Environment vs Environment: Judiciary walks a tightrope

In the last few days, climate change litigations have found a fresh lease of life as the Supreme Court of India and the European Court of Human Rights (ECHR) have both passed pathbreaking and historical judgments linking climate change to human rights, creating altogether a new dimension for the well-being and quality of life on the planet.

The role of domestic courts, in handling climate-related issues has evolved significantly with an increase in the number of strategic cases being brought. This has been corroborated by the independent research published in 2023 by the Grantham Research Institute at the London School of Economics and Political Science (LSE) highlighting that from more than 2,341 cases, about two-thirds (1,557) have been filed since 2015, the year of the Paris Agreement. Out of these, 190 cases alone were filed in 2022-23 which has also been relied upon by the Supreme Court of India recently.

Prior international litigations such as Urgenda vs Netherlands have paved the way for a larger debate aimed at enhancing mitigation actions by states. Noted climate litigations such as the Juliana case in the United States and the Leghari case in Pakistan illustrate certain ways in which rights to life, health, property and privacy may be extended to encompass claims based on impacts brought by climate change.

In consonance with the international climate change jurisprudence, last week, India set a strong precedent through a landmark judgment, where the Supreme Court of India while walking a tightrope, struck a delicate balance between the conservation of the Great Indian Bustard (GIB) and India’s transition to clean energy in light of the country’s ambitious international commitments for climate change mitigation.

The bench headed by Chief Justice D Y Chandrachud highlighted India’s continued efforts to combat climate change and by referring to domestic precedents like MC Mehta vs. Kamal Nath which led to the recognition of ‘the right to a healthy and clean environment’ as a fundamental right, the Supreme court for the very first time in April 2024, recognized the ‘right against adverse effects of climate change’ for the citizens of India within the ambit of fundamental rights under Articles 14 and 21 of the Constitution.

The judgment holds great significance as this is one of the first cases where international climate change law has been referred to by the Supreme Court of India.

The judgment critically dealt with various aspects of the overall mission to combat climate change for a just transition and heavily relied upon India’s commitment in international conventions, the right against adverse effects of climate change, the importance of solar power as a source of renewable energy and climate change litigation jurisprudence in other jurisdictions while deciding the issue.

The matter involved the protection of a critically endangered bird species on the International Union of Conservation of Nature (IUCN) red list, the GIB, found only in the States of Rajasthan and Gujarat, which also hold enormous solar and wind energy potential. The highest court in its earlier order in 2021 imposed a blanket restriction on overhead transmission lines in 99,000 square kilometer radius, considering the decline of the species’ population, hence preserving the bird at the verge of extinction.

Few applications filed by multiple solar and wind energy companies asserted that the ban on transmission lines may lead to crippling of energy generating units in prime areas of the States, which could potentially hamper the achievement of India’s net zero goal. Thus, the Court for the very first time faced a nuanced dilemma where environment was pitched against the environment, and wildlife conservation was in total conflict to India’s international commitments on climate change.

Capturing this difficulty the Court stated,

“Unlike the conventional notion of sustainable development, which often pits economic growth against environmental conservation, the dilemma here involves a nuanced interplay between safeguarding biodiversity and mitigating the impact of climate change. It is not a binary choice between conservation and development but rather a dynamic interplay between protecting a critically endangered species and addressing the pressing global challenge of climate change.”

While Indian courts have, time and again, through its landmark interventions and forest benches. prioritized the conservation and protection of endangered species, this time it faced a rare dilemma. The Court had to be sensitive to India’s international commitment for net zero and the duty of care owed by the State to its citizens arising from international Conventions and Treaties.

Tracing India’s prior commitments to international climate change goals, the Court started by pointing out the fundamental objective of UNFCCC – “climate change is a global issue that requires a collective response.”

India has been part of the global movement towards climate change mitigation starting from the Kyoto Protocol, which came into force on February 16, 2005 obligating parties to establish binding emission targets to be met through national measures followed by the endlessly mentioned Paris Agreement signed by India in 2015, which created a new course altogether for climate change.

It obligated each party to take all appropriate and adequate climate mitigation measures according to its best capabilities and its responsibility in order to successively and progressively achieve the objective of the agreement: to keep global temperature increases well below 2°C in order to avoid dangerous anthropogenic interference with the climate system.

While the agreement expresses the obligations, they are not legally binding, and do not constitute an obligation of result but only an obligation of conduct according to which each party’s Nationally Determined Contribution (NDC) will reflect its highest possible ambition (Article 4.3). This ‘highest possible ambition’ reflects a duty of care that parties (States) need to exercise [Christina Voigt, ‘State Responsibility for Damages Associated with Climate Change’, in M. Doelle and SL. Seck (eds), Research Handbook on Loss and Damage (Edward Elgar, 2021)].

Hence, in line with this duty of care, the apex court held that India is duty bound to follow the ambitious targets for transitioning to non-fossil fuel resources set by itself in its NDC up to 2030, aiming to ramp up its installed renewable energy capacity to 450 GW.

Recalling its earlier order and lifting the ban, the Supreme Court thus carefully struck a balance between the two equally crucial sustainability goals. The Court formed an expert committee to assess the feasibility of undergrounding power lines in specific areas, with the direction that the committee shall balance the need for the preservation of GIB on the one hand with the need for sustainable development on the other hand.

Indian courts have no doubt played a pioneer role in saving the environment, forests and wildlife in the past. But this time, it went a giant step ahead to reaffirm its international commitments and its persistent efforts towards achieving the net zero goal.

In light of the request by the United Nations General Assembly (UNGA) to the International Court of Justice (ICJ) for an advisory opinion on the obligations of states with respect to climate change and a massive win in the recent landmark ruling by the European Court of Human Rights (ECtHR), that a government’s failure to meet its own climate targets will be considered a violation of the citizens’ rights against serious adverse effects of climate change on lives, health, wellbeing and quality of life, the world is bracing itself for witnessing a breakthrough in climate change litigation.

About the authors: Sudhir Mishra is the Founder & Managing Partner, Trust and Door Tenant at No5 Barristers’ Chambers, UK. He is an Advocate practicing before the Supreme Court of India.

Simran Gupta is pursuing an LLM from the The London School of Economics and Political Science (LSE) and is an Advocate before the Supreme Court of India.