On 4 December 2024, the High Court of Pretoria in South Africa (SA) handed down a landmark judgment in the “Cancel Coal” case. The High Court upheld a constitutional challenge and review of the national government’s plan to procure 1500 megawatts (MW) of new coal-fired power stations because the Minister of Mineral Resources and Energy (Minister) and National Energy regulator failed to comply with their constitutional and statutory obligations to respect and protect the rights of present and future generations. Given the adverse climate and health impacts of coal, this judgment is a significant victory for the rights of children and the environment. Notwithstanding this, the judgment is unfortunately slim on substance which also emphasises the importance of courts as anthropogenic actors.
The case was brought by the Centre for Environmental Rights on behalf of the applicants: the African Climate Alliance (a youth-led movement-based organization), Vukani Environmental Justice Movement and groundwork – all organisations working towards environmental justice.
At the center of this case was the Minister and the National Energy Regulator’s (the respondents) decision to include 1500 MW of new coal coal-fired power stations in the integrated resources plan – one of South Africa’s energy planning documents dealing specifically with electricity generation. The primary legal question was whether the respondents had complied with their constitutional and statutory obligations by taking this decision.
The applicants contended that the dangers of coal-fired power stations are undisputed, as coal-fired power is the single largest contributor to climate change. It is notable that SA is a coal dependent country, with over 80% of its energy being generated by coal. Through extensive expert evidence, it was submitted that the pollution emitted from these power stations also have severe and deadly impacts on human health. Additional expert reports were used to illustrate the futility in procuring more coal to support SA’s energy needs and, importantly, that SA’s energy security could be met by available and less harmful renewable energy alternatives – which were also more economical.
The applicants further contended that present and future generations of children are disproportionately affected by the harms related to coal-fired power stations. Not only were they more vulnerable to environmental threats, but younger and future generations will have to live with the consequences of climate change and environmental degradation over the course of their lives. These contentions were also supported by the Centre for Child Law and the Vaal Environmental Justice Group who were admitted as friends of the court.
The respondents submitted that given South Africa’s energy crisis, the need for grid stability allowed for a justifiable limitation of rights under the Constitution. However, they did not consider this decision, to procure new coal-fired power stations, as a limitation of rights in and of itself. The Court found no merit in this submission, given that the decision would undoubtably impact on the Constitutional rights contained in section 24, the right to a healthy environment, as well as section 28, which deals with the best interest of the child (para 27).
Accordingly, the Court found that the decision stood to be reviewed and set aside on the following grounds: the failure to assess the impact on children’s rights, the failure to assess the feasibility of “clean coal”, and lastly, the unjustifiable limitation of rights (paras 27-30). As such, the Court set aside the decision – essentially “cancelling coal”.
However, despite the efforts by the applicants and friends of the court, the judgment itself is lean on substance, which is a problem given that environmental activists in SA and internationally are increasingly relying on litigation. Courts have therefore become an important arena in the fight against climate change.
Despite the Court not being asked to rule on the constitutionality of coal-fired power stations in general, the judgment could have gone further. The applicants made extensive use of expert evidence including evidence on the impacts of climate change on mental health in SA and implications for climate change on the youthincluding livelihoods, food security and economic impacts – all important considerations for economic development and environmental governance. A discussion of these submissions could have enriched the judgment.
Additionally, submissions from the Centre for Child Law advanced important arguments related to the need for public participation of children in the climate decision-making process, the duty to conduct specific impact assessments regarding potential harms to children, as well as considerations for intergenerational equity. While the judgment acknowledges these arguments through the inclusion of section 24 (environmental rights) and section 28 (children’s rights) of the Constitution, there is no explicit discussion of these issues – which is a missed opportunity. Bold action is needed to address the climate crisis, and strong judgments are also needed to support and guide this. This is especially so given the far-reaching impact of this case not only on the environment, but also on the rights of children and their particular vulnerability to climate change.
Despite its shortcomings, the judgment is nevertheless significant given SA’s susceptibility to the impacts of climate change. The cancel coal case therefore remains meaningful, both for being the first youth-led climate case in SA as well as for the future of SA’s energy mix.
