South African environmental law is undergoing a decisive shift. This shift affects how climate change considerations are integrated into environmental authorisation (EA) decision-making.
Courts increasingly recognise climate change as a material factor within the “need and desirability” assessment under the National Environmental Management Act 107 of 1998 (NEMA). This applies particularly to fossil-fuel developments. In addition, climate change assessments now form a central component of this evolving legal framework.
Evolving judicial direction
At the same time, this judicial trend aligns with the publication of the Draft National Guideline for the Consideration of Climate Change Implications in Applications for Environmental Authorisations. This guideline was published under section 24J of NEMA on 24 October 2025 (Draft National Guideline). Climate change assessments will play a key role once this guideline is finalised.
Once finalised, the Draft National Guideline will become a mandatory consideration for competent authorities. They must apply it when determining EA applications. In addition, they must consider other relevant factors listed in section 24O of NEMA. Consequently, climate change assessments will carry greater regulatory weight.
Key court decisions shaping the framework
Two recent superior court judgments confirm a clear legal position. These are Green Connection NPC and Another vs Minister of Forestry, Fisheries and the Environment and Others and South Durban Community Environmental Alliance and Another vs Minister of Forestry, Fisheries and the Environment and Others. Both decisions confirm that inadequate climate change impact assessments can render EA decisions unlawful.
At the same time, the Supreme Court of Appeal granted leave to appeal in Green Connection. The appeal focuses on whether a climate change impact assessment, including Scope 3 emissions, is required at the exploration phase or only at the production phase. As a result, climate change assessments remain a contested issue in the upstream petroleum sector.
Applicants, competent authorities, and company boards must therefore navigate a developing regulatory landscape. In this environment, judicial doctrine evolves faster than settled policy and statutory clarity.
The current regulatory framework
Section 24O of NEMA, read with the Environmental Impact Assessment Regulations, 2014, sets out key requirements. It requires an EA applicant to justify the “need and desirability” of a proposed development. This assessment is grounded in sustainable development principles. It balances present socio-economic needs with the rights of future generations.
Furthermore, the Department of Forestry, Fisheries and the Environment’s Guideline on Need and Desirability, 2017, directs applicants to consider South Africa’s climate change commitments.
Importantly, section 24O of NEMA requires competent authorities to consider all relevant factors. These include applicable guidelines published under NEMA, departmental policies, environmental management instruments and any other relevant information. Therefore, climate change assessments must be evaluated alongside economic development, energy security, and the protection of existing rights.
Constitutional and administrative-law foundations
The constitutional and administrative-law basis for this framework is well established. In Fuel Retailers Association of Southern Africa vs Director-General Environmental Management, the Constitutional Court held that failure to consider a relevant environmental impact renders an administrative decision reviewable.
This principle was later developed in Earthlife Africa Johannesburg vs Minister of Environmental Affairs and Others. In that case, the court confirmed that a formal expert climate change impact assessment provides the clearest evidence of proper consideration.
Subsequently, Sustaining the Wild Coast NPC and Others vs Minister of Mineral Resources and Energy and Others extended this reasoning. The court emphasised that climate change impact assessments must consider the full lifecycle of fossil-fuel activities. This lifecycle culminates in production and combustion. Therefore, exploration and production form interconnected stages of a single process.
Scope, timing and proportionality challenges
In Green Connection, environmental organisations successfully reviewed the grant of an EA to TotalEnergies EP South Africa. The authorisation is related to offshore oil and gas exploration.
The Western Cape High Court found that the environmental impact report was deficient. It failed to quantify greenhouse gas and fugitive emissions from potential gas combustion. It also failed to consider renewable energy alternatives. In addition, it did not adequately explain mitigation measures.
The court rejected the argument that the climate assessment could be deferred until the production phase. Instead, it held that exploration and production form part of a continuum. Therefore, decision-makers must conduct climate change assessments meaningfully at the exploration stage. However, the Supreme Court of Appeal has granted leave to appeal on this issue. As a result, courts have not yet settled whether climate change impact assessments, including Scope 3 emissions, must occur at exploration or production stages.
This uncertainty has significant implications for petroleum rights holders. It raises questions about whether separate assessments are required at each regulatory stage. Alternatively, a single comprehensive approach to climate change assessments may suffice.
The appropriate temporal and evidential scope of Scope 3 emissions quantification also remains unresolved. This is particularly relevant where commercial viability and downstream use remain speculative. Importantly, the eventual precedent may affect other extractive industries.
Renewable alternatives and emissions scope
In SDCEA, the Supreme Court of Appeal considered an EA granted to Eskom. The authorisation related to a proposed 3,000 MW gas-to-power plant.
The applicants argued that the environmental assessment failed to adequately consider greenhouse gas emissions and renewable energy alternatives. In response, Eskom and the State relied on the Integrated Resource Plan 2019 and national energy security considerations. However, the court rejected this argument. It held that while the IRP is relevant, it cannot override NEMA’s mandatory requirements.
Authorities must assess climate change impacts and reasonable alternatives, including the “no-go” option. Therefore, compliance with energy policy alone is insufficient. Decision-makers must engage substantively with climate change assessments in every EA decision.
Protection of rights and governance implications
The requirement to assess Scope 3 downstream combustion emissions remains highly contested. In R (on the application of Finch) vs Surrey County Council, the United Kingdom Supreme Court held that Scope 3 emissions must be assessed when they are an inevitable consequence of a development. However, Finch was concerned about a production project. In that case, combustion of extracted oil was certain.
By contrast, exploration rights involve uncertainty. Discovery, commercial viability and end-use may all vary. At the early exploration stage, the quantum of potential reserves remains unknown. In addition, downstream uses may include non-combustion applications. Multiple regulatory approvals also separate exploration from production.
These uncertainties make Scope 3 quantification at the exploration stage inherently speculative. Therefore, a proportional and tiered assessment regime is necessary. Such a regime aligns administrative burden with technical certainty and improves the reliability of climate change assessments.
The Draft National Guideline also requires assessment of climate-related financial risks, including transition risks and stranded assets. Without clear limits, this may indirectly constrain existing or pending rights granted under the MPRDA.
Authorities must balance climate considerations against constitutional imperatives. These include development, energy security and job creation.
Uncertainty regarding future carbon budget allocations
Uncertainty is further compounded by the Climate Change Act 22 of 2024. Sections 26 and 27 establish frameworks for listed greenhouse gases, listed activities and carbon budgets. However, these provisions are not yet in operation.
For petroleum operators, this creates material investment risk. Long-term projects face uncertainty regarding future carbon budget allocations and possible retrospective application. Consequently, this uncertainty may deter foreign direct investment and undermine viable projects.
Directors must also respond to these developments. Under section 76(3) of the Companies Act 71 of 2008, they must manage climate-related risks. Climate change presents foreseeable financial and regulatory risks. Therefore, boards must ensure that climate change assessments adequately address these risks. Failure to do so may expose directors to negligence claims.
The path forward
Green Connection and SDCEA strengthen the growing body of legal precedent. These cases confirm that climate change impact assessments are central to EA decision-making. Courts now expect meaningful engagement with greenhouse gas emissions, renewable alternatives and long-term sustainability. Policy compliance alone is no longer sufficient.
Once finalised, the Draft National Guideline will play a critical role. It will provide regulatory certainty by embedding proportionality and methodological clarity into climate change assessments.
A differentiated approach is necessary. Reconnaissance permits and non-invasive exploration should involve streamlined screening. This screening should focus on Scope 1 and Scope 2 emissions. In contrast, invasive exploration should require a focused Scope 1 and Scope 2 assessment. Authorities should only require Scope 3 analysis once commercial discovery becomes reasonably foreseeable. Finally, production and development applications justify comprehensive Scope 3 quantification. They should also include detailed climate scenario analysis.
 |
 |
| Garyn Rapson | Partner | mail me | | Gaura Moodley | Trainee Attorney | mail me | |
| | Webber Wentzel | | |
