Activists and fishing groups have warned of "catastrophic" risks from a potential oil spill linked to TotalEnergies' west coast drilling plans

A South African court is set to rule on a legal challenge to French energy giant TotalEnergies' proposed deep-water oil and gas drilling project, with activists arguing the approval process was unlawful and environmentally risky.

The case was brought by Aukotowa Fisheries Primary Co-operative Limited, The Green Connection and Natural Justice, which are seeking to overturn environmental approval for ultra-deep-water drilling in the Deep Western Orange Basin, about 200 km off South Africa's west coast.

They have gone head to head against the Director-General (DG) of the Department of Mineral and Petroleum Resources, the Minister of Forestry, Fisheries and the Environment and Total Energies EP South Africa (TEEPSA).

The applicants argue that "there are predictable, long-term ecological impacts that go along with petroleum projects".

At its core, this litigation argues that the approval process was fatally flawed, irrational, and inconsistent with the Constitution, the National Environmental Management Act (NEMA), and South Africa's climate and energy obligations.

The litigation includes arguments that fishing communities and the impact of exploration on their livelihoods. They submit that the interests of a corporation are clearly prioritised above the rights of people living on the coastline.

The applicants have sought an order reviewing and setting aside both the Director-General's decision to grant the environmental authorisation and the Minister's decision to dismiss the applicant's appeals.

"Because the flaws in the need and desirability and oil spill risk assessments are so fundamental to the project's viability, we are asking the Court to take the rare step of a substitution order. This means that instead of sending the matter back to the Department of Mineral and Petroleum Resources to try again, the Court should itself issue an order refusing the authorisation. This is necessary to ensure that the environment and the rights of the fishers are protected from further unlawful administrative processes," the applicants argued.

In their heads of argument the applicants further submitted that it is common cause that a major oil spill resulting from a "well blow-out" is the most significant risk arising from the exploration activities, and that this occurrence could correctly be described as "catastrophic."

"Because the consequence of an oil spill would be the effective destruction of the marine environment for a sustained period, this risk has a bearing on multiple aspects of the impact assessment. The impact on marine ecology, commercial and small-scale fisheries, coastal and near-shore users and intangible heritage was in every case estimated as 'high' or 'very high'," they argued.

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On Tuesday, Advocate Chris Loxton for TEEPSA chipped away at the applicants' arguments in which he submitted that a distinction between exploration and production were made out in provisions of the National Environmental Management Act (NEMA) and the National Environmental Management: Integrated Coastal Management Act (ICMA) and in that regard, there was compliance. 

Advocate Loxton submitted that by them complying with NEMA, the eventuality was that they complied with ICMA. "The Applicants have not shown that there is any requirement of ICMA which was not in the course of complying with NEMA. They have not said, for example, that you were supposed have done X and the consequence is Y," said Loxton.

First published by IOL