November 15, 2018

Paris Agreement and India: Dalliance or Serious Alliance?

Anupam Jha

From Stockholm in 1972 to Paris in 2015, India’s journey to protection of the environment has not been a smooth ride. At the1972 Stockholm Conference (First Earth Summit), Indira Gandhi, then-Prime Minister of India, made a historic statement questioning the prevailing discourse on environmental protection: “Are not poverty and need the greatest polluters?” Jairam Ramesh, Indira Gandhi: A Life in Nature 134 (2017). She highlighted the fundamental tension between the needs of developed and the developing countries. For the developed countries, protection of human environment needed top priority, whereas for the developing countries, poverty reduction deserved top priority. One of the greatest challenges after India’s independence from British rule has been unabated levels of poverty. Fast-forward 70 years after India’s independence, and 20 percent of India’s population remains in poverty. The World Bank, India’s Poverty Profile (2016), http://www.worldbank.org/en/news/infographic/2016/05/27/india-s-poverty-profile.

It would not have been unusual if current Prime Minister Narendra Modi had directed his diplomats to take the same stand at the 2015 United Nations Climate Change Conference in Paris (COP 21) and rejected the threat of climate change and the need to make significant reductions of carbon emissions. However, India’s position in Paris was in alignment with the environmental protection desires of developed countries, while not abandoning the poverty-reduction concerns of developing countries. Recent implementation of strong environmental policies and a growing recognition of environmental protection in the Indian judicial system evidence India’s transformation and its ability to commit to the greenhouse gas (GHG) emission reductions of the 2015 Paris Agreement.

Features of the Paris Agreement

One of the concrete successes made at COP 21was to open the Paris Agreement for signature by each country. Some of the provisions of the Paris Agreement help explain why developing nations such as India were willing to sign. First, strict differentiation between developed and developing nations came to an end. All countries made commitments to put forward their best efforts to reverse climate change. Second, for the first time all countries must report regularly, for international review, their GHG emissions and implementation efforts.

All signatories made binding commitments to make nationally determined contributions (NDCs) in six sectors (reduction of GHG emissions, adaptation, finance, technology transfer, capacity building, and transparency) and to pursue domestic measures aimed at achieving them. The NDCs are to be submitted every five years, with a clear expectation that they will move beyond the previous submittal. Developing countries made voluntary contributions, whereas developed countries legally bound themselves to obligations under the United Nations Framework on Climate Change (UNFCC). The Paris Agreement extended the current goal of mobilizing $100 billion a year in support from developed countries from 2020 through 2025, while a higher goal is to be determined after 2025.

Former French President Francois Hollande summed up the efforts of COP 21 leaders: “In Paris, there have been many revolutions over the centuries. Today, it’s the most beautiful and the most peaceful revolution that has just been accomplished— a revolution for climate change.” Tom Bawden, COP21: Paris Climate Deal ‘Our Best Chance to Save the Planet’ Says Obama, The Independent, U.K., Dec. 12, 2015, www.independent.co.uk/environment/cop21-ministers-keep-the-world-waiting-for-ratification-of-historic-climate-change-target-a6770821.html. According to Article 21, the Paris Agreement would become effective on the 30th day after at least 55 Parties to the Convention, accounting in total for at least an estimated 55 percent of the total GHG emissions, deposit their instruments of ratification, acceptance, approval, or accession. The Paris Agreement became effective on November 4, 2016, following India’s ratification on October 2, 2016, the birthday of its nation’s father, Mahatma Gandhi.

India’s GHG Contributions and Impacts

India faces significant threats from climate change, especially to key economic sectors and resources such as agriculture and water. Widespread poverty and dependence of a large section of its population on climate-sensitive sectors for livelihood further amplify the problem. The top 10 emitting countries contribute over 72 percent of global GHG emissions, and India has been ranked third overall in its emissions of GHGs. World Resources Institute, India, available at www.wri.org/our-work/topics/india (last visited August 16, 2018). The energy sector in India contributes more than 75 percent of India’s GHG emissions. Government of India, Ministry of Environment, Forests and Climate Change (MoEFCC), First Biennial Update Report to the United Nations Framework Convention on Climate Change 16–17 (Dec. 2015), https://unfccc.int/resource/docs/natc/indbur1.pdf [hereinafter First Biennial Update Report].

In 2013, the 19th Session of the Conference of the Parties (COP 19) invited all Parties to initiate domestic preparations for their NDCs toward achieving the objective of the Convention. India declared its first NDCs on October 2, 2015, showing its willingness to follow the provisions of the Paris Agreement. India has since set a goal of reducing the emissions intensity of its gross domestic product (GDP) by 20 to 25 percent over 2005 levels by 2020, despite having no binding mitigation obligations as per the Convention. The United Nations Environment Programme recognized India as one of the countries on course to achieving this voluntary goal. U.N. Environment, Emissions Gap Report (2017). India’s environment minister has incorporated the goal of further reduction in GHG emissions intensity (emission per unit of GDP) by 33 to 35 percent by 2030 from 2005 levels. Press Release, MoEFCC, India to Reduce the Emissions Intensity of its GDP by 33 to 35 Per Cent by 2030 from 2005 Level (Oct. 2, 2015).

India furthered progress toward these goals with its National Action Plan on Climate Change, adopted in 2008. The eight “National Missions” under this action plan are key to achieving India’s goals. The national missions are Solar Energy, Enhanced Energy Efficiency, Sustainable Habitat, Water, Sustaining the Himalayan Ecosystem, Green India, Sustainable Agriculture, and Strategic Knowledge for Climate Change. Significant ingredients of the missions include the Integrated Power Development Scheme, the renewable purchase obligations (RPOs) guidelines for states to implement, the Clean Environment Cess (establishing a “carbon tax,” or cess, on coal, lignite, and peat), the Perform Achieve and Trade Scheme, and the National Program for LED-based Lighting.

A major component of India’s action plan is to increase its carbon sink stock. Currently, total forest and tree cover in India, which serves as a carbon sink, is 24 percent of India’s land mass (absorbing 7,082 million tons of CO2-equivalent per year). Government of India Ministry of Environment and Forests (MoEF), India State of Forest Report (2017), http://fsi.nic.in/details.php?pgID=sb_64. India plans to increase this through policies and initiatives such as Green India Mission, Green Highways Policy, Financial Incentive for Forests, planting along rivers, and reducing emissions from deforestation and forest degradation (REDD). Green India Mission’s goal is to increase forest cover and forest-based livelihood to create an additional carbon sink of 2.5 to 3 billion tons of CO2 equivalent through additional forest and tree cover by 2030. See MoEF, National Mission for a Green India 3 (2014). This historic initiative would give afforestation a massive boost. In August 2016, the Compensatory Afforestation Fund Act set up the Compensatory Afforestation Fund Management and Planning Authority at both the central (federal) and state levels to ensure expeditious and transparent utilization of funding to implement these policies.

Another formal government policy is the Solar Mission. This mission provides for the development of 25 solar parks, “ultra-mega” (over 4000 megawatt (MW)) solar power projects, canal-top solar projects, and provision of 100,000 solar pumps for farmers. Further, an ambitious federal Solar Expansion Program seeks to enhance the capacity of solar energy to 100 gigawatt (GW) by 2022. In addition, India decided to anchor the International Solar Alliance (ISA), composed of all countries located between Tropic of Cancer and Tropic of Capricorn. The ISA seeks to reduce the cost of finance and technology needed to deploy solar power widely. The ISA Framework Agreement opened for signature during the COP 22 summit at Marrakesh on November 15, 2016. To date, 61 countries have signed the ISA Framework Agreement and 33 countries have ratified it. It came into force in December 2017.

India is running one of the largest renewable energy capacity expansion programs in the world. From 2002 to 2017, the share of renewable grid capacity has increased over six times, from 2 (3.9 GW) to around 13 percent (36 GW), from a mix of sources including wind power, small-hydro power, bio-mass power, co-generation, waste to power, and solar power. The government wants to scale up targets for renewable energy capacity from 30 GW by 2016–2017 to 175 GW by 2021–2022. Press Trust of India (PTI), India to Achieve 175 GW Renewable Energy Ahead of 2022 Deadline, The Economic Times, Feb. 23, 2018, https://economictimes.indiatimes.com/industry/energy/power/india-to-achieve-175-gw-renewable-energy-ahead-of-2022-deadline/articleshow/63046393.cms.

The development of renewable power is strengthened by the RPOs and the renewable generation obligations (RGOs) provisions of India’s Electricity Act of 2003. Under this Act, state electricity regulatory commissions can regulate the RPOs. Under the innovative RGO regime, new coal-fueled thermal plants must also establish or purchase renewable capacity at a percentage fixed by each state electricity regulatory commission.

India’s transportation sector is a major source of carbon emissions. According to one estimate, 53,720 vehicles are added every day in India. Dipak K Dash, 53,700 Vehicles Registered across Country Every Day, The Times of India, Aug. 18, 2016, https://timesofindia.indiatimes.com/auto/miscellaneous/53700-vehicles-registered-across-country-every-day/articleshow/53747821.cms. Most of these vehicles use diesel fuel. New initiatives have the potential to convert this challenge into an opportunity. Delhi Metro became India’s first mass rapid transit system (MRTS) project to earn carbon credit. Mumbai suburban railways are also helpful in reducing carbon emissions.

The national Jawaharlal Nehru Urban Renewal Mission, which concluded in 2014, achieved significant success in adding cluster buses for city transport. Cluster buses operate on compressed natural gas, encourage many citizens to opt for public transport, and reduce carbon emissions. Renamed as the Atal Mission for Rejuvenation and Urban Transformation (AMRUT) in 2015, its purpose is to (1) “ensure that every household has a tap with assured supply of water and a sewage connection;” (2) “increase the amenity value of cities by developing greenery and well maintained open spaces;” and (3) “reduce pollution by switching to public transport or constructing facilities for non-motorized transport,” such as walking and cycling. Ministry of Housing and Urban Affairs, Atal Mission for Rejuvenation and Urban Transformation (AMRUT) (2017), http://amrut.gov.in.

In 2016, the Indian government implemented a national policy to reduce household wood and biomass burning, the Pradhan Mantri Ujjwala Plan. Under this plan, the government uses corporate social responsibility funds of state-run fuel retailers (e.g., Indian Oil, Bharat Petroleum, and Hindustan Petroleum) to help poor households switch to liquified petroleum gas (LPG). This policy aims to provide free LPG connections to below poverty-level households and builds on the objective of achieving universal coverage of cooking gas in the country. LPG stoves are offered at a cost of only 15 U.S. dollars (USD). In just three years, 50 million families below the poverty level should be covered under this scheme.

Article 7 of the Paris Agreement mandates that signatory countries enhance adaptive capacity, strengthen resilience, and reduce vulnerability to the impacts of climate change. Implementing this provision, India has established a National Adaptation Fund with an initial allocation of 3,500 million Indian rupee (INR), the equivalent of USD 55.6 million, to address adaptation needs in key sectors. The fund can be utilized by states, based on approval of the individual projects. As a good example, the Indian government granted the State of Madhya Pradesh a fund of USD 3 million for increasing adaptive capacity to climate change through the development of “climate-smart” villages in select vulnerable districts.

To implement the 2008 National Action Plan on Climate Change, India must commit an additional USD 2.5 trillion from 2015 to 2030. Substantial scaling up of these climate plans would require even greater resources. India’s funding comes primarily from the internationally funded Green Climate Fund, Adaptation Fund, and Global Environment Facility. India has applied for the funds in different sectors. Currently, two projects from India have been approved by Green Climate Fund, with an outlay of USD 134.4 million, for rooftop solar development and development of enhanced groundwater recharge to facilitate irrigation in areas more vulnerable to increased drought conditions. Green Climate Fund, Country Profiles: India (2018), www.greenclimate.fund/countries/-/country-profiles/india. Under the Adaptation Fund, six projects have been approved with an outlay of USD 9.8 million. From 2014 to 2018, the Global Environment Facility also has allocated USD 59 million. Technology development and transfer and capacity-building are keys to ensuring adequate development and deployment of clean technologies. Enhanced action on technology development and transfer is central in enabling the full and effective implementation of India’s NDC.

India’s First Biennial Update Report

Signatory countries of the Paris Agreement are required to submit biennial reports on progress toward emission reductions. India submitted its Biennial Update Report (BUR) to UNFCCC on January 22, 2016. See First Biennial Update Report, supra. India’s second BUR is expected to be released in late 2018.

The 2016 BUR includes the GHG Inventory of India for the year 2010. The inventory covers the six primary greenhouse gases (carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFC), and sulfur hexafluoride (SF6)) measured from five source categories (energy; industrial processes and product use; agriculture, waste, and land use; change; and forestry). According to the 2016 BUR, India emitted 2,136.84 million tons of GHGs in 2010. The energy sector was the prime contributor of GHG emissions (71 percent in 2010). Industrial processes and product use contributed 8 percent; agriculture contributed 18 percent; and the waste sector contributed 3 percent to the national GHG inventory. Forests and croplands offset about 12 percent of emissions.

The 2016 BUR also shows that India is making progress toward its Paris commitment. India’s per capita GHG emission in 2010 was 1.56 tons CO2 equivalent, which is less than one-third of the world’s per capita emissions, and far below the per capita rate of many developed and developing countries. Between 2005 and 2010, India reduced its emission intensity of GDP by about 12 percent, a significant achievement toward its voluntary pledge of reducing emission intensity of GDP by 20 to 25 percent by 2020 (compared with the 2005 level).

Judicial Developments Supporting Climate Change Goals

In 2010, the Indian government established the National Green Tribunal (NGT) to settle environmental disputes under the India’s National Green Tribunal Act (NGTA). The NGT has sole jurisdiction over all civil cases involving a substantial question arising out of the implementation of India’s Water Act, Air Act, Forest Act, Environment Act, Biological Diversity Act, or Public Liability Insurance Act. In addition, the NGTA provides that the NGT shall apply principles of sustainable development, the precautionary principle, and the polluter pays principle.

Many challenges before the NGT stem from India’s Environment Protection Act. This law requires that proponents of projects that may have an impact on the environment first provide an environmental impact assessment (EIA). The MoEFCC must approve the EIA and determine necessary mitigation measures before project commencement. However, individual EIAs do not address the larger concerns for the cumulative environmental impacts of multiple independent projects. The NGT more recently has stepped in by taking stricter scrutiny of EIAs for individual projects.

For example, in Paryavaran Sanrakshan Sangharsh Samiti, Lippa v. Union of India and Others (2016) (India), available at www.indiaenvironmentportal.org.in/files/Kashang%20Hydro%20Electric%20Project%20village%20Lippa%20NGT.pdf, the NGT entertained a challenge by local villagers opposing the government approval of diversion of 17.7 hectares (approximately 44 acres) of forest land for construction of a 130 MW hydroelectric project. Approximately 200 hydroelectric projects are under construction in the region. The NGT asked whether the EIA report took into consideration the cumulative impact assessment of existing plants, plants under construction, and hydropower projects proposed in the same region. It directed the government to place the entire proposal before the legislative bodies of affected villages within the region as prescribed under the provisions of the Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act of 2006. The village governments have been directed to negotiate measures with the project proponent to offset the project’s adverse impacts.

The coal mining industry is notorious for receiving “rubber-stamp” approvals for new projects, with a record number of clearances being granted in the last five years by the MoEF. Because coal mining is the second largest employer in India, after railroads, a federal policy decision to stop coal mining abruptly would impact the livelihoods of many citizens.

But, in recent years the NGT has reversed the approvals for certain individual projects, signaling a change in direction from the country’s usual acquiescence to the coal industry to a more ecologically protective approach. For instance, in 2012 the NGT halted construction of a coal-fired thermal energy plant in the western India area of Kutch after protests that this area was too ecologically fragile.

In late 2012, the NGT halted construction of another coal-fueled energy plant designated for location in the Hasdeo Arand forest. See Sudiep Shrivastavav v. Union of India and Others (2014) (India), available at https://indiankanoon.org/doc/194741231/. The MoEF initially had authorized the project, rejecting the recommendations of its own Forest Advisory Committee, which had designated the area as “no-go” because of the forest cover present. The NGT overruled the MoEF authorization and asked it to obtain a new opinion from the Forest Advisory Committee on all pertinent factors.

In 2014, the NGT ordered a halt to common, small-scale “rat-hole” mining activities in the eastern Indian State of Meghalaya after a challenge by local citizen groups alleging that such mining violates various environment and pollution control laws. The groups demonstrated that this mining had turned the local rivers acidic and unfit for human use.

Courts also are supporting the government’s major push to improve the efficiency of thermal (steam) power plants. In a recent case, Sunil Dahiya v. Union of India (2018) (India), available at www.elaw.org/system/files/attachments/publicresource/IN_SunilDahiya_17Jan2018.pdf, the NGT held that the MoEF may not grant any environmental clearance to any thermal power plant unless every mechanism or technique to achieve the most current standards of emissions and water consumption is adopted. The NGT also overruled a request by the MoEF for an extension of the required time line for implementing the regulation.

Indian courts also are being asked to scrutinize the government’s response to climate change, similar to challenges brought in a number of other countries. In Ridhima Pandey v. Union of India (2017) (India), available at https://www.elaw.org/system/files/attachments/publicresource/IN_RidhimaPandey_petition_2017.pdf, a nine-year-old child filed a petition asking the NGT to direct the federal government, as well as the Central Pollution Control Board, to take effective, science-based action to reduce and minimize the adverse impacts of climate change in the country. The applicant asserts that the successive federal governments have failed to implement various environmental laws, resulting in adverse impacts of climate change across the country. This case is pending before the NGT.

The Supreme Court of India also has issued recent decisions that support greater environmental protections and limiting GHG emissions in India and its most affected cities. For example, in M.C. Mehta v. Union of India (2015) (India), available at www.epca.org.in/court_orders/sc-order5-1-16.pdf, the Supreme Court levied the Environment Compensation Charge on commercial diesel vehicles registered outside Delhi to curb auto emissions in this heavily polluted city. This charge is a kind of entry tax, levied at the time of entering at Delhi’s borders. Earlier, the Supreme Court had upheld NGT’s order to ban 10- and 15-year-old diesel and petrol cars in Delhi region. And in Association of Radio Taxis v. Union of India (2015) (India), available at https://indiankanoon.org/doc/51845130/, the Delhi High Court imposed a ban on diesel taxis within Delhi. The court held that growth and development must take place in accordance with the principle of sustainable development.

In Gauri Grover v. NCT of Delhi and Others (2018) (India), available at www.casemine.com/judgement/in/5a65cbad4a93263320777eac, the Delhi High Court directed the municipal corporations of Delhi to take concrete measures to deal with the Herculean problem of solid waste management, which has caused a serious health problem for local citizens. Dengue, malaria, and chikungunya cases are rising every year because of the failure to landfill solid waste properly. Improving waste collection and disposal also will help to address the contributions of GHGs from solid waste decay, which is a significant contributor of methane, a powerful GHG.

Challenges to India’s Fulfillment of Paris Agreement Objectives

In conclusion, as compared to the United Nations’ First Earth Summit in Stockholm in 1972, where India had shown little interest in environmental issues, COP 21 at Paris showed a palpable hope for India’s participation in global emission reductions. Since signing the Paris Agreement in 2016, India has made significant strides implementing its provisions. However, other developments pose serious challenges to India’s ability to fulfill the objectives of the Paris Agreement. For instance, the “Make in India” scheme launched by the government in 2014 to attract foreign companies to invest and manufacture their products in India, has overlooked requisite environmental clearances. There are no ecological or social criteria laid down in the scheme about “making” or manufacturing in India. On the contrary, environmental and labor laws are diluted to attract investors, without social and ecological conditions. Without environmental safeguards, this policy will destroy the soil, uproot farmers, contribute to deforestation, and increase pollution.

In addition, in the cities of India, new health problems such as dengue and chikungunya are affecting increasing numbers of people. Solid waste management rules have not been implemented in many cities. India’s cattle population is the highest in the world, contributing significant emissions of methane, a potent GHG––yet the government prohibits the slaughter of cows. To reduce transportation-related emissions, public transport needs to be strengthened further and expanded by a larger network of roads and railways. Many cities still do not have access to clean fuel options.

Despite these challenges, India has decided to make a serious commitment to the Paris Agreement. The period of dalliance is over.

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Anupam Jha

Dr. Jha is an associate professor of law at the University of Delhi in Delhi, India. He may be reached at jhaanupamlaw@gmail.com.