Introduction
We live in a world where sea levels threaten coastal cities, heat waves have become more frequent, biodiversity is getting exploited, and the urgency of climate change litigation is now at its peak. The right to live in a healthy environment under Article 21 of the Constitution was first recognized in the case of Rural Litigation and Entitlement Kendra v State of UP in 1988. The balancing of energy access and conservation of wildlife while keeping the adverse effects of climate change in mind was recognized in the Great Indian Bustard case in 2024. Over the course of 36 years, both cases have one thing in common, i.e., the protection of the environment vis-à-vis climate change.
Climate change can be a reason for the extinction of not only the human species but also of other living species. Talking about climate change with respect to the Indian context, it has become the rising powerhouse both in terms of degradation of the environment, as Climate Litigation is on the rise in India as most people work in climate-sensitive sectors like agriculture, forestry, and coastal ecosystems for livelihoods.
That is why it becomes imperative for the judiciary to deal with the increasing climate change matters effectively. India has always been a country where the voice for climate change has been given strength through PILs and a growing number of National Green Tribunal cases. Environmental-related cases have always been a talking point in India, be it the Vellore Case, Kamalnath case, and MC Mehta case. The number of cases in the National Green Tribunal was 15132 cases in just the last five years. That shows the rise of climate litigation in India with respect to climate change and the protection of the environment.
This article is a comprehensive exploration of the topic, starting with the introduction that sets the stage for why climate change litigation is one of the most imperative concepts to ponder upon in the world we live in. Following this, it includes defining climate litigation and its parameters, policies, and regulations initially, as well as how India puts efforts and challenges faced in meeting climate litigation goals. It ends with a deliberation of the challenges and how they can be resolved through youth engagement and administrative reforms..
Climate Litigation Delineation: Laws, Policies, And Regulations
Climate litigation is a type of litigation that has some climate change law, policy, or science, which must be a material issue of law or fact in the case. However, this definition is vague and doesn’t cover all the nuances. Therefore, its definition consists of 4 different parameters – firstly, where climate change is a central issue, like in the Klima Seniorinnen case; secondly, where climate change is a peripheral issue; thirdly, where climate change is one motivation but not raised as an issue like in Manohar Lal Sharma case; and fourthly, where climate change is only for mitigation or adoption.
Many Indian laws talk about environmental conservation, like the Environment Protection Act of 1986, which aims to handle hazardous substances efficiently, and the Forest (Conservation) Act of 1980, which aims to ensure compensatory afforestation efforts. India is not aloof from international treaties like the Paris Agreement, in which India committed to generate 40% of its electricity from non-fossil fuels by 2030.
Two Hits and One Miss: India’s Climate Goals against Climate Change
India is on the verge of completing almost three critical targets of the Paris Agreement. However, there are still some areas where India needs to work harder. 2.5 billion odd credits are still left with India in the carbon market. Additionally, India is still lagging in its forestry target of 33%. The significant cases regarding climate conservation have been the issue of industries versus the environment. The Indian Judiciary always had a soft corner for the environment side. It can be seen when the Supreme Court directed various private firms to take necessary steps to avoid harming the heritage monuments and buildings in Tirupathi v. State of A.P. & Others.
Undoubtedly, climate change has been critical to the world, causing drought, ecosystem degradation, and food shortages. Climate change is one of the biggest threats to human rights through migration, drought, and poverty, making climate litigation more imperative for the country. All of these reasons show how imperative climate litigation has been over the years, and its importance will only increase as the problem of climate change cannot be solved in a few years or even decades.
The Nuisance Paradox: The Challenges of Climate Litigation
The biggest challenge of climate litigation is the war between private and public nuisance. Most climate change cases come as a private nuisance against the polluter, and these private nuisance cases are large numbers. However, climate change is an extensive issue that includes not only the individual complainants in case of private nuisance but also the whole society because of the ramifications of climate change that transcend any city, country, or border. Therefore, public nuisance is a more effective solution to tackle this problem.
Another gigantic challenge of the legal system has been establishing defendants’ liability, especially in private nuisance cases. This is because of the lack of climate change-related scientific machinery at the fundamental level to calculate the damage done to the environment. As in Macquarie v. Hodgson case, the court acquitted the defendants from the liability of public nuisance on the grounds that the carbon dioxide was colourless, and inert.
The lack of scientific advances in the climate change sector in India still haunts the Indian Judicial System. Some climate change-related cases can be solved by applying common law theories. Still, there remains a vacuum of rational nexus between these laws, theories, and scientific pieces of evidence to add up to the ratio decidendi of a case.
The formation of the National Green Tribunal (NGT) in 2010 was a paramount decision of India towards protecting the environment. However, some issues remain regarding limited jurisdiction, powers of execution, and statutory limitations. Section 14 of the NGT act states that the tribunal’s powers must arise “out of the implementation of” the jurisdictions, which are very limited in India compared to other countries such as the USA or the European Union. Therefore, it restricts the NGT from making decisions only in these limited jurisdictions’purview.
Future Facing: A Call for Youth Engagement and NGT Reform
The National Green Tribunal (NGT) has limited jurisdiction as section 14 of the NGT Act authorizes it to only decide from already defined climate change-related jurisprudence. It violates the notion of natural justice, as climate change is an ongoing and constant issue. Additionally, there is a need for climate litigation to be led by the youth as they are the most imperative stakeholders. For instance, in 2017, Ridhima Pandey, a 9-year-old girl, moved to the NGT, complaining about the government’s ignorance of implementing climate change-related policies practically.
The study of climate change vis-à-vis legal implications as a different area is still at a very tender stage in India, where climate change is only taught as a theory and has no practical implications. India has ratified the Paris Agreement, which talks to enhance climate change education and public access as per Article 12 of the Paris Agreement; there is still a need for specialized institutions focused on climate litigation for the youth by generating jobs in this sector and motivating them to take up climate change education and litigation for its optimistic progress.
Public Awareness about climate change directly impacts human activities, which also affects social relations between human beings and, thus, requires legal regulation. However, there is still a significant need to recognize climate law as a separate study. Some steps were taken in this regard by enacting the Environment Protection Act. However, we are still far behind in terms of the number and quality of laws in countries like the USA, such as the Inflation Reduction Act of 2022.
Conclusion
It has been a long time since the inception of climate litigation, starting with its first case. It is the peak time to make decisions and take steps towards equitable climate protection, as it has been opined that if necessary steps are not taken now, it would be impossible to stop the ramifications of climate change that are leading human society to extinction. There is a need to increase the powers that the NGT holds and improve the climate-related specialized institutions in addition to the practical study of the same. Additionally, the contribution of the youth to climate litigation will be paramount.
We, as India, must work on the same page in relation to climate change-related laws where there is a need for the balance of conservation of the environment and industrial development as India is now the most populous country with around 1.4 billion population. The courts must be our last line of defense, but justice cannot wait.
This blog is written by Bhavishya Goswami, 1st Year Law Student from RMLNLU, Lucknow.