Climate Change Bill: Workshop, with Minister

Meeting report

Mr P Modise (ANC) was nominated as the acting Chairperson for the meeting. Apologies were received from the Deputy Minister, Ms Maggie Sotyu and the Chairperson, Ms F Muthambi.

Minister’s remarks

Minister of Forestry, Fisheries and the Environment, Ms Barbara Creecy, said that the Department of Forestry, Fisheries and the Environment (DFFE) had compiled a comprehensive presentation that looked at the Climate Change Bill on a clause by clause basis.  The Bill was important for the country.  South Africa required a regulatory environment for climate priorities to be financed and become incorporated into mainstream government planning and processes. The Bill would allow a just transition to a low carbon economy and would include the private and technological sectors through the introduction of carbon budgets. The Bill also gave regulatory expression to South Africa’s Nationally Determined Contribution (NDC) to reducing greenhouse gas emissions. The Bill would make the Presidential Climate Change Commission (PCCC) a statutory body. The concept of a just transition to accommodate the people most vulnerable to climate change would also be incorporated.

The Minister said there were some aspects of the Bill that contained anomalies and needed to be flagged for consideration by the Portfolio Committee. “This Bill is your Bill and in your wisdom, you will approach the Bill in a manner that you feel best.”

Presentation: Climate Change Bill

The presentation was made by Mr Tlou Ramaru, Chief Director: Climate Change Adaptation, DFFE. 
 
The Committee was told that the purpose of the Climate Change Bill was to enable the development of an effective national climate change response, and a long term just transition to a low-carbon and climate-resilient economy and society for South Africa in the context of sustainable development.

South Africa had revised its NDC target in response to scientific evidence requiring that ambitions be raised in global efforts to keep within the 1.5°C climate change objective. The revised NDC had been accepted by stakeholders and the DFFE was considering the removal of the outdated Schedule 3 which described the National Greenhouse Emission Trajectory that was outlined in the 2012 National Climate Change Response White Paper prior to the NDC revision.

The environmental impact assessment regulations in terms of the National Environmental Management Act would determine how socio-economic impact assessments were conducted.

Climate change sectoral adaptation plans had been developed by the following sectors at the national level: water, agriculture, forestry, fisheries and health. There was a biodiversity and climate change policy framework for state-owned companies and rural human settlements. All nine provinces had developed climate change response plans. All 44 district municipalities and metros had been capacitated to mainstream climate change into their Integrated Development Plans (IDPs).

(See presentation for details on the clauses)

Discussion

Ms A Weber (DA) said she was happy about the Climate Change Bill and the processes that were developed to mitigate climate change impacts. However, she thought another clause needed to be added. She had a problem with the enforcement of the provisions and would like there to be a dedicated clause on this. There should be stricter consequences so that industries adhered to the rules set. How would the laws be enforced? Who was going to enforce them?

Mr D Bryant (DA) requested further information on public participation. He agreed with the Minister that South Africa was a developing country with competing priorities but that must not be used as a hurdle. “We have to find ways to ensure that we prioritise climate change issues because all societal sectors will be affected.”  Why was there a risk-averse and cautious approach in terms of limited knowledge about the causes of climate change? The latest Intergovernmental Panel on Climate Change report was specific to scientific causes of climate change and South Africa must make bold and courageous steps that required a degree of risk.

How much was local government involved? He liked a federal and consultative process that ensured that all spheres of government were able to draft their own plans and make inputs.  The challenge would be in rural municipalities because they were currently dysfunctional in terms of service delivery. To expect them to draft highly sophisticated climate change adaptation strategies “might be a bit of a bridge too far.” Was there a plan to empower the rural municipalities to ensure that they had adequate resources and access to professionals who could assist them?  How would input be obtained from small rural versus large metropolitan municipalities?  Would the consultation process ensure that all voices were heard?

Clause 10 read that the President could appoint a commission. Another part of the Bill highlighted the specific must-do responsibilities of a minister.  Why was the PCCC optional? The PCCC was the central point of success for the Climate Change Bill to go forward. Members were listed in terms of sectors. A broader political presentation was needed at the PCCC. There was only one member from the Portfolio Committee. Could the Committee have a detailed breakdown of public participation and the route that the Bill would take?

Ms C Phillips (DA) said that the Bill was time-sensitive. There was a need to work on it with urgency. There was much in it that was good but she was concerned that in many areas it said that the minister may. That would be good and well if there was a Minister who cared about the environment, but “we could end up with a minister who has other priorities and then does not do the work.”  Most municipalities had little competency to draft, enforce or prosecute any kind of environmental breaches.

The Bill did not address education. There was a need to educate lawmakers, enforcers of the Bill and those tasked with an oversight role.  Reliance on the current environmental inspectors could not continue. There was a need to educate the people and the best place to start was schools. A curriculum change and incorporation of the Bill were very relevant at any level in the education sector.

She was concerned that Clause 27 stated that the minister may make regulations. Did that mean that the regulations were not going to be compulsory?  She also raised concerns about Clauses 29 and 31 which dealt with public participation and representations to the minister or other office bearers. She said everything that happened in the environment should be transparent to every citizen of the country. Why should the citizens and the NGOs have to make prior applications to obtain information that was integral to future generations?

What would environmental prosecutions look like? Would they be tough? She was concerned that targets would be softened if industries did not meet them or they would be created to suit those with a role in greenhouse gas emissions. She emphasised that the Bill needed to be reviewed to fix the loopholes of may instead of must and to ensure that the minister was really concerned and took a keen interest in the environment. 

Mr N Singh (IFP) said the Committee had received a presentation from the DFFE on 11 March where they discussed numerous issues including the challenges the National Economic Development and Labour Council (NEDLAC) had with the Climate Change Bill, especially the polluter pays principle. He said that there should be clauses that gave the national minister absolute power to address a number of issues regarding the Bill.

He reminded the Committee that the Bill was their bill; it no longer belonged to the executive or the minister.  It had become a policy bill which the Committee could amend. It was therefore the Committee’s responsibility to initiate clauses that referred to consultations with stakeholders in all government spheres. The Committee had authority and power to suggest amendments to the Bill and to make it better.

Mr Singh said a section on financial implications was missing in the Bill. Were the costs ever presented to the government? Were resources available to implement the bill at all government levels? What about the socio-economic impact of the Bill, especially for the communities at the receiving end of climate change impacts? Could the DFFE assist the Committee with the socio-economic impact studies?

The Committee needed to come up with a time-bound and adequate consultation process to ensure that the Bill was amended and adopted by the government by the end of the current year. He added that after the Bill had been adopted, implementation and adaptation strategies must be documented in an action plan.

Responses

Ms Nomfundo Tshabalala, Director-General (DG), DFFE, said that the Department would share with the Committee the consultative processes that it undertook while the Bill was still at the executive stage. The Committee could add to the consultation processes already undertaken. The DFFE had earmarked capacitation at rural municipalities to strengthen their collaboration, especially on the drafting of the climate change adaptation and mitigation plans.

Mr Jongikhaya Witi, acting Deputy Director-General: Climate Change and Air Quality, referred to aspects that dealt with compliance and enforcement. They were related to the mitigation element of the climate response. For example, non-compliant industries must comply with the limits. However, some of the limits were related to technical aspects that must be reflected in the regulations. Hence, the Bill spoke of the need to develop regulations that provided technical details such as the sectoral emissions targets and allocations of the carbon budget.

The Climate Change Bill was a framework. It did not go into the substantive technical aspects, but the regulations that had been outlined would form part of the substantive details. The regulations would outline the modalities and principles for the allocation of the carbon budgets under which compliance or non-compliance should be judged. Penalties would be related to the incentives linked to the mitigation instruments.  The climate tax versus budget debate at NEDLAC would be dealt with in terms of regulations for allocation of carbon budgets. Elements of the climate mitigation response would use existing policies and measures. The Integrated Resource Plan had already been adopted by the government to deal with the financial implications of the Bill.

Mr Ramaru said a series of clauses could be tabulated to highlight various instruments that required that the minister consult MECs and other affected Ministers. Clause 29 on public consultation processes outlined a number of requirements for a clear public consultation process during the development of instruments. These included advertisements in newspapers, and public invitations to submit inputs to MECs, ministers and mayors. The DFFE could provide a clear table that highlighted clauses that required public participation and consultation. 

The DFFE would look into the risk-averse clause. The time-sensitive phrasing was because, within one year after the Act came into effect, a number of things would have to be in place to allow the finalisation of the Act. The DFFE had been working with the district municipalities and provided them with technical support through collaboration with donors to develop adaptation response plans.

The polluter pays principle fell under the National Environmental Management Act (NEMA). There was no consensus at NEDLAC but the polluter pays principle was retained in the Climate Change Bill. The DFFE had done a socio-economic assessment which included some of the potential financial impacts that the country would suffer through climate change. The administrative costs had been quoted in a Cabinet Memorandum where it was highlighted that the DFFE was relying on existing instruments to develop adaptation strategies, scenarios and risk and vulnerability assessments. Most of the work had already been done and the Bill gave a legal basis for the work. However, there was no clear and detailed cost for the just transition.

There were sections in Chapter 6 that classified areas of regulations into those that must be in place because they were very critical for the implementation of the Bill and those that were less definite because they involved international engagement processes.

Ms Vanessa Bendeman, acting DDG: Regulatory Compliance and Sector Monitoring, said in cases where there was a may or must, the DFFE had to determine what should or not remain discretionary. It had to be borne in mind that where regulations and obligations were made and not complied with they posed litigation risk. Regulations had to be drafted and brought into effect at the same time as the Bill, which might delay its coming into effect. There needed to be careful analysis of what should be discretionary and what should be obligatory in terms of the regulations. Care had to be exercised in implementation of the Bill to ensure that it was not contrary to other legislation such as the Protection of Personal Information Act (POPIA).

Referring to the Promotion of Access to Information Act (PAIA), she said the DFFE would ensure that information was freely accessible so that it would not be necessary to make a PAIA request. The DFFE was obliged under POPIA to ensure that personal information was protected.

She said that Clause 32 of the Bill provided for enforcement. It was linked to the NEMA which provided for penalties of five years’ imprisonment or a fine of R5 million and ten years or R10 million. The DFFE needed to consider if it adequately addressed big companies and whether this provision should be strengthened. 

Mr Witi added that some elements of education and awareness were being carried out by the DFFE but it was not at the scale that it should be. The DFFE worked closely with the SA National Biodiversity Institute (SANBI) and Rhodes University to develop a mainstream climate change curriculum that would largely target high schools. The DFFE had worked with a number of institutions, including small scale farmers, in introducing climate smart agriculture.

Further discussion

Ms Weber said she would like to see specific clauses on enforcement and regulations. Enforcement and prosecution were very important in climate change issues. It should not be the last resort.

Mr Bryant asked why there was a need to stipulate that the PCCC was optional while the other consultation processes were not. How could something so essential to the Bill be optional? What was the real rationale?

Ms Phillips said she was excited that climate change awareness would be included in the high school curriculum. She asked about the provision in Clause 27 that a minister may make regulations. Did this depend on external forces? There were many things that were optional for the Minister to do.  

Mr Singh said that the transgressors of pollution laws must pay the price. He asked the DFFE for the financial information that had been submitted to the cabinet. It would help the Committee to have all kinds of information that was used to motivate the Bill. There was a need for a parliamentary legal official to follow what everyone else was saying about the Bill.   He asked the parliamentary legal team to come up with a draft consultation timetable that the Committee could consider. 

Ms Tshabalala committed to sharing information from the socio-economic assessment with the Committee. The DFFE had taken note of Ms Weber’s concerns about enforcement of the regulations.

Ms Linda Garlipp, Chief Director:  Law Reform and Policy Coordination, said that may was used instead of must to give the president the discretion of not necessarily appointing a presidential council by the next administration. This was one of the provisions that could be changed.

Mr Singh said that the Minister, when she opened the meeting, had said that there were anomalies that the DFEE would flag in the meeting. He was not clear what these were.

Ms Weber said she thought that Schedule 3 should be retained with new terminology. It needed to be updated, not removed.

Mr Bryant asked how far the process was of arranging public hearings by the Committee on the Bill. 

Ms Tshabalala said that Schedule 3 described the national greenhouse gas emissions trajectory. The White Paper in 2012 was produced prior to the revisions of the NDC. The minister was highlighting that the NDC had been revised and had set targets. The Department thought that the schedule might not be applicable at this point. However, that did not stop the Committee from applying its mind to the matter.

The meeting was adjourned.