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Key Aspects of South Africa’s much-anticipated Climate Change Bill

Fasken
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Overview

The Climate Change Bill [B9- 2022] (the “Bill”) was formally introduced to Parliament on 18 February 2022 by the Department of Forestry, Fisheries and the Environment (“DFFE”). This comes more than three years after an earlier version of the Bill was first published for public comment on 8 June 2018. The Bill is currently under consideration by the National Assembly and members of the public had until 27 May 2022 to submit any comments on the Bill to the Portfolio Committee on Environment, Forestry and Fisheries.

If the Bill becomes law, it will form the first legal framework in South Africa to respond to the impacts of climate change. Given the increase in the frequency and severity of droughts and floods across the country and the fact that President Ramaphosa has been invited to attend the G7 Summit in Germany in June 2022 where climate change is one of the priority issues for discussion, the introduction of the Bill could not be more timeous.

The main purpose of the Bill is to “enable the development of an effective climate change response and a long-term transition to a low-carbon and climate-resilient economy and society for South Africa in the context of sustainable development”. The Bill acknowledges the urgent threat that climate change presents and emphasizes the need for an effective, progressive and incremental response.

The Bill aims to (i) provide for a coordinated and integrated response to climate change, (ii) provide for the effective management of climate change impacts, (iii) make a fair contribution to the global effort to stabilise greenhouse gas (“GHG”) concentrations, (iv) ensure a just transition towards a low carbon economy and society, (v) give effect to South Africa’s international commitments and obligations in relation to climate change, and (vi) protect and preserve the planet for the benefit of present and future generations of humankind.

We have outlined some of the notable aspects of the Bill below:

  1. Alignment of policies

    The Bill requires every organ of state that exercises a power or performs a function affected by climate change to review, co-ordinate, amend and harmonise their policies, measures, programmes and decisions to ensure that the risks of climate change impacts and associated vulnerabilities are taken into consideration and to give effect to the objects of the Bill. This emphasizes the importance of providing a coordinated and integrated response to the impacts of climate change as per the principles of cooperative governance.

  2. Provincial and Municipal Forums

    The Bill provides that the provincial and municipal intergovernmental forums established in terms of the Intergovernmental Relations Framework Act 13 of 2005 would serve as the Provincial and Municipal Forums on Climate Change, respectively, once the Act comes into effect.

    The Provincial and Municipal Forums on Climate Change would be tasked with coordinating climate change response activities within the relevant province or municipality. Each Municipal Forum on Climate Change would be required to provide a report on its climate change response actions to the relevant Provincial Forum on Climate Change. The Provincial Forums on Climate Change would then be required to provide a report to the President’s Co-ordinating Council regarding the climate change response actions and considerations in the various provinces.

    The President’s Co-ordinating Council is a consultative forum for the President to raise matters of national interest with the Deputy President, Ministers, Premiers and organised local government. The Council is responsible for considering the implementation of national policy and legislation in provinces and municipalities and the co-ordination and alignment of priorities, objectives and strategies across national, provincial and local governments. The establishment of the Provincial and Municipal Forums on Climate Change is another way the Bill seeks to promote the integrated management of climate change considerations and cooperative governance.   

  3. Presidential Climate Commission

    The Bill provides that the President may establish a Presidential Climate Commission (“Commission”) to advise government on its climate change responses and the mitigation of climate change impacts, as well as to monitor government’s progress towards its goal of a low-carbon and climate-resilient economy and society. The Commission members must be appropriately qualified and have expertise in the socio-economic, environmental and sustainability fields and must broadly reflect South Africa’s gender composition and demographics.

    The Commission was established by the President in December 2020 and comprises government representatives, organized labour, civil society and business.

    In February 2022, the Commission published the draft Just Transition Framework (“Framework”) for public comment. The Framework aims to provide practical short-term and long-term goals relating to jobs, local economies, skills, social support, and governance for a seamless transition to a climate-resilient and low-carbon economy. Members of the public had until 29 April 2022 to submit comments to the Commission. We will be keeping an eye on the developments.

  4. Adaptation Strategies and Plans

    The Bill places a lot of obligations on the Minister of Forestry, Fisheries and the Environment (the “Minister”). Some of the obligations include (i) determining national adaptation objectives to guide South Africa’s adaptation to climate change impacts, (ii) establishing indicators for measuring the progress towards such objectives, (iii) setting a date by which the adaptation objectives should be incorporated into national policies, planning instruments and programmes, and (iv) developing adaptation scenarios which anticipate the likely impacts of climate change in South Africa over the short, medium and longer term. The Minister must complete these tasks within one year of the Act coming into operation.

    The Bill also provides that the Minister must develop a National Adaptation Strategy and Plan (“NASP”) in consultation with certain other Ministers (outlined in Schedule 2 of the Bill, such as those responsible for energy, health, public enterprises, science, transport, water affairs and sanitation) within two years of the Act coming into operation. The Ministers referred to in Schedule 2 of the Bill must develop and implement a Sector Adaptation Strategy and Plan (“SASP”) two years after the NASP has been published. They must also submit reports to the Minister on the progress made in relation to the implementation of the relevant SASP every five years.

    The requirement to develop and implement the NASP and relevant SASPs emphasizes another way the Bill seeks to promote an integrated and coordinated approach to the management of adaptation measures in response to the impacts of climate change by organs of state in all spheres of government.  

  5. Provincial and Municipal responses to climate change

    The Bill places more obligations on provincial governments and municipalities. It provides that an MEC and a mayor of a metropolitan or district municipality (as the case may be) must undertake a Climate Change Needs and Response Assessment for the relevant province or municipality. The Climate Change Needs and Response Assessment must analyse the nature and characteristics of the province or municipality and the particular and unique climate change needs and risks that arise as a result of such nature and characteristics and identify climate change response considerations and options. This must be done within one year of the publication of the NASP.

    Once a Climate Change Needs and Response Assessment has been undertaken, the MEC and the mayor of the metropolitan or district municipality would have two years to develop and implement a Climate Change Response Implementation Plan. As the Minister has two years to publish the NASP once the Act comes into effect, it could mean that the provincial and municipal Climate Change Response Implementation Plans are only developed and implemented five years after the Act comes into effect.

    The Climate Change Needs and Response Assessments and the Climate Change Response Implementation Plans must be reviewed every five years and adapted to any climate-related changes that may arise.

  6. National GHG emissions (reduction) trajectory

    One of the most important aspects of the Bill is the Minister’s obligation to determine a national GHG emissions trajectory (i.e. a pathway that manages the reduction of GHG emissions progressively over time). The national GHG emissions trajectory must specify a national GHG emissions reduction objective which is consistent with South Africa’s international obligations.

    The Bill does not refer to the timeframe the Minister must determine the national GHG emissions trajectory. The Bill does indicate, however, that the interim trajectory in Schedule 3 of the Bill would apply until the Minister has published the national GHG emissions trajectory.

    It is important to note that Schedule 3 of the Bill contains the nationally determined contribution (“NDC”) that South Africa submitted to the United Nations Framework Convention on Climate Change in September 2015, which became South Africa’s first NDC in November 2016, following the ratification of the Paris Agreement. The NDC, however, was updated in September 2021 and so the Bill does not reflect South Africa’s current NDC. We anticipate that this will be amended.

  7. Sectoral Emissions Targets

    In addition to the determination of national GHG emissions trajectory, the Bill provides that within one year of the Act coming into operation, the Minister must publish a list of the GHG-emitting sectors subject to sectoral emissions targets. The sectoral emissions targets must be implemented by the Ministers responsible for the administration of the relevant sectors and must be aligned with the national GHG emissions trajectory.

    The targets must include quantitative and qualitative GHG emission reduction goals for the first five years, the subsequent 5 – 10 years and for a 10 – 15 year period thereafter. The targets will be reviewed every five years. Once the sectoral emissions targets have been determined, the Ministers responsible for the administration of the relevant sectors must develop and implement policies and measures toward the achievement of the sectoral emissions targets. This illustrates one of the ways in which the Bill seeks to facilitate a just transition towards a low-emissions and climate-resilient economy.

    The Bill does not expressly refer to the national departments that would be responsible for the relevant sectors. Although Schedule 1 of the Bill refers to the “Functions relevant to the development of Sectoral Emissions Targets” and lists national departments such as Energy, Mineral Resources, National Treasury, Public Enterprises and Transport, there is no mention to Schedule 1 anywhere else in the Bill. This will accordingly need to be amended.

  8. Listed GHGs and carbon budgets

    The Bill provides that the Minister must publish a list of GHGs which cause or are likely to cause or exacerbate climate change and a list of activities which emit one or more of the listed gases. The GHG emission thresholds must be expressed in carbon dioxide equivalent in order for the Minister to identify entities to be assigned a carbon budget.

    A carbon budget refers to the amount of GHG emissions that an entity is permitted to emit over at least three successive five year periods. The Minister must review carbon budgets at the end of the five year commitment period, or upon request by an entity subject to a carbon budget.

    If an entity has been allocated a carbon budget, it must prepare a GHG mitigation plan which outlines the mitigation measures that the entity proposes to implement in order to remain within its allocated carbon budget. The failure to prepare and submit a GHG mitigation plan to the Minister constitutes an offence in terms of the Bill. Interestingly, the Bill does not provide for any other offences. This is discussed in more detail in item 10 below.

    The Bill does not prescribe the timeframes within which the Minister must publish the listed GHGs and activities. Similarly, there is no prescribed timeframe for the allocation of carbon budgets. Given that this one of the main ways in which to facilitate the just transition, it is surprising that the Bill does not prescribe any timeframes. This will hopefully be one of the issues that is considered by the legislature after the public comment period.

  9. Phasing-down and phasing-out of synthetic GHG emissions

    In addition to reducing GHG emissions, the Bill seeks to promote the phasing-down or phasing-out of synthetic GHG emissions. Unlike GHGs, synthetic GHGs are man-made chemicals that do no occur naturally, such as hydrofluorocarbons, perfluorocarbons, and sulphur hexafluorides. Synthetic GHGs are often used in fire extinguishing, foam production, refrigeration and cooling and typically have a much higher global warming potential than naturally occurring GHGs.

    The Bill provides that the Minister, in consultation with the Ministers responsible for the GHG-emitting sectors, must declare certain GHGs to be synthetic GHGs, prescribe thresholds for the use of synthetic GHGs and prescribe timeframes for their phasing-down or phasing-out. Once the synthetic GHGs have been declared, the Minister must develop a plan to phase-down or phase-out synthetic GHGs and review and update the plan every five years. The Minister may also allocate a carbon budget to entities that undertake activities that give rise to synthetic GHG emissions.

    Like many of the provisions in the Bill that require government departments to take certain actions, no timeframes have been prescribed. This provision should also accordingly be amended.

  10. Offences and penalties

    Another notable feature about the Bill is the fact that it only identifies one offence- the failure to prepare and submit a GHG mitigation plan to the Minister. If an entity is convicted for failing to prepare and submit a GHG mitigation plan to the Minister, the Bill provides that section 49B(2) of NEMA would apply (i.e. maximum fine of R5 million, imprisonment for a maximum period of five years or both such fine and such imprisonment).

    Therefore, based on the current version of the Bill, an entity that exceeds its carbon budget, fails to report on the progress against its allocated carbon budget or supplies false or misleading information, would not be guilty of an offence. It is important to note, however, that companies that emit more GHG emissions will be liable to pay a greater amount of carbon tax in terms of the Carbon Tax Act 15 of 2019.

    Given that Government has acknowledged that South Africa needs to address its climate change response as a matter of urgency, we suspect that more offences will be added to subsequent versions of the Bill before it comes into effect.

Despite the gaps in the Bill, it is encouraging to see that this long-awaited legislation is gaining traction. It is promising that the Bill provides more emphasis on the need for climate change mitigation and adaptation responses to be informed by evolving climate change scientific knowledge and that decisions should be based on the best available science, evidence and information.

It is hoped that the introduction of the Bill and the implementation of the Carbon Tax Act 15 of 2019 will jumpstart South Africa’s move towards a low-carbon, climate-resilient and ecologically sustainable economy and society and will help South Africa to achieve its commitments under the Paris Agreement and the goals set during the United Nations Climate Change Conference of the Parties (COP26) in November 2021.

As mentioned, the Bill is currently under consideration by the National Assembly. As the Bill has been tabled as an ordinary bill that affects the provinces (as per section 76 of the Constitution), it must also be considered by the National Council of Provinces. We will be keeping an eye on the progress of the Bill in Parliament.

Should you have any queries about the Bill, please do not hesitate to contact us.

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