The Pretoria High Court has overturned the government's plan to add 1,500 megawatts of new coal-fired power to the country's electricity grid. (Guillem Sartorio/AFP)
The Pretoria High Court has overturned the government's plan to add 1,500 megawatts of new coal-fired power to the country's electricity grid.
In a landmark judgment handed down on Wednesday, the court found that the government had not adequately considered coal's impact on children's rights, particularly their right to a healthy environment.
Judge Cornelius van der Westhuizen, who presided over the case, declared the government's 2020 decision to procure new coal-fired power generation illegal and invalid.
This was based on insufficient consideration of the harm and rights limitations of current and future generations that could be caused by the construction of new coal-fired power plants.
The coal cancellation lawsuit was brought by the African Climate Alliance, represented by the Environmental Rights Center, Vukani Environmental Justice Movement in Action, Groundwork and Friends of the Earth SA against the former Minister of Mineral Resources and Energy and the National Government. Ta. South African Energy Regulatory Authority (Nersa).
Brandon Abdiner, acting director of the Pollution and Climate Change Program at the Center for Environmental Rights, said the ruling is important.
“There is a clear requirement that the harms of burning coal for electricity generation must be properly and transparently considered where environmental or health impacts may limit constitutional rights,” he said. “It sends a directive,” he said, adding that the principle could also apply to similar harms from other sources. .
“We also recognize that it is particularly important to consider negative climate impacts, as young people and future generations will bear the brunt of the effects of climate change.”
He stressed that the future of coal is “increasingly bleak and the protection of rights is increasingly promising.”
The court ruled that the portion of the 2019 Integrated Resource Plan (IRP) that provided for this new coal power generation was illegal and invalid. This section of the IRP does not pass the test of legality, as there was evidence that the Minister had properly considered the restriction of children's rights due to the negative health and environmental effects of burning coal for electricity. It's for a reason.
The court specifically noted the state's failure to document decision-making as required by law.
“The Regulation 53 record, as well as the evidence of the first and second respondents, is eerily silent on the environmental and public health impacts of an additional 1,500 MW of new coal-fired power generation. . It is about children,” the judgment said.
“In this regard, it is clear that the first and second defendants have not complied with their constitutional obligations, and therefore have no responsibility to explain the impact on children of the decision to allow 1,500 MW of new coal-fired power to be added to the grid. If there is no considered evidence, it will be reconsidered based on the principle of legality.
“The first defendant's requirements have not been complied with.” [the minister’s] It's a constitutional obligation. ”
In his judgment, van der Westhuizen said: “In the absence of convincing facts to the contrary, it cannot be concluded that the above-mentioned impugned decision would adversely affect the rights of the child under Articles 24 and 28 of the Constitution. He emphasized that it is clear that this will happen.
“In that regard, first of all, [minister] and the second respondent [Nersa] The party responsible failed to fulfill its obligation to show that the restriction, if any, was reasonable and justifiable. ”
The court also ruled that the agreement announced by Nersa in September 2020 was illegal and invalid insofar as it supported the Minister's decision on 1,500 MW of new coal-fired power generation.
Sibusiso Mazomba of the African Climate Alliance said the judgment was an important legal victory to “ensure that South Africa's children and young people are included in the decisions that shape our future”. .
It was also a testament to the efforts of the Environmental Rights Center and a coalition of organizations that have worked diligently on this case for the past three years.
“However, this is an important step in ensuring the constitutional rights of children and young people, who bear the greatest burden of coal's harmful health, social and environmental impacts, particularly the rights of Article 24 and its associated rights. This is just the first step,” Mazomba said.
“True justice can only be achieved when these rights are fully upheld and the protection of our lives, environment and future is guaranteed. All the while promoting the integrity and resilience of our societies, Our fight to protect our future from destruction continues, and this result serves as further inspiration to continue that effort.”
Thomas Mnguni, a Groundwork coal campaigner from Middelburg, said South Africa had an opportunity to move away from its dependence on polluting fossil fuels and protect its constitutional rights.
The Minister and Nersa were ordered to pay the costs of the application, including the costs of two lawyers.
