NGOs oppose Eskom’s gas power station proposal in Richards Bay

Civil society organisations have taken legal action to halt the construction of a proposed 3 000MW gas-to-power plant in Richards Bay by Eskom.

Despite being denied leave to appeal by the Pretoria High Court, the South Durban Community Environmental Alliance (SDCEA) and groundWork, supported by Natural Justice and the Green Connection, have filed papers in the Supreme Court of Appeal (SCA) to challenge the power utility’s plans.

The gas plant has been criticised for its potential environmental impact and reliance on fossil fuels.

The civil society organisations have asked the Pretoria High Court to set aside the environmental authorisation granted to Eskom for the construction of the power plant.

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Although Judge Anthony Millar of the High Court ruled that the public participation process leading to the authorisation was insufficient, the application to have it set aside was dismissed.

SDCEA and groundWork applied to the Pretoria High Court for leave to appeal. The hearing took place on 17 January. Judge Millar dismissed the NGOs’ application, saying another court would not come to a different conclusion.

Last month, SDCEA and groundWork submitted papers to the SCA, seeking permission to appeal on two grounds.

Firstly, they argue that the appeal has a reasonable chance of success, and secondly, that the judgment carries significant implications for how South Africa addresses the challenges of climate change and long-term energy generation, particularly in tackling energy poverty.

 The organisations are urging the SCA to hear their case due to these compelling reasons.

Backstory

In December 2019, Eskom was authorised to construct the power plant, but construction has yet to commence. The proposed gas-to-power plant would generate up to 3 000MW of energy, fuelled by gas supplied through a pipeline from a terminal at the Richards Bay Port.

SDCEA and groundWork applied for the environmental authorisation to be declared unlawful and set aside.

They argued that there was an inadequate assessment of the climate change impacts of the project, despite the judgment of Earthlife Africa stating that climate change impacts must be assessed before issuing an environmental authorisation for a proposed project.

A crucial aspect of their challenge was that the impacts of gas that escaped en route to the facility (fugitive emissions) was not considered.

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Their findings included evidence from Professor Robert Howarth of Cornell University which showed that using natural gas (most of which is methane) to generate electricity would have worse climate change impacts than using coal, if more than 2.8% of the methane leaked before being burned in the power plant.

Organisations argued that the assessment done for the gas-to-power plant was illegal because it did not properly consider renewable energy as a viable alternative to gas.

They also said that the assessment did not analyse the need and desirability of the plant well enough, which could end up costing South Africa a lot in the long run.

They also found that the assessment didn’t properly consider the total impact of the project.

The organisations further said that it was crucial to note that the public participation process had significant flaws as it excluded many communities. This was because none of the communication during the process was conducted in isiZulu, which is the home language of the majority of people in the area.

Judgment and leave to appeal

On 6 October 2022, the Pretoria High Court dismissed the review application, but did grant ancillary orders to the effect that the decision to grant the environmental authorisation should be published in isiZulu and the communications in future EIAs for the gas terminal and pipeline should also be in isiZulu.

On dismissal, the court awarded costs to SDCEA and groundWork, even though they had been unsuccessful, because they had had “brought to the fore the deficit in the public participation process – an essential element central to the legitimacy of the entire application process”.

SDCEA’s Tanica Naidoo confirmed that both the SDCEA and groundWork then applied for leave to appeal the dismissal. “The arguments were heard on 17 January 2023 and the judgment handed down the very next day, 18 January 2023, which dismissed the leave to appeal,” she said.

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SDCEA and groundWork have now petitioned the Supreme Court of Appeal.

“Public participation is an integral part of any EIA and failure to conduct proper and thorough public participation processes will result in many communities not being consulted, communities that will be hit the hardest by these proposed gas-to-power developments.

“We work with communities so they can be aware of all the outcomes, alternatives and choices they have.

“Renewable energies need to seriously be considered, instead of just granting these gas companies approval to negatively add to climate change. Renewable change, which can only be achieved by not granting these non-renewable, green-washed companies access to our shores or land,” Naidoo said.

GroundWork’s Yegeshni Moodley said that the people of Richard’s Bay have suffered environmental damage from polluting developments for decades. She said that pursuing gas was a backwards step for the energy transition.

“Let’s put our resources in the hands of communities by pursuing solar panels for every home, making clean, renewable energy accessible to the communities they surround, and including democracy in our energy decisions and choices,” she said.

Compiled by Devina Haripersad