REGULATORY OPTIONS REGULATORY OPTIONS FOR IMPLEMENTING FOR IMPLEMENTING

CLIMATE CHANGE LAWS CLIMATE CHANGE LAWS IN IN

SOUTH AFRICASOUTH AFRICA

Andrew GilderAndrew Gilder

IMBEWU Enviro-Legal Specialists (Pty) Ltd.IMBEWU Enviro-Legal Specialists (Pty) Ltd.South African National Climate Change Conference, South African National Climate Change Conference,

Gallagher Estate, 17 October 2005Gallagher Estate, 17 October 2005www.imbewu.co.zawww.imbewu.co.za

Outline of PresentationOutline of Presentation

IMBEWU Enviro-Legal Specialists IMBEWU Enviro-Legal Specialists (Pty) Ltd.(Pty) Ltd.

Climate Change Laws?Climate Change Laws?

Mitigation.Mitigation.

South African environmental legal South African environmental legal architecture.architecture.

Location of mitigation options?Location of mitigation options?

IMBEWU Enviro-Legal Specialists (Pty) Ltd.IMBEWU Enviro-Legal Specialists (Pty) Ltd.

Specialist South African environmental, climate change, Specialist South African environmental, climate change, health & safety and sustainability legal consultancy.health & safety and sustainability legal consultancy.Johannesburg-based / Eastern Cape satellite office.Johannesburg-based / Eastern Cape satellite office.In conjunction with an Attorneys firm (Warburton In conjunction with an Attorneys firm (Warburton Attorneys).Attorneys).Wide range of South African environmental, climate Wide range of South African environmental, climate change health & safety and sustainability legal advice, change health & safety and sustainability legal advice, electronic legal registers, legal training.electronic legal registers, legal training.Specialization: advice on issues pertaining to Specialization: advice on issues pertaining to implementation of climate change mitigation projects, implementation of climate change mitigation projects, e.g., CDM projects, in South Africa:e.g., CDM projects, in South Africa:

relevance of the international context, relevance of the international context, project initiation and development, project initiation and development, authorisations and consents, authorisations and consents, contractual matters (management contracts, agreements contractual matters (management contracts, agreements

for purchase and sale of emissions reductions). for purchase and sale of emissions reductions).

Climate Change Laws?Climate Change Laws?

UNFCCC – two broad areas of activities, aimed UNFCCC – two broad areas of activities, aimed at achieving:at achieving: ““stablization of greenhouse gas stablization of greenhouse gas

concentrations in the atmosphere that would concentrations in the atmosphere that would prevent dangerous [human-induced] prevent dangerous [human-induced] interference with the climate system:interference with the climate system:

MitigationMitigation>>currently most developed >>currently most developed internationally; andinternationally; and

AdaptationAdaptation>>currently less developed >>currently less developed although receiving increasing attention .although receiving increasing attention .

MitigationMitigation

Usually understood as meaning actions to Usually understood as meaning actions to reduce the levels of greenhouse gas emitted into reduce the levels of greenhouse gas emitted into the atmosphere.the atmosphere.Wide range of mitigation options.Wide range of mitigation options. Imposed by legislation / regulation.Imposed by legislation / regulation. Voluntary.Voluntary.

IMBEWU: current research project looking IMBEWU: current research project looking particularly at legislated / regulated mitigation particularly at legislated / regulated mitigation options for South Africa (BASIC Project, EU options for South Africa (BASIC Project, EU funded).funded).

South African South African Environmental Legal Environmental Legal

ArchitectureArchitecture

Constitution Act (108/1996): Section 24Constitution Act (108/1996): Section 24

““Everyone has the right:Everyone has the right:

(a)(a) to an environment that is not harmful to their health or well-being; to an environment that is not harmful to their health or well-being; andand

(b)(b) to have the environment protected, for the benefit of present and to have the environment protected, for the benefit of present and future generations through reasonable legislative and other future generations through reasonable legislative and other measures that –measures that –

(i) prevent pollution and ecological degradation;(i) prevent pollution and ecological degradation;

(ii) promote conservation; and(ii) promote conservation; and

(iii) secure ecologically sustainable development(iii) secure ecologically sustainable development and the use of natural resources while promoting and the use of natural resources while promoting justifiable economic and social development." justifiable economic and social development."

Obligations on GovernmentObligations on Government

The constitution interpreted as placing a positive duty on The constitution interpreted as placing a positive duty on the state to protect the environment the state to protect the environment

This is to be achieved This is to be achieved inter alia inter alia through legislation and through legislation and administrative measuresadministrative measures

The goal of these actions are: The goal of these actions are:

• pollution prevention pollution prevention

• conservation conservation

• ecologically sustainable economic and social ecologically sustainable economic and social developmentdevelopment

Government’s response to date Government’s response to date (not exhaustive)(not exhaustive)

National Environmental Management (NEM) Act National Environmental Management (NEM) Act (as amended).(as amended).

Marine Living Resources Act.Marine Living Resources Act.

Regime for environmental impact assessment.Regime for environmental impact assessment.

National Water Act.National Water Act.

NEM: Protected Areas Act.NEM: Protected Areas Act.

NEM: Biodiversity Act. NEM: Biodiversity Act.

NEM: Air Quality Act.NEM: Air Quality Act.

Location of mitigation Location of mitigation options?options?

Two Broad QuestionsTwo Broad Questions

What mitigation options are most What mitigation options are most appropriate to South Africa?appropriate to South Africa?

Where should these “appropriate” Where should these “appropriate” options be located within legislation / options be located within legislation / regulation?regulation?

Objective / outcomes of current researchObjective / outcomes of current research

Objective:Objective: Identification of possible greenhouse gas regulatory Identification of possible greenhouse gas regulatory

mitigation measures appropriate to the South African mitigation measures appropriate to the South African context (industrial, environmental legal, post-2012).context (industrial, environmental legal, post-2012).

Outcome:Outcome: Set of practical recommendations on appropriate Set of practical recommendations on appropriate

measures and their location within SA environmental measures and their location within SA environmental legal architecture.legal architecture.

[Recommendations on substantive content of such [Recommendations on substantive content of such measures].measures].

ProcessProcess

Investigation into range of greenhouse gas regulatory Investigation into range of greenhouse gas regulatory mitigation measures from various Annex I and Non-annex I mitigation measures from various Annex I and Non-annex I jurisdictions (including BASIC countries).jurisdictions (including BASIC countries).Attempt to determine regulatory:Attempt to determine regulatory: scope & content,scope & content, intention, intention, structure,structure, location, e.g., within legislation or regulation location, e.g., within legislation or regulation

(environmental sector-specific, energy sector-specific). (environmental sector-specific, energy sector-specific). Distinction between regulatory and voluntary measures.Distinction between regulatory and voluntary measures.Greenhouse Gas Regulatory Mitigation Measure Evaluation Greenhouse Gas Regulatory Mitigation Measure Evaluation Tool >>Tool >>

Categories of Greenhouse Gas Categories of Greenhouse Gas Regulatory Mitigation Measures (1)Regulatory Mitigation Measures (1)

Monitoring and regulation of emissions:Monitoring and regulation of emissions: Direct (UK Draft Climate Change & Sustainable Direct (UK Draft Climate Change & Sustainable

Energy Bill),Energy Bill), Indirect, e.g., through controls on use of fossil Indirect, e.g., through controls on use of fossil

fuels.fuels.

Emissions Trading Schemes:Emissions Trading Schemes: EU ETS, EU ETS, Australian State-level Scheme, Australian State-level Scheme, RGGI (North-Eastern USA & parts of Canada),RGGI (North-Eastern USA & parts of Canada), Brazil.Brazil.

Categories (2)Categories (2)

Other measures:Other measures: Fuel quality specifications,Fuel quality specifications, Technology regulations,Technology regulations, Regulated incentives for mitigation, Regulated incentives for mitigation, Energy efficiency standards and targets Energy efficiency standards and targets

(Australia - MRET, India, UK Draft Bill),(Australia - MRET, India, UK Draft Bill), Fuel Mix Disclosure,Fuel Mix Disclosure, Green Energy Certificates,Green Energy Certificates, Carbon Taxes.Carbon Taxes.

Greenhouse Gas Regulatory Greenhouse Gas Regulatory Mitigation Measure Evaluation ToolMitigation Measure Evaluation Tool

Premise:Premise:

Only some of the measures identified will be Only some of the measures identified will be appropriate to South Africa.appropriate to South Africa.

Therefore a need to evaluate those measures that Therefore a need to evaluate those measures that are appropriate.are appropriate.

As far as possible an As far as possible an objective objective evaluation – potential evaluation – potential for a generic tool that may be transferable to other for a generic tool that may be transferable to other jurisdictions.jurisdictions.

Evaluation Tool – Concept (1) Evaluation Tool – Concept (1) Institutional EfficiencyInstitutional Efficiency:: Incorporate greenhouse gas regulatory mitigation measures into Incorporate greenhouse gas regulatory mitigation measures into

existing environmental legal frameworks rather than creating existing environmental legal frameworks rather than creating new ones.new ones.

Requirements Requirements inter aliainter alia::an appropriate, pre-existing environmental framework; an appropriate, pre-existing environmental framework; a measure compatible with this framework.a measure compatible with this framework.

Current CertaintyCurrent Certainty:: Measures should achieve mitigation of greenhouse gas within Measures should achieve mitigation of greenhouse gas within

the context of existing knowledge and information databases. the context of existing knowledge and information databases. Measures which require extensive scientific research to Measures which require extensive scientific research to

implement are likely to be less useful than measures that do not implement are likely to be less useful than measures that do not require such research.require such research.

South Africa example: Carbon Capture and Storage and current South Africa example: Carbon Capture and Storage and current uncertaintyuncertainty..

Evaluation Tool – Concept (2) Evaluation Tool – Concept (2)

AppropriatenessAppropriateness:: Measures should be appropriate to the business sector(s) Measures should be appropriate to the business sector(s)

from which the greenhouse gas emissions derive. from which the greenhouse gas emissions derive. Example: “command-and-control” measure may be more Example: “command-and-control” measure may be more

appropriate to one industry sector than to another.appropriate to one industry sector than to another.

EffectivenessEffectiveness:: Greenhouse gas regulatory mitigation measures:Greenhouse gas regulatory mitigation measures:

should be cost effective;should be cost effective;should have significant greenhouse gas mitigation should have significant greenhouse gas mitigation potential;potential;should be relatively easy for industry sectors to implement; should be relatively easy for industry sectors to implement; should be relatively simple for government to police.should be relatively simple for government to police.

A possible location?A possible location?

NEM: Air Quality Act (39/2004):NEM: Air Quality Act (39/2004): Early drafts attempted to introduce UNFCCC Early drafts attempted to introduce UNFCCC

and Kyoto Protocol into domestic law.and Kyoto Protocol into domestic law. Previous drafts also stronger on greenhouse Previous drafts also stronger on greenhouse

gas-related issues.gas-related issues. Long process in finalising.Long process in finalising. Date of operation of most provisions: 11 Date of operation of most provisions: 11

September 2005 (with certain exceptions).September 2005 (with certain exceptions).

NEM: Air Quality ActNEM: Air Quality ActSection 43 – Contents of atmospheric emission Section 43 – Contents of atmospheric emission licences:licences:

Atmospheric emission licences Atmospheric emission licences must must specify:specify:

Maximum allowed amount, volume, emissions Maximum allowed amount, volume, emissions rate or concentration of pollutants that may be rate or concentration of pollutants that may be discharged into the atmosphere.discharged into the atmosphere.

““Greenhouse gas emissions measurement and Greenhouse gas emissions measurement and reporting requirements” reporting requirements”

(Condition precedent: greenhouse gas emissions (Condition precedent: greenhouse gas emissions measurement facility and reporting database which measurement facility and reporting database which appears to be contemplated by the Act).appears to be contemplated by the Act).

NEM: Air Quality ActNEM: Air Quality Act

Section 50 – Transboundary Air Pollution:Section 50 – Transboundary Air Pollution:

The Minister may investigate situations in which The Minister may investigate situations in which air pollution violates, or is likely to violate, an air pollution violates, or is likely to violate, an international agreement binding on the Republic international agreement binding on the Republic in relation to the prevention, control or correction in relation to the prevention, control or correction of pollution. of pollution.

If the above investigation reveals that the release If the above investigation reveals that the release of a substance into the air from a source in the of a substance into the air from a source in the Republic may have a significant detrimental Republic may have a significant detrimental impact on air quality in another country, then the impact on air quality in another country, then the Minister may prescribe certain measures. Minister may prescribe certain measures.

NEM: Air Quality ActNEM: Air Quality Act

Section 53 – Regulations:Section 53 – Regulations: The Minister may make regulations pertaining to:The Minister may make regulations pertaining to:

Any matter necessary to give effect to the Any matter necessary to give effect to the Republic’s obligations in terms of an international Republic’s obligations in terms of an international agreement relating to air quality.agreement relating to air quality.

EMCAs, to the extent that these affect air quality.EMCAs, to the extent that these affect air quality.

[Ozone-depleting substances].[Ozone-depleting substances].

Records.Records.

Trading Schemes.Trading Schemes.

Incentives to encourage change in behaviour Incentives to encourage change in behaviour towards ai pollution by all sectors in society.towards ai pollution by all sectors in society.

GeneralGeneral

Final recommendations will have to deal Final recommendations will have to deal with the issues of “perverse incentives” with the issues of “perverse incentives” and the enactment of legislation that might and the enactment of legislation that might be detrimental to the development of the be detrimental to the development of the CDM.CDM.

Research currently in initial stages.Research currently in initial stages.

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