On 8 January 2016, the Minister of Environmental Affairs published the following draft regulations in the Government Gazette, calling for written representations or objections to be submitted to the Department of Environmental Affairs (“DEA”) within 30 days after their publication, i.e., by 8 February 2016:

  • Declaration of Greenhouse Gases as Priority Air Pollutants (GG 39578, Notice 6, 8 January 2016); and 
  • National Pollution Prevention Plan Regulations (GG 39578, Notice 5, 8 January 2016).

The draft regulations give notice of the Minister’s intention to:

  • declare a basket of six greenhouse gases as priority air pollutants in terms of section 29(1)(a) of the National Environmental Management: Air Quality Act No. 39 of 2004 (“NEMAQA”); 
  • require the following persons to prepare and submit Pollution Prevention Plans as provided for in NEMAQA section 29: 
    • those emitting more than 0.1 Megatonnes annually of the declared greenhouse gases (measured as carbon dioxide equivalent – C02e); 
    • persons undertaking, as a primary activity, a production process listed in the draft Declaration of Greenhouse Gases as Priority Air Pollutants; and
  • determine the requirements for Pollution Prevention Plans pursuant to NEMAQA section 29(3).

The draft regulations form an integral part of the evolving national climate change policy on greenhouse gas mitigation and follow in the immediate aftermath of the conclusion of the Paris Agreement at the Twenty-First Conference of the Parties to the United Nations Framework Convention on Climate Change, which was held in Paris, France in December 2015. The inter-relationship between the draft regulations and other elements of national climate change policy is illustrated in the graphic below:

Click here to view graphic.

It is important to understand that while different legal instruments are intended by government (mainly National Treasury and the DEA) to regulate different aspects of mitigation policy, there is a strong relationship between the abovementioned four components of such policy. For example, the charging provision of the draft Carbon Tax Bill provides that persons liable to pay the carbon tax are those that conduct activities set out in the legal instrument declaring greenhouse gases as priority air pollutants. While there is currently some uncertainty about Treasury’s intentions in relation to the identification of carbon tax liable persons and it is likely that the abovementioned charging provision will be amended, the relationship between these two components of mitigation policy; i.e., the carbon tax and the declaration of greenhouse gases as priority air pollutants, is well illustrated by this reference. For a more detailed discussion of the issues, please click here

It is essential that interested parties comment on the draft regulations. Such parties will include all those likely to be affected by mitigation policy, including:

  • entities that emit the greenhouse gases intended to be declared as priority air pollutants; 
  • entities that undertake any of the production activities listed in the annexure to the draft Declaration of Greenhouse Gases as Priority Air Pollutants; 
  • entities subject to South Africa’s National Greenhouse Gas Reporting Regulations; 
  • entities currently engaging with the DEA in relation to the proposed carbon budget allocation process; 
  • entities that will be subject to pay the proposed carbon tax.

For further information, including the manner in which written representations and objections may be submitted, please refer to the draft regulations here.