High Court denies bid to reverse EA granted for construction of Richards Bay power plant

THE North Gauteng High Court dismissed the South Durban Community Environmental Alliance and Groundwork’s joint application to review and overturn the environmental authorisation (EA) granted for Eskom’s proposed construction of a mid-merit combined cycle gas power plant (CCGPP) at Richards Bay.

Respondents in the matter were the Minister of Forestry, Fisheries and the Environment (DEFF), the Authorisation Department of the Department of Environmental Affairs and Eskom.

Eskom received environmental approval for the construction of the CCGPP in December 2019. The power utility plans to build a gas-fuelled plant to provide emergency power generation for relatively short periods of time as and when required. The plant will deliver up to 3,000MW of power. It is envisaged that gas for the plant will be delivered via a pipeline from Mozambique to the port of Richards Bay.

In the case heard in August this year, the two NGOs argued that there were seven grounds on which the granting of the EA should be overturned and reviewed:

1. Inadequate climate change impact assessment
2. Inadequate consideration of need and desirability
3. Failure to consider renewable alternatives
4. Failure to consider cumulative environmental impacts
5. Inadequate public participation
6. Inadequate water resources assessment
7. Inappropriate wetland offset

The judgement “found the 1st to 4th and 6th to 7th grounds of review were without merit and cannot succeed.” But that the 5th ground of review had some merit.

A major flaw in the public participation process was that the communications were only published in English and not in isiZulu – a language spoken by 79% of the community that would be directly affected by the proposed facility.

“Were it not for my finding that the present EA for the construction of the CCGPP is the first link in a chain of successive applications, the shortcomings in the public participation process may have warranted setting aside the decision to grant the EA.”

The Judge granted an order “that will ensure proper public participation in all further, ancillary, and/or linked applications for EA’s relating to the construction and operation of a CCGPP in Richards Bay.”

Since the legal challenge highlighted the shortcomings of the public participation process, the court awarded costs in favor of the NGOs.