South Africa is a party to the United Nations Framework Convention on Climate Change ("UNFCCC"), and as a global citizen committed to contributing its fair share to the global greenhouse gases ("GHG") mitigation efforts in order to keep temperature increase below 2 degrees Celsius.
What to expect
In this regard, South Africa, at the Conference of the Parties ("COP") 15 in 2009, committed and is legally obliged to develop and implement policies and measures that will curb its GHG emissions by 34% by 2020 and 42% by 2025 below the Business As Usual trajectory, subject to climate finance, capacity building, technology development and transfer support from the developed countries.
In 2009, Cabinet approved and adopted the "peak, plateau and decline ("PPD") trajectory" as the national GHG emissions trajectory. In terms of the PPD trajectory South Africa's GHG emissions should peak in a range of between 398 and 614 Mt in the period between 2020 to 2025, plateau or remain stable for a decade in a range of between 398 and 614 Mt, and decline in absolute terms from 2036 onwards to a range of between 212 and 428 Mt. In terms of the National Climate Change Response Policy, 2011, South Africa's mitigation system is anchored on the national GHG emissions trajectory seen as a benchmark against which the efficacy of mitigation action will be measured.
South Africa's climate change international commitments (i.e. mitigation action) will be enforced through a carbon budget system and carbon tax. Accordingly, the highly anticipated Climate Change Bill and Carbon Tax Bill are expected to give effect to these mitigation action instruments. A voluntary carbon budget system came online in 2016 and it is anticipated that this system will come to an end by 2020. This phase is referred to as the voluntary or transitional phase. The second phase, called the mandatory phase, is subject to the promulgation of the Climate Change Bill and Carbon Tax Bill as Acts of Parliament. The mandatory phase is anticipated to come full circle in 2021.
How to manage it
In this current transitional period, a mixture of the voluntary and mandatory frameworks is in place. In this regard, carbon budgets were voluntarily allocated to participating companies and are monitored on an annual basis utilising pollution prevention plans in terms of the National Pollution Prevention Plan Regulations, 2017 ("PPP Regulations"). In 2017, GHGs were declared priority air pollutants and companies emitting GHGs above a prescribed threshold were legally required to submit PPPs for approval (i.e. on or before 21 June 2018). In the main, these are the group of companies that participated in the voluntary Carbon Budget system since 2016. These companies, in terms of the PPP Regulations, are expected to prepare and submit pollution prevention plans ("PPP") for approval. Thereafter, that company must implement, monitor and report on its approved PPP.
Importantly, these PPPs contain GHG mitigation measures (i.e. a mitigation plan) that are legally binding against a company after approval.
How can Tabacks assist?
In terms of the National Environmental Management: Air Quality Act No. 39 of 2004 ("NEMAQA"), failure to submit or implement a PPP attracts criminal sanctions. In addition, in terms of the PPP Regulations, failure to submit an annual progress report on an approved PPP or the submission of misleading or false information is also an offence.
In our view, firstly, since the PPPs are considered and approved by a department official exercising an administrative function in terms of national legislation the Promotion of Administrative Justice Act No. 3 of 2000 ("PAJA") finds application. Secondly, it also appears that after approval the PPPs are regarded as a company's GHG mitigation plan. Therefore, failure to implement an approved PPP or any deviation from the PPP commitments may be enforced through the various administrative or criminal enforcement tools under the National Environmental Management Act No. 107 of 1998 ("NEMA").
It follows that the PAJA and or NEMA legal remedies are immediately available to an aggrieved person. These legal remedies are available in the consideration and approval of PPPs as well as in the administrative or criminal enforcement processes. We further argue that the legal remedies are also applicable on review and renewal, suspension or withdrawal of PPPs.
Furthermore, post 2020, in our view the allocation of carbon budgets, under the Climate Change Bill, will also follow a prescribed legal process. Accordingly, the PAJA and or NEMA legal remedies will find application.
It is appears that the carbon budget system and carbon tax regime interface will be fully realised upon adoption and promulgation of the Climate Change Bill and Carbon Tax Bill as Acts of Parliament.
In this transitional period, participating companies must fully engage with the PPP regime and ensure that due legal processes are adhered to, whilst focusing on the post 2020 mandatory carbon budget system and carbon tax regime interface.
03 May 2019
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