A climate change bill that needs changing?

A dedicated regulatory framework to address climate change is required and the bill, as currently framed, needs some work.
This is not about climate denialism, and South Africa needs to take action. Picture: David Gray, Reuters

With comments due on August 8, 2018, the time to consider and submit comments on the draft Climate Change Bill is now. Let’s be clear. This is not about climate denialism. South Africa must take action.  

While there are many things to applaud about the Climate Change Bill, not least of which is its publication, there are many aspects which will require revision if the Bill is going to meet its ambitious objectives. Whether the Bill, as currently framed, is capable of effectively implementing South Africa’s international commitments and enabling the necessary and just transition to a lower carbon economy is debatable.

It’s likely that for once, most of industry and civil society’s environmental campaigners will agree on two things: a dedicated regulatory framework to address climate change is required and the bill, as currently framed, needs some work.

The National Climate Change Response White Paper contemplates that an effective legislative instrument will provide for: “the proposed post 2020 GHG mitigation system; the undertaking of risk and vulnerability assessments at various spheres of government …; the need for alignment of policies …;and, the need for cross-sectoral co-ordination, policy development and decision-making in order to: meet South Africa’s adaptation goals under the NDC and facilitate resilience across sectors; sustainably escalate South Africa’s transition to a lower carbon economy; and, enable South Africa to monitor, track, report and manage this transition for the benefit of the country”.

In promoting the Bill, the Socio-Economic Impact Assessment System Final Impact Assessment Report found that the present absence of regulation represents “a fatal risk to achieving the NCCRP’s underlying objectives and supporting the country’s international climate change obligations”.  

Although the Bill addresses these aspects, arguably, it does so simply as a framework for their incremental development and implementation. This approach may well lack the regulatory certainty the South African economy needs and arguably, lacks the regulatory clout required to effect the changes to business as usual. If this is so, the fatal risk identified in the aforementioned Socio-Economic Impact Assessment remains.  

Andrew Marquard and Harald Winkler recently applauded the Bill as a “positive step forward” in the Business Day. However, in critiquing the Bill, they expressed, amongst others, the view that “what SA really needs is a ‘fair and ambitious bill’ that goes further than mere effective co-ordination within government”.

More often than not, intergovernmental co-operation fails. This is even more likely to be the case in environmental debates but even more so, in the context of climate change, where inter-generational rivalry is at its core. The viability of the Bill’s proposed committees involving different ministries and tiers of government must be questioned. Though the ambition is noble: namely, to “co-ordinate efforts across all sector departments and spheres of government in relation to the transition to a climate resilient and lower carbon economy and society”, what makes the Bill’s proposed climate change committees at national and provincial level (which include municipal representation) likely to be effective and why would co-operative governance be more likely to be achieved in this context when it has failed in so many others?

Perhaps, with a few tweaks, the solution will lie in the fact that although the Minister of Environmental Affairs is responsible for convening the Ministerial Committee, both her and the Minister responsible for planning, monitoring and evaluation in the Presidency are co-chairpersons.

Winkler and Marquard propose a “climate change authority, a statutory body undertaking reviews and hearing inputs from all stakeholders” which is “independent” and “properly resourced with appropriate expertise.” If the Ministerial Committee were properly incentivised either by reward or penalty for performing, this Committee may achieve what they proposed. Perhaps the Ministerial Committee ought to be required to establish sub-committees comprising individuals with the required expertise with proper terms of reference. Already the committee has a discretion to invite representations from stakeholders and to establish an advisory committee. The establishment of the advisory committee ought to be mandatory.    

Retaining a Ministerial Committee is essential since it will provide the necessary political support whereas an appropriately equipped advisory committees with the requisite technical expertise will enable the administrative and technical work to be carried out effectively subject to and with the necessary political oversight and support.          

Although the socio-economic impact assessment study final impact assessment report prepared in support of the Bill indicates that the Bill will provide “certainty”, there are multiple instances where the substantive content is delayed albeit subject to timeframes. For example, the Minister is required to establish a national environmentally sustainable framework for achieving the objects of the Act within two years of the Act’s commencement. Experience has shown that frameworks are not effective. Frequently their publication and review are delayed and their content may be inconsistent resulting in protracted litigation.      

Obligations are also imposed on provinces and municipalities, within a year of commencement, to undertake a ‘climate change needs and response’ assessment. Thereafter, within two years of commencement, these parties will also be required to develop and implement a climate change response implementation plan which is informed by the aforementioned assessment. Equally, Ministries responsible for sector departments and state-owned entities will be required to map and identify, amongst other things, risks and vulnerabilities to climate change as well as measures and mechanisms to implement the required response. Thereafter, theses Ministers will also be required, within two years of commencement, to develop and implement an appropriate climate change response implementation plan.

These obligations may well be unachievable given that in multiple instances, these provinces, municipalities and sector departments and state-owned entities are unlikely to possess the required technical expertise, capacity or resources to prepare and implement these plans. Perhaps these tasks could be supported by mandated representatives of the above advisory sub-committee.

At a practical level, the Minister will be required, in consultation with the Ministerial Committee, to determine a national greenhouse gas emissions trajectory for South Africa which will be binding on all spheres of government and all persons. This obligation has been criticised by Nicole Loser for its failure “to make explicit reference to the 1.5° target” since “the legislation cannot be effective unless everyone has certainty about its goal”. Once again, the question must be whether the Bill will result in the certainty required.

In addition, the Minister will be required, again in consultation with the Ministerial Committee, to determine sectoral emission targets (“SETS”) for greenhouses gas emitting sectors and sub-sectors.   Thereafter, she must, determine a greenhouse gas emissions threshold for carbon budgets to be allocated at company level for not less than three successive five-year periods and are subject to at least five yearly review. A failure by persons with a carbon budget to prepare, submit and implement an approved greenhouse gas mitigation plan and where the greenhouse gas emissions exceed the budget during the applicable period is an offence. Under “extreme circumstances”, a person may apply for an extension of the compliance time frames.

While civil society argues that these provisions fail to provide for adequate transparency and to allow leniency in as much as extensions may be granted, industry will argue that the information which civil society seeks is commercially sensitive and that there is insufficient clarity on what “extreme circumstances” means. Of perhaps further concern is the failure, at least with reference to the carbon budgets, to provide any indication of how they will interact with a carbon tax, if implemented.  

Climate change and the steps necessary to mitigate and adapt to its impacts the world over is contentious: industry versus civil society; developed versus developing; present versus future; life versus death …On the face of it, there may be agreement that measures are required, what those mechanics look like is not easy to determine, particularly when there is so much at stake. It appears that in trying to accommodate all the competing considerations and factions, the Bill has failed to meet its objectives.  

As is the case with the carbon tax finalising this Bill is an unenviable task. At least, however, this Bill is less likely to be opposed in principle than the carbon tax!      

Justine Sweet is LexisNexis contributing author and specialist environmental legal consultant.


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It’s not about climate denialism. As I type this the word denialism is underscored in red indicating a spelling mistake or that there is no such word. The latter is actually true- it’s apocryphyl and nonsensical. If one uses appalling terms such as “climate denialism”, one cannot be expected to be taken seriously. Heavens alive, who one earth denies that there is such as this as climate? Basic English is about communication and this is an epic fail.

Justine just make herself look dumb. A sheep blinded by the light regurgitating the mantra

The problem with current climate models is that they over-estimate the sensitivity of the global temperature to atmospheric CO2 concentration. The climate has always changed and the earth is currently on a warming trend that started hundreds of years before the industrial revolution.

Have a look at this graph that is on Roy Spencer’s website.


As a matter of interest, Roy Spencer is the very smart fellow who invented satellite temperature analysis.

A climate model must be able to predict current conditions from previous conditions given the CO2 increase- else it is a failed model. Roy Spencer (again):


Clearly the models upon which the scare is based are complete failures when stacked up against reality.

The main issue with climate models is that they ignore solar output and over estimate climate sensitivity to CO2. If one assumes that the “Basic Climate Model” is correct then the feedback parameters must be wrong or something must be omitted whereby heat is leaking into space. If that assumption is wrong then the basic model is wrong or put together wrong.

All climate models rely on the presence of an tropospheric hot spot which is missing despite huge efforts attempts to find it.

CO2 mitigation would destroy western economies and plunge billions into poverty all based on failed models. One must remember that there are huge vested interests in CO2 mitigation. Climate alarmists have a hundred billion dollar parasitic industry. This is why they denigrate those who challenge them. They don’t have evidence on their side, just insults and ad hominum attacks.


This is just a strawman distraction from the real problem.

The elephant in the room that that the Denialists deliberately evade addressing is the catastrophic effect of the explosive human growth on Planet Earth’s biome (l’m looking at you, RTG!).

In the proverbial blink of an eye, the human population has exploded from an inconsequential number 300 years ago to a planet-devastating 7.5 billion people who are selfishly ravaging the earth’s biome with complete and utter disregard for the consequences for the future.

This is the only home we have. If it goes vrot like a badly- cared for fish tank, then we are all down the tube.

And when you look around at all the rapidly growing evidence at the signs of biome-stress, the situation is alarming. EXTREMELY alarming.

Too many humans, covering the planet with tar and concrete, killing all the wildlife (because humans are more important) and polluting the seas, destroying the forests, and seriously messing up the air we breathe, is NOT going to end well for humans.

The media needs to focus on the world’s REAL problem. And fast.

What use is a climate change bill if 16 of SA’s coal power stations are already operating under exemption from the National Environmental Management Air Quality Act? The exemption is allowing them to operate with higher than legal sulphur emissions.

Climate change is a hoax!! It goes back to the professor that lied about the data! This is a group of people that want to CHARGE countries based on THEIR legislation and make the payments to THEM!!!!!!!!!!!!!!

Sure, let’s not believe the 97 percent of scientists who “express the strong belief that climate change is happening” but rather someone who has an exclamation mark after every sentence. Exclamation marks are more convincing than reasoned argument. And ending off the masterpiece with 14 exclamation marks is … well, 14 times as convincing.

MRG – nobody really denies that the climate is changing as one can see from the first graph I posted above. You can also argue that debate is not won using exclamation marks and you would be correct. However, nor is debate won by regurgitating falsehood “97 percent (sic) of scientists”. This an outrageously untrue statement with no basis. Even if it were true it would be a logical fallacy to use it in an argument(argumetum as populum). Furthermore, science is not about beliefs, so what people beloved is irrelevant. Science is about evidence and testable hypotheses.

For me the debate about climate change is not an academic one. It is a practical issue that forces me to make decisions about my business model. Whether climate change is caused by human action or not, is not the issue for me. As a farmer I experience the fact that the rainy season is shorter, and starts a month later than 30 years ago. My short term response is to implement conservation farming practices. The goal is to increase the carbon content in the soil to retain more moisture. The long term plan is to move out of agriculture all together because I do not see the sense in investing in a business that faces a fundamental shift in profit potential.

So, for me climate change is real, and it forces me to act now. It would be great if the Climate Change Bill could increase the rainfall. That would imply that politicians can create rainfall. I am not holding my breath though…

End of comments.




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