LEGAL TRENDS IN CLIMATE CHANGE

Updated: Feb 4

Mankind stands at a defining moment in history being confronted with several challenges of poverty, health, gender equality, governance and most importantly that of climate change. Climate change for long has been a burning issue, and given the recent unprecedented events of accelerated rise in sea levels, longer and more intense heat waves raising the global mean temperature and loss of biodiversity due to increasing desertification, climate change has rightly been affirmed as “one of the greatest challenges of our time” by UNFCCC. Positively, with growing concerns over climate change there has been an exponential increase in laws relating to it, from only 60 laws in place in 1997 to 1260 laws in place by 2017, spread across 164 countries which accounts for 95% of global greenhouse gas emission[1]. This article traces the development of these legal trends around the world, with a special attention to the Indian legal framework.


Legal efforts to address climate change at a global platform started with the introduction of global environmental issues, as a topic of discussion for the first time at the UN Conference in 1972, which lead to the declaration of the UN conference on the Human Environment (1972) containing twenty six principles regarding the conservation and enhancement of human environment. Among these, the first principle itself established that man has a fundamental right to “freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being”[2]. Agenda 21, adopted at the UN Conference on Environment and Development, better know as the Rio summit, further affirmed these principles in 1992. A year later in 1993 Convention on Biological Diversity (CBD), an internationally binding treaty was adopted with three main objectives, that is to conserve biodiversity, use biodiversity sustainably and have an equitable distribution of these resources, which ultimately lead to promoting actions leading to sustainable development[3]. Next big step came with the introduction of United Nation Framework Convention on Climate Change (UNFCCC), which became effective from 1994 and laid down several principles regarding control of emission of greenhouse gases. It contained provisions for the development of technology, undertaking of scientific research and collaboration among developed and developing countries to mitigate the effects of climate change. The shortcoming of UNFCCC was that it was not binding on the countries, this was soon covered by the Kyoto Protocol in 1997, which established a binding commitment from 37 industrialized nations as well as the European community to lower down emission levels of greenhouse gases to an average of 5% by 2012[4]. The 2015 Paris agreement also came as a landmark event to address issues regarding climate change by setting up an international framework to unite the efforts of all nations to achieve the common objective of combating climate change, entailing commitments to hold the average global temperature rise below two degrees and to curtail emissions to net zero by 2050 and 2060 for developed and developing countries respectively[5].


With the aforementioned rules and regulations governing the international sphere, most of the countries have implemented their own domestic laws with respect to climate change and India having pledged to reduce its emissions by 20-25% below the 2005 level by 2025[6], is actively enacting and implementing laws to achieve the same. The constitution of India itself lays down the primary foundation for all environment laws in India by recognizing the right to clean, healthy and pollution free environment, as a fundamental right under Article 21.The Supreme Court further held the right to wholesome environment and pollution free water and air to come under Article 21 in the case of Kendra v State of UP and Subhash Kumar v State of Bihar respectively. The 42nd amendment introduced Article 48-A under the Directive Principle of State Policy and imposed upon the state a duty to “protect and improve the environment and to safeguard the forests and wildlife of the country”. The mentioned amendment also imposed a fundamental duty upon the citizen, under article 51-A clause (g) which stated 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”. The three judge bench of the Supreme Court in the case of T.N. Godavarman Thirumalpad v Union of India & Ors (2002) read Article 48-A and Article 51 together and held that “Today, the State and the citizens are under a fundamental obligation to protect and improve the environment” [7].


Apart from these constitutional provisions, several other statutes have also been enacted that protects and regulates various environmental aspects. The Environment (Protection) Act, 1986 (EPA) acts as the principal legislation to deal with environmental protection, as it empowers the central government to take all measures “as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution”[8].


Other specialised legislation include; The Water (Prevention and Control of Pollution) Act, 1974 which aims at controlling pollution of water and restoring its purity, The Forest (Conservation) Act, 1980 which aims at protection, conservation and development of forest lands, The Air (Prevention and Control of Pollution) Act, 1981 which aims at restoring the quality of air and combating air pollution, and similar such enactments[9]. A redressal mechanism has also been put in place by the National Green Tribunal Act, which provides for setting up of several national green tribunals to address cases dealing with environmental protection and conservation. Another major step was the introduction of National Action Plan on Climate Change (NAPCC) in 2008, which mainly focused on mitigation of harmful environmental activities while pursuing overall economic growth[10].


The aforementioned steps are definitely appreciated and acknowledged as steps in the right direction, but the final target to reduce climate change still remains unattained due to ineffective implementation. It is clearly reflected that it is not about how many law, it is more

importantly about how well and effectively these laws are implemented and administered, it is not these small short term trends which climate change demands, what it needs is one powerful wave of action spread across all continents and characterized with a cooperation among citizens, corporates and the government to successfully combat climate change.


References:

[1] (Nachmany, et al., 2017). Nachmany, M., Fankhauser, S., Setzer , J. & Averchenkova, A., 2017. Global trends in climate change legislation and litigation, s.l.: The Grantham Research Institute on Climate Change and the Environment. http://www.lse.ac.uk/GranthamInstitute/wp-content/uploads/2017/04/Global-trends-in-climatechange-legislation-and-litigation-WEB.pdf

[2] (United Nations Environment Programme , n.d.). United Nations Environment Programme , n.d. [Online] Available at: https://www.ipcc.ch/apps/njlite/srex/njlite_download.php?id=6471 [Accessed 2019].

[3] (Kim, 2011). Kim, H.-E., 2011. Background: International Legal Framework for Climate Change.. In: The Role of the Patent System in Stimulating Innovation and Technology Transfer for Climate Change: Including Aspects of Licensing and Competition Law. s.l.:Nomos Verlagsgesellschaft mbH, pp. 21-32. www.jstor.org/stable/j.ctv941r23.6

[4] (Environmental Law Institute, n.d.). Environmental Law Institute, n.d. Climate Change, s.l.: s.n https://www.eli.org/keywords/climate-change

[5] (Garton, 2018). Garton, A., 2018. The legal perspective: Climate change’s influence on future business ventures, s.l.: ClientEarth. https://www.clientearth.org/the-legal-perspective-climate-changes-influence-on-future-business-ventures/

[6] (Grantham Research Institute on Climate Change and the Environment, n.d.). Grantham Research Institute on Climate Change and the Environment, n.d. Climate Change Legislation In India. Pg.2.

http://www.lse.ac.uk/GranthamInstitute/wp-content/uploads/2015/05/INDIA.pdf

[7] (Indian Bar Association , n.d.). Indian Bar Association , n.d. Constitutional Provisions for the Protection of Environment with Relevant case laws.

https://www.indianbarassociation.org/wp-content/uploads/2013/02/environmental-law-article.pdf. (ref. for all the mentioned cases and Articles).

[8] Article 3 (1), The Environment Protection Act, 1986.

file:///Users/prajwaltotla/Downloads/The-Environment-Protection-Act-1986.pdf

[9] (Kapoor & Vibhaw, 2019). Kapoor, S. & Vibhaw, N., 2019. The Environment and Climate Change Law Review - Edition 3 INDIA, s.l.: The Law Reviews.

https://thelawreviews.co.uk/edition/the-environment-and-climate-change-law-review-edition-3/1179636/india

[10] (Grantham Research Institute on Climate Change and the Environment, n.d.). Grantham Research Institute on Climate Change and the Environment, n.d. Climate Change Legislation In India. Pg.2.

http://www.lse.ac.uk/GranthamInstitute/wp-content/uploads/2015/05/INDIA.pdf


Submitted by,

Prajwal Totla,

B.B.A.LL.B.

O.P. Jindal Global University


(Image used for representational purpose only.)

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