In its decision handed down on 21 July 2020, the Tribunal upheld an appeal to set aside the two water use licences granted by the Department of Water Affairs and Sanitation to ACWA Power for the development of a new coal-fired power station, Khanyisa. The Tribunal found that the water use licence applications were procedurally flawed, but also that the licensing authority had not adequately weighed up the impact of climate change on water security in the region.
"This decision means that, when considering a water use licence application for a coal power plant like Khanyisa, the Department of Water and Sanitation must consider the impacts of climate change on water when deciding whether or not the project will amount to the efficient and beneficial use of water in the public interest," says Michelle Koyama, attorney at the Centre for Environmental Rights. "Prior to this, there was no explicit requirement to include the impacts of climate change when considering factors relevant to the decision to issue licences under the National Water Act."
The Tribunal has directed ACWA Power to rectify the procedural flaws, re-advertise the application, and conduct the public participation by 21 September 2020. This will affect their preferred bidder status in the Independent Power Producer Programme, as they require a valid water use licence in order for the project to reach commercial and financial close.
"In addition to its costs and the increased pollution it would cause, Khanyisa proposes using technology that is particularly greenhouse gas emission-intensive," says Robby Mokgalaka, coal campaign manager at environmental justice group groundWork.
The Water Tribunal is an independent statutory body with the authority to adjudicate on appeals of decisions made by the Department of Water Affairs and Sanitation and other water authorities.
The Centre for Environmental Rights was acting on behalf of groundWork, who challenged Khanyisa's water use licence on the grounds that the Khanyisa coal plant would result in unacceptable levels of pollution and negative climate change impacts on the Olifants Catchment, and that there were fatal flaws during the public participation prior to granting the licence.
Lerato Letebele Balendran - CER Communications Head firstname.lastname@example.org +27 79 071 7442
Tsepang Molefe - groundWork Communications Head email@example.com +27 74 405 1257
Michelle Koyama - CER Attorney in the Pollution and Climate Change Programme firstname.lastname@example.org; +27 84 091 3211
Robby Mokgalaka - groundWork's Coal Campaign Manager email@example.com; +27 73 774 3362
groundWork is a non-profit environmental justice service and developmental organisation working primarily in Southern Africa in the areas of Climate & Energy Justice, Coal, Environmental Health, Global Green and Healthy Hospitals, and Waste.
The Centre for Environmental Rights (CER) is a non-profit organisation of activist lawyers who work with communities and civil society organisations in South Africa to realise our Constitutional right to a healthy environment by advocating and litigating for environmental justice.
groundWork, CER and Earthlife Africa are partners in the Life After Coal/Impilo Ngaphandle Kwamalahle campaign, which 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.