Climate Litigation in India: gaining traction?

by Shibani Ghosh

The recently concluded negotiations at the Paris COP and the Paris Agreement emerging out of it underscore the importance for all countries to undertake meaningful national climate action. But like many other countries, India is much more likely to pursue effective climate action if there are compelling domestic drivers at play.

Environmental regulation is one such driver. India does not have a comprehensive legislation on climate change, but there are other legislations that speak to different aspects of climate change – impacts and causes. These laws could potentially provide triggers for climate action. Unfortunately, the experience with other environmental issues shows that enactment of a legislative instrument is not an adequate response, given enforcement is weak or non-existent. The Indian judiciary has often stepped in to compel executive action. In this context, it is worth examining the prospects for climate litigation in Indian courts. The prospects are not too bad, and hopefully getting better.

Over the last three decades, environmental governance in India has been shaped and reformed by the courts. Most issues of environmental concern in the country have made it to our courts – wildlife protection, forest conservation, industrial and vehicular pollution, waste management, processes for regulatory approvals, etc. The Indian judiciary has recognised (otherwise unenumerated) environmental rights, significantly influenced (and occasionally dictated) policymaking, and closely monitored the implementation of its orders. This judicial activity is possible, in part, because the higher judiciary in India enjoys extensive powers under its constitutional writ jurisdiction: powers it has exercised innovatively and expansively in rights-based environmental litigation. It is therefore not surprising that Indian courts in their well-intentioned enthusiasm to address environmental problems have been referring to ‘climate change’ and ‘global warming’ much before the issue gained the national and international salience it enjoys now. But these were mostly limited rhetorical references and climate concerns have not been determinative of final judicial outcomes.[1]

However, four judgments of the National Green Tribunal[2] seem to indicate that judicial engagement with climate concerns may be deepening.

The first judgment was delivered in February 2014 by the Tribunal in a matter concerning the environmental impact of the tourism industry on the Rohtang Pass area in Himachal Pradesh.[3] The Tribunal discusses the various adverse environmental impacts in detail, emphasising on the impact of black carbon on glaciers. It relies on the causal relationship between global warming and melting glaciers, and observes that the Rohtang Pass is particularly vulnerable due to its eco-sensitivity. It gives several directions to the state government to control pollution and environmental damage in the area, including regulating the number of vehicles permitted to ply in the area, prohibiting crop residue burning and imposing a pollution tax on tourists.

In the second case, orders were sought from the Tribunal directing the Central and State governments to show the steps taken by them to implement the National Action Plan on Climate Change (NAPCC).[4] During the pendency of the case, the Ministry of Environment, Forest and Climate Change (MoEFCC) reportedly filed an affidavit stating that the Tribunal could not exercise jurisdiction over the implementation of the NAPCC as it was not issued under any of the seven laws within the Tribunal’s jurisdiction.[5] The final order of the Tribunal does not directly overrule this position taken by the MoEFCC but allows specific cases of violation of the NAPCC, its impact and consequences to be filed in future.[6] Additionally, the Tribunal directed states that were yet to draft their action plans in accordance with the NAPCC to prepare the same and to get them approved by the MoEFCC expeditiously.

The third case was before the Western Bench of the Tribunal[7] and concerned the implementation of the MoEFCC’s Notification[8] requiring coal-based thermal power plants to use coal with ash content not exceeding 34%.[9] The case was filed by a resident of a village affected by air pollution caused by a thermal power plant. According to him, the Notification was being violated across the state of Maharashtra causing severe environmental damage. Through a series of orders, including some contemplating coercive actions against the MoEFCC officials, the Tribunal directed the MoEFCC to come up with a monitoring and compliance protocol that would ensure that the Notification was effectively implemented by all thermal power plants and coal mines.[10] In its final judgment, the Tribunal justifies its orders to ensure proper implementation of the Notification on the ground that an ‘important co-benefit of such on initiative would be lesser GHG emissions i.e. lesser carbon footprint in thermal power generation’.[11]

In the fourth case, a voluntary organisation approached the Principal Bench of the Tribunal for directions to stop industries manufacturing HCFC-22 (a refrigerant gas) from emitting HFC-23 – categorised as a greenhouse gas under the Kyoto Protocol. The MoEFCC and five companies manufacturing HCFC-22 in India were made a party to the case. The MoEFCC contended that HFC-23, though a greenhouse gas under the UNFCCC, was not a pollutant. As no domestic environmental law regulates HFC-23, the respondents challenged the Tribunal’s jurisdiction to hear the case. The Tribunal held that as HFC-23 is a greenhouse gas and greenhouse gases cause global warming that affects aspects of human life and ecology – the Tribunal was statutorily empowered to decide the case.[12] The Tribunal’s reasons to justify a climate claim under the Environment (Protection) Act 1986 and its own jurisdiction over such a claim under the National Green Tribunal Act 2010 is potentially significant for future claims. On the specific issue of regulation of HFC-23, the Tribunal concluded that since ‘it is a part of policy of Government of India at the global level’, it may not be advisable for the Tribunal to intervene. However, it observed that the concerned authorities should take appropriate measures under the current law to regulate HFC-23.

With the Tribunal enjoying a fairly wide jurisdictional mandate and the powers to set its own evidentiary requirements, it offers a favourable forum for climate litigation. These four judgments signal the Tribunal’s willingness to factor climate change considerations in its decision making. The Tribunal seems to have accepted climate change as a fact and there is no discussion on causality or liability – issues that courts in other jurisdictions have struggled with in climate litigation. More significantly, the Tribunal seems to believe that the government has a duty to mitigate causes of climate change. These judgments do not tell us where this duty to take action arises from. In the absence of any international obligations, presumably the Tribunal finds domestic environmental law and constitutional law to be the source of this duty.

However, a note of caution. The Tribunal is a creature of a statute – the National Green Tribunal Act 2010, and is limited by its provisions. It is not a constitutional court and therefore while rights-based claims may be brought before it, they have to in some way raise a ‘substantial question relating to environment’ and arise from the implementation of one of the seven laws within the Tribunal’s mandate.[13] For that reason, the Tribunal may conflate climate-related claims with other claims brought before it.

Many environmental movements in India have chosen the litigation route to demand action against environmental degradation and executive inaction. Climate considerations are already being voiced in Indian environmental litigation and it is only a matter of time before claims for clear mitigation and adaptation measures are argued before Indian courts. If it is an important environmental issue in India – and it, undoubtedly, is – our courts can never be far behind.

The author is a Fellow at the Centre for Policy Research, New Delhi.

[1] For a comprehensive discussion on the existing case law on climate change in India see Lavanya Rajamani, Rights Based Climate Litigation in the Indian Courts: Potential, Prospects & Potential Problems, CPR Climate Initiative: Working Paper 2013/1 (May). See also, the India Chapter by Lavanya Rajamani and Shibani Ghosh, in Richard Lord, Silke Goldberg, Lavanya Rajamani and Jutta Brunnée (eds) Climate Change Liability: Transnational Law and Practice 139 (CUP, 2011).

[2] The Tribunal was set up in 2010 to expeditiously hear environmental cases, ensure implementation of seven central environmental laws, award appropriate compensation and direct restoration of damaged environment. With experts from technical fields on the bench, along with judicial members, the Tribunal is considered well placed to decide complex environmental matters.

[3] Court on its own Motion v. State of Himachal Pradesh & Others, Application No. 237 of 2013, Judgment dated 6 February 2014.

[4] Gaurav Kumar Bansal v Union of India & Others, Original Application No. 498 of 2014.

[5] See, ‘Climate change issue beyond National Green Tribunal’s jurisdiction: MoEF’, The Economic Times, 2 April 2015.

[6] Gaurav Kumar Bansal v Union of India & Others, Order dated 23 July 2015.

[7] The Tribunal has a principal bench at New Delhi, and four zonal benches at Pune (Western Bench), Kolkata (Eastern Bench), Chennai (Southern Bench) and Bhopal (Central Bench).

[8] Ministry of Environment and Forests, Notification dated 2 January 2014, notifying the Environment (Protection) Amendment Rules, 2014.

[9] Ratandeep Rangari v. State of Maharashtra and Others, Application No. 19 of 2014.

[10] The Ministry issued a Protocol vide Office Memorandum No. Q-15017/40/2007-CPW dated 26 August 2015.

[11] Ratandeep Rangari v. State of Maharashtra and Others, Judgment dated 15 October 2015.

[12] Indian Council for Enviro-legal Action v MoEFCC and Others, Judgment dated 10 December 2015.

[13] Section 14, National Green Tribunal Act 2010.

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