Michael Kidd 1
3 South African policy relating to climate change
3.10 National Climate Change Response Green Paper 2010 50
The purpose of the policy outlined in the Green Paper, which appeared late in 2010, is to commit South Africa to making
a fair contribution to the stabilisation of global greenhouse gas concentrations in the atmosphere and the protection of the country and its people from the impacts of unavoidable climate change. It presents the Government’s vision for an effec-tive climate change response and the long-term transition to a climate resilient and low-carbon economy and society – a vision premised on Government’s com-mitment to sustainable development and a better life for all.51
49 Ibid. at 10.
50 GN 1083 in GG 33801 of 25 November 2010.
51 Ibid. at 5.
The Green Paper sets out the following strategies that require implementation in order to achieve the country’s climate change response objectives:52
• Taking a balanced approach to both climate change mitigation and adapta-tion responses in terms of prioritisaadapta-tion, focus, acadapta-tion and resource alloca-tion.
• Prioritising the development and maintenance of the science-policy interface and knowledge management and dissemination systems to ensure that cli-mate change response decisions are informed by the best available informa-tion.
• The short-term prioritisation of adaptation interventions that address im-mediate threats to the health and well-being of South Africans including interventions in the water, agriculture and health sectors.
• The prioritisation of mitigation interventions that significantly contribute to a peak, plateau and decline emission trajectory where greenhouse gas emis-sions peak in 2020 to 2025 at 34 per cent and 42 per cent respectively below a business as usual baseline, plateau to 2035 and begin declining in absolute terms from 2036 onwards, in particular, interventions within the energy, transport and industrial sectors.
• The prioritisation of mitigation interventions that have potential positive job creation, poverty alleviation and/or general economic impacts. In particular, interventions that stimulate new industrial activities and those that improve the efficiency and competitive advantage of existing business and industry.
In order to accurately identify these sectors and the job creation, industrial development potential of these, work will be done in order that the White Paper provides a clear understanding and prioritisation of these and their potential.
• Prioritising the development of knowledge generation and information man-agement systems that increase our ability to measure and predict climate change and, especially extreme weather events, floods, droughts and forest and veld fires, and their impacts on people and the environment.
• The mainstreaming of climate change response into all national, provincial and local planning regimes.
• The use of incentives and disincentives, including through regulation and the use of economic and fiscal measures to promote behaviour change that would support the transition to a low carbon society and economy.
• Acknowledging that, with the energy intensive nature of the South African economy, the mitigation of greenhouse gases is generally not going to be easy or cheap and that Government must support and facilitate the mitigation plans of, in particular, the energy, transport and industrial sectors.
• The recognition that sustainable development is also climate friendly
devel-52 Reproduced verbatim from the document at 6–7.
opment and that the more sustainable our development path is, the easier it will be to build resilience to climate change impacts.
• Recognise that measures taken by developed countries in their efforts to re-spond to climate change may have detrimental effects on high carbon and energy intensive economies such as South Africa. These response measures may include trade measures including border tax adjustments, and could be reflected in a reluctance to trade in goods with a high carbon footprint. South Africa’s climate change strategy must recognise and address this and also cre-ate mechanisms that will give high carbon sectors the support and time to move to lower carbon forms of production.
• Recognise that South Africa’s response to climate change will have major implications for both the Southern African region and for Africa as a whole and ensure that national responses are aligned to, support and operate as part of a broader regional response.
The Green Paper considers policy approaches in the context of, first, those sectors of South African society that most require adaptation (viz. water, agriculture and hu-man health) and, second, those sectors where mitigation will be most important (energy, industry and transport). The document also considers three other important sectors – disaster risk management; natural resource sectors; and human society, livelihoods and services. The approach is to identify, for each of these sectors, the key challenges or impacts and then to set out the policy responses, which take the form of actions (for example, in the context of water, to ‘continue to develop and maintain good water management systems and institutions, from village through to national level, to ensure we achieve our equity objectives, and can sustain affordable provision of water to all’).53
Many of the identified actions involve increased research, investigation or ‘explora-tion’ of various issues, which is not unexpected in a document such as this. There are also several actions involving developing awareness, the development of more issue-specific plans and strategies, and increased investment in infrastructure – both main-tenance and expansion. In light of the fact that this is not the place to evaluate each policy response individually, only certain of these responses will be highlighted here because they are noteworthy in the sense that they influence the overall policy frame-work, or, as this is essentially a legal analysis, because they envisage direct legal re-sponses.54
Responses that are interesting from a general policy-direction perspective primarily relate to energy. The Green Paper recommends that a ‘climate constraint’ be inte-grated into the Inteinte-grated Energy Plan (IEP) and the Inteinte-grated Resource Plan for
53 Ibid. at 9.
54 Many of the actions identified may eventually have to be implemented by means of regulation. The cur-rent exercise examines only those where there is a direct regulatory device mentioned or clearly envisaged in the stated policy response.
Electricity Generation (IRP).55 It would probably be argued by the originators of these documents (IEP and IRP) that this has been done, but the extent to which this integration has been taken on board in a real, as opposed to window-dressing, man-ner is a concern.
An important commitment is the recommendation to review and ‘scale up’ the 10 000 GWh 2013 Renewable Energy target ‘in order that it can sustain long term growth in order to promote competitiveness for renewable energy with conven-tional energies in the medium and long term’.56 Although this is a desirable direction if a genuine approach to reduction of GHG emissions is to be sustained, the absence of a more specific target may well permit minimal improvements in this regard, to the extent that any gains have an insignificant overall impact.
Likely to be a contentious response is the suggestion that the potential for nuclear energy be explored and further developed.57 It is clear that nuclear energy will have to be included in discussions of the appropriate future energy mix for the country, but it is clear from widespread opposition to the proposed pebble bed reactor58 that any nuclear development will have to be well justified and demonstrably beneficial to South Africa’s interests.
It is also interesting that some of the stated policy responses (worded in such a way as to suggest that they are new initiatives, not bolstering of existing activities) are either clearly already being done (at least on paper) or are arguably contained in existing activities or regulatory requirements. For example, one of the responses is to
‘ensure that a comprehensive biodiversity monitoring system is established that can provide timely information on specific risks’.59 The wording suggests that this is something that needs to be established in the future, but it is exactly what is pro-vided for already in the National Environmental Management: Biodiversity Act60 in Chapter 3.
Responses requiring legal innovations are found throughout the document. Those that relate to improved implementation of, or the securing of compliance with, exist-ing legislation are: the acceleration of the ‘finalisation and implementation of cost reflective water and water-use pricing including effluent charges’;61 and the ‘vigorous’
55 Green Paper §5.4.1
56 Ibid. at §5.4.7
57 Ibid. at §5.4.9
58 In 2004, Eskom announced that South Africa would build a pebble bed modular (nuclear) reactor. There was strong opposition to this (see, for example, John Yeld, ‘Pebble bed fuel gets go-ahead’, Cape Argus 8 of 30 January 2007. As costs mounted, and in the face of lack of investment, the South African govern-ment decided to terminate the project in September 2010 (see governgovern-ment announcegovern-ment, available at
<http://www.southafrica.info/news/pbmr-mothballed.htm> (visited 4 August 2011).
59 Ibid. at §5.8.4
60 Act 10 of 2004.
61 Green Paper at §5.1.4
enforcement of compliance with water quality standards.62 The extension of existing regulatory mechanisms is envisaged in the recommendation to ‘reduce the incidence of respiratory diseases by improving air quality through reducing ambient particulate matter (PM) and sulphur dioxide (SO2) concentrations by legislative and other measures to ensure full compliance with National Ambient Air Quality Standards by 2020’;63 the use of s 29(1) of the National Environmental Management: Air Quality Act,64 to manage GHG emissions from all significant industrial sources (i.e. sources responsible for greater than 0.1 per cent of total emissions for the sector) ‘in line with approved mitigation plans prepared by identified industries and/or sectors’;65 and to ensure that the Minimum Requirements for Landfills are revised and amended to reflect greenhouse gas mitigation considerations by 2012.66
The setting of mandatory (presumably legally required) targets and frameworks are also envisaged in several responses, without specifying existing legislation in terms of which this may be done: these include the development of renewable energy policy, legal and regulatory frameworks;67 and the setting of ‘ambitious and mandatory’
targets for energy efficiency – ‘made mandatory through available regulatory instru-ments and other appropriate mechanisms’.68 The latter is something that can be done without much difficulty in order to reduce, not insignificantly, energy usage.69 The establishment of new legislative interventions is envisaged by several policy re-sponses. This will necessitate research in order to develop appropriate legislation for the South African context, but this will be facilitated by the fact that several of these regulatory mechanisms are in place in other countries. The introduction of a carbon tax is placed on the agenda twice: one response urges the use of ‘market-based policy measures such as an escalating carbon tax to price carbon and internalise the external costs of climate change’;70 whilst a second suggests that South Africa ‘continue to develop and implement an escalating CO2 tax on all energy related CO2 emissions, including process emissions from the coal to liquid fuel process’.71 The United States is currently increasing legislative efforts to require energy efficiency.72
Various energy-efficiency measures are recommended, which will probably require new legislation: the development and implementation of ‘mandatory appliance
label-62 Ibid. at §5.1.11
63 Ibid. at §5.3.1. Such standards are set in terms of s9, 10 and 11 of the National Environmental Manage-ment: Air Quality Act 39 of 2004.
64 See further discussion on this below.
65 Green Paper at §5.5.3
66 Ibid. at §5.9.21
67 Ibid. at §5.4.10
68 Ibid. at §5.4.13
69 See Lester R Brown, Plan B 4.0: Mobilizing to Save Civilization (W. W. Norton & Company, 2009) at 84–6.
70 Green Paper at §5.4.3
71 Ibid. at §5.5.4
72 John M Broder, ‘Obama orders new rules to raise energy efficiency’, New York Times of 5 February 2009, available at <http://www.nytimes.com/2009/02/06/us/politics/06energy.html> (visited 4 February 2011).
ling for household appliances’;73 the introduction of ‘Minimum Energy Performance Standards (MEPS) for appliances and equipment, as well as proposals for manda-tory energy rating labelling’;74 and the legislation of ‘requirements for the installa-tion of energy management systems in large-scale office buildings’.75 Related to the latter is the recommendation to mandate the ‘National Home Builders Registration Council (NHBRC) to ensure that building construction conforms to green building requirements, including measures such as use of controlled ventilation, recycled material, [and] solar power’.76 The energy-saving benefits of so-called ‘green build-ings’ are clear,77 and the European Union has a Directive on the energy performance of buildings which can provide South Africa with guidance in this regard.78 Also probably requiring new legislation will be the objective of promoting the ‘develop-ment and imple‘develop-mentation of appropriate standards and guidelines and codes of practice for the appropriate use of renewable energy, energy efficient and low carbon technologies’.79
Another legislative innovation will be the development of a ‘legislative policy and regulatory framework to support carbon capture and storage’.80 It is likely that the Australian lead in legislating for the storage of greenhouse gas will be instructive in this regard.81
Finally (on the legal theme), there are responses relating to reporting of emissions.
The Green Paper recommends the development, implementation and maintenance of a ‘greenhouse gas emissions information management system in respect of the energy sector that provides accurate, up to date and complete information to the South African Air Quality Information System’s National Greenhouse Gas Inven-tory hosted by the South African Weather Service’.82 Such a greenhouse gas emis-sions information management system must provide ‘measurable, reportable and verifiable information on all significant interventions (i.e. interventions that reduce greenhouse gases by greater than 0.1% of emissions from the sector)’.83 A similar response requires the ‘mandatory submission of greenhouse gas emission data to the National Atmospheric Emission Inventory by all significant emitters and compilers of greenhouse gas emission related data and/or proxy data by 2013’.84
73 Green Paper at §5.4.15
74 Ibid. at §5.4.16
75 Ibid. at §5.4.17
76 Ibid. at §5.9.8
77 Brown, Plan B 4.0, supra note 69, at 87–91.
78 Directive 2010/31/EU of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings.
79 Green Paper at §5.4.22
80 Ibid. at §5.4.23
81 See the Offshore Petroleum Amendment (Greenhouse Gas Storage) Act 2006 (Cth); the Greenhouse Geological Sequestration Act 208 (Vic) and the Greenhouse Gas Storage Act 2009 (Qld).
82 Green Paper at §5.4.19. See, further, Rina Taviv, Stanford Mwakasonda and Jongikhaya Witi, Developing the GHG inventory for South Africa (2008).
83 Green Paper at §5.4.20
84 Ibid. at §8.4.2
As for governance, the Green Paper contains some important responses. The docu-ment commits all governdocu-ment departdocu-ments and all state owned enterprises – (i) ‘by 2012, [to] conduct a review of all policies, strategies, legislation, regulations and plans falling within its jurisdiction or sphere of influence to ensure full alignment with the National Climate Change Response Policy’ (NCCRP); and (ii) by 2014, to
‘ensure that all policies, strategies, legislation, regulations and plans falling within its jurisdiction or sphere of influence are fully aligned with the [NCCRP]’.85 Insofar as governance structure is concerned, the Green Paper envisages the formation of the Interministerial Committee on Climate Change, at executive (Cabinet) level. The Committee is intended to ‘foster the exchange of information, consultation, agree-ment, assistance and support among the spheres of government with respect to cli-mate change and government’s response to clicli-mate change’. Integration throughout government of climate change response actions is critical and it is important, there-fore, that this Committee plays a central role to achieve this.
The Green Paper also deals with issues of resource inputs (for example, financing climate change responses) and monitoring, evaluation and review. As with most policies, the acid test will be the way in which the policy is translated into action.
The implementation of the policy will ultimately, for the most part, have to be carried out by means of legislation, whether by means of using or amending existing laws (such as the Air Quality Act)86 or by enacting dedicated climate change response legislation. Several responses, as pointed out above, require further research or ex-amination as to appropriate ways of addressing the issue in question, which suggests that a single enactment may be delayed too long (pending completion of all the underlying research and investigation) in order to be optimally effective. If climate change response is to use existing law, it is necessary to examine what the law cur-rently entails as far as climate change is concerned.