ABSTRACT

This article summarises the recent developments in climate change litigation in India; it demonstrates how it has analyzed the special features of the structure to the Indian judicial system that provide it the desire, capacity, and integrity to embrace new concepts of disposition of climate change laws under the nation’s laws. While telling the history of judicial activism that started in the United States of America, economic development, population density, datedness of legal precedents, environmental considerations, and the sturdiness of democracy in the country, this Article analyses some of the recent trends in climate change case laws in the country. Last of all, asserting in this article the upsurge and depth of the trend in the incorporation of the principles of the international law on the environment, this article concludes. 

Opposition between an operational judiciary implementing international Environmental standards in the local and an evaluation of the legal status of climate litigation in relation to the set level and the obstacles in the recent periods. In 2019, climate litigation literature experienced substantial growth, with a focus on multiple novel dimensions: new significant decisions; new legal opportunities, legal persons, purposes of litigation, and regions, especially in the Global South; and more multifaceted approaches. The climate litigation literature also reflects these several but, to a considerable extent, related waves, which rise in harmony to form a chord. Still, this literature has not explored meaningful questions about the efficacy of such climate litigation as has started to concern scholarship on governance in the post-2015 decentralized climate regime systematized by the Paris Agreement. Examining the historical background and other chapters of this Article in terms of the evolution process of judicial activism, the role of environmental factors, and the effectiveness of the democratic system in the country, this Part explains some recent trends in climate change case law.

1. Introduction

“Vidya Dadati Vinayam” is an ancient Sanskrit phrase meaning knowledge leads to happiness.’’.

To this end, it is necessary to conclude that India is an important piece of the climate puzzle of the whole world. It hosts almost twenty percent of the world’s population, 2. Approximately 4% of the terrestrial area, 7%–8% of total number of known species, count of plants which is 40000+, count of animals which is 91000. Depending on climate-sensitive sectors agriculture and forestry more than 650 million population of India are directly affected. Minimum and maximum temperatures rise by two to four degrees Celsius during the 2050s over the northern region and over four degrees Celsius in the southern region of the country. It can be said that a great reliance is placed on the manner in which the Indian Judiciary addresses the escalating climate change-linked cases; the future of India as well as the entire planet. It has, in the past, considered it necessary to step in and fill the lack of law through carefully thought out orders, thereby compelling the Legislature to act[ Visakha & Ors. v. State of Rajasthan & Ors. (1997) 6 SCC 241 (India) (explaining when the Supreme Court of India, having no local law relating to the sexual harassment of women in the workplace, referred to numerous international Climate Change Litigation Problems. While climate change policies not only stagnate or regress but also fail even in those political systems that have long prided themselves on their sustainability and advanced ecological legislation in many countries and at the inter-national level environmentalists look to the courts for measures in combating climate change. Climate change litigation on mitigation or adaptation has been filed in several jurisdictions and takes various legal shapes. Lawsuits have been filed on corporate greenhouse emissions to the atmosphere as well as government planning and development failure to give climate change adequate consideration. Despite this diversity, there are several matters of controversy or challenge that seem to dog plaintiffs bringing climate-based claims to the courts. These issues are proof of the fact that the problem of climate change is multifaceted and that it encompasses many difficulties for the traditional legal forms and the governance in its sphere. The overall tally of climate change cases has surplus doubled up since the time another reading on the theme was given in 2017, wherein 884 such cases were reported in 2022 the figure has gone up to 2,180. Although most cases have been initiated in the United States, climate litigation is now emerging in various parts of the world, with about 17 percent of cases being reported in developing countries and SIDMs.

2. Background

The fight against climate change will require the involvement of all three ‘pillars of power’: In the legislative branch, to enact proper and sufficient legislation; in the executive branch to design and enforce proper and sufficient legislation and policies and in the judiciary branch to assess legislative and policies, solve conflicts, give legal suggestions on the interpretation of laws and define rights and duties. In the instances where the first two seem to be reluctant to assume leadership in some nations, courts and judges can act as drivers for change by ensuring governments and actors sponsor impactful solutions towards the climate change issue.

3. Objective

It is a desire of the project to compile a comprehensive, extensively researched handbook for the judges to help them to manage the several issues that commonly come up in climate change litigation. The handbook will help to raise judge’s awareness and improve their perception of climate change problems and, thereby, strengthen their legal climate change literacy, capacity, and competency. Potentially, the handbook may also help to educate the concerned actors on the appropriate process and substantive law provisions that provide for the pursuit of the climate change-related case before the court or a tribunal.

4. Climate change in the courts

And, as it pertains to the identification of the cases that fall within the scope of climate change, as Peel and Lin and, as also, Lavanya Rajamani, I identify two categories of cases:

1. The cases where climate change is the main theme in face. Meanwhile, the following are the common features of simple cases in relation to climate change: by the first part, namely, the legal arguments by the petitioners and
2. Those cases where the legal claims at issue are climate change concerns, though the matter itself is not focused on directly. refer to it. These two categories looking at them, bring out a lot of cases that refer to climate change mitigation than cases that refer to adaptation. I also further limit my study to the Supreme Court’s most significant cases. That is for the lower courts, High Court and the National Green Tribunal.

5. Methodology

The project comprises two stages.

1. Stage one: It is a desire of the project to compile a comprehensive, extensively researched handbook for the judges to help them to manage the several issues that commonly come up in climate change litigation. The handbook will help to raise judge’s awareness and improve their perception of climate change problems and, thereby, strengthen their legal climate change literacy, capacity, and competency. Potentially, the handbook may also help to educate the concerned actors on the appropriate process and substantive law provisions that provide for the pursuit of the climate change-related case before the court or a tribunal.
2. Stage two is aimed at preparing the handbook. This involves analysis the information received in stage one towards obtaining a clear picture of how courts are currently responding to climate change cases. On the basis of this analysis and other relevant information, emerging best practices on key issues arising in climate change litigation will be identified. Climate change litigation refers to legal actions taken by individuals, organizations, or governments to address climate change-related issues through the court system. The judiciary plays a crucial role in addressing these issues by interpreting existing laws, ensuring compliance with environmental regulations, and sometimes even shaping new legal standards to mitigate the impacts of climate change.

6. Judicial involvement in climate change litigation can take various forms!

1. Enforcing Existing Laws: Judicial systems can guarantee that current environmental legal standards are complied with and that greenhouse gas emissions are controlled, natural resources conserved and the polluters penalized.
2. Interpreting Legal Principles: Experts in the field of law analyze principles such as property rights, public trust doctrine, and human rights to identify the responsibilities of the state and business regarding climate change.
3. Setting Precedents: Climate change cases could provide the courts with specific measures and perform the law-making activity in climate cases, which influence further legal proceedings and climate policy on the local, national as well as international level.
4. Remedial Action: In certain instances, the courts may specify what needs to be done, for example, in emissions reduction, compensating for the impacts of climate change, or the restoration of the ecosystem.
5. Addressing Government Inaction: Legal actions can push governments to work on climate change where the legislative or the executive arm of a country has not put in place policies or regulations.
6. Increasing Accountability: This is true because climate change litigation fosters social control whereby actions or inaction of governments, corporations, or other entities are exposed to judicial analysis.

The judiciary plays a crucial role in climate change litigation: to proceed with the protection of the environment and the rights of the present and future generations that are affected by climate change.

7. Role of the National Green Tribunal

The number of specialized Environmental Courts and Tribunals created in Europe over the course of the 1970s was rather limited. By the year 2016, the number of individuals that have been provided legal enablement for the Environment, through the Coming up of Environmental Courts and Tribunals, was over one thousand two hundred in the whole world. When the very idea of green courts and the environmental jurisdiction distinct from having a traditional court system was under consideration in the global legal space, the parliament of India enacted the National Green Tribunal Act of 2010 (NGT Act). The Green Tribunal is formed according to the act to provide for the “efficient and speedy administration of justice to cases involving environmental issues and the preservation of forests and other natural resources. The benches of the green tribunal include not only the judicial members but they also members who have legal as well as scientific backgrounds to deal with the legal and technical aspects involved in any matter that comes in front of the tribunal. In the past decade since the establishment of the green tribunal, the court has managed to ensure that the issues of the Indian populace’s environment are placed at the forefront and discussed among its Judicial and Legal Society members. Even in spite of those challenges concerning the GT’s restricted geographical jurisdictions; abbreviated powers of execution; and legislative limitations,29 the Green Tribunal has been able to simplify those legal processes when dealing with legal matters concerning the environment and, at the same time, has supplied superior environmental jurisprudence and, often, drawing from, and on principles under international environmental law.

8. Employment of International Environmental Law

It has been seen that Indian Judicial decisions have for a long time considered international law and decisions as of persuasive authority. Thus legal instruments/plights namely the public trust doctrine, the polluter pays principle, the precautionary principle & intergenerational equity have been made a part of the environmental legal jurisprudence of India by the Supreme Court of India through its continued decisions thereby strengthening the aforesaid framework. The Green Tribunal has in the recent past assumed the responsibility of building up on this jurisprudence by integrating new ideas of international environmental law into domestic laws. For instance, the green tribunal in the case of Society for Protection of Environment & Biodiversity v. Union of India was hearing a challenge to a federal government notification of building and construction projects within areas of up to 150,000 square meters regarding their exemption from operations of environmental law. This applicant therefore prayed that the notification issued by the Ministry for Environment, Forests and Climate Change Indian dated 09/12/2016 be quashed and set aside on the grounds that it weakens and becomes redundant on the substantive requirements of the EIA Notification, 2006 not to mention that of Environment (Protection) Act 1986 which is the general environmental law of India. As if echoing the sentiments of the BNP: The provisions of the notification, if implemented, it was suggested, would potentially destroy the environment and ecology due some uncontrolled construction and building activities and would have disastrous effects on the environment thus polluting them irreversibly. It was further asserted that the applicant had informed that if the notification were to be implemented as framed, it would lead to the obliteration of the impact of those regulations pertaining to environmental laws currently in force. Does not quite fit within the non-regression doctrine.

9. The difficulties connected with climate change litigation

Thus, the judiciary has been sensitive to environmental problems in India. With this, there have been some limitations that have been witnessed. Here is a general map of those preclusion that bear relation to climate change litigation. The list is not comprehensive but rather is meant to be more of a diagnostic type of work while taking into consideration the part, where there is information regarding the role that the judiciary has thus far played on the environment.

10. Expansion of Access to Environmental Justice

A part of the creativity in the application of the principles of international law, the green tribunal as it is distinguished from the Constitutional Courts, the Supreme Court, and the High Courts is a creation of Statute. It is therefore restricted by the provisions of the parent act; for instance the NGT Act. This entails an inherent paradox concerning the chances at the Green tribunal. Though the Supreme Court of India and the High Courts of India can independently have a broader conceptualization of the standi in the Public Interest Litigation, the GT does not have the liberty since it is not a Constitutional Court of the country. Section 14 of the NGT Act states: “The Tribunal shall have the original jurisdiction over all civil suits where a substantial question with regard to the environment or the enforcement of any right with regard to the environment arises out of the implementation of the enactments set out at Schedule I.” Therefore amongst the enactments in Schedule I are: Water (Prevention and Control of Pollution) Act 1974; the Water (Prevention and Control of Pollution).

These are; the Cess Act 1977; the Forests (Conservation) Act 1980; the Air (Prevention and Control of Pollution) Act 1981; the Environment (Protection) Act 1986; the Public Liability Insurance Act 1981; and the Biological Diversity Act 2002. The same is true with Section 16 of the NGT Act enumerating situations where such a person can appeal against a Government order to the green tribunal. (Samata v. Union of India,) 34, that meant that the Green Tribunal eased the rule of locus standi so that more people could come to it relating to matters affecting the environment. Thus, it was noted that within the meaning of the relevant provisions of the EU Charter, the term ‘aggrieved persons’ would refer not only to any person who will be potentially affected but also an association of persons who will be potential sufferers by virtue of such an order and operating within the domain of environment.

Climate change litigation can be considered an emerging legal category, in which the judiciary actively intervenes and aims to regulate climate change. International courts are gradually receiving petitions that involve Climate Change, and such cases can be against governments, and companies, among other parties. Here's a look at the role of the judiciary in this context: Here's a look at the role of the judiciary in this context:

Legal Accountability and Enforcement

1. Regulatory Compliance: The central approach courts can utilize to force governments and companies into obeying established environmental laws and standards is to sue erring parties for derailing climate measures. For instance, legal decisions require the nation’s administrations to adopt climate change management strategies or ensure compliance to emission limitations. 
2. Public Interest Litigation: The legal system might accept actions from individuals and organizations on the precaution of environmental issues and climatic change. These cases usually involve consideration of whether governments and business organizations are being properly managed to deliver beneficial outcomes for the public.

Climate change in this perspective can be viewed as a legal issue.

1. Legal Precedents: This is because judicial decisions play some roles in the development of the legal body of climate change. The existing laws are used by the courts to address climate issues and determine the main principles that can be used in future cases on a similar topic.
2. New Legal Standards: In some cases, courts have set new precedents of climate change laws or brought some principles such as the right to a clean environment or climate implications in legal cases. That is why human rights and climate justice are indeed interconnected.
3. Rights-Based Claims: Currently, courts are adopting climate change as a human rights issue. For example, the plaintiffs claimed that climate change effects are constitutions’ infringement on the right to life, health, or property.
4. Intergenerational Equity: Some of them pertain to the rights of the unborn, saying that current actions or lack of action on climate change will most definitely affect the unborn generations.

International and Domestic Jurisprudence 

1. International Cases: Sushma Dev / Contents / 5 There are international legal determinations of climate change and regional laws though the latter are sparse; international courts and international tribunals for instance the International Court of Justice can hear issues on climate change in侚 interstate disputes or in advisory opinions. These cases often deal with issues of legal relations between countries and states.
2. Domestic Courts: National courts face all sorts of climate cases, including those that seek to have governmental climate policies declared unlawful up to cases concerning negligence by corporations leading to environmental degradation. Interacting with implementing agencies and other authorities, domestic courts bear the primary responsibility of applying national laws in climate change.
3. Policy and legislation also receive the influence of cultural factors as part of this category Judicial Influence: Judicial actions therefore can put policy and legislative action on alert either due to recognition of the absence of adequate legal provisions or due to the need to strengthen climate policies. Judicial decisions can come out with verdicts that can compel legislative organs to intensify efforts to redress climate change.
4. Policy Integration: Some of the rulings impose the need to include climate aspects in policy-making, thus guaranteeing consideration of climate effects while making governmental decisions.

Challenges and Limitations

1. Complexity of Climate Science: Studies and evaluations on climate change are mainly complex and difficult to comprehend by courts when used as evidence. This can distort decision-making since it is not true that human beings always make rational decisions.
2. Jurisdictional Constraints: Climate change litigation is also confined by the difference in the jurisdiction in which it is pursued, diverse legal procedures, and the level of judicial activism differences in the countries of the world.

11. Humans are responsible for global warming

Scientists have demonstrated that people are mainly to blame for nearly all the global warming that has occurred since the early in nineteenth century. Some human activities such as those listed above are releasing greenhouse gases which are warming the world more than at any time in at least the last two thousand years.

Global warming has led to the current average temperature of the surface of the earth being about 1. Warm has risen to 1 degree above what it was in the Pre-industrial age or the end of the nineteenth century and unprecedentedly warmer than at any time over the last one hundred thousand years. The decade of 2011-2020 was the warmest on record and for the first time in history, each of the last four decades has been warmer than any previous decade since 1850. It is claimed that climate change is caused by a global increase in temperature mainly. However, the increase in temperature is just one part of the story. This is because the Earth is a system, and one form of change triggers a change in the other forms depending on the interconnection between different areas. Climate change impacts now cover among others, extreme droughts, water deficits, serious explosions, increase in the level of the sea, floods, melting of the poles, extreme storms and reduced bio-diversity.

CASE LAW

• Subhash Kumar v. State of Bihar,

The Supreme Court held that the right to the enjoyment of pollution-free water and air comes within the ambit of the right to life. This precedent has been followed by a slew of other decisions that have read the right to a clean and healthy environment into the right to life.

• Wildlife First and Others v. Ministry of Environment and Forests

While the judiciary may provide a fertile ground for intervention on climate change, a case currently before the Supreme Court serves as a warning of the dangers associated with PILs. This case has been filed by Wildlife First, an NGO committed to securing conservation, and aims to dilute the Forest Rights Act, 2006, a progressive law that recognizes the rights of forest-dwelling communities by evicting forest-dwellers whose rights have not yet been recognized.

• Manushi Sangathan v. Government of Delhi

The petitioners challenged a ban against cycle rickshaws by using the IPCC’s fourth assessment report, which encouraged policies that promoted the use of more fuel-efficient vehicles. The High Court ruled that the restriction on the plying of cycle rickshaws was arbitrary and violated the cycle rickshaw drivers’ right to livelihood.

• We the People v. Union of India,

The petitioners challenged the cutting down of trees for the expansion of roads in Uttar Pradesh, which contributed to global warming. They further argued that trees were not being planted elsewhere to compensate for the loss of these trees. The Allahabad High Court held that additional trees needed to be planted to compensate for the trees that had been cut down.

• Narmada Bachao Andolan v. Union of India,

The dam is being established. What is being constructed is a large dam. The dam is neither a nuclear establishment nor a polluting industry. The construction of a dam undoubtedly would result in a change in the environment, but it would not be correct to presume that the construction of a large dam like the Sardarn Sarovar will result in an ecological disaster. India has an experience of over 40 years in the construction of dams. The experience does not show that the construction of a large dam is not cost-effective or leads to ecological or environmental degradation.

• Dr. B. L. Wadehra v. Union of India

The Court held that Government agencies may not plead nonavailability of funds, inadequacy of staff or other insufficiencies to justify the non-performance of their obligations under environmental laws.

• Vellore Citizens’ Welfare Forum v. Union of India

The Court held that The ‘precautionary principle’ requires government authorities to anticipate, prevent and attack the causes of environmental pollution. This principle also imposes the onus of proof on the developer or industrialist to show that his or her action is environmentally benign.

• State of Himachal Pradesh v. Ganesh Wood Products

The Court held that the Government development agencies charged with decision-making ought to give due regard to ecological factors including:
(a) The environmental policy of the Central and state government
(b) The sustainable development and utilization of natural resources;
(c) The obligation of the present generation to preserve natural resources and pass on to future generations an environment as intact as the one we inherited from the previous generation.

• Bangalore Medical Trust v. B.S. Muddappa

The power conferred under an environmental statue may be exercised only to advance environmental protection and not for a purpose that would defeat the object of the law.

• M.C. Mehta v. Kamal Nath

The state is the trustee of all natural resources which are by nature meant for public use and enjoyment. The public at large is the beneficiary of the seashore, running waters, air, forests, and ecologically fragile lands. These resources cannot be converted into private ownership.

12. Conclusion

The never-ceasing edicts of the different tiers of Indian courts within the sphere of environmental law have been founded on different constitutional elements that have aided the judicial system in attaining a creative and dynamic role identified through the irradiation of inventive jurisprudence. Earlier, as it was discerned in the case of Visakha, continuous jurisprudence of acknowledging rights not specifically recorded by the Legislature has spurred specific enactments on the subjects over time.

On one end, environmental rights including the rights against pollution have been sanctioned as rights of the citizens enshrined under the constitution. However, inasmuch as be specifically pertains to climate change, ideas like estimating an illegitimate construction’s carbon footprint and assessing damages have been turned down on the grounds of lack of scientific material evidence.

The next decade of such jurisprudence would dictate where the third largest emitter of carbon dioxide, set to become the most populous, would stand on dedicated climate rights of future generations. However, the outbreak of COVID-19 has also been identified as uncomfortable to developing countries including India with regard to the accumulation and disposal of waste, which also are the causes of climate crises, therefore, its eradication means the elimination of these climate crises. COVID-19 impacts bring several difficulties that affect the whole world. COVID-19 dealing with climate change is to be further examined and the Courts in the coming days will be addressing such claims.

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