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Celebrating a major climate victory: Court sets aside approval for Thabametsi coal power plant

1 December 2020 at 12:21 pm

March 2, 2017.  Activists from Earthlife Africa demonstrating outside the Pretoria High Court at the start of the hearing of South Africa's first climate change lawsuit. Picture: JAMES OATWAY for CER.
March 2, 2017. Activists from Earthlife Africa demonstrating outside the Pretoria High Court at the start of the hearing of South Africa's first climate change lawsuit. Picture: JAMES OATWAY for CER.

Last week, the High Court in Pretoria set aside the environmental approval for the 1200 MW Thabametsi coal-fired power station that would have been built in its first phase at 557 MW outside Lephalale in Limpopo province.

The court order was the result of the settlement of a court application brought by environmental justice groups Earthlife Africa and groundWork, Friends of the Earth, South Africa against the development company Thabametsi (Pty) Ltd and the state, asking the court to set aside the environmental approval for the plant.

“Thabametsi would have been a climate and environmental disaster that would have cost our country R12.57 billion compared to a least cost electricity system,” says Makoma Lekalakala, director of Earthlife Africa.

In 2015, the year in which South Africa ratified the Paris Climate Agreement, as many as 13 private coal power plants were being planned under the coal-baseload independent power producer procurement programme. In 2016, two coal power plants, Thabametsi and Khanyisa, were announced as preferred bidders under the 1000MW first bid window of this programme.

Thabametsi was backed by South Korea’s KEPCO and Japan’s Marubeni. Marubeni had stepped in as lead project developer after French company Engie withdrew its stake, under pressure from environmental justice groups, in 2015. Khanyisa, planned for Mpumalanga, is backed by Saudi company ACWA Power.

Environmental justice group Earthlife Africa challenged Thabametsi’s environmental approval in court in 2017, represented by the Centre for Environmental Rights. In March 2017, in a landmark judgment, the Pretoria High Court set aside the environmental approval for the plant, holding that the Environment Minister was obliged to consider climate impacts in her decision, but had failed to do so. This was South Africa’s first climate change court case.

Based on government’s own specifications, both Thabametsi and Khanyisa were designed to be highly greenhouse gas (GHG) emission intensive. Thabametsi’s own climate change impact assessment showed that it would be one of the most emission intensive plants in the world – 60% higher than Medupi. That impact assessment also showed that the project’s existence was at risk due to water scarcity, which would be exacerbated by climate change.

Despite all this, in early 2018 the Environment Minister again upheld Thabametsi’s environmental authorisation, on the basis that the 2010 Integrated Resource Plan for Electricity (IRP) called for new coal-fired power capacity, and had already assessed climate impacts. Environmental justice group groundWork joined Earthlife in launching new court proceedings, arguing that the Minister had to exercise her own discretion, and consider the project-specific climate impacts of the Thabametsi project, instead of treating the country’s electricity plan as determinative of her decision.

Earthlife and groundWork, represented by CER, complemented this judicial review by launching legal challenges of all other approvals given for Thabametsi, Khanyisa, and a series of other private coal plants – this included environmental authorisations, water use licences, atmospheric emission licences and approvals by the National Energy Regulator of South Africa.

In that same year, modelling by UCT’s Energy Research Centre showed that, in fact, neither Thabametsi nor Khanyisa was required for SA’s electricity system. On the contrary, these two unnecessary coal plants would cost South Africa nearly R20 billion more than a least-cost electricity system, and would require costly increased mitigation efforts in the power sector in order to meet climate commitments.

Although it took many months of pressure from community and NGO activists and shareholders, private banks Standard Bank, FirstRand, Nedbank and Absa eventually agreed to withdraw from funding Thabametsi and Khanyisa. NedbankAbsaFirstRand and Standard Bank have since released policies that constrain their future funding of coal power. Nedbank has confirmed it will not fund any new coal plants, regardless of technology.

Towards the end of 2019, the Environment Department advised that Khanyisa’s environmental authorisation had expired – a development disputed by Khanyisa. In July 2020, Khanyisa received another blow when the Water Tribunal set aside its water licence on procedural grounds, but confirming for the first time that climate impacts are relevant considerations when considering a water licence application.

By November 2020, Thabametsi had reached the end of the road. The Development Bank of South Africa, the Public Investment Corporation and the Industrial Development Corporation withdrew their financing for Thabametsi, and investors KEPCO and Marubeni announced their withdrawal too. Thabametsi agreed to settle the litigation with Earthlife and groundWork, and notified government that it was cancelling the project.

“Public interest litigation was a key aspect of this campaign”, says Nicole Loser, head of the Centre for Environmental Rights’ Pollution and Climate Change programme. “Not only did we manage to create new jurisprudence and legal precedent to aid future campaigns, but the litigation has pushed for better decisions that align with Constitutional rights, backed up by science and economics.”

Thomas Mnguni, groundWork’s Coal Community Campaigner based on the Mpumalanga Highveld shares his experience from working in the area for environmental justice over the last two decades.  “Being in constant dialogue with community people and organisations living in coal impacted areas has been key to linking people’s ill health, poverty and the destruction of their environments and livelihoods to the coal industry. Slowly, through constant engagement, people are understanding that coal is not a development plan, but rather an extractive plan, which leaves local communities and the environment devastated.”

The shelving of Thabametsi means that:

  • 136,1 million tonnes of carbon dioxide equivalent GHG emissions will never enter the atmosphere. If Khanyisa is also shelved, a further 75,9 million tonnes of carbon dioxide equivalent GHG emissions will never be emitted;
  • 720 000 cubic metres of precious water per annum, for 30 years, have been saved – a crucial win in a highly water scarce region of a water scarce country forecast to be particularly hard hit as the climate crisis intensifies;
  • significant air pollution that would have harmed the lives and health of residents of Lephalale and surrounds – already affected by Eskom’s Medupi and Matimba – has been avoided; and
  • the South African public has been spared from unnecessary expenditure of R12.57 billion compared to a least cost electricity system (which is renewable and flexible, and has no new coal). If Khanyisa is also shelved alongside Thabametsi, that would save South Africa a total of R19.68 billion.

“Globally, planned coal plants are rapidly being abandoned, and the UN Secretary General has implored nations to cease building any new coal plants from 2020,” says Lekalakala. “The consequences of continuing on the fossil fuel development trajectory are dire for our health, economy and continued life on a habitable planet.”

Despite all this, the Energy Minister’s September 2020 IRP determination calls for 1500 MW of electricity to be generated from new coal plants, and government still appears to be backing a brand new 3 300 MW coal plant to accompany the Musina Makhado Special Economic Zone – a proposed metallurgical industrial complex in Limpopo.

Both science and economics now powerfully motivate for all new coal projects to be abandoned, and to be replaced with cheaper renewable energy – owned not only by private interests, but by community cooperatives, local government and Eskom – generating clean, cheap people’s power.