Please find below the following interesting readings and opportunity to comment – applicable to the environmental field.

Policy:

1 . National Environmental Management Act 107 of 1998 – GN 1496 in GG 42849 of 22 November 2019 – Consultation on the intention to amend the EIA Regulations, 2014, as amended (regulation 54A).

Notice:

  1. National Environmental Management: Biodiversity Act 10 of 2004 – Gen Notice 607 in GG 42839 of 15 November 2019 – Draft National Botanical Garden Expansion Strategy 2019-2030 – for comment.

Environmental law:

  1. Blumm Michael “A Dozen Landmark Nuisance Cases and Their Environmental Significance” 62 Arizona Law Review (forthcoming 2020); and,
  2. Blumm Michael “Environmental Law at 50: A Cutting-Edge Journal Examining the Central Issues of Our Time” 50 Environmental Law (forthcoming 2020).

 

Interesting readings:

Climate change and energy:

  1. Arnoldi M “Sasol sets out plan to cut emissions by 10% by 2030” Mining Weekly 5 November 2019 [provided by Andrew Gilder ClimateLegal];
  2. Steyn L “Sasol links executive pay to climate-change targets” Business Day 5 November 2019 [Legalbrief 7 November 2019];
  3. Harvey F “Global investment in cutting greenhouse gases fell by 11% in 2018” The Guardian 7 November 2019 [provided by Andrew Gilder ClimateLegal];
  4. Omarjee L “Sowetans should pay flat rate of R150/month for electricity – it will foster payment culture, says ANC councillor” fin24 13 November 2019 [Legalbrief 14 November 2019];
  5. Ambrose J “Methane emissions from coalmines could stoke climate crisis – study” The Guardian 15 November 2019 [provided by Andrew Gilder ClimateLegal]
  6. IOL: Magome M “Pics: Deadly drought is leaving millions in southern Africa hungry” 21 November 2019;
  7. Hlatshaneni S “SA’s new ‘green’ car taxes once again aim at a ‘soft target’” The Citizen 18 November 2019 [Legalbrief Environmental 19 November 2019];
  8. “Refuted: Green light for Western Cape to source energy direct from IPPs” ESI Africa 19 November 2019; and,
  9. Roelf W “Eskom, which uses coal-fired power plants, has been granted a reprieve until 2020 to meet air emissions standards” Business Day 20 November 2019.

Miscellaneous:

  1. Weston P “‘Failure on pretty much every aspect’: Government condemned as UK set to miss key environmental goals” The Independent 17 November 2019;
  2. African Development Bank Group: “African has grasped the Fourth Industrial Revolution, according to African Development Bank report, but its role globally could be even bigger” 13 November 2019; and,
  3. Daily Maverick: Wayland D “From plastic bottle to … plastic bottle: how Cape Town recycles” 22 November 2019.

Water sanitation and chemicals:

  1. Brown T “Supreme Court hears arguments on Clean Water Act” The Jurist 7 November 2019;
  2. GroundUp: Damba-Hendrik Nombulelo “Dams empty in Eastern Cape The Gcuwa and all dams supplying Butterworth and surrounding areas are dry” 14 November 2019;
  3. Mail & Guardian: Pillay S “How our urine and faeces can be used to fuel growth and create a cleaner environment” 23 November 2019; and,
  4. Taylor D “Court fines Weetabix £140,000 for polluting river near factory” The Guardian 22 November 2019.

Mining:

  1. Mabuza E “ConCourt overturns Zwane, Molewa’s permission to mine in protected area” TimesLive 18 November 2019 [Legalbrief 19 November 2019].

Biodiversity:

  1. Lubbe WD and Kotze LJ “Holistic Biodiversity Conservation in The Anthropocene: A Southern African Perspective” 2019 27(1) African journal of international and comparative law/Revue africaine de droit international et compare 76-99;
  2. Harrisberg K “Johannesburg seeks to avert ‘ecological disaster’ from beetle-infested trees” Place 11 November 2019;
  3. Watts J “The Amazon: on the frontline of a global battle to tackle the climate crisis” The Guardian 17 November 2019; and,
  4. Cockburn H “Half of the world’s donkey population could be killed in next five years amid surge in demand for Chinese medicine” The Independent 22 November 2019.

 

Interesting cases:

National:

  1. Jegede AO and Makulana AW “Climate change interventions in South Africa : the significance of Earthlife Africa Johannesburg v Minister of Environmental Affairs (Thabametsi case) [2017] JOL 37526 (GP)” 2019 Obiter 399; and,

 

  1. Criminal: Wife of perlemoen poaching kingpin to appeal

“Marshelle Blignault, former wife of convicted perlemoen poaching kingpin Morne Blignault, will appeal her 12-year prison sentence in the Eastern Cape High Court (Grahamstown) next week, says a Daily Dispatch report. Blignault was sentenced in March to 12 years in prison for her ‘management’ role in the lucrative and illegal poaching enterprise created and run for more than a year by her ex-husband from a remote farm near Addo. The couple managed the poaching ring from the farm where they processed, cooked and packaged the perlemoen ripped from along the Port Elizabeth coastline. Morne was sentenced to 20 years in prison for racketeering and contravening the Marine Living Resources Act. At the time of their arrest in August 2014, they were found with more than six tons of perlemoen worth more than R5m.” Full Daily Dispatch report (subscription needed) Legalbrief 7 November 2019.

International:

 

  1. La Rose v. Her Majesty the Queen T-1750-19 (Federal Court of Canada) Fifteen children and youths have brought suit against the Queen and Attorney General of Canada, alleging that Canada emits and contributes to emitting greenhouse gases that are incompatible with a stable climate. The plaintiffs argue that Canada’s actions have violated their rights under the Charter of Rights and Freedom, as well as the rights of present and future Canadian children. They seek declaratory relief and an order requiring the government to adopt a Climate Recovery Plan.”

 

  1. Natural Resources Defense Council, Inc. v. Perry, No. 18-15380 (9th Cir. Oct. 10, 2019)

“The Ninth Circuit Court of Appeals agreed with a district court that a U.S. Department of Energy (DOE) regulation imposed a non-discretionary duty on DOE to publish four energy conservation standards approved by DOE at the end of the Obama administration. The Ninth Circuit therefore lifted its stay on the district court’s order directing DOE to publish the standards in the Federal Register. The standards at issue covered portable air conditioners, commercial packaged boilers, uninterruptible power supplies, and air compressors.”

 

Living Rivers Council v. County of Napa, Nos. A154253, A154300, A154314 (Cal. Ct. App. Sept. 30, 2019)

  1. “The California Court of Appeal found that the Center for Biological Diversity (CBD) demonstrated that an environmental impact report’s (EIR’s) conclusion that a vineyard-conversion project would not have a significant impact on greenhouse gas emissions was not supported by substantial evidence. Although the court agreed with the respondent, Napa County, that woodland preservation could mitigate the project’s greenhouse gas emissions, the court concluded that such preservation would not have mitigation or offset value if the trees “would have reasonably remained otherwise.” In this case, the court said substantial evidence did not support an inference that “trees to be permanently conserved would not reasonably have remained on the property” since the EIR did not identify the location of woodland acres that would be preserved and 40% of the property was currently undevelopable under local regulations. The court rejected other climate change arguments made by CBD, deferring to the County’s choice of methodology regarding the accounting for loss of carbon sequestration due to tree removal and regarding the calculation of greenhouse gas emissions from downed trees.”

 

  1. Center for Biological Diversity v. Bernhardt, No. 1:19-cv-02869 (D. Colo., filed Oct. 8, 2019)

“Center for Biological Diversity and two other groups filed a lawsuit in federal court in Colorado challenging BLM’s approval of a resource management plan in western Colorado that applied to 1,061,400 acres of BLM-administered surface land and 1,231,200 acres of BLM-managed federal mineral estate. The plaintiffs alleged that the plan made 935,600 acres available for oil and gas leasing and that BLM projected that 3,940 wells would be drilled. They asserted that BLM violated NEPA by failing to address foreseeable indirect impacts from downstream combustion of oil and gas resources and by failing to consider cumulative effects to the climate caused by foreseeable oil and gas production under the plan in combination with BLM’s nationwide public lands oil and gas program. The plaintiffs also said BLM’s failure to consider alternatives to oil and gas leasing and development violated NEPA.”

 

  1. National Parks Conservation Association v. Virginia Electric & Power Company Civil Action No 1:17-cv-01361-RCL; National Trust for Historic Preservation in the United States and Association for the Preservation of Virgina Antiquities v. Todd T Semoninte et al Civil Action 1:17-cv-01574-RCL Court Order and Ruling

“On March 1, 2019, the D.C. Circuit determined that the U.S. Army Corps of Engineers … violated the National Environmental Policy Act (‘NEPA’) by failing to complete an Environmental Impact Study (‘EIS’) before issuing a permit to the Virginia Electric and Power Company to construct the Surry-Skiffes Creek-Whealton project. The D.C. Circuit, however, was unaware that the project was completed shortly before they issued their opinion. Upon Learning of the project’s completion shortly thereafter, the D.C. Circuit remanded the case to this Court to determine the appropriate remedy.

Before turning to the ultimate question of whether vacatur is proper, two threshold questions must be addressed: (1) whether defendants waived or forfeited the right to contest that vacatur is the appropriate remedy; and (2) whether defendants are judicially estopped from contesting that vacatur is the appropriate remedy. For the reasons set forth below, this Court finds that waiver, forfeiture, and judicial estoppel are all inapplicable here. Furthermore, the Court finds that vacatur of the permit is not appropriate in this case. The Court will therefor remand to the Corps without vacatur but with instructions to complete an EIS in accordance with the D.C. Circuit’s ruling.”

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