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Climate Change: soon to be a matter of law

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Climate Change: soon to be a matter of law

11th June 2018

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On Tuesday this week, the world celebrated World Environment Day but commiserated the fact that the Earth Overshoot Day this year is 1 August.

Yesterday, a mere three days later, the South African Government took a stand against the global fight against climate change with the publication of the Climate Change Bill, 2018 (Bill) by the Department of Environmental Affairs. This monumental publication is the next legislative step towards actioning South Africa's National Climate Change Response Policy and international commitments under the 2016 Paris Agreement on Climate Change.

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The Bill aims to develop an effective climate change response (CCR) and to achieve the long term, just transition to a climate resilient and lower carbon economy and society.  South Africa is laying its mark as a leading and progressive nation in the battle against climate change.

The Bill recognises that climate change represents a threat to humans and the environment which requires a progressive, incremental and co-operative response acknowledging the centrality of the provincial and municipal spheres in achieving the Bill's objectives. In the same breath, the national climate change framework needs to integrate environmental, economic and social development, as well as employment objectives, to achieve South Africa's national development goals.

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The Bill proposes to provide for the effective management of inevitable climate change impacts through enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change.  To achieve this, the Bill proposes the following actions:

  1. The alignment of policies and establishment of institutional arrangements: The Minister of Environmental Affairs (Minister) is to establish a national environmentally sustainable development framework within two years of the Act coming into force and every five years. This national framework is to inform all exercises of power by organs of state in regulating climate change responses.  All organs of state must co-ordinate and harmonise all policy instruments that affect or are affected by climate change.  A Ministerial Committee on Climate Change is to be established, charged with the co-ordination of efforts across all sectoral departments and spheres of government towards a transition to a climate resilient and lower carbon economy and society.  Provincial Committees on Climate Change are also to be established for each province, comprising of all relevant departments in each province and charged with the provincial co-ordinating function.
  2. Provincial and municipal climate change response: The MECs assigned to environmental affairs in each province, and the Mayors in each metropolitan, district or local municipality are responsible for (i) undertaking a climate change needs and response assessment for each province and municipality within one year of the Act coming into operation; and (ii) developing and implementing a CCR implementation plan within two years of the Act coming into operation, taking into account national emissions targets and planning processes/instruments developed towards identifying climate change mitigation and/or adaptation measures.
  3. National adaptation to the impacts of climate change: The Minister is to set national adaptation objectives within one year of the Act coming into operation, indicators for measuring progress towards achieving these objectives and a date for their incorporation into all necessary national planning instruments, policies and programmes. A National Adaptation Strategy shall inform climate change adaptation, which - in consultation with defined sector departments and provinces - shall be used to develop short, medium and long-term adaptation scenarios.  The Minister responsible for any defined sector department and any state-owned entity must, within two years of the Act coming into operation, undertake an assessment process and develop and implement a CCR implementation plan. Each Minister will be required to submit progress reports on such implementation every four years.
  4. Greenhouse Gas emissions and removals: The Minister shall determine a binding national GHG emissions trajectory which specifies a national GHG emission reduction objective. The Minister shall further determine, every five years, sectoral emission targets (SETs) for GHG-emitting sectors and sub-sectors. The Minister responsible for each sector or sub-sector for which SETs have been determined must provide a Sectoral Emissions Reduction Plan (SERP) for each (sub)sector to meet the SETs within five years. The responsible Ministers are subject to annual progress reporting requirements in this regard. MECs and Mayors shall support the implementation of SETs by aligning their CCR implementation plans accordingly.  The Minister shall further determine a GHG emission threshold for the purpose of determining persons that will be allocated a carbon budget, which shall be applicable to a specified person for not less than three consecutive 5-year periods (which timeframe for compliance may be extended upon application). Such persons will be required to submit GHG mitigation plans (and progress reports) to the Minister to comply with the allocated carbon budget.  Finally, the Minister, in consultation with the Minister of Energy and the Minister of Trade and Industry, among others, shall develop a plan to phase down or phase out the use of synthetic GHGs. Such plan will inform the methods for accounting for synthetic GHG emissions, prescribe thresholds, and the measures and timeframes within which to facilitate the phase down/out. The carbon budget may be applied to emitters of synthetic GHGs.
  5. Offences and penalties:  A person commits an offence if s/he fails to prepare, submit or implement an approved GHG mitigation plan and that person's GHG emissions exceed the GHG emissions allowance prescribed by their carbon budget during the applicable period. Liability, upon first conviction, amounts to a fine not exceeding R5 million and/or imprisonment not exceeding 5 years, and upon second or subsequent conviction, amounts to a fine not exceeding R10 million and/or imprisonment not exceeding 10 years.

All exercises of power in terms of the Bill, once in operation, shall be subject to the prescribed consultation processes and public participation processes (where necessary).

The Bill is open for public comment until 8 August 2018. Webber Wentzel is able to assist any interested and affecting parties in preparing and submitting comments.

This alert was drafted by Paula-Ann Novotny (Attorney), Webber Wentzel

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