SA’s Climate Change Bill out for public comment

You have until 8 August 2018 to have a say on South Africa’s National Climate Change Bill, which was published in the Government Gazette on 8 June.

Timelines are set in the Bill for establishment of a national environmentally sustainable development framework; setting out national adaptation objectives, and determining a national greenhouse gas emissions trajectory for South Africa and the greenhouse gas thresholds that will determine carbon budget liability.

What’s the big deal? Open Source Green asked Andrew Gilder and Olivia Rumble, directors at Climate Legal, which provided external specialist climate change legal counsel on the Bill.

1. In a nutshell, what is the point of this Bill?

This Bill is the first piece of legislation which provides specifically for the administration and governance of climate change considerations in SA. It is one of only a few legal instruments in an advanced developing country, which comprehensively deals with both mitigation and adaptation. It also places South Africa in a position where it can work towards compliance with its international obligations. The important thing about the Bill, unlike other pieces of legislation internationally, is that it provides for sector emissions targets and has chapters dealing with both mitigation and adaptation simultaneously, which is unusual.

2. How will it change the status quo if implemented?

The most important thing that it will do, is to locate the administration and governance of climate change, in the best case scenario, horizontally across government, thereby harmonising the disparate and uncoordinated approaches that we are seeing in some areas. The other thing that it will do most pronouncedly, is that it will require actions to be taken at the provincial and the local level, particularly around planning for, and implementation of adaptation measures.

3. Do we need this Bill to be promulgated before the Carbon Tax can be implemented?

No. The carbon tax at the moment is operating completely separately from the Climate Change Bill. Although, judging by a conference given by National Treasury Director General Ismail Momoniat about two weeks ago in Parliament, Treasury is acutely aware and has been for some time, of the need to align its processes on carbon tax around what the Department of Environmental Affairs is intending to do with the carbon budgets. What that means for the moment, is that Treasury seems intent on going ahead with the carbon tax, possibly for an initial period of three years, with the view to the tax and the budget processes aligning in due course.

4. In Section 19 of the Bill, on offences and penalties, it says a person commits an offence… Is it envisaged that people would be fined and face jail time, would that be directors of companies?

Yes. The Bill allows for criminal liabilities to be imposed on persons which are defined to include juristic and natural persons. Carbon budgets would ordinarily be issued to a juristic person and so liability under the Bill for failing to comply with the budget would be against the company. Personal liability for directors for a contravention of environmental laws is presently regulated under the National Environmental Management Act and the two laws would need to be aligned to ensure that these provisions apply to the Climate Change Bill.

5. What are the potential areas of contention that have been identified so far?

The two important ones are the fact that the Bill does not provide for financing of any of the activities to be taken thereunder. And there are a number of timing elements in the Bill that need to be aligned. So for example it says the Minister must do the following things within a particular period of time, and then co-relative aspects of the Bill that also need to be dealt with are given different periods of time.

One of the criticisms has also been that it introduces another quite complex set of layers in governance in face of a scenario where the criticism is that government is not doing that well in aspects of administration and governance at the moment.

6. Who should be interested in this Bill and commenting on it – who does it affect?

It affects everybody but most importantly, it affects industry  – emitting industries – and civil society. The reason I sound equivocal on emitting industries, is because the Bill also provides for quite significant issues related to adaptation, but those are intended to operate as framework provisions at the moment because its all about future planning.

7. Who was responsible for putting this Bill together?

The DEA directorate, climate change and air quality directorate, and the process was funded by GIZ.

Are sustainability professionals engaging with this kind
of legislation? Or is it being left up to polluting 
industries and civil society NGOs? Share your thoughts on 
the OpenSourceGreen Forum.

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