'A big relief' - Six ways the law will fight Climate Change now that Ramaphosa has signed the bill

23 Jul 2024

President Cyril Ramaphosa has signed the Climate Change Bill, bringing the domestic climate change response into law for the first time.

On Tuesday, the Presidency announced that President Cyril Ramaphosa has signed the Climate Change Bill into law – which means South Africa, for the first time, has a law that is specifically aimed at developing an effective response to climate change.

The Bill sets out a national climate change response, including mitigation and adaptation actions, which also constitutes South Africa’s fair contribution to the global climate change response, under the Paris Agreement.

The Bill was formally introduced by previous environment minister Barbara Creecy in February 2022, and the National Council of Provinces adopted it in April 2024, leaving only the President’s signature outstanding to enact it into law.

Read more: Climate Change Bill heads for final stretch, but the hard slog of implementation lies ahead

Damjelle Midgley, an attorney at the Centre for Environmental Rights (CER), previously told Daily Maverick that while the Climate Change Bill is “not perfect, it’s a very important step”.

Read more: Is SA’s Climate Change Bill good enough? It depends on who you ask

“It’s a big relief that the Climate Change Act has now been promulgated, having been sent to the President three months ago for assent,” said Robyn Hugol, director of climate change engagement at Just Share. “This means that various timeframes in the Act start to run.”

Here are six ways the new Act is fighting against climate change:

1. Mandating carbon budgets

The promulgation of the Act now brings into law the process of allocating carbon budgets.

This means that companies emitting a certain quantity of greenhouse gases (GHG) will be allocated a carbon budget – a certain amount of GHG emissions they can legally emit in a timeframe, in line with South Africa’s National Greenhouse Gas Emissions Reduction Trajectory.

The Climate Change Bill does not prescribe any penalty (administrative or otherwise) if they exceed their budget. Instead, the Department of Forestry, Fisheries and the Environment (DFFE) and National Treasury plan to amend the Carbon Tax Act, so that if companies exceed their carbon budget, they will be expected to pay a higher rate of carbon tax on those “excess” GHG emissions.

Brandon Abdinor, the acting head of the Pollution and Climate Change Programme at the CER, told Daily Maverick that this effectively allows companies to exceed their budgets, provided they pay the higher carbon tax rate.

Just Share argues that this “outsourcing” of the consequence of a failure to comply with a carbon budget is wholly inadequate and could subvert the crucial goals of the Climate Change Act.

This carbon budget will be based on regulations, which are currently being drafted by the minister of forestry, fisheries and the environment and should be published for comment now that the Bill has been signed into law.

Abdinor said it’s hoped that these regulations prescribe that excess GHG emissions are an offence, and allow the state to prohibit the emitter from continuing to do this.

“Otherwise, we cannot hope to achieve the urgent emission reductions essential to limit the worst impacts of the climate crisis,” said Hugo, agreeing that the Act must induce meaningful penalties and enforcement provisions.

“With mandatory carbon budgets now in place, we expect to see significant emissions reductions from large companies,” said Professor Harald Winkler from UCT’s School of Economics. “Transparency in annual reporting will be key.”

2. Bringing provinces and municipalities into play

Provinces and municipalities now have a new range of obligations in terms of climate change. They are required to understand, access and map climate risks and vulnerabilities, such as extreme climate events, like the floods that hit KwaZulu-Natal in 2022.

The Act requires them to generate data and information on climate risk and then develop a plan for how they intend to respond (such as disaster risk strategies and programmes).

“With the hope that a more systematic approach to climate change, particularly adaptation, will be seen,” said Abdinor.

He noted that the Act does not expressly provide for the financial support that would be required, and while a funding mechanism is prescribed in the Act, it’s without detail.

Abdinor emphasised that it would be necessary for Parliament to continue to ensure the correct funding is allocated to the climate change response, as well as an active role from Treasury, to ensure this happens.

3. Making adaptation everyone’s problem

Within two years of this Act coming out, the environment minister must develop and publish a national adaptation strategy, in consultation with other ministries.

South Africa has the National Climate Change Adaptation Strategy to 2030 adopted by the government in 2020, in terms of the Paris Agreement.

Abdinor said that while this legacy strategy is serving this function at the moment and has many of the right high-level statements of intent in it, it requires a lot more detail, so the CER looks forward to seeing this plan being developed and strengthened.

So, while DFFE gives direction, what’s interesting is that the national adaptation strategy gives direction to sector departments, such as agriculture, energy and human settlements, which must then also devise adaptation plans for their sectors

4. Making the PCC an organ of the State

Under the Act, the Presidential Climate Commission (PCC) will be made into a statutory body.

“Turning the Presidential Climate Commission into an organ of state is a positive step,” said Winkler. “We look forward to seeing it exercise its new legal powers to drive a just transition.”

Abdinor explained that the PCC performs a number of highly important functions in formulating possible climate change response options, including commissioning and undertaking a wide range of very useful science-based research.

And now with the Climate Change Act, the commission will be listed as a national public entity for purposes of the Public Finance Management Act, after it’s listed as such under that Act.

“This formalisation of the commission should give it some political weight in the highly competitive space where different sectors compete for the remaining available carbon budget,” said Abdinor.

5. Environment minister having a say in energy

“The Act will grant the DFFE minister very significant powers that will have important economic and industry-related consequences,” Andrew Gilder, co-director of Climate Legal with Olivia Rumble, told Daily Maverick previously.

Climate Legal was the specialist climate change legal adviser to the government for the conceptualisation and drafting of the Climate Change Bill.

Within one year of this Act coming into operation, the environment minister – the DA’s Dion George – must list the sectors that are going to get sectoral emissions targets.

In consultation with ministers responsible for each sector – transport, electricity and energy and agriculture – the minister must determine their emissions targets.

Within a year of the publication of the sectoral emissions targets, the minister responsible for the relevant sector must develop or amend the relevant policies and measures towards the achievement of these targets.

“It’s going to have some really interesting political ramifications about how the DA works with the ANC in coming up with an emissions target for the energy sector, particularly for electricity,” noted Rumble.

6. Enabling public scrutiny

“The Climate Change Act is a tool for all South Africans. We call on citizens, businesses, and civil society to engage actively in using this law to push for urgent climate action,” said Winkler.

Tim Lloyd, head of climate justice and sustainability at ALT Advisory, highlighted a good example of how the public can be part of scrutinising and monitoring the implementation of the Act.

For example, ministers are required to publish by Gazette what relevant policies and measures they’re developing to reach their sectoral emission targets.

“This will enable interested and affected parties to monitor and track the necessary amendments to sector-relevant policies and measures and the effectiveness (or ineffectiveness) of such policies toward the mitigation objectives of the Climate Change Act,” Lloyd told Daily Maverick.

Lloyd also notes that the Act requires information provided to the environment minister in terms of the Act to be made available.

“In time, and considering the inherent public interest in the effective implementation of the Climate Change Act, it will be interesting to see if relevant information and records are automatically disclosed in the spirit of section 15 of the Promotion of Access to Information Act.”

“I think a key point is that we can’t fall into planning paralysis under this Act,” Lloyd emphasised. “Implementation is always the challenge in any legal regime (not just in SA) and we can’t afford to fall short in this context.” DM

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