NATIONAL ENVIRONMENTAL MANAGEMENT ACT (NEMA) AND CLIMATE CHANGE

Section 28 of NEMA makes it government’s duty to take reasonable measures to stop damage to the environment. This applies to things that are harmful and are caused by climate change. 

Section 24 of NEMA requires environmental impact assessments to take place before starting any listed activity. These activities include power stations and mining operations. An environmental impact assessment must consider the impact of climate change on the activity that is being assessed. 

In the ‘Thabanetsi’ case (Earthlife Africa Johannesburg v Minister of Environmental Affairs), the applicants challenged the authorisation given for a proposed coal-fired power station in Lephalale, an area with water scarcity. The High Court held that climate change impacts must be considered when an environmental impact assessment is conducted to comply with the National Environmental Management Act. 

In the court case Trustees for the Time Being of Groundwork Trust v Minister of Environmental Affairs (‘Deadly Air’)98 and Eskom Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd (‘Eskom Holdings’) – the ‘Deadly Air’ case – the focus was on air pollution caused by coal-fired power stations and the harmful impact of this on human health. The court held that Section 24(a) of the Bill of Rights creates the right to an environment that is not harmful to a person’s health, and well-being is a right that is immediately realisable. In other words, these rights are not subject to progressive realisation over time like many other socio-economic rights in the Constitution. In a subsequent judgment, the Constitutional Court endorsed this interpretation of Section 24(a). 

CARBON TAX 

The Carbon Tax Act (No 15 of 2019) aims to reduce the impact of climate change and allows government to tax anyone, including municipalities, with greenhouse gas emissions. The Carbon Tax works on the polluter-pays principle and helps to ensure that companies and consumers take these costs into account in their future production, consumption and investment decisions. In other words, the Carbon Tax ‘puts a price’ on carbon to discourage the generation of carbon dioxide as activities that generate carbon emissions will become more expensive. This aims to reduce South Africa’s greenhouse gas emissions.

REGULATIONS UNDER NEMA: AIR QUALITY ACT

NATIONAL GREENHOUSE GAS EMISSION REPORTING REGULATIONS, 2016

These Regulations require polluters to submit data on emissions and related activities. In terms of the Regulations, every facility (such as Eskom power stations) must submit a separate report. The Regulations also make it an offence to fail to submit accurate data or to falsify information. However, the  Regulations do not require the data to be made available to the public, which is a barrier to access to information.

THE DECLARATION OF GREENHOUSE GASES AS PRIORITY AIR POLLUTANTS AND THE NATIONAL POLLUTION PREVENTION PLAN REGULATIONS, 2017 

In terms of this Declaration, Greenhouse Gas Emissions (GHGs) are declared priority pollutants. According to the Regulations any facility that emits GHGs must submit a pollution-prevention plan which sets out their plan to monitor and reduce the GHG emissions, and they must submit a progress report on the implementation of the plan. 

  THE NATIONAL CLIMATE CHANGE ADAPTATION STRATEGY, 2019

This policy outlines steps to decrease the degree to which systems are exposed to climate change which makes people more vulnerable. Various government departments are working on ways to adapt and respond, including job creation, growth strategies, and protecting the vulnerable.

CLIMATE CHANGE ACT (2022)

The Climate Change Act sets out a national response to climate change, including mitigation and adaptation action and aims to ensure that South Africa can respond to the risks and impact of climate change. The Act aims to strengthen coordination between national sector departments and provide policy and decision-making to enable South Africa to meet the commitments of its Nationally Determined Contribution (NDC) under the Paris Agreement. The NDC is a set of commitments that South Africa has made under the International Paris Agreement to reduce greenhouse emissions as part of mitigating climate change. The areas of focus in the Act include:

• Mitigation of climate change – the reduction of greenhouse gas carbon emissions to slow down and stop climate change. The Minister responsible for environment is required to assign carbon budgets to companies to limit their carbon emissions. 
• Manage climate change adaptation – adapting to impacts such as flooding, drought, wildfires, excessive heat and water and food insecurity – impacts which will intensify as climate change worsens. The government is obliged to assess all of the risks and expected impacts and create response plans. This happens at a national, provincial and local level. 
• Defines responsibilities for different national government departments. as well as for provincial and local government, including municipalities. This ensures that all relevant role-players are mandated to do their part in responding to climate change and work together effectively. 

There are six ways the Climate Change Act is fighting climate change.

• Allocate carbon budgets – Companies that give off a certain quantity of greenhouse gases (GHG) will be allocated a carbon budget by the  Department of Forestry, Fisheries and Environment. This means there is a legal limit to the GHG emissions that each company can give off in a certain period. If the company goes over the budget, it will have to pay a higher carbon tax as a penalty. Companies that have been allocated budgets, must also submit greenhouse gas mitigation plans. 
• Duties of provinces and municipalities – The Act makes it government’s responsibility to assess the risks and impacts of climate change and to develop an adaptation strategy and plan. This must happen at all levels: national, provincial and municipal. For example, municipalities must map climate risks such as extreme climate events, like the floods in KwaZulu-Natal in 2022. The Act requires provinces and municipalities to supply data and information on climate risk and then develop a plan for how they intend to respond (such as disaster risk strategies and programmes). 
• Develop a national adaptation strategy – The Act says that within two years of the Act coming out, the environment minister must develop and publish a National Adaptation Strategy in consultation with various other ministries, such as the Department of Agriculture or Human Settlements. These departments must then also develop adaptation plans for their sectors. 
• Making the Presidential Climate Commission (PCC) a statutory body
• List sectors that will give sectoral emissions targets – The Environment Minister must provide a list of the sectors that are going to get sectoral emissions targets. The minister must consult with ministers responsible for each sector including transport, electricity and energy, and agriculture, to determine their emissions targets. 
• Accountability – Ministers must publish by Gazette what relevant policies and measures they are developing to reach their sectoral emission targets. 

The Act indicates that failure by ordinary citizens or stakeholders outside government to supply certain information to the minister as required by law is an offence and can be punished by having to pay a fine of R5 million or five years in prison. The failure to report data or misrepresentation of data is the only offence recorded in the Act. There are no other penalties for non-compliance for ministers, MECs or mayors who fail to implement certain actions required by law. 

National Environmental Management: Biodiversity Bill 

The National Environmental Management: Biodiversity Bill is currently being released for public comment. The aim of the NEMA Biodiversity Bill is to provide for animal well-being and human practices, actions and activities. It will provide the Minister of Forestry, Fisheries and Environment with the right to impose conditions, restrictions and permits or any other measures for the protection of any listed or non-listed species or ecosystem. The Bill provides for a scientific authority to regulate, restrict and assess the impact on species of international trade and to advise the Minister of Forestry, Fisheries and Environment on captive breeding operations and species. The Bill increases the sentences for wildlife violations of the regulations. If a person is convicted of an offence involving a specimen or a listed species or ecosystem for commercial exploitation, they can be fined up to R10 million or get 10 years in prison. Members of criminal syndicates or State employees found guilty of offences involving priority species (rhinos, elephants, lions, etc) will be liable for fines of up to R20 million or 20 years in prison.