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WHAT IS THE BASIS OF THE COURT ACTION The authorisation of Eskom?’s proposed pebble bed modular reactor came under judicial scrutiny on 29 ?– 30 November 2004 as a full bench considered whether the authorisation of the plant given on 25 June 2003 was unlawful. The applicant in the case was Earthlife Africa a non governmental, non profit, voluntary association of environmental and social activists in Cape Town. Its purpose is to campaign against environmental injustices in the Cape Town area and to participate in environmental decision making processes with a view to promoting and lobbying for good governance and inform decision making. It brings the application to review the authorisation on its own behalf and in the public interest. Earthlife Africa argued that the Director General who authorised the plant was obliged to afford them a fair hearing before taking the decision to grant the authorisation and failed to, that he failed to properly address the problems posed by nuclear waste and he abdicated responsibility to properly consider safety issues by deferring to the national nuclear regulator. The environmental impact assessment (EIA) for the PBMR was undertaken by consultants. The public including Earthlife Africa commented on the draft EIA document and also made vigorous efforts to obtain access to further information and documents relating to the draft environmental impact assessment from government, Eskom, the consultants and others. Their efforts were however largely unsuccessful. After receiving submissions the consultants produced a final environmental impact report which it submitted to the Department of Environmental Affairs & Tourism. However no opportunity was given to interested parties to comment on it. On 21 May 2003, Earthlife Africa launched an unsuccessful application to the Transvaal provincial division of the High Court for access to all the information that Eskom had placed before the Director General in support in of its application for authorisation, and for a reasonable opportunity to make representations to the Department on his decision whether to grant or refuse Eskom?’s application. The application failed due to the fact that the court found that it was not an urgent application. The authorisation was then granted. One of Earthlife Africa?’s key objections is that the final environmental impact assessment report contains a substantial number of documents that were not previously made available to the public including extracts from the safety analysis report. Another concern raised by Earthlife Africa is the fact that the Director General should have considered the views of the national nuclear regulator on the safety of the project before coming to his decision to make his own judgment on these issues. The NNR has expertise in this area that is not otherwise available to the Director General. However he put the cart before the horse by making his decision before the NNR had formed and communicated its views to him. That is what the scoping report envisaged, namely that as part of the EIA process the views of the NNR on the safety of the PBMR would be included in the EIR documentation. Earthlife Africa asked for the authorisation to be set aside and for the respondents to pay the applicant?’s costs. The first respondent (Director General, Department of Environmental Affairs & Tourism) argued that the environmental impact assessment regulations make provision for a procedure which is fair but different from the provisions of sub section 2 of the Promotion of the Administration of Justice Act and therefore even though an oral hearing was not given, Earthlife Africa did have a proper hearing. Regarding the issue of safety and waste the Director General argued that he was satisfied that these issues would not pose a threat to the environment that could not adequately be managed and mitigated. Back to previous page ?? |
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