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Law in Global Crisis

Introduction

Climate change is one of humanity’s most pressing challenges in the 21st century. The scientific evidence for human-caused global warming is overwhelming, and the potential consequences – ranging from rising sea levels and extreme weather events to food and water insecurity – are dire. Addressing this crisis requires a multifaceted approach, including efforts to reduce greenhouse gas emissions, adapt to the impacts of climate change, and develop new technologies for a sustainable future. However, legislation plays a critical role in shaping and driving these efforts at the national and international levels.

Climate legislation serves several crucial purposes in the fight against climate change. First, it establishes legally binding targets and frameworks for reducing greenhouse gas emissions. Second, climate legislation can create incentives and funding mechanisms to support developing and deploying clean energy technologies. Third, climate legislation can address the adaptation needs of communities and ecosystems that are already experiencing the impacts of climate change.

International Climate Agreements

At the international level, climate legislation takes the form of multilateral agreements and treaties. The most significant of these is the Paris Agreement, adopted in 2015 by 196 parties. The Paris Agreement aims to limit global temperature rise to well below 2°C above pre-industrial levels, with efforts to limit the increase to 1.5°C. Each country has submitted nationally determined contributions (NDCs) outlining their plans for reducing emissions and adapting to climate change impacts.

While the Paris Agreement is a legally binding treaty, the NDCs themselves are not legally binding, which has been a point of criticism. However, the agreement does establish a framework for tracking progress, increasing ambition over time, and providing financial and technical support to developing countries.

Other international climate agreements include the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol, and various regional and sectoral agreements focused on specific issues such as aviation emissions, deforestation, and carbon markets.

National and Subnational Climate Legislation

While international agreements are crucial for global cooperation and coordination, much of the implementation of climate policies occurs at the national and subnational levels. Many countries have adopted comprehensive climate legislation or strategies, setting targets for emission reductions, promoting clean energy, and addressing adaptation needs.

For example, the European Union has been a leader in climate legislation, with its 2030 Climate and Energy Framework and the European Green Deal, which aims to make the EU climate-neutral by 2050. The United States, while lacking comprehensive federal climate legislation, has adopted various policies and regulations at the federal level, such as the Clean Air Act and fuel efficiency standards for vehicles. Additionally, many U.S. states and cities have taken ambitious actions to address climate change, including renewable energy mandates, cap-and-trade programs, and building codes.

Other countries with notable climate legislation include China’s National Climate Change Plan, India’s National Action Plan on Climate Change, and Canada’s Pan-Canadian Framework on Clean Growth and Climate Change.

The foundation for Indian environmental policymaking is derived from the Constitution, judicial principles laid down by Indian courts, and the National Environment Policy, 2006 (NEP). The constitutional right to life under Article 21 has been expansively interpreted to encompass the right to a clean and pollution-free environment. Additionally, the Directive Principles of State Policy mandate the government to protect and improve the environment. Pursuant to this constitutional mandate, the Central Government adopted the NEP, whose salient features include conservation of critical environmental resources, intra- and inter-generational equity, mainstreaming environmental concerns in developmental policymaking, efficient resource utilization, and good governance. Furthermore, through several landmark judgments, the doctrine of sustainable development, public trust, intra-generational equity, and the “polluter pays” and precautionary principles have been integrated into Indian environmental policy.

The Ministry of Environment, Forest and Climate Change (MoEF), along with the Central Pollution Control Board (CPCB) and State Pollution Control Boards (SPCBs), administers and enforces environmental laws in India. There are also specialized regulators for biodiversity, clean development mechanisms, coastal zone management, and forest preservation. Additionally, the National Green Tribunal (NGT), established in 2010, has been empowered to expeditiously adjudicate cases related to environmental protection, conservation, and granting relief in environmental matters, taking a stringent approach toward ensuring compliance with environmental laws.

Judicial Pronouncement

The judiciary has been instrumental in progressively addressing environmental issues through proactive action. The Supreme Court, state High Courts, and the National Green Tribunal have taken suo moto cognizance of environmental matters. Moreover, the Supreme Court has substantially relaxed the locus standi requirements for initiating environmental public interest litigation (PIL), allowing numerous cases on environmental causes to be brought forward. A significant body of Indian environmental jurisprudence has emerged from these judicial initiatives.

The Supreme Court issued various directions to the governmental authorities about the measures to be taken to reduce air pollution, especially in the National Capital Region (NCR). In a major judgment, the Supreme Court used the recommendations of the Environment Pollution (Prevention and Control) Authority to convert all the diesel buses of Delhi to Compressed Natural Gas (CNG) by December 2002.

In Balachandra Bhikaji Nalwade v. Union of India 170 (2009) DLT 251, the Delhi High Court, while discussing the precautionary principle reiterated the UNFCC which provides that the states should take precautionary measures to anticipate, prevent, or minimize the causes of climate change and mitigate its adverse effects.

The Supreme Court has established the “public trust doctrine” (M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388), which mandates that the state act as a trustee and take all necessary steps, including imposing restitution costs, to protect public assets such as rivers, seas, and forests. Furthermore, the Supreme Court has expanded the application of the polluter-pays principle to prevent the deterioration of heritage sites. In the M.C. Mehta (Taj Trapezium Pollution) v. Union of India, (2001) 9 SCC 235, the court ordered the relocation of 292 polluting industries that were causing acid rain and corrosion of the Taj Mahal monument.

In the Gaurav Kumar Bansal v. Union of India, (2016) 16 SCC 530 case, the National Green Tribunal (NGT) issued directions to state governments to implement the National Action Plan on Climate Change, prohibit any deviations from it, and prepare State Action Plans to combat climate change. Additionally, in the Municipal Corporation of Greater Mumbai vs. Ankita Sinha case, while upholding the NGT’s suo moto powers to take cognizance of environmental issues, the Supreme Court observed that the environmental impacts of climate change are becoming increasingly visible in the form of erratic rainfall patterns, species extinction, loss of natural habitats, and noted that climate change has the potential to diminish freshwater resources, reduce agricultural yields, and impact public health, particularly in urban areas. The court held that to leave behind a better environmental legacy, it is essential to have a flexible mechanism to address all issues pertaining to environmental damage and the resultant effects of climate change.

Over the past year, India has taken significant measures to address the evolving environmental landscape. The Parliament enacted the Biological Diversity (Amendment) Act of 2023 (BDA Act), which creates a framework for fair and equitable sharing of benefits arising from the utilization of biological resources, conservation of biological diversity, and sustainable use of its components. The BDA Act replaces imprisonment with monetary penalties ranging from INR 100,000 to INR 50 million. Additionally, various initiatives have been undertaken to promote environmental sustainability, including the Carbon Credit Trading Scheme, the Green Credit Programme, and the Eco Mark Scheme.

Furthermore, the Supreme Court has prohibited mining activities within national parks, wildlife sanctuaries, and a 1 km area from their boundaries in the Re TN Godavarman vs. Union of India case. This is aimed at ensuring the conservation of flora and fauna in Eco-Sensitive Zones and Protected Areas. The apex court has also emphasized the need for the Legislature, the Executive, and policymakers at both the Union and State levels to take action to safeguard the environment against haphazard development. In the Residents Welfare Association & Another vs. UT of Chandigarh case, the court observed that a proper balance must be maintained between sustainable development and environmental protection and that Environmental Impact Assessments should be carried out before permitting any urban development to prevent environmental damage.

Moving Forward

Despite these challenges, the urgency of addressing climate change necessitates continued efforts to develop and implement effective climate legislation at all levels of governance. Key priorities for future legislation include:

  1. Increasing the ambition of emission reduction targets in line with the latest scientific recommendations and the goals of the Paris Agreement.
  2. Providing adequate funding and support for climate adaptation and resilience, particularly for vulnerable communities and regions.
  3. Promoting a just transition towards a sustainable economy, ensuring that the benefits and costs of climate policies are distributed equitably.
  4. Fostering international cooperation and coordination, while respecting the principle of common but differentiated responsibilities and respective capabilities.
  5. Encouraging public participation and stakeholder engagement in the development and implementation of climate policies.

Conclusion

Climate change is a complex and multi-faceted challenge that requires a comprehensive response from all sectors of society. Legislation plays a critical role in shaping and driving efforts to mitigate and adapt to climate change, by setting legally binding targets, providing incentives for clean energy and sustainable practices, and addressing the needs of vulnerable communities and ecosystems. While the process of developing and implementing climate legislation can be challenging, the consequences of inaction are far more severe. By embracing ambitious and equitable climate policies at the national and international levels, we can work towards a more sustainable and resilient future for our planet and future generations.

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