2030 CLIMATE COUNTDOWN
In addition to being one of the dirtiest and unhealthiest forms of energy, coal is now another thing: unnecessary. As the cost of renewable energy continues to tumble, government officials can no longer justify the continued use – nevertheless the new construction – of coal-fired power. Officials in South Africa, however, are trying to do just that: they’ve authorized the procurement of new coal-fired electrical power, directly contravening not only the need to use the most economically efficient sources of energy (which coal is not) but also their obligations to protect rights. A coalition of South African NGOs are thus challenging this decision in court, as part of their #CancelCoal campaign.
‘Clean coal’ is a dirty word: even if all existing technologies are applied to ‘clean’ it, it’s still one of the most polluting and harmful sources of energy in the world. That is common knowledge, though certain officials in the South African government might like to pretend it’s not.
In 2019, the South African government published its revised Integrated Resource Plan (IRP), which, among other things, lays out how the country will meet its electricity needs over a certain period of time. The revised IRP sets out how much of the country’s electrical capacity will be generated by various possible sources, including gas, renewable sources like solar and wind, and, importantly for this case, coal. In particular, the 2019 IRP plans for 1500 megawatts (MW) of electricity to be generated through new coal-fired power capacity – meaning electricity generated from newly constructed coal-fired power plants as opposed to ones that are already running.
In 2020, the Minister of Mineral Resources and Energy – with the agreement of the National Energy Regulator of South Africa – made a decision to approve 1500 MW of new coal-fired power under the national regulatory framework governing the electricity supply industry (the Electricity Regulation Act). These decisions pave the way for the construction and operation of new coal-fired power plants.
After unsuccessfully seeking the government’s justification for its decision to authorize new coal-fired power, a coalition of NGOs comprising the #CancelCoal Campaign filed a petition in the High Court of South Africa in the fall of 2021.
The petition challenges the section of the revised IRP planning for the procurement (or, acquisition) of 1500 MW of new coal-fired power as well as the decision of the Minister of Mineral Resources and Energy and the National Energy Regulator’s concurrence with that decision. All together, these three pieces comprise the “challenged decisions.”
The case rests on two legal bases: first, that the challenged decisions violate constitutional rights and obligations and, second, that the challenged decisions lack sufficient reason and justification and thus fail to comply with applicable administrative law.
Much of the petition focuses on the expected impacts of 1500 MW of new coal-fired power, including how it will exacerbate air pollution and water scarcity. It will, moreover, result in the emission of additional greenhouse gases, undermining South Africa’s commitment and obligation to do its “fair share” to reduce greenhouse gas emissions and keep global warming to 1.5 degrees Celsius, in line with the Paris Agreement and the scientific reports of the Intergovernmental Panel on Climate Change (IPCC).
“Climate change is the ultimate collective action problem. No country can individually control the global climate, and it therefore requires collective efforts by all nations to address the problem. Each nation must take urgent emissions-reduction measures in a way that stimulates confidence and promotes reciprocal efforts in other countries. By continuing to support coal-fired power in the face of the climate crisis, South Africa further undermines the calls from the UN Secretary General and climate scientists to abandon coal going forward. It also threatens to weaken the global resolve to rapidly decarbonise economies. This has a direct impact on the rights of all South Africans, who will be exposed to the increasing scale and intensity of climate change harms if these global efforts fail.” (Complaint, ¶¶282 – 284).
These various impacts, according to the plaintiffs, violate constitutional rights, including environmental rights as well as the rights to life, dignity, healthcare, food, and water. They also violate the best interests of the child, which must be considered and incorporated into all matters affecting children pursuant to the Constitution.
Significantly, not only do the plaintiffs provide robust evidence documenting the environmental and rights harms associated with new coal-fired power, but they also demonstrate that the challenged decisions lack economic justification as well. Since the cost of renewable energy has fallen dramatically, it is now cheaper than building new coal capacity. Indeed, modeling of the cost of various energy sources establishes that the least cost energy mix for South Africa would include no new coal-fired power. So, to summarize, new coal-fired power would not only increase the country’s greenhouse gas emissions – pushing the country closer to dangerous scenarios of climate change – but also cost more as an energy source (and that’s not even including the various economic costs of climate change).
“A ‘just transition’ is about more than simply protecting jobs. It requires efforts to protect all vulnerable communities from climate change and the economic shifts required to reduce emissions. Due to the rights-limiting harms of coal-fired power, both for present and new generations, new coal has no place in a just future.” (Complaint, ¶403)
The plaintiffs lay out in clear terms how the new coal-fired power would violate constitutional rights and obligations and undermine South Africa’s international climate commitments. The lack of economic justification, in light of the slew of harms associated with coal-fired power, also feeds into the administrative law arguments the plaintiffs make. Namely, the plaintiffs argue that the challenged decisions violate applicable administrative law (under the 2020 Promotion of Administrative Justice Act) because they, among other reasons, lack sufficient reasoning and justification.
After establishing their claims, the plaintiffs ask the Court to issue a declaration invalidating the portion of the revised IRP providing for the procurement of new coal-fired power as well as the Minister’s decision, with NERSA’s concurrence, to formally authorize the use of new coal-fired electrical power.
“South Africa has the opportunity to join other open and democratic societies in rejecting new coal-fired power stations. As the world turns away from coal, South Africa is at risk of being an environmental pariah in pursuing plans for new coal-fired power and locking itself into assets which will become stranded in the near future. Abandoning these plans is not only a moral and political imperative, but it is what the Constitution requires.” (Complaint, ¶411)
All eyes are now on the High Court of South Africa to see how it will rule in this case – which will have important implications not only for South Africa, given that its use of coal drives its relatively high emissions, but for other coal-dependent countries of the Global South as well, as litigators in those countries may be able to translate some of the arguments and strategies deployed here into their own cases.
The new electrical capacity the government wants to generate from new coal-fired power
Provision of the South African Constitution guaranteeing the right to an environment not harmful to health or wellbeing
The proportion of global greenhouse gas emissions generated by the global burning of coal
The plaintiffs repeatedly point to how the decision to generate electricity through new coal-fired power – which would lock in higher greenhouse gas emissions – will generate particularly egregious harms for children, young people, and future generations. Indeed, the plaintiffs argue that the government respondents’ decision to approve the use of new coal-fired power violates Section 28(2) of the South African Constitution, which protects the right of children to have their best interests considered in all matters that concern them. The challenged decisions fail to comply with these obligations because new coal-fired power will generate harms – including climate harms – that will disproportionately impact children.
The petition also injects the voices of children and young people by including affidavits by children and young people affected by climate change, allowing for a more concrete understanding of how climate change – made worse by decisions like those under challenge in this case (i.e., by emitting excess greenhouse gases) – materially impacts the lives of young South Africans.
“Children, young people and future generations will bear the brunt of the decisions made today. It is they who will suffer the consequences of rising global temperatures and extreme events, which will increase in intensity throughout the 21st century. The adult decision-makers driving new investments in fossil fuels and polluting policies will be long dead by the time the consequences of their actions are experienced intensely.” (Complaint, ¶79)
South Africa is required, according to the plaintiffs, to do its fair share to reduce greenhouse gas emissions to collectively limit global warming to 1.5 degrees Celsius, the “temperature target necessary to avert a global climate crisis” according to the Paris Agreement and the best available climate science (Complaint, ¶244). This obligation stems both from South Africa’s commitments under the Paris Agreement and from the South African Constitution, which is itself informed by international law.
More specifically, the plaintiffs derive this fair share obligation from Section 24 of the Constitution, which guarantees South Africans’ environmental rights. This section of the Constitution, at minimum, “requires the South African state to do its part in limiting global temperature increases to 1.5˚C and below.” (Complaint, ¶334).
The decision to authorize new coal-fired power directly contravenes South Africa’s ability to do its fair share of emissions reductions, since the decision would lock the country into a higher emissions pathway – one that results in greenhouse gas emissions that exceeds the country’s ‘fair share.’
Though the plaintiffs incorporate administrative law-based arguments into their petition, most of it focuses on the implications the challenged decisions have for constitutional rights and obligations. Under the South African Constitution, everyone has the right to life (Sec. 11); equality (Sec. 9); dignity (Sec. 10); healthcare, food, and water (Sec. 27); and an environment that is not harmful to their health or well-being and is protected for the benefit of present and future generations through reasonable measures (Sec. 24). Each of these rights, the plaintiffs argue, are violated by the government’s decision to utilize new coal-fired power (thereby failing to do its fair share to mitigate the climate emergency and its attendant impacts).
Given that the challenged decisions infringe on constitutionally protected rights, the onus is on the government to provide sufficient and legitimate justifications for its decisions. It cannot. There is no economic rationale to develop new coal-fired power capacity, as the plaintiffs point out, and the mere existence of coal resources in the country “is no argument for building new, heavily polluting coal-fired power stations that are unnecessary, too costly, have severe rights-limiting consequences, and that will become stranded assets in the future.” (Complaint, ¶409)
“[T]he procurement of 1500 MW of new coal-fired power represents a severe threat to the constitutional rights of the people of South Africa, including the section 24 environmental rights, the best interests of the child, the rights to life, dignity and equality, among other implicated rights.” (Complaint, ¶15)