Carbon, South Africa and the Law – Making sense of it all.

Article: Bronwyn Parker 

(Natural Resources Law Department)

Part 1 of a series: Read Part 2 – South African Policy and Legislative Instruments Dealing With Carbon

While providing training on the National Environmental: Air Quality Act 39 of 2004 and the implications of the Carbon Tax Bill to a group of managers of various businesses, I was challenged with a question by  one of the attendees -“why Carbon and what are the legal perimeters in South Africa for measuring and accounting for Carbon? It struck me that the layman was still grappling with the basics of why we refer to ‘priority air pollutants’ collectively as ‘carbon’ and whether there was an inherent ‘legal obligation’ on business to account for ‘Carbon’, and why. This consciousness has led to the writing of a series of articles on this topic, taking us back to the legal basics around carbon regulation, whilst also looking at answers to the questions of where and why.

International Legal Background

The United Nations Framework Convention on Climate Change (UNFCCC) is an International Environmental Treaty negotiated at the Earth Summit in 1992, and entered into force in 1994. The objectives of the treaty are to “stabilize greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”. Greenhouse Gases (GHG) are defined in the Convention as “those gaseous constituents of the atmosphere, both natural and anthropogenic, that absorb and re-emit infrared radiation”. These gases are more specifically identified as water vapour, carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O) and ozone. As the name of the Convention suggests, the UNFCC is a framework and sets no binding limits or enforcement mechanism on GHG for countries, but rather outlines how specific international treaties should be negotiated so that binding limits for GHG can be set.

In 1997, the Kyoto Protocol was then adopted and only entered into force in 2005.  The Protocol was an international treaty developed to implement the objectives of the UNFCCC. The Protocol was significant in that it –

• specified the GHG it intended to regulate, called ‘Kyoto Gases’ – Carbon dioxide (CO2), Methane (CH4), Nitrous oxide(N2O), Hydrofluorocarbons (HFCs) ,Perfluorocarbons (PFCs), Sulfur hexafluoride (SF6) and Nitrogen trifluoride (NF3)3.
• is based on the principle of ‘common but differentiated responsibility’ and;
• it sets limits for GHG emissions for treaty members.

The ‘common but differentiated’ principle is founded on the concept that obligations to reduce current GHG emissions should be placed mostly on developed countries as they are historically responsible for the current levels of GHG in the atmosphere.

Now that we know that there are seven different ‘Kyoto gases’, why is there so much focus only on Carbon? The simple answer is that Carbon Dioxide was chosen as a ‘base’ gas for the purpose of creating a ‘common unit’. This was done as Carbon Dioxide it is the most common GHG emitted by human activities, in terms of the quantity released and the total impact on global warming.  The term “CO2” is also sometimes used as a shorthand expression for all 7 GHG, but a more accurate reference for referring to GHG’s as a ‘common unit’ is the term “carbon dioxide equivalent” or “CO2e”.  It however, is not this simple. You can only refer to ‘carbon dioxide equivalent’ if you comprehend why the other gases are ‘equivalent’.  The individual gases are considered ‘equivalents’ under the Protocol, as they are expressed in comparison to their  CO2 ‘equivalent’ by their “global warming potential” (or “GWP”) over a given period of time (normally 100 years). This comparison allows the quantity of GHG to be expressed as a CO2e, by multiplying the amount of GHG (kg) by its GWP. The GWP index for each GHG is set out in the Protocol, with CO2 having an index of 1.  The reference GHG’s as a ‘common unit’ – CO2e is a very useful for achieving the objectives of the UNFCCC, firstly because it allows “bundles” of greenhouse gases to be expressed as a single number (this assist with trading and reporting); and it allows different bundles of GHG’s to be easily compared.

Under Kyoto, the first commitment period for reduction targets was between 2008 until 2012. Then in 2012 an extension for this first period was negotiated and second set of targets catered for by the Doha Amendment in 2012, set to expire in 2020. Then in April 2016, as a result of negotiations in the yearly UNFCCC Conference, parties adopted the Paris Agreement. This is a separate instrument under the UNFCCC, intended to put in place measures to be taken by all UNFCCC parties to reduce GHG emissions, as a ‘global response’ so that the specific targets set by the agreement can be met. ‘Paris’ also provides mechanisms which aid the provision of financial and technological support for developing UNFCCC member countries to adapt to the impacts of climate change.   ‘Paris’ will only enter into force when at least 55 country parties to UNFCCC, have ratified, accepted of approved the agreement.

Where does this leave South Africa?

South Africa ratified the UNFCC in August 1997 and acceded to the Kyoto Protocol in July 2002. As South Africa is a non-Annexure I country it was not obligated to meet the strict targets and timeframes set in the Kyoto for developed countries, but as a party  to UNFCCC, SA has committed to put in place national measures to play its part in achieving emission reduction targets set in Kyoto. At the 2010 UNFCCC Conference of the Parties in Copenhagen, South Africa made two significant commitments to lower its GHG emissions. Firstly, to lower its GHG emissions of the country by 34% below current expected levels with this target envisaged to be achieved by 2020 and then as a second commitment, to lower GHG by 42 % below current predicted trends by 2025. The commitments where made conditional on receiving financial and technological support from developed countries. Then in 2015, South Africa accepted the Doha Amendment and submitted its Intended Nationally Determined Contributions (“INDCs”) to the UNFCCC secretariat ahead of the Paris negotiations. This action signified South Africa’s ongoing commitment to play its part in influencing the international GHG emission reduction aspirations of the UNFCCC, its protocol’s and agreements.

As a result of this commitment, the Department of Environmental Affairs has drafted various policy and legislative instruments to assist in guiding the country on the path to reaching its GHG reduction targets.

In Part 2 of the Series, we will discuss South African Policy and Legislative Instruments dealing with Carbon, and how these impact on ‘business as usual’.