South African Policy and Legislative Instruments Dealing With Carbon

by Jul 11, 2016Articles, Natural Resources

Article: Bronwyn Parker 

(Natural Resources Law Department)

Part 2 of a Series: Read Part 1 – Carbon, South Africa and the Law – Making sense of it all.


The South African National Climate Change Response Green Paper 2010, acknowledges climate change as one of the greatest threats to sustainable development, which if unmitigated has the potential to undermine SA’s positive advances to meeting its own development goals contained in the National Development Plan.

The Green Paper serves as a policy which outlines government plan on how SA intends to contribute to the  stabilisation of global Green House Gas (GHG) concentrations and what it plans to do to protect the country from impacts of unavoidable climate change. The policy also includes insight on how government will transition SA to a climate resilient and low carbon economy and society.

The environmental management principles which are used in the policy to frame SA’s outlook on GHG include:

  • The Principle of common but differentiated responsibility and respective capabilities
  • The precautionary principle
  • The polluter pays principle
  • The people centred approach
  • Informed participation
  • Inter-generational rights

With these principles as a baseline the strategies proposed by government to achieve these objectives are described in summary below. As we progress in the series of articles it is important to keep in mind the strategies as these serve to rationalise why certain legislation has been introduced by government.

The strategies are multifaceted and can be summarised as follows:

  1. Government to implement policy change which has a balanced approach to both climate mitigation and adaptive responses.
  2. Priorities development, while maintaining scientific policy interface and knowledge management to ensure climate change response decisions are informed by best available information.
  3. Focus on short term prioritisation measures to ensure adaptation interventions are put in place to address immediate threats to South Africa.
  4. Identify mitigation interventions that contribute to peak, plateau and decline in emission trajectory.
  5. Identify and prioritise mitigation interventions that have potential, such as positive job creation, poverty alleviation and positive economic impacts (i.e) stimulate new industrial activities.
  6. Mainstream climate change response into all legislation – national, provincial and local.
  7. Use incentives and disincentives including economic and fiscal elements in policies to promote behaviour change that supports a low carbon society.
  8. Support and facilitate the mitigation plans in the energy, transport and industrial sector.
  9. Introduce trade measures which includes border tax adjustments for goods from high and low carbon intensive economies.
  10. Align the national response to support major implications of low carbon economy for SA and the continent.

The policy and legislative instruments being put in place by government with an aim of institutionalising the above strategies are also sector focused, with the measures in the legislation dependent on whether the sector requires an adaptive response (water, agriculture and human health) or is required to implement mitigation measures (energy, industry and transport).


Notices, Policies And Regulations

The National Environmental Management: Air Quality Act (NEM:AQA) is the foundational Act from which governments carbon reduction objectives are being propelled. To date the following draft legislation has been enacted under the auspices of NEM:AQA:

  1. Controlled emitters, which result in atmospheric emissions, which through ambient concentrations, bioaccumulation and deposition or in any other way present a threat to health or the environment (GN 1138 of 29 November 2013).
  2. National Pollution Prevention Plans Regulations (GN 171 of 14 March 2014).
  3. Draft National Greenhouse Gas Inventory for the Republic of South Africa (GN 391 of 6 June 2014).
  4. National Pollution Prevention Plans Regulations (GN 5 of 8 January 2016).
  5. Declaration of greenhouse gases as priority air pollutant (GN 6 of 8 January 2016).
  6. Draft National Greenhouse Gas Emission Reporting Regulations (GN 336 of 7 June 2016).

Then below is the legislation which is currently enacted:

  1. National Greenhouse Gas Inventory for the Republic of South Africa (2000-2010).
  2. Regulations regarding the phasing-out and management of ozone-depleting substances (GN 351 of 8 May 2014).
  3. National Atmospheric Emission Reporting Regulations (GNR.283 of 2 April 2015).

Since publication of the Green Paper it is evident that there have been some noteworthy developments in respect of government’s intention to manage Carbon. The most obvious criticism however being that a majority of the legislation is still in draft, which has potentially lead to the impression in industry that government is not serious about meeting its GHG emission reduction target of 34% “below the current expected levels” by 2020 (at the time that this statement was made, these where the 2010 levels as described in the 2010 GHG Inventory).


Treasury and Tax

In addition to the NEM:AQA’s notices, policies and regulations government has also to date introduced various economic policy instruments in line with the Green Papers strategies. The most conspicuous being the Carbon Tax Bill (November 2015) and its more recent Carbon Tax Offset Regulations (June 2016). The Bill is seen as a mitigation strategy in terms of the Green Paper as it seeks to reduce emissions directly through a price mechanism based on the ‘polluter pays principle’.

In the next two series I will deliberate on the content of some of the draft and enacted legislation under NEM:AQA and National Treasuries Carbon Tax Bill. The purpose of this will be to critically analyse how the mechanisms in the legislation are aligned towards meeting government’s carbon reduction objectives and understand how these notices, policies and regulation are integrated for this purpose.

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