Member Article

The Minister of the Department of Forestry, Fisheries and the Environment (“DFFE”) recently published a notice inviting consultation on her intention to publish a National Guideline for Consideration of Climate Change Implications in Applications for Environmental Authorisations, Atmospheric Emission Licences and Waste Management Licences (the “Guideline”). The Guideline has been published in response to recent case law, which suggests that climate change is a relevant consideration in certain environmental related applications and decision-making processes.

The Guideline is a recognition by the DFFE of the need to integrate climate change impacts, both adaptation and mitigation, into the early stages of development planning. According to the Guideline, consistent consideration of climate change in environmental impact assessments (“EIAs”) will increase awareness of greenhouse gas (“GHG”) emissions, and stimulate consideration of less emission intensive ways to realise developments. The Guideline aims to assist project proponents to assess:

• how a proposed development will likely exacerbate (or mitigate against) climate change;
• the impact of a development on features (natural and built) that are crucial for climate change adaptation and resilience; and
• the sustainability of a development in the context of climate change projection.

Curiously, the proposed Guideline does not apply to water use licence (“WUL”) applications in terms of the National Water Act, 1998 (“NWA”). One can only speculate as to the reasons for this omission, which may be remedied by the time that the final Guideline is eventually published. The NWA constitutes a “specific environmental management Act” as defined in the National Environmental Management Act, 1998 and since scientists have determined that water resources will be significantly impacted by climate change, WULs would have been included in the Guideline.

According to the Guideline, Environmental Assessment Practitioners (“EAPs”) will play a major role in the determination of whether a climate change impact assessment, and consequently the input of a climate change specialist, will be required for a particular project. The relevant EAP will have an opportunity to engage with the DFFE if the EAP is not clear on whether a climate change impact assessment is required for a particular development. Because the consequence of failing to consider climate change is that an authorisation granted could be set aside if challenged, it is likely that climate change impact assessments will become common practice. The Guidelines will demand greater expertise in climate change impact assessments.

The Guideline suggests that when one or more of the following criteria apply to a proposed development, climate change is relevant:

• the development will likely result in the release or absorption of GHG emissions and therefore exacerbate or mitigate climate change;
• the development will likely impact on ecological infrastructure, eg biodiversity corridors or wetlands or build infrastructure eg dams and storm water systems, that is important for climate change adaptation or resilience; and/or
• the development will likely be impacted by future climate change implications, such as sea-rises on coastal developments
  
  

The Guideline provides the following examples of developments that result in the release of GHG emissions:

• construction of electricity generation facilities that utilise fossil fuels;
• industrial developments that contribute to atmospheric emissions;
• extraction and production of fossil fuels; and
• clearing of vegetation (a well-known and important carbon capture mechanism)
  
  

The Guideline also includes examples of developments likely to impact ecological or built infrastructure that is important for climate change adaptation or resilience. Namely, those that impact on water resources, coastal systems and wetlands, water infrastructure and waste disposal facilities. Examples of developments that will probably be impacted by climate change include areas that may become prone to increased fires, rainfall, flooding or be affected by rises in sea levels.

When the final version of the Guideline is published, it is expected to be a game changer in project development in South Africa and an important mechanism to promote sustainable development. Those project proponents wishing to undertake development activities in South Africa will be required to consider the Guideline in the very early stages of the relevant development. Climate change implications, positive or negative, will be deemed a relevant consideration that will make the authorisation susceptible to a successful challenge, if not considered adequately.

Stephen Levetan

Natural Resources and Environment Executive

[email protected]

+27 82 780 1555

Dalit Anstey

Natural Resources and Environment Associate

[email protected]

+27 66 474 4466