Last month the Department of Environmental Affairs (DEA) published the long-awaited Climate Change Bill for comment. Although legislative action on the pressing and complex issue of climate change is imperative, in its current form, the bill won’t get us where we need to be: a climate-resilient country that complies with international climate commitments, with near zero greenhouse gas (GHG) emissions by 2050.
Climate change is the biggest threat to humankind and the global economy. Our own climate change response policy acknowledges that South Africa is extremely vulnerable to climate change impacts. The question is no longer whether it is necessary to mitigate and adapt to these impacts, but how quickly and effectively we can do so. Any new climate change legislation will be of little use if it does not urgently ensure meaningful GHG emission reductions and effective climate change adaptation measures.
Instead of responding urgently to the need to address climate change and making adequate provision for holding emitters and government accountable, the bill’s focus is on creating a bureaucracy of government bodies, plans, and processes.
For South Africa to: properly mitigate and adapt to climate change impacts; and ensure that we meet the Paris Agreement commitments – we need a robust legal framework that provides for, at least, the following:
Full mandatory disclosure and public access to all reports, assessments, and records. The bill currently provides for only some of these documents to be gazetted. Carbon budgets, mitigation plans, and annual reports on carbon budget compliance, for example, are not required to be published or disclosed. The DEA takes the very problematic view that some GHG emission records are commercially confidential. GHG emissions and their management affects us all, and data must be publicly accessible so that our big emitters cannot hide their emissions from the public.
A clear target and strict emissions trajectory. The legislation cannot be effective unless everyone has certainty about its goal. The bill provides for the Environmental Affairs Minister to set the national GHG emissions trajectory, the benchmark for South Africa’s GHG emissions. Our current emissions trajectory (for 2025–2030) is a broad range known as the peak plateau decline (PPD) trajectory. It is regarded as “highly insufficient” (in the global context) to meet the 1.5°C to (maximum) 2°C temperature increase target in the Paris Agreement, with drastic implications for South Africa. The bill must make explicit reference to the 1.5°C target, setting out a strict trajectory that reflects the lowest PPD range, and provide for increasing ambition (ratcheting) in our climate change response.
Provision for funds, capacity-building, and oversight. The bill does not refer to accessing climate funding or technology transfer, despite these being cornerstones of the Paris Agreement. Nor does it provide for appropriate budget allocation or financing mechanisms to implement the bill. For example, it requires sector departments to implement sectoral emissions reduction plans (SERPs) and municipalities and provinces to undertake mandatory climate assessments and implementation plans. This is certainly supported, but it will require considerable funds and skilled capacity – which many spheres of government do not have. Many municipalities in particular are already struggling to comply with their legal obligations regarding air quality, water and waste management, among other things.
Firmer obligations and liability for emitters. Several important details in the bill have been deferred or left vague. This creates opportunities for delays and for historical polluters to carry on with business-as-usual. The threat of climate change does not allow such leniency. At the very least, the bill should provide a legally binding decision-making framework, including principles and a methodology, to guide sectoral emissions targets and carbon budgets. It should explicitly prohibit “grandfathering” (allowing established GHG emitters to carry on with business-as-usual) as a method for carbon budget allocations. The bill also allows someone who has failed, is failing, or will fail to comply with their carbon budget to apply, in “extreme circumstances”, for more time to comply. This would open the entire carbon budget system up for abuse. We have seen compliance postponements in the air quality context; with some of the country’s biggest polluters – including Eskom and Sasol – being granted generous extensions of time to meet air emission standards, despite devastating health impacts. Unless companies are strictly held to their carbon budgets, there is little hope that these will bring about meaningful emission reductions.
Provision for the duty of care and climate justice. The bill fails to adequately address the broader obligations and duty of care to take steps to reduce GHG emissions and to protect South Africa against climate change’s harm. Companies that knowingly contribute to climate change impacts must be held accountable and should also be liable to compensate those who suffer these impacts.
Adequate compliance-monitoring and enforcement provisions, and strong penalties for non-compliance. The bill fails to provide adequate mechanisms (including institutional structures, capacity development, and resources) for compliance-monitoring and enforcement. The current penalties – a R5-million fine and/or five years imprisonment on a first conviction – are pitiful and won’t deter non-compliance. What’s more, securing a criminal conviction is a difficult and lengthy process; instead, the bill should provide for administrative penalties linked, for example, to turnover.
Clear guiding principles. This bill provides an excellent opportunity for the development of specific principles to guide all government decision-making and ensure that adequate consideration is given to the urgent need to reduce GHG emissions and address climate change impacts. Guiding principles would strengthen the hand of decision-makers and enable challenges of decisions that fail to meet the principles. Unfortunately, the bill’s principles are not ambitious enough.
Strong institutional structures to regulate, implement and monitor implementation. The bill provides an opportunity to establish strong, independent institutional structures to regulate and oversee climate adaptation and mitigation. From experience, we know that the structures the bill proposes, such as the Ministerial Committee on Climate Change, are unlikely to sufficiently address climate change challenges.
The bill requires that every state organ align and harmonise its policies and plans with the bill, and requires sectors (energy and mineral resources, for example), to develop plans (SERPs) to meet their sectoral emission targets. If adequate targets are set, many government plans and policies – such as the Coal Baseload Independent Power Producer (IPP) Procurement Programme – would require drastic reconsideration. Currently, we are seeing decisions being taken (even by the DEA) that will lock South Africa into high GHG emissions well beyond 2050. The proposed unnecessary, and highly GHG-emission intensive coal-fired power stations – Thabametsi and Khanyisa – would render many of the DEA’s climate change mitigation efforts redundant (as confirmed by a recent report by the Energy Research Centre). The overdue revision of the Integrated Resource Plan for Electricity (IRP) is a crucial opportunity for government to take its climate commitments seriously and abandon any plans for new coal-fired power. All credible modelling already shows that a least-cost IRP would not include new coal capacity.
While a Climate Change Bill is a welcome step, unless it addresses these concerns, and is implemented with the rigour and urgency that climate change demands, it will simply be too little, too late. DM
Nicole Loser is an attorney in the Pollution and Climate Change Programme at the Centre for Environmental Rights (CER). Loser is a leading expert in public interest climate law and has been at the forefront of a number of key environmental justice legal battles, including a 2017 court victory in the landmark Thabametsi case which was South Africa’s first climate change litigation. As a legal expert on the Life After Coal campaign – of which the CER, groundWork and Earthlife Africa are members – Loser is involved in a several new court challenges aimed at ensuring that climate change is given adequate consideration in decisions to authorise new coal developments. In June 2018, Loser was named one of the Mail & Guardian’s 200 Young South Africans.
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