The regulations giving effect to the national state of disaster over the electricity crisis have now been gazetted.
Some of the regulations are quite vague, and the action they support could probably have been implemented under existing regulations. But, more importantly, there is some real cause for concern: the powers given by these regulations can be used to steamroller objections to costly contracts for emergency power generation.
Additionally, some provisions will allow Eskom, and potentially other generation projects, to circumvent environmental regulations.
At least one of the regulations is written in such a way that it can be used to fast-track a powership deal. Mineral resources & energy minister Gwede Mantashe has been a vocal advocate for the Turkish company Karpowership that won the largest share of the government emergency power procurement round.
After facing a legal challenge from environmental activists, Karpowership, which owns and runs floating gas-fired power plants, has had to file a fresh application to get environmental approval to bring its powerships into SA waters.
But the state of disaster regulation that calls for measures to be implemented to “remove impediments to the development or construction of new generation capacity” could arguably be used by ministers to help Karpowership clear this hurdle.
In addition to the concern that the powerships could cause damage to SA’s marine ecology and fishing, others worry about their cost, which was originally estimated to be about R220bn over a 20-year contract period. This appears to be astonishingly bad value for money for a mere 1,200MW, less than two stages of load-shedding, and raises the question of what attracted the minister to the deal in the first place.
Environment act
Lobby group Outa is involved in legal challenges over the energy regulator’s decision to grant Karpowership generation licences and it is challenging the national state of disaster. It said the regulations “effectively remove proper oversight, regulatory processes and public participation in decisions of enormous public importance and cost”.
The other regulation of concern will exclude existing electricity generation, transmission and distribution from having to comply with provisions in the National Environmental Management Act.
This regulation appears to only apply in the case of upgrades, refurbishments and adjustments. If this is the case, one project that could potentially proceed without the approvals is the Koeberg life-extension programme to prolong the operating life of the nuclear plant by 20 years.
It could also mean that Eskom will not need the exemption it has sought to be allowed to run several units at Kusile Power Station without using an air-pollution control system as a temporary fix to a flue duct failure.
Taken to their extreme, the regulations under the state of disaster could also offer Eskom the relief it has been seeking from having to implement minimum emissions standards.
Human cost
This relates to a decision (now under review) made by the department of forestry, fisheries & the environment in November 2021 to rein in emissions from Eskom’s coal-fired power stations that would require an immediate shutdown of 15.9GW of coal-fired generation capacity and about 30GW by April 2025.
Environmental groups have warned of the human and economic cost of not implementing this decision.
According to the Centre for Research on Energy and Clean Air, if Eskom would comply with the decision, it could avoid 34,400 deaths from air pollution and economic losses of R620bn.
The energy crisis requires an urgent response — no-one seriously disputes that. But the government that got us into this disaster should not use the resulting emergency regulations to ride roughshod over democratic checks and balances and environmental protection.
Public participation in lawmaking and environmental regulations are not the cause of the energy crisis. If we must have a state of disaster, it needs to address what is.
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