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

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: 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 for purchase and sale of emissions reductions). 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: 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. Imposed by legislation / regulation. Imposed by legislation / regulation. Voluntary. 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 pollution prevention conservation conservation ecologically sustainable economic and social development ecologically sustainable economic and social development

Governments 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). 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. Set of practical recommendations on appropriate measures and their location within SA environmental legal architecture. [Recommendations on substantive content of such measures]. [Recommendations on substantive content of such measures].

Process Investigation into range of greenhouse gas regulatory mitigation measures from various Annex I and Non- annex I jurisdictions (including BASIC countries). Attempt to determine regulatory: scope & content, scope & content, intention, intention, structure, structure, location, e.g., within legislation or regulation (environmental sector-specific, energy sector- specific). location, e.g., within legislation or regulation (environmental sector-specific, energy sector- specific). 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: Direct (UK Draft Climate Change & Sustainable Energy Bill), Direct (UK Draft Climate Change & Sustainable Energy Bill), Indirect, e.g., through controls on use of fossil fuels. Indirect, e.g., through controls on use of fossil fuels. 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) 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 (Australia - MRET, India, UK Draft Bill), Energy efficiency standards and targets (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 Mitigation Measure Evaluation Tool Premise: Only some of the measures identified will be appropriate to South Africa. Only some of the measures identified will be appropriate to South Africa. Therefore a need to evaluate those measures that are appropriate. 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. 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 rather than creating new ones. Incorporate greenhouse gas regulatory mitigation measures into existing environmental legal frameworks rather than creating new ones. Requirements inter alia: 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 databases. Measures should achieve mitigation of greenhouse gas within the context of existing knowledge and information databases. Measures which require extensive scientific research to implement are likely to be less useful than measures that do not require such research. 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. South Africa example: Carbon Capture and Storage and current uncertainty.

Evaluation Tool – Concept (2) Appropriateness: Measures should be appropriate to the business sector(s) from which the greenhouse gas emissions derive. Measures should be appropriate to the business 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. Example: command-and-control measure may be more appropriate to one industry sector than to another. Effectiveness: Greenhouse gas regulatory mitigation measures: 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): Early drafts attempted to introduce UNFCCC and Kyoto Protocol into domestic law. Early drafts attempted to introduce UNFCCC and Kyoto Protocol into domestic law. Previous drafts also stronger on greenhouse gas-related issues. Previous drafts also stronger on greenhouse gas-related issues. Long process in finalising. Long process in finalising. Date of operation of most provisions: 11 September 2005 (with certain exceptions). Date of operation of most provisions: 11 September 2005 (with certain exceptions).

NEM: Air Quality Act Section 43 – Contents of atmospheric emission licences: Atmospheric emission licences must specify: 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 (Condition precedent: greenhouse gas emissions measurement facility and reporting database which appears to be contemplated by the Act). (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: 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. 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. 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: The Minister may make regulations pertaining to: Any matter necessary to give effect to the Republics 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.

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