High court victory for coastal communities against TotalEnergies, Shell over offshore drilling
The high court in the Western Cape has set aside the government's approval of the environmental authorisation for TotalEnergies EP South Africa
The court has sent the matter back to the department of minerals and petroleum to make a fresh decision, following further studies, the addition of further information and public participation. While the authorisation was initially granted to TotalEnergies, the company intends to transfer the environmental authorisation to Shell to conduct the drilling.
Wednesday's
In addition to setting aside the environmental authorisation, the court ordered that a fresh decision be made. Before any approval can be reconsidered, Total — or Shell — must submit new or amended assessments.
These must fully examine the socio-economic impacts of a well blowout on coastal communities; the project's full life-cycle climate impacts; all factors required under the
The bulk of the applicants review grounds were premised on the final environmental impact assessment report failing to meet the standards imposed by the
Specifically, they contended that the decisions to grant the environmental authorisation were unlawful and irrational in six respects. Among these were that the final environmental impact assessment report failed to properly assess — and the state respondents failed to consider — the socio-economic effects of the proposed project, 'which a well blowout and consequent oil spill will have on the fishing industry and small-scale fishers'.
The applicants argued that the state respondents failed to consider the factors prescribed by the Integrated Coastal Management Act and failed to properly assess and consider the need and desirability of the proposed project in relation to the climate change impacts, 'which will be caused by burning any gas discovered by the proposed project'.
The state respondents failed to assess and consider the transboundary effects of the proposed project both on Namibia and on international waters. Neither the final environmental impact assessment report, nor the environmental management programme report, included Total's oil spill or blowout contingency plans, they argued.
The respondents were the ministers of environment and energy, the director-general of the department of mineral resources and energy, TotalEnergies EP South Africa Block 567 and Shell Exploration & Production South Africa.
In its judgment, the court found that the environmental impact assessment failed to fully examine the consequences of a major oil spill on local and neighbouring coastal communities, ignored coastal protection laws and omitted critical climate and fairness considerations, said Shahil Singh, the legal adviser to the Green Connection.
'A critical omission, the oil spill and blowout contingency plans were withheld from the public until after approval, denying communities the chance to comment on emergency preparedness,' Singh said. 'Total and Shell will now need to undertake additional studies, make these plans publicly available and properly assess both coastal and cross-border risks before any decision is taken.'
The court found that the lack of oil spill and blowout contingency plans meant that there had not been a full assessment and description of the manner in which Total intended to respond to pollution or environmental degradation, as required by the National Environment Management Act. The court found it even more problematic that there was no public participation in relation to the response plans.
Singh termed the court victory a significant win for transparency, precaution and for the rights of coastal communities and small-scale fishers who refuse to be sidelined in decisions that affect their livelihoods and the future of our oceans.
While the project's final environmental impact assessment report admitted that an oil spill or blowout could cause serious damage to the coastal environment, it did not assess the full economic and social impacts on the small-scale fishers and coastal communities who depend on these waters for food and income.
To the extent that there were or are limitations in conducting such assessments, Total was compelled to adopt a cautious approach and take protective and preventive measures before the anticipated harm of an oil spill or blowout materialised.
'Once the final environmental impact assessment report identified the potential blow out and oil spill as potentially significant impact or risk, it was obliged to assess the consequences and the probability of the impact or risk, including those with a low degree of probability of a blowout or oil spill,' the judgment read.
That is in light of the risk-averse and cautious approach espoused by the National Environment Management Act and the Mineral and Petroleum Resources Development Act, in terms of which the limitation on present knowledge about the consequences of an environmental decision must be taken into account.
'The precautionary approach entails that where there is a threat of serious or irreversible damage to a resource, the lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
'It means that, where there exists evidence of possible environmental harm, such as a possible blow-out or oil spill as the final environmental impact assessment report accepts, a cautious approach should be adopted, and if necessary decision-makers may compel the party to take protective and preventive measures before the anticipated harm materialises.'
Scientific spill modelling for the project showed that oil from a disaster could reach the waters and shores of Namibia. International law, and South Africa's own laws, require that the impacts on neighbouring countries should be considered, and that there was an obligation for the environmental impact assessment to consider the harms caused by transboundary impacts, and for this to be considered by the decision-makers. The court found they did not.
According to the judgment, at the very least, it has been established that there is a risk of oil spill and a blowout occurring, and a risk of the oil reaching Namibian waters and the Namibian shoreline.
The approach adopted by the respondents, to the effect that the National Environment Management Act and the environmental impact assessment regulations do not require environmental impact assessment to assess and predict transboundary harm is 'inconsistent with the customary international law and international law obligations.
'It is also contrary to the [ National Environment Management Act] principles and Integrated Coastal Management Act, which recognise the need to discharge global and international responsibilities,' the court found.
The court confirmed that the assessment of climate change impacts should form part of this assessment. 'While it is correct that the specific activity for which the environmental authorisation in this case is granted is exploration and not production, and that the former process will not always result in the latter process, the two processes are intertwined,' the judgment noted.
There would be no point in conducting an exploration activity unless an entity hoped to proceed to the next phase of production. 'And it is not speculation to conclude that by the time such an entity applies for authorisation to conduct the next phase, it is armed with information that places it at an advantage to proceed to the next phase.'
Climate change is relevant to both exploration and production activities. 'It makes no sense to rely on the positive consequences of the production stage for purposes of considering an application at the exploration stage, only to resist considering the negative consequences of the production stage when it comes to consideration of climate change.'
The judgment is 'a victory in the growing opposition to oil and gas exploration in our country', said Melissa Groenink-Groves, the defending rights programme manager at Natural Justice.
'Recently, a number of oil and gas projects have been given environmental authorisation but this judgment again confirms that companies must follow due process, undertake comprehensive assessments and provide communities with an opportunity to have their voices heard, in respect of all relevant information.
'It confirms that our fight for our environmental rights is strong and that we must continue for the future for our children,' she said.
Lesai Seema, director at Cullinan & Associates, which represented the applicants, said the judgment makes it clear that the granting of environmental authorisation for offshore oil and gas exploitation will be unlawful if the decision-maker does not carefully consider a range of factors necessary to 'safeguard the long-term collective interests of people and other living organisms who depend on the coastal and marine environment'.
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