Legislating Climate Change – Is the time ripe to enact a Law?
Sairam Bhat and Madhubanti Sadhya [i]
India is one amongst the extremely vulnerable countries that continues to face the wrath of climate change. Positioned uniquely with three major water bodies surrounding peninsular India, the subcontinent with a 7,500 km coastline, is not only expected to see the challenges of global warming, but also face unprecedented flooding, even in its deserts. With India’s Human Development Index (HDI) being the indicator of lifting millions of people above the poverty line, there is a constant tussle between increased economic activities resulting in higher carbon emissions and climate change. Every year 24th of October is marked for Global Climate Action Day, to remind about the changing world and actions that are required to be taken to address the issue of Climate Change.
Deliberations on drafting of a Climate Change law has been in the International political landscape for over two decades and India has played a significant role in its negotiation and in conforming to its obligations under the principle of common but differential responsibilities and in declaring its Nationally Determined Contributions under Paris Agreement in consonance with its capabilities. Although the actual process of climate change started with the Industrial Revolution, the highly industrialised countries having refused to drastically reduce their carbon emissions, which has increased the burden on developing countries of mitigating climate change.
India’s climate action is majorly focussed on the Energy sector. With an emphasis on renewable energy, we are positioned to fulfil our obligations under the Paris Agreement. In India, the only ‘so called law’ promulgated on climate action so far, has been the National Action Plan on Climate Change (NAPCC). The States and Union Territories have also adopted their respective policies and most of the policies are declared schemes and missions of the Government, which do not enjoy the status of a binding law and raises questions about their adequacy. Worldwide there are two routes to mitigating the effects of climate change. In some countries, the primary avenue has been legislation and in most others including India, the stance has been the adoption of policies, schemes, executive orders etc. Thus, the question arises, is it time for executive actions to mature into a formal legislation having the binding force of law for climate action? What will the legislation on climate action do? Would it be justiciable before the Courts or perhaps fix the problem of non accountability on the part of the government, and will it perhaps bridge the gap between developmental economics and climate protection. Is the legislative gap the reason for Government not meeting the expectations of eco-warriors in India?
The contributions to carbon concentration starts from each individual to collective contributors like economic activities. Climate change is contributed by many factors and has multiple objectives. In India, if one has to see the positive impact, we will have to implement eco-consciousness broadly defined as concern for the environment in all sectors, department and Ministries. Eco-consciousness must include awareness regarding the contributors of carbon emission, increasing efficient utilisation of resources, thereby integrating the benefits of both economic and environmental sustainable growth.
For instance, climate action in the agricultural sector entails the use of sustainable technologies which means and includes scientific use of inputs like organic and bio-fertilizers that are not deleterious to the environment and enhanced efforts towards conservation of water and soil. Agriculture in India was synonymous with environmental protection till the economics of agriculture was reduced to merely being a contributor to the GDP. Efficiency in agricultural mechanics including soil and water conservation can certainly bring back the harmony between agriculture and climate change.
Similarly, climate action in the Consumer Ministry would mean less consumerism, eco-packaging and advocating greater use of eco-friendly products. Consumer driven practices make the government policies resulting in high production at the cost of environmental degradation. Climate action in the automobile sector would mean, implementing the electric vehicle policy by 2030. Automobile sector must be hugely incentivised through strong and industry friendly legislations to develop energy efficient vehicles for both private and public transport.
Climate action in the financial sector means rebalanced GDP ratio of the primary, secondary and tertiary sector, priority allocation of finances to important environmental sectors and encouraging advances and loans to sustainable productions and processes. Banking Sector reforms through priority advances towards Energy Efficient Industries can be a game changer in efforts to mitigate climate change.
Any possible future law on Climate change in India may have the following features. First, it must be enacted as Climate Protection law. Climate change affects individuals, the poorest and marginalised communities. Unfortunately climate change may result in displacement of persons, and loss of livelihoods. Climate displacement or climate migration is crucial fallout of climate change and it is important to note that migration is both the cause and effect of Climate change. An effective labour and migration policy may very well support a strong Climate change legislation. Climate change has of course for many years in India, resulted in unprecedented loss of property both in terms of houses and crops. Apart from the ‘ex gratia’ compensation declared by Governments and insurance benefits that may be available, citizens in India do not have a legal right to climate protection. Like in Germany, a right to climate protection should not only give its citizen the right to seek relief, compensation from the State, but more importantly impose a duty on the Government, thereby bringing accountability of the State to its own people.
Climate protection law must not only ensure right to environment, it must also attempt to establish right to health. Indians, especially in rural communities continue to be inflicted with diseases that are waterborne, not to forget the quality of air in urban areas. Government must proactively forecast, predict and declare the vagaries of the climate such as heat waves, droughts, heavy rainfall, and such other extreme climatic conditions, that have severe impact on human health as legally recognised grounds for claiming climate protection. Protection in its positive sense must include accessibility to basic necessities of life; i.e. food, clothing, shelter and water.
Second, a climate protection law must not only vest responsibilities on the State and Sub-State actors, but also ensure that the private sector; i.e. the non-State actors, owe the legal responsibility to extract resources and engage in their industrial activities while adhering to the binding principles of public trust and sustainable development. The role of non-state actors is significant including suppliers, manufacturers, transporters etc. Take for instance the case of hospitals; their duty to reduce, reuse and recycle, even during the pandemic should be insisted upon. The use of cleaner technologies must be the norm, across the board. Decommissioning of older plants, upgrading to sustainable alternatives must be an on-going agenda. Extended producers’ responsibility must be mandated for Consumer products. The highest standards of ‘Corporate responsibility’ must be adopted. Business leaders must support bold policy action on Climate Change. Also, the role of Urban and rural local bodies as Sub-State must be emphasised upon. The Municipalities must play a proactive role in ensuring that migration, local environment, public health; air quality is kept in check, especially from local business activities. Smart Cities must be sustainable cities.
Third, climate protection law must not only be available to citizens’ but to all people. This is crucial considering that countries within their restricted territorial boundaries cannot successfully arrest climate change. The global citizen needs climate protection. India must have its policies ready for climate refugees, especially for the sub-continent. India must take the lead to assure its regional partners that it would ensure climate protection to all, within the scope of its economic and social capabilities.
Fourth, the climate protection law must be integrated with the Disaster Management Law. Preparedness, planning, response are necessary in climate action. Crisis management committee must be well equipped to invest in predicting and risk analysis. Integrated approach to both man-made and natural disasters will strengthen protection to citizens. Mitigation and adaptation measure should be emphasised, especially in low lying flood areas and even those areas that are susceptible to landslides. Climate protection and disaster management must also prepare the local communities to anticipate and respond.
Fifth, climate protection law must associate with industry to evolve and fix emission target reduction [self-declaration and assessment] and must also file annual audit and compliance reports. This requirement must be mandatory for industries that fall under the red and orange category. Industries must declare that their practices, worldwide are based on the best available and sustainable technologies, and must be held accountable if they fail to prove the same.
Sixth, the proposed law should adopt an eco-centric approach. It must declare rights of nature, including right to rivers. Though this may increase litigation for or on behalf of ‘nature’, we must ensure that violations of and in relation to common property resource usurpation, misuse and contamination do not go unpunished.
Seventh, under international law, like the Paris Agreement, Climate change today has to be seen as the ‘common concern of humankind’. India has declared its Nationally Determined Contributions under the Paris Agreement. To legislate a law on Climate Protection, the International Commission of Jurists, the International Court of Justice, the United Nations and all other international bodies must declare NDCs as ‘jus cogens’ and India must adopt the same as an International norm.
Finally, climate protection law must institutionalise the implementation, monitoring and adjudication processes, especially focusing on technology, science and law. If climate protection has to have some sense of implementation, it should be a public private initiative and actively involve the private sector. I have strongly advocated that national parks will be better managed under the PPP scheme, especially in terms of conservation efforts to improve the population of endangered species. A special SPV must be made responsible to implement this law.
Enacting a law on the above lines is a daunting task. Enacting more and cumbersome laws must not be the result of legislating climate change. It has to merge with the existing enactments that to a great extent are working efficiently. For instance the Compensation and Remedial aspects of the National Green Tribunal are effective and thus the legislative approach should not be an attempt to derail the existing process, but to make laws to essentially fix the accountability for the contributors of climate change. The law should emphasise on duties; both of individuals and communities. Any law which is based on a “necessary obligation” may bring about an attitudinal shift which is the need of the hour. Finally, an obligation based law should make climate protection justiciable.
[i] Sairam is Professor of Law and Coordinator, CEERA, NLSIU and Madhubanti is Teaching Associate, NLSIU.