A Legal Opinion on Mitigation and Adaptation on Air Pollution Strategies for Local Governments in South Africa

Authors: Marjone Van Der Bank, C. M. Van Der Bank

Abstract:

This paper presents an overview of the foundation and evolution of environmental related problems in local governments with specific reference on air pollution in South Africa. Local government has a direct mandate in terms of the Constitution of the Republic of South Africa, 1996 (hereafter, the Constitution). This mandate to protect, fulfil, respect and promote the Bill of Rights by local governments in respect of the powers and functions creates confusion around the role of where a local government fits in, in addressing the problem of climate change in South Africa. A reflection of the evolving legislations, developments, and processes regarding climate change that shaped local government dispensation in South Africa is addressed by the notion of developmental local governments. This paper seeks to examine the advances for mitigation and adaptation regulation of air pollution and application in South Africa. This study involves a qualitative approach that will involve South African national legislation as well as an interpretation of international strategies. A literature review study was conducted to undertake the various aspects of law in order to support the argument undertaken of mitigation and adaptation strategies. The paper presents a detailed discussion of the current legislation and the position as it currently stands, as well as the relevant protections as outlined in the National Environmental Management Act and the National Environmental Management: Air Quality Act. It then proceeds to outline the responsibilities of local governments in South Africa to mitigate and adapt to air pollution strategies.

Keywords: Adaptation, climate change, disaster, local governments, mitigation.

Digital Object Identifier (DOI): doi.org/10.5281/zenodo.3566255

References:

[1] R. Chambers, and G.R. Conway, 1992.Sustainable Rural Livelihoods: Practical Concepts for the 21st Century in Institute of Development Studies Discussion Paper, issue 296 https:// www.ids.ac.uk/publications/sustainable-rural-livelihoods-practical-concepts-for-the-21st-century/Accessed on (date of use 19 April 2019).
[2] Constitution of the Republic of South Africa, 1996.
[3] Community Law Centre, 2007. Paper 1: Developmental Local Government: Determining Appropriate Functions and Powers. https://dullahomarinstitute.org.za/multilevel-govt/publications/de-visser-and-may-determining-appropriate-powers.pdf Accessed on (date of use 21 April 2019).
[4] De Visser, J 2008.Subsidiarity in the Constitution. https:// dullahomarinstitute.org.za/multilevel-govt/local-government-bulletin/ volume-10-issue-1-february-march-2008/vol-10-no-1-subsidiarity-in-the-constitution.pdf. Accessed on (date of use 24 April 2019).
[5] Disaster Management Act 57 of 2002.
[6] A.A. Du Plessis, 2009. Some comments on the sweet and bitter of the National Environmental Law Framework for ‘Local Environmental Governance’ in South African Public Law 56-96.
[7] J.C. Engelbrecht, and I.J. Van der Walt, 2007. A generic air quality management plan for Municipalities. In Clean Air Journal Vol 16 No 1 1-11.
[8] European Commission, 2019. Adaptation to Climate change. https://ec.europa.eu/clima/policies/adaptation_en Accessed on (date of use 25 April 2019).
[9] European Council, 2019. International agreements on climate action. https://www.consilium.europa.eu/en/policies/climate-change/international-agreements-climate-action/ Accessed on (date of use 20 April 2019).
[10] Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1998 (12) BCLR 1458 (CC).
[11] Greenpeace, 2019. IPCC Special Report on 1.5˚C and its implication for South Africa. https://www.greenpeace.org/archive-africa/en/Press-Centre-Hub/IPCC-Special-Report-on-15C-and-its-implications-for-South-Africa/ Accessed on (date of use 26 April 2019).
[12] L. Joubert, 2018. Ecological collapse or catastrophe. http:// southafrica.co.za/atmospheric-system-pollution.html Accessed on (date of use 16 April 2019).
[13] M. Kidd, 2011. Environmental Law 2nd Edt. Juta Cape Town.
[14] Local Government: Municipal Systems Act 32 of 2000
[15] J.W.S. Longhurst, C.I. Beattie, T.J Chatterton, D.M. Elom, N.S. Leksomono, and N.K. Woodfield, 2004. A criticalevaluation of the local air quality management framework in Great Britain. Is it a transferable process? Southampton and Boston: WIT Press.
[16] S. Myeza, N.Oettle, and A. Afrika, 2016. Climate proofing small-scalerooibos production. https://www.wits.ac.za/media/wits-university/ research/gcsri/documents/Climate%20proofing%20small-scale%20rooibos%20production.pdf. Accessed on (date od use 20 April 2019).
[17] NASA, 2019. The effect of Climate Change. https:// climate.nasa.gov/effects/ Accessed on (date of use 20 April 2019)
[18] National Climate Change Response White Paper, 2011.
[19] National Environmental Management Act 107 of 1998
[20] National Environmental Management: Air QualityAct 39 of 2004
[21] J. Nel and W. Du Plessis 2001. An Evaluation of NEMA based on a General Framework for Environmental Framework Legislation in SAJELP 1-38.
[22] Ocean Portal Team, 2018. Ocean Acidification. https://ocean.si.edu/ ocean-life/invertebrates/ocean-acidification Accessed on (date of use 29 April 2019)
[23] A.B. Rumsey, and N.D. King, 2009. Climate Change: Impacts, Adaptation, and Mitigation Threats and Opportunities in Strydom, H.A. and King, N.D eds Environmental Management in South Africa Juta Cape Town 1048-1077.
[24] United Nations, 2019. UN Environment takes a multifaceted approach towards climate change mitigation in its efforts to help countries move towards climate-resilient and lowe missions strategies. https://www.unenvironment.org/explore-topics/climate-change/what-we-do/mitigation Accessed on (date of use 24 April 2019)
[25] United Nations, 2019. Climate adaptation. https://www. unenvironment.org/explore-topics/climate-change/what-we-do/climate-adaptation Accessed on (date of use 24 April 2019)
[26] United States Department of Agriculture, 2010. Forests Absorb Carbon Dioxide. https://www.nrs.fs.fed.us/niacs/forests/ Accessed on (date of use 29 April 2019).
[27] White Paper on Local Government, 1998.
[28] WWF, 2019. 10 Things you can do to help save our planet. https:// www.wwf.org.uk/thingsyoucando Accessed on (date of use 20 April 2019)
[29] WWF, 2019. The impacts of Climate Change on Wildlife. https:// www.wwf.org.uk/effectsofclimatechange Accessed on (date of use 20 April 2019)