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REGULATORY OPTIONS
FOR IMPLEMENTING
CLIMATE CHANGE LAWS
IN
SOUTH AFRICA
Andrew Gilder
IMBEWU Enviro-Legal Specialists (Pty) Ltd.
South African National Climate Change Conference,
Gallagher Estate, 17 October 2005
www.imbewu.co.za
Outline of Presentation
IMBEWU Enviro-Legal Specialists (Pty) Ltd.
Climate Change Laws?
Mitigation.
South African environmental legal
architecture.
Location of mitigation options?
IMBEWU Enviro-Legal Specialists (Pty) Ltd.
Specialist South African environmental, climate change, health
& safety and sustainability legal consultancy.
Johannesburg-based / Eastern Cape satellite office.
In conjunction with an Attorneys firm (Warburton Attorneys).
Wide range of South African environmental, climate change
health & safety and sustainability legal advice, electronic legal
registers, legal training.
Specialization: advice on issues pertaining to implementation
of climate change mitigation projects, e.g., CDM projects, in
South Africa:
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relevance of the international context,
project initiation and development,
authorisations and consents,
contractual matters (management contracts, agreements for
purchase and sale of emissions reductions).
Climate Change Laws?
UNFCCC – two broad areas of activities,
aimed at achieving:
 “stablization of greenhouse gas
concentrations in the atmosphere that
would prevent dangerous [human-induced]
interference with the climate system:
Mitigation>>currently most developed
internationally; and
Adaptation>>currently less developed
although receiving increasing attention .
Mitigation
Usually understood as meaning actions to
reduce the levels of greenhouse gas emitted into
the atmosphere.
Wide range of mitigation options.
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Imposed by legislation / regulation.
Voluntary.
IMBEWU: current research project looking
particularly at legislated / regulated mitigation
options for South Africa (BASIC Project, EU
funded).
South African
Environmental Legal
Architecture
Constitution Act (108/1996): Section 24
“Everyone has the right:
(a) to an environment that is not harmful to their health or
well-being; and
(b) to have the environment protected, for the benefit of
present and future generations through reasonable
legislative and other measures that –
(i)
prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development
and the use of natural resources while promoting
justifiable economic and social development."
Obligations on Government
The constitution interpreted as placing a positive duty on
the state to protect the environment
This is to be achieved inter alia through legislation and
administrative measures
The goal of these actions are:
• pollution prevention
• conservation
• ecologically sustainable economic and social
development
Government’s response to date
(not exhaustive)
National Environmental Management (NEM) Act
(as amended).
Marine Living Resources Act.
Regime for environmental impact assessment.
National Water Act.
NEM: Protected Areas Act.
NEM: Biodiversity Act.
NEM: Air Quality Act.
Location of mitigation
options?
Two Broad Questions
What mitigation options are most
appropriate to South Africa?
Where should these “appropriate”
options be located within legislation /
regulation?
Objective / outcomes of current research
Objective:
 Identification of possible greenhouse gas
regulatory mitigation measures appropriate to
the South African context (industrial,
environmental legal, post-2012).
Outcome:
 Set of practical recommendations on
appropriate measures and their location within
SA environmental legal architecture.
 [Recommendations on substantive content of
such measures].
Process
Investigation into range of greenhouse gas regulatory
mitigation measures from various Annex I and Nonannex I jurisdictions (including BASIC countries).
Attempt to determine regulatory:
 scope & content,
 intention,
 structure,
 location, e.g., within legislation or regulation
(environmental sector-specific, energy sectorspecific).
Distinction between regulatory and voluntary measures.
Greenhouse Gas Regulatory Mitigation Measure
Evaluation Tool >>
Categories of Greenhouse Gas
Regulatory Mitigation Measures (1)
Monitoring and regulation of emissions:
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Direct (UK Draft Climate Change &
Sustainable Energy Bill),
Indirect, e.g., through controls on use of fossil
fuels.
Emissions Trading Schemes:
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EU ETS,
Australian State-level Scheme,
RGGI (North-Eastern USA & parts of
Canada),
Brazil.
Categories (2)
Other measures:
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Fuel quality specifications,
Technology regulations,
Regulated incentives for mitigation,
Energy efficiency standards and targets
(Australia - MRET, India, UK Draft Bill),
Fuel Mix Disclosure,
Green Energy Certificates,
Carbon Taxes.
Greenhouse Gas Regulatory
Mitigation Measure Evaluation Tool
Premise:
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Only some of the measures identified will be
appropriate to South Africa.
Therefore a need to evaluate those measures that
are appropriate.
As far as possible an objective evaluation –
potential for a generic tool that may be transferable
to other jurisdictions.
Evaluation Tool – Concept (1)
Institutional Efficiency:
 Incorporate greenhouse gas regulatory mitigation
measures into existing environmental legal frameworks
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rather than creating new ones.
Requirements inter alia:
an appropriate, pre-existing environmental
framework;
a measure compatible with this framework.
Current Certainty:
 Measures should achieve mitigation of greenhouse gas
within the context of existing knowledge and information
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databases.
Measures which require extensive scientific research to
implement are likely to be less useful than measures
that do not require such research.
South Africa example: Carbon Capture and Storage and
current uncertainty.
Evaluation Tool – Concept (2)
Appropriateness:
 Measures should be appropriate to the business
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sector(s) from which the greenhouse gas emissions
derive.
Example: “command-and-control” measure may be
more appropriate to one industry sector than to another.
Effectiveness:
 Greenhouse gas regulatory mitigation measures:
should be cost effective;
should have significant greenhouse gas mitigation
potential;
should be relatively easy for industry sectors to
implement;
should be relatively simple for government to police.
A possible location?
NEM: Air Quality Act (39/2004):
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Early drafts attempted to introduce UNFCCC
and Kyoto Protocol into domestic law.
Previous drafts also stronger on greenhouse
gas-related issues.
Long process in finalising.
Date of operation of most provisions: 11
September 2005 (with certain exceptions).
NEM: Air Quality Act
Section 43 – Contents of atmospheric emission
licences:
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Atmospheric emission licences must specify:
Maximum allowed amount, volume, emissions
rate or concentration of pollutants that may be
discharged into the atmosphere.
“Greenhouse gas emissions measurement and
reporting requirements”
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(Condition precedent: greenhouse gas emissions
measurement facility and reporting database which
appears to be contemplated by the Act).
NEM: Air Quality Act
Section 50 – Transboundary Air Pollution:
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The Minister may investigate situations in which
air pollution violates, or is likely to violate, an
international agreement binding on the Republic
in relation to the prevention, control or correction
of pollution.
If the above investigation reveals that the release
of a substance into the air from a source in the
Republic may have a significant detrimental
impact on air quality in another country, then the
Minister may prescribe certain measures.
NEM: Air Quality Act
Section 53 – Regulations:
 The Minister may make regulations pertaining to:
Any matter necessary to give effect to the
Republic’s obligations in terms of an international
agreement relating to air quality.
EMCAs, to the extent that these affect air quality.
[Ozone-depleting substances].
Records.
Trading Schemes.
Incentives to encourage change in behaviour
towards ai pollution by all sectors in society.
General
Final recommendations will have to deal
with the issues of “perverse incentives”
and the enactment of legislation that might
be detrimental to the development of the
CDM.
Research currently in initial stages.
THANK YOU
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