April 13, 2024

the judges are trying to fill the gap

South Africa has many environmental laws, but none that specifically oblige government officials to consider the risks and impacts of climate change when approving new developments. In their research, environmental law experts Clive Vinti and Melanie Jean Murcott set out how judges are dealing with this gap in the law.

What are the gaps in the law?

The main gap is that no law specifically obliges companies that establish mines or build new projects, such as power plants, to carry out a climate change assessment before starting construction. A climate change assessment would look at how a proposed development would contribute to – or worsen – climate change. It would assess the extent to which development was sustainable in a time of climate change and how to mitigate the project’s effects on climate change. It would also have to take into account the capacity of communities and the environment to deal with and adapt to climate impacts.

South Africa’s constitution says that everyone has the right to an environment that is not harmful to health or well-being and to have the environment protected for the benefit of present and future generations. The environment includes the climate system.

Several environmental laws have been enacted (mainly since the end of apartheid and the adoption of the country’s constitution in 1996). There are gaps, however. There are some laws that specifically protect the climate system. All these laws have different functions. For example, the National Greenhouse Gas Emissions Reporting Regulations state that certain companies and state bodies must report their greenhouse gas emissions. None explicitly require government officials to consider the risks and impacts of climate change when approving new developments.

Other regulations require polluters in certain industries, such as coal mining and electricity production, to submit pollution prevention plans that show how they will reduce these emissions.

Four years ago, the country introduced a Carbon Tax Law that imposes a tax on certain polluters on their greenhouse gas emissions.

A climate change bill was introduced in 2018 but has not yet become law. Speculation is that this is due to the government’s commitment to the development of fossil fuels. If it becomes law, the government will be required to take climate action through a number of measures, including developing adaptation strategies and plans. Until the bill is signed into law, the government does not have an explicit legal mandate to comprehensively address climate change.

South Africa’s overarching environmental law is the National Environmental Management Act, 1998. This law requires that before carrying out activities that significantly affect the environment, environmental impact assessments must be carried out. These determine long- and short-term effects on the environment and inform whether government officials should grant permits that allow new developments. The law says that all “relevant considerations” must be taken into account, but it is not clear that the impacts and risks of climate change must be assessed. This is where the courts have begun to play a gap-filling role.

How are judges developing climate change legislation?

Courts have a constitutional mandate to interpret and apply the law in a way that protects the environment, pursues social justice and promotes dignity and equality for all people in South Africa. Some recent rulings promote climate action. These rulings set the precedent that it is illegal for officials to authorize certain developments without assessing climate risks and impacts.

Protests in Cape Town against Wild Coast oil and gas research.
Ashraf Hendricks/GroundUp

The 2017 Gauteng High Court case known as Earthlife Africa started this trend. In that case, the judge concluded that government officials did not consider the effects of climate change when they gave the green light for a new coal-fired power plant. Officials were forced to take climate risks and impacts into account and reconsider their decision.

Following this ruling, decisions on spatial planning and water use were considered illegal due to a lack of consideration of the impacts and risks of climate change. In 2022, a controversial decision to allow oil and gas exploration along South Africa’s Wild Coast was ruled illegal. Development has been stopped. The court argued that the decision not only excluded affected communities and ignored their cultural practices, but also that an assessment of climate change was not made.

These judgments develop the duty to consider climate change.

Courts protecting the climate system and people

The judgments relied on human rights and constitutional values ​​to interpret the National Environmental Management Law and other statutes. In these cases, the courts fulfilled their constitutional mandate to interpret environmental laws in ways that protect the climate system and pursue social justice. In doing so, they demand that government officials and prosecutors take climate action.

Our research describes this approach as aligned with transformative environmental constitutionalism, where judges adopt a social justice framework in environmental disputes. The judgments reflect that protecting the environment also means protecting people, especially the most vulnerable in society, who are least able to cope with adverse environmental impacts such as climate change.

Read more: Shell’s planned seismic survey triggered a storm in South Africa. Here’s an explainer

Transformative environmental constitutionalism encourages judges to recognize how climate change undermines the flourishing of ecological systems, which is linked to human flourishing.

What this approach offers ordinary people is a rejection of the idea that protecting the environment means advancing the needs of an elite minority who benefit from pristine environments. It helps reposition the environment as a place where everyday people live, work, rest, play and learn. This supports what grassroots activists have been asserting for years: that the fights for justice for the environment, justice for people, and justice for the climate system are interconnected.

The rulings set precedents that empower people to insist on the impact of climate change and assess the risks. Without having made these assessments, prosecutors and the government face authorizations declared illegal and invalid by the courts because they are inconsistent with the constitution, South Africa’s supreme law.

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