Transcript Realization of Substantive Environmental Rights

The Heat is On:
Local Government and Climate Resilient
Development in South Africa
Prof. Anél du Plessis
NMMU – November 2012
Faculty of Law North-West University, Potchefstroom
[email protected]
Outline
• Climate change – does it matter whether it matters?
• Meaning of climate change concepts from a law, policy
and governance perspective
• Where is South African policy heading?
• “Local” government and climate change as a “global”
agenda item
– Some of the links
– Some of the complexities
• Applicable SA law framework
• Status quo in local government
• Conclusion
Does Calls
it matter
whether
climate
in literature that the world stops
questioning
as a matter
of principle the
change
matters?
“existence” and “causes” of climate change
but instead
investsvisible
energyworld-wide
and money in the
• Environmental
change
visible occurring
in our
environments
• Some scepticism
and changes
questions
about
its causes across
and in scientifically sound modelling and
scientific disciplines
and sectors
projections on the changes to come.
• Questions about the scientific methodologies used to
generate knowledge about climate change
• Mixed messages
fromtoslow-to-react
governments
(e.g.
The world needs
look forward: whether
or
not Canada,
“climate change”
Australia,
USA) exists – we need to deal
with unsustainable life on earth.
• Yet, visible
signs in many parts of the world of climatic
Attempts to address “climate change” must be
related change
and resultant
impacts
on ecosystem
seen as attempts
to fast-track
the journey
services, resource
etc and, as a result, on
towardsavailability
sustainable development.
people
Meaning of the concepts
Mitigation
Adaptation
Requisite threshold:
“limiting the human
causes of climate
change
Adjustments
and reactions
asinmuch
andorashuman
soon as
natural
possible”in(Erens
S etto
al
systems
response
2009) climatic
actual or expected
stimuli and their effects
Monitoring and
assessment
measures
(Lin, J of
2009)
to reduce GHG emissions
(ICLEI CCPP)
National policy direction in SA
• SA is Non-Annex 1 country; non-binding obligations
• Part of BASIC / G4 countries – emerging geopolitical
alliance
• White Paper on Climate Change, 2011
• Focuses on “climate resilient development”:
Effective management of inevitable climate change
impacts through interventions that build and sustain SA’s
social, economic and environmental resilience and
capacity to respond
• Categorising responses as ‘adaptation’ or ‘mitigation’
obscures real and potential combined impact of responses
– “integrated strategic approach” (integration & alignment)
Why is responding to climate change
relevant for local government in SA?
Localised impacts of
climate change
“Developmental local
government” vis-a-vis
“service delivery arm
of government”
2011 White
Paper: CC
considerations to
be integrated in
IDPs and service
delivery
programmes
International
directions: ICLEI
CCCP Programme
etc.
Schedule 4B and 5B
of the Constitution
– items relevant for
CC – speak to
‘subsidiarity’
Municipalities have
legislative and
executive powers –
enable localised
responses
Role of LG in responding to climate change widely
recognised internationally (UN, UNFCCC, COP 1 +
etc) – but not well-defined!
Development opportunities for LG
• Addressing climate change need not stifle economic
growth; several opportunities for municipalities:
– Building a green economy locally
• Couple imperatives of economic development with low
carbon pathways
• Financial benefits from improved energy efficiency
• More business opportunities
• Creating more jobs etc.
– Attract more investment as environmentally
responsible ‘leaders’
– Overall economic benefits e.g. urban projects for CDM
credits
BUT ...
The “Complexity” factor
• One thing to acknowledge and call for role of LG in
addressing climate change; another to define it and make it
operational
• Known complexities:
– Many municipalities find themselves vulnerable and unstable in
relation to governance difficulties rather than resilient
– Several pockets of good practice and successful progress – yet
several municipalities cannot fulfil constitutionally entrenched
targets
– Rural / urban divide within “local government” complicates
consolidated approaches
The “Complexity” factor
–Growing number of (often unfunded) LG
mandates, functions and duties
–Costs & funding
–Politics in local government – vision “4” and
vision “voters”
–Legislative and structural fragmentation and
inefficiency within individual municipalities
– working in silos
The “Complexity” factor
• Complexities may easily degenerate vision and drive with respect to
CC and LG:
– As governor
To what extent is it (normatively
– As governed
speaking),
possible
for municipalities
– As responsible
for internal
governance
to contribute to ‘climate resilient
through
existing
• Mentioneddevelopment’
and other complexities
arethe
“real”
in SA and must be
seen in perspective and
to have
impact
legal
framework?
• Yet, focus of this presentation is not to be side-tracked by these
complexities (for the moment), but to ask in a very specific way and
considering the meaning of “climate resilient development” ....
Status Quo in law
Environmental Law
Local Government
Law
Constitution
Ss 24, 27
Constitution
Ch 7
NEMA
Systems Act
Sectoral &
other e-laws
Other LG
laws
Environmental law in summary
• ‘Framework’ law:
– Constitutional mandate to respond b.m.o positive
action to impacts and change affecting human
health and well-being – s 24 read with rights to life,
human dignity, equality etc.
– S 24 echoed in s 153(c) – municipalities must
respond to basic needs of people while promoting
social and economic development
– Environmentally relevant powers of municipalities:
air pollution, building regulations, municipal
planning, storm-water management, water and
sanitation, control of public nuisances etc.
Environmental law in summary
• ‘Framework’ law:
– NEMA
• National environmental management principles
applicable to all ‘organs of state’
–
–
–
–
–
Precautionary principle
Preventive principle
BPEO
Environmental justice
Discharge of global and international environmental
responsibilities in national interest
• EMCAs e.g. energy efficiency, recycling and reuse of
waste, green building etc.
• Cooperative environmental government structures
• Etc.
Environmental law in summary
• Specific and sector environmental laws:
– No ‘climate change law’
– SEMAs etc on biodiversity, protected areas, waste
management, coastal zone management, air
quality & disaster management
• Powers inherent to natural resources in ‘public
trust’
• Municipalities have licensing powers e.g air
quality (“implement SA’s obligations in respect of
international agreements”)
Environmental law in summary
• Municipalities may devise / participate in:
– strategic plans e.g. biodiversity management plan, water
services development plan, protected area management plan
etc.
– spatial plans and schemes
– programmes e.g. coastal management programmes
– frameworks e.g. disaster management frameworks
– intergovernmental structures e.g. national disaster
management advisory forum
Local government law in summary
• Constitutional objectives and powers aimed at
‘development’ vis-a-vis mere service delivery
• Mandate to provide ‘environmentally sustainable
services’ defined as to mean inter alia that risk of
harm to environment and to human health and
safety must be minimised to the extent reasonably
possible (Systems Act, s 1)
• Short, medium and long term strategic
‘development oriented planning’ – IDPs with SDFs
and sector plans
– SALGA aims at mainstreaming climate change in
LG via IDPs – new sector plan coming?
Provisions and instruments in law and
relevant for climate resilient
development:
Mandatory &
voluntary
planning
(strategic, spatial and
other types of planning)
Discretionary /
compulsory
institutional
set-up in &
involving
municipalities
Programmes
allowing for
innovation
Strategic
frameworks
What has thus far developed with what
we’ve got in SA law?
Case: eThekwini
Several climate change policies, projects, plans and
programmes since 2000 wrt mitigation and adaptation
-
-First GHG inventory completed in 2006
- Municipal Climate Protection Programme
established in 2004 to integrate CC issues into all
aspects of the municipality’s work
eThekwini
Headline Adaptation Strategy - highlighting some key interventions
required for adaptation in areas of human health, water, sanitation,
biodiversity, coastal zone, infrastructure, food security and agriculture,
strategic planning, LED and disaster management
-
- Carbon Storage and Sequestration Analysis
- Adoption of three sectoral municipal adaptation plans for water,
health and disaster management
- Computer based GIS Urban Integrated Assessment Tool to simulate,
evaluate and compare strategic plans and policies to inform future
planning
eThekwini
- Establishment of “Climate Protection”-Branch in municipality to
mainstream climate change into city’s planning and development
- GIS Computer Model “Sea-level Rise Viewer” to project sea-level
rise along the city’s coastline to assist with “Shoreline
SeveralPlans”
climate
related
developments
Management
andchange
“Municipal
Adaptation
Plans”
also in the cities of Johannesburg , Cape
-2011 – first “South Durban
Shoreline
Town
etc! Management Plan” – a
guiding framework to respond to the potential effects of seawater
inundation
< Mostly
programmatic
developments>
-First on
African continent:
Clean Development
Project (CDM
project): “Durban Landfill-gas-to-electricity”-project – collection
of gas, use of recovered gas to produce electricity for municipal
grid
Conclusion
• Climate change / change in the environment at
unprecedented rate has international arena devising new
policies and legal instruments
• It is happening with SA on board
• Implications for municipalities arise from:
– Climate / environmental change per se
– State authorities’ response b.m.o, inter alia, international law and
policy
– Fact that municipalities may / must respond and ensure
compliance through the use of its own executive and legislative
powers
Conclusion
• View: getting ‘sustainability’-thinking and action
• and ‘developmental local government’
• right at local level may go long way towards ‘climate
resilient development’
• SA’s national law and policy makers should avoid
further ‘strangulation of local government’
• Entire government must work towards integration
and alignment
• Existing laws do provide an enabling framework &
adequate flexibility for addressing CC – several
municipalities serve as example!
Thank you….