Abstract
In 2022, India experienced one of the worst heatwaves it had ever faced, following which theWorld Meteorological Organization stated that “climate change made heatwaves in India 30 times more likely.” AWorld Bank Report stated that, by 2030, around 34 million people in India might experience a productivity decline due to heat stress and lose jobs. At the same time, India is still on the road to development in several aspects, including infrastructure, energy, and economy. The importance and need for Sustainable Development are at their peak. While India is making progress through its policies relating to Climate Change and Sustainable Development, the absence of a dedicated and comprehensive legislative framework on Climate Change, resonating with India’s international obligations and important principles, seems to have caused policy paradoxes. This ultimately delays the achievement of the larger purpose.
Through this Blog Post, the Author will first provide a brief insight into the international framework of Climate Change law, including important principles and how the world is divided on the issues relating to Climate Change. Secondly, while analyzing the dynamics of climate justice and Sustainable Development in India through the lens of policy measures and judicial pronouncements, the Author will attempt to highlight the reasons in favor of the imperative need for bringing a comprehensive legislative framework to combat Climate Change in India.
1. Introduction
Climate Change is not a recent phenomenon. It is the byproduct of decades of trade, development, and globalization, among other contributing factors, that haveadversely impacted the entire ecosystem across oceans and continents. Anthropogenic greenhouse emissions, arguably the most significant contributor to Climate Change, have accelerated the pace toward catastrophic and irreversible environmental damage. The issue of climate change is multifaceted and complex as it poses not only environmental challenges for countries but also policy issues and economic challenges. Moreover, as borders do not restrict the impact of Climate Change, developing countries, especially small island nations, areseverely impacted and often find themselves paying the cost for another country’s development. The transboundary implications of Climate Change indicate that mitigation measures need to be taken at a large scale, not by a country or group of countries alone, but by the entire international community.
However, the history of negotiations in the international Climate Change law and policy regimeclearly reflects the difficulty in securing international participation and consensus. One of theprimary reasons for this is that the issue of Climate Change implicates almost every major aspect of a State’s domestic policy, such as energy, agriculture, infrastructure development, transportation, urban planning, and other similar aspects.
Varying political priorities, perspectives, development issues, and differing capacities of countries make it tougher to reach an agreement. Despite this, countries need to bear in mind that delay in undertaking mitigation action to 2030 “will substantially increase the challenges” associated with meeting the target of limiting temperature increase to wellbelow 2°C relative to pre-industrial levels, as adopted in theParis Agreement. Without a considerable increase in the mitigation ambition in the2020 to 2030 period, the prospect of achieving the target of keeping the temperature increase under1.5°C appears to be an utopian goal. Thus, mitigation measures will have to be taken at a large scale by all the major greenhouse gas emitters including fast-developing economies like India.
2. International Framework on Climate Change Law
Though the adverse effects of anthropogenic greenhouse emissions and the issue of Climate Change werefirst studied and brought to light by the scientific community, a focused international regime toanalyze and address the issue of climate change began to develop in the late 1980s.
From what began as a mere task force established by the World Meteorological Organization and the United Nations Environment Programme, i.e., the “Advisory Group on Greenhouse Gases” in 1986, to theestablishment of specialized institutions such as theIntergovernmental Panel on Climate Change (“IPCC”), theUnited Nations Framework Convention on Climate Change (“UNFCCC”), international treaties including theKyoto Protocol, 1997 and the Paris Agreement, 2015, the jurisprudence on international Climate Change law has considerably evolved. International Climate Change Law broadlyfocuses on the “mitigation” of Climate Change, “adaptation” to Climate Change, “financial means to support mitigation and adaptation,” and “international oversight” to promote implementation, “compliance,” and “effectiveness.”
The International Climate Change Law regime comprises hard and soft law elements incorporated through Conventions, Agreements, Accords, and multilateral Treaties. The major principles include the principle of “Inter-generational Equity” and “Intra-generational Equity,” “Common but Differentiated Responsibilities and Respective Capabilities” (“CBDRRC”), “Sustainable Development,” the “Precautionary Principle,” and the “Polluter Pays Principle”, among others. However, these principles are no exception to the inherent limitations of international law so far as effective adoption, implementation, and enforcement are concerned. On the one hand, while the non-binding nature of these international instruments induces voluntary participation, the lack of sanctions on the other hand results in countries failing to ratify the concerned provisions, thereby also failing to effectively implement mitigation and adaptation measures.
From the point of view of developing countries like India, the most significant principles are the principle of CBDRRC and Sustainable Development.
Sustainable Development is ensuring that developmental activities fulfill the need of thepresent generation without compromising the ability of future generations to meet their own needs. Itis “the process of change in which the exploitation of resources, the direction of investments, the orientation of technological development, and institutional change are made consistent with future as well as present needs.” The concept of Sustainable Development acknowledges the fact that globalization and development carry with it the ancillary risk of damage to the environment.
Considering the same, it requires policymakers to ensure that the growing economies remain committed to their environmental causes, thereby facilitating Sustainable Development in the long run. Thus, it can be said that Sustainable Development demands integration of economic and ecological considerations in the decision-making process, where ecological considerations are at least given equal weightage, if not primacy. Further, efforts are made to ensure that, instead of reacting to issues of Climate Change and environmental degradation and taking remedial measures when the damage is done, a proactive approach is inculcated at all levels of governance, i.e., to say that potential adverse effects of development are anticipated, and requisite precautions are put in place in advance so as to avoid irreversible harm to the environment. TheBrundtland Commission Report had predicted that such “…reorientation is one of the chief institutional challenges of the 1990s and beyond.” Addressing the same would require institutional reform, and poor or small developing countries with limited capacity will need assistance and training (financial and technological) from the developed countries.
While the issue of varying capacities of countries in undertaking mitigating measures to combat Climate Change was addressed as a part of the principle of Sustainable Development, owing to the gravity of the said issue, a new principle was coined in the UNFCCC, namely, the principle of CBDRRC, which though appears to have its roots in the principles of equity, it was first formally incorporated in the UNFCCC. Although, theStockholm Declaration of 1972 emphasized the need to consider “the applicability of standards which are valid for the most advanced countries but which may be inappropriate and of unwarranted social cost for the developing countries,” it wasArticle 3.1 of the UNFCCC which expressly states that:
“The parties should protect the climate system for the benefit of present and future generations of humankind on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country parties should take the lead in combating climate change and the adverse effects thereof.”
Further,Principle 7 of the Rio Declaration (only focusing on Common but Differentiated Responsibility) provides that:
“States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.”
The CBDRRC principle comprises two elements. Firstly, it recognizes the common responsibility of all countries to participate in the international response measures aimed at adapting to and mitigating the impact of Climate Change. Secondly, it recognizes the differing commitments based on historical contribution, present circumstances and capacity (not addressed in the Rio Declaration, only in the UNFCCC), future development needs, and other similar factors. Prof. Oran R Young has aptlysummarized the central thrust of the CBDR principle: it is “to couple an acknowledgement that everyone bears some responsibility for coping with large-scale environmental problems with a recognition of the fact that some members of international community are much better situated than others to provide the resources needed to address these problems.”
However, these distinguishing factors forming the basis of the CBDRRC principle have a flipside as well, which is often criticized for creating a firewall between the industrial/developed and developing countries. This firewall is often criticized because the “distinguishing factors” are often used as a defense mechanism (by both developed and developing countries) to justify non-compliance with the duty to adapt, mitigate, and sustainably develop, instead of making conscious efforts to contribute as per their respective capacities.
TheGlasgow Climate Pact (COP26) inter-alia recognized the need to transition away from fossil fuels, particularly coal-based power. Yet, India (owing to its heavy dependency on coal)introduced a last-minute amendment to replace the term “phase out” coal, as contemplated in the original draft agreement, with “phase down” coal. Interestingly, this amendment was proposed by India when it was on the verge of a power crisis due to a shortage of coal.
While this amendment was heavily criticized by developed and several developing countries, it cannot be ignored that for a large developing country like India, the process of phasing out coal in the energy production sector will be a herculean task.Reportedly, India was not the only country to blame for this amendment; countries like China, the United States of America (“USA”), and the United Kingdom (“UK”) were also consulted before proposing the aforesaid amendment. Otherkey commitments made by India included the assurance to meet 50% of its energy needs from renewable sources by 2030; and the undertaking to be a net zero carbon economy by 2070.
There was a positive difference in the Indian approach at theCOP 27 summit, where India highlighted that it had updated itsNationally Determined Contributions (“NDCs”) in August 2022, ratifying two pledges under the Paris Agreement, i.e., a45% reduction in emissions intensity by 2030, and theundertaking to source 50% of its electric power needs from renewable sources by 2030. Although these commitments seem promising, critics have expressed doubts about them being realized.
3. The Divided World on Climate Justice – Developed and Developing Countries
While there is an increase in participation from countries in taking significant mitigating measures, the global community is largely divided based on their intention and ability to take initiative to combat the looming Climate Change crisis. For instance, underArticle 4.2(a) of UNFCCC, the principle of CBDRRC intends to balance the responsibilities and commitments of the parties in accordance with their quantum of historical contribution, economic structures and resources, available technology, capacity to take mitigating measures, and other similar factors. Accordingly, it requires the parties to carry out development in a sustainable manner. This obligation to adapt to the climate crisis and develop sustainably largely falls on the shoulders of developing countries which leads to a very legitimate question: “can developed countries ask the developing countries to carry the additional weight of sustainability on top of development in their critical transitioning period when there were no such restrictions on the development of the industrial/developed countries?”
Further, as the cost of adaptation and Sustainable Development is high, it is imperative that developed countries assist developing countries in the process of adaptation and Sustainable Development in terms of financial resources and technological transfer. Rajamani aptlynotes that “the delay in addressing this divide between developed and developing countries, in an equitable manner, has resulted in a loss of momentum that could risk the two critical determinants of an effective climate regime: universal participation and timeliness in achieving the necessary international co-operation.”
Certain provisions that evolved with an aim to assist developing countries in combating Climate Change are:
i.Article 4.5 of the UNFCCC – Technology Transfer: As per Article 4.5, developed countries are required “to take all practicable steps to promote, facilitate and finance, as appropriate, the transfer of, or access to environmentally sound technologies and know-how to other parties” and to support the “development and enhancement of endogenous capacities and technologies of developing country parties.” Countries have co-operated and developed a system through the decision of the parties (Conference of Parties) rather than incorporating express details in the UNFCCC directly.
However, during the negotiation stage, the developing countries sought binding assurance that technology would be transferred to them on “concessional and preferential terms.” On the other hand, developed countries opposed this and emphasized technology cooperation instead of technology transfer on the ground of protecting their intellectual property rights. Even the developed countries that were agreeable to technology transfer were willing only on “fair and most reasonable terms.”
ii.Article 4.3 and 4.4 of the UNFCCC – Financial Support: The provisions require Annex II parties to provide basic financial resources to developing countries to prepare emissions inventories and national reports, implement measures for reduction of emissions, and meet the costs of adaptation to the adverse effects of Climate Change. The core financial principles of the UNFCCC have been enhanced by the decisions of the parties by establishing new climate-related funds and devising goals and guidelines regarding such funding. Through theCopenhagen Accord, developed countries pledged to mobilize $100 billion per year in climate finance by 2020 with an aim to assist developing countries in undertaking mitigation and adaptation measures. However, the target was never fully realized. The funds mobilized in2013 were $52.4 billion, $61.8 billion in2014, $44.6 billion in2015, $58.5 billion in2016, $71.6 billion in2017, $79.9 billion in2018, $80.4 billion in2019, and $83.3 billion in2020. While there has been a gradual increase in the funds mobilized, the target has never been fully realized. This implies that there is a gnawing gap between the financial needs and available financial resources for adaptation and mitigation of Climate Change.
iii.Article 17 of the Kyoto Protocol Emissions Trading: The Kyoto Protocol provides for an international emissions trading system with the intent to control overall greenhouse emissions. The Protocol established caps on the maximum quantum of permitted greenhouse emissions for Annex 1 developed and developing countries. These countries set internal quotas on emissions from installations run by local businesses and other organizations, generally termed as “” Countries oversee this responsibility through their own national “registries,” which are required to be validated and monitored for compliance by the UNFCCC.
Each operator is allocated an allowance of credits. Operators that have not reached their maximum quota limits can sell their unused allowances as carbon credits. In effect, the mechanism has failed to have any reduction in carbon emission levels. One of the primary reasons for the same was that major developing countries (including India) excluded themselves from abiding by the established commitments under the Kyoto Protocol and that the agreed period was too short to expect any fruitful results. Emissions trading was revamped as “internationally transferred mitigation outcomes” underArticle 6.2 of the Paris Agreement, 2015. Further,Article 6.4 of the Paris Agreement provides for a new mechanism to “promote the mitigation of GHG emissions while fostering sustainable development.”
iv.Article 6 and 12 of the Kyoto Protocol – Joint Implementation and Clean Development Mechanism: Under Joint Implementation, a developed country with relatively high costs of domestic emission reduction can fund carbon projects in another developed country. Whereas underClean Development Mechanism (“CDM”), a developed country can sponsor a greenhouse gas reduction project in a developing country where the cost of greenhouse gas reduction project activities is usually much lower, but the atmospheric effect is globally equivalent. Thedeveloped country is given credits toward meeting its emission reduction targets, while the developing country receives the benefits of Sustainable Development and investment. Theextent of its contribution towards Sustainable Development (the underlying purpose of CDM) is tough to evaluate; however, it issuggested that there are limited benefits.
4. Climate Justice Law and Policy – Is India Shouldering its (Differentiated) Responsibility?
Although India presently does not have a dedicated framework for legislation regarding Climate Change, there exists a strong environmental law jurisprudence. There are several laws on environmental protection, such as theWater (Prevention and Control of Pollution) Act, 1974,Air (Prevention and Control of Pollution) Act, 1981,Forest (Conservation) Act, 1980, andWild Life (Protection) Act, 1972. However, in respect of Climate Change, there are only a handful of legislations and policy measures, including theCompensatory Afforestation Fund Act, 2016, theEnergy Conservation Act 2001, theClean Energy Cess Rules, 2010 (abolished by the CGST Act, 2017), theElectricity Act, 2003 (regulating the utilization of energy resources like coal, natural gas, hydro and other renewable energy resources through tariff policy), and theDisaster Management Act, 2005.
The policy measures include theIntegrated Energy Policy of 2006, theNational Action Plan on Climate Change of 2008, theRevised Operational Guidelines of the National Afforestation Programme of 2009, theNational Policy on Bio-fuels of 2009,notification creating the Apex Committee for implementation of the Paris Agreement, and the recentGreen Hydrogen Policy among others.
India has also set several targets for adapting to Climate Change and sustainably mitigating its impact. These include the creation of an additional carbon sink of 2.5 to 3 billion tons of CO2 equivalent by 2030 with forest and tree covers under “Land Use, Land Use Change and Forestry” (“LULUCF”),National Solar Mission togenerate 9000 MW grid-connected and 800 MW off-grid solar power by 2017 and 2022, a total renewable energy capacity of175 GW by 2022. In terms of adaptation, India aimed to provide skill training in various sectors, including Sustainable Development, to more than400 million people by 2022. We are yet to see if this target has been achieved.
It is noteworthy that Delhi Metro Rail Corporation (“DMRC”) hadbecome the first rail project in the world to earn carbon credits for using a regenerative braking system in its rolling stock. DMRC earned carbon credits by using a regenerative braking system in its trains thatreduces electricity consumption by 30%. DMRC canclaim 4,00,000 Certified Emission Reductions (“CERs”) for a 10-year crediting period beginning December 2007, when the project was registered with the UNFCCC.
The judiciary has also intervened in several instances to ensure that the fundamental right to a clean, healthy, and wholesome environment, as guaranteed under Article 21 of the Constitution of India, is protected. Adherence to the principle of Sustainable Development is aconstitutional requirement. This is largely done by way of Public Interest Litigations (“PILs”), standard examples of which include the MC Mehta cases (in Writ Petition (Civil) No. 4677 of 1985 dated 10 May 1996; 8 July, 1996; 4 December 1996; and 28 April 2000),Jan Chetna v. Ministry of Environment and Forests (challenge to the application of grant given for development without application of mind and without following the due procedure underEIA Notification of 2006),Vimal Bhai v. Ministry of Environment and Forests (against the grant of Environmental Clearance permitting deforestation of 80.507 hectares land for construction of a hydroelectric power plant),Wilfred J v. Ministry of Environment and Forests (against the construction of the Vizhinjam port on account of not having considered the adverse impact on the livelihood of the local fishermen), and other similar cases.
Afairly recent example where the Supreme Court suspended the Environmental Clearance for an airport in Goa on the ground that it failed to consider the impact of the project on the environment, which was evident from the feeble Environmental Assessment process. Placing reliance on the Paris Agreement 2015 and India’s NDCs as per the Paris Agreement, the Supreme Court lifted the suspension on the Environmental Clearance only after imposing additional environmental conditions, imposing costs for oversight, and after satisfactory additional submissions were made by the airport project proponents committing that the airport would be a “zero carbon airport.” The Supreme Court also appointed the National Environmental Engineering Research Institute to oversee compliance with the environmental conditions.
Despite India’s hands-on approach, the absence of a specialized, dedicated, and robust framework on Climate Change, inter-alia ratifying India’s international obligations by incorporating stringent provisions regarding compliance and an effective redressal mechanism, can be said to be some of the major factors for the delay in sustainable achievement of adaptation and mitigation targets. Various crucial issues such as, population explosion as a cause for the rapid depletion of resources and environmental degradation have not been addressed. On top of the same, conflicting policy measures add to the already confusing unstructured framework of Climate Change law in India. For instance, while India targeted to generate 175 GW energy through renewable sources by 2022, it alsoimposed a Safeguard Duty on the import of solar cells and panels from major (and economical) exporters like China, especially when the domestic production capacity isadmittedly not proportional to the demand. While India did make significant strides in the area of renewable energy, it stillfell short of achieving the 175 GW target.
A more recent example is that, on the one hand, under the updated NDCs, India has undertaken to “create an additional carbon sink of 2.5 to 3 billion tons of CO2 equivalent through additional forest and tree cover by 2030” and, on the other hand, the metro car shed for the Mumbai Metro wasrelocated to the ecologically sensitive area of Aarey in July 2022. This relocation attracted significant criticism, especially since in 2020, the previous government had, pursuant to an expert committee report, decided to realign the proposed Aarey car depot to Kanjurmarg and set up an integrated car depot for two metro lines. Further, earlier this year,more than 550 trees were allowed to be felled for the Bangalore Metro Project. Such policy paradoxes raise concerns as to whether, in the absence of a dedicated framework, will India see its Climate Change initiatives through.
5. Conclusion
The debate and negotiations on the issue of Climate Change essentially revolve around adaptation and mitigation measures. The world is divided broadly on the aspect of the quantum of responsibility and capacity to adapt to and address the adverse impacts of climate change. The developing countries claim that the developed countries have (admitted) historical responsibility to take adapting and mitigating measures and support (financially and technologically) the developing countries in doing the same. Contrastingly, the developed countries argue that the current level of emissions, especially from the developing countries, cannot be left uncontrolled by merely conveniently casting the blame on countries with historical responsibility. Developing countries, particularly fast-developing economies like China and India, need to proactively shoulder the responsibility to sustainably adapt and mitigate the effects of Climate Change in today’s globalizing world.
This divide has further complicated the issue, and the trend of international negotiations on the subject of Climate Change and Sustainable Development, particularly the COP meetings, is glaring evidence of the lackadaisical approach of both developed and developing countries, treating the issue like a hot potato instead of joining forces and balancing the commitments. The principles of CBDRRC and Sustainable Development are valuable guiding principles, and we cannot delay their effective implementation. To do the same, there is a dire need for developed countries to take the lead in fighting the battle against Climate Change and provide assistance to developing countries as the ambitious targets set by the international Climate Change law regime cannot be accomplished without adequate financing.
Lastly, fast-developing countries like India need to put in place a robust and comprehensive legislative framework (with a stringent compliance and redressal mechanism) to combat Climate Change where provisions regarding carbon pricing can be incorporated in order to facilitate streamlining of mitigation measures through comprehensive provisions including tax on import and domestic trade of carbon intensive products. This has the potential to assist in altering behavioral pattern in the market, move towards clean energy and in turn enable India to comply with its international obligations and move closer to its larger goal of being a net zero carbon economy by 2070.
Disclaimer
The views and opinions expressed by the authors are personal.
About the Authors
Ms. Bhat Chaitra Rajagopala is an India-qualified advocate enrolled with the Bar Council of Delhi. She is currently an LLM student at the University of Cambridge.
Editorial Team
Managing Editor: Naman Anand
Editors-in-Chief: Jhalak Srivastav and Muskaan Singh
Senior Editor: Pushpit Singh
Associate Editor: Parishti Kaushik
Junior Editor: Intisar Aslam
Preferred Method of Citation
Bhat Chaitra Rajagopala, “Climate Change, Sustainable Development, and the Principle of Common but Differentiated Responsibilities – An Indian Perspective” (IJPIEL, 15 March 2023)
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