Off to a promising start? Climate rule of law and the emerging role of courts in South Africa
17 January 2022
By Professor Ademola Oluborode Jegede, Professor of Law, School of Law, University of Venda, South Africa
Climate change is not just a pressing global environmental challenge. Efforts to address its adverse consequences also raise serious issues for law and politics. Whether the rule of law can assist in responding to this state of affairs is the subject of ongoing debate. The environment was linked to the rule of law in UNEP Decision 27/9, recognising that it plays an essential role in reducing environmental problems and requires all stakeholders to increase the effectiveness of institutions, laws and enforcement mechanisms in tackling environmental challenges.
As well as an environmental catastrophe, an unsafe climate is a threat to human rights and could widen economic inequality. The rule of law is thus vital to social stability and justice. In this respect, the principles underlying an environmental rule of law can inform a ‘climate rule of law’, which offers a conceptual and policy framework for strengthening climate change interventions amidst the pursuit of economic development. It can create normative standards to inform accountability for climate action and inactions. At the core of the rule of law and sustainability, as indicated in the Johannesburg Principles, sits the judiciary with the mandate to apply and uphold the law. However, fulfilling this role is daunting where states, while pursuing economic development objectives, are yet to fully embrace commitments under climate change pillar international instruments: United Nations Framework Convention on Climate Change (UNFCCC), Kyoto Protocol and Paris Agreement.
South Africa is a State party to climate change international pillar instruments. It has endorsed the United Nations Sustainable Development Goals (SDGs), and it guarantees environmental rights in section 24 of its progressive national constitution, which also requires that the environment be protected by legislative and ‘other measures’. National legislative enactments, including the National Environmental Management Act (NEMA), implement environmental rights. While section 38 of the Constitution allows various persons, including anyone acting in the interest of the public to enforce rights, section 39(1)(b) requires courts in South Africa to apply international law. The significance of this legal framework in constructing the role of civil society and the courts in ensuring a climate rule of law cannot be overstated. The constitutional framework will become even more important in the coming years, in view of the increasing wave of elites’ populism being expressed against climate interventions in South Africa.
Reasons for optimism regarding a climate rule of law in South Africa can be explained through the case of Earthlife Africa Johannesburg v Minister of Environmental Affairs (Thabametsi). The case shows the significance of an active civil society and vibrant court in insisting on climate rule of law in a case where, under the guise of pursuing economic development, state politics appear to clash with or trump commitments to climate interventions. At issue in Thabametsi was whether a climate-change impact assessment was a prerequisite for the authorisation of a proposal to build a 1200MW coal-fired power station to begin operation until 2061. The applicant, Earthlife Africa (‘Earthlife’), a non-profit organisation (NGO) and an interested party within the meaning of section 24(4)(v)(a) of NEMA and section 38(d) of the Constitution, contended that a climate-change impact assessment was included within the compulsory requirements of section 24O(1) of NEMA, and that coal-fired power stations are inappropriate for generating electricity since other forms of power generation are sustainable and less damaging to the environment. The legal argument of the applicant demonstrates the important role that litigants, and in particular civil society, play in articulating pro-climate arguments in relation to states’ unsustainable economic development projects.
In response, the respondents argued that no specific provision exists in South African legislation, regulations or policies mandating a climate-change impact assessment as a pre-requisite for environmental authorisation, and that the government is not bound by measures under international climate change instruments. In any event, they further contended, government must balance its commitments under such instruments with its development needs, which the proposed coal-fired power station sought to serve. The argument of the respondents demonstrates a typical struggle of states in balancing commitments to address climate change and the pursuit of developmental objectives. The tendency is often to prevaricate about climate change and commitments to address it.
In ruling that a climate impact assessment was necessary, the Court noted that South Africa contributes to global GHG emissions because of its mining and coal-intensive energy systems. To justify its conclusion, the Court referred to its mandate to apply international law under sections 39(1)(b) and 233 of the Constitution, and government documents such as the National Climate Change Response White Paper (White Paper) and legislation such as the Electricity Regulation Act. The Court’s approach suggests that policy and legislative documents are useful and relevant in determining the compatibility of state actions with its climate-related commitments under the law. Significantly, the court’s analysis in Thabametsi reinforces that judicial activism is required to address any tension that may arise between state’s genuine interest to pursue economic development and the global call for carbon emission reduction and energy transition. This is consistent with the position in the Johannesburg Principles that, for the protection of the environment to be taken seriously, the judiciary should ‘boldly and fearlessly implement and enforce applicable international and national laws…ensuring that the inherent rights and interests of succeeding generations are not compromised.’ This statement is no less important in disputes involving climate change.
The bold approach taken in Earthlife is already setting the tone for an emerging wave of climate litigation in South Africa. A notable case is African Climate Alliance and others v The Minister of Mineral Resources and Energy and others. In a pending petition at the High Court (at the time of writing), the applicants are challenging the state’s plans to procure 1500MW of new coal fired power stations, on the basis that these plans threaten the constitutional rights of present and future generations. This development shows that environmental NGOs are taking climate change litigation seriously in South Africa, which is imperative for enforcing a climate rule of law. More importantly, it signals that, in the coming years, the courts will be crucial institutions in clarifying and enforcing a climate rule of law in South Africa.
Image: "Symbol ..." by Tjeerd is licensed under CC BY 2.0
Climate Change and the Rule of Law
The Climate Change and the Rule of Law blog invites contributors to reflect on emerging issues and relations between climate change and rule of law.