10: Different Roads to the Same Destination: Climate Change Litigation in South Africa and the Netherlands and the Role of Human Rights in the Mitigation of Climate Change

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Globally, climate change litigation is growing and court decisions delivered in the Global North, as opposed to the Global South, have gained international attention. Among these prominent court decisions, the Dutch decision in the Urgenda case is heralded as the first decision in the world where a government was held responsible by its citizens to prevent dangerous climate change based on inter alia human rights grounds. But what about climate change court decisions on the other side of the globe, in South Africa specifically, such as the cases of Earthlife Africa and Deadly Air? What is the relevance of these judgments to systemic climate change litigation? What do these cases tell us about the current South African approach to rights-based climate change litigation? Can these South African judgments also be heralded as preventing and mitigating dangerous climate change in the same vein as the Urgenda decision? Is it possible to say that the Dutch and South African approach to climate change litigation indicates two different roads to the same destination of human-rights based climate change litigation? Answers to these questions and others make up this contribution to the discussion on the development of climate change litigation across the two contrasting jurisdictions of the Netherlands and South Africa.

Introduction

This chapter considers climate change litigation in South Africa and the Netherlands, and considers if two different judicial approaches, set in two different national contexts, can ultimately lead to the same outcome, namely human rights-based climate change litigation to mitigate climate change. More specifically, this chapter investigates how a court decision in a South African climate change case might differ from the climate change decision of the Supreme Court of the Netherlands in Urgenda Foundation v The Kingdom of the Netherlands (Urgenda).1 In doing so, underlying complexities are explored, including the role of national and international law in climate change litigation, as well as the role of administrative law and human rights.

This chapter is able to identify two different approaches to climate change litigation, namely a Dutch approach, where climate change is framed as a central issue in the litigation, and a South African approach where climate change is arguably framed as a peripheral or secondary issue in the litigation. In practice this means that the Dutch approach, as illustrated by the Urgenda case, can be thought of as a ‘systemic mitigation case’, wherein the ‘overall efforts of a State to mitigate climate change is challenged’.2 The South African approach, where comparably less systemic mitigation cases can be identified to date than in the Netherlands, means the focus is on a ‘specific project or initiative’3 that has greenhouse gas (GHG) emission implications, such as the construction of a coal-fired power plant. However, the most recent case law in South Africa is also systemic.

The chapter does not suggest that one approach should be preferred over the other, or that one jurisdiction should emulate another. Instead, the chapter highlights the difference in approaches of the two selected jurisdictions located respectively in the Global North and the Global South. It does this in order to ascertain the value in the different responses, and to determine if both approaches ultimately reach the same destination, namely human rights-based climate change litigation in order to mitigate climate change.

In order to structure the analysis in this chapter, the chapter will focus on two questions related to climate change litigation within both the Dutch and South African legal contexts. Firstly, how severe is the danger of climate change considered to be in the Netherlands and in South Africa, and what emissions reductions are required by the respective states in order to prevent the danger?4 Secondly, do both states have a legal obligation to make more extensive GHG reductions in view of the danger of climate change and, if so, what is the role of human rights?5

Comparative methodology

In order not to overburden the chapter with technical complexity related to the employed comparative legal methodology, the methodological arrangement and rationale will be limited to this part of the chapter.

In a traditional understanding of the functional method of legal comparison it is submitted that, while legal rules might differ, societies tend to solve legal problems in a similar way.6 In terms of this method of comparative law the basic principle of functionality is prominent, meaning that, as explained by Kötz, ‘in law the only things which are comparable are those which fulfil the same function’.7 As further stipulated by Kötz, ‘the legal system of every society faces essentially the same problems, and solves these problems by quite different means though very often with similar results’ or through means that fulfil the same function. In this chapter, this means the function of mitigating climate change.8

It is important to acknowledge that the method itself as well as Kötz’s submissions have attracted criticism, a full discussion of which falls outside the ambit of this chapter.9 However, it is crucial to acknowledge that there are indeed different functional methods and it is pivotal to explain which functional method is employed in this chapter. The different functional methods of comparative law are distinguished by their aims.10 According to Michaels, these are: to understand legal rules and institutions; to achieve comparability; to emphasize similarity; to achieve system building; to determine which law is better; to harmonize or unify law; and to provide tools for the critique of law.11 Therefore, the type of research question, linked to the aim of the research, determines which functional method is employed.12

Within the context of this chapter, the comparison between the Netherlands and South Africa is employed to emphasize similarity. This chapter considers climate change litigation in the Netherlands and South Africa, and considers if two different judicial approaches, set in two different national contexts, can ultimately lead to a similar outcome, namely human rights-based climate change litigation in order to mitigate climate change. The chapter does not set out to achieve other aims of the functional method, such as determining which law is better, or setting out how the law can be harmonized. Instead, the chapter highlights the difference in approach within the two selected jurisdictions located respectively in the Global North and the Global South, in order to ascertain the value in the different responses, and to determine if both approaches ultimately reach the same destination. Accordingly, this chapter employs the functional method in order to emphasize similarity.

However, this chapter also employs additional, harmonious methods of legal comparison. This is because this functional method advocates a focus on the comparison of common legal problems and solutions of selected jurisdictions without the incorporation of contextual considerations.13 It can be argued that the functional method traditionally asks ‘what are the legal rules of the solution’ and not ‘how do the legal rules solve the problem’, thereby limiting its incorporation of societal context to a significant extent.14 Thus, at the core of the functional method, in a traditional understanding thereof, lies the assumption that the problem is the same in multiple jurisdictions.15 While the problem of climate change is indeed global, the impacts of climate change will be different in different jurisdictions, and will be the demands this places on different states, as discussed below in relation to the differing national approaches in determining fair share. Accordingly, the differing national contexts necessitate an expansion of the traditional application of the functional method in this chapter to make more room for the incorporation of context. Therefore, the chapter will not employ the functional method and compare solutions by disassociating problems completely from context, specifically doctrinal legal context, historical background (in particular related to the fair share approach in international climate change law) and socio-economic context.16 The law-in-context method has a definite historical dimension but also places focus on the law’s modern societal context, to a degree that is accepted to be much wider than within the traditional understanding of the functional method.17 The law-in-context method also requires a consideration of the practical functionality of the law, and thus requires the consideration of case law,18 as employed in this chapter.

Another key method of comparison employed in this chapter, in addition to the functional method and the law-in-context method, is the common-core method. This sets out to find a common-core among legal systems in specific jurisdictions,19 and also aims to emphasize similarity (in the same way as the functional method). The development of the common-core method stems from the ambition to determine ‘how the different legal systems [are] solving cases rather than on their legal rules and concepts’.20 In applying the common-core method within this chapter, similarities and differences in the Dutch and South African legal approaches are identified, within the context of human rights-based climate change litigation. So, this chapter employs the following three harmonious comparative methods: the functional method, the law-in-context method and the common-core method.

Applying the above methods of comparison and tracing a parallel legal development in the context of human rights-based climate change litigation in the Netherlands and South Africa is risky if the law is considered in isolation to its practical manifestation.21 For this reason, this chapter relies on case law to illustrate the theoretical and practical manifestation of the law. Therefore, it is imperative that this chapter starts off with an analysis of the Urgenda case, which explains the practical manifestation of Dutch law in the context of the mitigation of climate change based on human rights grounds, in order for this manifestation of Dutch law to stand in contrast to the practical legal developments in South Africa within this context.

Climate change litigation in the Netherlands and the Urgenda decision

The severity of the danger of climate change in the Netherlands and the preventative state action required to reduce it

This section will consider the first question within the Dutch context, which can be divided into two components: firstly, how severe is the alleged danger of climate change and, secondly, what reductions are required in order to prevent dangerous climate change?

The severity of the danger of climate change was not at issue in the Urgenda case. Specifically concerning the severity of the problem of climate change in the Netherlands, the District Court found that ‘dangerous climate change has severe consequences on a global and local level’ and that the 2°C threshold is vital to prevent irreversible climate change.22 The District and Supreme Court also specified the dangers that climate change holds for the Netherlands in particular, including higher average temperatures, changing precipitation patterns, sea-level rise and a decreased supply of water in the summer, which could lead to making the country partly uninhabitable.23 The Supreme Court further described the numerous consequences of climate change as ‘hazardous’, and the materialization of it as ‘dangerous climate change’.24

Two further Intergovernmental Panel on Climate Change (IPCC) reports have been published since the decision of the Dutch Supreme Court was delivered in the Urgenda case, namely the IPCC’s Special Report of Global Warming of 1.5ºC,25 and the IPCC’s Sixth Assessment Report.26 This means that the severity of the situation is even clearer.

Having established that the danger of climate change can be classified as ‘severe’, the next step is to consider what reductions were required. The District Court found that a minimum reduction of 25 per cent, compared to 1990 levels, is required in order to prevent the threat of dangerous climate change exceeding the 2°C threshold. The Supreme Court affirmed this decision, reiterating that climate change does represent a danger and serious risk to the citizens of the Netherlands,27 and that the above reduction would be the minimum amount required in order to offer Dutch citizens the legal protection to which they are entitled.28

Legal obligation of the Dutch state to make more extensive greenhouse gas emissions reductions in view of the danger of climate change

National and international law and the legal obligation of the Dutch state to reduce emissions

This section outlines the national and international framework of the Urgenda case. The decision of the District Court was based mainly on tort law and the doctrine of hazardous negligence contained in the Dutch Civil Code,29 even though Urgenda also based their initial arguments on article 2 (the right to life) and article 8 (the right to respect for private and family life) of the European Convention on Human Rights (ECHR). Urgenda further relied on article 21 of the Dutch Constitution as well as international law in the form of the ‘no-harm principle’, the United Nations Framework Convention on Climate Change (UNFCCC), and the Treaty on the Functioning of the European Union (TFEU) in supporting their arguments.30

In terms of this legal framework, Urgenda argued that the Dutch state has a responsibility to reduce GHG emissions in order to prevent dangerous climate change.31 Urgenda argued that the Dutch state is acting unlawfully since climate change mitigation action by the state is insufficient when measured against mitigation action described by national objectives, international agreements, and current scientific knowledge at the time.32 More specifically, Urgenda argued that the state is acting unlawfully by not taking sufficient mitigation action, which endangers the living climate and the health of both man and the living environment, and accordingly that the state is breaching its duty of care.33 Compliance with the duty of care meant a reduction in GHG emissions by 2020 of between 25 per cent and 40 per cent compared to 1990 levels.34 This duty of care arose from article 21 of the Dutch Constitution and book 6, section 162 of the Dutch Civil Code (whether or not in combination with book 5, section 37 of the Dutch Civil Code).

Article 21 of the Dutch Constitution stipulates that ‘[i]t shall be the concern of the authorities to keep the country habitable and to protect and improve the environment’. The District Court stipulates that the manner in which this duty of care, contained in article 21, is to be implemented is left by the court within the discretion of the Dutch state and would pertain to attending to water defences, water management and the living environment.35 Accordingly, it found that the legal obligation of the state towards Urgenda cannot be imposed by article 21 of the Dutch Constitution.36 Book 6, section 162 of the Dutch Civil Code deals with a so-called ‘tortious act’ and was found by the court a quo to be applicable to the Urgenda case,37 even though the state disagreed that section 162 called for a more stringent limitation of GHG emissions than was currently being implemented by the state. The District Court also found that the interpretation of section 162 needed to be informed by the ECHR,38 which will be discussed in greater detail below.

The District Court set out the international law and principles that inform the interpretation of the duty of care within the context of this case. In regard to the application of international law, the District Court found the state to be ‘bound’ by the UNFCCC, the Kyoto Protocol and the no-harm principle of international law.39 The District Court also considered the international law principles of sustainable development, the precautionary principle and the principle of fairness particularly noteworthy within this context.40 It further found that although the UNFCCC, the Kyoto Protocol and the no-harm principle could be relied upon directly by Urgenda, the state is considered to ‘want to meet its international law obligations’.41 Furthermore, the court emphasized a certain general rule within the Dutch legal system: ‘when applying and interpreting national law open standards and concepts, including social proprietary, reasonableness and propriety, the general interest or certain legal principles, the court takes onto account such international-law obligations’.42 Accordingly, these international law obligations and principles have a ‘reflex effect’ in the national law of the Netherlands,43 and therefore were relevant in determining the general duty of care in relation to climate change.44

The Supreme Court went further and also considered the Netherlands’ legal obligation to reduce GHG emissions within the context of common but differentiated responsibilities. The Supreme Court found that it is clear that the reduction of GHG emissions by a minimum of 25 per cent before the end of 2020 is only a small fraction of action required to combat international climate change, but is nevertheless required by international agreements. It found that the Dutch state’s efforts are not to be measured against any other state’s efforts and that the state’s responsibility to reduce emissions is based on the fact that all emissions contribute to global climate change.45 The Netherlands could not evade its duty by arguing that other states are not adhering to a similar or a comparable duty. The District Court unequivocally dismissed the argument that the contribution of the Netherlands to global GHG emissions is negligible, providing that it must ‘implement the reduction measures to the fullest extent as possible’.46 The Supreme Court stated that ‘every emission of greenhouse gases leads to an increase’.47 In particular, the Supreme Court considered the Netherlands obligated, under articles 2 and 8 of the ECHR, the UNFCCC, and the no-harm principle of international law, to do their part in preventing dangerous climate change.48 These findings by the Dutch courts also frame the responsibility of any state (and not just the Netherlands) to mitigate climate change, regardless of the actual collective international response to climate change mitigation. This Dutch fair share approach is contrasted with the South African approach in a subsequent section of the chapter.

The discussion of common but differentiated responsibility is further developed by the Dutch District Court in its consideration of future generations when explaining the term ‘sustainable society’.49 In defining the concept of sustainable development, the court described a sustainable society as containing an intergenerational dimension.50 In addition, it stipulated that the principle of fairness dictates ‘the policy should not only start from what is most beneficial to the current generation at this moment, but also what this means for future generations, so that future generations are not exclusively and disproportionally burdened with the consequences of climate change’.51 The Supreme Court continued this discussion by stipulating that ‘the mere existence of a sufficiently genuine possibility that this risk will materialize means that suitable measures must be taken’, irrespective of the fact that the risks associated with climate change may only materialize in a few decades.52

It is noteworthy that the Dutch District Court found that article 2 and article 8 of the ECHR could, in fact, not be relied upon by Urgenda.53 However, as mentioned, it did find that these articles of the ECHR are relevant to the interpretation of the national Dutch law pertaining to the duty of care.54 In this respect it differs from the decision of the Supreme Court, which will now be set out.

Dutch climate change litigation as a matter of human rights

The Supreme Court in the Urgenda case found that the Netherlands did have a duty to reduce emissions based on human rights. According to Urgenda, the obligation of the Dutch state to reduce emissions is inter alia based on the legal duty of the Netherlands to respect human rights.55 Urgenda argued that the state has a positive obligation to take ‘protective measures’ against climate change in terms of the ECHR, specifically article 2 (containing the right to life) and article 8 (containing the right to respect for private and family life).

As the impacts of climate change are clearly a threat to life, citizens of the Netherlands are able to ask for a reduction in the emissions that cause it. The Supreme Court stated that article 2 can be and has been applied to matters concerning natural or environmental disasters, and that the protection afforded by article 2 also covers risks that may only materialize in the future.56 Accordingly, the Supreme Court found that article 2 of the ECHR obliges the Dutch state take the appropriate steps as required to safeguard the right to life of everyone within the jurisdiction of the Netherlands.57 The Dutch Supreme Court further stated that article 8 of the ECHR applies to ‘environmental issues’.58 Accordingly, the Supreme Court derived protection for the living environment from article 8 in the event where an environmental hazard (such as dangerous climate change) holds a direct consequence for the private life of a person and if the environmental hazard is sufficiently serious.59 Article 8 affords a positive obligation to take reasonable appropriate action to protect persons against possible serious environmental damage,60 which entails an effect on the wellbeing of individuals, preventing individuals from enjoying their homes, or impacting the private life and family life of individuals adversely.61 Effects do not have to be immediate, and can include long-term risks, which is in line with the precautionary principle contained in international environmental law.62 Accordingly, the Supreme Court found that article 8 of the ECHR also obliges the Netherlands to take the appropriate steps as required to safeguard this right of everyone within its jurisdiction.63

The Supreme Court specifically stated that the fact that the risk associated with climate change will impact large parts of the population, opposed to specific persons, does not invalidate the application of article 2 and 8 of the ECHR to the matter.64 Finally, article 13 of the ECHR, which deals with the right to an effective remedy, is also considered relevant by the Supreme Court to the interpretation of articles 2 and 8 of the ECHR.65 In regard to article 13, the Supreme Court of Appeal stated that national states are required to provide remedies that can ‘effectively prevent more serious violations’ of the rights and freedoms contained in the ECHR.66 In accordance with articles 93 and 94 of the Dutch Constitution, the Supreme Court held that Dutch courts are obliged to apply every provision of the ECHR that is binding on all persons,67 and notes that the Netherlands falls within the jurisdiction of the European Court of Human Rights (ECtHR), in accordance with article 34 of the ECHR.68 Therefore, Dutch courts must interpret provisions and standards of the ECHR in the same way as the ECtHR would, and this has been done by the Dutch Supreme Court in the application of article 2 and article 8 to the Urgenda case.69 Therefore, the Supreme Court found: ‘no other conclusion can be drawn but that the State is required pursuant to articles 2 and 8 [of the] ECHR to take measures to counter the genuine threat of dangerous climate change’.70

This section has set out the basis for the Dutch Supreme Court’s decision in the Urgenda case. To illustrate the difference in the national approaches and highlight underlying complexities in the national systems of the Netherlands and South Africa, the section below will frame climate change litigation in South Africa.

Climate change litigation in South Africa

The severity of the danger of climate change in South Africa and the preventative state action required to reduce it

This section will consider the first question within the South African context, which can be divided into two components: firstly, how severe is the alleged danger of climate change and, secondly, what reductions are required in order to prevent dangerous climate change?

The impacts of climate change within South Africa are well recognized by the government and include increased temperatures throughout the country, changes to precipitation patterns and wind, sea-level rise, and an increased prevalence of drought.71 In addition, the South African economy is highly dependent on sectors such as agriculture, forestry and tourism, which are all highly sensitive to the impacts of climate change.72 These serious impacts have been recognized by the South African courts, predominantly within the context of the importance of sustainable development. In Earthlife Africa Johannesburg v Minister of Environmental Affairs (Earthlife Africa),73 the High Court of South Africa noted that climate change poses a substantial risk to sustainable development in South Africa. The state must, the court found, take steps to protect the environment for the benefit of present and future generations.74

The second part of the question concerns what this means in terms of the actual reductions that are required in order to prevent dangerous climate change. The answer to this question in the Netherlands and South Africa is not the same. This can be seen in the approach taken by the courts. The Dutch Supreme Court is able to answer the question of actual reductions definitively by stating that the Netherlands must ensure a reduction of 25 per cent by 2020, compared to the 1990 level.75 However, the South African approach to actual reduction in GHG emissions is less clear-cut. The South African courts thus far have not provided a definitive answer as to what specific emission reduction would be acceptable. As mentioned, the Urgenda case can be called a ‘systemic mitigation case’ wherein ‘overall efforts of a State to mitigate climate change is challenged’ by the claimants.76 However, the South African approach has typically featured more targeting of a ‘specific project or initiative’77 that has GHG emission implications, such as the construction of a coal-fired power plant. Accordingly, a South African climate change case does not tend to challenge overall mitigation ambition and, as such, no South African court has made a ruling comparable to Urgenda regarding the exact and actual GHG emissions reduction required. However, a recent South African report issued by the University of Cape Town’s Energy Systems Research Group (ESRG) has determined that the South African state would have to reduce its GHG emissions by more than 20 per cent by 2030, from 2021 levels, in order to be on the pathway to avoid temperature increases by 1.5°C.78

This section serves to set out the South African climate change litigation strategy in order to juxtapose it against the systemic litigation illustrated by the Urgenda case in the Netherlands. The next step in this comparative exercise is to discuss the legal obligations of the South African state to make more extensive emission reductions in view of dangerous climate change.

Legal obligation of the South African state to make more extensive greenhouse gas emission reductions in view of the danger of climate change

International law and the legal obligation of the South African state to reduce emissions

This section serves to frame South Africa’s international law obligations to reduce GHG emissions under the UNFCCC and the Paris Agreement. Therefore, it is necessary to outline the importance and relevance of international law within the national framework of the South African legal system, as dictated by the South African Constitution. Under section 39 of the South African Constitution courts ‘must consider international law’ and ‘may consider foreign law’ when adjudicating a matter, including a climate change matter. This approach is practically well-illustrated by the determinations of the High Court of South Africa in the Deadly Air case, detailed below, wherein the court specifically mentioned that the ‘legal submissions made by the Special Rapporteur relate to aspects of international law which this Court is enjoined by section 39 of the Constitution to take into consideration.’79 The court in Deadly Air further stated that it ‘may benefit from the comparative foreign jurisprudence, where courts in other jurisdictions have had to determine similar issues which this Court is required to decide’.80

In addition, section 233 of the Constitution further directs South African courts to ‘prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law’. While section 233 does give substantial weight to international law within South Africa, the court will still ultimately decide whether the application of international climate change law is in accordance with the South African Bill of Rights. Finally, in determining the weight that a South African court may assign to international law in a climate change case, section 232 of the Constitution provides that ‘[c]ustomary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament’. Accordingly, South African courts must consider international law within the context of climate change litigation and in determining the legal obligation of the South African state to reduce GHG emissions and mitigate climate change.

Similarly to the Netherlands, South Africa is a party to the UNFCCC and the Paris Agreement. In an international context, South Africa’s contribution to climate change mitigation warrants what is called a ‘fair share’ approach, meaning that South Africa’s response to climate change is dictated by its current national capacity and historic responsibility for the climate change problem.81 In this regard, the Netherlands and South Africa do not have identical international law obligations concerning their respective climate change action. The historic responsibility and current capacity of South Africa is very different to the historic responsibility and current capacity of the Netherlands.

Nevertheless, a fair share approach does not mean that South Africa is ‘off the hook’ when it comes to mitigating climate change. It is within this context that South Africa’s reliance on coal-fired power, despite feasible and economically viable renewable energy options being available, can be strongly criticized.82 By perpetuating a reliance on coal-fired power in the country, South Africa can scarcely be seen to be doing their fair share to combat GHG emissions.83 As discussed, in Urgenda the District Court unequivocally dismissed the argument of the Netherlands that its contribution to global GHG emissions is negligible and ordered that it should ‘implement the reduction measures to the fullest extent as possible’.84 A subsequent report has also found that a fair share approach in the Netherlands would mean ‘getting domestically as close to zero as possible and as fast as possible, and substantially supporting other countries’ mitigation action’.85

The greatest difference in the applied fair share approach of the Netherlands and South Africa is the extent of international consideration; the Netherlands looks inward and then outward in applying the fair share approach, while South Africa, as a developing country, employs an overwhelmingly inward or national lens to its application of the fair share approach. The Dutch Supreme Court further emphasizes these submissions in stating that ‘every emission of greenhouse gases leads to an increase’.86 In particular, the Dutch Supreme Court considers the Netherlands obligated, in terms of article 2 and 8 of the ECHR, the UNFCCC, and the no-harm principle of international law, to do their part in preventing dangerous climate change.87 These findings of the Dutch Court highlight any state’s (including South Africa’s) national responsibility to mitigate climate change in terms of international agreements regardless of the collective international response to climate change mitigation and considerations related to the fair share approach.

Nonetheless, the standard starting point under international law, supporting the contention that the Netherlands and South Africa do not have identical international law obligations concerning climate change action, is the Paris Agreement’s preamble, which refers to the ‘specific needs and special circumstances of developing country parties, especially those that are particularly vulnerable to the adverse effects of climate change’.88 Article 4 of the Paris Agreement further illustrates the differentiation between developed and developing countries in article 4(1),89 which stipulates that the peaking of GHG emissions ‘will take longer for developing country Parties’. In addition, article 4(4) of the Paris Agreement stipulates that developed countries ‘should continue taking the lead’ in reducing GHG emissions.

A further, very clear indication that the Netherlands and South Africa do not have identical international law obligations concerning climate change arises in the context of the Paris Agreement’s nationally determined contributions (NDCs) mechanism. A key characteristic of the Paris Agreement is the NDC system it employs. The system of NDCs provide flexibility to each state to customize its NDC with due consideration for its unique development agenda.90 Article 4(3) of the Paris Agreement specifically provides that NDCs must represent a state’s ‘highest possible ambition’, while reflecting ‘respective capabilities, in the light of different national circumstances’ – a clear reference to the principle of common but differentiated responsibility.91 Although the discussion of NDCs is relevant to both the Dutch and South African contexts, NDCs are discussed here in the South African context, since the unique national circumstances in South Africa place a greater emphasis on the voluntary nature of the mitigation ambitions contained in its NDC.

In submitting its NDC, South Africa stipulated that their response to climate change will be impacted by the country’s national circumstances and specifically its principal goals of eliminating poverty and reducing inequality, as set out in South Africa’s National Development Plan.92 The economic or financial burden required to ensure a reduction in GHG emissions in South Africa will dictate – both in policy approaches and also litigation – a very different approach to that which was evident in the Urgenda case. In the Urgenda case it was not a substantial point of contention whether or not the ordered reduction in emissions would be economically or financially viable for the Netherlands.93 However, a South African court is expected to measure the economic or financial burden of reducing GHG emissions more carefully than any Dutch court. While South Africa is expected to prioritize the elimination of poverty and the reduction of inequality in responding to climate change more obviously than the Netherlands, it is however worthwhile to bear in mind that economic development and climate change action need not be mutually exclusive, even for a developing nation such as South Africa. This contention is supported by David Boyd, in his capacity as the United Nations Special Rapporteur for Human Rights and the Environment and amicus curiae in the case of Trustees for the Time Being of Groundwork Trust v Minister of Environmental Affairs (Deadly Air case),94 which was recently heard in South Africa:

The principle of sustainable development further requires that measures put in place to achieve economic development should not sacrifice the environment and human life and wellbeing and it must be that a balance should be struck. Where one trumps the other, it cannot be said the right of section 24(a) [of the South African Constitution] has been achieved.95

The extent of the consideration of international law, as located in key international agreements such as the UNFCCC and the Paris Agreement, is evident in climate change litigation in South Africa, as explained in the following sections.

National law and the legal obligation of the South African state to reduce emissions

South Africa’s national climate change policy is contained in the National Climate Change Response White Paper (NCCRWP), which aims to ensure a decrease in GHG emissions within the country.96 This policy informs the legislative responses to climate change in South Africa, and the legislative foundations that are used to bring a climate change matter to court in South Africa.97 The discussion that follows will focus on the national legislative, specifically constitutional, grounds for climate litigation in South Africa.

It is in the judicial approach to the constitutional grounds of argument that the most significant doctrinal difference can be observed. In the Netherlands, the legal obligation of the state could not be imposed by article 21 of the Dutch Constitution.98 In other words, the Urgenda decision did not depend on a constitutional legislative basis. Conversely, in the South African context, the Constitution plays a key role in directing the judicial interpretation of legislation in climate change litigation.99 Section 39(2) of the South African Constitution requires a court to ‘promote the spirit, purport and objects of the Bill of Rights’ (which includes, in section 24, the right to a healthy environment) when interpreting any legislation. This forms the basis of the most important difference between the Dutch and South African approach to climate change litigation, namely that climate change litigation in South Africa is overwhelmingly framed as a matter of administrative law.

In South Africa, current climate change litigation is fundamentally usually an environmental dispute that was brought to court on a primary basis related to land use, environmental conservation or environmental protection.100 In addition to decided South African cases – to which the chapter shortly turns – all current pending climate change cases at the time of writing deal with climate change in the context of environmental impact assessment (EIA) and environmental permits.101 This means that the further legislation underlying these cases is usually comprised of provisions contained in National Environmental Management Act 107 of 1998 (NEMA). This approach, wherein a failure to consider climate change impacts can result in an unacceptable EIA and a matter being designated as a climate change case, is a fairly typical strategic approach to climate change litigation in South Africa and also in the broader Global South context.102

Administrative law and human rights as legal basis for South African climate change litigation

Earthlife Africa Johannesburg v Minister of Environmental Affairs (Earthlife Africa)103 is the most prominent climate change case in South Africa. It was ‘a watershed decision in South African environmental law’, which ‘filled an important gap in the South African environmental impact assessment regulatory framework’.104 In the Earthlife Africa case, the High Court of South Africa considered climate change in the context of an EIA, which is required for the construction of a coal-burning power station.105 NEMA played a key role in the Earthlife Africa judgment. The High Court found that the climate change impacts of a proposed coal-fired power station are relevant factors to be taken into consideration under NEMA,106 stating:107

[A]n assessment of climate change impacts and mitigating measures will be relevant factors in the environmental authorisation process, and […] consideration of such will best be accomplished by means of a professionally researched climate change impact report. For all these reasons, I find that the text, purpose, ethos and intra- and extra-statutory context of section 24O(1) of NEMA support the conclusion that climate change impacts of coal-fired power stations are relevant factors that must be considered before granting environmental authorisation.108

While it can be stated that both the Earthlife Africa and Urgenda judgments ultimately served to mitigate climate change, a notable difference is observed between the approach taken to climate change in the reasoning of the respective courts. The South African court (and parties before the court) framed climate change mitigation as a periphery or secondary issue of the case and not the core of the matter, as was done by the court (and parties before the court) in the Urgenda case.109 More specifically, the Earthlife Africa case, at its core, dealt with the considerations in the EIA that ought to precede the construction of a coal-fired power plant, and the court did not consider the South African state’s legal obligation (as a rights-based obligation) to reduce GHG emissions, as was done in Urgenda. Human rights were also peripheral to the decision making, in that there was no direct application of the environmental rights contained in section 24 of the Constitution of South Africa in the Earthlife Africa case.110 Even though a party in Earthlife Africa submitted that the court’s interpretation of the requirements stipulated in NEMA should be influenced by the rights contained specifically in section 24 of the Constitution, the High Court did not provide an in-depth analysis of the relevance of the constitutional environmental right to its decision,111 in the same detail as the constitutional discussion contained in the Urgenda judgement. It was, nevertheless, at least arguable that human rights protections and particularly section 24 of the Constitution influenced the court’s decision making.112

While general administrative law has provided the best vehicle for climate change litigation in South Africa,113 it is also possible to examine these judgments under a human rights lens. The discussion that follows serves to expand on the relevance of section 24 of the South African Constitution in climate change litigation in South Africa, and investigates if some common ground can be found in a human rights context between the Urgenda case of the Netherlands and the Philippi Horticultural Area Food & Farming Campaign v MEC for Local Government, Environmental Affairs and Development Planning: Western Cape (Philippi case), Deadly Air case and Africa Climate Alliance v Minister of Mineral Resources & Energy (Cancel Coal case) cases of South Africa. In doing so, this section will illustrate that although the Netherlands and South Africa follow different roads within the climate change litigation journey, when viewed through a human rights lens these different roads lead to the same destination, namely the mitigation of climate change.

As Bouwer explains, NEMA and its accompanying regulations ‘were enacted to give effect to rights – including the right to a healthy environment – in the post-apartheid Constitution’ of South Africa.114 This is most clearly evidenced by the following South African cases: the Philippi case,115 the Deadly Air case116 and the Cancel Coal case.117

The Philippi case was concerned with an EIA and an environmental permit, and the applicants in the case argued that the administrative decision in the case must consider climate change.118 Philippi was convincingly based on administrative law, similar to the Earthlife Africa case. In Philippi, the High Court of South Africa determined, in terms of NEMA, that the decision-maker did indeed not consider a ‘key relevant factor’ that a development would have on a certain aquifer, namely the ‘impact on climate change and water scarcity’.119

The key difference, though, between Earthlife Africa and Philippi was that, in the Philippi case, the interpretation of NEMA was explicitly framed as a ‘legislative instrument which gives effect to the environmental rights contained in [section] 24 of the Constitution’.120 The High Court held:

In relation to the aquifer, an assessment of the impact of development on it, having regard to the rights set out in s 24 of the Constitution and the provisions of [the National Environmental Management Act 107 of 1998] and its regulations, required consideration of the impact of the rezoning and subdivision sought in relation to the aquifer as a large underground natural resource, its state, future and impact on issues related to water scarcity and climate change.121

Accordingly, in Philippi the court’s reasoning expressly recognizes the impact that human rights can have on climate change litigation in South Africa.122

An even more direct statement of the connection between human rights and climate change, and the importance of human rights for climate change litigation in South Africa, is the recent Deadly Air case.123 This case concerned high levels of air pollution in an area of South Africa known as the Mpumalanga Highveld, an area in which 15 coal-powered power stations are situated (12 of which are owned by Eskom, a company branded by the Centre for Research on Energy and Clean Air as ‘the world’s most polluting power company’).124 The applicants in the Deadly Air case contended that the high levels of air pollution and the resulting poor air quality in the Mpumalanga Highveld constituted an infringement on the realization of environmental rights contained in section 24 of the South African Constitution.

In the High Court’s ruling in Deadly Air, it found that not all air pollution constituted a violation of section 24 of the Constitution.125 However, the court submitted that if the air quality does not meet the National Ambient Air Quality Standards for a determined period of time, as was the case in the Mpumalanga Highveld area, it constituted a prima facie violation of section 24.126 On this basis, along with a consideration of international law and additional comparative jurisprudence, the High Court found a violation of section 24 of the South African Constitution, which included inter alia the human right to an environment that is not harmful to health or wellbeing.127

Strategically, the impact of the campaign and litigation was always understood to have climate change benefits. The case therefore can be framed as a climate change case that greatly advances the connection between climate change and human rights. The United Nations Special Rapporteur on Human Rights and the Environment, David Boyd, joined the proceedings in the Deadly Air case as an amicus curiae, providing expert evidence on the connection between air pollution and the fulfilment of human rights.128 Even though the legal basis for preventing air pollution and climate change are not the same, judicial action to mitigate either air pollution or climate change can be considered to be a valuable interconnected action that ultimately serves to mitigate both. To support this contention, the interconnection between air pollution and climate change is well-framed by the European Commission as follows:

[A]ir pollution and climate change influence each other through complex interactions in the atmosphere. Increasing levels of GHGs alter the energy balance between the atmosphere and the Earth’s surface which, in turn, can lead to temperature changes that change the chemical composition of the atmosphere. Direct emissions of air pollutants (eg black carbon), or those formed from emissions such as sulfate and ozone, can also influence this energy balance. Thus, climate change and air pollution management have consequences for each other.129

Therefore, the judicial action observed in the Deadly Air case, in linking air pollution to human rights, is seen as crucial to the argument that advocates for the consideration of climate change litigation in South Africa through a human rights lens.

The decision in Deadly Air can already be compared to the Urgenda decision. Deadly Air and Urgenda share a great similarity in that both cases are heralded as ‘landmark’130 decisions for the application of human rights in the context of climate change litigation – the Deadly Air case for its application of section 24 of the South African Constitution and the Urgenda case for its application of article 2 and article 8 of the ECHR – indicating that both roads lead to the same destination, regardless of the differing underlying complexities.

However, in addition to an increased reliance on human rights grounds in climate cases, South Africa is also moving towards ‘systemic’ approaches in its climate litigation strategy. A current pending matter in the High Court of South Africa, which presents a progression from the Deadly Air case, is the Cancel Coal case, which was instituted in 2021.131 The core objective of Cancel Coal is to determine whether or not the South African state’s decision to procure new coal-fired power is constitutional or not.132 The applicants argue that the construction of a new coal-fired power plant would be an unjustifiable infringement of section 24 of the Constitution, containing the human right to an environment that is not harmful to health or wellbeing, considering that renewable energy generation is a feasible and less costly alternative to coal-fired power generation.133 Therefore, like the applicants in the Deadly Air case, the applicants are seeking to rely directly on human rights protections. In this context, it is also predicted that the appointment in 2022 of a United Nations Special Rapporteur on the Promotion and Protection of Human Rights in the Context of Climate Change (namely, Ian Fry) might play a significant role in climate change litigation on the African continent, including South Africa, and in cementing the link between human rights and climate change litigation in the years to come.134

Conclusion: different roads to the same destination

The discussion in this chapter aimed to answer the following questions in a Dutch and South African context. Firstly, how severe is the alleged danger of climate change and what reductions are required in order to prevent the danger? Secondly, does the state have a legal obligation to make more extensive GHG reductions in view of the danger of climate change?

The Urgenda case, although set in a Global North context, signals an important new era in climate change litigation globally.135 The decision of the Supreme Court of the Netherlands in that case clearly demarcated a movement towards human rights-based climate litigation, evidenced by the Supreme Court’s detailing of the impact of human rights, as contained in the ECHR, on the final decision. Specifically, the Dutch Court found that article 2 and article 8 of the ECHR is violated where the Netherlands does not adhere to the reduction of GHG emissions by 25 per cent in 2020 compared to 1990 levels. In ordering the Dutch state to reduce GHG emissions based inter alia on the ECHR, the Supreme Court cemented human rights-based climate change litigation in order to mitigate the impact of climate change.

On the other side of the globe, climate change litigation in South Africa, specifically when referring to the prominent Earthlife Africa case, is arguably primarily based on aspects related to administrative law, such as EIAs and environmental permits required in terms of NEMA, and not directly on violations of human rights. Earthlife Africa in particular cannot be earmarked as a quintessential illustration of climate change litigation succeeding on human rights grounds, in a manner similar to Urgenda. It also focused very much on the overall implications of coal projects, rather than taking a ‘systemic’ approach to South Africa’s climate policy as a whole. Taking only the decision of the Earthlife Africa case into consideration, the future of rights-based climate litigation in South Africa leaves ample room for ‘novel argumentation’136 that is not necessarily based on NEMA. This is already emerging as the decision in the Deadly Air case is directly based on section 24 of the South African Constitution; the pending Cancel Coal case might lead to a similar outcome. The decided Deadly Air case in particular has changed the South African climate change litigation landscape, making it more comparable to the Dutch landscape when it comes to rights-based climate change litigation.137

The decision of the South African High Court in Deadly Air has reimagined the potential impact of human rights on climate change litigation in South Africa,138 specifically the human right to an environment that is not harmful to health or wellbeing, as contained in section 24 of the South African Constitution. When the approach of the Deadly Air case is studied, it reveals a similarity to the Dutch approach in the Urgenda case, since both jurisdictions illustrate a rights-based approach to climate change litigation, in which ‘a State’s obligations to protect the human rights of people within its jurisdiction [is enforced], whether under a constitution or pursuant to regional or international human rights law’.139 In Urgenda this occurred in terms of article 2 and article 8 of the ECHR, and in Deadly Air this occurred in terms of section 24 of the South African Constitution.

Even though the Dutch approach is based on human rights contained in the ECHR and the South African approach is based on human rights contained in the Constitution, it can be concluded that the two different jurisdictional approaches do reveal different roads leading to the same destination, namely human rights-based climate change litigation in order to mitigate the impact of climate change. Although the same outcome is arguably reached in the Netherlands and South Africa, the underlying complexities in each jurisdiction, in particular including the considerations related to a fair share approach, remain quite different. This is undoubtedly why South Africa’s move to more systemic litigation has been slow. Even so, this means that, within both jurisdictions, human rights are employed to make a considerable impact on either the public law or tort law bases underlying climate change litigation. In addition, this chapter shows how different contextual considerations in the Netherlands and South Africa do not preclude a common-core approach to human rights-based climate change litigation in order to mitigate the impact of climate change.

1

Urgenda Foundation v Kingdom of the Netherlands (Ministry of Infrastructure and the Environment) 2019 19/00135 (Hoge Raad) (English translation). The Urgenda case was first heard in the District Court of the Hague on 14 April 2015, after the suit was instituted against the Dutch State by the Urgenda Foundation and 886 Dutch citizens (collectively referred to as ‘Urgenda’). The initial decision, in favour of Urgenda, was delivered by the court a quo in 2015 and reaffirmed by the Hague Court of Appeal in 2018. Ultimately, the Supreme Court of the Netherlands confirmed the aforementioned two decisions on 20 December 2019, and it is this final decision of the Supreme Court which forms the focus of this chapter.

2

L Maxwell, S Mead and D van Berkel, ‘Standards for Adjudicating the Next Generation of Urgenda-Style Climate Cases’ (2022) 12(1) Journal of Human Rights and the Environment 35, 38.

3

Maxwell, Mead and van Berkel (n 2), 38–9.

4

These questions are based on Roger Cox, ‘A Climate Change Litigation Precedent: Urgenda Foundation v The State of the Netherlands’, CIGI Paper Series No. 79, 4 November 2015, https://www.cigionline.org/publications/climate-change-litigation-precedent-urgenda-foundation-v-state-netherlands/, accessed 13 November 2022.

5

Cox (n 4).

6

M Graziadei, ‘The Functionalist Heritage’ in Pierre Legrand and Roderick Munday (eds), Comparative Legal Studies: Traditions and Transitions 100 (Cambridge University Press 2003); R Michaels, ‘The Functional Method of Comparative Law’, in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford University Press 2019) 2nd ed 341; H Kötz, ‘Comparative Law in Germany Today’ (1999) 51(4) Revue Internationale de Droit Comparé 753–8, 755; M van Hoecke, ‘Methodology of Comparative Legal Research’ (2015) Law and Method 1–35.

7

Kötz (n 6), 755.

8

Kötz (n 6), 755.

9

van Hoecke (n 6). Van Hoecke (n 6), 9, submits that Kötz ‘never seem to have elaborated, or even applied’ the functional method himself. Michaels, in his analysis of the functional method, remarks that the functional method of comparative research is a ‘triple misnomer’ for the following reasons: there is more than one functional method; not all functional methods are indeed ‘functional’; and generally articles claiming to have employed the functional method do not necessarily follow ‘a method’ which can be recognized: Michaels (n 6).

10

Michaels (n 6), 341, 364–80.

11

Michaels (n 6); van Hoecke (n 6), 9.

12

van Hoecke (n 6), 9.

13

van Hoecke (n 6), 8.

14

van Hoecke (n 6), 10.

15

van Hoecke (n 6), 10.

16

For a discussion on the meaning of doctrinal legal context, historical background and socio-economic context, see van Hoecke (n 6), 10.

17

van Hoecke (n 6), 16.

18

van Hoecke (n 6), 16.

19

van Hoecke (n 6), 19.

20

van Hoecke (n 6), 8.

21

For a detailed discussion of this conundrum, see van Hoecke (n 6), 1–35.

22

Urgenda Foundation v The Kingdom of the Netherlands (Ministry of Infrastructure and the Environment) 2015 C/09/456689/HA ZA 13-1396 (Rechtbank Den Haag) (English Translation) (Urgenda Foundation), 4.16; R Cox ‘The Liability of European States for Climate Change’ (2014) Utrecht Journal of International and European Law 126.

23

Urgenda Foundation v The Kingdom of the Netherlands (Ministry of Infrastructure and the Environment) 2015 C/09/456689/HA ZA 13-1396 (Rechtbank Den Haag) (English Translation), 4.17; Urgenda Foundation v The Kingdom of the Netherlands (Ministry of Infrastructure and the Environment) 2019 19/00135 (Hoge Raad) (English translation), 5.6.2.

24

Urgenda Foundation 19/00135 (n 23), 4.2–4.3.

25

IPCC, ‘Special Report, Global Warming of 1.5ºC’, IPCC, https://www.ipcc.ch/sr15/, accessed 29 July 2022.

26

IPCC, ‘IPCC Sixth Assessment Report’, IPCC, https://www.ipcc.ch/report/ar6/wg1/, accessed 29 July 2022.

27

Urgenda Foundation 19/00135 (n 23), 2, 3, 11, 14, 16, 19.

28

Urgenda Foundation 19/00135 (n 23), 16; Du Perron 2019, https://www.youtube.com/watch?v=hCFcyNcYklQ&feature=emb_logo.

29

A Nollkaemper and L Burgers, ‘A New Classic in Climate Change Litigation: The Dutch Supreme Court Decision in the Urgenda Case’, EJIL: Talk!, 6 January 2020, https://www.ejiltalk.org/a-new-classic-in-climate-change-litigation-the-dutch-supreme-court-decision-in-the-urgenda-case/, accessed on 13 November 2022.

30

Nollkaemper and Burgers (n 29).

31

Cox (n 4).

32

Urgenda Foundation C/09/456689 (n 23), 4.35.

33

Urgenda Foundation C/09/456689 (n 23), 4.35.

34

Cox (n 4).

35

Urgenda Foundation C/09/456689 (n 23), 4.36.

36

Urgenda Foundation 19/00135 (n 23), 2.3.1.

37

Urgenda Foundation C/09/456689 (n 23), 4.46.

38

Urgenda Foundation C/09/456689 (n 23), 4.46.

39

Urgenda Foundation C/09/456689 (n 23), 4.42.

40

Urgenda Foundation C/09/456689 (n 23), 4.8, 4.76.

41

Urgenda Foundation C/09/456689 (n 23), 4.43.

42

Urgenda Foundation 19/00135 (n 23), 4.43.

43

Urgenda Foundation 19/00135 (n 23), 4.43. Also see E Stein and AG Castermans, ‘Case Comment – Urgenda v. the State of the Netherlands: The “Reflex Effect” – Climate Change, Human Rights, and the Expanding Definitions of the Duty of Care’ (2017) McGill Journal of Sustainable Development Law 303–24.

44

Cox (n 4).

45

Urgenda Foundation C/09/456689 (n 23), 4.78–9.

46

Urgenda Foundation C/09/456689 (n 23), 4.79.

47

Urgenda Foundation 19/00135 (n 23), 4.6.

48

Urgenda Foundation 19/00135 (n 23), 5.7.1–5.7.9.

49

Urgenda Foundation C/09/456689 (n 23), 4.8, 4.76; World Commission on Environment and Development, Our Common Future (Oxford 1987) 43.

50

Sustainable development is described as ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’: Urgenda Foundation C/09/456689 (n 23), 4.8, 4.76; World Commission on Environment and Development (n 49), 43.

51

Urgenda Foundation C/09/456689 (n 23), 4.57.

52

Urgenda Foundation 19/00135 (n 23), 5.6.2.

53

Cox (n 4).

54

Urgenda Foundation C/09/456689 (n 23), 4.46; Cox (n 4).

55

Du Perron, ‘Uitspraak in de klimaatzaak Urgenda’, Youtube, 2019, https://www.youtube.com/watch?v=hCFcyNcYklQ&feature=emb_logo, accessed 13 November 2022.

56

Urgenda Foundation 19/00135 (n 23), 5.2.2.

57

Urgenda Foundation 19/00135 (n 23), 5.2.2.

58

Urgenda Foundation 19/00135 (n 23), 5.2.3.

59

Urgenda Foundation 19/00135 (n 23), 5.2.3.

60

Urgenda Foundation19/00135 (n 23), 5.2.3.

61

Urgenda Foundation 19/00135 (n 23), 5.2.3.

62

Urgenda Foundation 19/00135 (n 23), 5.2.3, 5.3.2, 5.6.2.

63

Urgenda Foundation 19/00135 (n 23), 5.2.2.

64

Urgenda Foundation 19/00135 (n 23), 5.6.2.

65

Urgenda Foundation 19/00135 (n 23), 5.5.2.

66

Urgenda Foundation 19/00135 (n 23), 5.5.2–5.5.3.

67

Urgenda Foundation 19/00135 (n 23), 5.6.1.

68

Urgenda Foundation 19/00135 (n 23), 5.6.1.

69

Urgenda Foundation 19/00135 (n 23), 5.6.1.

70

Urgenda Foundation19/00135 (n 23), 5.6.2.

71

UNDP, ‘South Africa’, https://www.adaptation-undp.org/explore/southern-africa/south-africa, accessed 31 January 2020; MT Hoffman, PJ Carrick and L Gillson, ‘Drought, Climate Change and Vegetation Response in the Succulent Karoo, South Africa’ (2009) 105 South African Journal of Science 54–60, 54; Sanita van Wyk, ‘Climate Change Law and Policy in South Africa and Mauritius: Adaptation and Mitigation Strategies in Terms of the Paris Agreement’ (2022) 30(1) African Journal of International and Comparative Law 1–24.

72

UNDP (n 71); van Wyk (n 71).

73

Earthlife Africa Johannesburg v Minister of Environmental Affairs, 8 March 2017, Case No. 65662/16, Gauteng High Court Pretoria (South Africa).

74

Earthlife Africa (n 73), para. 82.

75

Whether or not this approach and reduction percentage is an appropriate response in order to successfully mitigate climate change falls outside the bounds of this chapter.

76

Maxwell, Mead and van Berkel (n 2), 38.

77

Maxwell, Mead and van Berkel (n 2), 38–9.

78

B Merven, J Burton and P Lehmann-Grube, ‘Assessment of New Coal Generation Capacity Targets in South Africa’s 2019 Integrated Resource Plan for Electricity’, ESRG, 2021, https://cer.org.za/wp-content/uploads/2021/11/ESRG_New-coal-plants-South-Africa_021121.pdf, accessed 31 July 2022; R Pejan, ‘South Africa’s Youth Take on Coal and the Climate Crises’, Earthjustice, 2021, https://earthjustice.org/from-the-experts/2021-december/south-africas-youth-take-on-coal-and-the-climate-crisis, accessed 31 July 2022.

79

Trustees for the Time Being of Groundwork Trust & Vukani Environmental Justice Alliance Movement in Action v Minister of Environmental Affairs, et al, and The United Nations Special Rapporteur on Human Rights and the Environment (as amicus curiae) 2022, Case No. 39724/2019, High Court of South Africa (Gauteng Division Pretoria), para. 6.

80

Groundwork Trust (n 79), para. 6.

81

Pejan (n 78); Maxwell, Mead and van Berkel (n 2), 53–60.

82

van Wyk (n 71), 1–24. Also see Nicole Loser’s chapter in this volume.

83

van Wyk (n 71), 1–24.

84

Urgenda Foundation C/09/456689 (n 23), 4.79.

85

H Fekete, N Höhne and S Smit ‘What is a Fair Share Emissions Budget for the Netherlands?’, New Climate Institute, 2022, https://newclimate.org/sites/default/files/2022-08/afairshareforthenetherlands_newclimate_20220829.pdf, accessed 15 April 2023.

86

Urgenda Foundation 19/00135 (n 23), 4.6.

87

Urgenda Foundation 19/00135 (n 23), 5.7.1–5.7.9.

88

S van Wyk, The Impact of Climate Change Law on the Principle of Sovereignty over Natural Resources (Nomos 2017) 149.

89

van Wyk (n 88), 149.

90

WP Pauw, P Castro, J Pickering and S Bhasin, ‘Conditional Nationally Determined Contributions in the Paris Agreement: Foothold for Equity or Achilles Heel?’ (2019) 20(4) Climate Policy 468–84, 469; Peggy Schoeman, ‘South Africa’s Climate Change Legal Regime’ (2019) Without Prejudice – Spotlight on Environmental Law 10–11, 10. Also take note of arts 2(2) and 4(3) of the Paris Agreement.

91

van Wyk (n 88), 149.

92

SA Government, ‘South Africa’s Intended Nationally Determined Contribution (INDC)’, SA Government, https://www4.unfccc.int/sites/submissions/INDC/Published%20Documents/South%20Africa/1/South%20Africa.pdf, accessed 4 February 2020 2; SA Government, ‘National Development Plan 2030’, SA Government, https://www.gov.za/sites/default/files/Executive%20Summary-NDP%202030%20-%20Our%20future%20-%20make%20it%20work.pdf, accessed 5 June 2020.

93

Urgenda Foundation 19/00135 (English translation; Du Perron, ‘Uitspraak in de klimaatzaak Urgenda’, Youtube, 2019, https://www.youtube.com/watch?v=hCFcyNcYklQ&feature=emb_logo, accessed 13 November 2022, 14–15; Cox (n 4).

94

Groundwork Trust (n 79).

95

Groundwork Trust (n 79), para. 175.

96

Schoeman, (n 90), 10–11, 11; SA Government, ‘National Development Plan 2030’, https://www.gov.za/sites/default/files/Executive%20Summary-NDP%202030%20-%20Our%20future%20-%20make%20it%20work.pdf, accessed 5 June 2020.

97

Further relevant national legislation includes the Carbon Tax Act 15 of 2019, which commenced on 1 June 2019. Furthermore, in February 2022, the Climate Change Bill of 2018 was introduced to Parliament by the South African Department of Forestry, Fisheries and the Environment (DFFE), and is yet to enter into force.

98

Urgenda Foundation 19/00135 (n 23), 2.3.1. I discuss this in more depth above.

99

T-L Humby, ‘The Thabametsi Case: Case No. 65662/16 Earthlife Africa Johannesburg v. Minister of Environmental Affairs’ (2018) 30 Journal of Environmental Law 145, 146.

100

S Adelman in I Alogna, C Bakker and JP Gauci (eds), ‘Climate Change Litigation: Global Perspectives’ (2021) as referenced in M Burianski, M Clarke, FP Kuhnke and G Wackwitz, ‘Climate Change Litigation in Africa, Current Status and Future Development’, White & Case, 2021, https://www.whitecase.com/publications/insight/africa-focus-autumn-2021/climate-change-litigation-africa accessed 13 November 2022. Also see the chapter of Nicole Loser in this volume.

101

For example: Sustaining the Wild Coast NPC v Minister of Mineral Resources and Energy 2021 Case No. 3497/2021 High Court of South Africa; Africa Climate Alliance v Minister of Mineral Resources & Energy 2021 Case No. 56907/21 High Court of South Africa; The City of Cape Town v National Energy Regulator of South Africa and Minister of Energy 2017 Case No. 51765/17 High Court of South Africa; South Durban Community Environmental Alliance v Minister of Environment 2021 Case No. unknown High Court of South Africa; SDCEA & Groundwork v Minister of Forestry, Fisheries, and the Environment 2021 Case No. unknown High Court of South Africa; Trustees for the Time Being of the GroundWork Trust v Minister of Environmental Affairs, KiPower (Pty) Ltd 2017 Case No. 54087/17 High Court of South Africa; Trustees for the Time Being of GroundWork v Minister of Environmental Affairs, ACWA Power Khanyisa Thermal Power Station RF (Pty) Ltd 2017 Case No. 61561/17 High Court of South Africa.

102

J Peel and J Lin, ‘Transnational Climate Litigation: The Contribution of the Global South’ (2019) 113 American Journal of International Law 679. The first African case to use this approach, wherein a failure to consider climate change impacts results in an unacceptable EIA, was Jonah Gbemre v Shell Petroleum Development Co. of Nigeria Ltd (2005) FHC/B/CS/53/05. However, this case is not discussed as the chapter focuses on the jurisdictions of South Africa and the Netherlands.

103

Earthlife Africa Johannesburg v Minister of Environmental Affairs, 8 March 2017, Case No. 65662/16, Gauteng High Court Pretoria (South Africa).

104

Humby (n 99), 155; Burianski, Clarke, Kuhnke and Wackwitz (n 100).

105

Burianski, Clarke, Kuhnke and Wackwitz (n 100).

106

Schoeman (n 90), 10–11, 11; Earthlife Africa Case No. 65662/16.

107

Earthlife Africa Case No. 65662/16.

108

Earthlife Africa Case No. 65662/16, para. 91.

109

Adelman (n 100).

110

J Peel and HM Osofsky, ‘A Rights Turn in Climate Change Litigation’ (2017) Transnational Environmental Law 1–31, 24.

111

The discussion of the Court dealing sustainable development, within the context of s. 24 of the Constitution of South Africa, is the only relevant discussion of the secondary rights-based approach found within the Earthlife Africa case. See Earthlife Africa Case No. 65662/16, Gauteng High Court Pretoria (South Africa), para. 82. Also see: K Bouwer, ‘The Influence of Human Rights on Climate Litigation in Africa’ (2022) 13(1) Journal of Human Rights and the Environment 157–77.

112

Bouwer (n 111), 157.

113

O Rumble and A Gilder, ‘Climate Litigation on the African Continent’ (2021) KAS, https://www.kas.de/documents/282730/0/Climate_Litigation_Africa.pdf/1450e939-d100-a70e-8a9d-315161f96024, accessed 13 November 2022.

114

Bouwer (n 111), 157–77, 173.

115

Philippi Horticultural Area Food & Farming Campaign v MEC for Local Government, Environmental Affairs and Development Planning: Western Cape 2019 Case No. 16779/17 High Court of South Africa.

116

Groundwork Trust (n 79).

117

Africa Climate Alliance v Minister of Mineral Resources & Energy et al (Pending) filed 2021, High Court of South Africa.

118

Philippi Horticultural (n 115), para. 80.4.

119

Philippi Horticultural (n 115), para. 102.

120

Philippi Horticultural (n 115), para. 71.

121

Philippi Horticultural (n 115), para. 130.

122

Bouwer (n 111), 157–77, 177.

123

Groundwork Trust (n 79).

124

Business & Human Rights Resource Centre, ‘S Africa: Landmark “Deadly Air” Pollution Case Against the Government Finally Gets to be Heard in Court’, (2021) Business & Human Rights Resource Centre, https://www.business-humanrights.org/en/latest-news/s-africa-landmark-deadly-air-pollution-case-against-the-government-finally-gets-to-be-heard-in-court/, accessed 31 July 2022; L Myllyvirta, ‘Eskom is Now the World’s Most Polluting Power Company’ (2021) CREA, https://energyandcleanair.org/wp/wp-content/uploads/2021/10/Eskom-is-now-the-worlds-most-polluting-power-company.pdf, accessed 31 July 2022; van Wyk (n 71), 1–24.

125

Groundwork Trust (n 79), para. 10.

126

Groundwork Trust (n 79), para. 10.

127

Centre for Environmental Rights (CER), ‘Analysis: Why the #DeadlyAir High Court judgment matters’, (2022) CER, https://cer.org.za/news/analysis-why-the-deadlyair-high-court-judgment-matters accessed 21 July 2022; K Rigg, ‘Landmark Dutch Lawsuit Puts Governments Around the World on Notice’ (2015) Huffington Post, http://www.huffingtonpost.com/kelly-rigg/landmark-dutch-lawsuit-pu_b_7025126.html, accessed 31 July 2022.

128

Business & Human Rights Resource Centre (n 124).

129

European Commission, ‘Combined Policies for Better Tackling of Climate Change and Air Pollution’ (2010) 24 Science for Environment Policy, Special Issue, Air Pollution and Climate Change, https://ec.europa.eu/environment/integration/research/newsalert/pdf/24si_en.pdf, accessed 31 July 2022.

130

CER (n 127); Rigg (n 127).

131

Africa Climate Alliance v Minister of Mineral Resources & Energy (Pending) filed 2021, High Court of South Africa.

132

Grantham Research Institute on Climate Change and the Environment, ‘Climate Change Laws of the World’ Grantham Research Institute on Climate Change and the Environment, https://climate-laws.org/geographies/south-africa/litigation_cases/africa-climate-alliance-et-al-v-minister-of-mineral-resources-energy-et-al-cancelcoal-case, accessed 31 July 2022.

133

Life after coal / Impilo Ngaphandle Kwamalahle, ‘Youth-led #CancelCoal Climate Case Launched Against Government’s Plans for New Coal-Fired Power’ (2021) Life after coal / Impilo Ngaphandle Kwamalahle, https://lifeaftercoal.org.za/media/youth-led-cancelcoal-climate-case-launched-against-governments-plans-for-new-coal-fired-power, accessed 31 July 2022.

134

CER (n 127); OHCHR, ‘Special Rapporteur on climate change’, 2022, https://www.ohchr.org/en/specialprocedures/sr-climate-change, accessed 31 July 2022.

135

van Wyk (n 88), 328–33; Maxwell, Mead and van Berkel (n 2), 61.

136

Peel and Osofsky (n 110), 26.

137

Peel and Osofsky (n 110), 26.

138

Bouwer (n 111), 157–77, 175.

139

Maxwell, Mead and van Berkel (n 2), 39.

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