Court upholds environmental authorisation for Eskom gas plant

The North Gauteng High Court in Pretoria has dismissed a bid to have the environmental authorisation for Eskom’s proposed gas power plant in Richards Bay overturned, but has taken aim at the deficient public participation process.

In the judgment handed down by Judge Anthony Millar last week, the court dismissed a landmark application brought by two environmental justice NGOs – the South Durban Community Environmental Alliance and Groundwork – to review and set aside the Department of Environmental Affairs’ decision to grant Eskom’s proposed power plant an environmental authorisation.

Eskom was granted environmental authorisation in December 2019 for the combined cycle gas power plant intended to be fuelled by gas via a pipeline that will be installed from the Richards Bay Port and which will supply up to 3 000MW of energy. Construction on the project has not yet started.

The judgment found six out of seven grounds for review of the decision were without merit and could not succeed.

These grounds related to inadequate climate change impact assessment; failure to consider renewable alternatives; and the failure to consider cumulative environmental impacts.

The court did, however, find the public participation process to be deficient, as communication was published in English only and not isiZulu – a language spoken by 79% of the community that would be  directly affected by the proposed plant.

Noting the failure to advertise and notify the public in a language other than English, the judgment said “the cavalier approach of the DEFF [Department of Environment, Forestry and Fisheries] and Eskom to this aspect is to be deprecated”.

The judgment further noted that such an oversight could have warranted setting aside the decision to grant the environmental authorisation, were it not for the fact the Environmental Authorisation for the construction of the gas plant is merely the first link in a chain of successive applications that will be have to be processed for the associated gas infrastructure.

Because the legal challenge has brought to the fore the deficit in the public participation process, the court was of the the view that costs should be awarded in favour of the NGOs. Eskom and DEFF were therefore ordered to foot the bill for two legal counsel.