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Junior Professional Legal and Regulatory Group: Session 4 Lecture and Tutorial


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Junior Professional Legal and Regulatory Group: Session 4 Lecture and Tutorial

  1. 1. Session 4: Overview of CCS Implementation in South Africa Tuesday 1 April 2014, 0900 AEDT
  2. 2. 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. Session 1 Sallie Greenberg Public Engagement RCSP Project Development and the Legal Issues, Class VI permitting issues Session 2 Steve Carpenter ISO process Session 3 Diana Poputoaia The EU CCS Directive - three different approaches: the UK, the Netherlands and Norway Session 4 Andrew Gilder Overview of CCS Implementation in South Africa
  3. 3. Craig Hart 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.
  4. 4. Pamela Tomski 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.
  5. 5. Andrew Gilder Andrew Gilder is a senior associate at ENSafrica ( 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 state.
  6. 6. QUESTIONS  We will collect questions during the lecture.  Your tutors will pose these questions to the lecturer once the lecture has concluded.  Please submit your questions directly into the GoToWebinar control panel. The webinar will start shortly.
  7. 7. 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 South Africa 31 March / 1 April 2014 Andrew Gilder – ENS Senior Associate
  8. 8. who is ENSafrica? • ENSafrica (Edward Nathan Sonnenbergs) is Africa’s largest law firm. • 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 Africa. • ENSafrica's offering to clients is unique, in that the firm is focussed on Africa. • 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
  9. 9. 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, Alexandra, Gugulethu) – Uganda – Burundi – Rwanda – Mauritius
  10. 10. 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 by 2050 • CCS is one of the alternative interventions proposed to reach this objective ( • Since then a number of developments with regard to CCS (in South Africa): – policy – regulation, – technology – economics
  11. 11. relative contributions of different fuel types to primary energy
  12. 12. predominance of coal in electricity generation
  13. 13. contributions of different sectors to greenhouse gas emissions
  14. 14. current / pending fossil fuel build • Current: – Medupi Power Station (super critical): 4800MW installed capacity (anticipated to be fourth largest coal fired power station, globally). • Pending: – 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.
  15. 15. legal excursus • 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 requires: – 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‖.
  16. 16. CCS milestones (1) - SACCCS • Establishment of the South African Centre for Carbon Capture and Storage ( • 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.
  17. 17. deep saline formation storage opportunities onshore and offshore Mesozoic basins
  18. 18. 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 Programmes – CCS Flagship Programme led by the Department of Energy in partnership with SACCCS
  19. 19. 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 National Treasury
  20. 20. 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)
  21. 21. 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.
  22. 22. Pilot CO2 Storage Project (PCSP) • Three phases: – One: Exploration Phase – Two: Development Phase? – Three: Operational Phase – new regime? • Currently: – Exploration Phase – Considering options in both the Zululand and the Outeniqua Basins. Current legal & regulatory regime
  23. 23. issues that may impact the law to be applied • The substance or form of substance that will be sequestered (super critical CO2) • 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.
  24. 24. 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 liquid. • These gases are also either asphyxiants (which is understood to be is the position with CO2) or are oxidizing
  25. 25. 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 petroleum resources. • "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‖
  26. 26. questions posed • 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 Africa? • What kinds of regulatory issues specific to South Africa must be overcome for any commercial project to proceed?
  27. 27. questions? Andrew Gilder Environmental Law Department| Johannesburg, South Africa +27 11 269 7790
  28. 28. thank you
  29. 29. QUESTIONS / DISCUSSION Please submit your questions in English directly into the GoToWebinar control panel. The webinar will start shortly.
  30. 30. Tutorial Extranet Group: and-regulatory-group-2014