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:
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
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 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:
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:
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.
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.