South African court said no to new coal-fired power: what’s behind the ruling

Three South African environmental and climate justice organisations took the South African government to court in November 2021, to challenge the authorisation of new coal-fired power as part of the country’s energy mix. Three years later, the court ruled that the government’s new coal plans were unlawful, invalid, and against the country’s constitution. Therefore, these plans cannot go ahead. Environmental law specialist Melanie Murcott researches how courts consider the risks and impacts of climate change and environmental and human rights violations in their judgments. In this article, she discusses the #CancelCoal case.

Why was the #CancelCoal case brought to court?

South Africa gets about 85% of its electricity from burning coal. The country has committed to moving towards cleaner energy alternatives such as solar and wind energy. But the government has said it will “aggressively pursue” coal, oil and gas as well as renewable energy.

In 2020, the Minister of Mineral Resources authorised procurement of a massive additional amount of new coal-fired capacity into South Africa’s energy mix. The authorisation was also provided for in South Africa’s national electricity plan – the Integrated Resource Plan 2019 – and supported by the National Energy Regulator of South Africa.

Yet the country’s coal-dominated, unsustainable methods of producing electricity and heating have contributed around 87% of its greenhouse gas emissions. They are driving climate change and deadly air and water pollution. South Africa is ranked the highest emitter of greenhouse gases on the African continent, and the thirteenth highest globally.

In other words, coal has a huge carbon footprint, with grave human rights implications, especially for those living in poverty.

For these reasons, the environmental justice organisations groundWork, the African Climate Alliance and the Vukani Environmental Justice Movement in Action brought a case to promote a just energy transition. They were supported by two “friends of the court”: the Centre for Child Law and the Vaal Environmental Justice Alliance.

What did the environmental justice organisations ask the court to do?

The environmental justice organisations wanted the court to declare the authorisation of new coal-fired power unlawful and unconstitutional. This was part of their #CancelCoal campaign.

The slang term “cancel” means “to stop giving support” to someone or something, usually a celebrity or other high-profile person. The intention is to make them unpopular. Something is “cancelled” in popular culture when it is rejected or dismissed.

However, the #CancelCoal case was not about cancelling existing coal-fired power. Instead, it concerned the human rights implications of locking South Africa into a carbon intensive development pathway by authorising new coal-fired power.

The litigants asked the court to:

• uphold a constitutional challenge to the decisions to authorise an additional 1,500MW of new coal-fired power – about 4% of the current total power from coal (38,000 MW)
• review, set aside, and declare inconsistent with the constitution the decisions and publication of the 2019 Integrated Resource Plan that authorised the coal-fired power.

The litigants produced evidence running to thousands of pages showing that coal has adverse impacts on an increasingly volatile climate system, human health and the environment, which are intertwined. Children are especially vulnerable and would be more affected than adults.

Expert evidence revealed that this new coal-fired power alone would cause South Africa to significantly exceed its greenhouse gas emissions targets and “fair share” contribution to combating climate change. On the other hand, cleaner energy would align with the government’s international commitments to reduce greenhouse gas emissions, and would be more affordable and sustainable.

The litigants argued that the new coal-fired power would violate human rights to life, human dignity, equality, and access to food and water. Other rights that would be violated were the rights of the child, and the right to an environment that’s not harmful to health or wellbeing.

What did the judgment say?

When judges hear legal challenges to government decisions, they must act as guardians of the human rights entrenched in the bill of rights of the constitution. This includes the right to have the environment protected for the benefit of present and future generations.

Because the constitution is the supreme law of the country, all law and conduct must be consistent with it. Decisions that are inconsistent with the constitution, including those that unjustifiably limit human rights, fall foul of the foundational value of the rule of law provided for in the constitution. A court may therefore declare them unlawful.

In this case, the judge noted that the government had been “hard pressed to show that adequate and appropriate consideration was given to the environmental right and the rights of the child enshrined in the Constitution”.

The judgment concluded that the government had not shown proof that it had considered the negative impacts of new coal-fired power, particularly on children. The government also failed to show that it considered less harmful means of meeting the country’s electricity needs.

Given that its action would violate people’s rights, the government had to show that the violations were “reasonable and justifiable”. This is required by section 36 of the constitution. The court found that the government had not shown that the human rights violations were reasonable or justifiable in a democratic society based on human dignity, equality and freedom.

What is the significance of the #CancelCoal judgment?

The court’s emphasis on a duty to justify rights violations arising from coal-fired power is what makes this judgment significant.

The court’s judgment is also important because it connects the environmental right to other human rights. It shows that decisions locking the country into carbon-intensive and harmful development pathways raise interrelated human rights issues. When decisions limit human rights, government must be able to justify this. Otherwise the courts may declare those decisions unconstitutional and invalid, and set them aside.

The #CancelCoal judgment holds the executive branch of government to standards set by the constitution, the country’s supreme law. It also helps South Africa move closer to achieving its international climate change commitments. The judgment creates impetus for “cancelling” coal by playing this role.

Judges have a legitimate, constitutionally ordained role to uphold these standards. When judges play this role, they act as an appropriate check and a balance on unconstitutional exercises of power. They further promote accountability related to climate risk and resilience.

• Melanie Murcott is an Associate Professor, University of Cape Town, University of Cape Town
• This article first appeared in The Conversation