Introduction: The Need for a Climate Emergency Declaration in India
The recently released Draft Environmental Impact Assessment Notification, 2020 (“EIA”) has been heavily criticised – and rightly so – for diluting key environmental safeguards. It included many problematic provisions, such as the exemption of some types of projects from public consultation. In the backdrop of India’s struggle against climate change, the EIA, if notified, will be a regressive measure that will arguably have long-term multidimensional impacts on the environment. Another such recent policy measure that had the potential to militate against climate change efforts is the now-withdrawn Draft Indian Forest (Amendment) Bill, 2019. It provided the bureaucracy with the competence to unilaterally acquire forest land, based on an undefined “public purpose”. Hence, it sought to pave the way for the easier allotment of the land for non-forest use.
Such measures suggest a cognitive dissonance on part of the Government at the level of policy-making, when it comes to climate change. On the one hand, lofty schemes and targets for mitigating climate change are announced, such as the one to set up 175 GW of renewable energy capacity by 2022 – a target that was becoming increasingly difficult to meet even before the onset of the pandemic. At the same time, measures militating against the cause in more subtle ways are taken. The Government’s performance in policy-making in this field has been highly disappointing, some examples being the vague drafting of the much-touted National Action Plan on Climate Change (“NAPCC”) and proposals such as the EIA. The level of implementation presents an even bleaker picture. For instance, a recent study in the Down to Earth magazine noted the various lacunae in the implementation of the NAPCC. These lacunae in implementing the plan exist at the level of not only the Union Government but also the state governments.
Such an approach suggests that governments are committed to maintaining only a façade of concern regarding curbing climate change. Their lackadaisical approach has been reflected in India’s consistently low rankings in Environment Performance Indices, with the country being ranked 168th out of 180 countries in 2020 and 177th in 2018 by researchers from Yale and Columbia Universities. One of the key factors that influences a country’s position on the rankings is good governance, and India’s consistently low ranks testify to the various lacunae in government action.
Further, state action, though important, is only one aspect of climate change mitigation and adaptation. An equally important aspect is measures and lifestyle changes on part of the people. However, in the case of India, there has arguably not been sufficient progress on this front either, and climate change does not form as crucial a part of the public discourse and concern as it should.
This present situation is far from acceptable. As noted in the IPCC Special Report on Global Warming, there is a need for “rapid, far-reaching and unprecedented changes” even to limit the global rise in temperatures to 1.5 degrees Celsius. In such a situation, a hypocritical approach on part of governments, and a nonchalant one on the part of at least a portion of the population, is unsustainable. As one of the top five emitters of greenhouse gases (in absolute terms), India needs to take a much more proactive role in climate change mitigation.
In this context, the declaration of a climate emergency could prove to be a much-needed first step in catalysing government and private action. The first such measure was taken at the local government level, in Darebin city in December 2016. Since then, there have been hundreds of such declarations on various levels of government, to the extent that ‘climate emergency’ was declared as the Oxford Word of 2019.
This blog will advance a case for the declaration of a climate emergency in India, primarily focusing on a national-level declaration. Given that climate emergency declarations worldwide have varied, the blog will first compare and contrast such declarations made at the national level, in order to provide insights into the general scope and content of national-level declarations. It will then list some benefits that the declaration of a climate emergency could have for India, hence asserting the desirability of the same. It will argue that even though climate emergency declarations are only the first step in scaling up the struggle against climate change, they are a significant first step that can yield significant benefits. Further, even though this blog primarily makes the case for a national-level declaration, most of the arguments herein apply state-level declarations as well. Indeed, in India’s federal structure with divided legislative and executive responsibilities, such declarations and concrete policy measures are equally important on the state level.
The Scope and Content of Climate Emergency Declarations: A Comparative Perspective
As noted above, there is no fixed template for a climate emergency declaration, and the same varies in various crucial respects. Firstly, in countries with federal structures, climate emergencies have been declared at various levels of government. In general, local governments have been more active in making such declarations: there have been over 1,700 local governments which have implemented the same. Given that the focus of this blog is on national-level declarations, the same need to be analysed in terms of their similarities and differences. In total, there have been over 10 national-level climate emergency declarations, 8 of which have been analysed for this blog (UK, Canada, Bangladesh, Portugal, Argentina, Maldives, France, Ireland). While these national-level declarations have primarily taken the form of parliamentary resolutions, there have been differences on other aspects.
In terms of the scope of the declaration, most of these countries have focused on reducing greenhouse gas emissions. However, Bangladesh has adopted a declaration with a wider scope. It is the only country to have declared a “planetary emergency”, which includes climate change as well as biodiversity and pollution concerns. As recognised by Mr. Saber Hossain Chowdhury, the Member of Parliament who led the motion, the Earth today faces numerous converging environmental crises, such as global warming, disasters, biodiversity loss, acidification of oceans, etc. This recognition is reflected in the scope of Bangladesh’s climate emergency declaration. Even Ireland has declared an emergency with a relatively wide scope, in declaring a “climate and biodiversity emergency” and calling for a response to the issue of biodiversity loss. The general trend among the countries analysed, however, has been to focus primarily on greenhouse gas emissions reduction.
In terms of the substantive content of climate emergency declarations, the case of the United Kingdom is illustrative of the general trend of nation-level climate emergency declarations. The United Kingdom is considered the first country to declare a climate emergency at the national level. Two content-related aspects of the “environmental and climate emergency” are important. Firstly, the declaration does not lay down any legally binding obligations on either the government or the people. To that extent, it is merely a declaration of intent. 7 out of the 8 countries analysed have declared a climate emergency in an identical manner; a largely symbolic Parliamentary resolution, without any legal consequences. Secondly, the UK has recognised the urgency of the issue and the insufficiency of the extant measures and has mentioned certain targets that are now aimed for. These include reducing carbon emissions by 80% (from 1990 levels) by 2050, and the presentation of proposals within 6 months to convert the UK into a zero-waste economy.
In terms of content, this has been the general trend across countries: the gravity of the situation has been recognised, and certain targets/future courses of action to be adopted have been laid out, though without imposing any legal obligations. For example, the Maldivian Parliament, in its climate emergency declaration resolution, has recommended several measures for the Government to follow. These include the diversion of money towards the production of fossil fuel energy, and that the Government advocate for a cease in investments and subsidies by countries on fossil fuel production. Even Argentina has passed only a symbolic resolution, which urges the Government to take the necessary steps to curb greenhouse gas emissions. The Portuguese Parliament passed a similar “declaration of the state of emergency”, though it differed from other countries’ resolutions in that no specific targets/courses of action were recommended for the Government.
France is the only country to have passed a climate emergency declaration with legal consequences. The Energy-Climate Act, 2019, which contained the climate emergency declaration, has been passed in furtherance to the Paris Agreement commitments. It aims at addressing “ecological and climate emergency” as the main objective of French energy policy. Besides providing for targets, it provides for concrete measures relating to energy efficiency of buildings and emissions from electricity generations. These fix responsibility primarily on private individuals and companies. Hence, the government has declared the targets it aims to achieve, but the means of achieving these targets would be legal obligations on the public. It also provides for the constitution of a High Council for the Climate, which will assess the government’s performance on policymaking and implementation.
Hence, the structure of national-level climate emergency declarations around the world has been broadly similar, with some notable exceptions when considering different aspects. The general trend is that of a parliamentary resolution declaring a climate emergency, with no legal obligations imposed on either the Government or citizens, but a strong statement of the gravity of the situation and the need to act urgently. In the Indian legal framework, both Houses of Parliament have the power to pass such resolutions, under the provisions of the Lok Sabha and Rajya Sabha Rules of Business (“LS Rules” and “RS Rules”). Under Rule 172 of the LS Rules and Rule 156 of the RS Rules, the only limitation on the subject-matter of a Parliamentary resolution is that it must be “a matter of general public interest”, a condition arguably satisfied by climate change given its multidimensional impact on the people. Further, under these Rules, parliamentary resolutions can be moved by both Ministers and Private Members of Parliament. Such resolutions do not usually impose any legal obligations on the Government, unless they seek to enforce a constitutional/statutory provision (which will not be the case for a climate emergency declaration, for the concept of climate emergency does not currently have statutory backing). This lack of a binding effect, however, is consistent with the general trend of climate emergency declarations. In the past, there have been instances of Parliament passing resolutions without binding effect, one example being the Lok Sabha’s 2013 resolution on Jammu and Kashmir.
Even if the general trend is followed for an Indian climate emergency declaration, there can be some significant benefits to be accrued from the same. This does not imply that this is normatively the most desirable model. A more comprehensive climate emergency declaration could, for example, mandate the adoption of a ‘climate lens’ approach towards every State action, which implies that governments would necessarily have to address the environmental impacts of their decisions. However, given the abovementioned lack of a binding effect of parliamentary resolutions, for such legal obligations to be generated through the declaration, the same must be enacted as a law under Article 246 of the Constitution. Such proposals, if adopted, would prove to have significant benefits.
Potential benefits of a Climate Emergency Declaration for India
As noted above, climate emergency declarations have largely been symbolic measures without any legal ramifications, expressing governments’ commitments towards the mitigation of climate change. This, however, does not make them meaningless – they must be regarded as significantly important first steps in scaling up the efforts for climate change mitigation and adaptation.
Firstly, such declarations can set political limits on the actions that governments can take without losing legitimacy in terms of their commitment to climate change. A climate emergency declaration is a strong admission on part of the government that a severe and imminent threat exists, and extant measures and implementation are not sufficient in tackling the same. Such an admission is much needed in the case of India. It further symbolises the government’s commitment to taking and implementing measures against the same, and puts the government on record. It hence sets a flag in the timeline from where continued government inaction and/or doublespeak will be received with heightened skepticism and criticism, and extant hypocritical government policies are also likely to be critically analysed. This phenomenon has been witnessed in many jurisdictions. For example, after the declaration of climate emergencies in the UK, Ireland, Canada, and France, the extant fossil fuel subsidies granted by them came under the scanner. Similarly, the expansion of the Trans-Mountain Pipeline in Canada, immediately after the declaration of the climate emergency, was met with heavy criticism, with it being called an example of a ‘cognitive dissonance’ by some. In some cases like that of Bangladesh, after the declaration of climate emergency, there have been diverse scholarly opinions about the policies needed to further the same.
The role of the Indian civil society in critically analysing existing and new government policies has undeniably been important. A climate emergency will provide a further basis for ensuring the accountability of the Indian Government, as well as bringing the issue of government inaction and hypocrisy into higher relief.
Secondly, in some cases, climate emergencies have been jumping-off points for concrete State action. This is arguably the impact of the political limits and compulsion to act that is imposed by a declaration, as outlined above. The case of the UK is illustrative. The 2020 Progress Report to Parliament, prepared by the Committee on Climate Change, noted the significant policy developments that had taken place in furtherance of the climate emergency declaration. These included the formation of a Cabinet Committee on Climate Change, a Treasury Net-Zero Review to examine issues regarding the funding of the net zero target, and sector-specific schemes. Further, new commitments to reduce emissions by local authorities and private companies have also been taken. These actions are a significant improvement from the lackadaisical approach of the Government in the preceding years. As noted by the Committee on Climate Change in its 2019 summary report, there were large deficits even at the level of government planning and setting of targets. France, as discussed above, is another example where the climate emergency declaration has been accompanied with concrete State action.
The third potential benefit can accrue on the level of judicial interpretation of crucial environment law statutes. In India, the judiciary has played a crucial role in enforcing environment laws and standards in various public interest litigation cases. For example, in TN Godavarman Thirumulpad v. Union of India, the Supreme Court adopted an expansive interpretation of ‘forest’ under the Forest (Conservation) Act 1980, as per the dictionary meaning of the same. The implication of this interpretation was that the statute now covers much more area than had hitherto been covered. Post this interim order, there were various continuing mandamus petitions filed in the case for close to two decades, with petitioners challenging instances of State action where the Forest Act was allegedly being violated. The intention of the legislature is a crucial aspect in statutory interpretation. Hence, a Parliamentary climate emergency declaration can provide a basis for gleaning the intention of the legislature in environment law statues and can aid a more expansive interpretation of extant statutes.
Fourthly, and perhaps more importantly, a climate emergency declaration must be adopted for the potential impacts it can have on the discourse regarding climate change, and the foreseeable impact on the attitudes and lifestyles of the people. The language that is used in public and private discourse can have a significant impact on the perceptions and severity of climate change. The use of ‘climate emergency’ recognises the imminence and urgency of the threat, and the need for attitudinal and lifestyle changes at the personal level. Hence, a climate emergency declaration, and the consequential use of the term in public and private discourse, can contribute to a heightened awareness of the phenomenon and a perceptible impact on the lifestyle of the people. For higher effectiveness on the latter aspect, the declaration must be accompanied by the propagation of some practicable measures that people can implement in their daily lives, the list of measures taking into account factors such as financial constraints faced by people.
A declaration of a climate emergency would only be a first step in the mitigation of and adaptation to climate change. However, as a first step, it can have significant benefits in streamlining government action, as well as bringing the imminence of the threat into the public and private discourse. Above all, it must be adopted for it recognises the severity of the threat and the need to take urgent and concrete actions. As the declaration of a climate emergency by the world’s scientists has pointed out, there is a need for urgent multidimensional action if the phenomenon is to be mitigated. A climate emergency declaration acknowledges the same and must be adopted.
This article has been authored by Saumya Singh, student at National Law School of India University, Bengaluru and Palak Jhalani, student at National Law University, Jodhpur.