Climate litigation by civil society results in new guideline on climate change impact assessments

The draft guideline signals an important move towards considering climate change in environmental decision-making. However, government is urged to broaden and strengthen the scope of the guideline.

29 July 2021 - Civil society groups have welcomed a proposed new guideline for assessing climate impacts of new developments. The publication of this guideline is one of the outcomes of precedent-setting climate litigation by civil society groups challenging new climate damaging developments. The guideline is a step in the right direction to avoid further emissions in line with South Africa’s commitments under the Paris Climate Agreement, loss of life due to climate change and also to prepare for the risks posed by climate change to new developments.

The Centre for Environmental Rights (CER), on behalf of environmental justice groups groundWork and Earthlife Africa, have submitted a written response to the draft National Guideline for the Consideration of Climate Change Implications in Applications for Environmental Authorisations, Atmospheric Licences and Waste Management Licences. The CER, groundWork and Earthlife form part of the Life After Coal Campaign.

The comments urge government to rely on science and the law to provide a firm benchmark against which greenhouse gas (GHG) emissions should be reduced.

Given the far-reaching nature of the climate crisis and its impacts, government is also urged to publish similar guidelines for the consideration of climate change impacts for a much broader array of licences and decision-making processes – particularly water use licences.

“The draft guidelines now make clear that a mere cursory calculation of a project’s GHG emissions – as has historically been seen in climate assessments in EIAs - is not adequate. It requires a far more detailed assessment of not only direct emissions but also indirect and cumulative emissions, as well as potential adaptation measures that may be required, and an assessment of the ways in which a project might be impacted by climate change,” notes Brandon Abdinor, climate advocacy lawyer at the CER.

Areas in which the guideline must be improved include:

• The draft guideline currently direct that a proposed development’s carbon footprint should be assessed against South Africa’s nationally determined contribution (NDC), or Paris Agreement emissions reduction targets. However, this will be inadequate in cases where the country’s NDC is insufficient – as is currently the case - to meet the goal of limiting warming to 1,5°C above pre-industrial levels.
• The draft guideline fails to require an assessment of the external costs of the climate impacts of proposed projects. The submission recommends that the guidelines include the social costs of carbon and ensures that the externalised costs of climate change aggravating activities are taken into account. Climate change causes socio-economic and health impacts, and these impacts and their costs are often borne unfairly by society.
• Issues of equity and climate justice also need to be given more prominent focus in the guidelines. It is well known that the climate crisis has disproportionate effects on certain groups in society – such as children, women, communities living in rural or poor areas.

The guidelines will bring welcome clarity to the critical importance of giving consideration to current and future climate impacts in government decision-making.

Examples of important precedents set by civil society litigation on climate impacts include:

• the successful Thabametsi High Court judgment in 2017, which confirmed the need for climate impacts to be assessed as part of an environmental impact assessment for the proposed Thabametsi coal plant, and
• the 2020 decision by the Water Tribunal (in an appeal brought by the Centre for Environmental Rights on behalf of groundwork) that scrapped the water use licence for the proposed Khanyisa coal-fired power station, and confirmed the need to assess climate impacts in water use licence application processes as well.

 

Life After Coal/Impilo Ngaphandle Kwamalahle is a joint campaign by Earthlife Africa Johannesburg, groundWork, and the Centre for Environmental Rights that aims to discourage the development of new coal-fired power stations and mines; reduce emissions from existing coal infrastructure and encourage a coal phase-out; and enable a just transition to sustainable energy systems for the people.