Junior Professional Legal and Regulatory Group: Session 4 Lecture and Tutorial
Session 4: Overview of CCS Implementation in South Africa
Tuesday 1 April 2014, 0900 AEDT
Junior Professional Legal and Regulatory Tutorial Group
The Junior Professional Legal and Regulatory Tutorial Group is a Global CCS
Institute learning opportunity, presented by leading experts, that focuses on
developing the CCS legal and regulatory knowledge of junior professionals, recent
graduates and students.
Public Engagement RCSP Project Development and the Legal
Issues, Class VI permitting issues
The EU CCS Directive - three different approaches: the UK, the
Netherlands and Norway
Session 4 Andrew Gilder Overview of CCS Implementation in South Africa
Craig Hart is the ENN Group Associate Professor at Renmin
University of China's School of Environment and Natural
Resources and a Lecturer at Johns Hopkins University's
Energy Policy and Climate program. As a practicing attorney,
he has over 15 years' experience practicing law in the fields of
project finance, carbon finance and capital markets. He has
represented project developers in the United States geologic
sequestration demonstration projects, in China on Ingtegrated
Gasification Combined Cycle (IGCC) power projects under
China's 863 Program, and has advised industry groups and
international organizations on CCS policy and regulation in
the United States and Asia. He is currently conducting
separate studies of CCS regulation for Asia-Pacific Economic
Cooperation (APEC) and the Asian Development Bank
covering nine developing countries. He holds a PhD from the
Massachusetts Institute of Technology and a JD from the
University of California at Berkeley.
Pamela Tomski is the Senior Advisor, Policy and Regulatory –
Americas at the Global CCS Institute. She has over 15 years'
experience working globally on various aspects of carbon capture
and storage (CCS) technologies from building research,
development, and demonstration collaborations to education and
capacity building, regulatory frameworks, and policy and market
development. She is Founder & Director of the Research
Experience in Carbon Sequestration (RECS) program, the premier
US CCS education and training experience and career network for
young professionals; Advisory Board Member of the Southeast
Carbon Sequestration Technology Training Program, and CCUS
Research Coordination Network. Pamela has been active with the
US regional carbon sequestration partnerships, and served as
Director of Regulatory Compliance, Education and Outreach in the
Big Sky region.
She is also a member of the Carbon Sequestration Leadership Forum (CSLF) CCS Academic Task
Force, an expert peer reviewer for the International Energy Agency (IEA) Greenhouse Gas Technologies
Conference, and stakeholder to the IEA Clean Coal Centre. Pamela serves as a Senior Fellow at the
Atlantic Council, a Washington, DC-based think tank, with a focus on clean energy technologies,
including advanced fossil energy systems and CCS. She is an Adjunct Professor at Tuskegee University,
and Advisor to the Inter-University Student Initiative in Carbon Sequestration.
Andrew Gilder is a senior associate at ENSafrica
(www.ensafrica.com) and has 14 years’
experience. He practices as an attorney in the
environmental law department and specialises in
carbon markets and climate change law and policy,
including law and policy applicable to Carbon
Capture and Storage (CCS) projects.
Andrew’s general practice experience expands
over African and European jurisdictions and
includes providing regulatory and transactional
advice to industries, foreign embassies and
municipalities on the implementation of greenhouse
gas mitigation projects and programmes, as well as
transactional advice to commercial banks intent on
concluding deals in the international carbon market.
His experience further extends to climate change strategic guidance to businesses and
advice on climate change-related policy development, particularly CCS policy, to organs of
We will collect questions during
Your tutors will pose these
questions to the lecturer once
the lecture has concluded.
Please submit your questions
directly into the GoToWebinar
The webinar will start shortly.
Overview of the status of CCS implementation
in South Africa with particular reference to the
evolving policy and legal regime
Global CCS Institute, CCS legal tutorials
Session 4: CCS: toward a legal and regulatory regime in
31 March / 1 April 2014
Andrew Gilder – ENS Senior Associate
who is ENSafrica?
• ENSafrica (Edward Nathan Sonnenbergs) is Africa’s largest law
• The firm benchmarks itself according to international standards
whilst retaining a uniquely African focus, making it well-equipped
to advise clients wherever they may choose to do business.
• ENS currently has nearly 600 practitioners and was established
over 100 years ago, making it one of the oldest full-service law firms in
• ENSafrica's offering to clients is unique, in that the firm is focussed
• By the firm operating as "one team" which is fully integrated across
African borders, ENS offers clients quality, cost-effective legal
advice wherever they choose to do business on the continent
the firm has been described as:
• ―a top-tier firm” , ―absolutely outstanding‖ and ―on a par with top
international firms‖ Chambers and Partners Global Guide 2013
• ―a good firm with a great client base‖, ―a consistent player,‖ with
―excellent lawyers‖ IFLR1000 2013
• ―lateral thinkers‖ and ―exceptionally thorough and hardworking, with
excellent depth of experience‖ Legal 500 2012
• Offices in:
– South Africa (Johannesburg, Cape Town, Durban, Stellenbosch,
CCS in South Africa
• 2008: (then) Department of Environmental Affairs and Tourism – Long
Term Mitigation Strategy Scenarios which describes a number of
actions to be taken to mitigate South Africa’s greenhouse emissions
• CCS is one of the alternative interventions proposed to reach this
• Since then a number of developments with regard to CCS (in South
relative contributions of different fuel types to primary energy
predominance of coal in electricity generation
contributions of different sectors to greenhouse gas emissions
current / pending fossil fuel build
– Medupi Power Station (super critical): 4800MW installed capacity
(anticipated to be fourth largest coal fired power station, globally).
– Kusile Power Station (super critical): 5400MW installed capacity
(anticipated to be third largest coal fired power station, globally:
36.8 million tonnes of greenhouse gas emissions).
– At least two other coal fired stations are anticipated to be built.
• Waterberg coal deposit:
– 40% of South Africa’s coal reserves.
– 50 billions tonnes.
– 200 years of exploitation at current rates.
• Environmental authorisation (Record of Decision) for Project
Reference 12/12/20/87: construction of the Eskom Generation Project
5400MW Coal-Fired Power Station, Witbank (Kusile).
• Specific condition under the heading ―air quality abatement‖, which
– that end of pipe measures must be taken in respect of CO2
– which ―must include…carbon capture readiness‖
– the further obligation that the applicant for the authorisation
(Eskom) is required to submit ―…a report detailing the preferred
technology, for approval, before proceeding with construction‖.
CCS milestones (1) - SACCCS
• Establishment of the South African Centre for Carbon Capture and
• Purpose: to develop human capacity and technical knowhow as
pertains to CCS, in South Africa.
• Objectives: address a state of CCS country readiness, including:
– identification and characterisation of greenhouse gas sources
– identification and characterisation of geological storage sites
– research and development and adaptation of CCS technologies
for application in South Africa
– identification of regulatory gaps and providing recommendations
as to how these gaps should be addressed.
deep saline formation storage opportunities onshore and
offshore Mesozoic basins
CCS milestones (2)
• CCS Atlas – 1 October 2010
• Green Paper on South Africa’s National Climate Change Response
Strategy (October 2010)
• White Paper on South Africa’s National Climate Change Response
Strategy (November 2011):
– CCS named as one of South Africa’s Tear-term Priority Flagship
– CCS Flagship Programme led by the Department of Energy in
partnership with SACCCS
CCS milestones (3) & CCS roadmap
• October 2011:
– Minister of Energy announces the formation of an
Interdepartmental Task Team (IDTT) on CCS, with a special focus
on legal and regulatory aspects.
– Departments of Energy, Environmental Affairs, Mineral Resources,
Trade and Industries, Science and Technology, Transport and
legal and regulatory research and reporting
• A High Level Review of the Legal and Regulatory and Institutional
Framework for the Implementation of Carbon Capture and Storage in
South Africa (World Bank, 2010).
• Scoping Study for a CCS Test Injection (SACCCS, 2011)
• South Africa Europe Cooperation on CCS (Europeaid, 2012)
• South African CCS Country-Readiness Report (SACCCS, 2011)
• CCS Legal and Regulatory Framework Study (World Bank, 2013)
World Bank study - 2013
• Option One: regulate CCS in terms of the National Environmental
Management: Waste Act
• Option Two: regulate CCS in terms of the National Environmental
Management Act (NEMA) by amending the requirements for
environmental impact assessment (EIA) to include CCS as an activity
for which prior environmental authorisation and EIA is required
• Option Three: regulate CCS in terms of NEMA and the Mineral and
Petroleum Resources Development Act (MPRDA)
• Option Four: develop standalone legislation dedicated to CCS.
Pilot CO2 Storage Project (PCSP)
• Three phases:
– One: Exploration Phase
– Two: Development Phase?
– Three: Operational Phase – new regime?
– Exploration Phase
– Considering options in both the Zululand and the Outeniqua
Current legal & regulatory regime
issues that may impact the law to be applied
• The substance or form of substance that will be sequestered (super
• The person sequestering the substance
• The location of the sequestration site
• Transportation of the substance to the sequestration site
• Method elected to sequester the substance
• Duration that the substance will be sequestered
• The purposes for sequestering the substance, e.g., final disposal,
Enhanced Oil Recovery
• Liability for any damage caused if the substance escapes from the
reservoir into which it is placed – both long term implications and the
common law implications.
classification of CO2 in South African legal regime
• SANS 10228 classifies CO₂ as a so-called ―Class 2 dangerous good‖.
• Class 2 provides a listing or grouping of dangerous gases, determined
according to certain of their characteristics.
• CO₂ falls within Division 2.2 of Class 2: being a gas that is non-
flammable and non-toxic.
• Division 2.2 gases are those that should be transported at a pressure
of at least 280kPa, at a temperature of 20⁰C, or as a refrigerated
• These gases are also either asphyxiants (which is understood to be is
the position with CO2) or are oxidizing
MPRDA (option three)
• Currently the only statute in South African law that regulates
subsurface rights in any manner – deals only with extraction
• MPRDA was primarily developed to make provision for equitable
access to and sustainable development of the nation’s mineral and
• "mineral" is defined as: ―any substance, whether in solid, liquid or
gaseous form, occurring naturally in or on the earth or in or under
water and which was formed by or subjected to a geological process,
and includes sand, stone, rock, gravel, clay, soil and any mineral
occurring in residue stockpiles or in residue deposits, but excludes—
• (a) water, other than water taken from land or sea for the extraction of
any mineral from such water;
• (b) petroleum; or
• (c) peat‖
• How is South Africa approaching legislation and finance to provide
support to CCS in South Africa?
• As a developing country that does not have an obligation to reduce
greenhouse gas emissions, what strategies have been employed to
motivate public acceptance and industry action on CCS in South
• What kinds of regulatory issues specific to South Africa must be
overcome for any commercial project to proceed?
Environmental Law Department|
Johannesburg, South Africa
+27 11 269 7790