Indian leadership’s bold initiative to achieve net zero emissions and reduce greenhouse gas emissions not only paves the way for a brighter future but also reflects India’s effective commitment to environmental sustainability. The Net Zero Initiative presents a number of challenges that countries must address with the joint responsibility of governments and their citizens. As India continues to deal with conflicting provisions in existing laws, ignorance of constitutional principles, lack of environmental awareness and disobedience to precedent, the road to net zero emissions remains a formidable one. This article addresses existing roadblocks to the initiative. Challenges can be addressed in implementing regulations through rational planning as well as checks and balances, but initiatives should be reflected in national actions, not just mandates.
The Ups and Downs in India’s Net Zero Emissions Policy
Prime Minister Narendra Modipledged to reduce the country’s emissions to net zero by 2070 and set the net zero target for the democratic nation at the Glasgow summit. Although this progressive initiative missed a key goal of theCOP26 summit, which had mandated countries to commit to reaching that target by 2050, the bold initiative received no less than an appreciation.
After China, the United States (US) and the European Union, India is the fourth-largest carbon dioxide (CO2) emitter in the world. However, because of its large population, it has far lower emissions per person than other developed economies.In comparison to the US’s 15.5 tonnes and Russia’s 12.5 tonnes, India released 1.9 tonnes of CO2 per person in 2019. As one of India’s five promises, Mr. Modi aimed for India to achieve50% of its energy from renewable sources by 2030, thereby cutting all anticipated carbon emissions by one billion tonnes in the same year.
India currently emits 2.88 Gt of CO2 per year (2021). According topredictions made by the Center for Science and Environment (CSE) based on the median yearly rate of development over the past ten years (2010-2019), India’s generation in 2030 will be 4.48 Gt. In accordance with this goal, India will reduce its carbon emissions by 1 billion tonnes (1 Gt), resulting in 3.48 Gt of emissions in 2030. This indicates that India has set a lofty target of reducing its emissions by 22%.
India imported $1.197 billion worth of environmental technology equipment in total in 2021, with $147 million worth coming from the US. We know that the technology exists for four levers: renewable energy use, increasing adoption of electric vehicles (EVs), better land use, agriculture, and forestry. Now, it is a matter of applying for and receiving the necessary funding to put those ideas into action. Other levers, such as the use of hydrogen, carbon capture and utilisation, or advances in recycling, necessitate the adaptation and development of new technologies. To support the emerging green economy, India would need to reskill its workforce as well as invest massive sums of money.
Legal Challenges in India’s Strategy toward Net Zero Emissions
The primary meaning of the phrase ‘net zero emission’ signifies the removal of every man-made greenhouse gas emission from the atmosphere through reduction strategies. The larger purpose behind the same is the protection of the environment. In India, alongside the constitutional mandate of safeguarding, conserving, and improving the environment being vested on both the State and its citizens underArticles 48A and 51A (g) of the Constitution, there also exist statutory enactments such as theEnvironment (Protection) Act, 1986, and theAir (Prevention and Control of Pollution) Act, 1981, both of which can contribute towards the net zero emissions. The Act of 1986 provides the Central Government with extensive authority to implement national-scale programs for the prevention, control, and reduction of environmental pollution, thereby giving it the authority to set rules for environmental quality and the emission or discharge of pollutants. The legislation came in light ofArticle 253 of the Indian Constitution, which provides for the enactment of legislation for giving effect to international agreements, which in this case is the goal of net zero emissions that is a part of COP 26. The Act of 1981 is administered by both the Central and State governments along with the Central and State Pollution Control Board.
Concerning the two aforementioned legislations, it can be said that as the Central government has been vested with unrestrained powers towards guarding the environment’s health, conflict with the powers assigned to the State governments is a natural occurrence.Section 3 of the 1986 Act is the key to all possible locks that can restrain the implementation of the net zero mission that India has decided to walk towards. However, the key itself has been subjected to complete centralisation, a lack of checks and balances for the arbitrary exercise of powers, and incomplete coverage of pollutants. Following this,Section 24 of the umbrella legislation talks about the overriding effect of the Act, which ipso facto eliminates the scope of punishing an offender if he is held responsible for not abiding bySection 3 of the Act. Since the Act lays down no minimum penalty, the sheer flexibility in imposing deterrents is a draconian measure in itself.
The process of Environment Impact Assessment (EIA), which was first developed in the 1960s to determine how any notable project may affect the environment and its numerous components, has not been properly implemented in India. Numerous sectors and businesses have been able to avoid legal responsibility, even in cases of infractions, due to the lack of advanced technology, absence of data, as well as alterations in the assessment report. Theproposed draft Environmental Impact Assessment (EIA) Notification 2020, released under the authority granted to the Central government by the Act of 1986, represents the most recent deterioration of environmental responsibilities.
1. First, the provision in the draft notification granting post facto permission for projects violates the intent of the umbrella legislation, which obligates governments to take all necessary steps to safeguard and enhance the quality of the environment.
2. Second, the proposed notification will promote environmental infractions and endanger the environment significantly.
Industries frequently challenge any orders made by the authorities under the existing environment legislations, such as the Environment (Protection) Act, 1986, before competent courts of law. It has also been observed that there has been a rise in the number of cases involving environmental pollution, ecological degradation, and disputes over natural resources that have been brought before the courts during the past few years. Natural scientific knowledge is required in the majority of these instances as a crucial input to assist judges in formulating their decisions. These circumstances warrant high-level scientific and technical complexity. Interim orders are seldom obtained, essentially paralysing the authorities from ensuring that their orders are carried out. Therefore, setting up a separate system to reduce the delays in the execution of environmental regulations is extremely necessary. Additionally, judges themselves might not be able to understand extremely scientific and technological matters, which makes it crucial to propose that provisions be provided for the establishment of environment courts with one judge and two science specialists.
Although the aforementioned discussion limits itself to prime challenges to be faced by the developing nation in putting together the “net zero emissions” mission, the legal disputes are in itself a significant concern for the Indian government to stand by its promise.
Policy-making in a Developing Nation: Possible Concerns
When policies created and put into practice in India fail to have the anticipated effect, the implementation is frequently held responsible. This accusation is, however, just partially true. Unexpected outcomes often rear their ugly heads, new middlemen appear, and the policy is enacted. Policy-making is a subset of activities to accomplish the desired goal in which the government uses principles, institutions, norms, values, and regulations through which public affairs are governed in the act of governance. Participation, accountability, transparency in decision-making, rule of law, and predictability serve as its pillars. It invariably makes use of economics, politics, sociology, and the law to address current issues or to point toward solutions.
The administrative structure in which both policy-making and implementation walk hand in hand, specifically when concerned with the environment, lacks uniformity of standards. TheEnvironment (Protection) Act, 1986 and theEnvironment (Protection) Rules, 1986 established guidelines for the emission or discharge of environmental pollutants with regard to a number of significant businesses. Other organisations, such as theCentral Pollution Control Board, theState Pollution Control Board, theBureau of Indian Standards, and local authorities, such as the Municipal Corporations, are also involved in standard-setting. Moreover, different industries have different pollution control criteria.
Only if the “net zero emissions” is considered, till now, the legislature, in consultation with different ministries, has not come up with any rules, regulations, bye-laws, or enactments. While it has remained mere word of mouth till today, rational policy-making is expected from the government to put in force the “net zero emissions” goal, thereby keeping up with the promise that has been made on the global stage. Policy-making in a developing nation like India, which is currently the home of over 138 crore people, is a mammoth task. It entails an assessment of the situation for which the policy is being formulated. Assessing a situation like that of the environment needs a lot of effort and time, as does formulating a robust report of the same.
As discussed previously, technology is the only friend when it comes to the implementation of policies made for net zero emissions. Therefore, being a friend indeed, technological intervention in matters of international commitments has proved to be an indispensable confidant when the nation knows how to access and effectively utilise the same. As history shows, India is home to a sizable portion of the world’s most polluted cities, and therefore, air pollution control technology is in great demand.With 15% of all anthropogenic sulphur oxide emissions coming from India, this country is the largest emitter of the same in the world. TheNational Clean Air Program commenced in 2019 by the Ministry of Environment, Forest and Climate Change (MoEFCC), aims to cut air pollution by 20% over the course of five years in more than 100 of India’s most polluted towns. The purchase of Continuous Ambient Air Quality Monitoring Systems under the National Clean Air Program thereby opens up a new export potential for American suppliers.
Over 50% of India’s installed power generation capacity is powered by coal-fired power plants, which contributes significantly to industrial air pollution. India has strict emission standards for power plants, with a goal of reducing emissions of mercury, sulphur oxides, nitrogen oxides, and particulate matter by 60 to 80 percent. The installation of flue gas desulphurisation units, which lower sulphur dioxide emissions, is a requirement for thermal power plants located close to populated areas by the end of 2022, particularly in New Delhi. The deadline for compliance for utilities in less polluted areas is the end of 2024, beyond which they will have to shut down their facilities. Retirement-targeted plants will have time until the end of 2025 to make the necessary changes to meet the pollution standards. NTPC Ltd., a government-owned company, has taken the lead in requestingbids for flue gas desulphurisation systems.
However, the Central Government has the authority to establish standards for the quality of air, water, soil, etc. under theEnvironment (Protection) Act, 1986. It is envisaged that this will guarantee consistency of standards across the nation. Evaluations of the Air Quality Index for Indian cities will be produced using information obtained from continuous ambient air quality monitoring systems. In addition to the purchase of equipment, consultant services are required to analyse the data gathered, locate the sources of pollution, as well as suggest the best courses of action for pollution reduction. Additionally, many of the criteria required by the relevant pollution control acts have not yet been established, possibly because there are no instruments available to measure pollution parameters. This will have a detrimental impact on how laws are enforced.
Viewing Regulation of Policies as a Challenge to Net Zero Emissions
The culturally, economically, socially, and linguistically diverse nation faces a severe problem in the regulation of laws within its territorial limits. India still scores quite low on air and water pollution levels compared to the rest of the globe despite its rich and lengthy history of environmental laws, dating back to the 1970s. The lack of strict enforcement of current environmental laws, the differences in the environmental regulations to be followed by businesses at the federal and state levels, as well as the existence of numerous Small and Medium-sized Enterprises (SMEs) lacking the financial resources and technical expertise to comply with the existing environmental laws, are all contributing factors.
It is challenging to enforce environmental standards from a global perspective due to the country-specific nature of environmental control and monitoring. Each country should be prepared to view environmental issues as potentially contributing to the overall global degradation of the environment and take action to control them through laws and the involvement of its industrial sector. On the one hand, it is correct to state that India’s pledge at COP 26, if achieved, will be a remarkable benchmark for the developing nation. However, it is wrong, on the other hand, to ignore the regulatory challenges that the nation will face in the process of achieving the said milestone.
Although theAir Act of 1981 was five years older than the comprehensive legislation of theEnvironment (Protection) Act, 1986, the application of the former failed to yield progressive results and required the latter’s support. This itself speaks volumes about the lack of regulatory mechanisms with respect to the environment in India. Each State comes up with its own set of highs and lows, which needs to be taken into account by the Center before allocating resources for maintenance of the environment.
Progress alongside Challenges: The Road Ahead
India has agreed to a significant overhaul of its energy infrastructure, which would be futuristic and in line with the new climate change objectives. Making sure that growth is equitable and that the underprivileged in the nation are not denied their right to progress in this new energy future will be the major worries for the nation and its government as they move forward and will continue to be a topic of discussion for a considerable period of time.
India continues to have low per capita emissions while having a large population that needs energy for development. The aim, therefore, must be to increase clean yet inexpensive energy for the poor since India aims to grow without pollution for a better tomorrow. The country has committed to not contributing to this load, as carbon dioxide emissions build up in the atmosphere (the typical residence period is 150–200 years). It is this stock of emissions that coerces temperatures to rise. It is now necessary to pay off this natural debt of the previously industrialised world. Because of this, Prime Minister Modi is correct when hesays that a significant amount of money must be transferred for the well-being of the environment and that the amount must be measurable. Ironically, the funding for climate change continues to be opaque and unverifiable.
Sole government efforts may not result in the intended change if every person is not aware of the same. The environmental disaster can be slowed down significantly with small individual actions. Following the environmental policy of “reduce, reuse, recycle,” using fuel-efficient vehicles, encouraging carpools, increasing tree planting, conserving electricity and water, and, perhaps most importantly, maintaining clean and hygienic surroundings are some of the few things we can begin doing right away to prevent further environmental destruction, thereby walking in line with our Prime Minister’s pledge.
About the Authors
Mr. Vishal Bera is an Assistant Professor of Law at School of Law, Amity University Kolkata.
Ms. Oishika Banerjee is a 5th Year student at School of Law, Amity University Kolkata.
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Editors-in-Chief: Muskaan Singh and Hamna Viriyam
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Preferred Method of Citation
Vishal Bera and Oishika Banerjee, “Legal, Policy, and Regulatory Challenges to India’s Path to Net Zero Emissions” (IJPIEL, 26 September 2022)