Centre for Environmental Rights – Advancing Environmental Rights in South Africa

Article originally published by City Press

In his letter to the nation last October, President Cyril Ramaphosa said: “It is no exaggeration to say that the world is facing a climate crisis of unprecedented proportions.”

It is also no exaggeration to say that South Africa’s Climate Change Bill is one of the most important draft laws to cross the desks of our legislators, or that the unprecedented risks highlighted by the president – sadly borne out by the role that the climate crisis played in the recent KwaZulu-Natal floods (pictured) – will need to be managed with unprecedented effectiveness and courage.

The bill was tabled by Forestry, Fisheries and the Environment Minister Barbara Creecy in Parliament on February 18. While legislation is not the primary solution to a problem as complex as the climate crisis, it will provide very important legal certainty and impetus to steer South Africa in the right direction.

This proposed legislation is intended to govern South Africa’s climate crisis response in terms of adaptation and mitigation. It also aims to empower and delegate responsibilities to various organs of state which need to ensure a just transition to a climate-resilient, low-carbon economy and society.

Mainstream climate action is critically urgent

The National Climate Change Response Policy white paper was published in 2011 but it took another seven years for the first Climate Change Bill to be published for comment in 2018. After disappearing from the public eye for another three years, a new version was published last October, before being tabled this year.

On March 11, Creecy and officials from the department of forestry, fisheries and the environment briefed Parliament’s related portfolio committee on the bill.

As Creecy highlighted, all progress made has been subject to willing but effective voluntary collaboration from a range of stakeholders, including other ministries. Only once the new legislation is in place will there be legislative backing for the myriad processes required to mount an effective climate crisis response.

The bill makes no bones about it being a “legal and institutional framework” to implement the country’s climate crisis response. As such, many details and specifics are left to the regulations yet to be formulated, with some of these having no prescribed time frames and others appearing painfully far away.

Most notably this can be seen in the allocation of the carbon budgets. These are an assigned amount of allowable greenhouse gas emissions allocated to companies by the minister as well as the determination of sectoral emissions targets (greenhouse gas emission limits to be allocated per sector).

As it stands, neither of these key mechanisms have any time frames nor deadlines. This creates the real and perceived risk that the Climate Change Act may be toothless and inadequate to drive mitigation action and any meaningful greenhouse gas emission reduction for a number of years to come.

This is a delay we cannot afford. Just this month, the latest Intergovernmental Panel on Climate Change report on mitigation again confirmed that greenhouse gas emissions need to peak in 2025, and decline by 43% by 2030. This is an extremely steep reduction trajectory, even if developing nations such as South Africa are given more leeway than developed nation emitters.

When we consider the nature and extent of potential near-term climate impacts for South Africa – most notably threats to fresh water, flooding, food security, fire, infrastructure damage, and all of the related costs, many of which we are already experiencing – we can see that the need to mainstream the climate crisis adaptation in the relevant organs of state is critically urgent.

Transparency and access to information

The climate crisis affects every person in society in increasingly profound and numerous ways. So the information concerning greenhouse gas emissions and their management, as well as adaptation measures, must be publicly accessible. In its current form, the bill provides for very limited access to information.

Notwithstanding the Promotion of Access to Information Act and the people’s constitutional right to access to information, activists and watchdog bodies can attest to the fact that certain types of information are rarely easily accessible. This often compels parties to go to court or undertake time-consuming processes to access information, which should be accessible by default.

Emission reduction targets

Solid and ambitious emission reduction targets are essential to ensure adequate and effective climate change mitigation, one of the key objectives of the bill. The bill directs the minister to determine a national greenhouse gas emissions trajectory.

However, the interim trajectory contained in schedule 3 of the bill is in fact South Africa’s 2015 Nationally Determined Contribution (NDC) emission trajectory, which has since been updated. These emission targets were deemed “highly insufficient” according to independent research authority, Climate Action Tracker.

They put the world on track for an up to 4°C warming temperature increase. This could translate to 8°C for South Africa as it warms at twice the global average rate. At the very least, South Africa’s NDC update of last year should have been included, as this is arguably now the country’s emission target for 2025 and 2030. Basing our trajectory on the 2015 NDC is not only unsafe in terms of the climate mitigation action, but immediately places the bill out of alignment with our international obligations as a signatory of the Paris Agreement.

Penalties, compliance and enforcement

The only offence that is created in the bill is the failure to provide a greenhouse gas mitigation plan. The potentially harmful act of exceeding an allocated carbon budget is not made an offence in the bill.

The climate crisis is predicated on the emissions of greenhouse gases by humans, and it is specifically this activity which needs to be strictly and progressively reduced in accordance with a scientifically informed emissions reduction trajectory.

A previous version of the bill referred to an increased carbon tax rate as the means to compel emission reduction, and the statements by Creecy and the minister of finance also make mention of this. Details on how this would be used as a tool to compel emission reductions remain to be released for public scrutiny.

Cooperative governance will be essential

The bill prescribes a possibly unprecedented level of cooperative governance in responding to the climate crisis; this is appropriate given the cross-cutting nature of the crisis.

All national, provincial and local government state organs have critically important roles to play, and no less than 17 departments are delegated with duties in terms of adaptation and mitigation response. All these stakeholders need to be optimally empowered by the legislation to perform these roles.

The portfolio committee has now invited written submissions on the bill, which are due on May 27. It is essential that stakeholders scrutinise the bill and make submissions highlighting their climate crisis concerns.

South Africa may thrive or burn, depending on how well we manage the crisis. And the Climate Change Bill holds many of the keys.

Abdinor is a climate advocacy lawyer at the Centre for Environmental Rights