DIRECT AIR CAPTURE GOVERNANCE

Introduction

Direct Air Capture (DAC) is a carbon-removal technology that removes carbon dioxide directly from ambient air through chemical or physical processes. The captured CO₂ may subsequently be permanently stored underground or used in products and industrial processes. Unlike conventional carbon capture, which captures emissions from a particular industrial source, DAC removes CO₂ already dispersed in the atmosphere.

South Africa does not yet have a dedicated comprehensive statute regulating DAC facilities. Governance would therefore operate through existing environmental, climate-change, water, energy, land-use and carbon-accounting legislation. The principal challenge is ensuring that claimed carbon removal is measurable and permanent while regulating the potentially significant electricity, water, land and geological-storage requirements of DAC projects.

Climate Change Governance

The Climate Change Act 22 of 2024, substantially commenced on 17 March 2025, establishes South Africa's statutory climate-governance framework and supports the transition toward a low-carbon and climate-resilient economy. It provides mechanisms concerning greenhouse-gas mitigation, sectoral emissions targets, carbon budgets and mitigation plans.

DAC could potentially contribute to national mitigation strategies, particularly for residual emissions that are difficult to eliminate. However, governance must distinguish genuine atmospheric removal from ordinary avoided emissions.

A credible DAC system therefore requires measurement, reporting and verification (MRV) covering the amount of CO₂ captured, emissions generated by the energy used for capture, transportation emissions, injection losses and possible subsequent leakage.

Environmental Authorisation

Large DAC plants may trigger environmental-authorisation requirements under the National Environmental Management Act 107 of 1998 (NEMA) where associated infrastructure constitutes listed activities.

Environmental authorities would need to consider impacts arising from land occupation, electricity consumption, water demand, chemicals, pipelines and geological storage. Where captured CO₂ is permanently injected underground, monitoring and long-term liability become particularly important.

South Africa's greenhouse-gas quantification guidelines already recognise the CCS chain as involving capture and compression, transportation, injection and long-term geological isolation, while requiring leakage emissions to be accounted for.

Carbon Pricing and Economic Governance

The Carbon Tax Act 15 of 2019 applies the polluter-pays principle by attaching a price to greenhouse-gas emissions. South Africa's carbon tax increased to R308 per tonne of CO₂ equivalent from 1 January 2026.

DAC governance must determine whether verified removals may generate carbon credits or offsets and under what conditions. Regulation should prevent double counting, require additionality and establish permanence requirements. The treatment of captured carbon used temporarily in products should differ from CO₂ permanently stored underground because temporary utilisation does not necessarily constitute durable atmospheric removal.

Case Law

Earthlife Africa Johannesburg v Minister of Environmental Affairs [2017] ZAGPPHC 58

Facts: Earthlife challenged the environmental authorisation for the proposed Thabametsi coal-fired power station because its climate-change impacts had not been comprehensively assessed before authorisation.

Legal Issue: Whether climate-change impacts constituted relevant considerations under NEMA when deciding an environmental-authorisation application.

Judgment: The High Court held that climate impacts were relevant factors that had to be properly considered and found the authorisation process legally defective.

Legal Principle/Ratio: Environmental decision-makers must consider material climate consequences when exercising statutory environmental powers.

Significance: A DAC project claiming climate benefits must therefore be assessed on its net climate effect, including energy requirements, lifecycle emissions and storage risks rather than merely its headline capture capacity.

Fuel Retailers Association of Southern Africa v Director-General: Environmental Management 2007 (6) SA 4 (CC)

Facts: Environmental approval was granted for a filling station, while authorities treated certain socio-economic issues as having already been considered through separate planning processes.

Legal Issue: Whether environmental authorities independently had to consider sustainable-development considerations required by environmental legislation.

Judgment: The Constitutional Court confirmed that environmental authorities must themselves undertake the assessment required by NEMA.

Legal Principle/Ratio: Sustainable development requires integration of environmental, social and economic considerations in administrative decision-making.

Significance: DAC regulators cannot rely exclusively on climate-policy benefits; they must independently examine environmental costs, alternatives and long-term sustainability.

Green Connection NPC v Minister of Forestry, Fisheries and the Environment [2025] ZAWCHC 349

Facts: Environmental organisations challenged governmental authorisation connected with fossil-fuel development.

Legal Issue: Whether climate-change impacts had been adequately considered before environmental approval.

Judgment: The High Court reaffirmed that climate-change impact assessment forms part of the assessment required before relevant environmental authorisations are granted.

Legal Principle/Ratio: Climate considerations must form part of lawful environmental decision-making where materially relevant.

Significance: The same principle supports rigorous assessment of both the claimed removals and indirect emissions of DAC infrastructure.

Conclusion

Effective DAC governance requires more than recognising carbon removal as a climate technology. South Africa would need reliable MRV standards, environmental authorisation, geological-storage regulation, leakage liability, carbon-credit integrity and sustainable energy and water requirements. Existing climate and environmental law provides an initial legal foundation, but dedicated rules may ultimately be necessary to determine ownership of stored carbon, long-term responsibility and the legal value of verified negative emissions.