by Paula-Ann Novotny & Lerato Molefi from Webber Wentzel

​​​A Climate Change guideline will shortly be published to assist with incorporating climate change considerations in various applications for environmentally related licences

On 25 June 2021, the Minister of Forestry, Fisheries and the Environment (the Minister) published notice of her intention to publish a national guideline for consideration of climate change implications in applications for environmental authorisations (EA), atmospheric emission licences (AEL) and waste management licences (WML) (CC Guideline). The CC Guideline will provide guidance on the implementation of the Environmental Impact Assessment Regulations, 2014 and their minimum assessment and reporting criteria, where climate change considerations are relevant. This has come at a time when climate change disputes are rife and are increasingly being entertained by the Courts.

Recent case law in South Africa (EarthLife Africa Johannesburg v Minister of Environmental Affairs and Others [2017]; GroundWork Trust v Minister of Environmental Affairs, KiPower (Pty) Ltd, and Others [2017]), challenging failures to consider climate change and greenhouse gas emissions in environmental impact assessments, highlights that climate change is an important aspect that ought to be considered in the granting of environmental consents. The international, cross-jurisdictional recognition of climate change impacts has highlighted climate change regulation from an ESG perspective.  The recent Hague District Court decision, published in May 2021 and hailed as "ground-breaking", ordered Royal Dutch Shell to reduce the CO2 emissions of its group’s activities by 45% by 2030, relative to 2019 levels. This is the first time a court has imposed a legal obligation on a company to reduce its CO2 emissions. It is expected to be the first in a wave of strategic climate change litigation seeking to influence corporate behaviour. 

The necessity to provide guidelines on and regulate climate change impact assessments is evidently crucial from ESG, public scrutiny, sustainable development and co-operative governance perspectives.

In 2017, in the landmark case of EarthLife Africa Johannesburg v Minister of Environmental Affairs and Others, the High Court had to determine whether, under the National Environmental Management Act 107 of 1998 (NEMA), "relevant" considerations in the environmental review of plans for the new 1 200 MW coal-fired Thabametsi Power Project included the project’s impacts on the global climate and the impacts of a changing climate on the project.

The court, after observing that the statute does not expressly contemplate climate change, held that it was relevant in respect of the EA application. The competent authority was ordered to consider a climate change impact assessment report, and its dismissal of the appeal against the grant of Thabametsi's EA on this ground was set aside. The Minister reconsidered the appeal and the study commissioned and put forward by the applicant, and in 2018 decided to confirm the issue of the EA to Thabametsi.  This decision was taken on review again, and in 2020 the Court set aside the grant of the EA and ordered that the application be remitted to the competent authority for reconsideration to ensure adequate public participation on the climate change impact assessment report.

These decisions highlight that South Africa's commitments under the Paris Agreement were recognised by the Courts and set the precedent for climate change becoming a relevant consideration in environmental permitting applications and for the development of this CC Guideline.

The objective of the CC Guideline will be to create a consistent approach to incorporate climate change considerations in applications for EAs, WMLs and AELs. Interested and affected parties will now be provided with the minimum requirements for climate change impact assessments in these applications. The CC Guideline will also assist authorities in their determination of these applications.

National and international frameworks were taken into consideration in the drafting of this CC Guideline, and it is the next step in South Africa's development of legislation specifically regulating climate change.

It is important to note that the CC Guideline does not clarify any specific procedural or reporting requirements, but rather intends to provide best practice guidelines to improve the quality of specialist input related to climate change. It is important to read the CC Guideline in conjunction with the relevant legislation to ensure that mandatory requirements are met.

Members of the public are invited to submit comments on the proposed CC Guideline by 25 July 2021.