Climate Resilient Development at the Coalface of South Africa s Continuing Co-Environmental Governance Challenge

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1 Climate Resilient Development at the Coalface of South Africa s Continuing Co-Environmental Governance Challenge Prof Anél du Plessis Faculty of Law Mr Reece Alberts Centre for Environmental Management

2 Climate resilient development and large- scale infrastructural development: does SA s exis@ng co- environmental governance regime offer adequate mechanisms for resolving the tension?

3 Ques9on part of 2 nd phase development of SA environmental law where, following ini9al legal design and reconstruc9on of legal instrumenta9on and laws (1996 to date), focus increasingly falls on refinement of interrela@onship between environmental law and environmental governance which entails evalua9on and modifica9on of actual opera9on and tangible impact of environmental law.policy.

4 OUTLINE Contemporary metaphor for SD: climate resilient development Anomaly of fast- tracked large scale infrastructural development (LSID) Co- environmental governance in SA (COEG) Exis9ng legal framework Recent law and policy trends Climate Change White Paper (2011) DraW Infrastructure Bill (2013) Inherent tension between COEG and LSID decision- making in public sector Medupi Power as case in point not Medupi- bashing, however Features and elements: effec9ve COEG Observa9ons and recommenda9ons

5 CLIMATE RESILIENT DEVELOPMENT: CONTEMPORARY METAPHOR Since adop9on of cons9tu9onal environmental right: SD gained prominence in SA Over past 2 decades infiltrated framework environmental and sector specific environmental legisla9on including substan9ve regulatory instruments e.g. standards, permits, policies etc Na@onal Climate Change Response White Paper adopted to date most authorita9ve policy on country s climate change posi9on and objec9ves Does not ar9ficially dis9nguish between mi9ga9on efforts and adapta9on strategies Aims at climate resilient development (CRD)

6 CLIMATE RESILIENT DEVELOPMENT All interventions mitigation, adaptation or both that contribute to a fair and effective global solution to the Careful climate reading change of CRD challenge suggests while simultaneously that what building is necessary and in maintaining SA to South Africa s international mi@gate and competitiveness, adapt to climate its social, change in principle not different environmental and economic resilience to the from what is needed for SD adverse effects of climate change, and any unintended consequences of global climate change response measures. - Climate Change Response White Paper,

7 SUSTAINABLE / CLIMATE RESILIENT DEVELOPMENT SD (by implica9on also CRD) remains plagued by inherent paradoxes and need for trade- offs between things that seem equally important and necessary

8 SD CONSTITUTES WICKED PROBLEM Ri^el & Weber (1973)

9 As a wicked' problem sustainable development plays out in many contexts..

10 Large scale infrastructural development As with other developing countries, for SA to progress and for socio- economic condi9ons to improve, large scale industrial and infrastructural development projects unavoidable Perceived in some instances to be necessary for strengthening of human adap9ve capacity But, raises concern about inter alia cumula9ve impact of developments on non- economic resources (e.g natural, cultural)

11 Large scale infrastructural development Pragma9c approach to SD dictates that typically development projects demand trade- offs to be made in planning phase and accompanying decision- making between sustainability interests Project planning (e.g. issue iden9fica9on) and accompanying decision- making (e.g. authorisa9ons) involve a range of different governance actors:

12 decision- makers GOVERNMENT FUNDERS COMMUNITY THE DEVELOPMENT SOCs OTHERS INDUSTRY

13 Public (government) one of a range of different types of governance actors (in understanding of new environmental governance / global environmental governance etc.)

14 public decision- makers (i.e. government) DME DOL DTI DEP PUBLIC WORKS LA S The Development DEA DWA NNR DAFF NERSA

15 MEDUPI - CASE.

16 Medupi One of largest coal fired power sta9ons in SA To become 4 th largest coal fired power sta9on in the world Largest contract signed by Eskom in its 84 year history for boilers and turbines Approved in 2006 by DEA & NERSA despite: SA s CO 2 reduc9on pledge Express commitments to expansion of renewables Wide- spread academic and public outcry Approved and constructed as part of Eskom s new build - strategy to meet increasing energy demands with a Capex budget of ZAR 385 billion Envisaged that Medupi along with other new build projects (Kusile and Ingula) will add MW to countries energy grid

17 Medupi Building in process will use supercri9cal technology and Flue Gas Desulphurisa9on pollu9on abatement Will eventually require (along with Kusile) close to 17 million tons of coal per year to be produced by new coal mining ventures Highly water intensive high quality water to be piped in from other catchments in different parts of SA Immediate Waterberg area experiences severe water shortages In general, water unavoidable Direct impact on surrounding agricultural and soil quality scien9fic studies confirm (Ashton et al CSIR etc.)

18 Medupi Controversy surrounding government s approval has several dimensions: one of which relates to intergovernmental decision making and coopera@ve environmental government Key concerns: Medupi required significant expansion of new and exis9ng coal mines in areas of the facili9es Facili9es to increase SA s coal consump9on by roughly 10% of the country s remaining coal reserves Coal combus9on processes and associated coal mining ac9vi9es incidental to facili9es raise serious concerns about: cumula9ve impacts: water quality, air quality and health and environmental impacts climate mi9ga9on efforts World Bank approval despite subsequent objec9ve reports having revealed discrepancies.

19 Medupi Blignaut (2012: p ) contends that considera9on of the economics would have revealed that although ini9ally more costly, renewables would have in the long run been the be^er op9on Damage costs of Medupi would have covered expenses of renewables within a period of less than 20 years versus Medupi s life expectancy of 50 years

20 Medupi Considera9on of Medupi project reveals: All requisite environmental authorisa9on processes were followed and all authorisa9ons granted EMP is in place ECO Team appointed along with an EMC (public, private and NGO actors) However concerns exist about: EIA being only environmental tool used to determine impacts: known to have it s limita9ons i.e. project specific Careful considera9on and alignment of other policy objec9ves

21 CO- ENVIRONMENTAL GOVERNANCE IN SA (COEG) Ch 3 of Cons.tu.on (1996) principles for coopera9ve government and intergovernmental rela9ons applicable inter alia where collec9ve decision- making is required Inter- governmental Rela@ons Framework Act 13 of 2005 (IGRFA) Provides for coordina@ng intergovernmental structures na9onal, provincial and local sphere other intergovernmental mechanisms e.g intergovernmental rela9ons protocols for mul9- sector; mul9- stakeholder development projects (s 34) Compulsory for programmes or projects regarded as of na9onal priority - meaning unclear regula9on of intergovernmental rela@ons and seglement of intergovernmental disputes IGRFA Guidelines

22 CO- ENVIRONMENTAL GOVERNANCE IN SA (COEG) Environmental Management Act 107 of 1998 (Ch 3) Provides for environmental implementa9on and management plans as well as their alignment Specific environmental management acts Some explicitly men9on that municipali9es, provincial and na9onal authori9es should join forces in and across three spheres in pursuing these laws and policies and sector specific objec9ves E.g: Na9onal Environmental Management: Integrated Coastal Management Act (2008) Na9onal Environmental Management: Waste Act (2008)

23 THE STATUS QUO AND THE CONCERNS Important for current purposes: Explicit in law of need for intergovernmental Resulted over 9me in and statutory framework for structures to bring decision- makers and sectors together for decision- making in the planning phase Law commands government porrolios to get together when mul9- sectoral and mul9- stakeholder decisions are required to be taken Lack of substan9ve guidance on: Method of actual decision- making Trade- offs to be made between and SD interests once decision- makers get together Wickedness of sustainability arguably most prominently based in the method of decision- making

24 NEW MECHANISMS AND TRENDS FOR COOPERATIVE ENVIRONMENTAL GOVERNANCE Na9onal Climate Change Response White Paper (2011) Provides for seemingly new structures and mechanisms for coopera9on in decision making e.g. a) Commigee on Climate Change (NCC) Consults with stakeholders from key sectors that impact on/being impacted by climate change. Fulfils a communica9on role, but has no statutory powers and responsibili9es with which it can seek CEG. b) Na@onal Economic Development and Labour Council (NEDLAC) Serves as a forum: government, business, labour and community groupings on na9onal level to ensure climate change policy implementa9on is balanced and meets needs of all sectors

25 Climate Change Response Strategy NCC and NEDLAC are not decision- making bodies per se No responsibility for approval or hal9ng of developments Thus real contribu9on to coopera9ve governance is limited, despite the sustainability angle adopted

26 NEW MECHANISMS AND TRENDS FOR COOPERATIVE ENVIRONMENTAL GOVERNANCE Drah Infrastructure Development Bill 2013 (Wolf in sheep s clothing.)

27 DIDB Bill in principle directed at fast tracking strategic infrastructure development; objects: Iden9fica9on and implementa9on of SIPs (strategic infrastructure projects): significant economic or social importance Will have significant impact on inter- governmental environmental decision making Establishes various commi^ees (including steering commi^ees) for alignment and coordina9on of SIP authorisa9on along all spheres and line func9onaries of government Environment, water, land affairs, energy, economics etc.

28 DIDB Main purpose of SIP steering commi^ees: Iden9fy ways and means to give effect in most effec9ve and expedi9ous manner to implement SIPs Ensure prompt compliance with all the laws Serve as a one stop shop where any ma^er rela9ng to the implementa9on of the SIP can be resolved. DIDB calls for avoidance of intergovernmental dispute SD and CRD considera9ons?

29 DIDB May be contended that authori9es considering infrastructure need not take cognisance of SD / CRD.. Short sighted approach Counter- intui9ve of governments cons9tu9onal environmental mandate and commitment to climate resilient development

30 RECENT COEG TRENDS IN POLICY / LEGAL DEVELOPMENTS Government con9nues to design bodies / structures for collec@ve decision- making and to demand alignment and coordina9on of policies, laws and programmes. S9ll absent from recent policies / proposed laws is guidelines for actual decision making Guidelines to, for example, direct way in which several ministers for example eventually make a decision on approval of large infrastructural projects

31 FEATURES & ELEMENTS: EFFECTIVE COEG Effec9ve co- environmental governance refers, inter alia, to government dispensa9on where: a) suitable structures principles mechanisms exist for making decisions that are able to limit nega9ve consequences of, and to adopt best prac9cable solu9ons despite decision- makers being faced by a wicked problem

32 FEATURES & ELEMENTS: EFFECTIVE COEG b) Mul9ple decision- makers including but not limited to, government decision- makers, with different agendas, ideals and mandates able to overcome problems created by, inter alia: Separate training of experts (decision- makers and those for decision- makers) in three fields of sustainability Habitual of data separately under the three SD categories social, economic and environmental Common division of government mandates into separate social, economic and ecological porrolios

33 FEATURES & ELEMENTS: EFFECTIVE COEG Review of literature in areas of planning, geography and policy management suggests key benchmarks (framed as ques9ons) and markers exist on basis of which COG effec9veness may be evaluated: Are all decision- makers around one table and can the be sustained? Is there an integrated understanding of sustainability among all decision- makers? Do decisions build upon inclusive sustainability assessments that recognise and respect

34 FEATURES & ELEMENTS: EFFECTIVE COEG Establish explicit basic rules that discourage trade- offs to the extent possible while guiding decision- making on those that are unavoidable Provide means of combining, specifying and complemen9ng generic criteria and trade- off rules with a^en9on to case and context specific concerns etc. Provide integra9ve, sustainability- centred guidance, methods and tools to help meet key prac9cal demands of assessment and decision- making

35 OBSERVATIONS & RECOMMENDATIONS Pressing need in SA for effec9ve coopera9ve environmental government given that 17 major SIPS already been earmarked for short; medium and long term in the DIDB (wolf in sheep s clothes.) Since 1996 SA law and policy con9nues to provide for coopera9ve environmental government mainly as far as it concerns structures and regula9on of inter- governmental rela9ons Persis9ng need for guidance for government in mul9- stakeholder decisions on how to take decisions that: jus9fiably cater for interconnectedness of sustainability interests transcend jurisdic9on of mul9ple governors / porrolios / organs of state

36 OBSERVATIONS & RECOMMENDATIONS Need for effec9ve coopera9ve government par9cularly necessary in planning phase: by the 9me approval of a decision is sought in Medupi- type developments, momentum of project too great and too much have been invested and too many expecta9ons have been raised which require too much poli9cal courage to go against forces of the day e.g energy demand

37 OBSERVATIONS & RECOMMENDATIONS Essen9ally we call for: interdisciplinary and mul9disciplinary research and design towards a set of concrete decision- making guidelines that build on basic principles in addi.on to structures and ad hoc mechanisms for mul9- stakeholder decisions in government regarding large- scale infrastructural development Set of guidelines for actual decision- making that are at a minimum: based on research that draws on natural science, decision- making theory, coopera@on theory and that complements design and objec@ves of environmental law based on an integrated approach to sustainability that strengthens public trusteeship role of government building on inclusive and comprehensive sustainability assessment in planning phase as opposed to project specific, geographically limited environmental impact assessment

38 We thank you