1 Betsill, M and Bulkeley, H “Transnational networks and global environmental governance: The cities for climate protection program” (2004) 48(2) International Studies Quarterly 471CrossRefGoogle Scholar at 477.

2 Richardson, BJ et al. “Introduction: Climate law and developing countries” in Richardson, BJ et al. (eds) Climate Law and Developing Countries: Legal and Policy Challenges for the World Economy (2009, Edward Elgar Publishing) 1CrossRefGoogle Scholar at 1.

3 See, among others, Intergovernmental Panel on Climate Change reports, available at: <http://www.ipcc.ch/publications_and_data/publications_and_data.shtml> (last accessed 25 August 2011) and the International Alliance of Research Universities synthesis report “Climate change: Global risks challenges and decisions” (March 2009), available at: <climatecongress.ku.dk/pdf/synthesisreport> (last accessed 25 August 2011).

4 See Our Common Future Conference Summary Report (2011, Volkswagen Stiftung and Stiftung Mercator GmbH) at 80–111, for example.

5 Soltau, FFairness in International Climate Change and Policy (2009, Cambridge University Press) at 21–132CrossRefGoogle Scholar.

6 Id at 27 and the UN Framework Convention on Climate Change (UNFCCC) “Database on local coping strategies”, available at: <http://maindb.unfccc.int/public/adaptation/> (last accessed 23 July 2011). For views on the impacts of climate change specifically on cities and urban areas, see UN Habitat Global Report on Human Settlements 2011 Cities and Climate: Policy Directions (abridged ed, 2011, Earthscan) at 20–25Google Scholar.

7 Burnell, PClimate Change and Democratisation: A Complex Relationship (2009, Heinrich Böll Stiftung) at 1–47Google Scholar.

8 Hurrell, A and Kingsbury, B “The international politics of the environment: An introduction” in Hurrell, A and Kingsbury, B (eds) The International Politics of the Environment: Actors, Interests, and Institutions (1992, Clarendon Press) 1 at 9–10Google Scholar.

9 UN Habitat Global Report on Human Settlements, above at note 6 at 8–10, highlights the role of international, national, state / provincial and local decision makers in addressing climate change.

10 South Africa's Climate Change Response Green Paper (2010) (the CCR Green Paper), available at: <http://www.climateresponse.co.za/resources> (last accessed 23 July 2011) at 4.

11 For a list of Annex 1 and non-Annex 1 countries, see UNFCCC “Parties and observers”, available at: <http://unfccc.int/parties_and_observers/items/2704.php> (last accessed 15 June 2011). Non-Annex 1 countries are mostly developing countries.

12 Government of the Republic of South Africa National Climate Change Response White Paper (2011), available at: <http://www.pmg.org.za/node/28739> (last accessed 4 April 2012).

13 See CCR Green Paper, above at note 10 at 4.

14 Rumsey, AB and King, ND “Climate change: Adaptation, and mitigation: Threats and opportunities” in Strydom, H and King, ND (eds) Fuggle and Rabie's Environmental Management in South Africa (2nd ed, 2009, Juta) 1048Google Scholar at 1048.

15 See “South Africa Millennium Development Goals country report 2010”, available at: <http://www.statssa.gov.za/news_archive/Docs/MDGR_2010.pdf> (last accessed 23 July 2011). See also CCR Green Paper, above at note 10 at 4–5.

16 Date of commencement 4 February 1997.

17 The Constitution, sec 40. The powers, functions, mandates, operational features of, and division of revenue between, national, provincial and local government are discussed in chapters 5, 6, 7 and 13 of the Constitution.

18 See id, sec 153 and sec B, para 1 of the White Paper on Local Government (9 March 1998) (the LG White Paper).

19 CDA Boerdery (Edms) Bpk and Others v the Nelson Mandela Metropolitan Municipality and Others 2007 (4) SA 276 (SCA) at para 37.

20 Steytler, N and De Visser, JLocal Government Law of South Africa (2007, LexisNexis) at 1–23Google Scholar. The objects, powers and functions of local government post-1996 are constitutionally entrenched in secs 152 and 156 of the Constitution. The case of Leon Joseph and Others v City of Johannesburg and Others CCT 43/09 2009 (ZACC) illustrates that the Constitutional Court regards the post-apartheid municipality to be a responsive “caretaker” at the local level.

21 Steytler, N “The strangulation of local government” (2008) 3 Journal of South African Law 518Google Scholar. See sec B of the LG White Paper, above at note 18, for a definition and description of the notion of “developmental local government”.

22 Sec B, para 1.4 of the LG White Paper, id (emphasis added).

23 The first conference of the parties of the UN Framework Convention on Climate Change was held in March 1995 in Berlin, Germany.

24 ICLEI “Local government climate roadmap”, available at: <http://www.iclei.org/index.php?id=1197> (last accessed 15 February 2014). Local authorities' involvement in the 17th conference of the parties resulted in the adoption of the Durban Adaptation Charter for Local Governments on 4 December 2011 on the occasion of the “Durban Local Government Convention: Adapting to a Changing Climate” (on file with the authors).

25 Center for Science in the Earth System (The Climate Impacts Group) Joint Institute for the Study of the Atmosphere and Ocean, University of Washington and King County Preparing for Climate Change: A Guidebook for Local, Regional, and State Governments (2007, The Climate Impacts Group and ICLEI – Local Governments for Sustainability) at 27Google Scholar.

26 Betsill, M and Bulkeley, H “Cities and the multilevel governance of global climate change” (2006)12 Global Governance 141Google Scholar at 143.

27 UN Earth Summit Agenda 21 adopted at the UN conference on environment and development held in Rio de Janeiro in 1992.

28 Betsill and Bulkeley “Cities and the multilevel governance”, above at note 26 at 143. See also See UN Habitat Global Report on Human Settlements, above at note 6.

29 This view is supported by, inter alia, the progressive approach of organized local government in South Africa and the initiatives that have already been taken at the local level. See South African Local Government Association (SALGA) Local Government Climate Change Discussion Document (2009). The city governments of Cape Town and Durban have for example initiated and continue to drive local climate projects that go far beyond the vaguely formulated objectives for local government in the national CCR White Paper, above at note 12.

30 Wold, C et al. Climate Change and the Law (2010, LexisNexis) at 1–28Google Scholar.

31 See National Treasury Department “Reducing green house gas emissions: The carbon tax option” (discussion paper for public comment, December 2010), available at: <http://www.treasury.gov.za/public%20comments/Discussion%20Paper%20Carbon%20Taxes%2081210.pdf> (last accessed 26 August 2011).

32 Joubert, L “Climate change our most pressing environmental issue” in Zipplies, R (ed) Bending the Curve (2008, Africa Geographic (Pty) Ltd) 40Google Scholar at 53.

33 Government of the Republic of South Africa “Background information and discussion document to facilitate the climate change policy engagement” (2010) at 4–5.

34 The Constitution, sec 151(3).

35 The scope of local government executive and legislative competence is covered in scheds 4(B) and 5(B) of the Constitution. These exclude additional areas of competence that may in terms of national or provincial law be delegated or assigned to municipalities.

36 Rumsey and King “Climate change”, above at note 14 at 1054–63.

37 UN Habitat Global Report on Human Settlements, above at note 6 at 19–25.

38 Rumsey and King “Climate change”, above at note 14 at 1069–71.

39 Dawson, B and Spannagle, MThe Complete Guide to Climate Change (2009, Routledge) at 278Google Scholar.

40 S Erens, J Verschuuren and K Bastmeijer “Adaptation to climate change to save biodiversity: Lessons learned from African and European experiences” in Richardson et al (eds) Climate Law and Developing Countries, above at note 2, 206 at 207.

41 ICLEI “CCP campaign”, available at: <http://www.iclei-europe.org/ccp> (last accessed 15 February 2014).

42 See ibid.

43 See also UN Habitat Global Report on Human Settlements, above at note 6 at 26–34.

44 Burnell Climate Change and Democratisation, above at note 7 at 10.

45 See J Lin “Supporting adaptation in developing countries at the national and global level” in Richardson et al (eds) Climate Law and Developing Countries, above at note 2, 127 at 128.

46 See, for example, Erens, Verschuuren and Bastmeijer “Adaptation to climate change”, above at note 40 at 207.

47 Dawson, B and Spannagle, MThe Complete Guide to Climate Change (2009, Routledge) at 2–3Google Scholar.

48 Burnell Climate Change and Democratisation, above at note 7 at 1–47, devotes an entire enquiry to showing how, inter alia, resource-based conflicts and political instability in young African democracies can surface as a consequence of climate change.

49 Including, for example, disasters and their impact on housing, access to water and public and environmental health.

50 Steytler, N and De Visser, JLocal Government Law of South Africa (2007, LexisNexis) at 1-3 – 1-22Google Scholar.

51 For a recent and insightful discussion on environmental constitutionalism in South Africa and several other jurisdictions, see Boyd, DRThe Environmental Rights Revolution: A Global Study of Constitutions, Human Rights and the Environment (2011, UBC Press)Google Scholar.

52 du Plessis, AAFulfilment of South Africa's Constitutional Environmental Right in the Local Government Sphere (2009, Wolf Legal Publishers) at 239–54Google Scholar.

53 See, for example, Fuel Retailers Association of Southern Africa v Director General Environmental Management, Department of Agriculture, Conservation and Environment Mpumalanga Province 2007 10 BLCR 1059 (CC) and, further, Kotzé, LJ “The judiciary, the environmental right and the quest for sustainability in South Africa: A critical reflection” 2007 Reciel 298Google Scholar.

54 The Constitution, sec 24(b)(i) – (iii).

55 See Beyerlin, U and Marauhn, TInternational Environmental Law (2011, Hart Publishing) at 159–71CrossRefGoogle Scholar.

56 The Constitution, scheds 4(B) and 5(B); see discussion below. See also id, secs 27, 152 and 153.

57 Importantly, it is also only with respect to local government that sec 24 is repeated in the Constitution, with sec 152(1)(d) stating that one of the objects of local government is to “promote a safe and healthy environment”.

58 Du Plessis, AA “South Africa's environmental right generously interpreted: A focus on the role of poverty” 2011 (27) SA Journal of Human Rights (SAJHR) 279Google Scholar.

59 The Constitution, secs 9–11 and 27(1)(b).

60 See, for example, Mazibuko v The City of Johannesburg 2010 (3) BCLR 239 (CC), Beja v Premier of the Western Cape 2011 (10) BCLR 1077 (WCC) and Joseph v City of Johannesburg 2010 (4) SA 55 (CC).

61 The Constitution, sec 152. See further Steytler, N and Fessha, YT “Defining local government powers and functions” (2007) 124(2) South African Law Journal 320Google Scholar.

62 Id, sec 153(a).

63 Id, sec 156.

64 As listed in id, scheds 4(B) and 5(B).

65 See De Visser, J “Institutional subsidiarity in the South African Constitution” (2010) 1 Stellenbosch Law Review 90Google Scholar.

66 See scheds 4(A) and 5(A) of the Constitution.

67 See, for example, Maccsand (Pty) Ltd v City of Cape Town and Others 2011 (6) SA 633 (SCA), City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others 2010 (9) BCLR 859 (CC), Lagoon Bay Lifestyle Estate (Pty) Ltd v Minister of Local Government, Environmental Affairs and Development Planning of the Western Cape and Others [2011] 4 All SA 270 (WCC) and Louw v Swartland Municipality (650/2010) [2011] ZASCA 142 (23 September 2011).

68 Systems Act, secs 73(2)(d) and 4(2)(d).

69 Id, sec 4(2)(i) and (j) read with sec 23(1).

70 Id, sec 23(1) and chap 5.

71 Id, sec 26, sec 15(2) of the National Environmental Management: Air Quality Act 39 of 2004 and sec 48 of the National Environmental Management: Biodiversity Act 10 of 2004.

72 SALGA Local Government Climate Change, above at note 29 at 49.

73 NEMA, sec 2(1)(a).

74 Id, sec 2(1)(e).

75 Id, secs 2(1)(e)(vii)–(viii).

76 Id, sec 2(4)(b).

77 The “best practicable environmental option” is defined by id, sec 1, as “the option that provides the most benefit or causes the least damage to the environment as a whole, at a cost acceptable to society, in the long term as well as in the short term”.

78 Id, sec 2(4)(c).

79 Adopted in Kyoto, Japan, on 11 December 1997 and entered into force on 16 February 2005.

80 See NEMA, chap 6 and the Constitution, secs 231–33.

81 South Africa follows a partly dualist approach to the incorporation of international law in its jurisdiction.

82 See, for example, “Climate action goes local”, available at: <http://thinkprogress.org/romm/2010/09/15/206730/iclei-think-globally-act-locally-climatel/> (last accessed 22 September 2011).

83 NEMA, secs 11–16.

84 Id, sec 12(1)(a).

85 Id, sec 35(1).

86 Id, sec 35(3)(a).

87 See generally, Rosenau, JN and Czempiel, E (eds) Governance Without Government: Order and Change in World Politics (1992, Cambridge University Press)CrossRefGoogle Scholar.

88 The Constitution, sec 156.

89 NEMA, sec 46.

90 AQA, sec 2(a)(i).

91 Id, sec 16.

92 See id, secs 36–49.

93 Id, sec 39.

94 Birnie, P, Boyle, A and Redgwell, CInternational Law and the Environment (2009, Oxford University Press) at 583–84Google Scholar.

95 Biodiversity Act, sec 44.

96 Id, sec 45.

97 For example: the Convention on Biological Diversity, 1992; the Convention for the Protection of the World Cultural and Natural Heritage, 1972; the Convention on the Conservation of Migratory Species of Wild Animals, 1979; and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) 1973.

98 PAA, sec 38(1)(a).

99 Id, sec 41.

100 ICMA, sec 2(c).

101 Id, sec 49.

102 Waste, Act, sec 12.

103 See Academy of Science of South Africa Towards a Low Carbon City: Focus on Durban (2011, ASSAF) at 111–12Google Scholar.

104 See id at 112.

105 Department of Environmental Affairs “Municipal waste sector plan” (government notice 270) (30 March 2012) Government Gazette 35206. In the notice the minister expressly states that the plan must be implemented immediately.

106 Kotzé, LJ “Phiri, the plight of the poor and the perils of climate change: Time to rethink environmental and socio-economic rights in South Africa?” (2010) 2(1) Journal of Human Rights and the Environment 135Google Scholar.

107 Reg 3 in GN R 509, Government Gazette of 8 June 2001, read with the WSA.

108 This was recently confirmed by the Constitutional Court in Mazibuko v City of Johannesburg (2009) JDR 1030 (CC).

109 WSA, secs 11–21.

110 Id, sec 11(3).

111 Id, sec 12.

112 Id, sec 13.

113 Academy of Science of South Africa Towards a Low Carbon City, above at note 103 at 109–10.

114 DMA, sec 1.

115 Id, sec 23(4).

116 Id, sec 42(1).

117 Id, secs 51–53.

118 Academy of Science of South Africa Towards a Low Carbon City, above at note 103 at 117–28.

119 The background of the political and policy developments which in recent years have put climate change on the national agenda in South Africa is discussed in more detail in id at 63–77.

120 Above at note 12.

121 Id at 11.

122 Id at 12.

123 Id at 11–12 and 15.

124 Id at 15.

125 Id at 13.

126 Id at 22.

127 Id at 31–32. Both programmes make provision for the direct involvement of local government.

128 Id at 32.

129 See B Never “Who drives change? Comparing the evolution of domestic climate governance in India and South Africa” (German Institute of Global and Area Studies working paper 174) (2011) at 5.

130 CCR White Paper, above at note 12 at 97.

131 Ibid.

132 Ibid.

133 See the Constitution, secs 156(4)(a)–(b).

134 CCR White Paper, above at note 12 at 36–37.

135 Id at 39 and 46.

136 Chaps 2 and 7.

137 This should be done in line with the provisions on co-operative governance. See the Constitution and the Intergovernmental Relations Framework Act 13 of 2005, sec 41.

138 The Systems Act, chap 5.

139 Similar to the UK Climate Change Act of 2008, for example. For a discussion of the legal implications of this act, see Macrory, R “The UK Climate Change Act - Towards a brave new legal world?” in Backer, IL et al. (eds) Pro Natura (2012, Universiteitsforlaget) 306Google Scholar.

140 See Simeon, R and Murray, C “Multi-sphere governance in South Africa: An interim assessment” (2001) 31(4) Publius 65 at 66–67CrossRefGoogle Scholar.