HARALD WINKLER AND ANDREW MARQUARD: SA sets up landmark legal foundation for climate action

SA has a Climate Change Act that provides a broad legal foundation for climate action. This is a critically important tool to frame, implement and monitor SA’s response to climate change. Now President Cyril Ramaphosa added his signature to this long-debated legislation, signing the act into law shortly after the joint sitting of parliament

The response to climate change must take an “all of society, all of economy” approach. We now have a legal basis for mitigation, addressing negative climate effects and important provisions on institutions and information.

The new law provides a strong basis for mitigation. This refers to reducing the greenhouse (GHG) emissions that lead to climate change. A national GHG emission trajectory is now in law and environment minister Dion George must review it every five years, in line with making a fair contribution to the global effort.

We have had policy that our GHG emissions must “peak, plateau and decline” since 2011, and this trajectory provides the form to mitigation targets in our nationally determined contribution (NDC) — first submitted to the 2015 Paris Agreement and updated in 2021 to be more ambitious. The trajectory should be updated in line with science indicating more urgent need for action, as SA prepares in 2024 for its second NDC.

The act creates sectoral emissions targets that will divide up available carbon space across sectors, ensuring that everyone contributes fairly to the national effort. It makes concrete that climate is very much part of our development pathway, and not a narrow environmental issue. The targets mean ministers responsible for energy and electricity, industry, transport and other sectors with high GHG emissions must guide their sectors to cut carbon.

Companies will have to cut carbon. The act makes carbon budgets mandatory, and they will be allocated by the department of forestry, fisheries and environment to large GHG-emitting companies. Company-level carbon budgets have previously been voluntary, but now are mandatory and a matter of legal compliance.

We now have regulation and pricing of carbon emissions. Under the new act carbon budgets oblige companies to remain within their regulated limit on emissions. Our first law relating to climate change was the 2019 Carbon Tax Act. That put a price on carbon, and the rate of the carbon tax is to increase, as signalled by the Treasury.

Annual reporting requirements will shine a light on progress and hold companies accountable. Across the new act, there is now a firm legal basis for strengthening the information base — on emissions, mitigation, climate effects and vulnerability metrics. The evidence base for climate action is on a firm legal footing.

Local communities are at the forefront of adapting to the negative effects of climate change. The Act addressed impacts, adaptation and making our development more resilient to climate change. It gives local authorities and provinces an important role in adaptation. Under the Act, mayors and MECs will have new responsibilities. So climate action is an obligation at all three spheres of government.

On adaptation, those who suffer most from the effects and will be most vulnerable should lead the response. And dealing with the effects is critical, as loss and damage is already here and now. It will therefore be important to apply principles of equity, ensure just resilience and avoid making our already high inequalities even worse.

Vulnerability assessments are one important tool to prioritise the needs of communities most at risk from climate effects. A just transition is one of the objects of the act, against which all its provisions must be read. A Presidential Climate Commission has been working for some time, with a mandate to oversee the just transition in SA.

It is an important advisory role, to bring together views from workers, communities, business and across government, all in support of a just transition. The act now turns the commission into an “organ of state”, meaning it will have legal powers.

The act enshrines important principles in law. The important principle established in the National Environmental Management Act of 1998 are applied to climate change — and the new act. These principles include equity, just transition, science (including the precautionary approach), intergenerational rights, polluter pays, and the right sustainable development. 

The new act now lays a good basis for all of us to get involved. The act provides a framework, which requires all parts of government to revise their policies, laws, measures and decisions to align with climate action.

It is also up to all of us as South Africans. We have a solid legal basis. Now is the time to use this law to ensure urgent action on climate change.

• Winkler is a professor in the school of economics, and Marquard a senior researcher in the chemical engineering department's Energy Systems Research Group, both at the University of Cape Town. They write in their personal capacities.