Can Black and White Make “Green”?
Climate change is the reverberation of human activities motivated by self-interest over the past few centuries. It is paving the way to a daunting future, the negative effects of which can be seen to have been compounding over the course of time. The unprecedented rise in global temperature, sea level, and food shortage is a consequence of the same. The effect on the Polar Regions is another grave example because, since the beginning of the industrial revolution, there has been a thirty per cent rise in ocean levels.
As a result of the above, Intergovernmental Panel on Climate Change (“IPCC”) opined that the developing countries will be the worst affected. This is primarily attributable to their limited resources, and their economic, social, and technological backwardness. Billions of people living in these countries will be affected by declining levels of food production, water shortage, low level of income, and greater health risks. Climate change will, therefore, aggravate the developmental challenges that are often faced by these countries.
In India, millions of people living near the Himalayas will be facing the risks of increasing floods due to glacier retreat within the century itself. The frequency of natural calamities like droughts, erosions, floods, etc. is bound to increase, resulting in forced migration due to climate change. It is an apprehension that by 2050, over 140 million people will be compelled to migrate due to the ill effects of climate change. As an example, one out of every seven person from Bangladesh will be a climate migrant by the same time. Thus, climate change will induce these millions of people to migrate from Bangladesh to India.
Immediate steps need to be taken to prevent this ‘catastrophe in making’. The legal community can play an instrumental role in climate protection by influencing the laws, educating society about the existing climate framework, and advising its clients on liabilities and risks associated with various projects. Thus, it becomes the moral duty of the legal community to identify the gravity of the threat and to unite, so as to find solutions to mitigate its effects. One such identification has been the Climate Crisis Statement (“Crisis Statement”), which was released by the International Bar Association on May 5, 2020.
Adaptability of the Legal Profession and the Way Forward
As members of the legal fraternity, our responsibility in the implementation of the Crisis Statement should be foremost. Among other things, the Crisis Statement highlights the need to support and engage with the Sustainable Development Goals, bring about positive change at the workplace and support a just transition towards carbon neutrality. As discussed earlier, it is the need of the hour for us to adopt a climate-conscious approach. For this, it is important to educate lawyers, law students, legal researchers, professors, etc. about the ill effects of climate change. The National and State Bar Associations should take initiatives to spread awareness about this persisting issue amongst legal professionals and the legal aspects of climate change. Moreover, its impact on human rights should be taught in law schools. These schools should be encouraged to set up research centres and to publish journals to promote research and literature in this arena. Advanced training courses in environmental law should be introduced at both undergraduate and post-graduate studies. Furthermore, the students should be urged to associate themselves with different organizations, working to combat the effects of climate change, in the capacity of an intern or a volunteer.
The Need for Policy Research
In 2008, the government launched the National Action Plan on Climate Change (“NAPCC”). This plan envisages eight long-term missions to mitigate the effects of climate change. However, this plan is criticized for simply laying down the broad objectives without formulating a strategy for the same. The eight missions under the NAPCC are not properly integrated and therefore, have proved to be fragmented and dormant. Thus, we need a comprehensive policy to tackle climate impacts.
For this, emphasis should be laid on the policymaking process. Practitioners, institutions, students should actively participate in the preparation of white papers with the Ministry of Environment, Forest and Climate Change. These papers should focus on the formulation of proactive policies to effectively deal with climate change along with the relevant stakeholders. There is a pressing need for stringent laws and their implementation to govern a just transition towards carbon neutrality and to keep a check on greenhouse gas emissions. For this, a blueprint for the cancellation of licenses of companies that undertake the most exploitative practices should be charted. Moreover, there should be policies dealing with the administrative actions of the public servants. Strict penalties should be imposed if they violate their duties in terms of conservation of the environment. Lastly, policy analysis should also be undertaken to remove misalignments in the reduction of carbon emissions, such as policies that promote the development of infrastructure in vulnerable areas.
Duties of Lawyers and Law Firms
The Crisis Statement has recognized that the adoption of a climate-conscious approach would lead to an increase in the number of environment-related disputes. This implies that lawyers are currently carrying the weight of shaping the future for a better tomorrow. They should encourage their clients to voluntarily disclose the potential risks in the environment that might be associated with different industrial activities. Besides this, they should also advise their clients to develop more environmentally sustainable solutions.
Law firms and independent practitioners should be encouraged to take climate-related disputes on a pro-bono or reduced fees basis. Moreover, active steps should be taken for the removal of paper from the filing process and e-filing should be promoted.
Bar Associations as the Forefront Players
The National Bar Associations should recognize and honour the efforts of firms through a fixed criterion for evaluation. This would provide an incentive for the firms to strive towards sustainability. Additionally, the Indian National Bar Association can take inspiration from the California Bar Association and introduce voluntary plans like the Eco-Pledge Programme. Under this programme, specific guidelines dealing with a variety of steps such as using environmentally sustainable products to reusing supplies have been issued. It also confers a logo on those who endorse this pledge. Thus, the adoption of such initiatives by the Indian National Bar Association might result in increased participation of various firms, practitioners, and students across the country.
Judicial activism can be an effective tool in this regard. The Supreme Court and the High Courts should take up more suo motu cases related to the degradation of the environment. The National Green Tribunal (“NGT”) has been in limelight for adopting a proactive approach to regulate environmental issues. Last year, it took cognizance of the leak of styrene gas at the Visakhapatnam Plant and imposed a fine of INR 50 crore on LG Polymers. It is pertinent to consider the controversy surrounding the suo motu powers of the NGT. Under the National Green Tribunal Act, 2010, there is no specific provision recognizing the suo motu powers of the NGT. The same has been pointed out by the Madras High Court in Vellore Citizens Welfare Forums v. Union of India. In Rajeev Hitendra Pathal v. Achyut Kashinath, the Supreme Court has held that since tribunals derive powers from express provisions, the powers not conferred expressly by the statute cannot be exercised. This implies that NGT cannot go beyond its express powers as it is a creature of a statute. Thus, this conundrum highlights the need for the incorporation of provisions granting express suo motu powers to the NGT. In addition to the aforementioned, a framework for proper channelization of compensation needs to be chalked out such that the relief goes to the victim instead of the pollution control boards or the state government authorities.
Lastly, the courts should set strong precedents and slap heavy fines on parties causing serious adverse effects on the environment. This would act as a deterrent for different corporations involved in such practices.
International Court of Environment: The Need of the Hour
The Crisis Statement has also shed light on the establishment of an International ad-hoc arbitral body and subsequently, the establishment of the International Court of Environment. Nowadays, more and more environmental disputes are emerging before the courts but they aren’t well equipped to deal with such cases. Establishing courts that specifically deal with environmental issues would lead to increased efficiency and expertise. This would pave the path for more nuanced judgments.
The ICC Report has pointed that the lack of transparency in arbitration might prove it to be an unfavourable choice for dispute resolution. In order to deal with this issue, it is suggested that the proceedings in these cases should be made public and the awards should be available to the general public.
The International ad-hoc arbitral body should incorporate specialized rules as seen in the case of the Permanent Court of Arbitration. The highlight of the PCA Optional Rules for Arbitration of Disputes Relating to the Environment and or Natural Resource is that it provides for a specialized list of arbitrators who have expertise in the area of environmental law. The rules of the international body should aim at removing the hurdles faced by the parties, making these courts more accessible.
It must be taken into consideration that the recommendation for the establishment of an international body for environmental disputes is not new. The concept of the International Court of Environment was proposed by Justice Postiglione in 1988, however, the same has not come into existence yet. Thus, there is a dire need for the creation of a specialized body for these disputes before it is too late.
The Crisis Statement has brought the duties of the entire legal fraternity into the limelight. We have to play a substantial role in the transition towards a greener and sustainable environment. Any transition is not free from thorns and has its shortcomings. Thus, all the stakeholders from the different sections of society need to be involved in the process. The policymakers, bar associations, and courts are the vanguards of this movement which aims to mitigate the effects of climate change. They should focus not only on spreading awareness about the issue but also on implementing various recommendations as have been highlighted above. As individuals, our foremost responsibility should be to undertake conscious efforts to reduce our carbon footprints. We should get inspired by advocates like KTS Tulsi, who used to travel to the Parliament on his cycle. These small individual acts by the members of the legal community can have a considerable impact. The Crisis Statement, to an extent, has laid down the path towards a greener future for us, and now it is our task to walk down that road.
This article has been authored by Mr. Anubhab Sarkar, Partner at Triumvir Law and Ms. Ananya Singh, a third-year student at Rajiv Gandhi National University of Law, Punjab. This blog is a part of RSRR’s Excerpts from Experts Blog Series, initiated to bring forth discussion by experts on contemporary legal issues.