/ 19 May 2022

Climate change bill: ‘One of the most important draft laws to cross the desks of SA’s lawmakers’

Safrica Weather Flood
The floods in KwaZulu-Natal occurred in April this year. (Photo by PHILL MAGAKOE / AFP)

If South Africa fails to adequately respond to climate change, it will continue to see ever-increasing impacts like the recent deadly KwaZulu-Natal floods, “creating enormous risk and damage” for the country’s citizens.

This is according to Brandon Abdinor, climate advocacy lawyer at the non-profit Centre for Environmental Rights (CER), who was speaking about the importance of the country’s long-awaited Climate change bill

In February the bill, which is aimed at facilitating an effective government-wide climate change response and a just transition to a low-carbon economy, was tabled before Parliament. The draft legislation is open for public comment until 27 May.

A new rapid attribution analysis by an international team of leading climate scientists has found that climate change made extreme rainfall that caused the catastrophic floods and landslides on the eastern coast of KwaZulu–Natal and the Eastern Cape heavier and more likely to happen. The probability of such an event happening has nearly doubled because of climate change caused by greenhouse gas emissions, according to the study.

Urgent, critical legislation

The bill, Abdinor said, is a crucial piece of legislation. “It will govern the country’s climate change response, protecting life and property and ensuring that emitters are held accountable and compelled to reduce their greenhouse gas emissions, preventing further harm. 

“It also sets out the institutional arrangements for how different ministries and tiers of government are brought into ensuring a climate change response and to have the appropriate responsibilities assigned to them as well as being empowered to take necessary action.”

The draft legislation is key, too, in terms of sending out the right signals to the global community. “South Africa is in need of financial assistance in the form of fair, transparent, and fit-for-purpose climate financing and having a strong bill ensures that we are seen in a favourable light as a destination for this type of investment,” he said.

Outdated climate action plan

However, while environmental law experts including Abdinor, the CER and Just Share, a non-profit shareholder activism organisation, have welcomed the tabling of the draft law, they have raised several key concerns.

Among these is the bill’s outdated reliance on South Africa’s 2015 climate action plan to cut emissions and adapt to climate impacts — its Nationally Determined Contribution. Last year, South Africa’s NDC was updated and while still not strong enough to align with limiting global warming to 1.5°C, it was a “vast improvement” over the country’s 2015 NDC, Abdinor said.

“It is, however, this weak 2015 NDC, which is included in the bill, leaving the world on the trajectory that is commensurate with an up to 4°C temperature increase (this would double for South Africa, which warms at twice the global average rate), and effectively at odds with our international commitments in terms of the Paris Agreement.” 

Weak on compliance, enforcement

According to the two non-profits, the bill is “extremely weak on compliance and enforcement, meaning it would be almost completely toothless as is”. They note how currently the only offence in the bill is the failure to provide a greenhouse gas mitigation plan. Yet, there are zero penalties with regard to a failure to implement such a plan. 

“The potentially harmful act of exceeding an allocated carbon budget is not made an offence, nor is the provision of false or misleading information. As such, the range of offences needs to be widened, and criminal and administrative penalties need to be added to the bill.”

While a previous version of the bill made it a criminal offence for an entity to exceed its carbon budget, and/or that the entity would have to pay an increased carbon tax rate, this clause has now been removed. This vastly reduces the pressure on polluting companies to take strong enough action to limit their emissions, they state.

“We need to see ongoing wilful or negligent excessive greenhouse gas emissions made an offence — with strong sanctions including the revoking of a licence to operate if budgets are exceeded, enabling the regulator to prohibit and thereby curtail this,” Abdinor said.

Curbing greenhouse gas emissions vital

As the bill stands, important mitigation mechanisms such as determining an emissions trajectory, allocating carbon budgets and establishing sectoral emissions targets have no timeframes or deadlines, said Tatenda Muponde, an attorney at the CER. 

“Curbing greenhouse gas emissions is central to a sound climate response, and the science tells us that this is a decade requiring bold and ambitious actions. The bill should reflect that and strongly and clearly compel this reduction,” she said.

Nhlanhla Sibisi, climate and energy campaigner at Greenpeace Africa, said compliance and enforcement will ultimately depend on the political will of the government to align and implement the bill to meet all its global climate change commitments. “In terms of improving, not only do we need adequate compliance and enforcement, we also need government buy-in through firm and ambitious legislation to get major polluters in South Africa to move towards immediately reducing their carbon emissions in line with the country’s NDC goals.”

The non-profits are concerned about public access to climate and emissions data in the bill. “It is important for the public to be able to scrutinise key data such as carbon budgets (and any exemptions that have been granted), current emissions levels and emissions reduction plans. Inadequate disclosure vastly undermines accountability.”

Four, five-year timeframes

The bill prescribes that different sectors — such as energy, agriculture, transport, water and sanitation and human settlements — need to come up with sector adaptation strategies and plans, a full four years after the law comes into operation, Muponde said.

“Municipalities and provinces are required to develop and implement climate-change response implementation plans only five years after the Act comes into operation,” she said. 

“These timeframes are not commensurate with the urgency of the climate crisis. We can see from the droughts and events like the KwaZulu-Natal floods, that the impacts of global warming are happening and intensifying, and adaptation and response need to urgently be mainstreamed and elevated.”

James Reeler, senior climate specialist at WWF-SA, said the bill has been “a long time coming and it’s very urgent … Broadly speaking, we’re very happy to see it tabled and we want to see it move faster”.

South Africa, Reeler said, is in a position now that it needs to have committed climate action within the next year or two. “The mainstreaming, taking the principles of the NDC and national commitments and mainstreaming it to other departments, which is what we really need to see, what this bill is aimed at kind of giving teeth to …we’re still in essence, five years from some of that in terms of the bill.” 

According to Sibisi, the five-year timeframe should be made a long-term timeframe that embeds the need for meaningful adaptation measures that moves the country away from the use of fossil fuels and more speedily towards a low-carbon economy framework that adopts cleaner technologies for energy generation. “Consideration should also be given that adaptation will be expensive if not balanced with mitigation.”

Vital importance to all

As the transition to a low-carbon and climate resilient economy and society will affect everyone, as will the impacts of climate change — particularly the most socially and economically vulnerable groupings, the effectiveness of the bill is of vital importance to all, Muponde added.

“National and provincial legislators need to see the depth and breadth of the concerns

and impacts already being felt. By submitting written comments and calling for, and participating in, public hearings on the bill, a diverse range of voices can and need to be heard so that the bill can truly be the robust and inclusive enabler of the protection of our rights to life, well-being and environmental safety, including of course, the safety of lives and livelihoods.”