change impact assessment report; (b) a paleontological impact assessment report; (c) comments from interested and affected parties; and (d) any additional information required to decide the fourth ground of appeal. 4. Costs awarded to the applicant against all respondents jointly and severally, including costs of two counsel.

Climate change impacts constitute relevant factors that must be considered before granting environmental authorisation under section 24O(1) of NEMA, particularly for projects that will emit significant greenhouse gases. This requirement flows from: (1) the mandatory duty to consider "all relevant factors" including pollution and environmental impacts; (2) the purposive interpretation of NEMA in light of section 24 of the Constitution; (3) the directive principles in section 2 of NEMA promoting sustainable development and intergenerational equity; (4) South Africa's international climate change obligations; and (5) domestic climate change policies. A decision-maker cannot properly exercise discretion under section 24O(1) of NEMA without sufficient information about climate change impacts to balance against other relevant factors. The absence of a climate change impact assessment where climate impacts are significant and relevant renders a decision to grant environmental authorisation reviewable for: (1) failure to consider relevant factors under section 6(2)(e)(iii) of PAJA; and (2) irrationality under section 6(2)(f)(ii) of PAJA. The functus officio principle applies to final environmental authorisations that vest rights in applicants. In the absence of express statutory authority, decision-makers lack implied power to withdraw environmental authorisations after they have been granted, even where subsequent information reveals the authorisation should not have been issued. Courts must fashion proportionate remedies under section 8 of PAJA that rectify proven administrative irregularities without unnecessarily invalidating unaffected portions of administrative action.

The court made several significant non-binding observations: 1. On the relationship between NEMA and NEMAQA processes: While atmospheric emissions licenses under NEMAQA will address GHG emissions, this does not relieve the DEA of its independent statutory duty to investigate climate change impacts thoroughly under section 24O of NEMA at the national level considering national and international consequences. 2. On policy instruments: The Integrated Resource Plan and the Minister of Energy's Determination that 2500MW should be generated from coal cannot substitute for site-specific climate change impact assessments. Macro-level policy assessments cannot address the specific climate impacts and mitigation strategies for particular projects at particular locations, which are inherently context-specific. 3. On the precautionary principle: The directive principles in section 2 of NEMA caution decision-makers to adopt a risk-averse and careful approach, especially in the face of incomplete information about environmental impacts. 4. On sustainable development: Section 24(b)(iii) of the Constitution recognizes the interrelationship between environment and development, requiring ecological sustainability to be secured while promoting justifiable economic and social development. Climate change poses substantial risks to sustainable development in South Africa. 5. On timing of assessments: Citing Communities for a Better Environment v City of Richmond, the court observed that studies conducted after approval of a project will inevitably have diminished influence on decision-making. Environmental impacts should be identified and assessed during the environmental impact assessment process before final approval, not after. 6. On South Africa's development context: The court acknowledged South Africa's acute energy challenges, heavy dependence on coal, overriding priorities to address poverty and inequality, and the rigidity in transitioning to a low-carbon economy in the short-term up to 2025, but held these considerations do not eliminate the duty to assess climate impacts. 7. On strategic litigation: The court rejected arguments that Earthlife's admitted use of litigation as part of a broader strategy to halt coal-fired power stations was illegitimate, finding it did not affect the legal merits of whether the specific decisions under review were lawful.

This is a landmark judgment in South African environmental and climate change law. It is the first case to definitively establish that climate change impact assessments are mandatory relevant considerations under NEMA before granting environmental authorisation for major GHG-emitting projects like coal-fired power stations. The judgment strengthens the substantive content of the constitutional environmental right in section 24, particularly the intergenerational justice component requiring protection of the environment "for present and future generations." It affirms that sustainable development requires balancing short-term energy needs against long-term climate consequences. The case demonstrates how international climate change obligations under the UN Framework Convention and Paris Agreement inform the interpretation of domestic environmental legislation through section 233 of the Constitution. The judgment provides important guidance on: (1) the scope of "relevant factors" under section 24O(1) of NEMA; (2) standards of rationality in environmental decision-making; (3) the proper sequencing of environmental assessments before, not after, project approval; (4) limitations on retrospective correction of procedural defects; and (5) fashioning proportionate remedies in environmental review proceedings. The case has significant implications for South Africa's transition to a low-carbon economy, as it requires meaningful assessment of climate impacts for all major infrastructure projects, potentially affecting the viability of new fossil fuel developments.