Offshore drilling project halted in landmark high court victory for coastal communities against Shell, TotalEnergies 14 August

In a landmark victory for civil society and coastal communities, the Western Cape High Court has set aside the South African government’s decision to grant environmental authorisation for offshore drilling in Block 5/6/7, along the South-West Coast. Judge Mangcu-Lockwood delivered her judgment on Wednesday, 13 August. Following an intense legal challenge by The Green Connection and Natural Justice that exposed serious flaws in how the environmental and social risks were evaluated, the court has now returned the matter to the Department of Minerals and Petroleum, requiring fresh assessments, additional information, and public participation. While the authorisation was initially granted to TotalEnergies EP South Africa (Teepsa), Total intends to transfer the environmental authorisation to Shell, for Shell to conduct the drilling.

Shahil Singh, Legal Advisor to The Green Connection, said the court found the Environmental Impact Assessment (EIA) failed to fully examine the consequences of a major oil spill on local and neighbouring coastal communities, ignored coastal protection laws, and omitted critical climate and fairness considerations.

In addition to setting aside the environmental authorisation, the court ordered that a fresh decision be made. Before any approval can be reconsidered, Total must submit new or amended assessments that fully examine the socio-economic impacts of a well blowout on coastal communities, the project’s full lifecycle climate impacts, all factors required under the Integrated Coastal Management Act, potential cross-border impacts on Namibia, and detailed oil spill response plans. The new information must also be subject to public consultation before a decision is taken.

Five major failures stood out:

1. No proper study of what a disaster would mean for communities

While the project’s Environmental Impact Assessment admitted that a blowout or oil spill could cause serious damage to the coastal environment, it did not assess the full economic and social impacts on the small-scale fishers and coastal communities who depend on these waters for food and income.

To the extent that there are limitations in conducting assessments, the court found that a cautious approach must be taken, and that a lack of scientific certainty could not be used as a reason for postponing measures to prevent environmental degradation.

1. Ignoring coastal protection laws

The project lies in South Africa’s exclusive economic zone, in waters which are considered to be “coastal public property”. The National Environmental Management: Integrated Coastal Management Act confers a special legal status on coastal public property, affording the environment a higher level of protection.  It requires that decision-makers pay special attention to additional factors when taking decisions which affect the coastal environment. The court found that these factors were not considered by the decision-makers.

1. Climate change impacts not properly assessed

A key part of environmental impact assessment processes is the determination of the need for and desirability of the project. The court confirmed that the assessment of climate change impacts should form part of this assessment, It also confirmed that because oil and gas exploration and production (commercial exploitation) activities are intertwined, it makes no sense to rely on positive benefits of production, but not the negative climate change consequences, as Total had done.

1. No assessment of cross-border harm

The ocean doesn’t recognise national borders. Scientific spill modelling for the project showed that oil from a disaster could reach the waters and shores of Namibia. International law, and South Africa’s own laws, require that the impacts on our neighbouring countries should be considered, and that there was an obligation for the environmental impact assessment to consider the harms caused by transboundary impacts, and for this to be considered by the decision-makers. The court found they simply did not.

1. The public was kept in the dark on key emergency plans

Two critical documents, the Oil Spill Contingency Plan and the Blowout Contingency Plan, were not made public before approval.  These documents describe how Total intends to modify, remedy, control or stop an oil spill resulting from a well blow-out. This meant interested and affected parties, including communities who would be most impacted in the event of an oil spill, could not comment on how the company planned to respond to a disaster. The court found that the lack of this information meant that there had not been a full assessment and description of the manner in which Total intends to respond to pollution or environmental degradation, as required by the National Environmental Management Act.  The court found it even more problematic that there was no public participation in relation to the response plans.