Climate Change And Its Impact On The Legal World By - Debdeep Banerjee

Climate Change And Its Impact On The Legal World

Authored By - Debdeep Banerjee

What is climate change?

Climate change is the variation in global and regional climates over a duration of time. This change shows the variability of the atmosphere over different time durations ranging from decades to millions of years. This presents society with a wide array of threats and very limited opportunity on social, economic and political level. It also poses challenges and questions to the legal system. These challenges are not only relevant to lawyers but shall affect all members of the society.

India and climate change

India stands to be one of the most vulnerable states to the effects of climate change. Until now major portions of the Indian population have been dependent on agriculture and other sectors that are climate sensitive in nature. Around 20% of India’s landmass is flood prone while 16% is prone to droughts. In present day, India is the third largest emitter of greenhouse gases following China and the US. During the period of 1990 and 2009, India has almost tripled its annual emissions from 600 metric tonnes to nearly 1700 metric tonnes. Projections suggest that India’s net Carbon Dioxide emissions are likely to increase 2.5 times from 2008 to 2035.

Hence, Climate change and energy are key focus points of the national, state and the local government authorities. Earlier India being a developing nation had low per capita emission rate, it was not responsible for the past era greenhouse gas emissions. This fact is now changed, as India has become a global player in international negotiations. India has begun implementation of a vast and diverse set of policies nationally and individually in states in order to improve the energy efficiency of the nation and to develop cleaner sources of energy. India also prepares for the impact of climate change in the future. India has multiple substantive regulations and laws in place for regulation and/or prevention of any action that may cause further harm to the environment and may cause climate change.

Even with all these laws and legislations in place there was still the need for a national guiding strategy that specified the nation’s development and at the same time mitigated and adapted to the challenges that are posed by climate change. This plan was laid down as the framework for the ‘National Action Plan on Climate Change (NAPCC) in the year 2008. This framework was further subdivided in eight subsidiaries.

These subsidiaries were formed with the aim to further advance India’s approach to climate change while satisfying the principles of the NAPCC. Apart from these there are multiple other strategic plans and incentives device for energy conservation and to mitigate the impacts of climate change.

Environment and the Indian Constitution

The constitution of India is one of the rare constitution that contains specified proviso on the environment. The fundamental duty and DPSP chapters enunciate India’s commitment to protection and improvement of the climate. To name a few constitutional provisos that have direct impact on the environmental matters:

• Article 21[1] states that, “no person shall be deprived of his life or personal liberty except according to procedure established by law”. In the case of Subhash Kumar v. State of Bihar[2], 1991 and also in the case of Virender Gaur v. State of Haryana[3], 1995, the Supreme Court of India recognized several other liabilities which are implied under Art.21 which is followed by the different State High Courts that have now recognized an environmental angle to Art.21

• Article 48A[4] states that “the state shall endeavour to protect and improve the environmental and to safeguard the forests and wildlife of the nation”

• Article 51A[5] has established that “it shall be the duty of every citizen if India to protect and improve the natural environment including forests, lakes, rivers and the wildlife and to have compassion for living creatures”.

Role of the Jud`iciary

Environmental law in India has seen tremendous development in the previous thirty years through reasonable judicial contemplation of the Supreme Court of India and the High Courts based on the pre-existing legislation on the matter. During the process of adjudication of such matters, Supreme Court of India has developed a new approach of judge driven implementation for this type of administration. Courts played a key role in the interpretation of such legislation and have been able to isolate the principles of environmental laws through interpretation of statutes and the Indian Constitution, the courts have also portrayed a liberal approach in order to make sure that human rights and social justice is not harmed in the process. The judgements and order passed by the courts have a diverse filed including water, air, hazardous and solid wastes, industrial pollution, vehicular pollution, river pollution, illegal mining operations, waste dumping, forest depletion, the illegal felling of trees, protection of old architectural heritage, etc.

Judgements where several principles of environmental law were judicially recognised

• In the case of MC Mehta v. UOI[6], Supreme Court of India passed an order where particular vehicles with high emission standards shall not be sold or registered in the nation and be substituted by vehicles with lower emission standards. In addition, other orders were passed where bans were imposed on diesel vehicles in order to reduce pollution.
• In MC Mehta v. UOI[7], the Supreme Court of India developed a jurisprudence of Absolute Liability in order to compensate victims due to the pollution caused by hazardous industries.
• In MC Mehta v. UOI[8], where the Ganga pollution issue was discussed in the Supreme Court of India. The Supreme Court of India closed multiple industries, which were situated by the banks of the river many tanneries situated in Kanpur.
• The Supreme Court of India in the case of TN Godavarman Thirumulpad v. UOI and Ors.[9], the case dealt with the issue of the forest dweller’s livelihood of the Nilgiri region of TN who were affected due to the deforestation.
• In the Ganesh Wood Products v. State of Himachal Pradesh[10], 1996 Supreme Court of India, this judgement imposed ban on all the de forestation activity without approval of the central gov. and separate order was passed by the Supreme Court to form a committee in every state for the identification of forests and the movement of timber.
• In MC Mehta v. Kamal Nath[11], the Supreme Court of India interfered and held that the state as trustees that have a duty towards protection and preservation of natural resources e.g., rivers, forests, common property, open lands and lakes.
• In MI Builders Pvt. V. Radhey Shyam Sahu[12], Supreme Court of India implemented the Public Trust Doctrine and ordered the city developer to remove a particular underground market, which was built under a historically important garden.
•  In the case of Vellore Citizen Welfare Forum v. UOI[13], Supreme Court of India came up with the Precautionary Principle in order to keep the underground water pollution caused due to lather industries in TN under check. In the same judgement, Supreme Court of India gave the opinion that the Polluter Pays Principle and the Precautionary Principle to be a part of Indian environmental law policy.
• In State of Himachal Pradesh v. Ganesh Wood Products[14], Supreme Court of India recognised the Principle of Inter-Generational Equity as the epicentre for conservation of forests and for the sustainable development thus invalidating the forest-based industry.
• In the case of India council for Enviro-Legal Action v. UOI[15], Supreme Court of India implemented the principle of restoring the villages whose ecosystems were damaged or destroyed by the products that are left out in the trial process of multiple industries that have been allowed to produce H acid.
• Supreme Court of India in the case of Indian Council for Enviro-Legal Action v. UOI[16] stated that there should be violation of the Sustainable Development Principle if an adverse ecological effect is caused due to an industry.
• Supreme Court of India recognized the Principle of Sustainable Development in the MC Mehta v. UOI[17].
• The Delhi High Court in case of Enkay Plastic Pvt. Ltd. v. UOI and Ors.[18] held that it was in larger public interest to prevent any form of harm to the health and life of the people. Thus ordered that certain manufacturing units of Urea Formaldehyde Power that were operating in populated residential areas be shutdown.

Climate change and Rule of Law

Rule of law is an idea that seems to be developed for this kind of crisis. Climate change has been intensifying the risks of democratic rule of law values, this means that as the crisis of climate change intensifies and it starts having a large impact on democratic political systems, which are supported by the ideals of expansive rule of law of justice, and democratic government shall be under constant strain in the coming years. The rule of law justifies and constrains power, it allows power to be Supreme Court of India utilized and challenged, and in the present day scenario, the rejection of such aspects of rule of law is clearly visible. Norms of Rule of law allows legal rights for foreigners to engage themselves in the development and implementation of obligations to the climate. This shall be lost if common public loses faith that the law shall still be applied consistently and meaningfully. The climate change crisis has aroused a more detailed questioning of the legal institutions of a nation regarding their obligations, the roles they play in this crisis. Rule of law has now become the host for processes, institutional norms and right these are commonly prized in social and political structures. While equal and fair treatment before the law, individual rights, independent judiciary, accountability of decision makers, open and inclusive government, etc. are mostly taken got granted. This has to stop in the case of climate crisis. The Rule of law has become a concept for many that they are in dire need to revisit once again and essential development can be achieved in the context of climate change.

The impact on Human Rights

The Governments around the world tend to approach climate change as a ecological problem and more recently as an economical one, the implications that climate change has on the human and social rights are yet to be recognised worldwide. The effects that climate change have threatens a vast array of human rights that have been internationally accepted. Additionally, the cimate change policies aimed at mitigating its effects tends to have an impact on the human rights. It is hence essential to look how a human rights based approach can aid in the advancement and planning of climate change policy.

There tend to be multiple internationally accepted human rights that are getting negatively affected due to climate change, to list a few:

• The right to life: Climate change can have an immediate effect on the right to life by death caused due to climate change induced weather or it may also have a slow and gradual effect by climate change causing the health of people to deteriorate, by limiting their access of safe drinking water or making the people more susceptible to diseases.
• Right to adequate food: Climate change tends to have a negative impact on regional food production. Rising temperatures and changing patterns of rainfall shall lead to inevitable erosion and desertification making the land infertile, which was previously productive, resulting in reduced crop yields and livestock. The Sea levels that are steadily rising and coastal lands unusable and is the cause of migration of multiple fish species across the world.
• Right to water: As the temperature around the world increases, the heat waves and water shortages make access to drinking water and proper sanitation a scarcity. This is further affected by lower rates of rainfall, which is the result of climate change.
•  Right to health: Climate change shall inevitably have multiple devastating impacts on human health, majorly caused due to diseases and malnutrition. The changes in temperatures worldwide shall have an impact on a wide range of water-borne, vector-borne and respiratory diseases.
• Human Security: Climate change potentially can increase the already existing threats to human rights. The impact of climate change shall make the population more venerable to poverty and social deprivation. People whose rights are protected poorly are also less prepared to adapt the impacts of climate change.
• Rights of Indigenous people: Climate change has a massive impact on the indigenous population of a place. Since they are so deeply intertwined with their primitive land they are affected in a unique way and they tend to withstand the worst of climate change.

The Rise of Climate Change Litigation

Climate change litigation has become a rapidly increasing regular and comparatively accessible area of environmental law, this form of litigation is being used in order to holds public corporations and countries in large to account for their efforts and policies to mitigate the effects of climate change and also to hold them accountable for their past contributions to the problem of climate change. Studies show a steep rise in climate change litigations in the recent years and the cases so far can be broadly classified into one or an amalgamation of six main types:

1. An increasing number of cases that reply upon the fundamental rights and human rights which are provided in the International Law and the respective national constitutions in-order to compel a climate action.
2. Litigations that majorly seek to keep fossil fuels in the ground.
3. Advocating for greater climate disclosures and to put an end to the corporate greenwashing on subjects such as energy transitions and climate change.
4. Litigation challenging enforcement and non-enforcement of environment and climate related policies and laws.
5. Litigations that address the failure to adapt and impacts of such adaptations.
6. Corporates claiming their share of liability for climate harms and responsibility to take action to mitigate effects of climate change.

The increase seen in the current rate of cases against financial and private sector actors clearly portray a more complex and diverse form of arguments, which are practiced, more importantly those that are formed on the concept of greenwashing and fiduciary duty. Such ruling across all other types continue to install a robust global precedent in case of individuals along with organisations  in order to provide a procedure to make use of the legal avenues in their strives to drive action on climate change. The impact of such hearings and ruling can be seen clearly as their potential repercussions tend to raise eyebrows regarding what actions should be taken by the investors and what the future holds next.

Briefly listing three major considerations must be taken:

1. There is a desperate need for recognizing climate change litigation as a form of integral and evolving risk to investment growth along with investee corporation operations.
2. The infusion of litigation risk into the assessments of climate related financial risks and the addition of litigation risk into the structure of investment growth modelling.
3. Encouraging a more clearer and comprehensive disclosure policy in order to mitigate the litigation risks as much as possible.

Climate change events have such a worldwide scope and a varying intensity, they do directly not only pose a major threat to the physical assets of the investors but also underscore the following risk of and the desperate need for transitioning into a low carbon economy. Thus, adding such risks along with the potential litigation risk sheds light on how climate change has evolved from an additional dimension of physical and transitional risk into a separate risk to be carefully assessed.

It is the need of the hour for not only owners and managers but also it is imperative for corporations and investors to address these conditions through robust emissions data and a diligent reporting system. As countries, investors and corporations plan towards the Net Zero transitions such climate change litigations are only going to multiply in the near future.

What can Lawyers do?

As the world plans and prepares for rapid decarbonisation, business and individual citizens shall need to adapt and change their behaviour. In order to achieve this, we need a singular framework for share and individual responsibilities. Lawyers shall play a crucial role in enacting and enforcing the legal framework for the green transition. The legal profession deals with the risk of climate change as increasingly extreme weather generates repercussions for their clients and even their law firms. Beginning from the direct economic burdens to the indirect impact on operations of clients and their liabilities, lawyers shall need to advice and assist their clients in order to identify and manage such ever-growing physical as well as legal risks. As climate change is a global occurrence, lawyers shall also have to contend with increasing number of multi-jurisdictional and cross-border disputes. In today’s world, a climate litigation can originate and happen anywhere, this in a way allows the claimants to form shop for the country whose legal provisions and regulations are best suited to their case. Lawyer need to be aware of this practice in the field of climate litigation and adapt accordingly.

Conclusion

The growth tendencies of incidents of natural disasters such as extreme flooding as seen in Germany, sweltering heat waves hitting the US, the bushfires in Australia, typhoons and cyclones in Thailand have in a way deeply concerning portrayal that our world is getting increasingly affected by climate change. Climate change is a complex biophysical process that has huge impacts on the human civilization and essentially on all life on earth. There are a lot of development and advancement that can be achieved to do so a nation as a whole must address this crisis in big, medium and small actions. Every single individual has a pivotal role of his or her own in this crisis; one can act from all the spheres of influence. People must be made aware that the climate is changing and certain actions must be taken up in order to address this crisis.

C