CSDLP Climate Litigation Review Series – R (Finch) v Surrey County Council and Others – Part 3 of 3

Continuing from:  R (Finch) v Surrey County Council and Others – Part 2 of 3

Consideration of the Approach in Africa

EarthLife Africa Johannesburg v. Minister of Environmental Affairs & Ors[1]

In this case, the Chief Director, Department of Environmental Affairs, granted authorisation under South Africa’s National Environmental Management Act (NEMA), for the building of a 1200MW coal- fired power station known as the Thabametsi Project. This authorization was given without requisite climate impact assessment. Earthlife argued that climate change impacts of the proposed coal-fired power station were relevant factors and that the Chief Director should have considered them when making his decision. However, the Chief Director’s position was that there were no domestic regulations or policies that explicitly stipulate a requirement to conduct a climate change impact assessment prior to the granting of an environmental authorisation and that in any case, South Africa’s only obligation is to reduce GHG emissions, and this was broadly framed without prescribing clear measures for the government to reduce GHG emissions.[2] 

Earthlife subsequently lodged an administrative appeal to the Minister of Environmental affairs, who upheld the authorisation but directed that a climate impact assessment be conducted prior to the commencement of the project. On further Appeal to the Court, Earthlife amongst other reasons, contended that there was material non-compliance with the mandatory preconditions of Section 24(o)(1) of the NEMA, which requires the consideration of all relevant factors, including a climate change impact assessment, before the reaching of a decision on the proposed coal-fired power station.[3]

The Court rejected the respondent’s claim that the Chief Director had considered and weighed the relevant factors that enabled him to decide in good faith, and that accordingly the court had no business to interfere with the decision. Instead, the court held that the Chief Director had overlooked all relevant considerations relating to the grant of the environmental authorisation for which there was a material non-compliance with the relevant legal provisions and the Minister must reconsider the appeal and review the Chief Director’s decision.[4]

In this case, the Court insisted on compliance with statutorily mandated climate impact assessments, regardless of whether the outcome of such assessments will result in the project being authorized. This aligns with the position of the UKSC in the Finch case where it was rightly determined that ‘It is also important to keep in mind that the legislation is essentially procedural in nature. It is not concerned with the substance of the decision whether to grant development consent but with how the decision is taken.’[5]

However, the judgment in the Earthlife case did not evaluate causation, effects and any intervening factors relevant to the Thabametsi project.[6] 

African Climate Alliance and Others v The Minister of Mineral Resources and Energy and Others[7]

Following a public participation process, the Minister of Mineral Resources and Energy published an Integrated Resource Plan showing South Africa’s plans to generate sufficient electricity, and the various sources for generating this power including wind, solar, nuclear, gas and coal-generated electricity. The Minister in consultation with the National Energy Regulator of South Africa (NERSA) indicated that 1500 megawatts of power was to be generated through the burning of coal.[8]

The Applicants objected to the inclusion of new coal power.  They argued that the inclusion of coal generated power threatened the constitutional right to an environment not harmful to the health or well-being of present and future generations in South Africa, as well as the rights to life, dignity, equality, as well as the best interests of the child. They introduced expert evidence in the case demonstrating that South Africa did not need the additional coal power to meet the country’s electricity needs, and that it added significant costs and emissions to the country’s electricity system.[9] While the defendants argued that during the public participation process, environmental and health impacts were assessed and considered in preparing the Integrated Resource Plan.

The Court observed that the 1500MW coal power generation proposal was not included in the draft version presented for public participation. The Court also found that the Minister did not conduct any assessments on the environmental or health impacts of the proposed coal power, and held that he did not comply with his obligations under the Constitution as the inclusion of the coal power generation would negatively affect the rights of Children under the South African Constitution.[10]

This decision upholds the importance of EIAs and public participation as part of such assessments for transparency and participatory decision-making processes. The importance of public consultation in the EIA process was emphasized by Lord Legatt in the Finch case.

These cases demonstrate that there is an increasing understanding of the role of Courts in promoting climate action and this supports the notion that Courts are seemingly adopting a more uniform standard regarding climate change cases, prioritizing the importance of environmental and climate change assessments, and the strict compliance with their laid down procedure over commercial concerns. As with the decision of the UKSC in the Finch case, it is established that indirect effects are expected to be included in an EIA assessment to ensure comprehensive and conclusive evaluations. It also establishes the notion that indirect assessments are important because it is unlikely that environmental impacts will be confined to a locality.

It however remains to be seen, how end user consumption of other finished products will be treated. For instance, raw materials like iron ore processed into steel can be used in different ways, forms and purposes outside the control of the miners (therefore making it difficult to predict the end product and the appropriate method to adopt for calculating emissions). With respect to these situations, it would be interesting to see subsequent pronouncements of the Courts on whether these can be classified as indirect effects to bring them within the contemplation of the EIA. Notwithstanding, the alignment between the UKSC and the Scottish Court of Session suggests we may begin to witness similar outcomes from other cases as the persuasive influence of the courts begin to tell in other climate litigation proceedings globally.

6. Concluding Remarks

The judgement in Finch underscores the fundamental shift in the Courts’ approach to assessment of indirect effects with specific relation to end user consumption in fossil fuels production.  It also highlights the responsibilities of the relevant Planning Authority (whether at a regional or national level), essentially affirming their responsibility for transboundary effects of projects within their area of control. It is no longer good argument to state that matters such as climate are for considerations on a national level. It is irrelevant to the proper interpretation of the EIA regime. In any case, as the UKSC noted in its majority judgement, the EIA Directive is a broad policy directive and the United Kingdom elected to implement it via the EIA Regulations, with freedom to determine the procedural and administrative manner for implementation. It therefore follows that unless and until there is an amendment outlining a different approach, local authorities must continue to act in the full intendment of the EIA.

Further, the Finch case reiterates the duty of project developers to ensure a wholistic approach in preparing Environmental Statements for approval. Consideration should be given to significant likely and inevitable effects of the project both at the site and surrounding environment (or beyond when applicable). As stated above, the Court’s approach in the Finch case is peculiar to fossil fuel cases and may be presumed to extend to other projects where the causation and effect test will yield similar results. It is also important to note that the expense of imposing Scope 3 reporting on companies may be burdensome leading to disproportionate costs on developers and planning authorities, as opined in Lord Sales’ dissenting judgement. It may also be difficult to aggregate data in properly assessing Scope 3 emissions. Where data is insufficient, the lack of a precise criteria for data aggregation, may open the floodgates to a constant challenge on the accuracy of Scope 3 emissions if parties are unable to agree on the methodology used for such assessments.

Drawing from the analysis of the decisions from different jurisdictions, this case analysis demonstrates the converging trend and increasing recognition of downstream emissions and the responsibility on public authorities to take this into account when granting planning permission with respect to fossil fuel projects. There is increasing scope that the Finch case will influence other courts going forward.

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[1] EarthLife Africa Johannesburg v. Minister of Environmental Affairs & Ors [2017] ZAGPPHC 58 (2017) 65662/16

[2] ibid

[3] ibid

[4] ibid

[5] Ibid, (n1) 62

[6] Jean-Claude N. Ashukem, ‘Setting the Scene for Climate Change Litigation in South Africa: Earthlife Africa Johannesburg v Minister of Environmental Affairs and Others [2017] ZAGPPHC 58 (2017) 65662/16’ 13/1 Law, Environment and Development Journal (2017), p. 37, available at http://www.lead-journal.org/content/17035.pdf

[7] African Climate Alliance and Others v The Minister of Mineral Resources and Energy and Others (56907/2021) [2024] ZAGPPHC 1271

[8] ibid

[9] ibid

[10] ibid

Other Sources:

African Climate Alliance and Others v The Minister of Mineral Resources and Energy and Others (56907/2021) [2024] ZAGPPHC 1271

CMS Annual Review of Developments in English Oil and Gas Law (2024), available at < https://cms.law/en/gbr/publication/cms-annual-review-of-developments-in-english-oil-and-gas-law-2024> accessed 14 April 2025

EarthLife Africa Johannesburg v. Minister of Environmental Affairs & Ors [2017] ZAGPPHC 58 (2017) 65662/16

European Commission: Directorate-General for Environment, Collingwood Environmental Planning Ltd, Integra Consulting Ltd & Milieu Ltd. (2013). Guidance on integrating climate change and biodiversity into environmental impact assessment. Publications Office. https://data.europa.eu/doi/10.2779/11735. Accessed 16 May 2025

European Parliament EIA Directive (2011/92/EU) as amended by Directive 2014/52/EU

Friends of the Earth v TotalEnergies (2020), available at <https://climatecasechart.com/non-us-case/friends-of-the-earth-et-al-v-total/#:~:text=Although%20the%20claimants'%20report%20focuses,was%20filed%20was%20not%20competent.>  accessed 22 April 2025

Greenpeace Limited v Advocate General [2021] CSIH 53, available at <https://www.scotcourts.gov.uk/media/ruzj2kng/court-of-session-judgement-appeal-by-greenpeace-limited-against-the-advocate-general-and-another-and-bp-exploration-operating-company-limited-and-another-07-octobe.pdf> accessed 1 May 2025

Greenpeace Ltd vs Secretary of State for Business, Energy and Industrial Strategy & Ors [2025] CSOH 10, Outer House, Cout of Sessions, Scotland <https://www.scotcourts.gov.uk/media/v0zkbsxy/2025csoh10-petitions-by-greenpeace-limited-and-uplift-for-judicial-review.pdf>

Petra Minnerop and Friederike Otto, Climate Change and Causation: Joining Law and Climate Science on the Basis of Formal Logic (2020) 27 Buff Envtl LJ, 49 < https://ssrn.com/abstract=3522519> accessed 15 May 2025

R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council and Ors (2024) UKSC 20

Ranjitsinh v Union of India (2024) INSC 280, https://webapi.sci.gov.in/supremecourt/2019/20754/20754_2019_1_25_51677_Judgement_21-Mar-2024.pdf;

Town and Country Planning (Environmental Impact Assessment) Regulations 2017

Jean-Claude N. Ashukem, ‘Setting the Scene for Climate Change Litigation in South Africa: Earthlife Africa: Johannesburg v Minister of Environmental Affairs and Others [2017] ZAGPPHC 58 (2017) 65662/16’ 13/1, Law, Environment and Development Journal (2017) vol 13:1, 37 - 41, available at http://www.lead-journal.org/content/17035.pdf