German Environment Minister Barbara Hendricks said on Wednesday that a court ruling that declared Germany’s nuclear fuel tax illegal was a “colossal irritation”.
The ruling from the Constitutional Court raised the prospect of a 6 billion euro ($6.8 billion) refund to utilities at a time of strained balance sheets.
Hendricks, a member of the Social Democrats (SPD) – the junior partner in Chancellor Angela Merkel’s ruling coalition – said the 2009-2013 government, which was made up of Merkel’s conservatives and the Free Democrats (FDP), had caused “chaos” in nuclear policy.
“The fact that this bodge (of the previous government) is paying out for the nuclear power companies years later makes the Constitutional Court’s ruling a colossal irritation,” Hendricks said.
(Reporting by Markus Wacket; Writing by Michelle Martin; Editing by Madeline Chambers)
La Manche Libre 26th May 2017, two associations filed an appeal to the Council of State for excess of power in the file of the EPR Flamanville (Manche). On Thursday, March 23, 2017, the State had authorized the construction site of the Flamanville EPR for three years more than the initial period of 10 years.
A decision today challenged by two associations, the Crilan (Committee for Reflection, Information and Anti-Nuclear Struggle) and Our Affair to All. On Tuesday, May 23, 2017, they appealed to the Conseil d’Etat for an abuse of power. The application relies on two points of the law of 13 June 2006 on transparency and security in nuclear matters: The fact that the law imposes a time limit for such a project and that it has not been respected. “There are no regulations that allow the state to change the duration of a decree,” advocates the lawyer of Caen Gervais Doutressoulle.
According to him, a new decree should have been taken, but this would have led to a new public consultation. The law also states that, in the event of a “significant” or”substantial” change, the authorization decree then lapses. A new text is needed. The recourse lists nine sets of modifications in relation to the project presented initially. He cites, for example, the composition of the tank, whose fate is expected to be known this summer, the cost spent from 2.8 billion euros to more than 10 billion euros, or the choice of fuel.
If you can’t beat them, sue them. Citizens are increasingly taking governments to court over climate change inaction, with financial lenders – and possibly big firms – next in the firing line.
Some 894 climate change cases have now been filed in 24 countries, according to a report published last week by the United Nations Environment Programme and Columbia Law School’s Sabin Center for Climate Change Law in New York.
By some distance, most – 654 – have been in the US. Australia sits in second place, with 80 cases, and the UK third, with 49. The number of countries with climate cases has tripled since 2014.
Citizens have filed the vast majority of these cases against governments, with a handful lodged against fossil fuel companies.
Separately, campaign group ClientEarth has written to energy giants BP and Glencore warning them of the risk of investor lawsuits based on over-optimistic statements about future fossil fuel demand in their reporting.
Wins and losses
Recent years have seen significant wins for climate change cases. Environmental group Urgenda, for example, won a landmark case in 2015 that forced the Dutch government to commit to bigger emissions cuts. And in 2015, a Pakistani farmer successfully sued his government for failing to implement adequate climate change action.
Others have not had the same success. Last year, the Australian Conservation Foundation lost a legal battle over the Australian government’s approval of the Adani Carmichael coal megamine. And in the UK, fracking activists recently lost a case against a shale gas operation.
However, the success rate of climate cases is likely to grow following the Paris agreement, says the report. Under the accord, which was ratified late last year, each country is committed to specific emissions targets.
Although these commitments are not legally binding, they make it “possible for constituents to articulate more precisely and forcefully concerns about the gaps between current policy and the policy needed to achieve mitigation and adaptation objectives”, say the authors.
This is already starting to take effect. In March, EarthLife Africa successfully challenged the South African government’s approval of a new coal-fired power station. The high court decision was based partly on the country’s commitment to the Paris agreement.
Getting creative
Legal teams are also finding innovative ways to hold governments to account over climate change, says Brendan Sydes at Environmental Justice Australia. “There’s a whole international effort – a lot of energy and intellect is being poured into developing new legal remedies,” he says.
One example is in the US, where 21 youths have filed a case against the government for failing to safeguard their futures from dangerous climate change. Instead of appealing to environmental laws, the youths have invoked the “public trust doctrine” – an ancient principle holding that certain natural resources belong to everyone and must be protected by the state.
Banks and other financial institutions that lend money to fossil fuel projects may also find themselves the subject of legal action, Sydes says. There is an increasing recognition that directors who fail to consider climate risks could be liable for breaching their duty of due care and diligence, he says.
This is already causing some businesses to distance themselves from carbon-heavy investments, he adds. For example, Australia’s four major banks have all recently ruled out providing loans for construction of the Adani Carmichael mine. And worldwide, almost 700 institutions in 76 countries have committed to ending their investment in fossil fuel companies.
The growth of such litigation worldwide shows that many citizens hope courts can force governments and corporations to act on climate change, says Sydes. “People are increasingly turning to the courts to find duties and obligations of governments and corporations who are currently not acting sufficiently on climate change,” he says. “This trend is likely to continue.”
UK nuclear industry faces Brexit fall-out, Climate News Network, May 17, 2017, by Paul Brown, Leaving the EU treaty that prevents radioactive materials falling into the wrong hands could prove costly for the UK nuclear industry.
LONDON, – The UK’s vote to leave the European Union has put the country’s nuclear industry at risk because its trade in radioactive materials will be forbidden under international law.
In the worst case scenario, legal experts say, the lights could go out in the UK, but they think the more probable outcome is simply that the government will find itself with an expensive industrial problem and an embarrassing diplomatic mess.
The unintended consequence for the British nuclear industry of last year’s referendum vote to leave the EU is that the decision will also take the UK out of the Euratom treaty that protects the EU’s nuclear industry against radioactive material falling into the hands of rogue states or terrorist groups.
Nuclear power stations already provide about one-fifth of the UK’s electricity, and the government has ambitious plans to build at least 10 more reactors as part of its strategy to cut carbon emissions.
It has withdrawn subsidies from onshore wind and solar power, and underwritten new nuclear stations instead.
However, the industry relies on foreign companies − based both in the EU and outside − that provide parts, fuel and raw materials. When the UK leaves Euratom, this trade will be contrary to international law.
Tom Greatrex, chief executive of the Nuclear Industries Association, which represents 260 companies, says: “There is scope for real and considerable disruption.”
Nuclear materials
The Euratom safeguards are applied by the European Commission to provide confidence that nuclear materials in the EU are not diverted from their declared end use, which is producing electricity from uranium and plutonium, and dealing with the waste that results.
This enables countries inside the EU to trade with other member states in construction and providing parts and staff for nuclear power stations. It also allows trade in such dangerous materials as plutonium, uranium and spent fuel, provided it is both safe and for peaceful purposes.
There is no precedent for a member state leaving the EU. But, in theory, when the UK does so − and therefore leaves Euratom − possibly as soon as two years from now, this trade must cease, otherwise member states will be breaking the terms of the treaty.
This would effectively paralyse not only the UK industry, which relies on international trade to survive, but also many of its trading partners in the EU, and also Japan, China and the US, all of which the UK has nuclear deals with that would need a new safeguard regime in place in order to continue…….
Dame Sue Ion, chair of the Nuclear Innovation and Research Advisory Board, which was established by the UK government in 2013, said a whole lot of new international agreements would have to be in place before anything in the nuclear sector could be transferred between countries.
Sweden shuts down Julian Assange rape investigation, TT/The Local news@thelocal.se 19 May 2017, Swedish prosecutors have decided to end the rape investigation into Julian Assange and lift the Europe-wide arrest warrant against him, but UK police say they will still arrest him.In a statement on its website, the Swedish prosecution authority said that the “Director of Public Prosecution, Ms Marianne Ny, has today decided to discontinue the investigation regarding suspected rape (lesser degree) by Julian Assange”.
“With the consideration that all options of moving the investigation forward are now exhausted it appears that – in light of the views expressed by the Supreme Court (Högsta domstolen) on the proportionality of remanding someone in absentia – it is no longer proportional to maintain the decision to remand Julian Assange in his absence and maintain the European arrest warrant,” Ny wrote in her notification to Stockholm District Court.“I have therefore today lifted the decision to remand Julian Assange in his absence,” she added.
No longer Swedish matter’ – Assange’s lawyer on dropping investigation into WikiLeaks founder
In a press conference later in the day, Ny elaborated that it was not possible to formally serve Assange with notice of the suspicions against him, a prerequisite under Swedish law if the investigation was to progress further:
“Ecuador granted legal assistance and made it clear that all measures would be performed with full voluntary participation of Mr. Assange (…) Formal issues are important in a legal system in terms of legal certainty, it is important to be able to serve the suspect with suspicions. The decision to discontinue the investigation is not because we’ve been able to make a full assessment of the evidence, but because we didn’t see possibilities to advance the investigation. So we won’t make any statements on the issue of guilt”………
Assange’s lawyer Per Samuelsson said his client was now considering suing Sweden.
“It’s not about money but redress,” Samuelsson told news agency TT.
He added that he believed Assange would eventually try to move to Ecuador.
The WikiLeaks founder’s lawyer filed a request at Stockholm District Court earlier in May asking for an end to the arrest warrant against his client, arguing it should be dropped now that the US has expressed a desire to charge the 45-year-old.
Assange had been remanded in custody by Sweden ‘in absentia’ over a 2010 rape allegation, and has been taking refuge inside Ecuador’s embassy in London since 2012 in order to escape the warrant, citing fears he may be extradited to the US to be tried over WikiLeaks’ publication of thousands of classified documents.
One of Assange’s lawyers, Melinda Taylor, indicated earlier on Friday that the preliminary investigation into him being closed or the lifting of the European arrest warrant would not necessarily mean the Australian would make a hasty exit for Ecuador.
“The first thing one likely needs to do is seek guarantees from the British authorities that he won’t be seized in some other way,” she told news agency TT.
Both British and American authorities have “consistently refused to confirm or deny” if there is a request for extradition to the US, she said. Assange is also accused of breaching his bail conditions in the UK for fleeing to Ecuador’s embassy, she noted.
And in a statement released on Friday afternoon, the Metropolitan Police confirmed it is obliged to arrest Assange should he leave the embassy…….
When the Swedish announcement was made on Friday, WikiLeaks commented through its Twitter account that the “focus now moves to the UK”……
Times 18th May 2017, Britain’s new £18 billion nuclear power plant is being funded by illegal French state aid, according to a lawsuit filed by Greenpeace. The environmental group is urging the European Commission to order EDF, the French state-owned energy giant that is building the plant at Hinkley Point in Somerset, to repay the 6.8 billion euros it received from the French
government.
The lawsuit is also a shot across the bows of Theresa May, who approved plans for Hinkley Point C last autumn, and President Macron of France, who organised the bailout of EDF when he was economy minister. At the time, EDF was struggling with debts of more than 37 billion and a requirement to find more than 50 billion to renovate its French reactors.
Critics, including the group’s own financial director, said that it could not afford its two-thirds share of the investment in Hinkley Point.
Greenpeace claims that the deal amounts to unfair state aid. “Instead of acting like a smart investor, the state is providing unconditional support to EDF and its nuclear projects that threaten the health of the company, notably Hinkley Point.
“There is no economic logic,”Laura Monnier, of Greenpeace France, said. “Greenpeace’s lawsuit aims to show that EDF’scapital increase is incompatible with European competition law.” The environmental organisation said that EDF had been wrong to invest in Hinkley Point “when it does not have the funds to invest in the maintenance and safety of its French nuclear fleet”.
Greenpeace’s lawsuit is unlikely to halt the Hinkley Point project, but it adds to the controversy over the scheme on both sides of the Channel.Shares in EDF slumped yesterday after the appointment of Nicolas Hulot, 62, France’s best known environmental campaigner, as minister of ecology and solidarity in Mr Macron’s government. Investors fear that Mr Hulot will press EDF to reduce its dependence on nuclear power and to pump funds into the development of renewable energy. https://www.thetimes.co.uk/edition/business/hinkley-point-is-being-paid-for-by-illegal-french-aid-btqjg67r3
Reuters 17th May 2017 Greenpeace is filing a complaint with the European Commission arguing that the French government’s recapitalization of state-controlled EDF amounts to illegal state aid for the utility’s plan to build nuclear plants in HinkleyPoint, Britain.
Greenpeace said the 3 billion euro ($3.33 billion) capital injection for EDF in March, plus 3.8 billion euros of foregone dividends since 2015 – the state leaves money in EDF by taking a share dividend instead of a cash dividend – are incompatible with European Union competition law.
“Instead of acting like a smart investor, the state is providing unconditional support to EDF and its nuclear projects that
threaten the health of the company, notably Hinkley Point. There is no economic logic,” said Greenpeace France legal campaigner Laura Monnier. http://uk.reuters.com/article/us-edf-britain-subsidies-idUKKCN18D0MV
New York’s nuclear “bailout” faces court challenges and questions from lawmakers, Mc Alester News capital, By Joe Mahoney | CNHI State Reporter May 18, 2017 ALBANY — The Cuomo administration’s effort to drive subsidies to three upstate nuclear-power plants is being challenged in both the courts and the halls of the statehouse.
The cost of what critics call a “nuclear bailout” is already being reflected in higher utility bills across the state.The opponents warn the plan will lead to higher costs for taxpayers and consumers as power bills increase for municipalities, school districts, universities and hospitals.
Under the subsidy program, which has been approved by the Public Service Commission, New York utilities are buying power at inflated rates from Exelon, a Chicago company that owns the reactors at Nine Mile Point on the shores of Lake Ontario, James FitzPatrick Nuclear Power Plant in Oswego County and the R.E. Ginna Nuclear Plant in Wayne County.
OPPOSITION FORCES Legislation to derail the program is pending in both houses of the State Legislature, though the fate of the measure is unclear. Meanwhile, lawsuits challenging the subsidy have been filed against the state by a group of owners of gas-fired power plants. The group contends the subsidy is illegal because it interferes with the federal government’s ability to regulate energy prices.
On a separate but related front, Hudson River Sloop Clearwater, an environmental group, is challenging the arrangement in state court. It contends state regulators failed to follow proper procedures in approving the subsidy last year and that ratepayers will be left facing “unreasonable and unjust” costs.
The New York Public Interest Research Group, a consumer watchdog, has joined Clearwater’s court action. Its legislative director, Blair Horner, said court arguments in both lawsuits are expected to be heard within the next several weeks.
Horner noted several lawmakers have concerns that they were left out of the loop when Gov. Andrew Cuomo pushed through a subsidy that is expected to cost billions of dollars.
“It’s sort of astonishing to them that they were cut out of the process,” he said…….
DEMONSTRATION Those fighting the nuclear subsidy have stepped up their campaign to convince Cuomo to pull the plug on it.
Representatives of NYPIRG and other groups opposed to it, calling themselves Stop the Cuomo Tax, staged a demonstration this week outside the governor’s Manhattan office.
“Too many of us have trouble paying our utility bills already, and now Governor Cuomo is raising our rates by almost $8 billion to fund a giant giveaway to Exelon,” one of the protestors, Renata Pumarol, deputy director of New York Communities for Change, said in a statement.
The tunnel, which housed eight rail cars of nuclear waste in Hanford – about 200 miles south of Seattle – left a 15-to-20-foot hole when it partially collapsed Tuesday. Although no one was hurt, some workers were evacuated and others sheltered in place while the air around the site was tested for radioactivity. Tests revealed that no radioactivity had leaked from the tunnel, and 50 truckloads of soil were brought in to plug the hole.
On Wednesday, the Washington State Department of Ecology (DOE) filed an enforcement action urging the federal government to immediately assess whether failure of other storage tunnels is likely and to submit a plan to the DOE for the safe storage of the materials as well as a plan for permanent cleanup.
“This alarming emergency compels us to take immediate action – to hold the federal government accountable to its obligation to clean up the largest nuclear waste site in the country,” DOE Director Maia Bellon said in a statement.
According to the Department of Energy, Hanford has produced more than 20 million pieces of uranium metal fuel for nine nuclear reactors along the Columbia River. The five plants at the Hanford site discharged an estimated 450 billion gallons of liquid waste in soil disposal sites and 53 million gallons of radioactive waste in 177 underground storage tanks. Most of the nation’s nuclear weapons, including the bomb dropped on Nagasaki, Japan, during World War II, used plutonium from Hanford.
The Hanford site stopped producing plutonium in the late 1980s, with cleanup efforts beginning in 1989. The cleanup currently employs approximately 11,000 workers.
“Our top priority is to ensure the safety of Hanford workers and the community,” Washington Gov. Jay Inslee said in a statement. “The collapse of this tunnel raises serious questions about how it happened and what can be done to make sure it doesn’t happen again. This enforcement order is necessary to make sure we get greater assurance about the condition of these tunnels and the Department of Energy’s plan to contain any further risks.”
In a press release, the DOE highlighted how the age of some of the storage areas at Hanford are of particular concern. The collapsed tunnel was built in 1956 of timber, concrete and steel and topped with eight feet of dirt. It was sealed with the nuclear-waste-filled rail cars in 1965.
“The infrastructure built to temporarily store radioactive waste is now more than a half-century old,” Bellon said. “The tunnel collapse is direct evidence that it’s failing. It’s the latest in a series of alarms that the safety and health of Hanford workers and our citizens are at risk.”
Workers returned to their jobs at Hanford on Thursday.
A judicial appeal is widely expected. But it’s unlikely that the government will succeed in overturning the essence of the judgement. And an appeals process will delay any legitimate future nuclear power procurement.
given the prevalent suspicion around the nuclear expansion, the regulator will be hard pressed to show that the nuclear option is in the public interest.
It is therefore unlikely that any nuclear development will succeed in the foreseeable future.
HARTMUT WINKLER: Inside Zuma’s nuclear meltdownhttps://www.businesslive.co.za/rdm/business/2017-05-02-hartmut-winkler-how-zumas-nuclear-ambitions-have-been-blown-to-pieces/ ‘The judge was unequivocal that by slipping the Russian agreement through parliament as a routine matter for noting, the former Energy Minister Joemat-Petterssen had committed a gross error’ 02 MAY 2017 – 08:01 HARTMUT WINKLER A South African court has ruled that critical aspects of the country’s nuclear procurement process are illegal and unconstitutional. The outcome is a significant setback for a network of entities that had been aggressively promoting a 9.6 GW nuclear expansion programme in the face of popular opposition.
Over the past four weeks controversy over the proposed nuclear build has reached new highs. This was sparked by a major cabinet reshuffle in which President Jacob Zuma ousted both his finance and energy ministers, replacing them with individuals regarded as pro-nuclear.
The reshuffle prompted some of the largest and most diverse street protests since the dawn of the country’s democracy in 1994. While many factors contributed to the outpouring of public anger against the president, the nuclear question was a common motif in the protests.
Opposition to the nuclear expansion programme centred on two points: the first was its prohibitive costs – some estimates put it at R 1 trillion which is roughly equivalent to the government’s total annual tax revenue.
The second is that it has become contaminated by allegations of corruption, with evidence pointing to politically connected groups and individuals benefiting handsomely from it.
Back to the drawing boardThe court’s ruling in effect means that the planners will have to go back to the drawing board. The case in the Western Cape High Court was brought by two civil society organisations, Earthlife Africa and the Southern African Faith Communities’ Environmental Institute (SAFCEI).
The most far reaching aspects of the judgment were that it overturned ministerial proclamations made in 2013 and 2016 that enabled the development of 9.6 GW of nuclear power. It furthermore invalidated the intergovernmental nuclear collaboration agreements South Africa had signed with Russia, the US and South Korea.
The court’s ruling on the promulgations was damning and unambiguous.
South Africa’s Electricity Regulation Act requires the Minister of Energy to promulgate any energy generating capacity expansion through the National Energy Regulator of South Africa (NERSA). The regulator is required to vet the proclamation to ensure that it is in the public interest.
The Minister of Energy issued two promulgations to establish 9.6 GW of nuclear energy generation. The first one was concluded in 2013 but only made public two years later. The second one, which delegated the nuclear procurement to the state electricity utility Eskom, whose leadership is strongly pro-nuclear, was hurriedly and stealthily implemented in 2016 on the eve of the first sitting of Western Cape High Court on the matter.
Neither of these proclamations allowed a public participation process.The court ruled that both promulgations were illegal and unconstitutional. It found that the regulator had failed to carry out its mandate because it had endorsed the minister’s directives uncritically and hurriedly. In doing so it had not allowed public input nor had it considered the necessity of the nuclear build or the consequences of its delegation to Eskom.
The court was equally clear on the collaboration agreements. Unlike the relatively vague agreements concluded with the US and South Korea, the Russian agreement had a great deal more detail in it. It specifically committed South Africa to build nuclear power plants using Russian technology, set out a timeframe and placed specific liabilities on South Africa.
South Africa’s constitution stipulates that international agreements that will have a substantive impact on the country must be approved by parliament. The agreement with Russia clearly falls into this category and therefore needed to be submitted to parliament for debate and approval.
The judge was unequivocal that by slipping the Russian agreement through parliament as a routine matter for noting, the former Energy Minister Joemat-Petterssen had committed a gross error. In his judgment he said: It follows that the Minister’s decision to table the agreement in terms of section 231(3) was, at the very least, irrational. At best the minister appears to have either failed to apply her mind to the requirements of sec 231(2) in relation to the contents of the Russian IGA or at worst to have deliberately bypassed its provisions for an ulterior and unlawful purpose.This could open the door for further action against the minister as well as Zuma, who, according to the court papers, instructed her to sign the Russian agreement.
The US agreement was concluded in 1995 and the South Korean agreement in 2010. But they were only presented to parliament in 2015. The court declared them invalid in view of the inexplicable time delay.
The medium and long term impact A judicial appeal is widely expected. But it’s unlikely that the government will succeed in overturning the essence of the judgement. And an appeals process will delay any legitimate future nuclear power procurement.
Any attempt to re-initiate a nuclear build would have to start from scratch. Based on the judgement it can safely be assumed that the regulator can only endorse nuclear expansion if it can demonstrate that it’s necessary and that it’s a better solution to any other energy option.
But given the prevalent suspicion around the nuclear expansion, the regulator will be hard pressed to show that the nuclear option is in the public interest.
It is therefore unlikely that any nuclear development will succeed in the foreseeable future.
Government will challenge High Court’s nuclear energy ruling Business Tech, 2 may 17Energy minister Mmamoloko Kubayi told the portfolio committee on energy on Tuesday that she would be challenging the recent High Court ruling that called the country’s nuclear procurement processes unconstitutional.
She said that the department remains committed to the nuclear energy plan, and would seek a declaratory order from the court that it can continue with its plans, or alternatively appeal the judgment.
According to Kubayi, she has not problem with the request in the judgement that more public participation take place, saying she is in favour of running an open and transparent process.
She stressed, however, that the nuclear plan couldn’t be abandoned, with nuclear energy forming an integral part of the country’s energy future, with predictability and certainty needed for investors…….
The ruling has set back South Africa’s nuclear ambitions significantly, with even appeals processes and the litigation surrounding it likely to push back the process by about a year.
According to analysts, this delay is likely to put even more pressure on president Jacob Zuma and the political sphere leading up to the ANC’s elective conference in December, as the nuclear programme is a key component in pushing certain political interests.
The appeal comes as no surprise.
“The stakes politically and geopolitically for the government, and specifically for President Zuma, are simply too high. So much has been invested in terms of political capital, including two reshuffles. We therefore fully expect the government to continue to push down this road,” said research analyst at Nomura, Peter Attard Montalto.https://businesstech.co.za/news/energy/172967/government-will-challenge-high-courts-nuclear-energy-ruling/
Nuclear regulators find Cameco shipping violations Company spilled toxic sludge on U.S. 191 south of Blanding, The Journal By Jim Mimiaga Journal Staff Writer | Sunday, April 30, 2017 The Nuclear Regulatory Commission has found numerous shipping violations against Cameco Resources, a Wyoming uranium mine company that spilled radioactive waste on U.S. Highway 191 south of Blanding, Utah.
A report released on April 25 details the commission’s November inspection of the company’s shipping procedures and practices.
“Based on the results of this inspection, nine apparent violations were identified and are being considered for escalated enforcement action,” wrote Mark R. Shaffer, division director of Nuclear Materials Safety.
Cameco came under additional scrutiny after an incident March 28-29 when its regular truckload of barium sulphate, bound for a containment cell at the White Mesa Mill, leaked onto the roadway………
According to the Nuclear Regulatory Commission report, the list of violations against Cameco includes:
Failure to accurately assess, report and label barium-sulfate waste shipments,Failure to ship waste material in appropriate containers,Failure to test whether the material could withstand the vibration and acceleration of transportation,Failure to provide specific hazmat training.According to the report, errors in shipping paperwork at Cameco misclassified radioactive waste level as lower than the actual shipment, which led to it being shipped in the wrong container……..
Barium sulfate is a toxic byproduct of in situ uranium mining and is considered an environmental and human health hazard……https://the-journal.com/articles/43868
South Africa’s nuclear deals unlawful, court rules http://www.bbc.com/news/world-africa-3971740126
April 2017 A South African court has annulled initial agreements the government reached with three countries to help it build nuclear power stations.
The deals with Russia, the US and South Korea were unlawful, the court ruled. The government failed to hold public hearings and a parliamentary debate over its plans, it added.
Environmental groups said they welcomed the ruling, pointing out it came on the eve of the anniversary of the 1986 Chernobyl nuclear disaster.
The government has not yet commented on the ruling, in a case brought by the Earthlife Africa and the Southern African Faith Communities’ Environment Institute (SAFCEI).
Its plan to build eight nuclear plants at an estimated cost of around 1tn rand ($76bn; £59bn) has been dogged by controversy. Critics fear the deal will be unaffordable and plagued by corruption, and suspect that Finance Minister Pravin Gordan was sacked by President Jacob Zuma last month because he had serious reservations about it.
“In the past few weeks citizens have demonstrated their willingness to mobilise against corruption and the capture of our state. The nuclear deal is at the centre of it all.” SAFCEI official Siphokazi Pangalele said in a statement.
Concerns about the affordability of the deal contributed to global rating agency Fitch’s decision on 7 April to downgrade South Africa to “junk status”.
The government says it needs new nuclear power stations to meet South Africa’s growing electricity demand, and to move away from relying on coal-fire plants. The country currently has one nuclear plant.
It had reached preliminary agreements with Russia, the US and South Korea to build eight more, AFP news agency reports.
Environmental groups say South Africa should rely more on renewable energy to meet its electricity needs.
It is back to square one for the utility as the court found that the determinations relating to the construction of 9,600MW of nuclear plants were unconstitutional and invalid.
It also declared the nuclear co-operation agreement signed between the South African and Russian governments to be unconstitutional and unlawful. This agreement is widely seen as laying the foundation for the involvement of Russian energy giant Rosatom in the South African nuclear build programme.
The first determination which was set aside was issued under section 34 of the Electricity Regulation Act and ruled that 9,600MW was required and should be acquired by the Department of Energy. It was signed in November 2013 by then energy minister Ben Martins but gazetted only in December 2015. The second determination was signed in December 2016 by Joemat-Petterson and identified Eskom as the procurer of new nuclear energy.
The determinations were approved by the National Energy Regulator of SA but the court found that the regulator’s concurrence with them was procedurally unfair, irrational and in breach of the National Energy Regulator Act as there was no public participation.
Judge Lee Bozalek, with the concurrence of Judge Elizabeth Baartman, also found that the request for information issued by Eskom in December last year was unlawful and unconstitutional and it was set aside.
The request for information, which closes at the end of this month, would form the basis for a request for proposal and for the procurement of 9,600MW of nuclear energy.
In a written judgment handed down Wednesday Judge Bozalek declared that the manner in which Joemat-Pettersson had tabled the nuclear co-operation agreements with the US, Russia and South Korea in Parliament was unconstitutional and unlawful, and set aside them aside.
The nature of the agreements meant they had to be tabled in terms of section 231 (2) of the Constitution, which requires the approval of both houses of Parliament, and not section 231 (3), as the minister irrationally decided to do, the judge said. Tabling in terms of Section 231 (3) does not require parliamentary endorsement.
There were joyous scenes outside the court after the judgment was handed down in the case, which was brought by Earthlife Africa and the Southern African Faith Communties’ Environment Institute against the Minister of Energy, President Jacob Zuma, the National Energy Regulator of SA, speaker of the National Assembly Baleka Mbete, chairperson of the National Council of Provinces Thandi Modise and Eskom.
Spokespersons for the two organisations said the judgment would ensure there was proper oversight by Parliament and the people in the process of procuring of nuclear energy, which would have to be undertaken in an open and transparent process.
The two NGOs argued there had been no proper public participation or consultation process over the determinations, which were “irrational and unreasonable”. The government rejected these arguments on the ground that these determinations amounted to “executive policy”.
Judge Bozalek, however, said the determinations – which would have far-reaching consequences for the country – were not merely administrative decisions, and a “rational and fair decision-making process” was required before Nersa decided whether or not to concur with the minister’s proposed determination.
The National Energy Regulator Act required that decisions that materially and adversely affected the rights of others had to be procedurally fair. The regulator decided to concur with the 2016 ministerial determination by means of a round-robin exercise a mere three days after being asked to do so by Joemat-Pettersson.
“In taking the decision Nersa was under a statutory duty to act in the public interest and in a justifiable and transparent manner but also to utilise a procedurally fair process giving affected persons the opportunity to submit their views and present relevant facts and evidence. These requirements were clearly not met by Nersa in taking its far-reaching decision to concur in the minister’s section 34 determination,” Judge Bozalek said.
He also ruled the two-year delay in gazetting the 2013 determination breached the minister’s decision, “thus rendering it irrational and unlawful”. The delay also violated the requirements of open, transparent and accountable government. The minister should have consulted with Nersa again in 2015 before gazetting the determination.
Red flag
The government’s nuclear plans have been red-flagged by credit ratings agencies, which downgraded SA to junk status.
President Jacob Zuma has been determined to proceed with the nuclear build programme, despite critics saying it is not necessary and beyond the means of a fiscally constrained government. His stance led to the removal of Joemat-Pettersson as energy minister and her replacement by Zuma supporter Mmamoloko Kubayi in the recent Cabinet reshuffle that also removed Pravin Gordhan as finance minister.
The draft 2016 Integrated Resource Plan (IRP) says SA will not need new nuclear power plants before 2037, but until it is finalised, Eskom has been operating on the basis of the 2010 IRP, which proposes the construction of 9,600MW in nuclear plants.
In December, the power utility issued a request for information, which closes on April 28, and by the end of June it planned to issue a request for binding proposals from potential vendors, provided it obtained the approvals to do so.
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