March 10, 2020

Adapting to and Mitigating Climate Change through Legal-Regulatory Frameworks

Amit Kapur and Akshat Jain

“On climate change, we often don't fully appreciate that it is a problem. We think it is a problem waiting to happen.” ––Kofi Annan

The deleterious impact of life in the industrialized world on earth’s biosphere is the defining challenge of our times. Ironically, the looming climate crisis is given a euphemistic name––climate change. In the past decade, earth was ravaged by fast depleting glaciers, deeply intensifying natural disasters such as cyclones and typhoons, forest/bush fires, depleting water tables, diminishing air quality, and record summer temperatures all over the world. Evidently, it is now a global phenomenon––not limited to a region or the third world––since emissions and disruptive natural phenomena transcend political and physical borders. While poor and developing countries will be most adversely affected and be least able to cope with the anticipated shocks to their social, economic, and natural systems, the developed world is not insulated. 

The Supreme Court of India has upheld a regulatory framework established to promote the purchase of power generated by renewable energy sources.

The Supreme Court of India has upheld a regulatory framework established to promote the purchase of power generated by renewable energy sources.

Inamullhak Cm / EyeEm / Getty Images

Faced with this challenge, there is a lack of a shared global perspective on the magnitude of the crisis and the need to act resolutely. In fact, the number of governments that are in partial or complete denial of the climate crisis is rising as evidenced by the poor outcome of Conference of Parties 25 (COP 25) at Madrid. Ironically, while the crisis warrants decisive coordinated global action, we face the spectre of a crumbling world order––multilateralism is withering in the face of failing Bretton Woods institutions and rising nationalist tendencies.

The international political response to climate change began at the Rio Earth Summit in 1992 with the adoption of the United Nations Framework Convention on Climate Change (UNFCCC). The Paris Agreement adopted by the parties to UNFCCC in December 2015 was the culmination of a quarter century of international climate diplomacy since the launch of UNFCCC. This was a major step forward since the 1997 Kyoto Protocol and the Copenhagen and Cancun Agreements of 2009–10. However, the Paris Agreement proved to be a weak international accord––lacking binding mitigation targets and inadequate commitments to secure adaptation, finance, technology, and capacity building, suitable to meet the challenge. The United States withdrew from the Paris Agreement in 2017, another example of self-serving national policy coming to the fore. Developed nations seem to have stepped back from their commitments, setting in motion a ripple effect of noncompliance on NDCs (nationally determined contributions) manifested in the underwhelming outcome of Madrid COP 25. The time is upon us to rebuild the world order based on an enlightened understanding of the shared interest of humanity in confronting the climate challenge. It must not be an over-ambitious framework tilted in favor of foreign investors as came to be proposed by the Organisation for Economic Co-operation and Development in 1990 as the Multilateral Agreement on Investment (MAI) to temper down the 1962 UN General Assembly Declaration on Permanent Sovereignty over Natural Resources.

Climate change has had real economic consequences in India. A recent Stanford study estimated that the Indian economy is 31 percent smaller than what it could have been in the absence of global warming. The World Bank calculates climate change, if unaddressed, will shave nearly 3 percent off India’s GDP and depress living standards of nearly half its population by 2050. There are a number of factors that have contributed to this, including India’s historical dependence on coal for power generation, an increasing population and its effect on the limited resources, inefficient agricultural policies, and water disputes. Perhaps, it is time to rethink our approach to addressing climate change.

In Indian context, it is important to note that “protection and improvement of environment including forests and wildlife” is enshrined as a Directive Principle of State Policy by Indian Constitution (Article 48A). It is a fundamental duty of citizens (Article 51-A(g)) to “protect and improve the natural environments including forests, lakes, rivers and wildlife.” The Supreme Court of India has interpreted clean air and safe environmental conditions as a fundamental right of all citizens under Article 21 of the Constitution (Right to Life). India is a signatory to the 2002 Kyoto Protocol. In 2008, a comprehensive National Action Plan on Climate Change was launched by the Indian government comprising eight missions: (1) Solar Energy, (2) Energy Efficiency, (3) Sustainable Habitat, (4) Water, (5) Himalayan Ecosystem, (6) Green India, (7) Sustainable Agriculture, and (8) Knowledge regarding Climate Change. In this backdrop, the Supreme Court of India has upheld a regulatory framework established to promote the purchase of a certain amount of power generated by renewable energy sources in order to comply with the constitution and treaty.

Amongst other advisable initiatives, there is an emergent need for India to steadily migrate from coal-based power generation to renewable sources such as hydroelectric, wind, and solar, with appropriate incentives to attract investment and reduce the carbon footprint. The government’s aspirational goal of achieving 175 gigawatts (GW) of installed capacity based on renewable sources by 2022 and 450 GW by 2030 seems to be a step in the right direction. It must be realized with the right policies and proper implementation. Some recent initiatives are afoot to adapt to and mitigate climate change––including promoting e-mobility, building 100 smart cities across India, switching automobile engine technology from Bharat IV to Bharat VI emission norms from April 2020, and replacing 360 million incandescent bulbs by efficient Light Emitting Diode (LED) or Compact Fluorescent Lamp (CFL) bulbs.

It is time that there is coordinated policy toward achieving a unified goal of handling climate change and its adverse impact on the world economy. Any failure in doing so will have catastrophic effects way beyond the anticipation of the human race.

To attain change at the global level at a necessary scale, we need mitigation action led by the main emitting countries, while securing proliferation of finance and technology suited to secure low-carbon sustainable growth globally. Such change must be rooted in policy decisions with a transparent and efficacious legal and regulatory regime with clear incentives and disincentives to catalyze the change at national and regional levels. Each country must own up to the problem and present a definitive plan for low-carbon growth and emissions reduction. Only a clear national agenda can provide the foundation for regional and global cooperation and action plans to mitigate the imminent risk.

    Amit Kapur and Akshat Jain

    Amit Kapur is the joint managing partner with J. Sagar Associates (a leading national law firm in India). He may be reached at amit@jsalaw.com. Akshat Jain is a principal associate with J. Sagar Associates and may be reached at akshat.jain@jsalaw.com