With comments due on 8 August 2018, the time to consider and submit comments on the draft Climate Change Bill is now. Let’s be clear. This is not about climate denialism. South Africa must take action.
While there are many things to applaud about the Climate Change Bill, not least of which is its publication, there are many aspects which will require revision if the Bill is going to meet its ambitious objectives. Whether the Bill, as currently framed, is capable of effectively implementing South Africa’s international commitments and enabling the necessary and just transition to a lower carbon economy is debatable.
It’s likely that for once, most of industry and civil society’s environmental campaigners will agree on two things: a dedicated regulatory framework to address climate change is required and the bill, as currently framed, needs some work.
The National Climate Change Response White Paper contemplates that an effective legislative instrument will provide for: “the proposed post 2020 GHG mitigation system; the undertaking of risk and vulnerability assessments at various spheres of government …; the need for alignment of policies …;and, the need for cross-sectoral co-ordination, policy development and decision-making in order to: meet South Africa’s adaptation goals under the NDC and facilitate resilience across sectors; sustainably escalate South Africa’s transition to a lower carbon economy; and, enable South Africa to monitor, track, report and manage this transition for the benefit of the country”.
In promoting the Bill, the Socio-Economic Impact Assessment System Final Impact Assessment Report found that the present absence of regulation represents “a fatal risk to achieving the NCCRP’s underlying objectives and supporting the country’s international climate change obligations”.
Although the Bill addresses these aspects, arguably, it does so simply as a framework for their incremental development and implementation. This approach may well lack the regulatory certainty the South African economy needs and arguably, lacks the regulatory clout required to effect the changes to business as usual. If this is so, the fatal risk identified in the aforementioned Socio-Economic Impact Assessment remains.
Andrew Marquard and Harald Winkler recently applauded the Bill as a “positive step forward” in the Business Day. However, in critiquing the Bill, they expressed, amongst others, the view that “what SA really needs is a ‘fair and ambitious bill’ that goes further than mere effective co-ordination within government”.
More often than not, intergovernmental co-operation fails. This is even more likely to be the case in environmental debates but even more so, in the context of climate change, where inter-generational rivalry is at its core. The viability of the Bill’s proposed committees involving different ministries and tiers of government must be questioned. Though the ambition is noble: namely, to “co-ordinate efforts across all sector departments and spheres of government in relation to the transition to a climate resilient and lower carbon economy and society”, what makes the Bill’s proposed climate change committees at national and provincial level (which include municipal representation) likely to be effective and why would co-operative governance be more likely to be achieved in this context when it has failed in so many others?
Perhaps, with a few tweaks, the solution will lie in the fact that although the Minister of Environmental Affairs is responsible for convening the Ministerial Committee, both her and the Minister responsible for planning, monitoring and evaluation in the Presidency are co-chairpersons.
Winkler and Marquard propose a “climate change authority, a statutory body undertaking reviews and hearing inputs from all stakeholders” which is “independent” and “properly resourced with appropriate expertise.” If the Ministerial Committee were properly incentivised either by reward or penalty for performing, this Committee may achieve what they proposed. Perhaps the Ministerial Committee ought to be required to establish sub-committees comprising individuals with the required expertise with proper terms of reference. Already the committee has a discretion to invite representations from stakeholders and to establish an advisory committee. The establishment of the advisory committee ought to be mandatory.
Retaining a Ministerial Committee is essential since it will provide the necessary political support whereas an appropriately equipped advisory committees with the requisite technical expertise will enable the administrative and technical work to be carried out effectively subject to and with the necessary political oversight and support.
Although the socio-economic impact assessment study final impact assessment report prepared in support of the Bill indicates that the Bill will provide “certainty”, there are multiple instances where the substantive content is delayed albeit subject to timeframes. For example, the Minister is required to establish a national environmentally sustainable framework for achieving the objects of the Act within two years of the Act’s commencement. Experience has shown that frameworks are not effective. Frequently their publication and review are delayed and their content may be inconsistent resulting in protracted litigation.
Obligations are also imposed on provinces and municipalities, within a year of commencement, to undertake a ‘climate change needs and response’ assessment. Thereafter, within two years of commencement, these parties will also be required to develop and implement a climate change response implementation plan which is informed by the aforementioned assessment. Equally, Ministries responsible for sector departments and state-owned entities will be required to map and identify, amongst other things, risks and vulnerabilities to climate change as well as measures and mechanisms to implement the required response. Thereafter, theses Ministers will also be required, within two years of commencement, to develop and implement an appropriate climate change response implementation plan.
These obligations may well be unachievable given that in multiple instances, these provinces, municipalities and sector departments and state-owned entities are unlikely to possess the required technical expertise, capacity or resources to prepare and implement these plans. Perhaps these tasks could be supported by mandated representatives of the above advisory sub-committee.
At a practical level, the Minister will be required, in consultation with the Ministerial Committee, to determine a national greenhouse gas emissions trajectory for South Africa which will be binding on all spheres of government and all persons. This obligation has been criticised by Nicole Loser for its failure “to make explicit reference to the 1.5° target” since “the legislation cannot be effective unless everyone has certainty about its goal”. Once again, the question must be whether the Bill will result in the certainty required.
In addition, the Minister will be required, again in consultation with the Ministerial Committee, to determine sectoral emission targets (“SETS”) for greenhouses gas emitting sectors and sub-sectors. Thereafter, she must, determine a greenhouse gas emissions threshold for carbon budgets to be allocated at company level for not less than three successive five-year periods and are subject to at least five yearly review. A failure by persons with a carbon budget to prepare, submit and implement an approved greenhouse gas mitigation plan and where the greenhouse gas emissions exceed the budget during the applicable period is an offence. Under “extreme circumstances”, a person may apply for an extension of the compliance time frames.
While civil society argues that these provisions fail to provide for adequate transparency and to allow leniency in as much as extensions may be granted, industry will argue that the information which civil society seeks is commercially sensitive and that there is insufficient clarity on what “extreme circumstances” means. Of perhaps further concern is the failure, at least with reference to the carbon budgets, to provide any indication of how they will interact with a carbon tax, if implemented.
Climate change and the steps necessary to mitigate and adapt to its impacts the world over is contentious: industry versus civil society; developed versus developing; present versus future; life versus death …On the face of it, there may be agreement that measures are required, what those mechanics look like is not easy to determine, particularly when there is so much at stake. It appears that in trying to accommodate all the competing considerations and factions, the Bill has failed to meet its objectives.
The regulatory environment within the context of climate change can be a challenging one to navigate. LexisNexis has the tools to assist. Lexis® Assure will keep you up to date on the Bill’s promulgation as well as on publication of the multiple regulatory tools contemplated in it, while Lexis® GRC can assist in managing the overall business impact of the Bill. LexisNexis will also soon be publishing a loose-leaf guide to environmental compliance management which includes practical guidance on existing compliance requirements in relation to greenhouse gases and which, as a loose leaf, will be updated as and when required.
Justine Sweet is an admitted attorney with nearly 15 years’ experience in environmental law. She is a contributing author to LexisNexis content solutions.
 H. Winkler and A. Marquard, “SA’s new climate legislation contains some shockers” in the Business Day on 26 July 2018.
 N. Loser, “Eight ‘must-haves’ for SA’s new climate bill” published in the Daily Maverick on 19 July 2018