Written by Aayushi Mishra

INTRODUCTION

This Indian Vedic wisdom expresses a philosophy of law and human governance that is based on the idea of community peaceful co-existence. Each of us’s and the earth’s survival depends on the good of each element in our eco-system, and finally on each member of the community.

What is Climate Change?

Climate change is usually referred to as variation in global and regional climates over time. The change in air variability or medium state reflects time scales from decades to millions of years. The Earth’s climate is dynamic and in a natural cycle continues to change. The world today is concerned more than ever about the acceleration of the changes taking place today. These changes can be caused by natural processes, such as continental rifts, volcanoes, sea flows, earth tilt, comets and meteorites, as well as human activity or creation.

It is now documented that human activities make the most of their causes in today’s global warming. Climate change presents a broad range of political, economic and social threats and opportunities to society as a whole. It raises legal problems and challenges as well. The lawyers are not only dealing with such issues and challenges but are also involved in all society members, whether as politicians, businessmen, campaigners of all sorts or as individuals.

Climate Change and India:

One of the major areas that will be impacted by climate change in its extremity in the near future is South Asia, especially India mainly because of its diverse terrain.[1] The region is expected to experience serious impacts as climate change rapidly depletes its natural resources, most of them because of ‘urbanisation, industrialisation and economic growth.’ The region is thus destroying its surroundings. In order to protect its rapidly depleting natural resources, India faces an alarming environmental and socio-economic challenge.

The increase of various pollutants in the atmosphere worsens every day due to water and air quality. In addition, the sectors that will be subjected to the highest exposure to climate change are the country’s coastal ecosystems, biodiversity and agricultural productivity.[2]

Also, Climate change has clearly threatened India in recent years. Nevertheless, public awareness of global warming and of India’s policies on mitigation and accommodation for climate change is still very poor. The fact that conversations in the economy are almost entirely lacking in environmental and climate concerns, almost zero in political party manifestos and their visible absence from the main cultural stream of India.

Existing Legal Framework on Climate Change in India:

There is no particular legislation in place in India to combat climate change effects. Hence, in the absence of specific legislation, the most crucial legislation that comes close to tackling the problem of climate change is the Air (Prevention and Control of Pollution) Act 1981[3] enacted by the Parliament under Article 253 of the Constitution of India. [4] The Air Law is important in that, as air pollutants in the air are damaging to humans or other living creatures and plants, it provides for the prevention, control and abatement of air pollution.

The Air Act, therefore, addresses a key area related to climate change by talking about the direct relationship between air pollution and its impact on the whole environment. Note, however, that the term ‘Climate Change’ is not mentioned in the Air Act. The main goal of the Air Act is to maintain air quality by checking the greenhouse gas emissions that increase air temperature and lead to global warming.

The Air Act allows central and state control boards to be established in order to examine matters related to air quality improvement, surveillance and enforcement through fines and criminal prosecutions. State governments may also designate particular areas as ‘air pollution control areas’ and any industrial operator in that area shall be asked before establishing or operating any industrial facility in that area to obtain prior consent from the State Board. The State Councils may establish standards for air pollutant emissions from plants and vehicles in consultation with the Central Boards.

In addition, under the Air Law, after a request from the Board is made and the board is allowed to close the industry, or to withdraw its power or water supply, the first-class Judiciary is empowered to prevent a polluter from releasing emissions. The parliament also passed the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter Water Act) prior to the Air Act. The Water Act provides for the prevention and control of water pollution.[5] Note that, both Water and Air Act have similar provisions with respect to achieving their said objectives.[6]

The Environmental (Protection) Act, 1986, (hereinafter EPA) was enacted by parliament following the Water and Air Act to fill the gaps in the core environmental body of India. The EPA is aimed at ensuring environmental protection and improvement. The Government can also set emission standards as set out in the 1986 Schedules attached to the Environment (Protection) Rules (hereinafter EPR).

In addition, the rules laid down by the EPO also establish emission standards and general emission standards for specific industries. Schedule VII of the EPR deals with National Ambient Air Quality Standards, which provides for “separate standards and concentrations for industrial, residential, and rural areas and sensitive regions and are intended to protect public health, vegetation, with an adequate margin of safety.”

 The Central Government also enacted the Ozone Depleting Substances (Regulation and Control) Rules, 2000, in the exercise of its powers conferred by Sections 6, 8 and 25 of the EPA.[7] The rules prohibit any person from producing and consumption of ozone-depleting substances and from importing or exporting to any country without a license issued by the authority.[8]

The lack of a core legal system focusing on climate change in India remains as mentioned earlier. Nevertheless, the judiciary has been proactive in environmental protection in the absence of comprehensive legislation, as and when climate-related claims reach court. The number of climate claims reaching the courts is, however, significantly lower.

Climate Change Litigation in India:

The Supreme Court of India has tried to address challenges arising from climate change by broadly constructing the meaning of Article 21 of the Constitution. The right to enjoy polluter-free air and water for full use of life was laid down in Article 21 of India’s Constitution. “Environmental, ecological, air and water pollution constitute a breach of the right to life guaranteed by Article 21 of the Constitution,” the Supreme Court in Kedia leather & liquor Ltd. Hygienic surroundings are an integral part of the good life.

In the absence of a human and healthy environment, the right to live with human dignity becomes illusory.” Note: ‘The Supreme Court, by its judgements, has implemented the rights available to citizens and persons as set out in Article 21, in order to protect ‘life,’ to protect the ‘environment’ and to protect ‘air, water and soil’ against pollution.

In exercising its power under Article 32, in enforcing fundamental rights under Article 21 under the public domain, the Court has granted damages to people who, through the operation of the industries or any other action causing pollution in the environment, were responsible for disturbing the ecological balance. The Court while awarding damages also enforces the ‘Polluter Pays Principle, which is widely accepted as a means of paying for the cost of pollution and control.[9]

European Climate Law[10]

The first proposal from the Commission for a European climate law aims to enable Europe’s economy and society to become climate neutral by 2050 and to achieve the aim set out in the European Green Deal. This means that the EU countries as a whole have net-zero greenhouse gas emissions, mainly by reducing emissions, investing in greens and protecting the natural environment. The law seeks to ensure that all EU policies help to achieve that aim and that all economic and societal sectors play a role.

Objectives

Set the way for long-term travel in a socially fair and cost-effective manner to meet the 2050 climate-neutrality goal in all policies. Create and take further action if necessary to monitor progress Give investors and other economic players predictability Make sure climate neutrality transition is irreversible.

Key elements

Failure for long-term travel to achieve the objective of climate neutrality in all policies in a socially fair and cost-effective manner. Create and take additional action to monitor progress, if necessary Provide predictability for investors and other players Ensure that the transition to climate neutrality is irreversible.

• Failed to achieve the climate neutrality objective in all policies in a socially just and efficient way for long-term travel. Create and take further action if necessary to monitor progress Give investors and other players predictability Make sure the transition is irreversible to climate neutrality.
• Based on a comprehensive impact assessment, the Commission has proposed a new EU target for 2030 of reducing greenhouse gas emissions by at least 55% compared to levels in 1990. The Commission has proposed to include the new EU 2030 target in the Law.
•  By July 2021, all the relevant policies to implement further emission reductions for 2030 shall be revised by the Commission and, if necessary, suggested revised.
• In order to measure progress and to give public authorities, businesses and citizens predictability, the Commission proposes adopting an EU wide greenhouse gas emission reductions trajectory 2030-2050.                                                                                                                                                   
•  The Commission will assess the consistency of EU and national action with a climate neutrality target and the 2030-2050 trajectory by September 2023 and every five years thereafter.
• The Commission shall be empowered to make recommendations to Member States whose actions are in conflict with the goal of climate neutrality and Member States will be obliged to take these recommendations into due account or, if they fail to do so, to explain their reasoning.
• Member States should also develop and implement adaptation strategies to enhance resilience and reduce climate change vulnerability.

Conclusion

As the clear distinction is visible that the European Union has realized the need and impotence of climatic change law and its execution strictly but the 3^rd most carbon-emitting country do not realize the need so far for proper legislation. It’s high time that countries and unions work for the global warming problem instead it’s must be each individual responsibility to cut carbon emissions and save the planet. This earth is everybody’s requirement so there lies a duty of each one to save it.

About the Author

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[1]  Tony George Puthucherril, Climate Change, Sea Level Rise and Protecting Displaced Coastal Communities: Possible Solutions (2012) 1 Global Journal of Comparative Law 225, 227.

[2] ‘Climate Change: Impacts, Vulnerabilities and Adaption in Developing Countries’ (n 9) 20.

[3] The Air (Prevention and Control of Pollution) Act 1981.

[4] The Constitution of India, art 253. -“Legislation for giving effect to international agreements Notwithstanding

anything in the foregoing provisions of this Chapter, Parliament has the power to make any law for the whole or any

part of the territory of India for implementing any treaty, agreement or convention with any other country or

countries or any decision made at any international conference, association or other body.”

[5] The Water (Prevention and Control of Pollution) Act, 1974.

[6] Saha and Talwar (n 10) 184

[7] The Ozone Depleting Substances (Regulation and Control) Rules, 2000.

[8] The Ozone Depleting Substances (Regulation and Control) Rules, 2000, rules 3, 4 and 5.

[9] Surendra Malik and Sudeep Malik, Supreme Court on Environment Law (1st ed, Eastern Book Company

2015) 6. See also, M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213.

[10] https://ec.europa.eu/clima/policies/eu-climate-action/law_en

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