effective Indian climate law
Court on climate right and how India can enforce
India is still developing, what the country needs is a law that enables progress toward low-carbon and climate-resilient development
recent judgment in M.K. Ranjitsinh and Ors. vs Union of India & Ors.
court has read into the Constitution of India the right to ‘be free from the adverse effects of climate change’
identifying both the right to life and the right to equality as its sources.
A new right around climate
Great Indian Bustard and transmission line work
The issue before the Court was whether and how electricity transmission lines can be built through the habitat of the critically endangered Great Indian Bustard.
The government claimed
that a previous court order protecting the bird’s habitat had affected the country’s renewable energy potential.
Modifying this order, the Court prioritised transmission infrastructure to enable accelerated development of renewable energy to address climate change.
‘climate right’ and article 21
But the more seismic aspect of the judgment was the newly minted ‘climate right’ rooted in the constitutionally guaranteed right to life (Article 21) and right to equality (Article 14).
Reading this right into the Constitution potentially opens the door to climate litigation, empowering citizens to demand from the government that this right be protected.
But the judgment have unresolved questions
1 Does the Court overstate the large-scale clean energy agenda as the main pathway to avoiding climate harms and, correspondingly, understate climate adaptation and local environmental resilience?
2 Just how will this right against the adverse effects of climate change be protected?
3 And what might it mean for the agenda of the newly formed government?
no ‘umbrella legislation’
The judgment itself states that there is no ‘umbrella legislation’ in India that relates to climate change. And in so doing, seems to implicitly recognise the merits of an overarching, framework legislation.
experience of other countries
framework legislation can bring several advantages.
It can set the vision for engaging with climate change across sectors and regions, create necessary institutions and endow them with powers, and put in place processes for structured and deliberative governance in anticipation of and reaction to climate change.
Indian context is important
not blindly copy other countries
These are important advantages, and good reasons for India to consider climate legislation. But at the same time, it is essential that Indian climate legislation not blindly copy other countries, and is tailored to the Indian context.
India needs to transition to a low-carbon energy future
an imperative that is highlighted in the Ranjitsinh judgment. But this, by itself, is not good to enforce a right against the adverse effects of climate change.
supportive regulatory environment
Climate legislation should also create a supportive regulatory environment for more
- sustainable cities,
- buildings, and
- transport networks.
shifting to more climate-resilient crops
It should provide mechanisms for shifting to more climate-resilient crops.
It should protect key ecosystems such as mangroves that act as a buffer against extreme weather events. And, it should actively consider questions of social equity in how it achieves these tasks.
a single, omnibus law
that covers all these areas is not feasible, particularly in the face of an existing legal framework that legislates on most of these issues.
It is impossible to anticipate upfront all the ways in which society can and should prepare for climate change. So, what is the way forward?
learn from international experience
1 both what not to do and what directions to follow. Climate laws in many countries, often following the example of the United Kingdom.
2 as UK focus narrowly on regulating carbon emissions, for example, by setting regular five yearly national carbon budgets and then putting in place mechanisms to meet them.
3 This sort of approach, which has unfortunately become somewhat of a template for countries to follow, is ill-suited to India.
4 India is still developing, is highly vulnerable, and yet to build much of its infrastructure, what the country needs is a law that enables progress toward both low-carbon and climate resilient development.
The distinction between a regulatory law, such as the U.K.’s, and an enabling one, like, for example in Kenya, is important to understand.
A regulatory law vs enabling law
A regulatory law - focuses, in a narrow way, on emissions and how they can be limited.
An enabling law -
1 it can be written to stimulate development-focused decisions in a range of sectors across the economy —
- urban,
- agriculture,
- water,
- energy and so on — by systematically asking whether each decision moves the country closer to or further from low-carbon growth and climate resilience.
- Importantly, this approach emphasises adaptation as much as mitigation.
2 this law will be a more procedurally-oriented law
one that systematically creates the institutions, processes and standards for mainstreaming climate change across diverse ministries and different parts of society.
3 such a law would support
support
- knowledge-sharing,
- ensuring transparency
- and avenues for public participation
- and expert consultation,
- prompting meaningful setting (and revision) of targets and timelines and reporting against these.
The factor of federalism
a climate law essential for india
1 it ensure that the law works effectively within Indian federalism.
2 Many areas relevant to climate action
- from urban policy
- to agriculture and
- water fall under the authority of sub-national governments — States or local levels, and electricity also is a concurrent subject.
3 coherent national action and decentralising
An Indian climate law must simultaneously set a framework for coherent national action
while decentralising sufficiently to empower States and local governments, and enable them with information and finance to take effective action.
4 enabling role should ideally also extend beyond government
Business, civil society and communities, particularly those on the frontlines of climate impacts, have essential knowledge to bring to energy transition and resilience.
participation in decision making would enable all these sections of society to bring their knowledge to the table in addressing climate change.
These broad ideas provide a set of principles for a climate law tailored to India, one that provides a basis for taking forward and fulfilling the promise of the Ranjitsinh judgment.
source the hindu
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