189. CLIMATE CONSTITUTIONALISM AND ENERGY REGULATION

1. Introduction

Climate constitutionalism refers to the growing influence of constitutional principles, rights and governmental duties on climate-change policy and energy regulation. In South Africa, climate governance is shaped by the Constitution, particularly the environmental right in section 24, which requires an environment that is not harmful to health or well-being and demands reasonable legislative and other measures protecting the environment for present and future generations. Energy regulation must therefore increasingly reconcile electricity security, economic development, environmental protection and decarbonisation.

2. Constitutional Foundation

Section 24 establishes an important constitutional foundation for climate regulation. It requires the State to prevent ecological degradation, promote conservation and secure ecologically sustainable development while allowing justified economic and social development.

Other constitutional principles reinforce this framework. Section 7 requires the State to respect, protect, promote and fulfil constitutional rights, while section 33 guarantees lawful, reasonable and procedurally fair administrative action. Consequently, decisions concerning coal-fired power stations, renewable-energy projects, electricity tariffs, transmission infrastructure and energy-transition policies must comply with constitutional and administrative-law requirements.

3. Climate Constitutionalism and Energy Regulation

Climate constitutionalism transforms energy regulation from a predominantly economic exercise into a constitutional governance function. Energy regulators and public authorities must consider:

Environmental sustainability in electricity planning;

Intergenerational equity in energy policy;

Public participation in major energy decisions;

Just transition considerations for affected communities and workers;

Climate-related impacts in environmental authorisations;

Reasonableness and rationality of regulatory decisions; and

Access to reliable and affordable electricity.

The constitutional framework therefore requires balancing decarbonisation against South Africa's developmental and energy-security needs.

4. Environmental Authorisation and Climate Considerations

Climate constitutionalism has been particularly significant in litigation involving coal and fossil-fuel projects. Authorities cannot necessarily treat climate impacts as irrelevant merely because a project complies with conventional environmental requirements. Climate change may form part of the broader environmental assessment required by the constitutional and statutory environmental framework.

This approach encourages regulators to integrate greenhouse-gas emissions, cumulative environmental effects, climate vulnerability and long-term sustainability into energy decision-making.

5. Important Case Law

Earthlife Africa Johannesburg v Minister of Environmental Affairs

Citation: Earthlife Africa Johannesburg v Minister of Environmental Affairs and Others [2017] ZAGPPHC 58; 2017 (5) SA 227 (GP).

Facts: Earthlife challenged environmental authorisation for the proposed Thabametsi coal-fired power station, arguing that climate-change impacts had not been properly considered.

Legal Issue: Whether climate-change impacts had to be assessed when deciding whether to grant environmental authorisation.

Judgment: The High Court held that climate-change impacts were relevant considerations and that the environmental assessment process was deficient because climate impacts had not been adequately addressed.

Legal Principle/Ratio Decidendi: Climate change is a relevant environmental consideration under South African environmental law and must be meaningfully incorporated into decision-making.

Significance: The case is a cornerstone of South African climate constitutionalism, demonstrating that energy projects must be assessed against broader environmental and constitutional obligations.

Fuel Retailers Association of Southern Africa v Director-General: Environmental Management

Citation: 2007 (6) SA 4 (CC).

Facts: The dispute concerned environmental authorisation for a proposed petrol station.

Legal Issue: Whether decision-makers were required to consider broader socio-economic and environmental consequences.

Judgment: The Constitutional Court emphasised that sustainable development requires an integration of environmental protection with socio-economic considerations.

Legal Principle/Ratio Decidendi: Environmental decision-making must pursue sustainable development, requiring competing interests to be integrated rather than considered in isolation.

Significance: The principle applies directly to energy regulation, where electricity affordability, energy security, economic development and climate protection frequently conflict.

Minister of Environmental Affairs and Another v Deadly Environmental Affairs and Others

Citation: Minister of Environmental Affairs and Another v Deadly Environmental Affairs and Others [2012] ZACC 6.

Facts: The litigation concerned environmental authorisation and the obligations of environmental decision-makers.

Legal Issue: The extent to which environmental considerations must inform governmental decisions.

Judgment: The Constitutional Court reinforced the importance of environmental governance within the constitutional framework.

Legal Principle/Ratio Decidendi: Environmental protection is constitutionally significant and must be integrated into governmental decision-making.

Significance: The judgment supports the broader constitutionalisation of environmental and climate considerations within energy governance.

6. Conclusion

Climate constitutionalism increasingly determines how South Africa regulates electricity generation, transmission, environmental authorisation and the energy transition. Section 24 provides the central constitutional foundation, while administrative justice, public participation, sustainable development and socio-economic rights reinforce it. The jurisprudence demonstrates that energy security cannot be pursued independently of environmental sustainability. Future energy regulation must therefore integrate climate science, constitutional rights, just-transition principles and long-term ecological interests. Climate constitutionalism ultimately ensures that South Africa's energy system remains not only reliable and economically viable, but also constitutionally legitimate and environmentally sustainable.