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This article is written by Pranav Sethi, from SVKM NMIMS School of Law, Navi Mumbai. This article is an exhaustive analysis of the importance of courts to play a pivotal role in combating climate change.

Introduction 

“We are the first generation to feel the effect of climate change and the last generation who can do something about it.”Barack Obama

For generations, there’s been plenty of uncertainty regarding climate change; yet, the present scientific consensus shows that climate change and the problems that accompany it represent major challenges to the environment, human health, and global welfare. But while biological cycles and human activity both contribute to climate change, the problem confronting humanity is human-induced or anthropogenic climate change, which is driven primarily by the combustion of fossil fuels such as oil, coal, and natural gas, exasperating the greenhouse overall impact in the environment.

The damage done to the environment, ecology, economy, and the societal situation is a result of a variety of reasons that has accelerated global warming, which is developing greater by the year. In the presence of an international enforceable convention to combat climate change, litigation is becoming an alternative option for addressing climate change by driving conservation or seeking damages. Climatic conditions lawsuits have been filed in many jurisdictions both under public and private law causes of action.

This practice has been witnessed both domestically and internationally, including in the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS), and Regional Human Rights Organizations. While climate change litigation is a relatively new phenomenon, it has grown at a rapid pace, evolving from a creative lawyering technique to a key force in global government regulation of GHG (greenhouse gases) emissions over the generations. The legal standing of the world has been appropriately described as an atmospheric crisis which necessitates a paradigm shift in the approach to tackling climate change by turning to the judiciary, one of the least politicized branches of government (in most countries).

Defining climate change 

The difference in regional and global temperatures through time is commonly referred to as climate change. It represents variations in the composition of the atmosphere variability or average condition over periods spanning from decades to centuries. The earth’s climate is evolving regularly as part of a natural cycle. The world is increasingly concerned today with the fact that current developments are happening at a faster rate. Natural forces, such as continental rifts, volcanoes, ocean currents, the earth’s tilt, and comets and meteorites, can cause these changes, as well as those induced by human activity or produced by man.

On the legal, commercial, and social levels, climate change poses a broad array of hazards to mankind as a whole, as well as a limited number of opportunities. It also raises issues and challenges for the legal system. These legal issues and difficulties touch all members of society, whether they are policymakers, businesspeople, activists of all kinds, or average citizens.

Global warming

Climate change and global warming are two of the most critical concerns humanity has ever faced, with repercussions on fundamental rights as well. Global warming is principally caused by an increase in carbon dioxide levels in the atmosphere that acts as a blanket, absorbing energy and overheating the globe. Carbon increases and overloads our atmosphere as we burn fossil fuels like coal, oil, and natural gas for energy or cut down and burn forests to construct pastures and plantations. Certain waste management and agricultural practices exacerbate the problem by releasing other potent global warming gases such as methane emitted from landfills and other waste dumps, as well as nitrous oxide emitted from fertilizer applications and leguminous plants such as green beans, during the process of oil drilling, coal mining, and also from leaking gas pipelines.

India and climate change

India is among the nations extremely sensitive to climate change. Agriculture and other climate-sensitive areas employ roughly half of the workforce in India. About 12% of India is prone to flooding, whereas 16% is prone to drought. After China and the United States, India is presently the world’s third greatest contributor to global warming. Between 1990 and 2009, India’s annual emissions rose dramatically, from less than 600 metric tonnes to more than 1700 metric tonnes. Between 2008 and 2035, India’s yearly carbon dioxide emissions are expected to increase by over 2.5 times. In 2007, India’s net emissions of greenhouse gases from land use, deforestation, and forestry totalled 1727.71 million tonnes of CO2.

While its energy sector accounted for. of net carbon dioxide emissions, the industrial, agricultural, and waste sectors accounted for 22%, 17%, 3% of net carbon dioxide emissions, respectively. As a result, climate change and energy are now a centre of concern at the municipal, state, and national levels all around the world. Though India has previously stated that it is not accountable for previous greenhouse gas emissions because it is a developing nation with traditionally low per capita emissions, it has now identified as a prominent playmaker in international negotiations and has established meaning a diverse portfolio of policies, both nationally and then within individual states, to improve the energy effectiveness and develop clean alternative energy sources.

Climate change and the Indian Constitution

The Indian Constitution is one of very several worldwide that includes environmental provisions. The nation’s responsibility to safeguard and preserve the ecosystem is specifically stated in the Directive Principles of State Policy and Fundamental Duties chapters.

Three provisions of the Constitution are primarily related to environmental issues.

To begin with, Article 21 declares that “no one shall be deprived of his life or personal liberty unless following legal procedure.” The Supreme Court recognized various rights indicated by Article 21, including the right to a healthy environment, in Subhash Kumar v. the State of Bihar, (1991) and Virendra Gaur v. the State of Haryana, (1995). The state high courts have taken the Supreme Court’s approach, and almost all now agree that Article 21 has an environmental dimension:

  • Second, Article 48A mandates that “the State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.”
  • Third, Article 51A specifies that “it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers, and wildlife and to have compassion for living creatures.”

Even though these last two Sections have previously been unable to execute through writ jurisdiction, courts have turned progressively to them for help in settling climate disputes.

Role of Indian judiciary in developing Indian environmental legislation

Climate change lawsuits in India are still in their early stages, as Indian courts have dealt with several lawsuits including climate change concerns. According to Markell and Ruhl’s concept, there may only be two instances that come under the umbrella of comprehensive climate litigation. Though there have been several cases brought before the courts and the National Green Tribunal that cite climate change, the majority of them are essentially rhetorical references, and only a few have examined the problem completely. The majority of the important elements of Indian environmental regulations are conventional international rules that the Indian judiciary has recognized as part of the Indian environmental laws.

Development that has a long-term plan – beneficial to future generations

Sustainable development can be traced back to the notion of balancing. The goal of sustainable development is to meet people’s specific requirements while without affecting future generations’ capability to use natural resources. The case of Vellore Citizens’ Welfare Forum vs. Union of India, which was decided in 1996, is the most authoritative body of legislation in India on the principles of sustainable development, precautionary principle, and polluter pays. The use of these ideas in India was recognized in this instance.

The Vellore Citizens Welfare Forum launched a Public Interest Litigation under Article 32 of the Indian Constitution in this case to stop pollution from tanneries as well as other factories in Tamil Nadu. The tanneries’ unregulated waste poisoned the river water, which was the primary source of drinking water.

The current case judgment was as follows:

  • The Court determined that the mentioned elements are recognized as part of Customary International Law and so are components of Law in India.
  • The central and state governments are required to adopt the Precautionary Principle and the Polluter Pays Principle under Section 3(3) of the Environment (Protection) Act, 1986.
  • The individual who wishes to disrupt the status quo of the environment has the “Onus of Proof.” The individual must demonstrate that the status quo change is environmentally friendly.
  • The Indian Environmental Law included these three ideas.

Precautionary Principle

This principle states that whenever there is a possibility of substantial or irreparable environmental degradation even though the risk is not scientifically proven, measures to prevent it must be taken. It is founded on the notion that it is preferable to come down on the side of a precaution than to be too cautious. The Assimilative Capacity Idea, created in the Stockholm Declaration of the United Nations Conference on Human Environment in 1972, was replaced by this principle. The Assimilative Capacity Principle assumes that research can provide information to analyze environmental threats and identify environmental protection methods.

However, because scientific assurance may not always be feasible, the precautionary principle was developed in the 11th Principle of the United Nations General Assembly Resolution on the World Charter for Nature, which was adopted in 1982.

Case law about Precautionary Principle – AP Pollution Control Board v. Prof. M V Nayudu

Facts of the case 

In this case, the precautionary concept was thoroughly examined by the Supreme Court. A corporation applied to the Pollution Control Board for authorization to establish an industry for the manufacturing of “BSS Castor Oil Derivatives.”

Even though the corporation got a letter of intent subsequently, the Pollution Control Board did not issue any objection certificate to the company’s establishment on the location provided by it. While denying the applications for permission, the Pollution Control Board claimed, among other things, that the company fell into the red category of contaminating business and that it would not be acceptable to establish such an enterprise in the catchment area of Himayat Sagar, an Andhra Pradesh lake. The company’s challenge against the Pollution Control Board’s judgment was granted by the appealing body.

The Gram Panchayat subsequently lodged a writ case in the form of public interest litigation, appealing the appellate authority’s decision, however, the High Court declined the writ petition. The company’s writ case, on the contrary side, was granted, and the High Court ordered the Pollution Board to issue permission according to any restrictions placed by it. The High Court’s verdict was appealed to the Supreme Court of India.

Judgment 

The Supreme Court mentioned the challenges that courts encounter when dealing with highly technical or scientific facts. The Court recognized that ambiguity in research in the surrounding environment has led to the formulation of new legal arguments and standards of procedure at international meetings. The precautionary principle is one of them.

Polluter Pays Principle

The polluter pays principle holds that businesses must cover the expenses of preventing or repairing environmental damages produced by their pollution. The polluter pays principle was first recognized in India, in 1986, in the case of M.C. Mehta vs Union of India, also known as the oleum gas leak case. A dangerous gas known as oleum was released by Shriram Foods and Fertiliser Industries, causing harm to the public and the environment. Notwithstanding the reasonable care exercised by Shriram, the corporation was found to be completely accountable for the injury it caused. It was also stated that the greater the corporation that caused the damage, the more compensation they must pay.

In the Indian Council for Enviro-Legal Action vs. Union of India, 1996, it was ruled that the central government had the jurisdiction to assess reimbursement for environmental damage under Sections 3 and 5 of the Environment (Protection) Act, 1986. In Vellore Citizens’ Vellore Citizens Welfare Forum vs. Union of India 1996, the Supreme Court held that the polluter’s goal is to pay polluted sufferers while also restoring environmental deterioration. Environmental restoration is a component of long-term sustainability.

Rule of absolute liability

With the preceding information, it is now simpler to comprehend the notion of ‘Absolute Liability,’ as its title, it holds an individual without exception completely accountable for actions caused by the release of a dangerous object in a non-natural usage of land. The law of ‘Strict Liability’ was thought to be established and concrete until the Bhopal Gas Leak disaster in India in the 1980s, when the subject of strict liability exceptions arose. The Supreme Court of India finally formed an extension of the idea of strict liability, termed as absolute liability, in an unrelated case of the Oleum gas leak, providing the defendant with no defence or exception to avoid such liability.

Case of the Bhopal gas disaster

In this case, the greatest industrial disaster ever recorded took place On December 3, 1984. Around 40 tonnes of Methyl Isocyanate (MIC) gas, coupled with other dangerous chemicals, were released from a Union Carbide (India) Limited chemical factory. This catastrophe claimed the lives of at least 3,800 individuals and injured many more. Also because gases stayed close to the ground, this event caused victims’ throats and eyes to burn, as well as nausea. Even after 30 years, those who were subjected to such hazardous gas gave birth to physically and intellectually handicapped children. The Union Carbide Corporation paid the Union of India a total of US$470 million to resolve all disputes, interests, and responsibilities relating to and originating from the Bhopal Gas Disaster.

Judgment

The Supreme Court applied the doctrine of absolute liability to order the Union Carbide Corporation to pay damages. It is minor in proportion to the crime that has a long-term impact on the living person’s survival of that location. Even after the calamity, India has experienced considerable industrialization. While some positive adjustments in the government policies and the practices of a few companies have occurred, rapid and largely unregulated industrial growth continues to pose serious environmental dangers. Effects on human health continue to occur across India as a result of extensive climate change.

Enviro-legal jurisprudence is voluminous

In the past several decades, the courts have made decisions on a wide range of environmental concerns, including wildlife protection, forest administration, waste disposal, and regulatory requirements. Environmental rights have been recognized by the judiciary in several judicial rulings and orders. It has kept a close eye on how its directions have been carried out. Individuals’ fundamental rights, particularly their right to life and personal liberty, were in jeopardy in the majority of these cases. Part III of India’s Constitution ensures that some essential rights are protected. 

Role of Article 21

The progressive Indian judiciary has expanded these rights (especially Article 21) to include other unarticulated rights such as the “right to a pollution-free and clean environment,” “right to fresh air and pure water,” “right to livelihood,” “right to live with human dignity,” and so on. Environmental rights have been expanded by the judiciary to include a “healthy environment with minimal disruption of natural equilibrium” and a “living atmosphere conducive to human existence.”

The Constitution’s enumeration of these rights allows for sufficient opportunity for initiating challenges against concerns posed by climate change. Climate change, as stated in previous chapters, will have an impact on the ecosystem and disrupt the ecological equilibrium. Climate change will affect basic rights and other legal rights, opening the door to constitutional or rights-based climate litigation in the courts with writ jurisdiction. Another method is to look at climate change through the prism of human rights violations, such as the right to life, health, water, livelihood, shelter, and other rights that are threatened by climate change.

The National Green Tribunal Act, 2010

The National Green Tribunal Act of 2010 was established to establish a National Green Tribunal to handle matters involving climate change sustainability and maintenance in a timely and effective manner. This Act was enacted in response to the recommendations of the United Nations Conference on Environment and Development, which was held in Rio de Janeiro in 1992 and focused on adequate interventions to judicial remedy for environmental problems.

Establishment of the Tribunal

The national government is required by Section 3 to create a Tribunal that will have responsibility for protecting the environment and conservation problems. The Tribunal is divided into four zones: the West Zone (Pune), the Central Zone (Bhopal), the Southern Zone (Chennai), and the Kolkata Zone (Eastern Bench).

Defining Section 4 and 5 of the National Green Tribunal Act, 2010

According to Section 4, the tribunal will be made up of the following:

  1. According to Section 5(1), the Chairperson must be either a current or former Supreme Court Judge or a current or retired Chief Justice of a High Court. The chairperson would be selected by the central government on the Chief Justice of India’s recommendation.
  2. Full-time judicial membership, with a least of 10 and a maximum of 25, depending on the central government’s discretion. Current or retired High Court justices must make up the judicial panel.
  3. The central government may appoint up to 25 expert members, with a minimum of 10 and a maximum of 25.
  4. Section 5(2) specifies the qualifications of the specialized member that is, Master’s degree in science with a doctorate, Master’s degree in engineering, Master’s degree in technology, or Master’s degree in technology + 15 years of practical expertise in the respective fields, including 5 years in the field of environment and forest in a reputable national institution or 15 years of administrative experience, including 5 years in the field of environment and forest management, either in the federal or state government or in a reputable national organization.

Tribunal’s authority

Only civil cases involving environmental problems are acceptable well before the Tribunal, according to Section 14(1), and the time limit for submitting the application form first before the Tribunal is six months.

Under Section 15(1) of the National Green Tribunal Act, the tribunal has the authority to make the following orders:

  • Relief and restitution for those who have been harmed by pollution.
  • Restitution for lost or damaged property, as well as environmental damage.

These instructions are in addition to the Public Liability Insurance Act of 1991 relief.

Case laws

Association for Protection of Democratic Rights v. The State of West Bengal and Others

  • Jurisdiction (a forum where the case was filed) – Supreme Court 
  • Special leave petition

Facts of the case

In this case, the Supreme Court of India released a directive on March 25, 2021, forming an expert committee to develop a framework of research and regulatory principles that shall manage judgment calls concerning tree cutting for infrastructure projects. The order came in support of the application opposing the West Bengal government’s proposed cutting down hundreds of trees, some as ancient as 150 years, to build roads over bridges and widen roadways. The Court stressed the importance of analyzing the impacts of such developments on carbon sequestration and climate change while determining whether the plan was following the constitutional right to a healthy environment and India’s sustainable development goals.

Issue

Whether it is legal for the state of West Bengal to cut down hundreds of trees to build and enlarge roads?

Judgment 

The Court stated that the problem takes significance in light of climate change as an increasing national and worldwide problem, and cited India’s climate promise to raise tree cover from 23% to 33%. The Court subsequently appointed a seven-member committee and told them to create the standards within four weeks of their first meeting.

Hanuman Laxman Aroskar v. Union of India

  • Jurisdiction: Supreme Court

Facts of the case 

In this case, the Supreme Court of India suspended the environmental clearance for an airport in the state of Goa on March 29, 2019, and directed the administration to reconsider the decision. The approval was brought before the Supreme Court by petitioners, citizen Hanuman Laxman Aroskar and the NGO Federation of Rainbow Warriors. 

The Court revoked the airport’s regulatory compliance certificate citing the government’s failure to consider environmental concerns that were critical to the environmental evaluation procedure. The court reasoned that it was essential to the resolution of this lawsuit as a driver for sustainable development within a rule of law framework. The Court went on to say that the Paris Agreement and India’s Nationally Determined Commitment to the Paris Agreement were both important aspects of India’s environmental rule of law and that the government had to strike a proper balance between environmental concerns and airport development goals.

Issue

Whether the Government of India appropriately examined environmental impacts when it approved a new airport?

Judgment 

The Supreme Court removed its suspension of the environmental clearance on January 16, 2020, after new statements from the airport project stakeholders, enabling the airport project to proceed. The government enforced additional environmental requirements on the project in response to the additional environmental impact evidence supplied, which included a commitment to establish the airport a “zero-carbon airport operation.” The court issued that the government has appropriately addressed concerns raised in the court’s 2019 ruling. The National Environmental Engineering Research Institute was also established to conform with the government’s environmental criteria, and the project developers were required to pay the charges of monitoring.

Almitra H. Patel & Ors. vs. Union of India and Ors.

  • Jurisdiction – National green tribunal (NGT)
  • Key observation – Open burning of garbage on public lands is strictly prohibited.

Facts and issues of the case

This case was India’s single most important landmark decision solving the problem of solid waste management. Mrs. Almitra Patel and others have filed a PIL before the Apex Court under Article 32 of the Indian Constitution, in which the Petitioner demanded an instant and necessary modification in the current methods for the treatment of municipal solid waste or garbage in India:

  • The Tribunal determined that the situation was massive since over a lakh tonnes of raw rubbish is discarded every day just outside of the town limits, and there is no suitable treatment for this waste, which is deposited on the property, alongside highways, rivers, and among other places.
  • As of 2012-2013, the entire country created approximately 133760 MT of waste every day, and this rate has been steadily increasing.
  • The Tribunal emphasized the need of converting this debris into a production of electricity and fuel that can be used for the betterment of society, following the Sustainable Development Principles.

Judgment

  • After considering all aspects of the problem the Tribunal issued over 25 directives. The Tribunal ordered each state and territory to instantly execute the Solid Waste Management Rules, 2016 and to formulate an implementation strategy in line with the Regulations within four weeks. The Tribunal additionally ordered the Central Government, state governments, local governments, and all citizens to fulfil their responsibilities under the Rules as soon as possible.
  • Before waste treatment in energy facilities, a directive was published to maintain correct segmentation. It authorized buffer zones to be built around facilities and landfills as needed. In waste-into-energy plants, absolute segregation is required, and landfills should only be utilized for storing inert waste and must be bio-stabilized within six months. The Tribunal’s most crucial directive was a complete ban on the open burning of rubbish on public grounds, especially landfills.

Conclusion

Climate litigation has a lot of possibilities in India, thanks to the current court-developed environmentalist doctrine, environmental management statutes, the mechanism of PIL, Judicial Review, as well as various private legal remedies. Although some of the Indian judiciary’s methodologies are closely related to those of Australian and US courts, there are some notable and remarkable components of the Indian judiciary which assure that if climate change situations continue to search through higher courts and the NGT, there will be more opportunities for climate litigation. In exercising its authority under Articles 32 and 142, the Supreme Court of India can promote effective climate concerns brought in courts. The Supreme Court, through judicial activism and public interest litigation, may become the most important venue for redressing the significance or consequences inflicted by climate change. Claimants will find it simpler to bring petitions or claims against violations of their basic and human rights as a result of climate change impacts due to the easing of standing criteria and procedural flexibility in public interest litigation or rights-based litigation.

References


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