Cape Town, 29 August 2024: Civil society organisations’ continued efforts to prevent a proposed 3000MW gas-to-power plant from being built in Richards Bay by state-owned enterprise, Eskom, is scheduled to be heard in the Supreme Court of Appeal this week.
The South Durban Community Environmental Alliance (SDCEA) and groundWork, supported by Natural Justice, and represented by environmental law firm, Cullinan & Associates and a team of advocates, will be challenging a Pretoria High Court judgment that had previously declined to set aside the environmental authorisation granted to Eskom for the gas power plant. The appeal will be heard in the Supreme Court of Appeal in Bloemfontein on Friday 30 August 2024.
Eskom Holdings SOC, a state-owned enterprise, was granted environmental authorisation in December of 2019, although, to date, construction on the project has not yet begun. The gas-to-power plant will be fuelled by gas via a pipeline that will be installed from the Richards Bay Port and will supply up to 3,000MW of energy. The pipeline is not yet built, nor authorised.
On 2 August 2022, the landmark case was heard to the Pretoria High Court – the first time that a gas-to-power plant had been challenged in a court in South Africa.
SDCEA and groundWork called for the environmental authorisation to be declared unlawful and set aside, based on inadequacies within the Environmental Impact Assessment (EIA) and a flawed public participation process, given that many communities were excluded from the process. This was because (among other reasons) none of the communications during the public participation process had been conducted in the home language of the majority of people in the area (isiZulu).
In the High Court, they argued that there was an inadequate assessment of the climate change impacts of the project. Evidence shows that, holistically and if ‘upstream’ (or pre-combustion) emissions are considered, a gas-to-power plant, such as the proposed plant, emits as much greenhouse gas as other fossil fuels, like coal, during the entire life-cycle of a project.
On 6 October 2022, the Pretoria High Court (despite finding the Applicants’ 5th review ground to have merit – impliedly justifying a review of the impugned decisions) dismissed the review application and refused to set the impugned decisions aside. But, it did grant ancillary orders to the effect that the decision to grant the environmental authorisation should be published in isiZulu and the communications in future EIAs for the gas terminal and pipeline should also be in isiZulu. This unfortunately meant that the environmental authorisation remained valid.
On dismissal, the court awarded costs to SDCEA and groundWork, even though they had been unsuccessful, because they had “brought to the fore the deficit in the public participation process – an essential element central to the legitimacy of the entire application process.”
SDCEA and groundWork applied to the Pretoria High Court for leave to appeal. The hearing took place on 17 January. A day later, on 18 January 2023, Judge Millar dismissed the CSOs’ application on the basis that he was of the view that another court would not come to a different conclusion.
The Supreme Court of Appeal granted leave to appeal on 28 April 2023. The appeal will be heard in the SCA on 30 August.
