Abstract
Examining the challenges associated with legal claims and disputes resulting from a changing climate and the initiatives to tackle the same, this blog discusses India's initiatives toward climate action, renewable energy transition, and pledges made under the Paris Climate Agreement, while also touching upon the global context to highlight the shortcomings of states in achieving the Paris Climate Agreement goals. The blog also introduces the National Green Tribunal as a manifestation of India's constitutional and international commitments to resolving environmental issues. While appreciating India's streamlined efforts in environmental and climate litigation through the NGT and the jurisprudence that has emerged from the tribunal, the blog also highlights considerable obstacles of tribunal dispute resolution. As an alternative to tribunal dispute resolution, this blog illustrates arbitration as a preference for dispute resolution by using the example of arbitration in the energy sector, resulting from an increased regulation by states in energy transition, by drawing on the recourse to scientific and technical expertise, expedited resolutions, public participation, and transparency, while underpinning the same on existing literature of international arbitration, treaties, and rules to support the same.
Introduction
One of the greatest risks to mankind has been climate change and its damaging environmental consequences. Unsurprisingly, human activities have been the main contributor to climate change. Climate change causes a change in the composition of the global atmosphere that is linked to human activity in addition to natural climate variability seen over comparable time periods. Long-term fluctuations in temperature and weather patterns have adverse, irreversible impacts on human health, the environment, food security, work, and other factors.
Tracking India's Climate Action Progress
Under the Paris Agreement, every signatory country must declare their Nationally Determined Contributions (NDCs). NDCs are long-term, self-determined pledges detailing what the participating countries will do to help meet the goal of maintaining a global temperature rise to 1.5°C, adapting to climate impacts, and ensuring sufficient finance to support these efforts. They represent short to medium-term plans. They are required to be revisited and updated every five years, with increasingly higher ambitions depending on each country's capacity and capabilities.
As a signatory to the Paris Agreement, India has made great strides in solving the climate crisis. India is touted to have one of the world's most rapidly developing renewable energy sectors. It is reportedly faring much better than other nations. In an address to the White House on June 22, 2023, PM Modi stated, "You perhaps know that of the G20 countries, the promises they made in Paris, of all the G20 countries, India is the only country that has fulfilled all the promises it made at the G20," PTI quoted him as saying. "Not just that, in the area of solar energy in Glasgow, we have set ourselves a target to achieve 500 GW of renewable energy by 2030," he added. However, as per the Climate Action Tracker, an independent scientific project that tracks the government climate action of over 40 countries and measures it against the globally agreed measures under the Paris Agreement, India still has a long way to go. As per CAT's last update (November 2022) , CAT has rated the Indian climate action as "highly insufficient." Although it acknowledges India's significant progress in its renewable energy capacity installation, which currently ranks fourth in the world, India's "reliance on coal power continues to be a drag on ambition." While India may have cemented its targets in the second NDC in 2020, more is needed to result in any tangible reduction of real-world emissions beyond current levels.
The Climate Action Transparency Report in 2020 found that no G20 countries were on track to meet their targets under the Paris Agreement. The report further indicated a need for India, among other countries, to “enshrine their net zero targets into law.”
Climate Disputes
There is no universally accepted definition of disputes related to climate change. Even though international institutions and instruments have attempted to define climate change, its causes, and the risks that come with it, an attempt still needs to be made to define climate change disputes. To propose a resolution for climate change-related disputes, the International Chamber of Commerce (ICC) on Arbitration and ADR Task Force published a report in November 2019 . The report attempted to discuss the scope and ambit of climate change disputes. As per the report, climate change disputes include “any dispute arising out of in relation to the effect of climate change and climate change policy, the United Nations Framework Convention on Climate Change ("UNFCCC"), and the Paris Agreement.”
The International Chamber of Commerce's report on resolving climate change-related disputes through ADR outlines three categories of disputes “(i) contracts relating to the implementation of energy or other systems transition, mitigation or adaptation in line with the Paris Agreement commitments (for the avoidance of doubt, the Paris Agreement is between state parties and the commitments thereunder apply to state parties and not to non-state parties unless they have been incorporated into domestic regulation); (ii) Contracts without any specific climate-related purpose or subject-matter but where a dispute involves or gives rise to a climate or related environmental issue; and (iii) submission or other specific agreements entered into to resolve existing climate change or related environmental disputes, potentially involving impacted groups or populations.”
Climate change mitigation is now a global concern, and during the past year, climate change- related disputes have emerged as a significant trend in local and international dispute resolution. At the domestic level, litigants frequently seek redressal in national courts that entails either mitigation (e.g., reducing greenhouse gas emissions) or adaptation (e.g., reducing the adverse consequences of climate change on the ecosystems, communities, or infrastructure). On a global scale, international conventions and treaties on climate change advocate the use of alternative dispute resolution (ADR) processes and place a significant focus on arbitration to resolve climate change conflicts.
International Law on Climate Disputes
At the international level, significant actions were taken to address climate change. In 1972, the United Nations Conference on Human Environment was the first world conference to identify the need to manage environmental and climate issues. It created the United Nations Environment Programme, among other resolutions. The Stockholm Declaration, containing 26 principles, placed environmental issues at the forefront of all international concerns and marked the start of a dialogue between industrialized and developing countries on the link between economic growth, all kinds of pollution, and the well-being of the people. Indira Gandhi, who was the only foreign head of government out of the 113 countries present and participating, in her speech highlighted the deep connection between environmental conservation and poverty reduction.
The 1992 Rio Declaration on Environment and Development provided a starting point in advancing the path to environmental justice. It comprises of 27 Principles that serve as a roadmap for nations seeking sustainable development. The Declaration, signed by more than 170 nations, aims to achieve sustainability goals by pushing countries to form new global partnerships involving their governments, citizens, and all major sectors of society. The UNFCCC 1992 establishes the essential principles and legal framework for international cooperation on climate change. Its objective is to maintain stable levels of atmospheric greenhouse gases (GHGs) to avoid harmful anthropogenic interference with the climate system. The Kyoto Protocol was subsequently adopted in December 1997 to increase the UNFCCC 1992's effectiveness. Kyoto focuses on lowering the greenhouse gas emissions of developed countries that are parties to the Convention. It requires parties to "implement and/or further elaborate policies and measures in accordance with its national circumstances." The 2015 Paris Agreement has furthered the objective of combatting climate change by requiring state parties to undertake and communicate ambitious efforts to strengthen the global response to the threat of climate change.
India's Legal Position on Climate Change
Soon after the Stockholm Declaration, The National Council for Environmental Policy and Planning was set up in 1972, which evolved into the Ministry of Environment & Forests (MOeF) in 1985. India enacted the Wildlife Act of 1972, the Water Act of 1974, the Air Act of 1981, etc. The 42nd Amendment to the Indian Constitution introduced various provisions to establish and safeguard India's commitment to environmental conservation. Introduction of Article 48A as part of Directive principles of State Policy imposed a duty on the Indian state "to protect and improve the environment and to safeguard the forests and wildlife of the country." The following is an illustrative list of legislations enacted to combat the rising challenge that is climate change and environmental conservation:
1. The Water (Prevention and Control of Pollution) Act, 1974, was for the prevention and control of water pollution and the maintaining or restoring of the wholesomeness of water in the country.
2. The Forest (Conservation) Act, 1980, for conservation of forests and all ancillary matters.
3. The Air (Prevention and Control of Pollution) Act, 1981, for the prevention, control and abatement of air pollution.
4. The Environment (Protection) Act, 1986, for the protection and improvement of the environment
5. The Public Liability Insurance Act, 1991, provides public liability insurance to provide immediate relief to the persons affected by accidents while handling any hazardous substance and for any such connected matters.
6. The Energy Conservation Act, 2001, provides for the efficient use of energy and its conservation. It specifies energy consumption standards and process norms, amongst many other energy conservation objectives. It established the Bureau of Energy Efficiency.
7. The Biological Diversity Act, 2002, provides for the conservation of biological diversity, sustainable use of its components, and fair and equitable sharing of the benefits of using biological resources, knowledge, and such connected matters. This complied with the United Nations Convention on Biological Diversity at Rio de Janeiro in 1992 (Rio Convention 1992).
India participated in the Rio Convention in 1992, which called upon states to develop national laws regarding liability and compensation for the victims of pollution and other environmental damages. As a result, in 1995, the National Environmental Tribunal (NET) was set up to provide dispute resolution and compensation in cases of either personal injury or damages to property or environment arising out of accidents on the principle of no-fault. The Act read very specifically towards compensation to be paid in cases of no-fault liability and was very myopic in its scope, which limited the redressal options available domestically in other cases of environmental disputes. In 1977, India introduced The National Environment Appellate Authority Act (NEAA) to hear appeals concerning restricting areas in which any industries or class of industries, operations, or processes are carried out. The members of the NET and the NEAA were a mixture of judicial and technical members with prior experience and expertise in matters of environmental conservation, management, planning, and development.
Establishment of the National Green Tribunal (NGT)
In furtherance of India's commitment to environmental justice and reaffirming the principles as ratified by India in the Rio Declaration 1992, the National Green Tribunal (NGT) was established in 2010 under the National Green Tribunal Act 2010 (NGT Act). The NGT Act also repealed the National Environmental Tribunal Act of 1995 and the National Environment Appellate Authority Act of 1997. The establishment was a result of a large number of environmental cases pending in the higher courts of the country and the involvement of multidisciplinary issues along with the views of the Supreme Court in various landmark cases in the environmental jurisprudence and on the recommendation of the Law Commission for setting environmental courts with both original and appellate jurisdiction.
Establishing a specialized statutory body, i.e., the NGT, was guided by the principles of Article 323B and Article 21 of the Indian Constitution. The NGT is not bound by the Code of Civil Procedure, 1908, or the Indian Evidence Act 1872 but functions on the principles of natural justice. The foundational principles of the NGT are sustainable development, precautionary principle, and polluter pay principle. India is the third such country in the world to establish a national forum for redressal of environmental issues and disputes.
The NGT deals with the adjudication and disposal of civil cases relating to environmental protection and conservation of forests and other natural resources, including enforcement of any legal rights relating to the environment. The NGT adjudicates upon matters arising out of the following legislations under Schedule I:
1. The Water (Prevention and Control) of Pollution Act, 1974
2. The Water (Prevention and Control) of Pollution Cess Act, 1977 (Repealed)
3. The Forest (Conservation) Act, 1980
4. The Air (Prevention and Control) of Pollution Act, 1981
5. The Environment (Protection) Act, 1986
6. The Public Liability Insurance Act, 1991
7. The Biological Diversity Act, 2002
Any party aggrieved by the decision of the Tribunal appeal may prefer an appeal before the Supreme Court.
The NGT comprises a full-time chairperson, judicial members, and expert members. The minimum number of judicial and expert members prescribed is ten in each category, and the maximum is twenty in each category. Another important provision included in the law is that the chairperson if found necessary, may invite any person or more persons having specialized knowledge and experience in a particular case before the Tribunal to assist the same in that case. The judicial members are either retired Supreme Court judges or retired Chief Justice of a High Court. The qualifications of expert members have been detailed in Section 5(2) of the NGT Act, 2010. There are five benches of the NGT divided across regional zones, with the Principal Bench situated in New Delhi.
Challenges of Dispute Resolution under the National Green Tribunal (NGT)
1. Administrative Challenges: A major challenge that continues to plague most of the quasi-judicial bodies in the Indian legal system, such as Tribunals, is the inability of the administration to appoint enough members to reach the statutorily sanctioned strength and, as such, reach a quorum for adjudication of disputes. Despite there being five regional benches across the country, the heavy judicial workload is being dealt with by one or two benches only, thereby severely burdening the ability of the Tribunal bench to effectively and efficaciously decide the cases before it. This causes pendency to pile up and the judicial process to slow down.
2. Limited Technical Expertise: The expert members usually have expertise in a particular field rather than the environment as a whole. For example, an expert who has been working on forests for many years would not be able to give a decision or resolve the issues related to industrial pollution. As a result, many of the Tribunal's judgments need to be more specific and of diluted relevance.
3. Confusion of Payment of Compensation: The Act remains silent about the payment of compensation in that it does not lay down guidelines for determining the financial burden. Ideally, this should be ideated in the legislation and should not be left to the member's discretion.
4. Spread of litigation in the High Courts: Despite a clear determination of the jurisdictional hierarchy, parties continue to approach their respective High Courts under Article 226 of the Constitution. This only adds to the multiplicity of litigation and slows the judicial process.
5. Limited Jurisdiction: The NGT does not broadly cover disputes of all nature and environment related. The Wildlife (Protection) Act of 1972 and the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act of 2006 are not included within the purview of the Act.
6. Limited Access to Justice: The NGT is only set up only in five zones in the country, and that restricts the common man's access to judicial remedy.
While there is no doubt about the pioneering attempt of the NGT to tackle environmental issues, a lot remains to be explored and achieved. Redressal of environmental and climate disputes through alternative dispute resolution mechanisms is currently uncharted territory in most domestic jurisdictions, including India.
Development of Arbitration to resolve Climate Change Disputes
Following the adoption of international treaties, disputes over environmental issues, including climate change, began to surface. For many years, challenges and claims were brought through public litigation proceedings, mostly constitutional and public law claims, against states and political decision-makers for failing to implement the policies and measures outlined by these treaties. There was a need to resolve climate change disputes at an international level instead of just a national level because the challenges around climate change cut across international borders. This is where arbitration played a role in the legal framework combatting climate change. In accordance with Article 14 of the UNFCCC, arbitration may be chosen as the appropriate forum in the event of a dispute involving the interpretation or implementation of the Convention.
In 2014, the report issued by the International Bar Association Task Force on Climate Change Justice and Human Rights (IBA Report) recommended that when setting out the arbitration rules under Article 14, the Permanent Court of Arbitration should be adopted as the UNFCCC's preferred arbitral body. Interstate disputes, investor-state disputes, and contract-based disputes are a few disputes that PCA has been handling concerning the energy sector. These disputes concern general environmental issues.
The Kishengana Arbitration in 2010 was an inter-state arbitration initiated by Pakistan against India at PCA in accordance with the 1960 Indus Water Treaty. The issue concerned the downstream environmental effects of the construction of a hydroelectric plant in the Kashmir region on the Indus River in Pakistan.
The Arbitral Tribunal permitted India to continue building with the condition that India will provide a minimum water flow in the Indus River. It also stressed the States' responsibilities under international law to “manage natural resources in a sustainable manner“ and to refrain from causing trans-boundary harm.
Inter-state arbitration has become a more and more feasible ADR mechanism. Although there have been an increasing number of international investment and commercial arbitrations involving environmental law claims more generally, relatively few arbitrations have focused exclusively on climate change-related problems to date. The main reason is the lack of the specialized procedures, rules, and expertise required in international arbitration institutions to resolve such disputes efficiently.
Arbitration in the Energy Sector
The oil and gas industry has been dealing with climate change and sustainable development disputes within the energy sector. The range of climate change disputes, however, has been expanding; claims have been filed against several energy-related businesses (particularly those involved in renewable energy projects), According to a recent survey by Queen Mary University, London and Pinsent Masons disputes resulting from "increased regulation (including energy transition measures adopted by States)" are likely to increase as a result of climate change. Over the last few years, regulatory changes are likely to be introduced in the investment environment, leading to disputes. Recent examples include a number of claims made against Spain under the Energy Charter Treaty as a result of the country's regulatory reforms in the field of renewable energy.
The energy sector is responsible for the most international arbitration cases out of all the sectors affecting climate change. Among its many notable features, arbitration provides:
1. Confidentiality
2. Technical expertise (choice of arbitrators)
3. More flexibility than litigation
4. Enforceability of awards in different countries
Additionally, arbitration is an oft-used method of dispute resolution on the international level between states and private parties such as corporations, non-profit organisations, and climate policy think tanks. Utilising ADR tools for domestic disputes is in its nascent stages. Amongst the developing economies, India currently has one of the most robust systems for Alternative Dispute Resolution mechanisms. More and more entities and individuals opt for ADR options before approaching the traditional courts. In fact, the newly passed Mediation Bill 2023 in India, makes pre-litigation mediation mandatory for selective disputes and makes it time-bound to 180 days. It has listed disputes that are not fit for mediation and as such, , any agreements resulting from successful mediations shall be binding and enforceable like court judgments. The Mediation bill, therefore, is exemplary of the scope of ADR in technically specific disputes such as climate change disputes.
Arbitration, therefore, is an effective and vital mechanism for such disputes.
Furthermore, as the IBA Report provided, there is a need for all arbitration institutions to develop specialised arbitration rules and/or procedures for the effective resolution of climate change disputes. The first set of arbitral rules created particularly for environmental disputes is the PCA Environment Rules , published in 2001. The Environmental Rules provide for creating a specialized list of arbitrators with expertise in this field. They also provide for the establishment of a list of scientific and technical specialists who may be called as expert witnesses. Parties have the freedom to select arbitrators and expert witnesses.
International arbitration is advantageous to combat climate-related disputes in many ways. As a result, exactly like the PCA environmental rules, a well-structured set of specialized rules should consider the following factors to make arbitration an efficient means of resolving climate change conflicts.
Effective Factors of Arbitration in Resolving Climate Related Disputes
1. Recourse to appropriate Scientific and Technical Expertise: Keeping in mind the dynamism involved, like disputes in general, it is preferable to have specialist expertise in the matters involved. The specialised arbitration rules allow parties to choose and appoint members to the Tribunal with appropriate and relevant legal, scientific, and technical expertise related to climate change disputes. For instance, in the Kishenganga Arbitration, an engineer (a non-lawyer) was appointed as one of the members of the arbitral Tribunal whose expertise was relevant since the arbitration involved technical engineering and environmental issues.
2. Expedited Resolution: By having access to specific technical expertise in the arbitral Tribunal, the process of identifying and resolving contentious issues can be sped up. As it is, under the Arbitration and Conciliation Act of 1996, the proceedings require culmination within 18 months. Additionally, bespoke arbitration rules may provide several measures to expedite the dispute resolution process, including emergency arbitrations, expedited proceedings for certain disputes, the use of escalating dispute resolution clauses, etc.
3. Public Participation: Climate change disputes concern the public interest and may benefit from the involvement of additional third parties. Specialized rules should consider the role and claims of third parties in contractual arbitrations. NGOs, research institutions, amicus curiae, and joinder of additional parties are some examples that allow non-parties to participate in the proceedings. Climate change disputes are complex and multi-faceted. Depending upon the relevance and involvement of the many interested parties, appropriate steps may be taken to include them in the arbitral proceedings.
4. Transparency: Climate change impacts people, organizations, and states globally. Thus, transparency is crucial in climate change disputes because the severe consequences of climate change are a matter of public interest. Increased transparency for such conflicts can be achieved by (i) making the proceedings available to the public and (ii) publishing awards and other case documents. An ideal example to follow is the UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration, which provide greater transparency in investor-state treaty-based disputes.
Conclusion
Like the Permanent Court of Arbitration and American Arbitration Association, steps may be taken by Indian institutions, particularly domestic arbitration associations such as the Indian Council of Arbitration (ICA), to encourage and develop sector-specific rules, particularly in the field of climate change disputes to inculcate a cross culture of arbitration, mediation, and conciliation. A panel of scientific and technical experts across all fields is drawn up for parties to choose from. Arbitration can give the parties a free range and autonomy to choose their own adjudicators depending upon the nature and complexity of the dispute. Notably, there is full judicial support for establishing a solid and vibrant ADR system. As such, this could provide a much-needed niche and relief to the climate change dispute sector in the Indian economy. The prospects of arbitrability of climate change disputes in the energy and infrastructure sector are promising.
Disclaimer
The views and opinions expressed in this blog post are solely those of the individual authors and does not reflect the opinion of their respective firms or practices.
About the Authors
Drishtana Singh is an independent legal consultant and practitioner at the Punjab & Haryana
High Court at Chandigarh with extensive dispute resolution experience.
Vedika Gandhi is an Attorney (Disputes) at JSA Advocates and Solicitors, New Delhi. She has
completed her LL.M in International Arbitration and Dispute Resolution from National
University of Singapore.
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