South Durban Community Environmental Alliance and The Trustees of the Groundwork Trust v Minister of Forestry, Fisheries and the Environment and Others

The first and second applicants, both non-profit and non-government organizations advocating for environmental justice, applied to review and set aside an environmental authorization (EA) granted on 23 December 2019 by the second respondent (DEFF) to the third respondent (ESKOM) for the construction of a mid-merit combined cycle gas power plant (CCGPP) in Richards Bay. They also sought to review the refusal of their appeal against the EA decision by the first respondent (Minister) on 13 October 2020. The EA was granted subject to 57 conditions. The applicants raised seven grounds of review relating to: inadequate climate change impact assessment, inadequate consideration of need and desirability, failure to consider renewable alternatives, failure to consider cumulative environmental impacts, inadequate public participation, inadequate water resources assessment, and inappropriate wetland offset. The public participation process was conducted entirely in English despite 79% of the affected population speaking isiZulu as their primary language.

• Whether ESKOM was required to consider renewable energy alternatives when applying for authorization for a specific type of facility (CCGPP)
• Whether upstream greenhouse gas emissions from gas extraction and transportation in another country must be assessed in the initial EA application
• Whether the climate change impact assessment was adequate
• Whether cumulative environmental impacts were properly assessed
• Whether the public participation process complied with NEMA and EIA Regulations when conducted only in English in an area where 79% of the population speaks isiZulu
• Whether the EA could be granted subject to conditions requiring further linked applications for associated infrastructure
• Whether it was appropriate to impose conditions requiring proof of gas availability and pipeline authorization before commencement

1. The application for review of the granting of the EA and dismissal of the appeal was dismissed. 2. The respondents were ordered to: (a) publish a copy of the EA and conditions in isiZulu in at least two newspapers circulating widely in Richards Bay; (b) ensure all subsequent linked and ancillary EA applications for the CCGPP publish written notices in isiZulu and provide translation facilities at public meetings. 3. The respondents were ordered to pay the applicants' costs jointly and severally on a party-and-party scale, including costs for two counsel.

1. An applicant for environmental authorization is entitled to apply for a specific type of facility that serves a particular function without being required to consider renewable energy alternatives as part of that application, provided the decision-maker considers the specific exigencies of the proposed project. 2. Environmental authorization may lawfully be granted subject to conditions that make the efficacy of the entire project dependent on additional linked and successive EA applications, provided each application in the chain will be subject to proper environmental assessment including public participation. 3. Upstream greenhouse gas emissions occurring outside South Africa's borders and dependent on authorizations in other states need not be comprehensively assessed in an initial EA application where the authorization is expressly conditional upon separate EA applications for associated infrastructure that will assess those impacts. 4. Public participation in environmental decision-making processes must be conducted in the language(s) spoken by affected communities, not only English, to comply with NEMA and constitutional requirements for meaningful participation - persons who do not know of a process in a language they understand cannot be expected to participate in it. 5. Where an administrative decision is substantively sound but procedurally deficient in a manner that can be remedied in future linked processes, a court may exercise its discretion under section 8(1) of PAJA to grant remedial orders rather than setting aside the decision. 6. Costs may be awarded to unsuccessful review applicants who raise important issues of public interest, particularly regarding constitutional rights to participation, even where the review is dismissed.

The court made several non-binding observations: (1) Too hasty a transition to renewable energy may have catastrophic consequences, referring to blackouts in South Australia (2016) and Texas (2021-2022) as examples. (2) Natural gas is intended to act as a "bridge" energy source while coal is phased out and before renewable alternatives are fully implemented. (3) Requiring assessment of upstream effects in other countries as a precursor to granting any EA would create "an almost impossible situation" when fuel sources from outside South Africa are anticipated years before authorization is granted and subject to the laws of other states. (4) The approach to assess cumulative impacts requires a holistic view and interpretation of biophysical, social and economic systems, but is limited by current methods for identifying and analyzing cumulative effects. (5) The court noted with apparent approval that the 2020 Determination allocated 3000MW of new gas-generated power to independent power producers, but found this policy matter did not affect the validity of the EA granted to ESKOM, particularly as the EA did not oblige ESKOM to implement the approved project. (6) Public participation in democratic process is not the exclusive preserve of educated members of society who can read English or the privileged few with internet access - participative democracy is a foundational constitutional value. (7) The court deprecated the "cavalier approach" of DEFF and ESKOM to language requirements in public participation, rejecting the argument that documents would have been provided in isiZulu if requested.

This case is significant in South African environmental law for several reasons: (1) it clarifies that applicants for environmental authorization may apply for a specific type of facility without being required to consider renewable energy alternatives, provided the specific facility serves a distinct function; (2) it recognizes that complex infrastructure projects may appropriately be authorized through a chain of linked EA applications rather than requiring comprehensive assessment of all elements in a single application; (3) it reinforces the critical importance of meaningful public participation in environmental processes, particularly the constitutional imperative to enable participation by non-English speaking communities - following Sustaining the Wild Coast NPC and Federation of South African Fly Fishers; (4) it distinguishes Earthlife Africa Johannesburg v Minister of Environmental Affairs by clarifying that conditions requiring further assessments are permissible where the initial EA is not final and forms part of successive applications; (5) it establishes that upstream impacts occurring outside South Africa's borders need not be assessed in initial applications where separate linked applications will address them; (6) it demonstrates judicial willingness to grant remedial orders addressing procedural deficiencies without setting aside decisions where the substantive decision is sound and remedies can address future processes. The costs award in favour of unsuccessful applicants who raised important public participation issues is also noteworthy.