SA's new climate legislation contains some shockers
Climate change is undeniable. Climate action is unstoppable. And climate solutions provide opportunities that are unmatchable." So said UN secretary-general António Guterres in 2017.
In 2018, SA may have a legal basis for the unstoppable. We need to get our climate law right, in order to benefit from the unmatchable opportunities. The Climate Change Bill that has been published for public comment means we will soon have a legal basis for climate action. That in itself is a very positive step forward.
The devil, however, is in the details. The question is whether this bill provides the best possible basis for fair and ambitious climate action. What SA really needs is a "fair and ambitious bill" that goes further than mere effective co-ordination within government.
One crucial element is the legal basis for carbon budgets, which limit the greenhouse gases major emitting companies can release. They are time-bound, with the bill providing for three five-year periods. That makes good sense, providing short- and medium-term commitments to reduce emissions. It would be even better if it was combined with a long-term perspective – including that of a just transition.
Only by all acting together can the world tackle climate change. How the efforts are shared is a matter of equity.
The bill suggests that the environmental affairs minister determine a national greenhouse gas emission reduction trajectory. Strangely, it does not refer to what is in both our national climate policy and international obligation: that emissions should "peak, plateau and decline" (PPD).
Indeed, to meet our obligations under the Paris Agreement, we have to show progression. So the reduction trajectory represents a progression in itself, and if revised must become more stringent over time.
That should link up to the global goals, notably the Paris aim to limit the average temperature increase to 1.5°C. And it should "link down". When adding up the carbon budgets of major emitting companies, these cannot exceed the reduction trajectory. Until such time as the minister determines a trajectory, the PPD trajectory as specified in Cabinet-approved national climate policy must apply. The act will need to make these matters more explicit.
Fundamental bases of climate action are science and equity. Reference to the temperature goals would bring in science, and added to that should be mitigation goals (including rapid decarbonisation) and adaptation goals. Only by all acting together can the world tackle climate change. How the efforts are shared is a matter of equity.
The transition to a climate-resilient and lower-carbon economy and society must be a just transition. That is central to what equity means at the national level. However, the reference is preambular. Operational provisions are needed. A very important national dialogue on just transition is being undertaken by the National Planning Commission and may lay the basis of a social compact. It is essential that an institution be given responsibility to ensure that poor households and communities share in the benefits of the transition, and are cushioned from any negative effects.
Having pointed to some positive aspects, the bill contains some shockers. One is that deadlines for carbon budgets are flexible, making compliance meaningless. Compliance means conforming to established standards, guidelines or legislation; making exceptions to requirements to comply makes a mockery of the concept. Therefore, section 13.10 is unacceptable.
A close second for "worst clause" are the penalties. They are pathetic. In more measured language, the penalties envisaged in section 19(2) are simply not commensurate with the offences in 19(1)(b). Rather than a R5m slap on the wrist, emitters exceeding their budgets should pay twice the carbon tax rate per tonne. Let’s say that’s R100 per tonne, then any company exceeding its carbon budget by more than 0.05Mt CO²-equivalent would be better off paying the "penalty" of R5m. Plausibly, some major emitters might have 1Mt excess emissions and should pay R100m. That is 20 times the envisaged penalty and would be commensurate with the offence. Without compliance and effective enforcement, the system will not be fit for purpose. The climate crisis is real and needs serious penalties for noncompliance.
Back to some of the good stuff. Regular review is essential to improving over time. Several provisions in the bill provide for reviews, every five years. Together, these cycles should be conceived as a ratchet mechanism. Every five years, SA would review whether we are doing enough and raise ambition if not. At that time, we would also consider how efforts are allocated across stakeholders in our country, which would be only fair. And this would be well aligned with international cycles.
A crucial technical issue is that the bill absolutely must establish a robust legal basis for mandatory reporting of greenhouse gas emissions data. The fundamental basis for meeting our international obligations and implementing effective action on mitigation is reliable information on greenhouse gas emissions. Industry has long resisted requirements to report at facility level, although reporting by facility or even installation is widely used and internationally regarded as best practice.
Many jurisdictions, from the EU, Kazakhstan and Australia, require disaggregated reporting — in some cases by the same multinational companies that object to such reporting in SA.
Such granularity is essential for effective regulation and policy-making, as recognised widely by other countries. The act must require all major emitting companies to report emissions, disaggregated for each facility and reporting other parameters, so that the information can be fully understood by the government as the regulator.
Passing a climate act is a huge opportunity to establish the institutional and human capacity necessary for climate action
National policy has established the threshold – those emitting more than 0.1Mt CO²-equivalent per year; the companies know who they are. The act must provide a clear and strong legal basis for mandatory reporting, and independent third-party verification of data on greenhouse gas emissions and reductions, and for removals. The existing emissions reporting regulations are unclear and do not provide a sufficient basis for climate action. The act must improve on the regulations to support the implementation of carbon budgets. Complete clarity is required, otherwise the act risks hard-wiring the information asymmetry between companies and the government into law.
The bill’s provisions must have as the default that all information on climate change is published, as a matter of public and corporate accountability. The default must be publication of data, not keeping it confidential. The latter is simply the wrong way around. Information must be in the public domain, unless there is a genuine reason to keep data confidential. This is done as a matter of course in many other jurisdictions.
Passing a climate act is a huge opportunity to establish the institutional and human capacity necessary for climate action. A statutory ministerial committee on climate change is essential. Better co-ordination across government is essential. It may even be a fair and ambitious bill, but on its own it is not sharp enough. What is needed are regulatory and economic instruments applied across multiple actors.
It would be remarkable if this bill is a strong enough tool for the urgent action required. The question is: what institutions are needed for climate action? The bill should establish a climate change authority, a statutory body undertaking reviews and hearing inputs from all stakeholders. Given the seriousness of the challenge, and need for best available science, this must be an independent body, properly resourced with appropriate technical expertise.
SA deserves climate action, let’s get this right.
Click here to read the bill. Comments are due on August 8.
• Winkler and Marquard are researchers at the Energy Research Centre of the University of Cape Town. They write in their personal capacities.