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‘Not without a fight’ — young activists take Mantashe, Nersa to high court over new coal power plans

28 July 2023: Medupi Power Station as seen at night. (Photo: Daylin Paul)

10 Oct 2024

The Cancel Coal campaign’s landmark case reached the Pretoria High Court this week when youth-led environmental groups challenged the government’s plans for new coal-fired power stations.

‘Young people are done waiting for decisions to be made without us,” said African Climate Alliance activist Gabriel Klaasen.

“I look forward to seeing what the government does, because we are not going down without a fight.”

Outside the Pretoria High Court on Wednesday, 9 October, Klaasen was among the young activists supporting the landmark Cancel Coal case, being heard for the first time.

The #CancelCoal court case is a constitutional challenge against the government’s plans to develop 1,500 megawatts (MW) of new coal-fired electricity generation, which is set out in the last finalised Integrated Resource Plan (IRP 2019).

The new coal was determined by the then mineral resources minister Gwede Mantashe, and was concurred with by the National Energy Regulator of South Africa (Nersa) in 2020. Both are respondents in this case.

The case is South Africa’s first youth-led climate change litigation, as environmental and climate justice groups – African Climate Alliance, Vukani Environmental Justice Movement and groundWork – represented by the Centre for Environmental Rights (CER), brought a combined constitutional challenge in 2021 against the minister and Nersa’s decisions to procure new coal.

The applicants argue that the government’s plan threatens several constitutional rights, including the right to an environment not harmful to the health and well-being of present and future generations, as well as the rights to life, dignity, equality, and the best interests of the child.

Climate activists demonstrate outside the Pretoria High Court in support of the legal challenge against the South African government’s new coal power plans on 9 October 2024. (Photo: Julia Evans)

coal School children stop by the Cancel Coal demonstration outside the Pretoria High Court on 9 October 2024. (Photo: Julia Evans)

Applicant’s argument

The applicants argue that new coal development will harm the health and well-being of present and future generations. Sesi Baloyi SC, representing the CER, asserted that by including new coal in the IRP, the government failed to consider the severe impacts on constitutional rights, especially children’s rights.

Key points in their argument:

Harmful emissions: Coal-fired power stations emit carbon dioxide and other pollutants that contribute to climate change and air pollution, which violates people’s right to health and an environment that is non-harmful. The CER’s research report on the Impacts of Coal-Related Air Pollution on Children’s Environmental Rights found that air pollution contributes to respiratory illnesses and long-term health issues like cancer; and

Exacerbates climate change: In oral arguments in court the applicants cited an expert report by renowned climate scientists warning that failure to curb emissions will result in extreme weather, reduced agricultural output and biodiversity loss. “The climate will continue to change throughout the 21st century, to a degree mostly determined by human actions and the policies that guide them,” the report noted.

The founding affidavit noted that the Intergovernmental Panel on Climate Change found that in the best-case scenario – where global temperature is limited to 1.5°C above pre-industrial levels (we’re currently at 1.1°C) – no new coal-fired power stations are built, and we reduce emissions by 45% by 2030.

Gabriel Klaasen, African Climate Alliance activist, outside the Pretoria High Court. (Photo: Julia Evans)

Climate activists and affected Mpumalanga residents demonstrate outside the Pretoria High Court. (Photo: Julia Evans)

Disproportionate impact on children

When the applicants were presenting their case Judge Cornelius van der Westhuizen asked why their argument centred on the interest of children specifically.

“When it comes to conversations about our energy future, it is important that we as young people have a say in where our power comes from,” said Klaasen, who is part of African Climate Alliance, a youth-led organisation advocating for environmental and social justice and the first applicant in this case.

“Young people will be the most affected, because the decisions we make today will impact us tomorrow, and for years and generations to come.”

The applicants argue that while the development of new coal would affect everyone, the impacts of the inclusion of new coal-fired power will be experienced disproportionately by children and future generations, who will live with the consequences for decades to come.

A 2017 air quality study by health expert Mike Holland found that air pollution from coal-fired power stations killed more than 2,200 South Africans every year, and caused thousands of cases of bronchitis and asthma in adults and children annually.

Outside the Pretoria High Court on Wednesday, Mbali Mathebula told Daily Maverick about her first-hand experience of growing up and living on the coal belt in Emalahleni, Mpumalanga.

“The reason I joined the case is because I’m sick from the air pollution. And after my kids were born they were fine, but after some time they got sick,” she said.

Her children, six and 10 years old, have asthma, and she said that during winter – when the power stations are pumping even more – her children have missed two or three weeks of school due to illness.

Climate protesters outside the Pretoria High Court which is hearing the legal challenge against the government’s new coal power plans. (Photo: Julia Evans)

Mathebula, who struggles with sinus problems and itchy eyes herself, says that whenever they go out of town to visit relatives her kids get better.

A recent collection of papers published in the Journal of Global Health found that children are particularly susceptible to climate-related health issues because of their developing immune systems and greater need for nutrient-rich food and water.

Read more: How climate change will impact your lifespan: Part 2 (children and teens)

CER’s impact report also found that coal’s role in climate change exacerbates the situation, leading to increased temperatures, water scarcity and frequent extreme weather events, all of which negatively affect children’s access to education and healthcare, worsen food insecurity and cause emotional distress.

An expert affidavit provided by clinical psychologist Dr Garret Barnwell, commissioned by CER, identified a range of mental health issues associated with climate change, including depression, anxiety, post-traumatic stress and feelings of hopelessness. He noted that children may experience impaired concentration and emotional overwhelm, leading to destructive behaviours or self-soothing through harmful means such as substance abuse.

“The government’s choice to not adequately avert the mental health impacts of climate change contributes to the psychological experience of institutional betrayal and secondary trauma for current and future generations,” Barnwell said.

Mathebula said that when she first realised things weren’t right she went to a doctor at the local clinic who had just moved to Mpumalanga from Nelspruit in Limpopo.

“She finally told me the truth, that the asthma and sinus problems are caused by air pollution from the mines and coal-fired power stations,” she said.

She said that when this doctor moved to Emalahleni her children started getting sick.

Asked how she feels about this revelation, Mathebula said that she considers herself fortunate that she’s now aware of what’s making her kids sick, because she thinks there are a lot of people in her community who have no idea, and who don’t have the information on what’s making them sick.

“All I wish is for people to stand up for their rights, and to be aware of what’s happening in our communities.”

climate action Air pollution experienced by families and children in Mpumalanga is a violation of South Africa’s constitutional right to a healthy environment. (Photo: Gallo Images/City Press/Khaya Ngwenya)

New coal power isn’t needed

“Our legacy of addiction to coal needs to be studied, because it’s that clear profit is being put before people,” Klaasen said.

An expert report on the impacts of procuring 1,500MW of new coal, by energy researcher Jesse Burton from UCT’s Energy Systems Research Group, forms a significant part of the applicants’ argument.

The report found that new coal power is not necessary for energy security in South Africa and is more costly than renewable alternatives.

Read more: ‘Science proved it, IPP bid windows confirmed it’ – Renewables drive down electricity costs, says Ramokgopa

The report found that incorporating new coal plants would incur additional costs of at least R23-billion, leading to a 0.5% increase in electricity prices. This investment would also increase cumulative greenhouse gas emissions by 289 Mt CO2-equivalent by 2050 compared with an optimal build plan that excludes coal.

Contrary to claims that coal creates jobs, the report finds that a renewable-dominated energy plan would generate more employment. Specifically, forcing new coal into the build plan could result in about 25,000 job losses by 2030.

Respondents’ argument

The minister and Nersa’s responding arguments were legalistic. Key points included:

The IRP is merely a policy decision, not an administrative action, and is thus not reviewable: The respondents argued that under the Energy Regulation Act, the minister may make regulations regarding new generation, and the types of sources and the percentage mix of energy generated. But they noted that the Energy Regulation Act does not require the minister’s power to compile the IRP and neither does it state the requirements for its composition. They argued that the minister’s powers to compile and publish the IRP are not derived from the Energy Regulation Act, but the minister’s powers to do so are policy-making powers as the executive authority responsible for energy;

There is no evidence that the IRP and the determination violate the Constitution: They argued that a constitutional violation can only happen at the point when the procurement of coal has begun. Right now the applicants are assuming there will be a violation when it occurs;

There is a legitimate purpose in the introduction of the 1,500MW of coal-fired power: Therefore it is not just and equitable for the court to interfere with the government’s planning at this stage;

Nersa’s legal representation emphasised that they did receive comments from youth during their public consultation period, which they took into account; and

High-efficiency, low-emissions technology is stipulated as a condition in the new IRP, and concurred by Nersa.

The Medupi Power Station at night on 28 July 2023. (Photo: Daylin Paul)

‘Clean coal is a myth’

Both the minister and Nersa emphasised in their main argument that, as stipulated in the IRP, and as agreed by Nersa, all new coal power projects must be based on high-efficiency, low-emission technologies and other cleaner coal technologies.

The applicants’ issue with this is that the minister didn’t do an assessment on what type of high-efficiency, low-emission technologies would be used and their impact, but simply did desktop studies.

The CER commissioned their own report on clean coal technology. Written by consulting engineer Dr Ranajit Sahu, it analyses the feasibility of various proposed high-efficiency, low-emission (HELE) technologies, including ultra-supercritical, circulating fluidised bed, integrated gasification combined cycle, and underground coal gasification.

Sahu concluded that the IRP’s proposed timeline for new coal generation is unrealistic, and he argues that “clean coal” is a myth due to the inherent emissions associated with all stages of the coal supply chain, from mining to ash disposal. He also criticises the IRP’s lack of detail regarding specific technology choices, locations and pollution control measures.

In court on Wednesday, Baloyi, for the CER, read out the last paragraph of Sahu’s statement: “I want to stress that contrary to implications in the 2019 IRP and the Ministerial determination, there is simply no such thing as ‘clean coal’, regardless of whether HELE technologies are used to minimise air emissions from coal (or gas derived from coal).”

Both parties finished presenting their arguments on Thursday, 10 October. Judgment was reserved. DM

https://www.youtube.com/watch?v=REeWvTRUpMk

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