The Green Connection NPC and Another v Minister of Forestry, Fisheries and the Environment and Others

The Green Connection NPC and Natural Justice challenged the environmental authorization (EA) granted on 17 April 2023 by the Director-General of the Department of Mineral Resources and Energy to Total Energies EP South Africa Block 567 (Pty) Ltd for offshore oil and gas exploration drilling in Block 5/6/7, approximately 60-170km off the South-West Coast between Cape Town and Cape Agulhas. The Minister of Forestry, Fisheries and the Environment dismissed their appeal on 24 September 2023. Total and its co-venture partners (Shell and PetroSA) hold Exploration Right 12/3/224 granted under the MPRDA. The proposed exploration involves drilling one well and potentially up to four additional wells, triggering listed activities under the EIA Regulations requiring an EA. During the proceedings, Total resigned as operator and Shell became the successor operator. Shell applied to be joined as the fifth respondent. The applicants launched their review application 51 days late and sought condonation.

• Whether the Final Environmental Impact Report adequately assessed socio-economic impacts of a potential well blowout and oil spill on fisheries and communities
• Whether the decision-makers considered the factors prescribed by the Integrated Coastal Management Act (ICMA)
• Whether the assessment of need and desirability considered climate change impacts from burning fossil fuels discovered
• Whether transboundary environmental impacts on Namibia and international waters were assessed
• Whether the Environmental Management Programme required inclusion of the Oil Spill Contingency Plan and Blow Out Contingency Plan at the EA stage
• Whether PASA improperly submitted an appeal response on behalf of the DG
• Whether Shell should be joined as a respondent
• Whether condonation for late service should be granted

The EA granted on 17 April 2023 and the appeal decision of 24 September 2023 are reviewed and set aside. The matter is remitted to the third respondent (DG) for reconsideration. Total must be afforded opportunity to submit new or amended assessments to cure the deficiencies identified in grounds 1-5. Public participation must be conducted on the new/amended assessments before the DG makes a decision. Shell's joinder as fifth respondent is granted. Condonation for late service is granted. The first to third respondents are ordered to pay costs jointly and severally on scale C, including costs of three counsel. No costs order in relation to the joinder application (Biowatch principle applied).

The binding legal principles established are: (1) Environmental impact assessments must quantify socio-economic impacts of identified significant risks (including low-probability, high-consequence events like oil spills), applying the precautionary principle where scientific limitations exist - failure to do so breaches ss 24(4) and 24O of NEMA and Appendix 3 of the EIA Regulations (PAJA ss 6(2)(b), 6(2)(e)(iii), 6(2)(f)(ii)(cc)). (2) Decision-makers granting environmental authorizations for activities affecting coastal public property must expressly consider ICMA factors under s 63, including effects on coastal public property, consistency with conserving it for future generations, and the interests of the whole community - ICMA's concepts cannot be satisfied by generic NEMA considerations (PAJA ss 6(2)(b), 6(2)(e)(iii), 6(2)(f)(ii)(cc)). (3) Adequate reasons must be provided showing what was considered regarding ICMA factors, not mere conclusions (PAJA ss 6(2)(e)(iv), 6(2)(f)(ii)(aa)-(cc)). (4) Need and desirability assessments for fossil fuel exploration must symmetrically consider climate change impacts from the production/combustion phase where benefits of that phase are relied upon to justify the exploration - the exploration and production phases are intertwined and climate change assessment is mandatory under s 24O(1) (PAJA ss 6(2)(b), 6(2)(e)(iii), 6(2)(f)(ii)(cc)). (5) NEMA, interpreted through Constitution ss 232-233 in light of customary international law, requires environmental impact assessments to assess transboundary impacts where activities pose risk of harm beyond South Africa's borders (PAJA ss 6(2)(b), 6(2)(d), 6(2)(e)(iii), 6(2)(f)(ii)(cc)). (6) Where critical operational plans (oil spill contingency plans) are identified as necessary but cannot be finalized until post-authorization, meaningful public participation must still occur before operations commence - deferral without participation breaches s 24(4)(a)(v) and s 24N(2)(g) of NEMA (PAJA ss 6(2)(b), 6(2)(c), 6(2)(d), 6(2)(e)(iii), 6(2)(f)(ii)(cc)). (7) Co-holders of exploration rights granted under the MPRDA have limited real rights (s 5 MPRDA) extending to incidental activities like those requiring environmental authorization, conferring direct and substantial interest justifying joinder.

The Court made several important non-binding observations: (1) The distinction sought between assessing 'risks' versus 'impacts' in environmental assessments is artificial and contrary to the spirit of the EIA Regulations - both must be assessed equally (para 104). (2) An exploration right under the MPRDA remains in force during pendency of a renewal application notwithstanding its expiry date (s 81(5) MPRDA) - this express provision addresses delays in administrative processing and cannot be interpreted to impose a maximum 9-year limit (paras 37-41). (3) The interrelatedness of exploration and production phases is confirmed by the MPRDA definitions - exploration operations aim to locate a discovery, and production operations include exploration activities (paras 152-153). (4) It is incongruous to rely on long-term benefits of the production phase (electricity generation) when considering need and desirability at exploration phase, while refusing to consider negative consequences (climate change impacts) of that same production phase (para 154). (5) The Rio Declaration reflects 'real consensus in the international community on core principles of environmental protection and sustainable development' and provides a benchmark for measuring developments and defining sustainable development (para 181, citing Fuel Retailers). (6) Courts must be pragmatic in fashioning remedies under s 172(1)(b) of the Constitution - it is disproportionate to set aside an entire project due to an imperfect process; substance should prevail over form; and remittal with directions can cure identified defects where issues have been fully canvassed (paras 218-223). (7) The Biowatch principle (no costs against unsuccessful constitutional litigants absent frivolous/vexatious conduct) applies to ancillary and procedural matters in constitutional cases, not only merits determinations (paras 225-228).

This judgment is highly significant for South African environmental law on multiple fronts. It clarifies that: (1) Environmental impact assessments for offshore oil and gas exploration must include quantified socio-economic impacts of low-probability but high-consequence events like oil spills, applying the precautionary principle where scientific uncertainty exists. (2) ICMA factors must be expressly considered when coastal public property is affected, not merely subsumed within general NEMA considerations, reflecting the special legal status afforded to coastal public property held in trust for current and future generations. (3) Climate change impact assessments must symmetrically consider both benefits and harms across interrelated exploration and production phases, not artificially separate them. (4) NEMA, interpreted through constitutional provisions requiring consideration of customary international law and international law (ss 232-233), requires assessment of transboundary environmental impacts, particularly where South Africa's obligations under instruments like the Rio Declaration and Abidjan Convention are engaged. (5) Public participation is a foundational principle that cannot be circumvented by deferring critical operational plans (like oil spill contingency plans) to post-authorization submission. (6) Remedies should be pragmatic and proportionate - remittal for reconsideration rather than outright refusal where defects can be cured. The judgment demonstrates robust judicial enforcement of South Africa's constitutional environmental rights (s 24) through procedural safeguards in NEMA, while integrating international environmental law principles into domestic law.