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Climate Change : The Policy, Law and Practice

Updated: Jul 10


This eight hundred-page Magnus opus ‘Climate Change : The Policy, Law and Practice’  is much more than a labour of love .   Jatinder (Jay) Cheema has done meticulous research for several years, documented the global, multilateral, regional  and national commitments on  climate change , the laws enacted by the  national and state legislatures besides listing  some of the  most important and contentious cases  with overlapping jurisdictions , the status of state compliance for  SDGs , and the very wide gap between what some of the leading  MNCs profess, and what they actually do , especially with regard to  protection of the environment. But Cheema has shown that even small steps can go a long way in matching statements of good intent with action on the ground. We learn from the Preface , that he has planted a mini forest with his own resources to offset the environmental impact of the paper used in the printing of this book.


The MNC doublespeak  started with the first edition of Silent Spring by Rachel Carson  published in 1962 . This was    the first book to bring the discourse on environment in the public domain, for till then, the belief – both for corporates and governments – was that only anthropocene (human species ) mattered , and that the rest – the birds and  the butterflies, flowers and trees, rivers and mountains had not right to exist independently of their utilitarian benefits to our species .DuPont, American Cyanamide and Monsanto accused her of being a ‘Communist’ who wanted to   reverse the march of the modern world to the  middle ages.  It took another ten years for the World Meteorological Organisation  to prep the  UN and its  member -nations to take cognizance of the lasting damage to environment  from the chemical industry and   the fossil- fuel driven  growth in every sector – from agriculture to industry  to urbanization at the  Stockholm conference of 1972 .Also known as the First Earth Summit , it raised the issue of ‘identification and control of pollutants of broad international significance’ warning governments to be cognizant of activities that could lead to climate change , and to assess the likelihood and magnitude of climate effects.  However , it has taken over six decades for climate change to become URGENDA ( urgent agenda) and part of  SDGs accepted by the member nations of the UN.  

 

Cheema takes us on this journey from a time when climate change was denied and  dismissed  as  a Luddite hype against industrial progress to the establishment of the UNEP at Nairobi  after the Earth Summit, the 1985 Vienna convention  for Protection of the Ozone Layer ,   the IPCC in 1988 , followed by the  Montreal protocol a year later . Montreal is important , for its acceptance of  ‘the stratospheric ozone layer as a global common’ which allowed for  express prohibitions to be placed on states for prevention of further depletion. Cheema tells us that in the absence  Vienna convention and the Montreal  protocol, ozone depletion would have grown tenfold  till 2050 : its implementation , on the other hand  would  save  two million skin cancers each year till 2030.


The next milestone was the signing of the United Nations Framework for Climate Change (UNFCC) in May 1992 . This was indeed a  monumental month in the history of the world became it also marked the formal end to the  cold war between the USA and the erstwhile USSR . With ratification from 197 countries ,  the Convention’s goal was to ‘stabilise greenhouse gas concentrations in  the atmosphere at a level which would prevent harmful anthropogenic interferences with the climate system’. Per Article 7 of the UNFCC, a Conference of Parties (CoP) was established as the supreme body of the Convention. At  its third session ,in 1997  the CoP adopted the Kyoto protocol , but it came into effect from February 2005, when 55 parties responsible for 55% of  the CO 2 emissions in 1990 ratified the same . Incidentally India’s ratification had come  three years earlier – in 2002.

 

The picturesque island of Bali saw the adoption of an Action Plan named after it. The CoP accepted the  findings of the fourth IPCC  assessment report   which reiterated that ‘significant reductions in global emissions would require  long term co-operative action’ between the Global North which had the resources , and the historic responsibility , and the Global South which had to bear the brunt . Then came the Doha round in 2012 ,  which set the time table for the global climate change agreement  in 2015.When the CoP met in Paris  that year   President Hollande said ‘ in Paris, there have been many revolutions over the centuries. Today is the most beautiful and the most peaceful revolution that has just been accomplished – a revolution for climate change’. This legally enforceable international pact came into effect from November 2016 with  192 signatories (191 countries plus the European Union).It accepted the idea of ‘common , but differentiated obligations  and separate capabilities’ with the overall objective of keeping the average global warming below two degrees , while also encouraging parties to pursue efforts to keep it below one and a half degree centigrade . This was followed by the Glasgow climate pact of 2021  in which Prime Minister Modi  spelt out the Panchamrit agenda- that  of  increasing non-fossil fuel energy capacity, meeting 50 per cent of energy requirements through renewable energy, reducing total carbon emissions, lowering the carbon intensity of the economy, and achieving net-zero emissions for India  by 2070.  He also gave the coinage L I F E ( lifestyle for environment ) .  The  Sharm  el-Sheikh  Implementation plan of 2022 saw a    commitment of US $4-6  trillion dollars in annual investment for the global transition to a low carbon economy   and greater awareness about the implications of  glacial melts( the cryosphere) . As  Cheema had completed the book by  early 2023 , the last major conference that finds a reference in this volume is the Stockholm +50 ( 2022)  to mark  fifty years of the first declaration. This was also the time when the world was recovering from the Covid 19 pandemic .  The ‘little virus’ made us   more than  willing to  acknowledge that ‘singularity’ had its limitations . We were willing to acknowledge   the ravages of   global warming, rising oceanic levels , loss of biodiversity and realized   that  both tracks – international co-operation as well as implementation  of national commitments were  equally important.

 

Cheema  then delves into  India’s domestic framework on climate change . The importance of environment became explicit when  the 42nd amendment introduced Article 48A as  part of the Directive Principles of State Policy  which read, “The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.” It also added  Article 51A (g), part of the Fundamental Duties read, “It shall be the duty of every citizen of India… to protect and improve the natural environment”.

In the aftermath of the Bhopal Gas tragedy of 1984 ,    the EPA 1986 gave the bite which was missing from the bark of the extant laws on air and water pollution passed in 1974 and 1981 respectively . The 1988 Supreme court ruling (RLEK versus UP ) on the rights of Van Gujjars  saw the apex court articulate  the fundamental right of citizens  to a healthful environment . In another landmark case of 2010, the Supreme Court upheld the right of the pedal rickshaws to  operate in  the NCT of Delhi, even as it held that this as in fact the most affordable , and  ecofriendly mode on the streets of Delhi.  Again , in its 1991 judgment  (Subhash Kumar versus the state of Bihar ), the Supreme Court held that ‘the right to a clean and healthy environment  was an essential element of the Right to Life  and Liberty as enshrined in Article 21. Meanwhile from 2010 to  2021 , the  the GoI launched a series of Missions – from the national action plan on climate change in 2010 to the national solar mission as well as the national mission on sustainable agriculture (to name a few ) as well as the  National Hydrogen Mission on the 75th Independence Day on 15th August 2021.

India’s nodal ministry to formulate and implement  the climate change protocols is the Ministry of Forests , Environment and Climate Change . This ministry is  responsible for ensuring that India implements – in both letter and spirit – the  ambitious Nationally Determined Contributions . These include, inter alia  , the following targets by 2030 : reduction of the emission intensity of tis GDP by 33-35 %(vis-à-vis 2005)  achieving 40% cumulative electric power installed capacity from non-fossil fuel-based energy, and creating an additional carbon sink of 2.5 – 3 billion tonnes of CO2 through additional forest and tree cover .  India is currently ranked 8th in the Climate Change Performance Index , but this position has been made possible also on account of the performance by the PSUs and corporates which  have accepted these targets and commitments as their own.

 

Cheema then talks about the  Public Trust Doctrine, an internationally accepted environmental norm   which essentially places upon the state the duty to protect and preserve the environment and natural resources  for the enjoyment of the public at large . This was  invoked by the  Indian Supreme Court in its 1996 judgement (MC Mehta vs Kamal Nath) , and in the Taj Trapezium case, it also brought in the ‘Polluter pay principle’. The establishment of the NGT at New Delhi with its four benches in Kolkata, Chennai, Bhopal and Pune in 2010 has given a fillip to cases in which issues of environmental law are under consideration. The NGT has taken suo moto cognizance of such important issue like the carrying capacity of ecologically vulnerable places like the Rohtang Pass .

The next point of discussion is about  the transition from fossil fuel regimes to to clean energies like solar, bio energy, geo thermals, hydropower , oceanic and wind energy. India has of course taken the lead  establishing the International Solar alliance – for countries between the tropic of cancer and Capricorn . Europe is more focused on bio energy  and geo thermals, especially in the context of the unexpectedly long Russia Ukraine war. Windmills were always part of the European landscape , but now there is a renewed focus on both land based and offshore installations , including offshore electricity transmissions. India’s 7517 km of coastline offers great potential and two leading PSUs – the ONGC and NTPC are looking to expand their footprints in this sector. Nuclear energy  has the potential to replace the coal fired plants as an alternate source of energy , especially as the technologies for vitrification ( for disposal of spent fuel) are becoming established. But the ‘rising star’ of new technologies is Hydrogen – and the two leading corporates  of India – Adani and Ambani – are both heavily invested in these technologies. But Cheema also presents the counterfactual : Javier Yanes , for example talks of Hydrogen as the ‘double edged sword in the climate change story’.

So far, we have talked about green   technology options . The question is – what are the costs ,and the cost benefit ratios of these technologies ? Who will fund theses green bonds  ? What  are the expectations of the donors/investors/sovereign wealth funds ? Are there are some good examples from India which we can refer to ? Yes. From 2017 , the lead has been  taken by IREDA, REC, PFC, IRFC and Adani renewables . At the time when the book went into print, the RBI was thinking of   sovereign green bonds  : but by the time of this review ,  two tranches have already been issued, and more are in the offing.

 

If multilaterals and governments have shown their commitments to SDGs, so have the corporates . Microsoft , for example has pledged to become carbon negative by 2030 and to erase all of the carbon it has emitted since its founding from the environment by 2050 . It is also in conversation with firms like Nike, Starbucks, Maersk and Mercedes Benz to implement the  ‘Transform to Net Zero’ programme . Walmart , the world’s largest retailer has committed to  a goal of zero emissions by 2040 , and more importantly, restoration of 50 million acres of land and I million square miles of ocean . Likewise , Alphabet, the parent company of Google, is committed to becoming the first large corporation to run entirely on carbon free energy by 2030. Beyond Burgers  is a fast-food  company which is working on faux meat products by using ingredients like proteins from peas and soya and an entire range of edible oils . Likewise, HP, shell,  Unilever , Apple, Johnson & Johnson are all working out their own ESG protocols .

 

The country wide report card is varied. With respect to the Paris Agreement , the US  does a classic flip -flop , with the Democrats supporting it and the Republicans rejecting it. Still, it has moved a long way from the ‘outright denial phase’ for the academic and university bodies are taking a firmer stand. Canada’s commitments are firmer and clear , and the nation is committed to reducing emissions  by 40% below 2005 levels by 2030. UK has done even better. The Climate Change Act of 2008 pledged to reduce the country’s emissions by 80%( w.r.t.1990) by 2050- the highest so far by any nation. We also have examples  of NDCs from diverse geographies :  Japan, Australia, South Korea  Brazil, Saudi Arabia – to name a few.

 

The last chapter is a jurist’s delight -for it takes up some of the most contentious cases based on  Paris Agreement’s dispute resolution methods , including arbitration . What happens when  actions ranging from  smelting to mining to deforestation  within the borders of a nation state impact the quality of water  and air beyond their own geography ? What is the meaning and implication of the state’s duty to care ?   Can  civil rights groups , individuals and activists get the apex courts of their country to give directions to their governments to implement in letter and spirit the binding commitments  which have been affirmed by the heads of state /government at international fora, or in their own Parliament. Thus, Stitching Urgenda  asked the Supreme Court of  Netherlands to direct the  Ministry of Economic Affairs and Climate Change to control the volume of GHG emissions to 40 %(of 1990 levels) by 2020  because ‘the Netherlands share of worldwide emissions was excessive – both in absolute and per capita terms . Similar cases were filed by Neubauer et al vs Germany , Greenpeace  versus Mexico , Greenpeace versus Spain , and many more .

 

Closer home, in Pakistan , the Lahore High Court  directed the Federation of Pakistan and the state government to enforce to fundamental rights of Leghari who had approached  the court as an ordinary citizen with respect to water , food and energy security . Leghari averred that the government was not fulfilling its commitments under the Framework for Implementation of Climate Change . In Nepal ,  Advocate Padma Bahadur Shreshtha filed a writ of mandamus against the Prime Minister to ensure an effective law to address climate change .  

This book will be  a ready reference manual , not just for judges , jurists , litigators , leaders of civil society , environmental  activists , administrators, parliamentarians and officers of the forest and environment departments, but also for teachers and students of law ,not just in India, but across the world, for the examples , case laws and commentary which Cheema has painstakingly collected make it an invaluable addition to your personal and institutional book shelf . Cheema deserves our collective accolade for undertaking an ambitious endeavour, and doing a fine job of it.

 

 

 


 

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