On 8 January 2016 the Minister of Environmental Affairs published draft Pollution Prevention Plan Regulations (PPP Regulations) and a notice which specify which greenhouse gas emitters must comply with the regulations, and has given the public until 7 February 2016 to comment on them.
The PPP Regulations will require persons engaged in certain types of processes as a primary activity or that emit more than 0.1 megatonnes (Mt) of greenhouse gasses (“GHGs”) per annum to submit pollution prevention plans to the Department of Environmental Affairs for approval.
Those affected include anyone engaged in coal mining, the production and/or processing of crude oil and natural gas, the production of liquid fuels from coal or gas, cement production, glass production, pulp and paper production, electricity production (combustion of fossil fuels, excluding the use of back-up generators) and polymer production. The PPP Regulations are intended to be one of the government’s primary mechanisms for regulating GHG emissions in order to mitigate global climate change.
The Paris Agreement
In Paris on 12 December 2015 195 governments entered into an agreement to take collective action to combat climate change to hold the increase in global average temperatures to well below 2 °C above pre-industrial levels and to pursue efforts to limit temperature increase to 1.5 °C above pre-industrial levels. The Paris Agreement does not impose any legally binding obligations on government to reduce greenhouse gas emissions but some have hailed it as historic both for its logistical accomplishments and for succeeding in getting 195 countries to agree to take collective action through adaptation, mitigation and investment towards a low carbon, resilient and sustainable future.
However, the Paris agreement was the easy part; reaching the target is the difficult part. The aim to keep the average global temperatures well below 2 °C is to be achieved through a bottom-up approach where all parties to the agreement must submit its own nationally determined contribution, to be reviewed every five years. Each successive nationally determined contribution should be progressively more ambitious and reflect its highest possible ambition. (The nationally determined targets and plans submitted so far would only limit temperature increase by approximately 2.7 – 3.7°C.)
South Africa’s intended contribution to mitigating climate change
South Africa’s intended nationally determined contribution (INDC) from a mitigation perspective provides that it will transition from its previous commitment to achieve a deviation relative to the “business as usual” to an absolute peak, plateau and decline in its greenhouse gas (GHG) emissions trajectory range. It targets an emissions level in the range of 398–614 MtCO2e over the period 2025–2030 which should plateau for approximately a decade and then decline in absolute terms thereafter to between 212 – 428 MtCO2e by 2050.
In its submission, South Africa stated that its INDC was determined with reference to the environmental right in section 24 of the Constitution and the National Development Plan (2012) which is further elaborated on tin the 2011 National Climate Change Response Policy (NCCRP). South Africa further highlighted that its commitment must be seen in light of its overriding priorities to eliminate poverty and eradicate inequality.
Given the bottom-up approach followed in the Paris agreement, it is important to understand how South Africa intends to contribute to the global goal by not only critically looking at its INDC, which has been criticised as being “inadequate” by the Climate Action Tracker for not making a “fair” contribution to the commitment to reach the 2°C target, but also scrutinising the action it has taken and will take to achieve its INDC.
The draft Pollution Prevention Plan Regulations
The Minister of Environmental Affairs set the tone on 8 January 2016 by publishing a notice of her intention to declare greenhouse gases as priority air pollutants (GHG Notice) and to require persons falling within a specified category, that emits these gases, to submit pollution prevention plans for approval in accordance with draft regulations (PPP Regulations) published on the same date. The notice and regulations were published in terms of the National Environmental Management Air Quality Act 39 of 2004 (NEM:AQA) and improves on similar drafts published in 2014.
In terms of the GHG Notice, the following GHGs are priority pollutants: carbon dioxide (CO2); methane (CH4); nitrous oxide (N2O); hydrofluorocarbons (HFCs); perfluorocarbons (PFCs); and sulphur hexafluoride (SF6). Pollution prevention plans must be submitted by persons who conduct production processes listed in an annexure involving the direct emission of GHGs declared as priority air pollutants in excess of 0.1 megatonnes (Mt) annually measured as carbon dioxide equivalents (CO2-eq); or those undertaking the specified production processes as a primary activity.
The production processes include, among others, coal mining, production and/or processing of crude oil and natural gas, production of liquid fuels from coal or gas, cement production, glass production, pulp and paper production, electricity production (combustion of fossil fuels, excluding the use of back-up generators) and polymer production.
The PPP Regulations sets out the information a pollution prevention plan must contain. This includes details of the person submitting the plan; a description of the production processes; the type of GHG emissions generated from each production process or processes; the total GHG emission from each production process measured as CO2eq for the year, preceding the first calendar year of the pollution prevention plan; details of the methodology that is to be used by the person to monitor annual GHG emissions and evaluate progress towards meeting GHG emission reductions; and a description of mitigation interventions that will be implemented to reduce GHG emissions over the five year period, and the projected emission reductions that will be achieved.
The declaration of the GHGs as priority air pollutants and the requirement to prepare pollution prevention plans ties in with South Africa’s goal to meet its peak, plateau and decline in GHG emissions trajectory targets. It is therefore surprising that neither the GHG notice nor the PPP Regulations determines specific emission reduction targets. At most, the GHG Regulations require that persons who must submit pollution prevention plans must undertake mitigating interventions to reduce GHG emissions over the next five years and must determine (with no guidance or further requirements) projected emission reductions it intends to achieve.
The PPP Regulations provides that the Minister must approve or reject the PPP with reference to the information which the PPPs must contain. The PPP Regulations does not specifically empower the Minister to reject the PPPs on the basis of inadequate or insufficient mitigation interventions and or reduction targets. Additionally, no consequences flow if a person fails to meet its self-determined emission reduction target. Therefore, the potentially powerful PPP Regulations fails to put any real pressure on industry to set meaningful targets and committing in taking action to reach those targets.
The GHG Reporting Regulations
In order to put the GHG Notice and PPP Regulations in context, regard must also be had to the draft National Greenhouse Gas Emission Reporting Regulations (GHG Reporting Regulations), published in June 2015. The main objective of the GHG Reporting Regulations will be to establish a single national reporting system for the reporting of GHG emissions.
The reporting system will be used to establish a National Greenhouse Gas Inventory which will be used to track and monitor GHG emissions and progress made by South Africa in meeting its obligations under the United Framework Convention on Climate Change and other international treaties. It is envisaged that the reporting system will form part of the National Atmospheric Emissions Inventory System (NAEIS). The GHG Reporting Regulations applies to all GHG, as defined in the NEMAQA, and not only those declared to be priority pollutants.
The GHG Reporting Regulations require two categories of data providers to register with NEAIS within a specified period and to undertake certain prescribed reporting obligations. Data providers are defined broadly to include the holding company, its subsidiaries and facilities over which it has control. Two types of data providers are distinguished, being industry players (Category A) conducting certain listed categories and subcategories of activities including energy, industrial processes and product use, agriculture, forestry and other land uses, and waste; and organs of state, research institution or academic institutions (Category B) which holds GHG emission data arising from certain listed activities including energy, agriculture, forestry and other land uses, and waste. Each category has various subcategories.
The GHG Reporting Regulations requires Category A data providers to report GHG data annually for the total of all its facility level emissions at company level. Category B data providers must report GHG data on request by the competent authority. The Regulations also prescribes the methods which must be used by various data providers in determining its GHG emissions.
The Energy Research Centre at the University of Cape Town pointed out during the public participation process that the GHG Reporting Regulations require too little information to be reported to support a robust mitigation system. Specifically it criticized the Regulations for requiring reporting at company level as this is not in line with international systems which are based on facility level reporting. Examples include EU-ETS, the Australian National Greenhouse and Energy Reporting System. This will result in emission data not being sufficiently transparent, accurate, complete, comparable and consistent.
Another critique levelled against the GHG Reporting Regulations is that it currently promotes confidentiality of information instead of supporting transparency and public access to information. Currently, a person holding information may not disclose such information unless required to do so in terms of legislation, a court order or to perform functions under the Regulations.
Instead, the Regulations should be framed to provide that all information is publically accessible, and that only in exceptional circumstances will information be withheld. This is in line with our constitutional values of openness, transparency and the public’s right to access to information at all. Similarly the PPP Regulations, which do not currently provide for access to information, should require pollution prevention plans to be publically accessible in order to enable the citizens of South Africa to scrutinise companies’ commitments to combat air pollution.
If South Africa is committed to participate in the global effort to combat climate change, which is currently not robust enough, it should start from the bottom-up and utilise the tools available to it to meet its international commitments. One such tool is regulatory instruments such as the GHG Notice, PPP Regulations and GHG Reporting Regulations. It is therefore the government’s duty and our duty as citizens as part of the public comment process, to ensure these regulations are sufficiently comprehensive and robust in order to enable South Africa to meet its international commitments.
Members of the public have until 7 February 2016 to comment on the notice.
Submitted by Janah Miller, senior associate, Cullinan and Associates