A new lawsuit seeks to prevent the expansion of coal generation in South Africa.
Last month, the Centre for Environmental Rights (CER), a South African environmental law organization and a close partner of Earthjustice, filed a landmark constitutional lawsuit in the North Gauteng High Court on behalf of three civil society organizations against the South African government. The suit demands that the government abandon its plans to build new coal-fired power generation.
The Cancel Coal case is, at its heart, a lawsuit tackling climate change that seeks to compel the South African government to do its part to address the climate crisis by reducing coal-related emissions. South Africa (SA) is the world’s seventh largest consumer of coal, using the fuel to account for about 80% of its electricity production. Largely because of its coal consumption, South Africa is ranked 13th in the world in CO2 emissions. In addition, South Africa’s coal economy is a major environmental justice issue because the burdens of mining and burning coal in South Africa are disproportionately borne by the poor and exacerbated by the unjust legacies left behind by Apartheid.
Earthjustice Senior Attorney Ramin Pejan spoke with Nicole Loser, Program Head of Pollution and Climate Change at CER, about the Cancel Coal case.
What is the Cancel Coal case about?
This is youth-led climate change litigation, and a constitutional challenge of the South African government’s plans to procure 1500 MW of new coal-fired power electricity, the equivalent of three to four large power plants. The case is brought on behalf of environmental and climate justice organizations, the African Climate Alliance, Vulkani Environmental Justice Movement in Action, and groundWork.
The applicants are asking the court to put a stop to the government’s call for the development of this new coal capacity. They argue that building new coal power plants is incompatible with global efforts to prevent a climate crisis and that coal-fired power plants unjustifiably threaten human health and the environment. For these reasons, this new coal development threatens the constitutional rights of the people of South Africa, including the right to a healthy environment, the best interests of the child, and the rights to life, dignity, and equality. These constitutional violations will disproportionately impact young people and women.
The applicants further argue that there is no reasonable and justifiable reason to build new coal power plants given that cleaner, less harmful, renewable energy is both feasible and cheaper. South Africa is at a perfect juncture to move away from its reliance on polluting fossil fuels, including gas.
What would it mean for South Africa to do its fair share to mitigate climate change?
A “fair share” response to climate change is about whether a country is contributing to the global effort to reduce greenhouse gas (GHG) emissions in adequate proportion to its national capacity and responsibility. The idea is that South Africa would have different historical responsibilities and capacity to address climate change than, for example, the United States. But a fair share approach does not mean smaller, more developing countries, like South Africa, should not do anything. We used experts from the Climate Equity Reference Project to help determine South Africa’s fair share contribution to preventing the climate crisis.
A report by the University of Cape Town’s Energy Systems Research Group confirms that South Africa’s greenhouse gas emissions would need to be reduced by over 20% from its current levels by 2030, at a minimum, to be on a pathway to avoid temperature increases above 1.5°C.
At a practical level, and because SA’s electricity sector is the biggest contributor to SA’s GHG emissions despite the existence of feasible and cheaper alternatives, SA doing its fair share means abandoning plans to develop new coal power capacity. The government’s plans to develop 1500 MW of new coal capacity are not aligned with SA’s fair share obligations.
How are you bringing human stories and voices into the case?
The applicants in the case represent, and are comprised of, youth climate activists and coal-affected community activists. The activists have been working for several years to oppose harmful decisions by the government that would expose their communities to pollution and the devastating impacts of the climate crisis. Our youth in particular are most vulnerable to the climate crisis. In their lifetimes, they will experience some of the worst consequences of our global failure to act. The case seeks to tell their stories and is supported by the #CancelCoal Campaign.
The court application is supported by statements submitted by children and young people who are affected by climate change and are concerned about the future impacts of climate change throughout their lives and beyond. It is also supported by affidavits from people who live near coal mines and coal-fired power stations. They explain the devastating effects of coal on their health and wellbeing. This goes to show that, quite contrary to the claims persistently made by the government around economic benefits of developing coal, SA’s coal development plans would not bring about those benefits.
What do you see as some of the big challenges in South Africa in the fight against climate change?
The war against coal, and fossil fuels in general, is far from over in South Africa — this remains a big challenge in the fight against climate change.
Not only do we need to stop the building of new coal plants and mines, we also need to ensure that our existing coal power is phased out in line with a just-transition plan as expeditiously as possible. It is crucial that gas does not step in to take the place of coal, and that legal and policy barriers the government has enacted to clean renewable alternatives are removed. Further, we need to ensure that our response to climate change is capacitated, well-resourced, and based on robust and enforced legal obligations.
What happens next in the case?
We now await notice from the government whether they want to oppose the case. The Energy Regulator and Minister of Energy will need to make available in December all the documents that were relied on for their decision to approve 1500 MW of coal — though they have sought an extension to January 2022, owing to the volume of these documents. The applicants will then have an opportunity to amend and/or supplement their court papers. The government respondents will have to notify the applicants if they intend to oppose the relief sought. An exchange of court papers would follow.
How can people around the world (or Earthjustice’s supporters) follow and support the case?
Some of the further materials and experts reports that have been published in the preceding months in support of the case:
Ramin works in the International Program in San Francisco. He has previously worked for the United Nations Office of the High Commissioner for Human Rights, United Nations Environment Programme, and New York City Law Department’s Environmental Law Division.
The International Program partners with organizations and communities around the world to establish, strengthen, and enforce national and international legal protections for the environment and public health.