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South Africa’s Air Quality Act of 2004 put in place various measures for the prevention of pollution and national norms and standards for the regulation of air quality in the country.  It also authorizes the Minister of Environmental Affairs to enforce its provisions through the issuance of policy documents and regulations.

In 2007 the Minister issued the National Framework for Air Quality Management.  In 2009, the Minister issued national ambient air quality standards for seven pollutants, including carbon dioxide and ozone.  After a statutorily mandated review, in 2012 the Minister replaced the 2007 National Framework and in the same year issued national ambient air quality standards for particulate matter with an aerodynamic diameter of less than 2.5 microns.  In 2013, the Minister issued emissions standards for a number of listed activities deemed detrimental to the environment.  In 2014, the Minister issued regulations for the phasing out of certain ozone-depleting substances.  In 2015, the Minister declared small-scale char and small-scale charcoal plants “controlled emitters” and imposed emissions limits on such activities.  In 2017, the Minister declared a number of greenhouse gases including carbon dioxide and methane) “priority pollutants.”    

While South Africa does not appear to have vehicle fuel emissions standards in place, it imposes environmental levies on carbon dioxide emissions of new vehicles imported to or manufactured in South Africa.    

I. Introduction

South Africa’s GHG emissions are among the highest in the world and its absolute carbon dioxide (CO2) emissions rank among the top twenty countries, “with emissions per capita in the region of 10 metric tons per annum.”[1]  The 2011 National Climate Change White Paper described this challenge as follows:

The energy intensity of the South African economy, largely due to the significance of mining and minerals processing in the economy and our coal-intensive energy system, has resulted in an emissions profile that differs substantially from that of other developing countries at a similar stage of development as measured by the Human Development Index. Since coal is the most emissions-intensive energy carrier, South Africa[’]s economy is very emissions-intensive. Furthermore, emissions from land-use change (primarily deforestation) contribute a significantly smaller share to our emission profile than for many other developing countries. In 2000, average energy use emissions for developing countries constituted 49% of total emissions, whereas South Africas [sic] energy use emissions constituted just under 80% of total emissions. Even in some fast-developing countries with a similar reliance on coal for energy, energy use emissions are lower than South Africa.[2]

South Africa has national and international legal obligation to reduce its emissions.  The Bill of Rights section of the South African Constitution includes an environment clause, which states that

[e]veryone has the right –

a.      to an environment that is not harmful to their health or well-being; and

b.      to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that –

i.       prevent pollution and ecological degradation;

ii.     promote conservation; and

iii.    secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.[3]

South Africa is party to a number of multinational environmental agreements.  These include the United Nations Framework Convention on Climate Change (UNFCCC), which South Africa ratified in 1997; the Kyoto Protocol, which South Africa ratified in 2002; and the Paris Agreement on Climate Change, ratified by South Africa in 2016.[4]  In the 2009 Copenhagen Climate Change Conference, South Africa committed to reducing its GHG emissions by 34% below its current levels (see below) by 2020 and 42% below current levels by 2025, “with emissions peaking in 2020–2025, stabilizing in 2025–2035 and declining in absolute terms from around 2035.”[5]

As part of its plan to implement the environment clause of the Constitution and its obligations under international law, South Africa enacted the National Environmental Management: Air Quality Act in 2004.  The Act delegates a great deal of power to the executive branch to, among other things, put in place national policy and a regulatory framework for pollution prevention and the enhancement of air quality.

This report summarizes some of the key policy and regulatory documents issued for the purpose of implementing the Act and South Africa’s obligations under international law.   

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II. National Environmental Management: Air Quality Act

A. Delegated Powers

The Air Quality Act, which, among other things, seeks to impose “reasonable measures for the prevention of pollution” and national norms and standards to regulate air quality, accords the executive branch a great deal of national regulatory authority for purposes of realizing the Act’s objectives.  The executive branch, more specifically the Minister of Environmental Affairs, is mandated to establish a national framework for the effective implementation of the objectives of the Act, including

a. mechanisms, systems and procedures to attain compliance with ambient air quality standards;

b. mechanisms, systems and procedures to give effect to the Republic’s obligations in terms of international agreements;

c. national norms and standards for the control of emissions from point and non-point sources;

d. national norms and standards for air quality monitoring;

e. national norms and standards for air quality management planning;

f. national norms and standards for air quality information management; and

g. any other matter which the Minister considers necessary for achieving the object of this Act.[6]

In addition to specific mandates stipulated in its different sections, the Act accords the Minister of Environmental Affairs the following general regulatory powers:

The Minister may make regulations that are not in conflict with this Act, regarding—

(a) any matter necessary to give effect to the Republic’s obligations in terms of an international agreement relating to air quality and climate change;

(aA) information relating to energy that is required for compiling atmospheric emissions;

(b) matters relating to environmental management co-operation agreements, to the extent that those agreements affect air quality;

(c) emissions, including the prohibition of specific emissions, from point, non-point and mobile sources of emissions, including motor vehicles;

(d) open fires and incinerators;

(e) ozone-depleting substances;

(f) codes of practice;

(g) records and returns;

(h) labelling;

(i) trading schemes;

(j) powers and duties of air quality officers;

(k) appeals against decisions of officials in the performance of their functions in terms of the regulations;

(l) incentives to encourage change in behaviour towards air pollution by all sectors in society;

(lA) the procedure and criteria to be followed in the determination of an administrative fine in terms of section 22A.

(m) requirements in respect of monitoring;

(n) the avoidance or reduction of harmful effects on air quality from activities not otherwise regulated in terms of this Act;

(o) any matter that may or must be prescribed in terms of this Act; or

(p)  any other matter necessary for the implementation or application of this Act.[7]

Regulations on these matters maybe issued to “restrict or prohibit any act, either absolutely or conditionally;” may be made applicable nationally, provincially, or target a specific area or category of areas; or may be applicable to all persons or certain categories of person.[8]  Such regulations may impose fines of up to South Africa Rand R5million (about US$418,578) and/or a maximum of five years in prison for first-time violators of its provisions and double the amount of fines and prison term for recidivists.[9]

In addition to the Ministry of Environmental Affairs, a number of other national departments are accorded jurisdiction in matters relating to management of atmospheric emissions. These include the Department of Energy, which is responsible for emissions resulting from the use of fossil fuels and the Department of Mineral Resources, which, among other matters, deals with emissions from mining haul roads and emissions from fires in working and abandoned coal mines.[10] 

B. 2012 National Framework for Air Quality Management

As noted above, the Air Quality Act mandates that the Minister Establish a National Framework for Air Quality Management, which must be reviewed at least every five years.[11]  The Minister issued a national framework in 2007, which was repealed and replaced by the 2012 National Framework for Air Quality Management (the National Framework).[12]  According to the Act, the National Framework “binds all organs of state in all spheres of government”[13] and “serves as a blueprint for air quality management.”[14]

C. Ambient Air Quality Standards

The Act mandates that the Minister identify substances in ambient air that present a threat to health or the environment and establish national standards for ambient air quality, including the permissible amount or concentration of each substance in ambient air.  The Minister is also authorized to impose national emissions standards for each substance.[15] 

In 2009, the Minister established national ambient air quality standards for seven different pollutants: sulfur dioxide (SO2), nitrogen dioxide (NO2), particulate matter (PM10), ozone (O3), benzene (C6H6), lead (Pb), and carbon monoxide (CO).[16]  For instance, the ambient air quality standards for ozone are as follows:

Averaging Period

Concentration

Frequency of Exceedence

Compliance Date

8 hours (running)

120 ug/m3 (61 ppb)

 

11

immediate

The reference method for the analysis of ozone shall be UV photometric method as described in SANS 13964

Source: National Ambient Air Quality Standards, G.G. No. 1210.

In 2012, the Minister issued national ambient air quality standards for particulate matter with an aerodynamic diameter of less than 2.5 microns (PM2.5).[17]  The standards are set as follows:

Averaging Period

Concentration

Frequency of Exceedence

Compliance Date

24 hours

65 ug/m3

4

Immediate‒31 December 2015

24 hours

40 ug/m3

4

1 January 2016‒31 December 2029

 

24 hours

25 ug/m3

4

1 January 2030

1 year

25 ug/m3

0

Immediate‒31 December 2015

1 year

20 ug/m3

0

1 January 2016‒31 December 2029

 

1 year

15 ug/m3

0

1 January 2030

The reference method for the determination of PM2.5 Fraction pf suspended particulate matter shall be EN 14907

Source: National Ambient Air Quality Standard for Particular Matter with Aerodynamic Diameter Less than 2.5 Micron Metres (PM2.5), G.N. 486.

D. Listed Activities and Minimum Emissions Standards

The Air Quality Act requires the Minister to issue a list of activities that he “reasonably believes have or may have a significant detrimental effect on the environment, including health, social conditions, economic conditions, ecological conditions and cultural heritage.”[18]  A person who wishes to engage in a listed activity cannot do so without first obtaining an atmospheric emission license.[19]  Among the items that an atmospheric emission license must include are “the maximum allowed amount, volume, emission rate or concentration of pollutants that may be discharged in the atmosphere . . . under normal working conditions and . . . normal start-up, maintenance and shutdown conditions,” as well as “point source emission measurement and reporting requirements.”[20]

In 2013, the Minister issued list of various activities and associated minimum emission standards.[21]  For instance, the emission standards for catalytic cracking units are set as follows:

Description:

Refinery catalytic cracking units

Application:

All installations.

Substance or mixture of substances

Plant status

mg/Nm3 under normal conditions of 10% O2,

273 Kelvin and 101.3 kPa.

Common name

Chemical symbol

Particulate matter

N/A

New

100

Existing

120

Oxides of nitrogen

NOX expressed as NO2

New

400

Existing

550

Sulphur dioxide

SO2

New

1500

Existing

3000

Source: National Environmental Management: Air Quality Act: List of Activities which Result in Atmospheric Emissions which have or may have a Significant Detrimental Effect on the Environment, including Health, Social Conditions, Economic Conditions, Ecological Conditions or Cultural Heritage, G.N. No. 893, Part 3 (Nov. 22, 2013).

E. Emission Standards for Controlled Emitters

The Act authorizes the Minister to declare “any appliance or activity” a “controlled emitter” if the appliance or activity results, or the Minister reasonably believes could result, “in atmospheric emissions which through ambient concentrations, bio-accumulation, deposition or any other way, present a threat to health or the environment.”[22]  A notice declaring an activity or an appliance to be a controlled emitter must “establish emission standards, which must include standards setting the permissible amount, volume, emission rate or concentration of any specified substance or mixture of substances that may be emitted from the controlled emitter.”[23]  The Act bars any person from selling or using an appliance or engaging in an activity declared as a controlled emitter unless the appliance or the activity meets the standards set by the Minister.[24]  

In 2015, the Minister issued a notice declaring all small-scale char and small-scale charcoal plants in the country to be controlled emitters and imposed emission limits.[25]  The limits are set as follows:

Description

The production of char or charcoal

Application

All small -scale char plant or small -scale charcoal plant.

Substance or mixture of substances

 

Plant status

Limit value

(dry mg/Nm3at

273K and

101.3kPa)

 

Common name

Chemical or Commonly-used symbol

Particulate Matter

PM

New

50

Existing

100

Polycyclic Aromatic Hydrocarbons

PAH

New

0.1

Existing

0.5

Source: Declaration of a Small-Scale Char and Small-Scale Charcoal Plants as Controlled Emitters and Establishment of Emission Standards § 7, G.N. 602 (Sept. 18, 2015).

F. Priority Air Pollutants

The Act permits the Minister to designate certain substances “priority air pollutants” and to require persons dealing with such substances to prepare, submit for approval, and implement pollution prevention plans.[26]  Such requirements must “contain a requirement that the person . . . monitors, evaluates and reports on the implementation of the pollution prevention plan.”[27]

In 2017, the Minister declared the following greenhouse gases to be priority pollutants: carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6).[28]  Persons engaged in the production processes listed in the declaration, including coal mining, cement production, and electricity production facilities, are required to submit pollution prevention plans to the Minister and must monitor, evaluate, and report on the implementation of such plans.[29]

G. National Atmospheric Emissions Inventory

In 2015, the Minister issued the National Atmospheric Reporting Regulations, the purpose of which is “to regulate reporting of data and information from an identified point, non-point and mobile sources of atmospheric emissions to an internet-based National Atmospheric Emissions Inventory System (NAEIS) towards the compilation of atmospheric emission inventories.”[30]  The Regulations create a classification for several emissions sources and data providers, and require persons identified as data providers to register on the NAEIS.[31]  Data providers are classified into four groups, all of which must submit annual reports: persons who engage in listed activities, controlled emitters, mines, and facilities identified under applicable municipal bylaws.[32]

H. Greenhouse Gas Emissions Reporting

In 2017, The Minister issued the National Greenhouse Gas Emissions Reporting Regulations, 2016.[33]  The purpose of the Regulations is to “to introduce a single national reporting system for the transparent reporting of greenhouse gas emissions.”[34]  Much like the National Atmospheric Reporting Regulations, these Regulations create categories of data providers and requires them to register and submit periodic reports.[35]

I. Phase-Out and Management of Ozone-Depleting Substances

In 2014, the Minister issued the Regulations Regarding the Phasing-out and Management of Ozone-Depleting Substances.[36]  Unless it is for a “critical use,” the Regulations bar anyone from “producing, importing, exporting, using or placing on the market” chlorofluorocarbons, bromochlorofluorocarbons, halons, carbon tetrachloride, 1,1,1-trichloroethane, hydrobromofluorocarbons, and bromochloromethane.[37]  They also prohibit the stockpiling of certain listed ozone-depleting substances and require persons who had already stockpiled such substances at the time of enactment of the Regulations to submit an abatement plan.[38]  In addition, the Regulations put in place a schedule for completely phasing out the importing of hydrochloroflourocarbons by 2040.[39]  

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III. Fuel Emission Standards

It appears that South Africa does not currently have vehicle CO2 emissions standards.[40]  However, South Africa does have what is known as an environmental levy “based on CO2 emissions of new motor vehicles imported into or manufactured” in the country.[41]  The CO2 emissions subject to the environmental levy are calculated as follows:

(a) using the CO2 emissions stated in the test report of the vehicle type obtained as prescribed in the rules; or

(b) if such report has not been obtained or is not submitted upon request to the Commissioner, by application of the following methods:

i. motor vehicles specified in item 151.01 –

(aa) if the engine capacity does not exceed 3 000 cm3 [cubic centimeters]: CO2 emissions (g/km) = 120 + (0.05 x engine capacity in cm3

(bb) if the engine capacity exceeds 3 000 cm3: CO2 emissions (g/km) = 175 + (0.05 x engine capacity in cm3)

ii.   motor vehicles specified in item 151.02 –
CO2 emissions (g/km) = 195 + (0,07 x engine capacity in cm3).[42]

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IV. Carbon Tax Bill

South Africa may soon impose a carbon tax on emissions. On December 14, 2017, the country’s National Treasury issued the second draft bill on carbon tax for public comment and introduction before Parliament.[43]  Based on the “polluter pays” principle, if enacted in its current form, the proposal would introduce a carbon tax in phases in which the rate would be set at R120 (about US$10) per metric ton of carbon dioxide above the tax-free allowances.[44]  The rate would increase every year parallel to consumer price inflation plus 2% up to December 31, 2022.[45]  After that, the rate would be determined by the amount of the consumer price inflation for the preceding tax year.[46]

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Prepared by Hanibal Goitom
Foreign Law Specialist
June 2018


 

[2] Department of Environmental Affairs, National Climate Change Response White Paper 26 (Oct. 12, 2011), https://www.environment.gov.za/sites/default/files/legislations/national_climatechange_response_whitepap er.pdf, archived at https://perma.cc/W6WQ-YGZZ.  

[3] S. Afr. Const., 1996, § 24, available on the South African government website, at https://www.gov.za/ documents/constitution/chapter-2-bill-rights#24, archived at https://perma.cc/YXV8-DLAZ.

[4] 2012 National Framework for Air Quality Management in the Republic of South Africa § 2.4 (Dec. 2012), available on the Centre for Environmental Rights website, at https://cer.org.za/wp-content/uploads/ 2013/12/Framework-for-Air-Quality-Management_new.pdf, archived at https://perma.cc/77YM-FD7T; Paul Herman, Parliament Ratifies Paris Climate Change Agreement, news24 (Nov. 1, 2016), https://www.news24.com/ Green/News/parliament-ratifies-paris-climate-change-agreement-20161101, archived at https://perma.cc/999V-DCPU

[5] Department of Environmental Affairs, National Climate Change Response White Paper, supra note 1, at 25.

[6] National Environmental Management: Air Quality Act 39 of 2004, § 7, 20 Statutes of the Republic of South Africa − Land (updated through 2016), available on the University of Pretoria website, at http://www.lawsofsouth africa.up.ac.za/index.php/browse/environment-and-conservation/national-environmental-management-air-quality-act-39-of-2004/act/39-of-2004-national-environmental-management-air-quality-act-19-may-2014-to-date-pdf/download, archived at https://perma.cc/ML2M-NSED.  

[7] National Environmental Management: Air Quality Act § 53.

[8] Id. § 55.

[9] Id

[10] National Framework for Air Quality Management in the Republic of South Africa, supra note 3, § 3.2.4. 

[11] National Environmental Management: Air Quality Act § 7.

[12] National Framework for Air Quality Management in the Republic of South Africa, supra note 3, § 7. 

[13] National Environmental Management: Air Quality Act § 7.

[14] National Framework for Air Quality Management in the Republic of South Africa, supra note 3, § 2.2.3.

[15] National Environmental Management: Air Quality Act § 9.

[17] National Environmental Management: Air Quality Act: National Ambient Air Quality Standard for Particular Matter with Aerodynamic Diameter Less than 2.5 Micron Metres (PM2.5), G.N. 486 (June 29, 2012), available on the Rhodes University website, at https://www.ru.ac.za/media/rhodesuniversity/content/environment/documents/NEMA Air Qual Act 2004.pdf, archived at https://perma.cc/5GCS-L4LE.

[18] National Environmental Management: Air Quality Act § 21.

[19] Id. § 22.

[20] Id. § 43.

[21] National Environmental Management: Air Quality Act: List of Activities which Result in Atmospheric Emissions which have or may have a Significant Detrimental Effect on the Environment, including Health, Social Conditions, Economic Conditions, Ecological Conditions or Cultural Heritage, G.N. No. 893 (Nov. 22, 2013), available at http://www.lawsofsouthafrica.up.ac.za/index.php/browse/environment-and-conservation/national-environmental-management-air-quality-act-39-of-2004/regulations-and-notices/39-of-2004-national-environmental-management-air-quality-act-regs-gn-893-12-jun-2015-to-date-pdf/download, archived at https://perma.cc/2T6D-5PBP

[22] National Environmental Management: Air Quality Act § 23.

[23] Id. § 24.

[24] Id. § 25.

[25] National Environmental Management: Air Quality Act 39 of 2004, Declaration of a Small-Scale Char and Small-Scale Charcoal Plants as Controlled Emitters and Establishment of Emission Standards, G.N. 602 (Sept. 18, 2015), available at http://www.lawsofsouthafrica.up.ac.za/index.php/browse/environment-and-conservation/national-environmental-management-air-quality-act-39-of-2004/regulations-and-notices/39-of-2004-national-environmental-management-air-quality-act-regs-gn-602-18-sep-2015-to-date-pdf/download, archived at https://perma.cc/TZ23-ZWET

[26] National Environmental Management: Air Quality Act § 29.

[27] Id.

[29] Id. §§ 3–5.

[30] National Environmental Management: Air Quality Act 39 of 2004, National Atmospheric Emissions Reporting Regulations, 2015, G.N. R283 (Apr. 2, 2015), https://www.gov.za/sites/www.gov.za/files/40762_gen275.pdf, archived at https://perma.cc/ZUY8-XJSU

[31] Id. §§ 1 & 5.

[32] Id. § 8 & Annexure 1.

[34] Id. § 2.

[35] Id. §§ 3, 4, 5 & 7.

[37] Id. § 3.

[38] Id. § 4.

[39] Id. § 5.

[40] Francisco Posada, ICCT, South Africa’s New Passenger Vehicle CO2 Emission Standards: Baseline Determination and Benefits Assessment 13 (Jan. 2018), https://www.theicct.org/sites/default/files/publications/ South-Africa-PV-emission-stds_ICCT-White-Paper_17012018_vF.pdf, archived at https://perma.cc/9E65-RFKG

[41] Karin Lehmann, South Africa’s Climate Change Commitments and Regulatory Response Potential, in Climate Change: Law and Governance in South Africa 8-1, 8-14 (Tracy-Lynn Humby et al. eds., 1st ed. 2016).

[42] Customs and Excise Act 91 of 1964, Schedule 1, Part 3, Section D, Note 5(a)–(b) (commencement Jan. 1, 1965),  http://www.sars.gov.za/AllDocs/LegalDoclib/SCEA1964/LAPD-LPrim-Tariff-2012-11 - Schedule No 1 Part 3D.pdf, archived at https://perma.cc/SD35-JSXD

[43] Media Statement, Department of National Treasury of Republic of South Africa, Release of Carbon Tax Bill for Introduction in Parliament and Public Comment (Dec. 14, 2017), http://www.treasury.gov.za/comm_media/ press/2017/2017121401 MEDIA STATEMENT - CARBON TAX.BILL.pdf, archived at https://perma.cc/5YXE-5KTT.  

[45] Id. § 5.

[46] Id.

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Last Updated: 06/29/2018