Regulating Green and Low-Carbon Hydrogen in Africa: A Case Study of South Africa

Abstract

The production of the most abundant chemical element in the atmosphere, hydrogen, particularly green hydrogen (i.e., hydrogen in its cleanest and most sustainable form), is quickly becoming a priority for nations worldwide. This interest is mainly attributed to, among other factors, its potential to serve as a cornerstone of the global energy transition to low-carbon economies. Greenhydrogen possesses the potential to decarbonize the so-called “hard-to-abate,” sectors i.e., energy-intensive sectors, such as heavy industries, iron and steel production, and transportation - including aviation and shipping, among other economic sectors. The growing focus on the adoption of green hydrogen as a viable decarbonization pathway must be viewed against the backdrop of global commitments and international imperatives to address the adverse effects of climate change. Such commitments emanate from instruments such as the Paris Agreement of 2015 and obligations towards meeting the United Nation's Sustainable Development Goals (SDGs). Further, the “Just Energy Transition" journey towards decarbonization must also be contextualized within different jurisdictions, in line with their situations and context-specific goals, geographic locations, and policy frameworks. Much like other nations worldwide, the South African regulatory framework for hydrogen is still emerging, as it is presently dominated by soft law instruments such as roadmaps, strategies and guiding documents, as opposed to binding and enforceable hard law instruments. For example, the South African Hydrogen Society Roadmap of 2022, the Integrated Resource Plan, the Integrated Energy Plan, and the Renewable Energy Policy, among other significant policy documents, highlight the fundamental role that green hydrogen would play in South Africa’s energy transition. Whilst other legal and policy documents may apply to the hydrogen value chain, such as the various safety requirements in the Occupational Health and Safety Act, 1996, there is a lacuna of hydrogen-specific hard law regulation, including, importantly, regulations regarding certification (which will need to be aligned internationally). In light of the above, this paper discusses the potential of green hydrogen in the context of South Africa and explores the current position in the country. It further canvasses emerging developments within the hydrogen space. This analysis aims to identify gaps or lacunas in the law, risks, and challenges for South Africa’s hydrogen economy. The article proceeds to provide recommendations for a policy and regulatory regime for hydrogen in Southern Africa. It draws on examples from countries and regions such as the European Union (EU), which are further along in terms of regulating hydrogen, but contextualizing this discussion within the African, and specifically Southern African context. This budding industry provides an opportunity to learn from past energy mistakes and create an appropriate regulatory and policy framework that works and benefits Africa.