SUBMISSIONS ON SOUTH AFRICA’S NEGOTIATING POSITION FOR COP21: Climate change is an environmental rights issue Public hearings on climate change hosted by the Portfolio Committee on Environmental Affairs 23 September 2015

Overview 1.South Africa’s negotiating position at COP 21 should give effect to the Constitutional obligations as expressed in section 24 of the Constitution, with special regard to human health. 2.Taking adequate action to mitigate our contribution to global warming is not only a matter of policy, but a Constitutional obligation. 3.South Africa is currently making long-term decisions that will make it impossible to meet even the proposed targets. 4.For effective climate change mitigation, we need transparent monitoring and reporting by emitters, and effective compliance monitoring and enforcement.

1. Climate change & the right to a healthy environment South Africa’s negotiating position at COP 21 should give effect to the Constitutional obligations as expressed in section 24 of the Constitution, with special regard to human health SECTION 24: “Everyone 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…”

1. Climate change & the right to a healthy environment (2) Industrial activities such as mining and coal-fired power generation threaten human health. Taking steps to mitigate climate change and to move away from fossil fuels can have enormous health benefits, and strengthen government’s efforts to realise section 24.

1. Climate change & the right to a healthy environment (3) The Lancet Commission on Health and Climate Change 2015 Report : “The central finding from the Commission’s work is that tackling climate change could be the greatest global health opportunity of the 21st century.” The Commission recommends that over the next 5 years, governments protect cardiovascular and respiratory health by ensuring a rapid phase out of coal from the global energy mix. “With an increase to 36% renewables in global final energy consumption by 2030 (from 18% in 2010) … up to $230 billion of external health costs annually [could be avoided] by 2030.”

2. Mitigation is a Constitutional obligation Taking adequate action to mitigate our contribution to global warming is not only a matter of policy, but a Constitutional obligation. Taking steps to guard against the harmful impacts which climate change has on our environment and human health is required by, inter alia: the Constitution of RSA, 1996; and the duty of care contained section 28 of the National Environmental Management Act, 1998

Urgenda v the State of the Netherlands, 2015 Case no C/09/ / HA ZA , 24 June The Hague District Court: Dutch government’s plans to cut emissions by just % - compared to 1990 levels - by 2020 were unlawful, given the scale of the threat posed by climate change and the significant potential for damage to Dutch citizens. Article 21 of the Dutch Constitution – Duty of Care The Court ordered the State to limit the joint volume of Dutch annual greenhouse gas emissions, by at least 25% at the end of 2020 compared to the level of the year 1990.

Urgenda v the State of the Netherlands, 2015 “Since it is an established fact that the current global emissions and reduction targets of the signatories to the UN Climate Change Convention are insufficient to realise the 2° target and therefore the chances of dangerous climate change should be considered as very high … the State is obliged to take measures in its own territory to prevent dangerous climate change.” “Due to the severity of the consequences of climate change and the great risk of hazardous climate change occurring – without mitigating measures – the court concludes that the State has a duty of care to take mitigation measures. ”

2. Mitigation is a Constitutional obligation (2) This case confirms that effective and adequate climate change mitigation measures are not just a matter of policy, or a matter to be negotiated with GHG emitters, but in fact a legal – and Constitutional - obligation on the state. Committing to targets that are lower than science requires does not discharge the state’s Constitutional duties to implement reduction measures.

3. Decisions taken now must take climate change into account South Africa is currently making decisions that will make it impossible to meet even the proposed targets to combat climate change. National Climate Change Response White Paper (NCCRWP): “Government further recognises that an effective response to climate change requires national policy to ensure a coordinated, coherent, efficient and effective response to the global challenge of climate change.” (own underlining)

3. Decisions taken now must take climate change into account (2) Proceeding with coal-based energy plans directly contradicts the need for an effective response to climate change. Coal-fired power generation is highly water-intensive and impacts significantly on human health. Impacts of climate change will exacerbate water scarcity and have further impacts on human health. Ongoing investment in coal-fired power contradicts the objectives of mitigation and adaptation contained in national policy and SA’s negotiating position for COP21.

3. Decisions taken now must take climate change into account (3) Upcoming Coal-fired Power Stations in SA: Medupi (4800MW); and Kusile (4800 MW) At least 9 Coal Baseload Independent Power Producer Projects have applied for EIAs. 3 environmental authorisations already granted (Thabametsi, Boikarabelo and Khanyisa)

PROJECTSIZELOCATION THABAMETSI1200MWLEPHALALE, LIMPOPO KIPOWER600MWDELMAS, MPUMALANGA VEDANTA600MWLEPHALALE, LIMPOPO TRANSALLOYS150MWEMALAHLENI, MPUMALANGA UMBANI600MWKRIEL, MPUMALANGA COLENSO1050MWCOLENSO, KZN WATERBERG POWER CO600MWLEPHALALE, LIMPOPO BOIKARABELO260MWLEPHALALE, LIMPOPO KHANYISA450MWEMALAHLENI, MPUMALANGA PROJECTS UNDER THE COAL BASELOAD INDEPENDENT POWER PRODUCER PROCUREMENT PROGRAMME

3. Decisions taken now must take climate change into account (4) SA is expressing international and domestic commitments to fight climate change whilst simultaneously adopting policies and making decisions which defeat these objectives. Decisions about energy are being made with no regard for Constitutional obligations: transparency; consultation with affected parties; the right to an environment that is not harmful to health and well-being; and the rights of access to drinking water.

4. Transparent monitoring and effective CM&E For effective climate change mitigation, we need transparent monitoring and reporting by emitters, and effective compliance monitoring and enforcement. Effective regulation of GHG emissions requires: Enforceable emission reductions; Transparent and effective monitoring and reporting by emitters; and Effective compliance monitoring and reporting by regulators Draft National Greenhouse Gas Reporting Regulations show little ambition for transparency of data on GHG emissions.

Conclusion S24 of the Constitution requires SA to take adequate steps to reduce GHG emissions, and to adapt to climate change in a way that protects our environmental rights. This is not a matter of policy, or negotiation, and these obligations remain no matter what we propose or what is agreed in Paris.

Conclusion (2) To give effect to our Constitutional obligations, we need: 1.a comprehensive, transparent, consultative, comparative evaluation of different energy options and their implications for: water resources; human health; costs to the state; the distribution of costs and benefits; and the probable return on energy invested 2.Decision-making that cannot compromise our future ability to comply with section 24; and

Conclusion (3) 3.Proper regulation of GHG emissions: meaningful, clear obligations to reduce emissions; transparency within government and industry; strict, well-resourced compliance monitoring and enforcement; and effective co-operative governance We call on this Committee to ensure that government complies with its Constitutional obligations.

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