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State of Disaster statutes allow for emergency power acquisition but at expense of environment protections

State of Disaster statutes allow for emergency power acquisition but at expense of environment protections
Julia Evans
By Julia Evans
28 Feb 2023
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The regulations regarding the National State of Disaster relating to the electricity crisis are finally available. This is what you need to know.

More than two weeks after President Cyril Ramaphosa announced a National State of Disaster pertaining to the impact of Severe Electricity Supply Constraints during his 2023 State of the Nation Address (Sona) on 9 February, the government has now gazetted the disaster management regulations on electricity constraints, after a special sitting of Cabinet last night, 27 February.

Now, this is not to be confused with the other National State of Disaster that was declared in response to the above average rainfall and floods that have devastated parts of various provinces this month. 

The electricity State of Disaster was declared by the Department of Cooperative Governance and Traditional Affairs (CoGTA) in line with the provisions of the National Disaster Management Act, Act 57 of 2002.

Ramaphosa said at his Sona address earlier that this State of Disaster, “will enable us to provide practical measures that we need to take to support businesses in the food production, storage and retail supply chain, including for the rollout of generators, solar panels and uninterrupted power supply.

“Where technically possible, it will enable us to exempt essential infrastructure such as hospitals and water treatment plants from load shedding.”

But how exactly a State of Disaster would address our ongoing energy crisis has been met with scepticism and outrage from political parties and the public.

Read more in Daily Maverick: “‘Dangerous and mad’ – Not everyone’s sold on Ramaphosa’s electricity minister and another State of Disaster”

The CoGTA Ministry in a statement on Tuesday, 28 February, said the objective of the Regulations is to assist the energy-generating entities to restore their capacity to generate electricity.

The regulations span an array of measures to protect and provide relief to the public and to deal with the destructive nature, and other effects of the disaster, said Ministry spokesperson, Lungi Mtshali.



The objectives of these regulations, which come into date the day they were gazetted (yesterday), and last for the duration of the electricity State of Disaster, include: 

“(a) Minimising the impact of load shedding on livelihoods, the economy, policing functions, national security, security services, education services, health  services, water services, food security, communications and municipal services;

(b) Reducing and managing the impact of load shedding on service delivery to support lifesaving and specified essential infrastructure;

(c) Providing measures to enable the connection of new generation of electricity; and

(d) Providing measures to improve Eskom’s plant performance.”



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Hospitals and key water facilities exempt from rolling blackouts


How do they plan to keep the lights on in hospitals and water facilities?

The CoGTA ministry explained in a statement that, “the continuous provision of services will be achieved through the installation of alternative energy sources, measures to provide an uninterrupted power supply and essential infrastructure being exempted from load-shedding schedules. 

“These exemptions will be undertaken in a manner that does not result in an increased risk of placing the national grid under pressure. It also allows for the release of personnel across the various state organs for the rendering of emergency services.”

The regulations require all three spheres of government (national, provincial and local), within their available resources to ensure the continuous operation of health facilities and water infrastructure (including water treatment plants) and other essential infrastructure (like food production and storage, rail and port where feasible), by installing alternative energy sources.

Additionally, Cabinet members can issue essential infrastructure and services to be exempt from rolling blackouts or have reduced rolling blackout schedules.

The CoGTA ministry explained that under these regulations, Cabinet Ministers can issue directions within their areas of focus to address the current electricity shortfall and prevent an escalation of the energy crisis.

Ramping up procurement and buying of electricity (from anyone and everywhere) 


Cabinet members can cut red tape that impedes building new generation capacity (according to Eskom, the current shortfall in available electricity supply is 4,000 to 6,000 megawatts), as well as streamline and expedite decisions and applications around processing energy generation projects.

Read more Daily Maverick: “25 years in the making – the real reasons we have rolling blackouts according to De Ruyter”

CoGTA explained that regulations enable emergency procurement procedures in line with the Public Finance Management Act, Municipal Finance Management Act and Preferential Procurement Policy Framework Act. 

“They [regulations] do however make specific provision for the affected Accounting Officers to report on regular intervals to the Auditor-General on expenditure incurred in implementing these regulations. Similarly, the regulations require regular reporting to Parliament on these expenses,” said CoGTA in their statement.

Additionally, the regulations will facilitate the importation of electricity by Eskom from neighbouring countries. 

The regulations will facilitate the sale of electricity to licence distributors not just from organs of state and private institutions but also individuals.

And to facilitate small-scale embedded generation and wheeling of electricity, these regulations allow the government to issue rules or guidelines for licensed distributors to implement net billing and other mechanisms.

Nothing will get in the way of repairing or building infrastructure — not even environmental regulations


Cabinet members can cut red tape around the applications and decisions of environmental authorisations, waste management licences and atmospheric emission licence associated with energy infrastructure and generation during the State of Disaster period. 

Interestingly, our crumbling energy infrastructure that needs to be upgraded, refurbished or repaired will be excluded from the provision of our National Environmental Management Act (NEMA) or any environmental management act for the duration of the State of Disaster.

Harald Winkler, Professor at UCT’s School of Economics, whose research interests include climate change mitigation, development and social justice, told Daily Maverick, “There are exemptions from the National Environmental Management Act under section 5(i), for existing plants. 

“What ‘upgrades, refurbishments, adjustments and repairs’ might the drafters have had in mind? One has to guess – but might this be aimed at allowing a life extension of Koeberg, an ‘adjustment’ that would generate more nuclear waste, to go ahead without an EIA? And what are the implications for Minimum Emissions Standards (MES) on coal-fired power plants – will this be yet another reason not to install flue gas desulfurisation?”

Funding


CoGTA said that funding interventions, relief schemes and benefits will be enacted during the National State of Disaster and the availability of existing funds and the scale of additional resources required will be considered.

What this means for us


According to the CoGTA ministry, “consumers will be protected from excessive pricing of goods and services and availability of the supply of goods and services will be secured during the National State of Disaster.”

Winkler, who was speaking in his personal capacity, said, “the regulations on the national State of Disaster (SOD) on electricity and rolling blackouts are important to have in writing, but leave much unclear. Their implications also depend on who Ministers are after the Cabinet reshuffle.”

He added, “While having written SOD regulations [State of Disaster regulations] is better than having none, there seems a significant risk of that fairly broad powers bestowed by SOD could be used poorly. This is a risk with any emergency regulations – that they override existing checks and balances. 

 “And we do not know when this will end. The SOD regulations have a commencement date (27 Feb 2023), but no end date. Another important question is when the SOD will be over, the SOD regulations cease to apply, and normal laws and regulations resume.” DM

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