SOUTH AFRICA: NO HARD DEADLINE FOR SOUTH AFRICA TO ACHIEVE NET-ZERO, BUT CLIMATE CHANGE BILL PROGRESSES THROUGH PARLIAMENT
The long-awaited Climate Change Bill (Bill) was passed by the National Assembly on 24 October 2023 and now awaits National Council of Provinces concurrence and Presidential signature. This comes after a version was first published for comment on 8 June 2018, more than five years ago.
Once approved, it will establish, for the first time, a comprehensive South African legal framework for the regulation of the impacts of climate change, with the ultimate overall goal to achieve net-zero by 2050.
The context for the Bill is South Africa’s commitment, under the United Nations Framework Convention on Climate Change and the Paris Agreement to hold ‘the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change’.
Under the existing, less comprehensive, climate change regulatory framework, industries, including coal mining, currently must submit annual progress reports on its approved pollution prevention plans to the Minister of Forestry, Fisheries and the Environment (Minister) if they emit the greenhouse gases published in terms of the Declaration of Greenhouse Gases as Priority Air Pollutants (GN 710 of 21 July 2017) (GHG Declaration) in terms of the National Environmental Management: Air Quality Act, 2004 (NEMAQA).
Sectoral emissions targets
The most significant impact of the Bill for the private sector is the framework for the regulation of greenhouse gas emitting sectors. The Bill provides, inter alia, that the Minister must:
- within one year of the coming into effect of the Bill, publish the greenhouse gas emitting sectors and sub-sectors that will be subject to sectoral emissions targets;
- in consultation with the Minister responsible for each sector, determine the prescribed framework and the sectoral emissions targets for sectors and sub-sectors;
- publish the list of greenhouse gasses that the Minister believes cause or are likely to cause or exacerbate climate change; and
- allocate a carbon budget to any person who conducts the list of activities which emit, or have the potential to emit, one or more greenhouse gases in the abovementioned list. A carbon budget must have a duration of at least three successive five-year periods.
A person to whom a carbon budget has been allocated must prepare and submit to the Minister, for approval, a greenhouse gas mitigation plan.
Industries that have submitted pollution prevention plans to the Minister in terms of NEMAQA will be deemed to have submitted greenhouse gas mitigation plans for the first five-year cycle. In this regard, the GHG Declaration as well as the National Pollution Prevention Plans Regulations (GN 712 of 21 July 2017) and the National Greenhouse Gas Emission Reporting Regulations (GN 275 of 3 April 2017) will serve as regulations and notices under the Climate Change Act, and will remain in force until they are amended or repealed in terms of the Climate Change Act, once promulgated.
Offences and penalties
The final version of the Climate Change Bill includes additional penalties to those in the initial bill. The Bill now makes it an offense to:
- fail to provide data, information, documents, samples or materials to the Minister or provides false and misleading, information, documents, samples or materials to the Minister;
- fail to prepare and submit a greenhouse gas mitigation plan to the Minister; and
- fail to comply with or contravene a notice of the Minister dealing with phasing down and phasing out of synthetic greenhouse gas emissions and declaration.
If convicted of an offence, a person is liable to a fine not exceeding ZAR 5 million or to imprisonment for a period not exceeding five years (this is increased to ZAR 10 million and 10 years for a second or subsequent conviction).
Still missing from this list of offences is any consequence for a failure to achieve a carbon budget or sectoral emission target. This would arguably do the most to assist South Africa to achieve emission targets necessary to achieve net-zero.
While the Bill does also not include the exceedance of the carbon budget or failure to report on the progress against its allocated carbon budget as offences, it does require a person to provide a description of measures that will be implemented in order to remain within the allocated carbon budget. It is important to note, however, that companies that emit more greenhouse gas emissions will be liable to pay a greater amount of carbon tax in terms of the Carbon Tax Act, 2019.
Considering that the Bill will be regarded as a specific environmental management act in terms of the National Environmental Management Act, 1998 (NEMA) the failure to adhere to sectoral emission targets or carbon budgets, could also give rise to the issuing of compliance notices in terms of NEMA which could force an emitter to comply with the emission targets and carbon budget.
Other noteworthy provisions
The Bill also introduces the following noteworthy provisions:
- a finance mechanism to support and finance the Republic’s climate change response, planning and implementation by national, provincial and local government. This inclusion is expected to assist the implementation of climate mitigation and adaptation strategies in financially strapped provinces and municipalities;
- for the Minister and sectoral Ministers to determine the national adaptation objectives and to develop and publish the National Adaptation Strategy and Plan and Sector Adaptation Strategy and Plan; and
- for the Minister to develop adaptation scenarios which anticipate the likely impacts of climate change in South Africa over the short, medium and longer term.
The Bill is a welcomed attempt by Government to reduce greenhouse gas emissions and achieve the ultimate goal of net zero by 2050, however, without stricter penalties for a failure to comply with the emission targets and carbon budgets set for the specific sectors, its real effect may still leave net zero some way off.
Until such time as the sectoral emission targets and carbon budgets are published, the private sector should continue to submit progress reports on its pollution prevention plans, which will form the basis for the greenhouse gas mitigation plans in terms of the Climate Change Act, when promulgated.