PUBLIC LAW REMEDIES IN CLIMATE-RELATED DISPUTES

1. Introduction

Public law remedies in climate-related disputes are judicial measures used to control unlawful governmental action or inaction concerning climate change. Climate litigation increasingly challenges environmental authorisations, energy policies, emissions decisions, infrastructure approvals, and failures by public authorities to consider climate risks.

In South Africa, climate-related public law remedies derive principally from the Constitution of the Republic of South Africa, 1996, the Promotion of Administrative Justice Act 3 of 2000 (PAJA), the National Environmental Management Act 107 of 1998 (NEMA), and constitutional principles of legality, rationality and accountability. Section 24 of the Constitution protects the right to an environment that is not harmful to health or well-being and requires reasonable legislative and other measures to protect the environment for present and future generations.

2. Judicial Review

The most important remedy is judicial review of administrative action. Under PAJA, courts may review governmental decisions where authorities exceed their powers, follow unfair procedures, ignore relevant considerations, act irrationally or make materially unreasonable decisions.

In climate disputes, judicial review may therefore challenge an environmental authorisation where the decision-maker fails properly to consider greenhouse-gas emissions, climate vulnerability, cumulative impacts, mitigation measures, or relevant environmental policies.

Section 8 of PAJA permits a court to grant any order that is just and equitable, including setting aside administrative action and remitting the matter for reconsideration.

3. Constitutional and Legality Remedies

Where PAJA does not apply, exercises of public power remain subject to the constitutional principle of legality. Government conduct must have lawful authority and must be rationally related to the purpose for which the relevant power was granted.

Courts may also issue declaratory orders, identifying governmental conduct as unconstitutional or unlawful. Depending on the circumstances, they may grant mandatory orders requiring authorities to perform legal duties or interdicts preventing unlawful conduct. Constitutional remedies are governed by the broader requirement of just and equitable relief.

4. Environmental Public-Interest Litigation

Climate litigation benefits from broad standing rules. Section 38 of the Constitution permits litigation by persons acting in their own interests, on behalf of others, in the public interest, or as associations representing their members. Section 32 of NEMA similarly facilitates environmental enforcement.

This enables environmental organisations and communities to challenge government decisions even where climate damage affects large populations rather than one individual claimant.

5. Case Law

Earthlife Africa Johannesburg v Minister of Environmental Affairs and Others [2017] ZAGPPHC 58; [2017] 2 All SA 519 (GP)

Facts: The case concerned environmental authorisation for the proposed 1,200 MW Thabametsi coal-fired power station near Lephalale. Earthlife Africa argued that the authorities had failed properly to assess the project's climate-change impacts before granting authorisation.

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

Judgment: The High Court held that climate impacts were relevant under NEMA. It found material defects in the Minister's treatment of the issue and set aside the Minister's ruling on Earthlife's climate-related ground of appeal, remitting that issue for reconsideration.

Legal Principle/Ratio Decidendi: Environmental decision-making must properly consider relevant climate-change impacts. A decision taken without adequate consideration of legally relevant environmental consequences may be vulnerable to administrative-law review.

Significance: The case established climate impact assessment as an important component of South African environmental decision-making and illustrates how review, setting aside and remittal operate as climate-related public law remedies.

Trustees for the Time Being of GroundWork Trust v Minister of Environmental Affairs (Deadly Air litigation)

Facts: Environmental organisations challenged governmental failures concerning severe air pollution in the Highveld Priority Area, arguing that persistent pollution threatened constitutional environmental rights.

Legal Issue: Whether government had adequately fulfilled its legal obligations to address harmful air pollution under constitutional and environmental legislation.

Judgment: The litigation demonstrated that environmental rights can support judicial intervention where public authorities fail adequately to implement statutory environmental protections.

Legal Principle/Ratio Decidendi: Constitutional environmental protection may impose meaningful obligations on public authorities, and courts can scrutinise governmental failure to implement legally required environmental measures.

Significance: The case illustrates the importance of declaratory and mandatory relief where environmental harm results from governmental omission rather than a single administrative authorisation.

6. Choosing an Appropriate Remedy

Courts must design remedies that address the particular illegality while respecting the constitutional separation of powers. A court may set aside an authorisation, remit a decision for reconsideration, suspend invalidity, issue an interdict, declare conduct unlawful, or require performance of a statutory duty.

In Earthlife Africa, the court emphasised proportionality in remedy design and selected a remedy directed specifically at the defective climate-related appeal process rather than simply restarting the entire authorisation procedure.

7. Conclusion

Public law remedies are central to climate accountability because they ensure that governmental climate and energy decisions remain subject to the Constitution, administrative justice, legality, rationality and environmental legislation. Judicial review, declaratory relief, interdicts, mandatory orders, setting aside and remittal allow courts to correct unlawful decisions while leaving substantive policy choices primarily to democratically accountable institutions. Climate litigation therefore uses public law not merely to compensate for environmental harm, but to ensure lawful, transparent and constitutionally compliant climate governance.