South Africa’s Climate Change Bill

South Africa’s Climate Change Bill

South Africa, like the rest of world cannot deny the effects of climate change. These changes range from severe weather events such as droughts and extensive floods to rises in sea levels affecting countries across the world in devastating ways.  The Climate Change Bill published on 18 June 2018 by the Minister of Environmental Affairs seeks to be an effective and progressive response to the urgent impact of climate change. Nationally, the Climate Change Bill is one of a kind. However, internationally, there have been precursors.

Climate Change in the international arena

Historically, in 1988, several governments came together and formed the Intergovernmental Panel on Climate Change (IPCC) which led to the tabling of the United Nations Framework Convention on Climate Change (UNFCCC) in 1992. The stated objective of the UNFCCC was to achieve stabilisation of the concentrations of greenhouse gases in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. In August 1997, the South African Government ratified the UNFCCC. Although a number of countries ratified the UNFCCC, this treaty did not contain provisions regarding targets or specific means for dealing with climate change. Instead, it contained principles and commitments to guide future engagements.

Subsequently, on 11 December 1997, the Kyoto Protocol was adopted in Kyoto, Japan. South Africa acceded to the Kyoto Protocol in July 2002. One of the distinguishing factors of the Kyoto Protocol is that it commits the signatories by setting internationally binding emission reduction targets. The Kyoto Protocol recognised that developed countries are principally responsible for the current levels of greenhouse gas emissions as a consequence of decades of industrial activity. Accordingly, it places a heavier burden on developed nations under the principle of common but differentiated responsibilities. Lastly, and of significance, the Kyoto Protocol requires that countries meet their targets primarily through national measures.

Thereafter, the Paris Agreement was adopted on 12 December 2015 and was signed by South Africa in November 2016. In general, the wording of the Paris Agreement is loose and contains what is known as “soft law” which means that it has a general non-binding nature. There are some binding obligations such as the mitigation provisions in article 4(2) but not sufficient to produce tangible compliance. Nonetheless, in comparison to its predecessors, the Paris Agreement is progressive in that it speaks of nationally determined contributions where a state makes an assessment nationally, projects emissions nationally, and then commits to not surpassing that specific omission. This is valuable in that developing countries have flexibility to develop and be in control of the process of setting their own targets and be in a position to consider issues domestically when setting the targets.

The Climate Change Bill

The Climate Change Bill springs from the Paris Agreement. At the heart of the Climate Change Bill is a domestic response to climate change.

The Climate Change Bill recognises that climate change policy must be implemented in a context which integrates environmental, economic and social development. It is therefore clear that South Africa is still pursuing development, however all development must be done an environmentally and socially conscience manner.
Structurally, the Climate Change Bill is divided broadly into four categories, namely, i) policy alignment endeavours for climate change mitigation by government institutions; ii) climate change responses by provinces and municipalities; iii) national adaptation strategy; and iv) the plan for governance of greenhouse emissions.

Policy alignment endeavours

The Climate Change Bill requires every organ of state to harmonise its laws, policies and decisions to ensure that the risks of climate change impacts are taken into consideration and that they “give effect to the national adaptation and mitigation objectives” in the Climate Change Bill. This provision in the Climate Change Bill is vague and the consequence may be an unsystematic attempt to “harmonise” laws by each organ of state. Each organ of state may take different approaches to this requirement. Furthermore, it will be difficult to assess compliance or monitor progress across the board.
Climate change responses by provinces and municipalities

Once the Climate Change Bill becomes law, the MEC responsible for the environment or a Mayor, as the case may be, must within one year undertake a climate change needs and response assessment for the province or municipality. The wording is unclear however it appears that the MEC and the respective Mayors will need to undertake this assessment. Thereafter, a climate change response implementation plan must be developed and implemented based on the needs and response assessment. Although the Climate Change Bill does not require it, the needs and response assessments will need the input of various experts. In addition, there cannot be a gap between the assessment and the response implementation plan.

National Adaptation Strategy

The Minister is clothed with the power to set out national adaptation objectives to guide South Africa’s adaptation to climate change impacts and to publish indicators for measuring progress. Furthermore, the Minister must determine a date by which these objectives must be incorporated into all national planning instruments, policies and programmes which address climate change. In doing this, the Minister will need to work with sector departments and provinces to produce a National Adaptation Strategy.

This National Adaptation Strategy does not appear to have the force of law and therefore its effectiveness may be limited.
Governance of greenhouse emissions.

The Climate Change Bill zones in on greenhouse emissions and obliges the Minister to set out a national greenhouse gas emissions trajectory for South Africa which must provide very specifically for a national emissions reduction objective. This is binding on organs of state and private persons. The Climate Change Bill also provides for sectoral emissions targets for greenhouse emitting sectors.

The Minister is obliged to publish a greenhouse gas emissions threshold with an allocated carbon budget. This carbon budget is applicable to a specified person who must comply with it. A person who has been allocated a carbon budget must prepare and submit to the Minister for approval, a greenhouse mitigation plan. Once this greenhouse mitigation plan is approved, the person must comply with the carbon budget allocated and implement the greenhouse gas mitigation plan properly. The Climate Change Bill places an annual reporting requirement to each person to ensure compliance.

Concerns

The Climate Change Bill makes it clear that it is an offense to not submit a greenhouse mitigation plan where required or to fail to implement an approved mitigation plan. In addition, it is also an offense for a person’s greenhouse gas emissions to exceed the allowance. However, the penalty is negligible, ranging from R5 million to R10 million depending on the offense.
However, the threat of imprisonment may be sufficient to deter persons however, the emitters tend to be companies and the Climate Change Bill fails to specifically provide for director liability. Furthermore, there appears to be no legal consequences for organs of state which fail to comply with the Climate Change Bill.

It cannot be disputed that South Africa is responding to climate change, especially in light of its commitments however, the Climate Change Bill will need to be strengthened with binding provisions, clear monitoring and compliance strategies, and stricter penalties for breaches.

 

Written by:

Athi Jara, Director at LNP Attorneys Inc.
Mihlali Sitefane, Senior Associate at LNP Attorneys Inc.