Coal

Appeal in terms of Section 43 NEMA – MCWAP2A Water Transfer Infrastructure

 

CER has just – on behalf of Earthlife and groundWork – submitted an appeal of the environmental authorisation issued to the Department of Water and Sanitation for the Water Transfer Infrastructure for the proposed Mokolo Crocodile Water Augmentation Project (MCWAP) Phase 2A – which proposes to pump water to the Waterberg to supply Eskom, Exxaro and a number of proposed new coal mine and power station projects (including Thabametsi).

 

The appeal is attached, and you can access the annexures here https://we.tl/t-35JZMVD6PV.

 

Here is a summary of the grounds of appeal. The authorisation is now suspended until the Minister (Mokonyane) makes a decision on the appeal.

 

·                         the need and desirability of the Project has not been established, as required by regulation 18 of the EIA Regulations read with regulation 23(3) and  Appendix 3 to the EIA Regulations;

 

·                         the EIR and the First Respondent failed to adequately assess or take into account the impacts of the Project on rivers, wetlands and ecosystems or to account for the Reserve as required by the National Water Act, 1998 (NWA). This contravenes the requirements of, inter alia, section 24O(1) NEMA[1] to account for: all relevant factors,[2] in particular those regarding the pollution, environmental impacts or environmental degradation “likely to be caused if the application is approved”;[3] as well as any guidelines, departmental policies, and environmental management instruments and any other information in the possession of the competent authority relevant to the Application.[4] This is also in contravention of the NEMA requirement to ensure that the activities’ potential environmental impacts are properly assessed;[5]

 

·                         the EIR and the First Respondent failed to adequately consider the climate change impacts of the Project, and therefore have failed to meet the requirements of, inter alia, section 24O(1) NEMA[6] to account for all relevant factors,[7] in particular those regarding the pollution, environmental impacts or environmental degradation “likely to be caused if the application is approved”,[8] as well as any guidelines, departmental policies, and environmental management instruments and any other information in the possession of the competent authority relevant to the Application.[9] This is also in contravention of the NEMA requirement to ensure that the activity’s potential environmental impacts are properly assessed;[10]

 

·                         the EIR and First Respondent have failed to adequately assess and consider the cumulative impacts of the Project, as required by the NEMA EIA Regulations, Appendix 3 section 3(j)(i);

 

·                         the EIR and First Respondent have failed to adequately assess the indirect and socio-economic impacts of proceeding with the Project; and

 

·                         the EIR and First Respondent have failed to accurately consider alternatives to the Project, including the no-go option, as required by section 24O(1)(b)(iv) NEMA, or to follow the precautionary principle as required by section 2 of NEMA; 

 

·                         the First Respondent authorised the Project in the absence of material information and impact assessments, with only vague conditions attached to the Authorisation and, in doing so, failed to comply with section 24O (the requirement that the competent authority take into account any pollution, environmental impacts or environmental degradation likely to be caused if the application is approved or refused) and section 24E NEMA, which requires that “[e]very environmental authorisation must as a minimum ensure that— (a) adequate provision is made for the ongoing management and monitoring of the impacts of the activity on the environment throughout the life cycle of the activity”; and

 

·                         The First Respondent in authorising the Project, failed to consider and/or give effect to: the NEMA Principles, including the precautionary principle[11] and the principle that requires development to be environmentally, socially and economically sustainable;[12] and the Constitutional rights to an environment that is not harmful to health or wellbeing – as enshrined in section 24 of the Constitution of the Republic of South Africa, 1996 (“the Constitution”), respectively. The decision to issue the Authorisation and the reasons provided therefor are, furthermore irrational and unreasonable, and thus in contravention of PAJA.

 

 

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