A Law Around Low-Carbon Climate Resilient Development

Recently, In a landmark judgment – MK Ranjitsinh and Others vs Union of India,  the Supreme Court of India recognised a right to be free from the adverse impacts of climate change in sourcing it from the right to life and the right to equality. 

MK Ranjitsinh and Others vs Union of India

• Background: The case primarily dealt with the construction of electricity transmission lines through the habitat of the critically endangered Great Indian Bustard. 
• Government Argument: They argued that a prior order protecting this habitat hindered the development of renewable energy infrastructure, essential for combating climate change.
• Supreme Court’s Decision: The Court modified the previous order to facilitate the development of renewable energy infrastructure, prioritizing national clean energy goals over local conservation efforts in this instance.
• Significance: This interpretation opens the door for future climate litigation and demands from citizens for governmental accountability in climate protection.

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Issues With The Judgment

• Overstating & Understating: Some Critics believe that the court overstate the large-scale clean energy agenda as the main pathway to avoiding climate harms.
  •  It understated climate adaptation and local environmental resilience
• Legislative vs. Judicial Approaches: Proliferation of court-based action through enhanced litigation around climate claims, will likely lead, slowly and over time, to an incomplete patchwork of (judiciary-led) protections
  • A comprehensive climate legislation could provide a more systematic and overarching framework for addressing climate change.

Need for Climate Legislation in India

• Vulnerability: India is highly vulnerable to climate impacts, and climate resilience must be an essential element of the new law.
  • In meeting both objectives, considerations of social equity must be central. 
• Beyond Emissions Targets:  Even Though we have low per capita emissions — less than half the global average,  India’s emissions are still growing.
• Law that helps navigate developmental choices in India: It must create the basis for thoughtful decision-making toward achieving a low-carbon, , resilient society 
  • For example: It must look into
    • City planning that minimizes the risk of floods and vulnerability to heatwaves
    • Transport needs should be met through technology shifts such as electric vehicle adoption and greater attention to public transport and lifestyle shifts
• Framework Climate Laws: There is no ‘umbrella legislation’ in India that relates to climate change. 
  • Umbrella laws that define government-wide goals and substantiate them with a set of processes and accountability measures are a known and increasingly popular way of bringing climate action to the heart of government.

Global Practices

It is important to understand distinction between two types: 

• The United Kingdom: A Regulatory Law
  • It focuses narrowly on regulating carbon emissions
    • For example: By setting regular five yearly national carbon budgets and then putting in place mechanisms to meet them.
  • This sort of approach has become a template for countries to follow
  • But It is ill-suited to India: This approach is limited because addressing climate change is about more than limiting emissions.
• Kenya: Enabling Law
  • Approach Emphasises Adaptation As Much As Mitigation: An enabling law 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 
  • It is likely to 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. 
    • For example: Such a law would build in procedures to 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.

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India’s Approach Must Be Tailored To Our Context

• Striking the Balance: India’s law must ensure development, but in a low-carbon direction while building resilience to ever more pervasive climate impacts.
  • Objective should be to squeeze out as much development as possible from each ton of carbon and avoid locking-in to high carbon futures.

• Framework Legislation:
  • Need For Framework Legislation: A framework climate law should lay out an institutional structure capable of crafting viable answers to climate questions.
  • The merits of an overarching, framework legislation. 
• India Needs To Transition To A Low-Carbon Energy Future: In India, this is not nearly enough to enforce a right against the adverse effects of climate change. 
  • Climate legislation should also create a supportive regulatory environment for more sustainable cities, buildings, and transport networks.
• Find A Way of Mainstreaming And Internalising Climate Change Considerations Into How India Develops:
• • Heat Action Plan: It should enable adaptation measures such as heat action plans sensitive to local context. 
  • Climate-Resilient Crops: It should provide mechanisms for shifting to more climate-resilient crops. 
  • Mangroves: It should protect key ecosystems such as mangroves that act as a buffer against extreme weather events
  • Social Equity: It should actively consider questions of social equity in how it achieves these tasks.

Way Forward

• Engagement with the federal structure
  • Law must pay attention to India’s federal structure. 
  • Many areas crucial to reducing emissions and improving resilience  – electricity, agriculture, water, health and soil are wholly or partially the preserve of State and local governments. 
  • When a climate impact is felt, it is felt first, and most viscerally, at local levels.

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• Enabling Participation In Decision Making:  Business, civil society and communities, particularly those on the frontlines of climate impacts, have essential knowledge to bring to energy transition and resilience.
  • Finding ways of enabling participation in decision making would enable all these sections of society to bring their knowledge to the table in addressing climate change.
• Have a low carbon development body
• • Immediate priority: It is to create a knowledge body in government capable of rigorously parsing policy options and the futures they might generate. 
  • An independent ‘low-carbon development commission’, staffed with experts and technical staff, which could offer both national and State governments practical ways of achieving low-carbon growth and resilience.
  • This body could also serve as a platform for deliberative decision-making. 
• Vulnerable Community who get disproportionately affected:  Vulnerable communities and those that may lose from technological change need to be systematically consulted. 
• • Hearing their concerns and incorporating some of their ideas could lead to longer-lasting policy outcomes. 
  • For Example:  South Africa’s Presidential Climate Commission, which is tasked with charting a course toward just transition based on inputs and representations from stakeholders.
• Climate Cabinet: Law could create a high-level strategic body and label as a ‘climate cabinet’, a core group of Ministers plus representation from Chief Ministers of States, tasked with driving strategy through government
• • Effective climate governance: It also requires the ability to set directions, make strategic choices, and encourage the consideration of low carbon choices and climate change impacts within line ministries.
  • Across the world, climate policy is often defeated by siloed decision-making
•  Coordination mechanisms:  A whole-of-government approach will also require dedicated coordination mechanisms for implementation. 
• • Ministry of Environment, Forest and Climate Change should continue to play a central role, but it needs to be complemented by higher-level coordination. 
  • Devolution of Power: Here, the pre-existing Executive Committee on Climate Change (made up of senior bureaucrats from multiple Ministries), provides a useful template but only if it is reinvigorated with clearly specified legal powers and duties.