CLIMATE LITIGATION AFFECTING ENERGY PROJECTS

1. Introduction

Climate litigation increasingly influences the planning, approval, financing and operation of energy projects. It includes court proceedings in which environmental organisations, communities or other interested parties challenge government decisions or private activities because of their contribution to greenhouse-gas emissions, climate change, environmental degradation or climate vulnerability.

In South Africa, such litigation is particularly important for coal-fired power stations, oil and gas exploration and other carbon-intensive developments. The constitutional foundation is section 24 of the Constitution, which protects the right to an environment that is not harmful to health or well-being and requires environmental protection for present and future generations. This operates together with the National Environmental Management Act 107 of 1998 (NEMA) and administrative-law principles.

2. Climate Change in Environmental Authorisation

Large energy projects generally require environmental authorisation under NEMA where they involve listed activities. Decision-makers must consider relevant environmental impacts, pollution, mitigation measures and reasonable alternatives.

Climate litigation has established that climate impacts can constitute legally relevant environmental considerations. These include the project's lifetime greenhouse-gas emissions and the consequences of climate change for the project's own operation, such as water scarcity and extreme weather.

This means climate considerations cannot simply be postponed until after an important authorisation decision where they are material to that decision.

3. Earthlife Africa Johannesburg v Minister of Environmental Affairs [2017] ZAGPPHC 58

Facts: Earthlife Africa challenged the environmental authorisation granted for the proposed Thabametsi 1,200 MW coal-fired power station in Limpopo. The Minister acknowledged that climate impacts had not been comprehensively assessed before authorisation but upheld the authorisation subject to a later climate-change assessment.

Legal Issue: Whether climate-change impacts were relevant considerations that had to be properly assessed when deciding whether to authorise the coal-fired power project.

Judgment: The Gauteng High Court set aside the Minister's decision dismissing Earthlife's appeal and remitted the matter for reconsideration, requiring consideration of the climate-change impact assessment and public comments.

Legal Principle/Ratio Decidendi: The Court held that climate-change impacts are relevant considerations under section 24O of NEMA. The absence of an express statutory provision specifically requiring a formal climate assessment did not mean climate consequences could be ignored.

Significance: The case became a major South African authority establishing that climate considerations form part of lawful environmental decision-making for carbon-intensive energy projects.

4. Sustaining the Wild Coast NPC v Minister of Mineral Resources and Energy [2022] ZAECMKHC 55

Facts: Environmental organisations and coastal communities challenged an exploration right associated with Shell's proposed seismic survey along South Africa's southeast coast for offshore oil and gas exploration.

Legal Issue: The Court considered whether the exploration right had been lawfully granted, including whether affected communities had been adequately consulted and whether relevant environmental considerations had been addressed.

Judgment: The Eastern Cape High Court reviewed and set aside the decision granting the exploration right.

Legal Principle/Ratio Decidendi: Energy-development decisions must comply with environmental legislation, lawful consultation requirements and administrative-law standards. Environmental decision-making must meaningfully consider the interests and rights affected by proposed resource development.

Significance: Although broader than climate change alone, the judgment demonstrates how environmental and community-rights litigation can directly affect fossil-fuel exploration projects, including whether those projects may proceed.

5. Effects on Energy Project Development

Climate litigation can influence an energy project at virtually every stage. Courts may review environmental authorisations, require additional environmental studies, scrutinise consultation processes or remit decisions to public authorities for reconsideration.

Developers therefore increasingly need to consider lifecycle greenhouse-gas emissions, climate resilience, cumulative impacts, reasonable alternatives, mitigation measures and meaningful public participation before investment and construction decisions become irreversible. In Earthlife Africa, for example, the Court recognised both emissions caused by the proposed plant and climate-related risks to it, including water scarcity in a water-stressed region.

Climate litigation consequently creates both legal and financial risk. Delayed authorisations, additional assessments, financing uncertainty and judicial review can substantially affect project viability.

6. Relationship with Administrative and Constitutional Law

Climate litigation is not an entirely separate branch of law. It operates through established fields such as constitutional law, environmental law and administrative law. Environmental authorisations constitute administrative decisions and may therefore be reviewed where legally relevant considerations are ignored or statutory requirements are not properly followed. Earthlife Africa illustrates this interaction between NEMA, constitutional environmental protection and administrative review.

7. Conclusion

Climate litigation has become an important legal mechanism affecting energy infrastructure in South Africa. Earthlife Africa demonstrates that climate-change impacts are legally relevant to environmental authorisation of carbon-intensive power projects, while Sustaining the Wild Coast shows the broader capacity of environmental and community-rights litigation to reshape fossil-fuel development. Together, these cases demonstrate that modern energy projects must be evaluated not only according to their capacity to produce energy, but also according to their environmental consequences, climate implications, procedural legality and effects on affected communities.