Climate change is a global environmental phenomenon. This article considers how the issue of climate change is being dealt with at an international level, via the UNFCCC. In the context of South Africa, it considers the objectives of IEM,the legislative basis of IEM,how the EIA process works, how climate change considerations can be included in the EIA process and how climate change issues could be addressed by other IEM instruments.
This article is part of the PLC multi-jurisdictional guide to environment. For a full list of jurisdictional Q&As visit www.practicallaw.com/environment-mjg.
Climate change is a global environmental phenomenon. The United Nations Framework Convention on Climate Change (UNFCCC) defines it to mean "a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods".
In South Africa, the issue of climate change is addressed by the environmental management tools of integrated environmental management (IEM) and environmental impact assessment (EIA), as prescribed by the National Environmental Management Act No. 107 of 1998 (NEMA). NEMA provides the national legal framework for integrating sound environmental management into all development activities and promoting co-operative environmental governance by government bodies on matters affecting the environment.
The first version of South Africa's National Climate Change Response Strategy (Department of Environmental Affairs and Tourism (DEAT), September 2004) highlighted the relationship between climate change and sustainable development considerations by indicating that "South Africa's position is to view climate change response as offering (an)… avenue of opportunity for achieving the sustainable development objectives of… national policies and legislation".
Given that the purpose of EIA is to give effect to the general objectives of IEM (section 24(1), NEMA), including sustainable development, there is a logical and necessary interrelationship between climate change and EIA, especially within the South African context.
Climate change is likely to have a significant impact on the South African economy, society and environment, and increasing attention will need to be paid to climate change by all sectors of society and government to deal effectively with the issue. Arguably, this would include taking more direct measures than those related to IEM and EIA, discussed below. However, this article limits itself to IEM and EIA rather than addressing such other, more direct, measures.
Against this backdrop, this chapter considers:
How the issue of climate change is being dealt with at an international level, via the UNFCCC.
In the context of South Africa:
the objectives of IEM;
the legislative basis of IEM;
how the EIA process works;
how climate change considerations can be included in the EIA process;
how climate change issues could be addressed by other IEM instruments.
The UNFCCC's main objective is to achieve stabilisation of concentrations of greenhouse gases in the atmosphere at a level that would prevent dangerous anthropogenic (human induced) interference with the climate system. The South African government ratified the UNFCCC in August 1997. Note that Article 4.1 of the UNFCCC, in referring to the obligations of all country parties, provides that such parties are obliged to "Formulate, implement, publish and regularly update national and, where appropriate, regional programmes containing measures to mitigate and facilitate adequate adaptation to climate change".
There is an argument to be made that such measures might include those relating to EIA and there is precedent for this approach. The Institute of Environmental Management and Assessment in the UK has issued a series of guidance documents aimed at environmental assessment practitioners, which deal with climate change adaptation, mitigation and EIA (see www.iema.net/eia-cc). The UK has taken its lead from:
Council Directive 85/337/EEC (as amended) on the assessment of the effects of certain public and private projects on the environment (EIA Directive), which requires that EIA should "… identify, describe and assess… the direct and indirect effects of a project on the… interaction between: human beings, fauna and flora, soil, water, air, climate, the landscape, material assets and cultural heritage…".
Draft government policy, which contemplates resilience assessment being built into EIA requirements.
The UNFCCC adopts two broad approaches to dealing with climate change: adaptation and mitigation.
The Intergovernmental Panel on Climate Change (IPCC) defines adaptation as the "adjustment in natural or human systems in response to actual or expected climatic stimuli or their effects, which moderates harm or exploits beneficial opportunities". There are various types of adaptation, including (IPCC, 2001):
Planned adaptation, originated by a deliberate policy decision, aimed at returning to, maintaining or achieving a desired state.
Anticipatory adaptation, undertaken before impacts of climate change are observed.
Autonomous adaptation, triggered by ecological changes in natural systems and by market or welfare changes in human systems.
Planned adaptation is particularly relevant in the current context, due to the deliberateness of decisions required to achieve this planned adaptation. Such deliberate decision-making could include, for example, recommendations flowing from an EIA for how a proposed activity should be undertaken.
"Adaptive capacity" is a further notion that might be considered in the EIA context. This term describes "the ability of a system to adjust to climate change including climate variability and extremes to moderate potential damages, to take advantage of opportunities, or to cope with the consequences" (IPCC, 2001).
EIA should consider the adaptive capacity of an ecosystem, potentially impacted by a proposed activity, as a factor in the undertaking of the activity and as a context to inform mitigation measures (see below, Mitigation).
South Africa is identified as a country that is vulnerable to the impacts of climate change, making the implementation of adaptation measures essential to future environmental governance (see Articles 4.8 and 4.9 of the UNFCCC for further information on the notions of vulnerability and adaptation).
Mitigation is "an anthropogenic intervention to reduce the anthropogenic forcing of the climate system (and) includes strategies to reduce greenhouse gas sources and emissions and enhancing greenhouse gas sinks" (IPCC, 2001).
In South Africa, mitigation is identified as an integral part of sustainable development and, in particular, cleaner production strategies, and mitigation actions are required to induce a long-term shift in the national economic and industrial base away from dependence on natural resource export and primary minerals to manufacturing and other value-adding activities.
The country has developed long term mitigation scenarios (LTMS) (Long Term Mitigation Scenarios - Strategic Options for South Africa, DEAT, October 2007) and has pledged to the UNFCCC secretariat that it will achieve a 34% reduction of greenhouse gas emissions below a business as usual emissions growth trajectory by 2020, and a 42% reduction by 2025, dependent on finance, technology and capacity building support from developed countries. This is likely to require a significant level of policy intervention, legislation and regulation.
NEMA sets out the general objectives of IEM in South Africa, including to (section 23(2)):
Promote the integration of the principles of environmental management set out in section 2 (of NEMA) into the making of all decisions that may have a significant effect on the environment.
Identify, predict and evaluate the actual and potential impact on the environment, socio-economic conditions and cultural heritage, the risks and consequences and alternatives and options for mitigation of activities. This is to be done with a view to minimising negative impacts, maximising benefits and promoting compliance with the principles of environmental management set out in section 2 (of NEMA).
Ensure that the effects of activities on the environment receive adequate consideration before actions are taken in connection with them.
Ensure adequate and appropriate opportunity for public participation in decisions that may affect the environment.
Ensure the consideration of environmental attributes in management and decision making which may have a significant effect on the environment.
Identify and employ the modes of environmental management best suited to ensuring that a particular activity is pursued in accordance with the principles of environmental management set out in section 2 (of NEMA).
The main statutory instrument prescribed by NEMA to facilitate IEM in South Africa is EIA, through section 24 of NEMA and a series of EIA regulations.
NEMA forms the legislative basis for EIA in South Africa and prescribes by way of regulation the procedural and substantive requirements for the undertaking of EIA. The national EIA regulations, namely those published in Government Notices (GN) R543, R544, R545 and R546 in Government Gazette 33411 of 2 August 2010 (2010 EIA Regulations), as amended, were promulgated in accordance with the requirements of NEMA.
To give effect to the general objectives of IEM, the potential consequences of, or impacts on, the environment of certain listed or specified activities, must be considered, investigated, assessed and reported to the competent authority or the Minister of Mineral Resources, as the case may be (section 24(1), NEMA, as amended). This applies except to those activities that may commence without having to obtain prior environmental authorisation.
The Minister of Environmental Affairs (Minister), at the national level, or a Member of an Executive Council (MEC) with responsibility for the environment, at the provincial level, with the concurrence of the Minister, can identify (section 24(2), NEMA, as amended):
Activities that cannot commence without environmental authorisation from the competent authority.
Geographical areas based on environmental attributes, and as specified in spatial development tools adopted in the prescribed manner by the environmental authority, in which specified activities cannot commence without environmental authorisation from the competent authority.
Geographical areas based on environmental attributes, and specified in spatial development tools adopted in the prescribed manner by the environmental authority, in which specified activities may be excluded from authorisation by the competent authority.
Activities contemplated in the first two bullets above that may commence without an environmental authorisation, but that must comply with prescribed norms or standards.
In accordance with these provisions, there are three key components to the 2010 EIA regulations:
The NEMA listed activities requiring a "basic assessment" (GN R544 of 2 August 2010 (as amended)).
The NEMA listed activities requiring "scoping and environmental impact assessment" (GN R545 of 2 August 2010 (as amended)).
The NEMA listed activities in specific geographical areas based on environmental attributes requiring a "basic assessment" (GN R546 of 2 August 2010 (as amended)).
Regardless of the provision of any other statute, no person can commence an activity listed or specified under NEMA, as amended, section 24F(1)(a), unless the competent authority has granted an environmental authorisation for the activity.
The 2010 EIA Regulations make no specific mention of climate change as a consideration in the assessment process. A 2008 proposed amendment to the previous set of EIA Regulations (of 2006) aimed to address climate change in the assessment process by providing that, when considering an application for environmental authorisation, "the competent authority must take into account any implications of climate change to the implementation of the activity" (GN R. 658, GG 31144 of 13 June 2008). While this proposed amendment, had it been brought into the law, is unlikely to have constituted a comprehensive approach to climate change, the proposal was not included in the 2010 EIA Regulations.
Anecdotally, some environmental assessment practitioners (EAPs) are already considering mitigation and adaptation in the assessment processes for which they are responsible. While this is a welcome development, a formal recognition of the relevance of climate change for EIA processes, by way of appropriate amendment to the 2010 EIA Regulations, and the provision of necessary tools to assist and inform assessments, would be an important innovation to EIA in South Africa.
The failure to include an amendment regarding climate change in the 2010 EIA Regulations does not mean that climate change considerations can be disregarded during EIA. A strong argument can be made that there is an implied requirement to consider climate change during the EIA process, where relevant, in view of:
The implications of climate change for South Africa.
The IEM objectives of EIA read with the sustainable development focus of NEMA's environmental management principles.
In this context, the National Climate Change Response Green Paper (Department of Environmental Affairs (DEA), November 2010) recognises that sustainable development is also climate friendly development and that the more sustainable the development path, the easier it will be to build resilience to climate change impacts.
On the basis of the argument that there is an implied requirement to consider climate change in the EIA process, four broad recommendations could assist in smoothing the introduction of such considerations into the process.
These recommendations are:
Climate change could be addressed and included, where relevant, in EIA reports.
Activities might be identified which, due to their climate change-related impacts, should not commence without EIA.
Climate change could be integrated into other statutory instruments for IEM.
EIA related national and/or provincial guidelines could be developed to facilitate the integration of climate change adaptation and mitigation considerations into the EIA process.
Each of these recommendations is considered briefly below.
The minimum action taken by an EAP wishing to react to the issue of climate change would be to equip itself to deal with such considerations in EIA processes. The first step could be to return to the distinction made by the UNFCCC between the notions of adaptation and mitigation, and to consider the implications of such notions for assessment processes and public participation.
The inclusion of climate change considerations into EIA should influence the compilation of the environmental impact report. In the mitigation context, this might mean providing recommendations for the reduction of greenhouse gas emissions associated with the implementation of the proposed activity.
To paraphrase NEMA, the EIA might assess how greenhouse gas emissions associated with the proposed activity might be avoided, or, where they cannot be avoided altogether, minimised and remedied. In the context of environmental impact reports the term "mitigation measures" to be included in such reports refers to recommended measures "…designed to avoid, reduce or remedy adverse impacts" of the proposed activity on the environment (DEAT, Guideline Document – EIA Regulations: Implementation of Sections 21 and 26 of the Environment Conservation Act, April 1998), as opposed to the definition of "mitigation" used earlier in this chapter (see above, UNFCCC: Mitigation).
A consideration of adaptation, on the other hand, might lead to recommendations on how to modify the activity's implementation in light of potential climate change impacts, for example, recommendations on the need for including long-term adaptive capacity in an operation informed by the imperative of climate change.
NEMA gives the Minister and every MEC, with the agreement of the Minister, the power to (section 24(2)):
Identify activities that cannot be started without prior authorisation from the Minister or MEC.
Identify geographical areas where specified activities cannot be commenced without prior authorisation from the Minister or MEC, and to specify such activities.
Given the above powers, the Minister or MEC could identify activities that should not commence without an environmental authorisation, due to their climate change-related impacts or their vulnerability to the effects of climate change. Similarly, the Minister or MEC could identify geographical areas vulnerable to climate change in which activities could not be undertaken without prior environmental authorisation.
This section briefly considers how climate change considerations can be included in a number of IEM instruments that are already provided for in South African legislation. In particular it considers:
Environmental management frameworks (EMFs).
Environmental implementation plans and environmental management plans.
Measures supporting IEM.
Note that various other strategic planning instruments could be used to deal with climate change issues (see box, Using strategic planning instruments to address climate change).
EMFs. NEMA provides that:
The Minister, and every MEC, with the agreement of the Minister, can compile information and maps that specify the attributes of the environment, in particular geographical areas, including the sensitivity, extent, interrelationship and significance of such attributes; these attributes must be taken into account by every competent authority (section 24(3)).
Procedures for the investigation, assessment and communication of the potential impact of activities must as a minimum ensure, in relation to every application for an environmental authorisation, that environmental attributes identified in compiled information and maps (as contemplated in section 24(3) of NEMA) are considered (section 24(4)(i)).
The content and objectives of EMFs are provided for in the EMF Regulations, which were published on 18 June 2010 and came into effect on 2 August 2010 (GN R574 of 18 June 2010). These regulations provide that an EMF serves as a support mechanism to the EIA process in the evaluation and review of development applications, and allows for strategic informed decision-making in land use planning applications.
EMFs include a variety of information, such as the maps illustrating environmental attributes for a specific geographical area, which are very useful when drafting applications for environmental authorisation.
The content and objectives of EMFs could be informed by climate change considerations, in turn ensuring that climate change issues are considered in relevant applications for environmental authorisation.
Environmental implementation plans and environmental management plans. All national departments:
Listed in Schedule 1 to NEMA as exercising functions which may affect the environment, as well as all provinces, must prepare an environmental implementation plan (section 11, NEMA).
Listed in Schedule 2 to NEMA as exercising functions involving the management of the environment must also prepare an environmental management plan.
National departments listed in both Schedule 1 and Schedule 2 can prepare a consolidated environmental implementation and management plan. The purposes of environmental implementation and management plans include to:
Co-ordinate and harmonise environmental policies, plans, programmes and decisions of provincial and local spheres of government, and decisions of the various national departments that exercise functions which may affect the environment or are entrusted with powers and duties aimed at the achievement, promotion and protection of a sustainable environment, in order to:
minimise the duplication of procedures and functions;
promote consistency in the exercise of functions that may affect the environment.
Secure the protection of the environment across the country.
Prevent unreasonable actions by provinces regarding the environment that are prejudicial to the economic or health interests of other provinces or to the country as a whole.
Enable the Minister to monitor the achievement, promotion and protection of a sustainable environment.
NEMA also prescribes that (section 16):
Every government body must exercise every function it may have (or that has been assigned or delegated to it), by or under any law, and that may significantly affect the protection of the environment, substantially in accordance with the environmental implementation plan or the environmental management plan prepared.
Each provincial government must ensure that the relevant provincial environmental implementation plan is complied with by each municipality within its province.
Municipalities must adhere to the relevant environmental implementation and management plans, and the national environmental management principles in the preparation of any policy, programme or plan, including the establishment of integrated development plans and land development objectives.
There is strong argument in favour of the inclusion of climate change considerations into such plans, given their broad environmental and sustainable development focus.
Measures supporting IEM. The White Paper on Environmental Management in South Africa of 1998 makes reference to "supportive measures" to enable effective environmental management and the achievement of sustainable development. Such measures fall into two main categories:
Those that facilitate informed decision-making, including:
strategic environmental assessment (SEA);
integrated environmental planning;
integrated resource planning;
the exchange of environmental information.
Those that facilitate impact management, including:
institutional capacity building for effective environmental management;
support for development of cleaner technology;
support for development of renewable energy resources;
support for sustainable resource management;
environmental management systems.
Climate change considerations could be profitably incorporated into all of the above supportive measures. For example, SEA, by virtue of its wide-ranging nature, would be a valuable tool that could be used for both mitigation and adaptation actions in South Africa.
National and provincial guidelines can be issued dealing with (section 24J, NEMA):
Listed activities or specified activities.
The implementation, administration and institutional arrangements of regulations made in terms of section 24(5) of NEMA.
While such guidelines are not considered to be binding, they must be taken into account when preparing, submitting, processing or considering any application for environmental authorisation in terms of the 2010 EIA Regulations. The work of competent authorities and EAPs would be greatly assisted if guidelines were issued on how to deal with climate change considerations.
In addition to instruments related to IEM, climate change considerations could be included in various instruments designed for strategic planning, including:
Local development objectives as required by the Development Facilitation Act (Act No. 67 of 1995).
Strategic development frameworks.
Sustainable development frameworks.
In this context, the National Climate Change Response Green Paper (Green Paper) promotes the mainstreaming of climate change responses into all national, provincial and local planning regimes. The Green Paper also states that climate models should be appropriately downscaled to the provincial and, where possible, the metropolitan and district municipality levels to provide climate information on a scale that can be integrated into medium and long term spatial and development plans.
Several national acts and policies require municipal governments to produce a range of sectoral plans and objectives when a municipality prepares an integrated development plan (IDP), including:
A water services development plan (Water Services Act, No. 108 of 1997).
A waste management plan and coastal management plan. These must incorporate statutory requirements regarding environmental sustainability (NEMA).
Land development objectives (Development Facilitation Act, No. 67 of 1995).
Land use management plans (provincial planning legislation).
Housing development projects and national housing programmes (Housing Act, No. 107 of 1997).
Integrated transport plans (the National Climate Change Response Green Paper indicates that climate change information should be integrated into transport planning, to minimise the potential risk to infrastructure from extreme weather events).
Disaster management plans.
The Green Paper recognises that most adaptation and mitigation effort will take place at provincial and municipal levels and will need to be integrated into provincial development and spatial plans and into IDPs at municipal level.
Climate change's cross-cutting nature is support for the proposition that each of the above plans should take account of the issue.
A draft water services development plan, for instance, must include details of (section 13, Water Services Act):
The physical attributes of the area to which it applies.
The size and distribution of the population within that area.
A time frame for the plan, including the implementation programme for the following five years.
Existing water services.
Given South Africa's status as a water-scarce country and one in which water-scarcity will become increasingly pronounced, it is desirable that each aspect of such a plan be informed by climate change considerations, and it is likely that this will occur over time.
Qualified. Admitted as an attorney in South Africa since 2001
Areas of practice. Climate change and carbon markets law, and general environmental legal advice.
Qualified. Admitted as an attorney in South Africa since 1996
Areas of practice. EIA, development planning, conservation, due diligence, litigation & arbitration, transport, mining, industrial compliance and climate change.
For more details of recent transactions, publications, and so on, see full PLC Which lawyer? profile here.
Qualified. France: Maîtrise en Droit Judiciaire, 2001 and Maîtrise en Droit des Affaires, 2002; South Africa: LLM, 2004; South Africa: LLD, 2011
Areas of practice. Climate change and carbon markets law, marine and coastal management law.