Climate change relevant to PHA

Environmental activist and lawyer Marthan Theart, from the Centre for Environmental Rights (CER) speaks at the PHA summit.

The aquifer, wetlands and other ecological infrastructure are necessary to absorb “environmental shocks” such as floods and droughts associated with a warmer future climate, says environmental activist and lawyer Marthan Theart, from the Centre for Environmental Rights (CER).

Mr Theart did a presentation at the PHA Food and Farming Campaign Centre in Schaapkraal Road on Thursday September 14.

Explaining why climate change was relevant to the Philippi Horticultural Area (PHA), Mr Theart said: “It is an important carbon sink that can absorb carbon dioxide and mitigate against climate change.”

The CER was established in October 2009 by eight civil society organisations in South Africa’s environmental and environmental justice sector to provide legal and related support to environmental organisations and communities.

Speaking about the work the CER’s Pollution and Climate Change Programme and the Life After Coal Campaign have done, he said they represented Earthlife Africa Johannesburg in South Africa’s first climate change court case.

“In the Thabametsi (coal-fired power station) matter, the court decided it was irrational for the Department of Environmental Affairs to grant environmental authorisation for a coal-fired power station without considering the climate change impact of that power station.

“We have launched three similar cases in relation to other coal-fired power stations in South Africa on behalf of groundWork.”

He said climate litigation was in flux worldwide.

Mr Theart said in the Netherlands in the Urgenda case, a civil society organisation successfully compelled the government of the Netherlands to set more ambitious targets for decarbonising its economy.

In the Leghari case, the court compelled the Pakistani government to set up a state body to address climate change mitigation.

Mr Theart said when it came to climate change, there were many challenges.

“The first one is the political question doctrine. The courts may not interfere with the constitutional role of the executive authority – climate change mitigation is a political question, and therefore not for the courts to pronounce upon.”

Secondly, he said, litigants were required to show a link between the pollution, for instance, caused by a particular fossil fuel company, and the damages the litigant suffered as a result of that pollution.

The third challenge was local scientific studies which were “not always readily available”.

“How much will sea level rise? Will there be more intense weather events? Will there be prolonged periods of drought?”

He said in South Africa resistance from the Department of Energy and Eskom to decarbonise was an added challenge.

He said the City of Cape Town had therefore taken the Minster of Energy and the National Energy Regulator to court.

“It is seeking an order declaring that the City of Cape Town may source energy directly from independent renewable energy providers and do not have to source all of its energy from Eskom. The matter has not been finalised.

“There are climate change policies out, but it does not appear to be a priority to implement those policies – civil society therefore have to stand together to put pressure on government to mitigate against climate change and adapt to climate change,” Mr Theart concluded.

Types of climate change litigation

* Mitigation cases (litigation in relation to steps to be taken to curb greenhouse gas emissions to mitigate climate change) versus adaptation (litigation in relation to steps to be taken to adapt to climate change – given there is now scientific consensus that climate change is happening)

* Litigation against the State to force it to take (better) steps to mitigate against climate change versus litigation against polluters to compel them to mitigate against climate change and claiming damages against polluters for their role in causing climate change.

* Litigation in damages claimed for causing climate change versus other relief (such as court orders compelling certain parties to take steps to mitigate or adapt to climate change).