―ROLE OF DEVELOPING COUNTRIES IN MITIGATING

CLIMATE CHANGE AND THE LEGAL FRAMEWORK: A

CRITICAL STUDY‖

Dissertation submitted in partial fulfilment of requirement for the degree of

MASTER OF LAWS (LL.M.)

At Hidayatullah National Law University, Naya Raipur (C.G.)

(2015-2016)

Submitted By

ADITI NIDHI

Roll No.-02
PG/09/2015/215

Guided By

Dr. Kaumudhi Challa

(Assistant Professor)

Post-Graduate Department of Law

Hidayatullah National Law University

Naya Raipur (C.G.)

(2015-16)

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 Hidayatullah National Law Dr. Kaumudhi Challa
University Assistant Professor of Law,
Hidayatullah National Law
Uparwara Village, University, Raipur, (C.G)
Abhanpur Road, Raipur E-mail–
Chhattisgarh, India dr.kaumudhi@hnlu.ac.in
___________________________________________________________________________

CERTIFICATE
This is to certify that the dissertation entitled, ―Role of Developing Countries in Mitigating
Climate Change and The Legal Framework: A Critical Study‖ submitted to Hidayatullah
National Law University, Raipur by Ms. Aditi Nidhi, Reg. No. PG/09/2015/215, in partial
completion of the requirement for the Award of Degree of Master of Laws (LL.M.), is an
independent and original work, prepared under my supervision and guidance.

It is further certified that the dissertation is fit for evaluation.

Date: 10th May, 2016 Miss Kaumudhi Challa

Place: Raipur Faculty of Law

HNLU, Raipur

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 DECLARATION

I, Aditi Nidhi, a bonafide student of 1-yr LL.M. Course (2015-2016) in Environmental Law
in Hidayatullah National Law University, Raipur would like to declare that this research work
entitled ―Role of Developing Countries in Mitigating Climate Change and The Legal
Framework: A Critical Study‖ submitted by me in partial fulfilment of the requirements for
the degree of Master of Laws in Environmental Law is my original and independent work.

Place: Raipur Signature of the student

Date: 10/05/2016 Miss Aditi Nidhi

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 ACKNOWLEDGEMENT

“Gratitude is the least articulate of emotions especially when it is deep”. It is my privilege to

acknowledge with deep sense of gratitude and devotion, the keen interest and valuable
guidance rendered to me by Dr. Kaumudhi Challa. It is because of her great support,
guidance, and constant encouragement and inspiration that I have been able to complete this
work.

“I am a particle in the ocean of knowledge‖ is an expression made by scientist Albert

Einstein. In fact, knowledge is the endless ocean which can only be approached but can never
be crossed. An aimless can find his destination not only with a compass but also with an
experienced and seasoned guide. Indeed, I am finding it difficult to choose befitting words to
convey my true feelings of deep gratitude towards my research guide Dr. Kaumudhi Challa,
(Assistant Professor), Hidayatullah National Law University, Raipur for her conscientious
guidance at every stage and throughout the whole research work. No language in this world
can connote appropriate words to express feelings and emotions. Her endeavour for
perfection, foresight and innovation and her gentle support and encouragement to do the hard
work has helped me in completing this research work with considerable ease and in stipulated
time. Her innovative style to find out the core and root cause of the problem showed the
directions to reach at the desired result; otherwise the study in the present form would not
have been a reality.

A word of appreciation is also due toMr. Sandeep Kumar Suman, who has provided me with
valuable guidance and blessings for the completion of this work and the entire curriculum.

I also extend my gratefulness to Mr. Rana Navneet Roy, who has always encouraged me,
inspired me, pushed me beyond limits to achieve more and learn more and motivated me in my
research work.

I highly value the support and help of Staff associated with Library and all other persons who
helped me to materialize this work directly or indirectly.

I owe my special thanks to my brother Mr. Abhinav Singh for his never failing support and
inspiration. Without his unstinted support and guidance this work could not have been
materialized.

I extend my grateful thanks to non-teaching staff Mr. Kailash Sarode & Dr. Manish Tiwari
for their kind help and co-operation.

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I extend my feeling of gratitude towards all the publications and journals which have been
listed in bibliography. I wish to acknowledge all authors & publishers of all such references
and the entire commercial and official websites. Without these literatures, it was impossible
task for me to conduct this research study.

I wish to record my grateful thanks to my parents Mr. Satyendra Kumar Singh and Mrs.
SarojSingh and my sister Miss Ashika Nidhi who have been the source of my inspiration in
every work and in this entire research work.

At last but not the least, I would like to acknowledge the contribution of all my friends who
have been the instrument in completing the research work. I also acknowledge the help of
those people who directly and indirectly supported me in my research study.

Place: Raipur (Signature)

Date: 10/5/2016 Miss Aditi Nidhi

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 LIST OF ABBREVIATIONS

 AAU…………………………………………………………...Assigned Amount Units

 AGWT…………………………………...…. Anthropogenic Global Warming Theory
 AIR…………………………………………………………………. All India Reporter
 BC……………………………………………………………………….Black carbon
 CBDR……………………………………. Common but Differentiated Responsibility
 CBD………………………………………………Convention on Biological Diversity
 CFCs……………………………………………………………...Chlorofluorocarbons
 CDM…………………………………………………Clean Development Mechanisms
 COP……………………………………………………………...Conference of Parties
 CCAP……………………………………………. Climate Change Action Programme
 CII……………………………………………………Confederation of Indian Industry
 CTCN……………………………………… Climate Technology Centre and Network
 EPA……………………………………………………… Environment protection Act
 ERU…………………………………………………………Emission Reduction Units
 FAO……………………………………………… Food and Agricultural Organization
 GHG…………………………………………………………………Greenhouse Gases
 GEF………………………………………………………Global Environment Facility
 GCF………………………………………………………………Green Climate Fund
 HCFCs……………………………………………………… Hydrochloroflorocarbons
 HFCs………………………………………………………………. Hydroflorocarbons
 HKKH……………………………………………...Hindukush-Karakoram-Himalayas
 ICSI………………………………………International Commission for Snow and Ice
 IPCC……………………………………Inter-Governmental Panel on Climate Change
 JI…………………………………………………………………Joint Implementation
 LDCF…………………………………………………Least Developed Country Fund
 LDC……………………………………………………….Least Developed Countries
 MEF………………………………………………Ministry of Environment and Forest
 MOP…………………………………………………………………Meeting of Parties
 MRV…………………………………………Monitoring, Reporting and Verification
 NASA………………………………. National Aeronautics and Space Administration
 NAPCC……………………………………...National Action Plan on Climate Change

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 NMM…………………………………………………………New Market Mechanism
 NAP…………………………………………………………National Adaptation Plans
 NMEEE……………………………National Mission on Enhanced Energy Efficiency
 PAT……………………………………………………… Perform Achieve and Trade
 PIL………………………………………………………....... Public Interest Litigation
 PFC‘s………………………………………………………………… perfluorocarbons
 REDD………………Reducing Emissions from Deforestation and Forest Degradation
 SF6………………………………………………………………. sulphur hexafluoride
 SBSTA…………………………Subsidiary Body on Science and Technology Advice
 SBI………………………………………………Subsidiary Body for Implementation
 Sec………………………………………………………………………………Section
 SC………………………………………………………………………Supreme Court
 SCC………………………………………………………………Supreme Court Cases
 SAPCC…………………………………………State Action Plan on Climate Change
 SD……………………………………………………………Sustainable Development
 UNFCCC………………. United Nations Framework Convention on Climate Change
 UNGA……………………………………………...United Nations General Assembly
 UNEP………………………………………. United Nations Environment Programme
 UNCED………………United Nations Conference on Environment and Development
 UNICEF…………………………………United Nations Children's Emergency Fund
 UNESCO…………United Nations Educational, Scientific and Cultural Organization
 U. S………………………………………………………………………United States
 Vol………………………………………………………………………….......Volume
 WMO……………………………………………. World Meteorological Organization
 WCED………………………. World Commission on Environment and Development
 WWF……………………………………………………. World Wide Fund for Nature
 WGHG……………………………………. Working Group on Himalayan Glaciology
 WIM………………………………………………...Warsaw International Mechanism

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 LIST OF CASE LAWS

 Bombay Dyeing and Mfg. Co. Ltd. v. Bombay Environmental Action Group and Ors,
(2006) 3 SCC 434.
 Comer v. Murphy Oil USA, 585 F.3d 855
 Connecticut v. American Electric Power Co., 406 F. Supp. 2d 265
 Center for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 508 F.3d 508
(9th Cir. 2007).
 Indian Council for Enviro-legal Action v. Union of India (Bichhri Case), (1996) 3
SCC 212
 Intellectuals Forum, Tirupathi v. State of AP (2006) 3 SCC 549
 Kivalina v. Exxon Mobil Corp., et al, 28 U.S.C. §§ 1331, 2201
 Massachusetts v. EPA, 549 U.S. 497 (2007).
 Karnataka Industrial Area Development Board v. C. Kenchappa (2006) 6 SCC 371 at
380
 M.C. Metha v. Kamal Nath, (1997) 1 SCC 388
 M.C. Mehta v. Union of India (Taj Trapezium Case), (1997) 2 SCC 353
 Municipal Council, Ratlam v. Vardhichand, AIR 1980 SC 1622
 Manushi Sangthan, Delhi v. Govt. Of Delhi & Ors 168 (2010) DLT 168.
 Narmada Bachao Andolan v. Union of India AIR 2000 SC 3751
 Rural Litigation and Entitlement Kendra v. State of UP (1985) 2 SCC 431
 State of Himachal Pradesh v. Ganesh Wood Products (1995) 6 SCC 363
 State of Uttaranchal v. Balwant Singh Chaufal (2010) 3 SCC 402
 Subash Kumar v. State of Bihar (1991) 1 SCC 598
 T.N. Godavarman Thirumulkpad v. Union of India (2006) 5 SCC 47
 Tamil Nadu Newsprint and Papers Ltd. v. Tamil Nadu Electricity Regulatory
Commission 2007 ELR (APTEL) 157.
 Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647
 Virender Gaur and Ors. v. State of Haryana and Ors (1995) 2 SCC 577
 Vimal Bhai & Ors v. Ministry of Environment and Forests, Appeal No. 5 of 2011,
Order dated 14 December 2011.

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 LIST OF DOCUMENTS

 Air (Prevention and Control of Pollution) Act, 1981

 Biological Diversity Act, 2002
 Environment (Protection) Act, 1986
 Energy Conservation Act, 2001
 Forest (Conservation) Act, 1980
 Intergovernmental Panel on Climate Change
 Integrated Energy Policy, 2006
 Motor Vehicles Act, 1988
 National Environment Policy, 2006
 National Action Plan on Climate Change (NAPCC), 2008
 National Mission on Enhanced Energy Efficiency (NMEEE), 2010
 National Biofuel Policy, 2015
 Ozone Depleting Substance Rule, 2000
 State Action Plan on Climate Change (SAPCC)
 Twelfth Five-Year Plan and Climate Change Action Programme
 United Nations Convention on Human Environment, 1972.
 United Nations Convention on Environment and Development, 1992.
 United Nations Framework Convention on Climate Change, 1992
 United Nations Environment Programme.
 World Meteorological Organization.
 Wildlife (Protection) Act, 1972

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 TABLE OF CONTENTS

DECLARATION……………………………………………………………………………. iii

ACKNOWLEDGEMENT………………………………………………………………........iv

LIST OF ABREVIATIONS………………………………………………………………….vi

LIST OF CASE LAWS……………………………………………………………………. viii

LIST OF DOCUMENTS……………………………………………………………………. ix

A. Introduction……………………………………………………………………………1
B. Research Methodology………………………………………………………………...4
B.1 Problem……………………………………………………………………………4
B.2 Rationale…………………………………………………………………………..5
B.3 Objectives…………………………………………………………………………5
B.4Review of Literature………………………………………………………………6
B.5Operational Concepts & Variables of the Study…………………………………..9
B.6 Hypothesis……………………………………………………………………….12
B.7 Research Design…………………………………………………………………13
B.7.1 Nature and Type of Study……………………………………………..............13
B.7.2Method and Sources of Data Collection………………………………..............13
B.8Chapterization……………………………………………………………………13
B.9 Limitation of the study…………………………………………………………..15
B.10 Time schedule………………………………………………………………….15
B.11 Contribution of the Study………………………………………………………15
 Chapter-1 Climate Change: Nature and Scope
1.1 Defining of Climate Change……………………………………………………..17
1.2 Causes that led to the climate change…………………………………………….20
1.3 Effects of climate change………………………………………………………...24
1.4 Conclusion………………………………………………………………………..39
 Chapter –2 Law and Policy for Dealing Climate change: International
Perspective
2.1 History of Climate Change Regime…………………………………………….40
2.2 Inter-Governmental Panel on Climate Change (IPCC)………………………….43
2.3 United Nation Framework Convention on Climate Change (UNFCCC)………..44

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 2.4 Kyoto Protocol…………………………………………………………………...46
2.4.1 The Flexibility Mechanisms…………………………………………48
2.4.2 Kyoto Critical Flaws…………………………………………………49
2.5 UN Climate Change Conferences………………………………………………..51
2.6 Conclusion………………………………………………………………………..61
 Chapter-3 Law and Policy for Dealing Climate Change: National Perspective
3.1 Climate Change before Pre-Independence Era….……………………………….62
3.1.1 Climate Change and its approach in ancient times…………………...62
3.1.2 Climate Change and its approach in medieval times………………...64
3.1.3 Climate Change and its approach during the British Rule in India…..64
3.1.4 Climate Change and its approach during post-Independence Period...65
3.2 India‘s Statutes and Acts…………………………………………………………67
3.3 Policies related to climate change………………………………………………..76
3.4 Conclusion………………………………………………………………………..78
 Chapter- 4 Recent Developments in Climate Change
4.1 History of Climate Change Negotiations………………………………………...79
4.2 Issue Before Negotiators in Paris………………………………………………...82
4.3 Defining the Legality of an International Instrument…………………………….85
4.3.1 Whether a Treaty or not………………………………………………86
4.3.2 Legal form of the Paris agreement…………………………………...87
4.4 Analysis of the Paris Agreement…………………………………………………88
4.5 Implementation Techniques……………………………………………………...93
4.6 New Trends for controlling Climate change……………………………………..97
4.6.1 Carbon Sequestration‘………………………………………………..97
4.6.2 Cap and Trade………………………………………………………..99
4.6.3 Carbon Trading……………………………………………………..104
4.7 Conclusion………………………………………………………………………109
 Chapter 5: Role of Judiciary in mitigating Climate Change
5.1 Judicial Approach towards climate change in USA…………………………….111
5.2 Judicial Approach towards climate change in India…………………………….115
5.3 Conclusion………………………………………………………………………125

MAJOR FINDINGS, CONCLUSIONS AND SUGGESTIONS…………………………...127

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 A. INTRODUCTION
Saving our planet, lifting people out of poverty, advancing economic growth... these are one
and the same fight. We must connect the dots between climate change, water scarcity, energy
shortages, global health, food security and women's empowerment. Solutions to one problem
must be solutions for all.

-Ban Ki-Moon

Climate change is one of the most important global environmental challenges facing
humanity with implications for food production, natural ecosystems, freshwater supply,
health, etc. According to the latest scientific assessment, the earth‘s climate system has
demonstrably changed on both global and regional scales since the preindustrial era. Further
evidence shows that most of the warming (of 0.1°C per decade) observed over the last 50
years, is attributable to human activities.1 The Intergovernmental Panel on Climate Change
(IPCC) projects that the global mean temperature may increase between 1.4 and 5.8 degrees
Celsius (C) by 2100.2 This unprecedented increase is expected to have severe impacts on the
global hydrological system, ecosystems, sea level, crop production and related processes. The
impact would be particularly severe in the tropical areas, which mainly consist of developing
countries, including India.

Carbon dioxide levels now stand above their highest levels for the last 650,000 years. In early
2008 we learnt that North Polar ice cap is melting so fast that some scientists are predicting
that in seven years‘ time, it will completely disappear in the summer. This is alarming news
which should galvanize us into action. Each and every one of us has a responsibility to
respond. The whole world is in this together and must act together. Global warming is a
phenomenon wherein, due to various natural and anthropogenic factors, there is interference
in the carbon dioxide and greenhouse gasses present in the atmosphere, leading to an increase
in the same and resulting in the rise in temperatures of the atmosphere. Gases such as carbon
dioxide act as a blanket around the earth and trap the heat of the sun which is the reason for
earth not freezing and for life to sustain on the planet. However, in the past decades,
specifically post-industrialization period, there has been an increased emission of this gas and
plethora of other gases, due to the emissions from factories, industries, power plants and
other vehicular pollution. It would not be entirely incorrect to deduce that excessive burning

1
Climate Change 2001: Synthesis Report, 2001, Intergovernmental Panel on Climate Change, Geneva,
Switzerland.
2
Ibid

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of fossil fuels is the prime reason for the discharge of these gases in the environment which
leads to global warming and eventually, Climate Change.

One of the most important factors for climate change is the increased concentrations of
Carbon dioxide and other greenhouse gases in the environment, which is primarily due to the
combustion of fossil fuels and other human activities. Between 1990 and 1999, an estimated
6.3 GtC/year was released due to the combustion of fossil fuels, and another 1.6 GtC/year
was released due to the burning of forest vegetation.3Controlling the discharge of greenhouse
gases from fossil fuel combustion, land-use change and the burning of vegetation are
therefore clear opportunities for reducing greenhouse gas emissions. The better the control in
emissions and the earlier they are introduced, the smaller and slower the expected warming
and the rise in sea levels.4

There are two kinds of climate change; natural climate variability and human/anthropogenic
climate change. Natural Climate variability is traced to the occurrences of natural disasters
like volcanic eruptions, earthquakes, tsunamis etc. These disasters occur frequently and the
discharge of greenhouse gases due to this phenomenon is relatively very less. Also, such
disasters are very area specific and only some parts of the world are prone to volcanoes. The
world leaders when got together in 1972 during the Stockholm Conference, it was too early at
that time to have such an assessment. It came only in 1988 with a United Nations General
Assembly Resolution to consider climate change as a ‗common concern of humankind‘. It
was in 1988 that the United Nations Environment Program along with the World
Meteorological Department formed the Inter-Governmental Panel on Climate Change
(IPCC). It was in 1992, during the conclusion of Earth Summit or the United Nations
Conference on Environment and Development (UNCED) when the United Nations
Framework Convention on Climate Change was adopted and the world community came
together on a consensus that human activity and human disregard to the environment was
leading to the global crisis. Taking a concrete step to develop measures to check climate
change had become very important. It was only in 1997, in Kyoto, Japan, that the ‗Kyoto
Protocol‘ was formulated and adoptedby the nations which pledged to reduce their carbon
emissions and other activities which were contributing to global warming and resulting in
climate change. This protocol was adopted in 2005 and enforced in 2008. The Kyoto Protocol

3
Climate Change 2001: The Scientific Basis, 2001, Summary for Policy Makers and Technical Summary of the
Working Group I Report, Intergovernmental Panel on Climate Change, Geneva, Switzerland.
4
Sarkar, A.N., 2009, Global Climate Change & Sustainable Energy Development, Pentagon Press, p. 55.

2|Page
was seen as an important step towards a truly global emission reduction regime that would
stabilize the Greenhouse Gas (GHGs) emissions and provide the architecture for the future
international agreement on climate change. The last Conference of Parties, which was held in
Lima, Peru, wound up without the delegates having reached any conclusion as there were
disagreements between the developed and developing countries which seemed to be lack of
faith on the former by the latter on key issues, more significantly, on the issues relating to
lowering the GHGs emissions.

The climate change issue is part of the bigger challenge of sustainable development. As a
result, climate policies can be more efficient when constantly embedded within broader
strategies designed to make national and regional development paths more sustainable. The
impact of climate variability and change, climate policy responses, and associated
socioeconomic development will affect the ability of countries to accomplish sustainable
development goals.5

It has been predicted by various climate scientists across the globe that the self-sustainability
of the planet Earth is slowly nearing its end. Soon, there would come a time when life itself
would unable to sustain. Therefore, it becomes an increasingly important issue to try and
conserve the environment and control the emission of harmful gases in the atmosphere. It is
the matter of every human being‘s right to life which includes the right to live in a clean
environment and due to anthropogenic interferences; this right is being infringed as life itself
is being forcefully taken away. During the World Summit on Sustainable Development, it
was rightly expressed by the children, that the earth does not belong only to the human
beings, but also to the millions of other species of plants and animals and micro-organisms
which form a part of nature. One and all must be protected. Therefore, the right to
development must not supersede the right to a healthy and clean environment. Development
must always be sustainable and all such alternatives must be considered which allow
sustainable development.

5
Climate Change and Health: Risk and Responses, World Health Organization,
http://www.who.int/globalchange/summary/en/index11.html, accessed on 10th January, 2016

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 A. RESEARCH METHODOLOGY

B.1 RESEARCH PROBLEM

Climate Change is a grave threat to life on this planet. Climate change driven by global
warming is substantially modifying important ecosystems and threatens to destroy great
swaths of biodiversity. The effects of global warming are dangerously evident and visible.
Rising temperature, rise in the sea level, increasing frequency of tornadoes and storms,
melting of the polar ice, early flowering of tress, looming extinction threat to polar bears and
many other species are few examples of the result of global warming and climate change. The
subject of environmental protection, sustainable development and protection, sustainable
development and various issues of environmental damage and climate change in particular
have drawn serious attention of the governments, International institutions, the policy-
makers, scholars and scientists among others. In fact, the issue of environmental protection
and global warming tops international agenda along with development and human rights.
There has been much research, international conferences, governmental action, and
legislation on these issues. The world leaders have resorted to a two-way approach to this
phenomenon; Adaptation and Mitigation Approaches. The basic problem being understood
and put forth by the researcher is that, despite climate change being identified as the common
concern of humankind, the efforts which are being put to mitigate the same are not enough. A
war against global warming and environment damage has begun. On the international plane
from Stockholm (1972) through Rio (1992), Johannesburg (2002) and the coming into force
of Kyoto Protocol in 2005 this movement against global warming and other issues of
environmental protection has developed an enormous body of knowledge and information.6

Although the world community did come together to chalk out and frame laws and policies
to try and cut down emissions leading to climate change, but those laws and policies are not
succeeding enough to actually the climate change problem. The problem here morphs into
the determining of potential mitigation techniques which could be adopted to fight climate
change. At present there exist several international conventions, protocols, and proceedings
of international conferences, national legislation and scholarly writings, and particularly the
reports of Intergovernmental Panel on Climate Change (IPCC) which was established in
1988 to assess the climate system and climate change. The latest report, the IPCC report in
2007, claims that warming of the climate system is unequivocal and is categorical.

6
Scott, Joanne - A Climate of Change (2008) P.174

4|Page
B.2RATIONALE

Protection of the natural and human environment is vital for life on our planet ‗Earth‘. In
this context, it is very important to emphasise the importance of the protection of
environment which is vital for life on our planet. It is a well-known fact that human activity
has resulted an increase in greenhouse gases in atmosphere.In the past few centuries,
atmospheric carbon dioxide has increased by more than 30 percent. The reality of this
increase is undeniable, and virtually all climatologists agree that the cause is human activity,
predominantly the burning of fossil fuels. To a lesser extent, deforestation and other land-
use changes and industrial and agricultural activities like cement production and animal
husbandry also contribute to greenhouse gas emissions. Most mainstream climate scientists
agree that there has been an anomalous rise in global average surface temperature since the
time of the Industrial Revolution. Emissions from industrial sector have climbed 38 per cent
over the past 20 years. The United States continues to be the largest source of industrial
emissions followed by China, Russia and Japan which account for 11.9, 9.4, and 5 per cent
of emissions respectively. The European Union countries account for 13 per cent of the
global emissions whereas the developed countries of the Organization for Economic
Cooperation and Development (OECD) account for 44 per cent.7

The rationale behind pursuing this research is to determine and shift focus on to the
development of nuclear technology as clean technology and as a method to mitigate climate
change. It is the aim of the researcher to shift focus of the readers to other renewable
resources which can be developed on a larger scale to produce electricity and to act as
‗Carbon Sinks‘ in order to mitigate the ill effects of climate change.

B.3 OBJECTIVES

The main objectives of the present research work are as under:

 To have a wider knowledge and better understanding of one of the global issue i.e.
Climate change.
 To understand why the mitigation of climate change is of much fundamental
importance and what all are techniques of effective mitigation of climate change.
 To understand what is climate change and the grave threats it poses to the humankind
and its surrounding environment.

7
Lal‘s Commentary on Water, Air Pollution and Environment Protection Law (4th ed., 2000)

5|Page
  To know, understand and appreciate various aspects of environmental problems and
climate change.
 To look into the available legal documents and international treaties and conventions
addressing the concept of Climate Change.
 To identify the various factors that has contributed to the creation of various
environmental problems and global warming as a result of climate change.
 To know and appreciate the human role in climate change and the governmental
apathy or interest in dealing with the problem of climate change.
 To analyze up to what extent do the domestic and international law consider climate
change in their regulatory frameworks.
 To propose the solutions for the challenges faced in the implementation of Climate
Change actions.

B.4 REVIEW OF THE LITERATURE

Books:

1. Dr. Areti Krishna Kumar “Environmental Jurisprudence” 1st Edition 2007,

Published by ICFAI University Press: The present literature has provided the texts
and summaries of decisions regarded as significant in the development of
international environmental law and climate change regime. The present volume
features the significance of Kyoto Protocol as well as its failure because of too much
politics.
2. Dr. S.R. Myneni “Environmental Law” 13th Edition 2013, Published by Asia
Law House: The present literature covers various aspects of environmental protection
and various principles and concepts related to climate change. The basics of climate
change are detailed in detail. The national and International policies related to law
non climate change are also discussed by the author. The present book has been of
immense importance to the researcher.
3. P.S.Jaiswal and Nishtha Jaiswal “Environmental Law” 3rd Edition 2009,
Published by Allahabad Agency: The present literature covers various aspects of
environmental protection and various principles and concepts operating in this sphere.
The discussion on ―climate change‖, ―Global warming‖ and ―Sustainable
development‖ and the role of Indian Judiciary in promoting the same has helped the

6|Page
 researcher in completing the present work and has been discussed in the most lucid
form incorporating the recent judicial decisions in this regard.
4. Paul Q. Watchman (ed.); „Climate Change: A Guide to Carbon Law and
Practice‟: Globe Business Publications Ltd. London; 1st Edition. 2008: This book
has been very informative about understanding the core concepts of Climate Change
and the history of Climate Change ever since the industrial revolution. This Book was
a compilation of essays written by various experts on climate change and emission
trading and people who are litigating in this fields. The researcher was able to
understand the basics of climate change and the impacts of erratic emission trading on
the environment. This book has also been helpful in understanding the importance of
the concept of Carbon law which derived its meaning and validity after the coming
into effect of the Kyoto Protocol. The developed countries which are classified as the
Annexure-I countries are ones upon whom the Cap-and-Trade system is legally
binding and they have binding emission targets. But, the recent trend has shown that
these countries and the companies engaged in activities which result in emission of
carbon and GHGs, have run into legal troubles in emitting more carbon than they are
allowed.
5. S. Shanthakumar “Introduction to Environmental Law” 2nd Edition 2014,
Published by Lexis Nexis: The present literature covers the laws on Climate change
in detail. It has proven to be a useful resource to the researcher by providing immense
information on climate change. Furthermore, the book has also referred to wide
numbers of international instruments making reference to the rights of future
generations.

Articles:

1. Anita M. Halvorssen “Global Response to Climate Change from Stockholm to

Copenhagen‖ In this article the author has described about the anthropogenic effect
on the climate system demands that strongaction be taken now to avoid the worst
impacts. Accordingly, the author articulates that this is a globalproblem that calls for
international cooperation toreshape the world's futureeconomy and redirect
investment flows into a sustainable future. This article also examines the extent to
which the amendmentssuggested to the UNFCCC and the Kyoto Protocol address the
main barriersto having an all-inclusive agreement to address the scourge of
climatechange.

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2. Bill Hare, Climate Policy Director “Greenpeace Guide to the Kyoto Protocol‖ In
the present article, the author has dealt in detail about the implications of Kyoto
Protocol. The present article has helped the researcher in deriving a specific or
connoting a specific meaning to Kyoto Protocol and its reference to climate change.
The author has also highlighted how Kyoto Protocol is meant to provide a basic
background to the Kyoto Protocol, what is in it and what is not, what it means and
what Greenpeace's concerns are.
3. Daniel Bodansky “The International Climate Change Regime: The Road from
Copenhagen” The present article also looked into the failure of the Copenhagen
conference to adopt a new legal agreement on climate change is blamed by some on
poor chairing or other transitory factors. The Author in this work has explained the
Global warming is a classic example of a collective action problem.So unless a
technological magic bullet is found, solving the problem will ultimately require a
collective agreement among the key contributors, like the Montreal Protocol on
Substances that Deplete the Ozone Layer. The author has also dealt in detail with the
challenge which are faced while implementing the climate change problem.
4. Kyle W. Danish “An Overview of the International Regime Addressing Climate
Change”: The present article has been of immense importance to the researcher. The
article has provided deep detail on the topic of climate change and its International
regime. The author has examined how governments have attempted, so far, to address
the issue of climate change through international law. The article will provide an
overview of the different treaties, rules, and institutions that comprise the existing
international climate change regime, including a review of the negotiating history that
has brought the regime to its current status.
5. Meenakshi Raman “Climate Change Battle in Paris‖ In this article the author has
described the outcome of the Paris talks on climate change. The author has also
emphasized the importance to reflect on the key clauses of the Paris Agreement and
the processes that led to its adoption. The article has given immense knowledge to the
researcher because it offers an initial assessment and a discussion of whether the
views of the developed or developing countries (or both) prevailed. The developing
countries went to Paris with some clear objectives and principles. Though some
aspects were diluted, they got their red lines protected but they did not manage to get
all their positive demands accepted.

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B.5OPERATIONAL CONCEPTS AND VARIABLES OF THE STUDY

i. Adaption:
Adaptation refers to the ability of a system to adjust to climate change in order to
reduce its vulnerability, and enhance the resilience to observed and anticipated
impacts of climate change. IPCC (Intergovernmental Panel on Climate Change)
defines adaptation as ‗adjustment in natural or human systems to a new or
changing environment. Adaptation to climate change refers to adjustment in
natural or human systems in response to actual or expected climatic stimuli or
their effects, which moderates harm or exploits beneficial
opportunities‘.Adaptation occurs in physical, ecological, and human systems. It
involves the following.
a. Changes in social and environmental processes
b. Perceptions of climate risk
c. Practices and functions to reduce risk
d. Exploration of new opportunities to cope with the changed environment.
ii. Climate:
Climate in a narrow sense is usually defined as the average weather, or more
rigorously, as the statistical description in terms of the mean and variability of
relevant quantities over a period of time ranging from months to thousands or
millions of years. Theclassical period for averaging these variables is 30 years, as
defined by the World Meteorological Organization. The relevant quantities are
most often surface variables such as temperature, precipitation, and wind. Climate
in a wider sense is the state, including a statistical description, of the climate
system.
iii. Climate Change:
Climate Change is a change in the typical or average weather of a region or city.
This could be a change in a region's average annual rainfall, for example. Or it
could be a change in a city's average temperature for a given month or season.
Climate change is also a change in Earth's overall climate. This could be a change
in Earth's average temperature, for example or it could be a change in Earth's
typical precipitation patterns. Thus, according to UNFCCC, ―climate change
refers to a change of climate that is attributed directly or indirectly to human

9|Page
 activity that alters the composition of the global atmosphere and that is in addition
to natural climate variability observed over comparable time periods.
iv. Carbon Sinks:
A carbon sink is a natural or artificial reservoir that accumulates and stores some
carbon-containing chemical compound for an indefinite period. The process by
which carbon sinks remove carbon dioxide (CO2) from the atmosphere is known
as carbon sequestration.The main sources of carbon include combustion of fossil
fuels (coal, oil and gas) for sake of energy and transportation by humans, fires
(also includes wildfires) and farmland. Carbon sinks can be natural or man-made.
They absorb more carbon than they release whereas carbon source is anything that
releases more carbon than they absorb. Forests, soil, ocean and the atmosphere all
store carbon and this carbon moves between them in a continuous cycle. Plants
take up CO2 from the atmosphere that and use it in the process of photosynthesis.
When plants die, some of this carbon is transferred to soil as they decompose.
Oceans are major carbon storage systems. Together Earth‘s land and Ocean sinks
absorb half of the carbon dioxide emissions. Carbon sequestration is a process that
is used to remove carbon the atmosphere to mitigate the effects of global
warming.
v. Carbon Caps:
Cap and Trade is the most environmentally and economically sensible approach to
controlling greenhouse emissions, the primary driver of global warming. The
―cap‖ sets a limits on emissions, which is lowered over time to reduce the amount
of pollutants released into the atmosphere.A 'cap', or limit, is set on the total
amount of certain greenhouse gases that can be emitted by the factories, power
plants and other installations in the system. The cap is reduced over time so that
total emissions fall.
vi. Carbon Sequestration:
The term ―carbon sequestration‖ is used to describe both natural and deliberate
processes by which CO2 is either removed from the atmosphere or diverted from
emission sources and stored in the ocean, terrestrial environments (vegetation,
soils, and sediments), and geologic formations.
Carbon sequestration is the process involved in carbon capture and the long-term
storage of atmospheric carbon dioxide (CO2). Carbon sequestration describes
long-term storage of carbon dioxide or other forms of carbon to either mitigate or

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 defer global warming and avoid dangerous climate change. It has been proposed
as a way to slow the atmospheric and marine accumulation of greenhouse gases,
which are released by burning fossil fuels. Carbon dioxide is naturally captured
from the atmosphere through biological, chemical, or physical processes.
Artificial processes have been devised to produce similar effects, including large-
scale, artificial capture and sequestration of industrially produced CO2 using
subsurface saline aquifers, reservoirs, ocean water, aging oil fields, or other
carbon sinks.CO2 sequestration has the potential to significantly reduce the level
of carbon that occurs in the atmosphere as CO2 and to reduce the release of CO2
to the atmosphere from major stationary human sources, including power plants
and refineries.
vii. Carbon Emission Trading:
Carbon emissions trading is a form of emissions trading that specifically targets
carbon dioxide (calculated in tonnes of carbon dioxide) and it currently constitutes
the bulk of emissions trading. This form of permit trading is a common method
countries utilize in order to meet their obligations specified by the Kyoto Protocol;
namely the reduction of carbon emissions in an attempt to reduce (mitigate) future
climate change. Under Carbon trading, a country having more emissions of carbon
is able to purchase the right to emit more and the country having less emission
trades the right to emit carbon to other countries. More carbon emitting countries,
by this way try to keep the limit of carbon emission specified to them.Emissions
trading is a market-based approach to controlling pollution. By creating tradable
pollution permits it attempts to add the profit motive as an incentive for good
performance, unlike traditional environmental regulation based solely on the
threat of penalties.
viii. Global Warming:
Global warming is a gradual increase in the overall temperature of the earth's
atmosphere generally attributed to the greenhouse effect caused by increased
levels of carbon dioxide, CFCs, and other pollutants. Global warming refers to
incessant and continuous rise in the temperature of the Earth‘s atmosphere due to
the blanket effect caused by greenhouses which forms layer around the earth and
trap‘s the sun radiation thereby increasing the temperature of the earth and making
the climate warmer.

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 ix. Greenhouse Gases:
Greenhouse gases are the gases that contributes to the greenhouse effect by
absorbing infrared radiation. Carbon dioxide and chlorofluorocarbons are
examples of greenhouse gases. According to Merriam Webster Dictionary any of
various gaseous compounds (such as carbon dioxide) that absorb infrared
radiation, trap heat in the atmosphere, and contribute to the greenhouse effect is
termed as greenhouse gases. The expression refers to any of the gases whose
absorption of solar radiation is responsible for the greenhouse effect, including
carbon dioxide, methane, ozone, and the fluorocarbons.
x. Mitigation
The expression mitigation refers to the action of reducing the severity,
seriousness, or painfulness of something. Mitigation refers to any strategy or
action taken to remove the GHGs released into the atmosphere, or to reduce their
amount.
IPCC defines mitigation as ‗technological change and substitution that reduce
resource inputs and emissions per unit of output with respect to climate change.
Mitigation means implementing policies to reduce GHG emissions and enhance
sinks‘. Climate Change Mitigation refers to efforts to reduce or prevent emission
of greenhouse gases. Mitigation can mean using new technologies and renewable
energies, making older equipment more energy efficient, or changing management
practices or consumer behaviour.Protecting natural carbon sinks like forests and
oceans, or creating new sinks through silviculture or green agriculture are also
elements of mitigation. UNEP takes a multifaceted approach towards climate
change mitigation in its efforts to help countries move towards a low-carbon
society.

B.6 HYPOTHESIS

A right-based approach towards environment is very essential. The researcher is working

around the hypothesis that climate change a grave threat to humankind and its surrounding
environment, needs to be acted upon by the efforts of the whole world together. It involves
the adoption of various mitigation techniques and the development of renewable energy
sources. Mitigation is as important as Adaptation and to effectively see positive results of
reversing the effects of climate change, there has to be an organized and properly chalked out
mitigation strategy which should address its feasibility in not only the developed, but also in

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the developing countries. It is nuclear technology which can be adopted, developed and
utilized efficiently and can also mitigate the effects of climate change.The dependency upon
renewable energy such as solar energy, wind energy, etc. can be one of the way to reduce
greenhouses gases emissions in the atmosphere.

B.7 RESEARCH DESIGN

There are three parts of research design as stated below:

B.7.1 Nature of the research

Selection of adequate research method for conducting the effective research have as much as
importance as the selection of area. Numbers of methods are used to conduct the research as
per the requirement of researcher and the concern is of research. There are often two research
approaches being used namely Doctrinal and Non Doctrinal. For the analysis of the Climate
change impact on environment, its relation with the framework of the national and
international legislations for the protection of environment the doctrinal method is used.

B.7.2Sources & Type of Data

It involves collection of data from primary sources which include Indian Constitution Act,
Indian Penal Code, National Legislation i.e. Environment Protection Act, 1986 and various
Judicial decisions and secondary sources which include books, commentaries, legal
periodicals, research papers, journals, scholarly articles, online legal databases, online
journals and internet sources. Care was also taken in referring legal periodicals, both Indian
and Foreign, in a systematized manner for the purpose of analysis and for better results.

B.7.3 Method of Data Collecting

This research work is purely based on traditional method.

B.8 CHAPTERIZATION
The present work is on the ―Role of Developing Countries in Mitigating Climate Change and
The Legal Framework: A Critical Study‖. For Better Understanding of the subject, the author
has divided the work into five chapters. In the end of the work, the author has concluded and
has tried to devise certain suggestions and recommendations for better and effective
implementation of climate change and role of developing countries in mitigating Climate
change.

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In this part, a brief introduction has been given about of the chapters for the reader‘s easy
understanding. The scheme of chapterization of the current dissertation is as follows:

The first chapter deals with ―Climate Change: Nature and Scope‖. The chapter contains a
detailed introduction on the meaning, nature and scope of the terms of ‗Climate‘, ‗Climate
Change‘. The researcher in this chapter has attempted to describe in detail, what climate
change is, and the grave concerns which emanate from it. The researcher also explores the
various options which are available to mankind in order to curb and mitigate climate change.
This chapter also articulates about the causes that led to the climate change and the impacts it
has on environment and humans.

The second Chapter is about ―Law and Policy in Climate Change: International
Perspectives‖. This Chapter first of all discusses the evolution of climate change regime at
international level and gradual development of what we know today as an International
Climate Change Regime. The researcher aims to bring the focus on the scope and slow
development of an international regime to curb and battle the crisis of Climate Change. The
international regime which is present today, was not always like this, therefore, in this
chapter, the researcher has emphasized on the development and the formation of an
international climate change regime as it is present today.

The third Chapter is about ―Law and Policy in Climate Change: National Perspective‖. This
Chapter deal with climate change law & policy with respect to national perspective. It also
deals with the position of India in the international climate change regime as well as it also
deals with the Indian laws and policies with respect to climate change. It focuses on the
various domestic legislations and institutions which attempts to curb and battle the crisis of
climate change. The laws in national arena is an attempt to mitigate climate change and
brings the laws into focus.

The fourth Chapter is about ―Recent Developments to climate change‖. This chapter focus on
history of climate change negotiations leading up to the Paris Agreement. It also focusses on
the issues and problems before the negotiators in the COP 21 at Paris. The chapter also
analyses the legality of the Paris agreement. Finally, it will deal with the analysis of the
Agreement text and compare it with the provisions in the Kyoto Protocol. This chapter also
focuses new trends for controlling climate change.

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The Fifth Chapter is about the ―Judicial Approach to Climate Change‖. This Chapter has
examined the evolution of the Climate Change through the judicial pronouncements in USA
as well as U.K.

B.9LIMITATION OF THE STUDY

The scope of this study can be well defined by considering the following limitations:

1. The proposed research work has mostly confined within the legal regime of Climate
Change both at international and national level.
2. It is purely an analytical work in nature.
3. This research being a Doctrinal and Empirical type of research has not required
collection of any field data or sampling, etc. However, for analytical study and critical
appreciation of climate change, references have been made from the data available
from various secondary sources, like reports, case studies, articles, research papers,
etc.

B.10TIME SCHEDULE
This research work has been completed within two months of the time span of master‘s
degree programme in law.

B.11CONTRIBUTION OF THE STUDY

This study will be useful for anyone who wishes to know and understand the problem of
Climate Change. By reading of the certain chapters will help the reader to have a clear
understanding of the terms related to Climate Change and sustainable development and their
linkage. The present work will contribute in the emerging field of international environmental
law. The present work will act as a good source of compilation for various authors and
academicians seeking to obtain knowledge and information of Climate Change. The present
work will guide the legislators and executive wing while enacting various environmental laws
and formulating various plans and policies with respect to climate change keeping in mind
the interest of both present and future generations. It will also help the law students and
various non-governmental organizations and governments to know the lacuna and advantages
of the various conventions with respect to climate change so that the healthy debate can be
there over this problem for the betterment of environment. At last, the present work will

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contribute majorly to the whole mass by making them aware about this global issue, so that
steps should be taken for future generation‘s safety while making smart environmental and
economic choices.

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 CHAPTER 1

CLIMATE CHANGE: NATURE AND SCOPE

“Climate change does not respect border; it does not respect who you are - rich and poor,
small and big. Therefore, this is what we call 'global challenges,' which require global
solidarity.”
-Ban Ki-Moon

Climate change is a change in the statistical distribution of weather over period of time that
range from decades to millions of years. It can be defined as a change in the average weather
or a change in the distribution of weather events. Climate change is perhaps the biggest
challenge facing the world today, and the very existence of man depends on how effectively
this change is tackled. We all know that today the threat of climate change is imminent. This
is a fact that that climate change is the most devastating environmental problem not only of
this country but of the world as a whole. Global temperature is rising, glaciers are melting,
sea levels are rising and established climate patterns are dramatically changing threatening
many species of both flora and fauna. We have often been knocked over by shocking reports
of glaciers vanishing and sea coasts submerging in floods and the news of hurricanes
unleashing casualties world-wide. This is due to change in the climate. Some other indicators
of climate change are also there, that range from earlier spring arrival, coral reef bleaching,
spreading diseases, heavy downpours, disproportionate snow falling, etc. to extinction of
various species and plant.

1.1 Defining Climate change

The threat of global climate change is becoming more evident than ever before, for the
impacts of climate change are increasingly being felt in various parts of the world, and it is
already or will soon be the major environmental threat. Doubts as to whether climate change
is occurring has long been dispelled. Further it has been affirmed that climate change is
primarily attributed to human activities that create greenhouse gas emissions. As
acknowledged by the Intergovernmental Panel on Climate Change (hereinafter IPCC), it has
"the potential to lead to future large scale and possibly irreversible changes in Earth systems

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resulting in impacts at continental and global scales." 8 For most people, the expression
―climate change‖ means the alteration of the world‘s climate that we humans are causing,
through fossil fuel burning, clearing forests and other practices that increase the concentration
of greenhouse gases (GHG)9 in the atmosphere.

Before proceeding through the definition of climate change one must be acquainted with the
definition of climate. Climate in a narrow sense is usually defined as the average weather, or
more rigorously, as the statistical description in terms of the mean and variability of relevant
quantities over a period of time ranging from months to thousands or millions of years. The
classical period for averaging these variables is 30 years, as defined by the World
Meteorological Organization. The relevant quantities are most often surface variables such as
temperature, precipitation, and wind. Climate in a wider sense is the state, including a
statistical description, of the climate system. In various chapters in this report different
averaging periods, such as a period of 20 years, are also used.

According to Merriam Webster Dictionary climate is defined as, ― a region of the earth
having specified climatic conditions or the average course or condition of the weather at a
place usually over a period of years as exhibited by temperature, wind velocity, and
precipitation or the prevailing set of conditions.10

As per the definition placed down by IPCC as “Climate change in IPCC usage refers to a
change in the state of the climate that can be identified (e.g. using statistical tests) by changes
in the mean and/or the variability of its properties, and that persists for an extended period,
typically decades or longer. It refers to any change in climate over time, whether due to
natural variability or as a result of human activity.‖11

This usage differs from that in the United Nations Framework Convention on Climate
Change (UNFCCC), where ―climate change refers to a change of climate that is attributed
directly or indirectly to human activity that alters the composition of the global atmosphere

8
Intergovernmental Panel on Climate Change, Climate Change 2001: Impacts, Adaptation, and Vulnerability,
Summary for Policymakers 6 (2001) [hereinafter IPCC Working Group Il], 6, http://www.ipcc.ch/ (Last visited
on March 4, 2016).
9
Greenhouse gases (GHGs) ―are those gaseous constituents of the atmosphere, both natural and anthropogenic,
that absorb and emit radiation at specific wavelengths within the spectrum of thermal infrared radiation emitted
by the Earth‘s surface, the atmosphere itself, and by clouds.‖ The primary greenhouse gases include H2 O, CO2,
Nitrous Oxide, CH4 and O3. IPCC Fourth Assessment Report, Working Group I, Glossary of Terms:
http://ipcc-wg1.ucar.edu/wg1/Report/AR4WG1_Print_Annexes.pdf.
10
http://www.merriam-webster.com/dictionary/climate(Last visited on March 4, 2016).
11
https://unfccc.int/files/press/backgrounders/application/pdf/press_factsh_science.pdf (Last visited on March 7,
2016).

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and that is in addition to natural climate variability observed over comparable time
periods‖ 12 . This is an official definition by United Nations Framework Convention on
Climate Change (UNFCCC).
A change in the state of the climate that can be identified (e.g., by using statistical tests) by
changes in the mean and/or the variability of its properties and that persists for an extended
period, typically decades or longer. Climate change may be due to natural internal processes
or external forcings, or to persistent anthropogenic changes in the composition of the
atmosphere or in land use.13
According toThe National Aeronautics and Space Administration (NASA) Climate change,
therefore, is a change in the typical or average weather of a region or city. This could be a
change in a region's average annual rainfall, for example. Or it could be a change in a city's
average temperature for a given month or season. Climate change is also a change in Earth's
overall climate. This could be a change in Earth's average temperature, for example or it
could be a change in Earth's typical precipitation patterns.14
As per the definition of Oxford Learned Dictionary, ―changes in the earth's weather,
including changes in temperature, wind patterns and rainfall, especially the increase in the
temperature of the earth's atmosphere that is caused by the increase of particular gases,
especially carbon dioxide.”15
Climate change is a long-term change in the statistical distribution of weather patterns over
periods of time that range from decades to millions of years. It may be a change in the
average weather conditions or a change in the distribution of weather events with respect to
an average, for example, greater or fewer extreme weather events. Climate change may be
limited to a specific region, or may occur across the whole Earth.

According to Encyclopaedia Britannica, ―Climate change, periodic modification of Earth‘s

climate brought about as a result of changes in the atmosphere as well as interactions between

12
http://www.baltex-research.eu/BACC/material/Climate_change_definition.pdf(Last visited on March 7, 2016).
13
This definition differs from that in the United Nations Framework Convention on Climate Change
(UNFCCC), where climate change is defined as: ―a change of climate which is attributed directly or indirectly to
human activity that alters the composition of the global atmosphere and which is in addition to natural climate
variability observed over comparable time periods.‖ The UNFCCC thus makes a distinction between climate
change attributable to human activities altering the atmospheric composition, and climate variability attributable
to natural causes.
14
http://www.nasa.gov/audience/forstudents/5-8/features/nasa-knows/what-is-climate-change-58.html(Last
visited on March 5, 2016).
15
http://www.oxfordlearnersdictionaries.com/definition/english/climate-change (Last visited on March 5, 2016).

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the atmosphere and various other geologic, chemical, biological, and geographic factors
within the Earth system.‖16

According to the Law Lexicon Dictionary, ―Scientists have understood since the 19th century
that the earth‘s climate might be changed by an increasing concentration of carbon dioxide in
the atmosphere. Carbon dioxide, and similar gases, traps infra-red radiations on earth that
would otherwise dissipate into space. This is known as the ―greenhouse effect‖ and the gases
as ―greenhouse gases‖. As burning fossil fuels such as oil, coal and gas - on which modern
economies rely - produces carbon dioxide in large quantities, this colourless, odourless and
otherwise harmless gas has been identified as potentially dangerous to the environment.‖

According to the dictionary of Cambridge, ―Climate Change is the changes in the world's
weather, in particular the fact that it is believed to be getting warmer as a result of human
activity increasing the level of carbon dioxide in the atmosphere‖.17

Thus, summing up the above definitions Climate change is a change in the state of climate
system due to human activity or by natural phenomenon.

1.2 Causes that led to the climate change

(Figure-1)

16
http://www.britannica.com/science/climate-change (Last visited on March 5, 2016).
17
http://dictionary.cambridge.org/dictionary/english/climate-change(Last visited on March 5, 2016).

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The above (figure-1) reflects the various causes that led to the Climate Change due to the
increased emission of the greenhouses gases(carbon dioxide, CFCs, Methane, water vapour,
Nitogen Dioxide) in the atmosphere. These gases absorb the heat which further raises the
average surface temperature of the earth.

Carbon dioxide is the main cause of human-induced climate change. It has been emitted in
vast quantities from the burning of fossil fuels and it is a very long-lived gas, which means it
continues to affect the climate system during its long residence time in the atmosphere.
However, fossil fuel combustion, industrial processes, agriculture, and forestry-related
activities emit other substances that also act as climate forcers. Some, such as nitrous oxide,
are long-lived greenhouse gases like carbon dioxide, and so contribute to long-term climate
change. Other substances have shorter atmospheric lifetimes because they are removed fairly
quickly from the atmosphere. Therefore, their effect on the climate system is similarly short-
lived. Together, these short-lived climate forcers are responsible for a significant amount of
current climate forcing from anthropogenic substances. Some short-lived climate forcers have
a climate warming effect (‗positive climate forcers') while others have a cooling effect
(‗negative climate forcers').

If atmospheric levels of short-lived climate forcers are continually replenished by on-going

emissions, these continue to exert a climate forcing. However, reducing emissions will quite
quickly lead to reduced atmospheric levels of such substances. A number of short-lived
climate forcers have climate warming effects and together are the most important contributors
to the human enhancement of the greenhouse effect after carbon dioxide. This includes
methane and tropospheric ozone – both greenhouse gases – and black carbon, a small solid
particle formed from the incomplete combustion of carbon-based fuels (coal, oil and wood
for example).

Other short-lived climate forcers have climate cooling effects, most notably sulphate
aerosols. Fossil fuel combustion emits sulphur dioxide into the atmosphere (in addition to
carbon dioxide) which then combines with water vapour to form tiny droplets (aerosols)
which reflect sunlight. Sulphate aerosols remain in the atmosphere for only a few days
(washing out in what is referred to as acid rain), and so do not have the same long-term effect
as greenhouse gases. The cooling from sulphate aerosols in the atmosphere has, however,
offset some of the warming from other substances. That is, the warming we have experienced

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to date would have been even larger had it not been for elevated levels of sulphate aerosols in
the atmosphere.

Since 1900 the global surface temperature of the Earth has risen by about 0.8 degree
Centigrade and since the 70s by about 0.5 degree Centigrade. This temperature increase
occurred during a significant atmospheric concentration increase of some greenhouse gases,
especially CO2 and CH4, which is known to be mainly due to human emissions. According
to the Anthropogenic Global Warming Theory (AGWT) humans have caused more than 90%
of global warming since 1900 and virtually 100% of the global warming since 1970
(Appendix A). The AGWT is currently advocated by the Intergovernmental Panel on Climate
Change (IPCC)18, which is the leading body for the assessment of climate change established
by the United Nations Environment Programme (UNEP) and the World Meteorological
Organization (WMO). Many scientists believe that further emissions of greenhouse gases
could endanger humanity.

Other Greenhouse gases

 Water vapour is the most abundant greenhouse gas and also the most important in
terms of its contribution to the natural greenhouse effect, despite having a short
atmospheric lifetime. Some human activities can influence local water vapour levels.
However, on a global scale, the concentration of water vapour is controlled by
temperature, which influences overall rates of evaporation and
precipitation. Therefore, the global concentration of water vapour is not substantially
affected by direct human emissions.

 Tropospheric ozone (O3), which also has a short atmospheric lifetime, is a potent
greenhouse gas. Chemical reactions create ozone from emissions of nitrogen oxides
and volatile organic compounds from automobiles, power plants, and other industrial
and commercial sources in the presence of sunlight. In addition to trapping heat,
ground-level ozone is a pollutant that can cause respiratory health problems and
damage crops and ecosystems.

18
The AGWT advocates claim that there exists a scientific consensus that supports the AGWT. However, a
scientific consensus does not have any scientific value when it is contradicted by data. It is perfectly legitimate
to discuss the topic of manmade global warming and closely scrutinize the IPCC‘s claims. Given the extreme
complexity of the climate system and the overwhelming evidence that climate has always changed, the AGWT
advocates‘ claim that the science is settled is premature in the extreme.

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  Chlorofluorocarbons (CFCs), hydrochlorofluorocarbons(HCFCs), hydrofluorocarbons
(HFCs), perfluorocarbons (PFCs), and sulphur hexafluoride (SF6), together called F-
gases, are often used in coolants, foaming agents, fire extinguishers, solvents,
pesticides, and aerosol propellants. Unlike water vapour and ozone, these F-gases
have a long atmospheric lifetime, and some of these emissions will affect the climate
for many decades or centuries.

Other Climate Forcers

Particles and aerosols in the atmosphere can also affect climate. Human activities such as
burning fossil fuels and biomass contribute to emissions of these substances, although some
aerosols also come from natural sources such as volcanoes and marine plankton.

 Black carbon (BC) is a solid particle or aerosol, not a gas, but it also contributes to
warming of the atmosphere. Unlike GHGs, BC can directly absorb incoming and
reflected sunlight in addition to absorbing infrared radiation. BC can also be deposited
on snow and ice, darkening the surface and thereby increasing the snow's absorption
of sunlight and accelerating melt.

 Sulphates, organic carbon, and other aerosols can cause cooling by reflecting sunlight.

 Warming and cooling aerosols can interact with clouds, changing a number of cloud
attributes such as their formation, dissipation, reflectivity, and precipitation rates.
Clouds can contribute both to cooling, by reflecting sunlight, and warming, by
trapping outgoing heat.19

Thus, there are two fundamental factors which cause climate change, natural and
anthropogenic factors. The Earth‘s climate can be affected by natural factors that are external
to the climate system, such as damages in volcanic activity, solar output and the earth‘s orbit
around the sun. Of these, the two factors relevant on time scales of contemporary climate
change are changes in volcanic activity and changes in solar radiation. In terms of the earth
energy balance, these factors primarily influence the amount of incoming energy. Volcanic
eruptions are episodic and have relatively short term effects on climate. Changes in solar
irradiance have contributed to climate trends over the past century but since the industrial
revolution, the effects of additions greenhouses gases to the atmosphere has been about ten

19
https://www3.epa.gov/climatechange/science/causes.html (Last visited on March 5, 2016).

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times that of changes in the sun‘s output. Climate change can also be caused by human
activities, such as the burning of fossil fuels and the conversion of land for forestry and
agriculture. Since the beginning of industrial Revolution, these human activities influences on
the climate system have increased substantially. In addition to other environmental impacts,
these activities change the land surface and emit various substances to the atmosphere. This
in turn can influence both the amount of incoming energy and the amount of outgoing energy
and can have both warming and cooling effects on the climate. The dominant product of
fossil fuel combustion is carbon dioxide, a greenhouse gas. The overall effect of human
activities since the Industrial Revolution has been a warming affect, driven primarily by
emissions of carbon dioxide and enhanced by emissions of other greenhouse gases.

1.3 Effects of climate change

Though climate change poses a variety of challenges, it would be important to focus on the
issues namely agriculture and food security, water stress and water insecurity, rising sea
levels, biodiversity and human health, which have immense relevance from the perspective of
developing countries in general and India in particular.

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 (Figure. 2)
In figure-2 it reflects the potential impact of climate change on health, agriculture, forest,
water resource, coastal areas, species and natural areas.
Impacts of Climate Change

 Oceanic Climate:
The oceans are a physically interconnected unit and a dynamic system that reaches around the
globe. They offer the people of the earth innumerable resources in the form of fish, plants,
and mineral resources. In spite of the benefits to be reaped from the marine environment, we
increasingly treat our waters as receptacles for garbage, sewage, chemical effluent, and even
nuclear waste. This pollution is taking its toll on life in the oceans. Sea-bed mining has
proved to be the most contentious of the issues in the management of the deep oceans. 20
Today with the increased Carbon dioxide levels, the oceans would be required to absorb and
decompose more Carbon dioxide, which can raise their normal level of acidity. This would

20
Alvaro Soto, ‗The Global Environment: A Southern Perspective‘, International Journal, Vol. 47, No. 4,
Environment & Development: Rio and After (Autumn, 1992), p. 691

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decrease the biological productivity of marine ecosystems; thereby changing the whole
oceanic climate. The rise in ocean heat (and temperature) in recent decades is far faster than
anything seen earlier in Holocene.21

The IPCC scientists agree that much of the heat that humans have put into the atmosphere
since the 1970s through greenhouse gas emissions probably has been absorbed by the ocean.
The oceans may be storing even more effects of human emissions than scientists have so far
realized.

The Earth is on a trajectory to double its atmospheric carbon dioxide (above 700 ppm) by the
year 2065. Scientists say that this will result in a 30% drop in the amount of calcium that
tropical oceans can retain, whereby coral growth would be stunted by the lack of calcium in
these ocean waters. This would threaten the capability of coral to repair itself in the event of
storm damage and from coral chewing predators. Scientists say global warming has had two
main effects on coral, both potentially lethal. First, as oceans absorb more carbon dioxide, the
chief greenhouse gas, they become more acidic. The acidity makes it more difficult for corals
to grow and may even cause them to start to dissolve. And as ocean warm, algae that live in
corals, and on which they depend may be killed. Corals globally are already so damaged, and
so threatened by further environmental degradation, that there is little chance the restoration
efforts can turn things around. ―We have lost 25 per cent of the world‘s corals in the last 25
years‖- according to, David E. Vaughan, director of the Centre for Coral Reef Research at
Mote.22

 Glaciers and Polar regions:

The rapid retreat of glaciers is one of the most visible signs of Earth‘s changing climate, but
the disappearance of the ice is altering far more than the physical landscape. An analysis
suggests that species that live in the streams and rivers that flow from melting glaciers could
begin to vanish when just half of the glacial cover in a region is lost.23

According to climatologists, mountain glaciers are particularly sensitive indicators of climate

change. The volume of ice in a glacier and correspondingly its surface area, thickness, and
length - is determined by the balance between input (accumulation of snow and ice) and

21
The Holocene is a geological epoch which began at the end of the Pleistocene and continues to the present.
The Holocene is part of the Quaternary period. Its name comes from the Greek words λος and καινός, meaning
―entirely recent‖.
22
Cornelia Dean, ―Breathing New Life into Cornelia, Deccan Herald, May 8, 2007, p. III
23
―Retreating ice leaves species on the rocks‖, Deccan Herald, March 27, 2012, Spectrum, p. 4.

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output (melting, evaporation and calving). Temperature, precipitation, humidity, wind speed,
and other factors such as slope and the reflectivity of the glacier surface, all affect the
balance.

The rate of retreat in recent times has, however, been much more rapid than the gradual
retreat expected in an inter-glacial warming phase. This, glaciologists and climatologists
believe, is due to global warming. This climatic change brought about by human or
anthropogenic activity in the post-industrialization period has already resulted in a global
increase in the average surface temperature by 0.6° C. A natural consequence of this is
increased melt from ice caps24 and glaciers.

The Polar Regions25, for present purposes, comprise the frozen oceans of the Arctic and the
Greenland ice cap, together with the continent of Antarctica. Various reports suggest that
temperature increases, will be greatest at the higher latitudes, which has given rise to fears
concerning the collapse of the polar ice-sheets, with the consequence of a disastrous effect in
terms of sea level rise.

With global warming, the glaciers are melting. Once stretching to the edge of town, they now
end high in the mountains.26 Ice is melting all over the planet and the Glaciers are melting on
six continents. If present warming trends continue, all glaciers in Glacier National Park could
be gone by 2030.

Arctic sea ice plays a key role to help keep Polar Regions cool and helps control the global
climate system. As the ice has a bright surface, it reflects about 80% of the sunlight that hits it
back into space. 27 But the Arctic region is now experiencing some of the most rapid and
severe climate change on earth as the Greenhouse gases are causing the arctic to warm more
rapidly than the rest of the planet; the sea ice cap has shrunk about 40% since the early 1980s.
That means an area of the Arctic Ocean the size of Europe has become dark, open water in
the summer instead of reflective ice, absorbing extra heat and then releasing it to the
atmosphere in the fall and early winter.28

24
A dome shaped ice mass, usually covering a highland area, which is considerably smaller in extent than an ice
sheet.
25
Earth‘s Polar Regions are the areas of the globe surrounding the poles also known as frigid zones. The North
Pole and South Pole being the centers, these regions are dominated by the polar ice caps, resting respectively on
the Arctic Ocean and the continent of Antarctica.
26
Melting glaciers make Alpine mountains rumble‘, Deccan Herald, June 6, 2013, p.11
27
‗Arctic sea ice set to hit record low‘, Deccan Herald, Aug. 22, 2012, p. 14.
28
‗Greenhouse gases warm the Arctic, creating ripples‘, Deccan Herald, April 3, 2012, p. 11.

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The consequences of losing the Arctic‘s ice coverage, even for only part of the year, could be
profound. Ocean temperatures will rise and methane29 deposits on the ocean floor could melt,
evaporate and bubble into the atmosphere. Scientists have uncovered thousands of sites in the
Arctic where methane which has been trapped for many millennia is seeping out into the
atmosphere, which may adversely impact climate change.30 With the disappearance of sea ice
around the shores of Greenland, its glaciers could melt faster and raise sea levels even more
rapidly than at present 31 and if the sea-ice cover of the Arctic became seasonal or
disappeared, many animal species, such as the polar bear, would be eliminated. The impact
upon the marine plankton,32 and hence on the food chain, which is at present unpredictable.
Thus, changes in the arctic climate will also affect the rest of the world through increased
global warming and rising sea levels.

 Agriculture and food security:

Climate Change is projected to have significant impacts on conditions affecting agriculture,
including temperature, precipitation and glacial run off. It affects agriculture in more ways
than one. It can affect crop yield as well as the types of crops that can be grown in certain
areas, by impacting agricultural inputs such as water for irrigation, amounts of solar radiation
that affect plant growth, as well as the prevalence of pests.

Rise in temperatures caused by increasing greenhouse gases is likely to affect crops

differently from region to region. For example, moderate warming (increase of 1 to 3 degree
Centigrade in mean temperature) is expected to benefit crop yields in temperate regions,
while in lower latitudes especially seasonally dry tropics, even moderate temperature
increases (1 to 2 degree Centigrade) are likely to have negative impacts for major cereal
crops. Warming of more than 3 degree Centigrade is expected to have negative effect on
production in all regions.33 The Third Assessment Report of the IPCC, 2001 concluded that
climate change would hit the poorest countries severely in terms of reducing the agricultural
products. The Report claimed that crop yield would be reduced in most tropical and sub-
tropical regions due to decreased water availability, and new or changed insect/pest

29
Methane is the second most important greenhouse gas after CO2 and is one of the reasons behind global
warming across the world.
30
‗Arctic melt bubbling out ancient methane‘, Deccan Herald, May 22, 2012, p. 11
31
‗Arctic sea ice may vanish in 10 yrs‘, Deccan Herald, August 14, 2012, p. 14.
32
Micro-organisms living in the upper layers of aquatic systems. A distinction is made between phytoplankton,
which depend on photosynthesis for their energy supply, and zooplankton, which feed on phytoplankton.
33
IPCC Fourth Assessment Report, 2007, p.38

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incidence. In South Asia losses of many regional staples, such as rice, millet and maize could
top 10 per cent by 2030.34

As a result of climate change the amount of arable land in high-latitude region is likely to
increase by reduction of the amount of frozen lands. At the same time arable land along the
coast lines are bound to be reduced as a result of rising sea level. Erosion, submergence of
shorelines, salinity of the water table due to the increased sea levels, could mainly affect
agriculture through inundation of low lying lands.

In a recent study, the International Commission for Snow and Ice (ICSI) reported that
Himalayan glaciers – that are the principal dry-season water sources of Asia‘s biggest rivers -
Ganges, Indus, Brahmaputra, Yangtze, Mekong, Salween and Yellow – are shrinking quicker
than anywhere else and that if current trends continue they could disappear altogether by
2035.35If the predictions are true then the magnitude of the impact can be gauged from the
sheer numbers of people it will affect. Approximately 2.4 billion people live in the drainage
basin of the Himalayan Rivers. The above predictions certainly pose a serious threat to
agriculture which impacts human lives in many ways. One of the foremost impacts is food
security.

 Rise in Sea Levels:

Nearly 70 % of Earth‘s surface comprises of water in the form of seas and oceans. Sea level
rise under warming is inevitable. Sea level rise is both due to thermal expansion as well as
melting of ice sheets. Thermal expansion would continue for many centuries even after GHG
concentrations have stabilized causing an eventual sea level rise much larger than projected
for the 21st century. If warming in excess of 1.9 to 4.6°C above pre-industrial level be
sustained over many centuries then the final rise in sea level due to melting polar ice could be
several meters, because it will be in addition to that of rise of sea level due to thermal
expansion. The present scenario clearly indicates that the sea level will definitely rise.36

Satellite observations available since the early 1990s show that since 1993, sea level has been
rising at a rate of around 3 mm per year, significantly higher than the average during the

34
Climate Change and Agriculture (http:en.wikipedia.org/wiki/Climate-change-and-agriculture)
35
Khoday, Kishan, 2007 Climate Change and the Right to Development: Himalayan Glacial Melting and the
future of Development on the Tibetan Plateau UNDP-Human Development Report 2007/2008)
36
An Assessment of the Intergovernmental Panel on Climate Change: Climate Change 2007: Synthesis Report,
p. 20

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previous half-century.37 IPCC predicts that sea levels could rise rapidly with accelerated ice
sheet disintegration. Global temperature increases of 3–4°C could result in 330 million
people being permanently or temporarily displaced through flooding. Warming seas will also
fuel more intense tropical storms. With over 344 million people currently exposed to tropical
cyclones, more intensive storms could have devastating consequences for a large group of
countries. The 1 billion people currently living in urban slums on fragile hillsides or flood-
prone river banks face acute vulnerabilities. People living in the Ganges Delta and lower
Manhattan share the flood risks associated with rising sea levels.38

 Impacts on Coastal States in India:

The coastal states of Maharashtra, Goa and Gujarat face a grave risk from the sea level rise,
which could flood land (including agricultural land) and cause damage to coastal
infrastructure and other property. Goa will be the worst hit, losing a large percentage of its
total land area, including many of its famous beaches and tourist infrastructure. Mumbai‘s
northern suburbs like Versova beach and other populated areas along tidal mud flats and
creeks are also vulnerable to land loss and increased flooding due to sea level rise. Flooding
will displace a large number of people from the coasts putting a greater pressure on the civic
amenities and rapid urbanisation. Sea water percolation due to inundations can diminish
freshwater supplies making water scarcer. The states along the coasts like Orissa will
experience worse cyclones.

Many species living along the coastline are also threatened. The coral reefs that India has in
its biosphere reserves are also saline sensitive and thus the rising sea level threatens their
existence too, not only the coral reefs but the phytoplankton, the fish stocks and the human
lives that are dependent on it are also in grave danger.

 Ecosystems and Bio-diversity:

Climate Change has the potential to cause immense biodiversity loss, affecting both
individual species and their ecosystems that support economic growth and human well-being.
It is difficult to predict the overall result of climate changes on animal and plant kingdom.

Devastating effects on the native habitats of many animals and plants due to global warming
is likely to drive a considerable number of today‘s known animal and plant species to
extinction. Mass extinctions of the Earth‘s flora and fauna have occurred before also but

37
IPCC Fourth Assessment Report, p. 111
38
UNDP Human Development Report 2007-2008, p.78

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those were driven by natural factors. However, the projected extinctions of flora and fauna in
the future will be human driven i.e. due to adverse impact of human activities. The growth of
human populations around the world, along with attendant pollution and loss of habitat, has
set the stage for mass extinctions and large scale alterations in the flora and fauna.

According to International World Wildlife Fund (WWF) and National Wildlife Federation in
the United States species from the tropics to the poles are at risk. Many species may be
unable to move to new areas quickly enough to survive changes that rising temperatures will
bring to their historic habitats. WWF asserted that one-fifth of the world‘s most vulnerable
natural areas may be facing a ―catastrophic‖ loss of species. 39 Another survey in 2004 of
5,743 amphibian species indicated that one in every three species was in danger of extinction
due to global warming.40

Studies predict that global warming will also lead to extinction of insects in the tropical zone
by the end of the century while insects in the temperate zones and the poles could experience
a dramatic increase in numbers. It will also have catastrophic impact on the marine
ecosystems. They will be affected not only by an increase in sea temperature and changes in
ocean circulation, but also by ocean acidification, as the concentration of dissolved carbon
dioxide (carbonic acid) rises. This is expected to negatively affect shell forming organisms,
corals and their dependent ecosystems.41Accelerated warming of the atmosphere will also
alter the flora and fauna around the world.

 Climate Change Health:

Climate change poses a host of threats to the survival of mankind. The devastating impact of
climate change has broadened the sphere of discourse much beyond the traditional concern
like environment or development. The far reaching consequences of climate change have
forced policymakers and planners to look at every possible aspect of human survival.
Arguably, it has catastrophic effects on human health. Each year, about 800,000 people die
from causes attributable to air pollution, 1.8 million from diarrhoea resulting from lack of
access to clean water supply, sanitation, and poor hygiene, 3.5 million from malnutrition and
approximately 60,000 in natural disasters.42 A warmer and more variable climate would result

39
Bruce E. Johansen, ‗Global Warming in the 21st century: Plants and Animals in Peril‘, p.536
40
lbid. p.579
41
Biodiversity and Climate Change: Ecosystems (http://www.unep-wcmc.org/climate/ impacts.aspx)
42
World Health Organization: Protecting Health from Climate Change

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in higher levels of some air pollutants, increased transmission of diseases through unclean
water and through contaminated food.

Climate change has a direct impact on human health. For example, the warmer the climate
the likelihood of its impact on human health becomes worse. Available studies suggest that
there will be an increase in health problems. It is anticipated that there will be an increase in
the number of deaths due to greater frequency and severity of heat waves and other extreme
weather events.

Climate change and the resulting higher global temperatures are causing increasing frequency
of floods and droughts leading to the risk of disease infections. By 2090s climate change may
bring a doubling in the frequency of extreme drought events. Many more million people are
projected to be flooded every year due to sea-level rise by the 2080s.43 Lack of freshwater
during droughts and contamination of freshwater supplies during floods compromise hygiene,
thus increasing rates of diarrhoeal disease. Endemic morbidity and mortality due to diarrhoeal
disease primarily associated with floods and droughts are expected to rise in East, South and
South-East Asia due to projected changes in hydrological cycle. 44 Flooding also creates
opportunities for breeding of disease carrying insects such as mosquitoes. Areas affected by
frequent floods and drought conditions also witness large scale migration of populations to
relatively stable regions leading to overcrowding and unhygienic conditions resulting in
transmission of diseases like Japanese encephalitis and malaria.

Climate change is a major factor in the spread of infectious diseases. Diseases, confined to
one specific geographic region spread to other areas. The World Health Organization (WHO)
in their studies have indicated that due to rising temperatures, malaria cases are now being
reported for the first time from countries like Nepal and Bhutan. It has also been predicted
that an additional 220-400 million people could be exposed to malaria- a disease that claims
around 1 million lives annually. Dengue fever is already in evidence at higher levels of
elevation in Latin America and parts of East Asia. Climate change could further expand the
reach of the disease.45

43
Climate Change 2007: Impacts, Adaptation and Vulnerability (Working Group II Contribution to the Fourth
Assessment Report of the Intergovernmental Panel on Climate Change, Summary for Policymakers and
Technical Summary)
44
Climate Change 2007: Synthesis Report (A report of the IPCC, Geneva, 2007)
45
UNDP Human Development Report 2007-2008

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Rising temperatures and changing patterns of rainfall are projected to decrease crop yields in
many developing countries, stressing food supplies.

This will ultimately translate into wider prevalence of malnutrition/ under nutrition. In some
African countries, yields from rain-fed agriculture could be reduced by up to 50 per cent by
2020.46

Emissions of the Green House Gases have been responsible for the depletion of ozone layer,
which protects the Earth from the harmful direct rays of the sun. Depletion of stratospheric
ozone results in higher exposure to the ultra violet rays of the sun, leading to an increase in
the incidents of skin cancer. It could also lead to an increase in the number of people
suffering from eye diseases such as cataract. It is also thought to cause suppression of the
immune system.

The projections by WHO and IPCC47suggest that the negative effects of climate change on
health are greater. In addition, the negative effects are concentrated on poor populations that
already have compromised health prospects, thus widening the inequality gap between the
most and the least privileged. The balance of positive and negative health impacts will vary
from one location to another, and will alter over time as temperatures continue to rise.

 Water Stress and Water insecurity:

Lack of access to water is a perturbing issue, particularly in developing countries. At present
a whopping 1.1 billion people around the world lack access to water and 2.6 billion people
are without sanitation. Climate change is expected to exacerbate current stresses on water
resources. By 2020, between 75 and 250 million people are projected to be exposed to
increased water stress due to climate change.48

Spreading water scarcity is contributing to food insecurity and heightened competitions for
water both within and between countries. As the world population expands and the
consumption of water spirals upwards, water problems are bound to intensify. By 2025, 40

46
Climate Change 2007: Impacts, Adaptation and Vulnerability (Working Group II Contribution to the Fourth
Assessment Report of the Intergovernmental Panel on Climate Change Summary for Policymakers and
Technical Summary)
47
Climate Change 2007: Synthesis Report, IPCC, Geneva, 2007
48
Climate Change 2007: Synthesis Report, IPCC, p.11, Geneva

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per cent of the world‘s population, more than 3 billion in all, may be living in countries
experiencing water stress or chronic water scarcity.49

Increase in temperature due to climate change has been widespread over the globe. Warming
has resulted in decline in mountain glaciers and snow cover in both hemispheres and this is
projected to accelerate throughout the 21st century. This will in turn lead to reducing water
availability, hydropower potential, and would change the seasonal flow of rivers in regions
supplied by melt water from major mountain ranges (e.g. Hindu-Kush, Himalaya, Andes)
where more than one-sixth of the world population currently lives. 50 By 2050s freshwater
availability in Central, South, East and South-East Asia, particularly in large river basins, is
projected to decrease.51

A warmer climate will accelerate the hydrologic cycle, altering rainfall, magnitude and
timing of run-off. Available research suggests a significant future increase in heavy rainfall
events in many regions, while in some regions the mean rainfall is projected to decrease. The
frequency of severe floods in large river basins has increased during the 20th century and it is
likely that up to 20 per cent of the world population will live in areas where river flood
potential could increase by the 2080s.

Increasing floods poses challenges to society, physical infrastructure and water quality.
Rising temperatures will further affect the physical, chemical and biological properties of
fresh water lakes and rivers, with predominantly adverse impacts on many individual fresh
water species, community composition and water quality. In coastal areas, sea level rise will
exacerbate water resource constraints due to increased salinization of groundwater supplies.

 Carbon Cycle:
Land, plants and ocean have taken up about 55 per cent of the extra carbon people have put
into the atmosphere while about 45 per cent has stayed in the atmosphere. Eventually the land
and oceans will take up the most extra carbon dioxide, but as much as 20 per cent may
remain in the atmosphere for many thousands of years. The changes in the carbon cycle
impact each reservoir. Excess carbon in the atmosphere warms the planet and helps plant on
land grow more. Excess carbon in the ocean makes the water more acidic, putting marine life

49
Water Conflicts Loom as Supplies Tighten; Food Security Threatened, Ecosystems in Decline
(http://www.worldwatch.org/node/1600)
50
Climate Change 2007: Impacts, Adaptation and Vulnerability (Fourth Assessment Report of the IPCC,
Geneva, 2007, p.11)
51
Climate Change 2007, Synthesis Report, p.11

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in danger. It is significant that so much carbon dioxide stays in the atmosphere because
carbon dioxide is the most important gas for controlling the earth‘s temperature. Carbon
dioxide, methane, and halocarbons are greenhouses gases that absorb a wide range of energy-
including infrared energy (heat) emitted by the earth- and then remit it. The re-emitted energy
travels out in all directions, but some returns to Earth, where it heats the surface. Without
greenhouse gases, Earth would be a frozen -18 degrees Celsius (0 degrees Fahrenheit). 52
Water vapour concentrations in the air are controlled by Earth‘s temperature. Warmer
temperatures evaporate more water from the oceans, expand air masses, and lead to higher
humidity. Cooling causes water vapour to condense and fall out as rain, sleet, or snow.

Carbon dioxide, on the other hand, remains a gas at a wider range of atmospheric
temperatures than water. Carbon dioxide molecules provide the initial greenhouse heating
needed to maintain water vapour concentrations. When carbon dioxide concentrations drop,
Earth cools, some water vapour falls out of the atmosphere, and the greenhouse warming
caused by water vapour drops. Likewise, when carbon dioxide concentrations rise, air
temperatures go up, and more water vapour evaporates into the atmosphere—which then
amplifies greenhouse heating.53About 30 per cent of the carbon dioxide that people have put
into the atmosphere has diffused into the ocean through the direct chemical exchange.
Dissolving carbon dioxide in the ocean creates carbonic acid, which increases the acidity of
the water. Ocean acidification affects marine organisms in two ways. First, carbonic acid
reacts with carbonate ions in the water to form bicarbonate. However, those same carbonate
ions are what shell-building animals like coral need to create calcium carbonate shells. With
less carbonate available, the animals need to expend more energy to build their shells. As a
result, the shells end up being thinner and more fragile.

Second, the more acidic water is, the better it dissolves calcium carbonate. In the long run,
this reaction will allow the ocean to soak up excess carbon dioxide because more acidic water
will dissolve more rock, release more carbonate ions, and increase the ocean‘s capacity to
absorb carbon dioxide. In the meantime, though, more acidic water will dissolve the
carbonate shells of marine organisms, making them pitted and weak. Plants on land have
taken approximately 25 per cent of the carbon dioxide that humans have put into the
atmosphere. The amount of carbon that plants take up varies greatly from year to year, but in
general, the world‘s plants have increased occurred as a direct result of fossil fuel emissions.

52
http://earthobservatory.nasa.gov/Features/CarbonCycle/page1.php (Last visited on March 7, 2016).
53
ibid

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With more atmospheric carbon dioxide available to convert to plant matter in photosynthesis,
plants were able to grow more. This increased growth is referred to as carbon fertilization.54

Some of the changes in carbon absorption are the result of land use decisions. Agriculture has
become much more intensive, so we can grow more food on less land. In high and mid-
latitudes, abandoned farmland is reverting to forest, and these forests store much more
carbon, both in wood and soil, than crops would. In many places, we prevent plant carbon
from entering the atmosphere by extinguishing wildfires. This allows woody material (which
stores carbon) to build up. The biggest changes in the land carbon cycle are likely to come
because of climate change. Carbon dioxide increases temperatures, extending the growing
season and increasing humidity. Both factors have led to some additional plant growth.
However, warmer temperatures also stress plants. With a longer, warmer growing season,
plants need more water to survive.55

The warming caused by rising greenhouse gases may also ―bake‖ the soil, accelerating the
rate at which carbon seeps out in some places. This is of particular concern in the far north,
where frozen soil—permafrost—is thawing. Permafrost contains rich deposits of carbon from
plant matter that has accumulated for thousands of years because the cold slows decay. When
the soil warms, the organic matter decays and carbon—in the form of methane and carbon
dioxide—seeps into the atmosphere.56

 Water Cycle:
Among the most serious Earth science and environmental policy issues confronting society
are the potential changes in the Earth‘s water cycle due to climate change. The science
community now generally agrees that the Earth‘s climate is undergoing changes in response
to natural variability, including solar variability, and increasing concentrations of greenhouse
gases and aerosols. Furthermore, agreement is widespread that these changes may profoundly
affect atmospheric water vapour concentrations, clouds, precipitation patterns, and runoff and
stream flow patterns. For example, as the lower atmosphere becomes warmer, evaporation
rates will increase, resulting in an increase in the amount of moisture circulating throughout
the troposphere (lower atmosphere). An observed consequence of higher water vapour
concentrations is the increased frequency of intense precipitation events, mainly over land
areas. Furthermore, because of warmer temperatures, more precipitation is falling as rain

54
http://earthobservatory.nasa.gov/IOTD/view.php?id=51289 (Last visited on March 7, 2016).
55
Ibid.
56
http://earthobservatory.nasa.gov/Features/CarbonCycle/page5.php ( Last visited on March 7, 2016).

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rather than snow.Warmer temperatures have led to increased drying of the land surface in
some areas, with the effect of an increased incidence and severity of drought.

The water cycle is a delicate balance of precipitation, evaporation, and all of the steps in
between. Warmer temperatures increase the rate of evaporation of water into the atmosphere,
in effect increasing the atmosphere's capacity to "hold" water.Increased evaporation may dry
out some areas and fall as excess precipitation on other areas.Changes in the amount of rain
falling during storms provide evidence that the water cycle is already changing. Over the past
50 years, the amount of rain falling during the most intense 1% of storms increased by almost
20%. Warming winter temperatures cause more precipitation to fall as rain rather than snow.
Furthermore, rising temperatures cause snow to begin melting earlier in the year. This alters
the timing of stream flow in rivers that have their sources in mountainous areas.57

Declining water quality is another consequence of climate change. Water temperature, for
example, will generally rise in streams, lakes, and reservoirs as air temperature rises. This
tends to lead to lower levels of dissolved oxygen in water, hence more stress on the fish,
insects, crustaceans and other aquatic animals that rely on oxygen. As more – and more
intense – precipitation leads to increased runoff in certain regions, we can also expect more
pollution to be washed into our waterways: sediments, nitrogen from agriculture, disease
pathogens, pesticides, and herbicides. Naturally, the pollution load in streams and rivers will
tend to be carried to larger bodies of water downstream – lakes, estuaries, and the coastal
ocean – where one of the more dramatic consequences of heavy runoff can be blooms of
harmful algae and bacteria.58

 Climate change and displacement:

Climate change heralds in various climatic phenomenon which affects life on the planet.
Climatic variations cause natural disasters like severe drought, severe floods, severe
monsoon, severe cold, severe heat waves, hurricanes, tornadoes, cyclones etc. these disasters
major effect on lives of the people and their surrounding environment. People are forced to
leave their native place and migrate to other lands in order to be able to survive. This is
displacement due to climate change. As early as 1990 the Inter-Governmental Panel on
Climate Change (IPCC) was arguing that the greatest single impact of climate change could

57
https://www3.epa.gov/climatechange/impacts-adaptation-renamed/water.html (Last visited on March 7,
2016).
58
http://www.ucsusa.org/global_warming/science_and_impacts/impacts/water-and-climate
change.html#.Vv9aJNV97IU (Last visited on March 7, 2016).

37 | P a g e
be on human migration. So far, the scientific community has focussed on establishing the
extent and the nature of anthropogenic climate change and its impact on our weather systems
and coastlines. Much less time and energy, however, have been spent on empirical analyst of
the impacts of the climate change on human population distribution. Consequently, the
figures that analysts have produced to date represent little more than well-educated
guesswork. This is unsurprising; the science of climate change is complex enough, even
before considering its impact on societies with widely differing resources and varied
capacities to adapt to external shocks.59Perhaps the best-known estimate for future migration
forced by climate was made by Professor Norman Myers of Oxford University. Looking
ahead to 2050 he has argued that ―when global warming takes hold there could be as many as
200 million people [displaced] by disruptions of monsoon systems and other rainfall regimes,
by droughts of unprecedented severity and duration, and by sea-level rise and coastal
flooding.‖ This is a daunting figure, a ten-fold increase on today‘s entire population of
documented refugees. It would mean that by 2050 one in every 45 people in the world would
have been displaced by climate change (from a predicted global population of nine billion
people).

Climate change will significantly affect migration in three distinct ways. First, the effects of
warming and drying in some regions will reduce agricultural potential and undermine
ecosystem services‘ such as clean water and fertile soil. Second, the increase in extreme
weather events- in particular heavy precipitation and resulting flash or river floods in tropical
regions will affect ever more people and generate mass displacement. Finally, the sea level
rise will permanently destroy extensive and highly productive low-lying coastal areas that are
home to millions of people who will have to relocate permanently.

 Migration and Refugees:

The consequences of climate change on migration present humanity with an unprecedented
challenge. The numbers of storms, droughts and floods have increased threefold over the last
30 years with devastating effects on vulnerable communities, particularly in the developing
world. Extreme environmental events such as cyclones, hurricanes, tsunamis and tornadoes
tend to capture the media headlines, but it is gradual changes in the environment that are
likely to have a much greater impact on the movement people in the future. For example,
over the last 30 years, twice as many people have been affected by droughts as by storms.

59
Oli Brown, ―The Numbers Game‖, Climate Change and displacement; Forced Migration Review. Issue 31
October 2008

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A billion people - one in seven people on Earth today- could be forced to leave their homes
over the next 50 years as the effect of climate change worsen an already serious migration
crisis, a new report from Christian Aid predicts.60

The report, which is based on latest report UN population and climate change figures, say
conflict, large-scale development projects and wide-spread environmental deterioration will
combine to make life unsupportable for hundreds of millions of people, most on a Sahara
belt, South Asia and the Middle East. According to the development charity, the world faces
its largest movement of people forced from their homes.

In India too refugees from Lohachara, Ghoramara and Sunderbans are on the rise due to the
impact of Global Warming i.e. sea level rise turning these areas into islands and where some
small islands are predicated to sink in this rising sea level.

1.4 Conclusion
Thus, with the rapid urbanization, industrialization and economic growth climate change is
projected to have serious impact on natural resources, coastal ecosystem, biodiversity, etc.
The projected hazards of the phenomenon of climate change also include diseased crop
yields, the disappearance of glaciers, extreme weather conditions like floods, droughts and
storms, increased coastal flooding and species extinctions. Thus, we urgently need a new
economic paradigm, which is global, inclusive, cooperative, environmentally sensitive and
above all scientific. With the efforts and co-operation of all the countries on the issue of
climate change will support us to make strategies to tackle this problem as soon as possible.
Then alone, we could make some headway in saving our lone planet from the brink of
climate disasters.

60
John Vidal, ―Billion Homeless by 2050‖, Deccan Herald, May 15, 2007. p. 15

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 CHAPTER 2

LAW AND POLICY FOR DEALING CLIMATE CHANGE: INTERNATIONAL

PERSPECTIVE

“The climate challenge illustrates how we have to change. The developing countries need
more support and opportunities to develop and use clean energy. Because if the current
situation continues, then the world will not be able to handle this burden.”

-Gro Harlem Brundtland

Climate change is perhaps the biggest challenge facing the world today, and the very
existence of man depends on how effectively this change is tackled. We all know that today
the threat of climate change is imminent. This is a fact that that climate change is the most
devastating environmental problem not only of this country but of the world as a whole.
Global temperature is rising, glaciers are melting, sea levels are rising and established climate
patterns are dramatically changing threatening many species of both flora and fauna. We have
often been knocked over by shocking reports of glaciers vanishing and sea coasts submerging
in floods and the news of hurricanes unleashing casualties world-wide. This is due to change
in the climate. Some other indicators of climate change are also there, that range from earlier
spring arrival, coral reef bleaching, spreading diseases, heavy downpours, disproportionate
snow falling, etc. to extinction of various species and plant. Thus, the various conferences,
conventions and protocols have tried to discuss the problem of climate change at international
level.

2.1 History of Climate Change Regime

The International Climate Change Regime as it is today hasn‘t been this way ever since.
There were important milestones in the development of the regime as it is today. This chapter
is an attempt to trace the evolution of how the climate change regime on an international level
and how it spanned over continents to emerge not only as a domestic effort, to stabilize the
climate change effect. In order to begin with the understanding of the climate change regime
and the laws which followed, it is important to know the development of ‗International
Environmental Law‘. It is under this purview that the very crux of climate change regime
lies.

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Climate change has emerged as an important environmental issue ever to confront humanity.
This concern arises from the fact that our everyday activities are leading to changes in the
Earth's atmosphere that have potential to significantly alter the planet's heat and radiation
balance. The problem of climate change is interdependent in nature and no country can take
unilateral decision to protect its environment. It has brought both the developing and
developed countries to the negotiating table. Co-operation is required between developing
and developed countries to minimize the impact. 'Pressure Politics', which was earlier
adopted by the developed countries, has lost relevance, instead parity, with equity has gained
importance, and consequently spectacular transformation has taken place in the international
politics.

The development of the climate change regime in the late 1980s and early 1990s rode a wave
of environmental activity, which began in 1987 with the discovery of the stratospheric ―ozone
hole‖ and the publication of the Brundtland Commission report, Our Common Future (World
Commission on Environment and Development, 1987), and crested at the 1992 United
Nations Conference on Environment and Development (UNCED) in Rio de Janeiro. 61 An
earlier wave of international environmental activity, culminating in the 1972 Stockholm
Conference and the establishment several years later of the United Nations Environment
Programme (UNEP), had tended to focus on local, acute, and relatively reversible forms of
pollution—for example, oil spills and dumping of hazardous wastes at sea—by regulating
particular pollutants. The more recent cycle of environmental activity has concerned longer-
term, irreversible, global threats, such as depletion of the stratospheric ozone layer, loss of
biological diversity, and greenhouse warming, and has focused not merely on environmental
protection per se, but on the more general economic and social policies needed to achieve
sustainable development. The development of the climate change regime until the conclusion
of the Kyoto Protocol in 1997 can usefully be divided into five periods: the foundational
period, during which scientific concern about global warming developed;62 the agenda-setting
phase, from 1985 to 1988, when climate change was transformed from a scientific into a
policy issue; a pre-negotiation period from 1988 to 1990, when governments became heavily
involved in the process; the formal intergovernmental negotiations phase, leading to the
adoption of the FCCC in May 1992; and a post agreement phase focusing on the elaboration

61
This chapter draws extensively from Bodansky 1992, 1994, 1995
62
For general discussions, see Ausubel 1983; Cain 1983; Kellogg 1987; Revelle 1985; Weiner 1990.

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and implementation of the FCCC and the initiation of negotiations on additional
commitments, leading to the adoption of the Kyoto Protocol in December 1997.

The Stockholm Conference, 1972

The earliest evidence of the need for collective action on climate change emerged from the
Stockholm Conference on the Human Environment in 1972. It acted as a catalyst to
developments in the United Nations for the next decade and beyond. In particular, it
established the principle that the use of the Earth‘s resources has to be regulated in line with
the aim of maintaining developmental opportunities. The way in which this was to be
achieved was not made clear at that stage, but the principle has been established. The
conference mainly adopted a non-binding Declaration of Principles for the preservation and
enhancement of the human environment which was designed to ―inspire and guide the
peoples of the world in the preservation and enhancement of the human environment‖.63

Institutionally, it led to the creation of the United Nation Environment Programme (UNEP)
which was to administer an Action Plan for the development of environmental policy. This
Action Plan consisted of 109 recommendations for environmental action at the international
level.

The most important principles of the Stockholm Declaration are Principles 21 and 22.
Principle 21 drew on existing treaty and customary law to proclaim:

“States have, in accordance with the Charter of the United Nations and the principles
of international law, the sovereign right to exploit their own resources pursuant to
their own environmental policies, and the responsibility to ensure that activities within
their jurisdiction or control do not cause damage to the environment of other States or
of areas beyond the limits of national jurisdiction.”

Essentially, the normative force of the provision is that trans-boundary environmental harm
has to be controlled. Principle 22 requires States to cooperate in the development of
international law with respect to liability and compensation for the victims of pollution and
other environmental damage, insofar as this is caused by activities within the jurisdiction or
control of these States into areas beyond their jurisdiction. Most of the other Principles are
policy-oriented, rather than normative in character. Responsibility for future generations was

63
Report of the UN Conference on the Human Environment, UN Doc. A/CONF. 48/14 at 2-65, and Corr.1
(1972); 11ILM 1416(1972).

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set out in Principle 1 and Principle 2 states that the ―natural resources of the earth, including
the air, water, land, flora and fauna must be safeguarded for the benefit of present and future
generations through careful planning or management, as appropriate‖. Some of the tensions
that have figured in subsequent discussions on climate change are apparent. Principles 8 to 11
recognize that economic and social development is essential and that environmental policies
should ―enhance and not adversely affect the present or future development potential of
developing countries‖.

The Stockholm Declaration introduced some key ideas on how environmental and
developmental issues would in future be handled in international relations. It treated
environmental protection and economic development as linked subjects. It envisaged the need
for cooperation among States and for coordination of activities addressing the issues
identified, within and outside the UN system; and it promoted the idea of inter-generational
equity. However, for more than a decade very little progress has been made in applying these
ideas. Indeed, little progress is any how made in developing a common response to climate
change issues for an even longer period.

2.2 The Formation of Inter-Governmental Panel on Climate Change (IPCC)

Although there were a number of intergovernmental conferences on climate change

issues from 1979 onwards, it was not until 1988 that UNEP and the World Meteorological
Organization (WMO) established the Intergovernmental Panel on Climate Change (IPCC).
The IPCC was given the task of assessing current scientific, technical and socio-economic
information relevant to understanding the scientific basis of risk of human-induced climate
change, as well as the potential impacts and options for adaptation and mitigation. It was
neither charged to conduct research, nor to monitor data or other relevant parameters. It has
to depend itself on the available literature. In this sense, it is policy relevant but not policy
prescriptive. It has three working groups and a task force on national greenhouse gas
inventories. Its secretariat is hosted by WMO in Geneva and supported by UNEP and WMO.
A principal activity of the IPCC is to provide an assessment of the existing knowledge on
climate change at regular intervals. The fourth of these assessment reports was published at
the end of 2007. The first report was published in 1990 and was used by the
Intergovernmental Negotiating Committee as the scientific basis for the United Nations
Framework Convention on Climate Change (UNFCCC). Subsequently the second report in
1995 included socio-economic aspects of climate change and was influential in the

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negotiations on the Kyoto Protocol. The fourth and most recent report built on previous work
and declared with greater confidence that ―the warming of the climate system is
unequivocal‖. From time to time, special reports and technical papers have been produced by
the IPCC on specific issues such as emissions scenarios.

The Intergovernmental Panel on Climate Change published its Fifth Assessment in 2014,
summarizing the work of thousands of scientists across the world. The message was, in the
panel‘s own words, ―unequivocal‖. Concentrations of carbon dioxide and other greenhouse
gases are now higher than they have been for nearly a million years, long before human
society began. The burning of fossil fuels is the main reason behind this increase. Without
strong action, temperatures are very likely to exceed the two-degree centigrade target that
governments have committed to. This will result in serious consequences including sea level
rises, heat waves, loss of snow and ice cover, disruptions to agriculture and food production,
and greater extremes of drought and rainfall.

2.3 Formation of The United Nations Framework Convention on Climate Change, 1992
(UNFCCC):

It has now been over 20 years that the world has been debating climate change. In 1988, the
World Meteorological Organization and the United Nations Environment Programme
(UNEP) set up the Intergovernmental Panel on Climate Change (IPCC) to look into
climatologists‘ claim of the threat of climate change. The First Assessment Report brought
out by the IPCC in 1990 established this threat and urged the international community to take
action to mitigate it.

The UNFCCC was an outcome of negotiations that started in the United Nations General
Assembly in December 1990. An Intergovernmental Negotiating Committee (INC) was set
up to write the framework, which was prepared in 15 months. The Convention text was
presented for signing at the Earth Summit in Rio de-Janeiro, Brazil in June 1992. It was
signed by 154 countries. On March 21, 1994, the UNFCCC came into force after receiving
ratification by the governments of 50 nations. Currently, the Convention has universal
membership, having been ratified by 192 UN member nations.64

The objective of the UNFCCC is to achieve stabilization of greenhouse gas concentrations in

the atmosphere at a level that would prevent dangerous anthropogenic interference with the

64
Report of Centre for Science and Environment, 2009, Climate Change: Politics and Facts, at 56

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climate system in a time frame that would allow ecosystems to naturally adapt to climate
change.65

Crucially, the Convention asserts that developed countries should lead in taking action for
mitigation, recognizing climate change as a global problem, and that all nations have a
responsibility towards its mitigation. Hence, it recognizes a ―common but differentiated
responsibility‖ 66 for member nations. This implied, and was later reiterated by the Kyoto
Protocol, that developing countries need not take commitments on emission reductions for
their economic growth may be adversely effected. Annex I countries listed under the
Convention are those who have been responsible for the problem.

The Convention set up two bodies, a Subsidiary Body for Scientific and Technological
Advice (SBSTA) and a Subsidiary Body for Implementation (SBI), to assess the progress of
efforts and provide advice on methodologies for projects taken up under the Convention. It
also set up financial mechanisms for projects under it by suggesting them to be financed by
the Global Environment Fund (GEF), the International Bank for Reconstruction and
Development (IBRD or the World Bank) and the UNDP.

The member countries meet annually to assess progress and negotiate further rules and
protocols to meet the objectives set by the Convention. These meetings are called the
‗Conference of the Parties‘ or CoP.67

Concept of Conference of Parties (CoPs) and Meeting of Parties (MoPs)

The UNFCCC was one of the important achievements of the Earth Summit, 1992. It has been
the centre piece of the international community‘s efforts to combat climate change since its
adoption. This convention was adopted on May 9, 1992 and opened for signature in June
1992. It entered into force on March 21, 1994 after submission of the fiftieth instrument of
ratification.
The Framework Convention on climate change (FCCC) established several institutions,
including the conference of parties (CoP) which meets annually as the governing body of the
FCCC and deals with the issues related to it. It is the main supervisory institution of both the
FCCC and the Kyoto Protocol. Since 1995 the the Conference of the Parties (COP) to the
65
United Nations Framework Convention on Climate Change 1992, Article 2, Objective, at 4, GE. 05-62220 (E)
200705.
66
United Nations Framework Convention on Climate Change 1992, Article 3.1, Principles, at 4, G.E. -5-62220
(E) 200705.
67
Supra note 1.

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UNFCCC have been meeting annually to assess progress in dealing with climate change.
Successive decisions taken by the CoP make up a detailed set of rules for practical and
effective implementation of the Convention.

The CoP also serves as the meeting of the Party (MoP) to the Kyoto Protocol, which also
adopts decisions and resolutions on the implementation of its provisions. The first meeting of
parties was held in 2005 with 10th Conference of Parties (CoP) when Kyoto Protocol came
into force. This annual meeting is referred to as the Conference of the Parties serving as the
meeting of the Parties to the Kyoto Protocol (MoP).

However, Parties to the Convention that are not Parties to the Protocol are able to participate
in the MoP as observers, but without the right to take decisions.

2.4 Kyoto Protocol

The Kyoto Protocol is an international agreement which obliges its Parties to set
internationally binding emission reduction targets. It was adopted in Kyoto, Japan, on 11
December, 1997 and entered into force on 16 February, 2005. 68 There are currently 192
Parties to the Protocol. The Kyoto Protocol implemented the objective of the United Nations
Framework Convention on Climate Change to fight global warming by reducing greenhouse
gas concentrations in the atmosphere to a level that would prevent dangerous anthropogenic
interference with the climate system. 69 Recognizing that developed countries are primarily
responsible for the present high levels of greenhouse gas emissions in the atmosphere due to
more than 150 years of industrial activity, the Protocol sets a heavier burden on developed
nations under the principle of "common but differentiated responsibilities."70

The Kyoto Protocol has had two commitment periods, the first of which lasts from 2005-
2012, and the second 2012-2020.

The 1997 Kyoto Protocol shares the Convention‘s ultimate objective to stabilize atmospheric
concentrations of greenhouse gases at a level that will prevent dangerous interference with
the climate system. In pursuit of this objective, the Kyoto Protocol builds upon and enhances
many of the commitments already in place under the Convention. Only Parties to the United
Nations Framework Convention on Climate Change can become Parties to the Kyoto

68
Kyoto Protocol, The United Nations Framework Convention on Climate Change,
http://unfccc.int/key_documents/kyoto_protocol/items/6445.php, accessed on 14th March, 2016.
69
Article 2, United Nations Framework Convention on Climate Change.
70
Article 10 of the Kyoto Protocol.

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Protocol. Although all Parties have agreed to further advance the implementation of their
existing commitments under the Convention, only Annex I Parties took on new targets under
the Protocol. Specifically, these Parties have agreed to binding emission targets over the
2008-2012 timeframe.71

Some of the principal concepts of the Kyoto Protocol are:

 Binding commitments for the Annex I Parties. The main feature of the Protocol is that
it established legally binding commitments to reduce emissions of greenhouse gases
for Annex I Parties. The commitments were based on the Berlin Mandate, which was
a part of UNFCCC negotiations leading up to the Protocol.
 Implementation: In order to meet the objectives of the Protocol, Annex I Parties are
required to prepare policies and measures for the reduction of greenhouse gases in
their respective countries. In addition, they are required to increase the absorption of
these gases and utilize all mechanisms available, such as joint implementation, the
clean development mechanism and emissions trading, in order to be rewarded with
credits that would allow more greenhouse gas emissions at home.
 Minimizing Impacts on Developing Countries by establishing an adaptation fund for
climate change.
 Accounting, Reporting and Review in order to ensure the integrity of the Protocol.
 Compliance: Establishing a Compliance Committee to enforce compliance with the
commitments under the Protocol.
The Kyoto Protocol broke new ground by defining three innovative ―flexibility mechanisms‖
to lower the overall costs of achieving its emissions targets. These mechanisms enable Parties
to access cost-effective opportunities to reduce emissions, or to remove carbon from the
atmosphere, in other countries. While the cost of limiting emissions varies considerably from
region to region, the effect for the atmosphere of limiting emissions is the same, irrespective
of where the action is taken.

All three mechanisms under the Kyoto Protocol are based on the Protocol‘s system for the
accounting of targets. Under this system, the amount to which an Annex I Party (with a
commitment inscribed in Annex B of the Kyoto Protocol) must reduce its emissions over the
five-year commitment period (known as its ―assigned amount‖) is divided into units each
71
United Nations, ‗UNFCCC and the Kyoto Protocol (8th September 2006)‘
http://www.un.org/wcm/content/site/climatechange/pages/gateway/the-negotiations/the-un-climate-
changeconvention-and-the-kyoto-protocol, last accessed on 12 march 2016.

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equal to one ton of carbon dioxide equivalent. These assigned amount units (AAUs), and
other units defined by the Protocol, contribute the basis for the Kyoto mechanisms by
providing for a Party to gain credit from action taken in other Parties that may be counted
towards its own emissions target.

2.4.1 The Flexibility Mechanisms

Emission Trading: The Kyoto Protocol has set the guidelines for calculation of and
certification of Emission Reduction Units (ERU), commonly referred to as ‗carbon credits‘.
These are created by countries that have emissions to ‗spare‘: this means the country has
released emissions less than the amount allowed to them by the Kyoto Protocol. This
difference creates a new market commodity. The Protocol states these credits can be traded
amongst Parties to meet their reduction caps, as under Annex B to the Protocol. These credits
may also be generated by CDM or JI projects and bought/sold as per market value.

Clean Development Mechanisms:Clean Development Mechanism or CDM is a flexible tool

created to help developed countries meet their emission reduction targets. It was established
by the Kyoto Protocol with the goal of reducing greenhouse gas emissions at a lower cost by
financing sustainable development projects in developing counties rather than in developed
countries. These projects would result in emission reductions, which may be certified (CERs)
and then bought by industrialized countries to meet their emission reduction requirements as
established under Annex B to the Protocol.

CDM projects are under the authority of the CoP to the UN Framework Convention on
Climate Change (or MoP to the Protocol) and are supervised by the Executive Board of Clean
Development Mechanism (EB) created by the Protocol. Prior to applying for registration by
the RB, CDM projects must be approved by Designated National Authorities (DNA as
sustainable development projects that would benefit the local community. To ensure
transparency and accountability, projects must also be audited and verified by an independent
agency, known as Designated Operating Entities (DOE).

One of the most controversial aspects of CDM is that of establishing additionally 72 . A

proposed CDM project must show emission reductions lower than those in the absence of the
project, or lower than the baseline adopted. This has come under fire from various agencies in

72
UNFCCC 1998, Kyoto Protocol to United Nations Framework Convention on Climate Change, Article 12.5
(c), at 12.

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the past as being vague and ambiguous. The risks of false credits, and passing off a non-
sustainable development project as a CDM one, are quite high, as many CDM watchdogs
have shown in the last few years.

Joint Implementation: Joint Implementation is a strategy proposed in the Kyoto Protocol by

which Parties under Annex 1 of the Convention may cooperate and meet their emission
reduction requirements together. Countries proposing JI projects must show a greater
decrease in emissions due to the project than would occur without it. The key difference
between CDM and JI is that JI occurs between the Annex 1 countries having emission caps in
Annex B to the Kyoto Protocol.

JI projects are overseen by the Joint Implementation Supervisory Committee (JISC).

Equivalent to DNA in JI projects are the Designated Focal Points (DFP), which are the
national level agencies responsible for overseeing JI projects. These projects are also
independently audited and verified by Accredited Independent Agencies (AIA).
2.4.2 Kyoto‟s Critical Flaws

Differentiated responsibilities: targets vary from country to countryArticle 3(1) of the

Framework Convention states, ―The Parties should protect the climate system on the basis of
equity and in accordance with their common but differentiated responsibilities and respective
capabilities.‖73 The targets in Kyoto reflect this idea.74In Article 3(1), the overall target is to
reduce greenhouse gas emissions to a level five per cent below 1990 levels by the year 2012.
A target of five per cent below 1990 levels would itself reflect differentiated responsibilities
if it were imposed in that form on all parties, but the protocol differentiates between nations
to an even greater extent. Annex B sets out specific emissions targets for particular countries,
which vary from the most demanding eight per cent reduction from 1990 levels, 75to the most
lenient eight per cent increase from 1990 levels. 76 Targets for emerging economies of the
Eastern bloc such as Ukraine and Russia are expressed in terms of 1995 emission levels.
There are no emissions targets at all for developing countries. The use of differentiated
responsibilities in an international environmental agreement is inconsistent with the idea that
all parties undertaking a common activity should be subject to the same rules.

73
Principle 7 of the Rio Declaration on Environment and Development, U.N. Doc.A/CONF.151/26; 31 I.L.M.
874 (1992) [Rio Declaration], also refers to ―common but differentiated responsibilities‖.
74
Article 10 of Kyoto Protocol
75
Which apply, for example, to Austria, Belgium, France, and the U.K.
76
Iceland

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 1. Some critics say that the Kyoto Protocol will provide too little environmental benefits
at too high costs.
2. The direct effects of Kyoto on climate change can only be small, because climate
change is a problem of a ―stock‖ nature: what drive climate change is not the
emission, but the slow build-up of atmospheric greenhouse gas concentrations over
decades, or even centuries.
3. Some criticize that the Kyoto Protocol as it is now does not represent the most
efficient solution— or even the most cost-effective short-term agreement. This would
only be the case if the Kyoto Protocol included all emitting countries, allowing the
abatement to take place wherever they cost less around the world and preventing
leakage.
4. Some criticized it in terms of economically less efficient. If abatement costs were
known with certainty, then a quantified objective would define a price, or a price (say,
a carbon tax) would define a global quantity. As abatement costs are uncertain,
quantity and price instruments are not equivalent. A price instrument would offer
certainty on the marginal cost incurred, but not on the actual level of abatement. A
quantity instrument would offer certainty on the level of abatement, but not on the
costs incurred.
The Kyoto Protocol mainly criticized by the developed nations, the countries like U.S.A. but
it received great attention of the developing countries like India.

Hence, international environmental agreements like Kyoto are products of politics. Political
considerations are understandably important in their negotiation; however, if political factors
take on such priority as to make scientific and ecological considerations largely irrelevant,
and thereby defeat an agreement‘s purpose in its first stages of creation, then there seems
little point in entering into the exercise. The dominance of political considerations is
especially problematic in the case of climate change because the existence of the problem can
be attributed to the gulf between what is politically palatable and what is ecologically
necessary. When social and economic systems are profoundly dependent on petroleum, the
notion of reducing greenhouse gas emissions runs directly against broad, deep, and powerful
forces, and ultimately involves challenging the cultural status quo. In this sense, climate
change is a more difficult problem than other international issues such as genocide, land
mines, or nuclear weapons because it is relatively easy to reach consensus that these things
are generally undesirable. Not so with the expanding use of fossil fuels and other greenhouse

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gases. Thus, it may be that as long as the process of setting greenhouse gas limits begins with
what is politically feasible, the result will bear little relation to atmospheric capacity and
climatic effect.

The Framework Convention and Kyoto are the result of complex and extensive political
negotiations. Indeed, Kyoto may be the most demanding agreement that could have been
achieved. Its signing was a significant political accomplishment, and even with its modest
reduction targets, it may prove to have insufficient political support to enter into force. The
drafting changes set out in the section above are legally and ecologically necessary, but they
are not politically viable. Achieving a GHG regime based upon sound principles with
emission limits based upon atmospheric capacities may be politically impossible. If that is so,
two opposing conclusions can be reached. The first, based on wishful thinking, is that Kyoto
should be supported even with its defects. The second, based on a realistic assessment of past
failures and future prospects, is that the current approach to international environmental law
is not able to remedy climate change. For the past 30 years, governments, institutions and
individuals have committed themselves to the strategy of addressing global environmental
problems through multilateral international agreement and action. Kyoto is the product of
these efforts, and therefore it is time to consider whether the commitment is misplaced.

2.5United Nations Climate Change Conferences

There were various climate change conferences held at international level as stated:

Copenhagen Accord:

The December 2009 United Nations Climate Change Conference, commonly known as the
Copenhagen Summit, was held at Copenhagen, Denmark, which included the 15th
Conference of the Parties (COP 15) to the UNFCCC and the 5th Meeting of the Parties to the
Kyoto Protocol. The deliberations under Copenhagen took place under a two track procedure,
one under the UNFCCC and another under the Kyoto Protocol. In terms of representation, it
can also be divided into two phases the initial phase when heads of delegations and Ministers
had the leadership. Under this phase a set of draft decisions were made, heavily bracketed,
and not recognized by all Parties, especially the USA, as a basis for negotiations. 77In the

77
Emmanuel Guérin & Matthieu Wemaere, The Copenhagen Accord: What happened? Is it a good deal? Who
wins and who loses? What is next? Available at
www.iddri.org/.../Id_082009_guerin_wemaere_accord_copenhague.pdf (Last visited on April 4, 2016).

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second phase a small group of roughly 30 heads of State took the lead, and formulated the
minimalist agreement known as the Copenhagen Accord.78

Key elements of Copenhagen Accord, it:

 sets a long-term aspirational goal of limiting temperature rise to no more than 2° C;

 establishes a process for recording the mitigation targets and actions of both
developed and developing countries;
 puts significant new money on the table for climate-change mitigation and adaptation
by developing countries, including ―fast start‖ money for the 2010-2012 period
―approaching‖ $30 billion and a goal of mobilizing $100 billion per year by 2020;
 provides for ―international consultation and analysis‖ of developing country actions,
plus fuller monitoring, reporting, and verification of actions that receive international
support as well as developed country targets and financing.
At the same, the Copenhagen accord fell short in important aspects:

 It doesn‘t set a long-term emissions reduction target, such as the 50 percent reduction
by 2050 (50-by-50) goal agreed to by the G-8.
 The pledges that have been made thus far do not put us on a realistic pathway towards
limiting temperature increase to 2° C1 (a goal that some think is itself inadequate to
avert dangerous climate change).
 The pledges made pursuant to the Copenhagen Accord are not legally-binding.
 Finally, the legal status of the Copenhagen Accord is unclear, particularly given the
decision by the Conference of the Parties (COP) merely to ―take note of‖ rather than
―adopt‖ it.
Hence, the comparatively weak outcome in Copenhagen reflects two more fundamental
factors in the climate- change negotiations. First, the Copenhagen conference was the first
meeting whose success depended on addressing developing as well as developed country
emissions. Second, the two most important players — the United States and China — do not
agree on the fundamental architecture of a future legal regime. They have fundamentally
different positions on issues of legal architecture. On the one hand, the United States insists
that a future agreement be symmetric in the sense that it contains legal commitments by both
developed and developing countries (though these commitments may be very different in

78
Michel Colombier, Why Such Mixed Results in Copenhagen? Europe Monthly Bulletin N°53, January 2010,
available at www.confrontations.org/spip.php?rubrique351 (Last visited on April 4, 2010).

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stringency and content). On the other hand, China is unwilling to accept any legal
commitments to limit its emissions, regardless of how they are differentiated. Meanwhile, the
countries with Kyoto targets are unwilling to agree to a second round of targets unless the
United States and the major emerging economies, including in particular China, agree to do
their fair share under a legally-binding global agreement.

India's Response to Climate change:

The result of the Copenhagen Summit was a three page, nonbinding "Copenhagen
Accord" that, while not perfect, provide the beginnings of an agreement to tackle climate
change.79The Accord was negotiated by around 30 parties including Brazil, South Africa,
India and China (BASIC) and the United States, but it was only 'noted' by the Parties, as there
was no consensus. The disputes and disagreements could not be resolved, leading to the
agreement being, in substance, a lowest common denominator agreement.80 Concisely, the
accord with regard to emission cuts states that representatives of more than 190 countries
deliberated for several days to produce an accord which simply noted that the average world
temperature rises should not exceed 2 degree Celsius (3.6 Fahrenheit), 81 but without any
binding commitments for the same.

Hence, the Copenhagen climate-change conference did not result in a new legal agreement to
extend complement, or replace the Kyoto Protocol, as many had hoped, it did produce the
Copenhagen Accord, a political agreement negotiated by the leaders of more than twenty-five
countries in the closing hours of the meeting, with which more than 120 countries have now
associated themselves, including all of the world‘s major economies. Inelegant and extremely
brief, the Copenhagen Accord nevertheless addresses all of the main elements under
negotiation, including mitigation, adaptation, finance, technology, forestry, and verification.
Annex I countries are required to "commit to implement" economy wide emission targets for
2020, and non-Annex I countries are required to implement mitigation actions.

79
Editorial, The End of Hope, ECONOMIC AND POLITICAL WEEKLY, Jan 2, 2010, Vol. XLV No. 1, 5.
80
Recent work suggests that global emissions should be around 44Gt2 carbon dioxide equivalents in 2020 to be
consistent with a 5050 chance of keeping temperature increase below 2°C. Current emissions are around 47Gt2.
As mentioned in Nicholas Stern, Action andAmbition for a Global Deal in Copenhagen, 6th December 2009,
available at www.unep.org/pdf/.../actionandambitionforglobaldealincopenhagen.pdf. (Last visited on March 16,
2016)
81
Editorial, The End of Hope, ECONOMIC AND POLITICAL WEEKLY, Jan 2, 2010, Vol. XLV No. 1, 5.

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C.O.P-16 Cancun Climate Summit, 2010

In 16th Conference of Parties (CoP), delegates from 193 countries agreed at Cancun
(Mexico) in December 2010 to cut carbon emissions and to help developing countries to
tackle climate change as part of an historic deal to stop global warming. They agreed on a
green climate fund to share new technology, help conserve forests and ease the stresses on the
poorest countries – the ones that emit the lowest per-capita share of greenhouse gas
emissions. It is not yet decided how the funds will be raised, although preferred options are a
new tax on aviation or shipping, or increased carbon taxes more generally. During the talks
the UK played a key role in helping nations to resolve the contentious issue of the Kyoto
Protocol. Developing nations were refusing to sign up to a deal unless the existing treaty,
signed by most developed nations except the US, was honoured.

The outcome of this Summit is a weak and ineffective agreement but at least it gives us a
small and fragile lifeline. We can say that Cancun has saved the process little bit but it did not
yet save the climate.

C.O.P.-17/C.M.P.-7 (2011): Durban Agreement, 2011

The United Nations Climate Change Conference in 2011 in Durban was a turning point in the
climate change negotiations. All governments, in Durban, clearly recognized the necessity of
a comprehensive plan that would come closer over time to delivering the ultimate objective
of the Climate Change Convention, i.e., to stabilize greenhouse gas concentrations in the
atmosphere at a level that will prevent our dangerous interference with the climate system
and at the same time will preserve the right to sustainable development.

Road Map for Implementation

The Durban Agreements looked to address these challenges in a more associated way by
embodying a road map for implementation over a longer time horizon than has commonly
been the case in the history of the Convention. On this road map, four key areas of
coordinated and complementary action and implementation, designed also to build and
preserve trust among countries were agreed, i.e.,

1. Second commitment period of the Kyoto Protocol: The continuation of the present
international legal system through a second commitment period of the Kyoto
Protocol, under which developed countries commit to cut the greenhouse gas emission

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 and which enshrines accessible accounting rules and models of international
cooperation that may inform future efforts.
2. Launch of new platform of negotiations: The initiate of a new platform of
negotiations under the Convention to deliver a new and worldwide greenhouse gas
reduction protocol, legal instrument by 2015 for the period beyond 2020.
3. Conclusion in 2012 of existing broad-based stream of negotiations: A decision to
wrap up within 2012 the work of the existing broad-based stream of negotiations that
includes all member states under the Convention.82
4. Global Review: To conduct a global Review of the emerging climate challenge based
on the best available scientific data.83
Key Durban Outcomes

The Durban Conference was very much crucial for the survival of human beings because the
commitment period of Kyoto Protocol is going to expire in this year, i.e., 2012 and world
community has not agreed upon any successor of this protocol. It is really the matter of great
concern for our survival. We cannot imagine our existence without the environment which is
at stake due to various reasons. The purpose of the Durban Climate Conference, 2011 was
inter alia to assess solutions through the negotiation among the heads of state and other
bodies. But the Conference has miserably failed to achieve its main purpose. However, there
were a few modest successes. One was an agreement to set up a ―green fund‖ to help poor
nations deal with climate change and reduce deforestation, a major source of greenhouse gas
emissions. More important, with the United States applying much of the pressure, China and
India consented to participate in any future agreement limiting emissions and play by the
same rules as everyone else. Those two nations are huge producers of greenhouse gases and,
until now, have disclaimed responsibility for reducing them. The latest figures show that
China and India each had emission increases of about 10 percent since 2009. Since 1990,
China‘s emissions have tripled; India‘s nearly so.

82
This includes work to make existing national emission reduction or emission limitation plans more transparent.
It also encompasses the launch and long-term implementation of the comprehensive global support network that
will deliver funding and technology to help developing countries build their own clean energy futures and
construct societies and economies which are resilient to climate change.
83
Durban: Towards full implementation of the UN Climate Change Conference, United Nations Framework
Convention on Climate Change, http://unfccc.int/key_steps/durban_outcomes/items/6825.php , accessed on 25th
March, 2016

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Thus, the 17th annual UN Climate Conference (COP17) which took place in Durban, South
Africa from November 28 to the early hours of Sunday December 11, makes it the longest
climate summit on record.

A year after Cancun had resuscitated the process following its near collapse in Copenhagen,
Durban‘s purpose was threefold. One, it needed to consolidate the process and advance the
developments from Cancun. Two, it had to deal with the vexed question of the Kyoto
Protocol‘s future. And three, it needed to give clarity to the direction and outcome of the
overall negotiating process. In all three respects it largely succeeded.

Unfortunately, the conference failed to directly address the large elephant in the room –
namely, the gap between country actions and the actual level of ambition required to avoid
dangerous climate change. Parties again kicked agreement on firm emission reduction targets
to the next COP.

Despite this, there is reason for optimism. The process remains alive and indeed has been
strengthened. Countries remain committed to it and the principles that it embodies (e.g.
international collaboration, rule-based environmental governance, collective responsibility
etc.). The agreement to reach a new global deal by 2015 also shows that parties recognize that
‗bottom-up‘ action alone will be insufficient to address the emissions gap and that ‗top-down‘
measures are still critical for scaling up action. Perhaps most importantly, the
operationalization of a range of new institutions and institutional processes could provide the
basis for greater bottom-up action and transparency of efforts. Crucially, this would help
build confidence and trust amongst parties. Since these are the elements so often missing
from negotiations, Durban‘s long-term legacy may well be institutional.

It goes without saying that the next four to five years will be critical in determining whether
the world moves to a low carbon development pathway or locks itself into a high carbon one.
To achieve the former and avoid the latter, the debate needs to move from one of ‗shared
pain‘ to one of ‗shared gain‘.

C.O.P.-18/C.M.P.-8 (2012) Doha Climate Gateway:

Over two weeks starting 26 November, the 18th Conference of the Parties (COP) to the UN
Framework Convention on Climate Change (UNFCCC) and the 8th Conference of the Parties
serving as the Meeting of the Parties to the Kyoto Protocol (CMP 8) were hosted by the
Government of Qatar in the Qatar National Convention Centre in Doha. The 9,000

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participants included government representatives, intergovernmental and non-governmental
organizations, academia, the private sector, indigenous peoples and the media. The
negotiations lasted an entire extra day before Parties finally adopted a package of decisions
called the Doha Climate Gateway.

Two of the most important achievements of the Doha Climate Gateway are the formal
adoption of the second commitment period to the Kyoto Protocol to cover the 8 years from 1
January 2013 to 31 December 2020, and continued momentum toward a new legally binding
agreement for 2020.

It was very much crucial for the survival of human beings because the commitment period of
Kyoto Protocol is going to expire in this year, i.e., 2012 and world community has not agreed
upon any successor of this protocol. It is really the matter of great concern for our survival.
We cannot imagine our existence without the environment which is at stake due to various
reasons. The purpose of the Durban Climate Conference, 2011 was inter alia to assess
solutions through the negotiation among the heads of state and other bodies. But the
Conference has miserably failed to achieve its main purpose. However, there were a few
modest successes. One was an agreement to set up a ―green fund‖ to help poor nations deal
with climate change and reduce deforestation, a major source of greenhouse gas emissions.
More important, with the United States applying much of the pressure, China and India
consented to participate in any future agreement limiting emissions and play by the same
rules as everyone else. Those two nations are huge producers of greenhouse gases and, until
now, have disclaimed responsibility for reducing them. The latest figures show that China
and India each had emission increases of about 10 percent since 2009. Since 1990, China‘s
emissions have tripled; India‘s nearly so.

Criticisms of Doha Climate Gateway

The Doha Climate Gateway package has been criticised on the one hand for its lack of
ambition in terms of emission cuts by developed countries, and on the other for the low
commitments of funding to assist developing countries to respond to climate change, in
particular mid-term finance. While the COP President emphasized repeatedly that no country
will be fully pleased with this package, that sentiment certainly seems more apt for
developing countries than developed.
From a process perspective, one successful outcome of Doha is that the negotiations will now
be more streamlined. Previously, issues were discussed separately under two parallel working

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groups – one on the Kyoto Protocol (for developed countries except for the US) and the other
on long-term cooperative action under the Convention (for developing countries, and all
developed countries). In Doha, both of these working groups were closed, meaning that the
working group on the Durban Platform – i.e. the working group established in Durban to
decide upon the new ―protocol, another legal instrument or an agreed outcome with legal
force‖ after the second commitment period of the Kyoto Protocol expires in 2020 – will be
the sole negotiating forum for all countries to decide upon the details of the future agreement.
The UN Secretary-General has announced his intention to convene a summit of world leaders
on climate change in 2014 to give added political momentum to this work. Before that, COP
19 will be held next year in Warsaw, Poland.

Hence, this conference was the first to attempt to be paper free (Paper smart), and all
documents, including the daily programme, were published on the web. However, because of
intermittent connectivity, delays in posting and whether or not delegates had smart devices,
together with the large number of negotiating bodies, agenda items and meeting venues, this
was problematic at times, especially for small delegations. It is hoped that the lessons learnt
from this experience can be utilised so that this works more seamlessly in future.

C.O.P.-19/C.M.P.-9 (2013):Warsaw Outcomes84:

The nineteenth Conference of Parties (COP 19) to the UN Framework Convention on

Climate Change (UNFCCC), which took place in Warsaw from 11-23 November 2013, was
seen as an ―interim‖ COP, a stepping-stone towards a new legally binding agreement in Paris
in 2015. The results were mixed: although the conference did not deliver substantive or
adequate progress on fundamental issues like finance and mitigation, it did lead to several
concrete conclusions in implementing previous agreements, and provided critical guidance to
the negotiations in the run-up to Paris.
At the UN Climate Change Conference in Warsaw, governments took further essential
decisions to stay on track towards securing a universal climate change agreement in 2015.
The objective of the 2015 agreement is twofold: First, to bind nations together into an
effective global effort to reduce emissions rapidly enough to chart humanity‘s longer-term

84
file:///C:/Users/S.K%20Singh/Downloads/Overview_of_the_COP_19_outcomes_March2014.pdf(Last
Accessed on: 18.03.2016)

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path out of the danger zone of climate change, while building adaption capacity. Second, to
stimulate faster and broader action now.

To these ends, governments agreed to communicate their respective contributions towards the
universal agreement well in advance of the meeting in Paris in 2015. Further, the required
monitoring, reporting and verification arrangements for domestic action have been finalized
for implementation, thereby providing a solid foundation for the 2015 agreement.
Importantly, further progress was also made in helping countries, especially the poorest,
adapt to the impacts of climate change and build their own sustainable, clean energy futures.
In a breakthrough outcome, the rulebook for reducing emissions from deforestation and forest
degradation was agreed, together with measures to bolsterforest preservation and a results-
based payment system to promote forest protection. The Green Climate Fund, planned to be a
major channel of financing for developing world action, will be ready for capitalization in the
second half of 201485. Additionally, governments agreed on a mechanism to address loss and
damage caused by long-term climate change impacts. The most recent climate science shows
that human-generated climate change is beyond doubt, but we have a limited time to keep
warming to a maximum of under two degrees. However, global greenhouse gas emissions
need to peak this decade, and get to zero net emissions by the second half of this century. To
achieve this, it is critical that action is taken and coordinated swiftly at all levels:
international, domestic, business and finance.

Henceforth, for this reason, COP19 in Warsaw also provided a showcase for climate action
by business, cities, regions and civil society. The solutions to climate change are already clear
and the world has the money and technology, the knowledge and models to succeed. The
results of effective climate action are also clear: immediate, shared benefits to all economies
and citizens and a sustainable future for all86.

C.O.P -20/C.M.P. 10 (2014): International Climate Negotiations, Lima:

The United Nations Climate Change Conference, COP 20 or CMP 10 was held in Lima, Peru
from December1 to 12, 2014. This was the 20th yearly session of the Conference of the
Parties (COP 20) to the 1992 United Nations Framework Convention on Climate Change
(UNFCCC) and the 10th session of the Meeting of the Parties (CMP 10) to the 1997 Kyoto
Protocol. The Conference delegates held negotiations towards a global climate agreement.

85
http://unfccc.int/key_steps/warsaw_outcomes/items/8006.php (Last Accessed on: 18.03.2016)
86
Ibid.

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While this was in the annual series, more attention is directed toward the 2015 conference in
Paris. A statement made by United Nations Secretary-General Ban Ki-moon forecast the
climate change summit to be held in September 2014, but made no organizational reference
to the 2014 conference in Lima or the Paris Conference. The meeting ended with all nations
agreeing to cut back greenhouse gas emissions. Known as Lima Accord, this treaty is not
legally binding and countries do not have to specify how much they will cut back, instead
agreeing to report their plans back by March 2015.

While for many it sounded like a successful outcome, others were disappointed, such as poor
countries struggling to rebuild from current impacts of climate change who were alarmed at
the disappearance of loss and damage commitments from the final text which has been part of
the discussion for years.

Samantha Smith, Leader of WWF‘s Global Climate and Energy Initiative, was quite scathing
of the meeting outcome saying that ―political expediency won over scientific urgency‖. She
also noted that ―Developed country governments couldn‘t even manage to explain how they
will deliver the long-promised US$100 billion per year in climate finance by 2020. In a move
that seemingly dismissed the plight of the most vulnerable countries, they completely
removed any meaningful language about ‗loss and damage‘.‖87

Therefore, the COP 20 was widely seen as a meaningless meeting which did not result in any
productive outcome. The main reason for the failure to reach any outcome was the evident
distrust between the developed and developing countries. The representatives of the
developed nations seemed much reluctant towards the idea of technology sharing and bearing
the brunt of all the emissions caps while the developing nations urged towards the fact that it
was the moral duty of the developed nations towards the environment as the ambient quality
of the atmosphere was degraded in the first place by the developing countries. Therefore, in
this meeting, the major issues were left to be discussed at Paris, in 2015 during the 21 st COP
and the 11th CMP. At Doha, the second committed period was proposed and the Kyoto
Protocol had been extended for the next few years, however, in Paris, the working period of
the Kyoto Protocol will come to an end and the world leaders will get together in Paris to
decide on a discourse for the future climate change regimen.

87
http://www.globalissues.org/article/805/cop20-lima-climate-conference#Meetingoutcome (Last Accessed on:
18.03.2016)

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2.6 Conclusion

The problems associated with tackling climate change are essentially global in both their
causes and effects, respecting no national boundaries. As such, they require a significant
element of global cooperation if they are to be tackled properly.The problems in design of
climate change regime do not lie only in the instruments of international law that have been
developed to address them but those shortcomings are more evident at national and regional
levels. Progress at the international level may nevertheless eventually achieve agreement on
how the post-Kyoto principles can be designed so that the more intensified national and
regional efforts are harmonized and become much more effective in achieving climate change
mitigation.

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 CHAPTER 3
LAW AND POLICY FOR DEALING CLIMATE CHANGE: NATIONAL
PERSPECTIVE

3.1 Climate Change before Pre-Independence Era

The history of the evolution of law to handle environment pollution and other
problems in India can be studied before pre-independence era. Human influence on the
climate system is clear, and recent anthropogenic emissions of greenhouse gases are the
highest in history. The emissions from human influences affecting climate include heat-
trapping gases such as carbon dioxide (CO2), methane, and nitrous oxide, and particles such
as black carbon (soot), which has a warming influence, and sulphates, which have an overall
cooling influence. In addition to human-induced global climate change, local climate can also
be affected by other human factors (such as crop irrigation) and natural variability.
Carbon dioxide has been building up in the atmosphere since the beginning of the industrial
era in the mid-1700s, primarily due to burning coal, oil, and gas, and secondarily due to
clearing of forests. Atmospheric levels have increased by about 40% relative to pre-industrial
levels.
Methane levels in the atmosphere have increased due to human activities including
agriculture (with livestock producing methane in their digestive tracts and rice farming
producing it via bacteria that live in the flooded fields); mining coal, extraction and transport
of natural gas, and other fossil fuel-related activities; and waste disposal including sewage
and decomposing garbage in landfills. Since pre-industrial times, methane levels have
increased by 250%.
Other heat-trapping gases produced by human activities include nitrous oxide, halocarbons,
and ozone. Nitrous oxide levels are increasing, primarily as a result of fertilizer use and fossil
fuel burning. The concentration of nitrous oxide has increased by about 20% relative to pre-
industrial times.
3.1.1 Climate Change and its approach in ancient times
From ancient times our predecessors have been preaching about the blessings of
Mother Nature and its importance to mankind and the need for preservation. India being
socialist and secular country a good environmental sense has been one of the fundamental

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features of Indian philosophy. The civilization of India has grown-up in close association
with nature. There has always been a compassionate concern for every form of life in the
Indian mind. Indian philosophy of the Vedic period recognizes five natural elements as
panchmahabhut for stavan, meaning worship. These five basic elements are water, earth, sun,
air and sky. Climate change is problem that is seen all over the world. In ancient India, rivers
came to be regarded as divine. The Rig Veda depicts the Sarasvati as a goddess. However, in
post-Vedic times, the Ganga emerges as the mother goddess, and the tradition persists to this
day. As both earth and water sustained plants and animals, they came to be considered
mothers, though there is nothing to show that plans were devised to protect either of them.
Many trees and plants, including neem, pipal, vat, shami, and tulsi are considered sacred.
That is also the case with herbs, including grass. All these are valued because of their
medicinal properties, and therefore they are preserved and worshipped. The desire to protect
large and small trees is expressed in various ancient texts, and it continues to this day. At the
conclusion of large sacrifices and even ordinary rituals, priests and the common worshippers
wish peace and prosperity (shanti) to forest trees and plants in general.
More importantly, many ancient texts condemn the slaughter of animals. Gautama Buddha
was the first person to stress the need to protect cows in a Pali canonical text called the
Suttanipata. He stressed the virtue of rearing cows because in his view cattle help to grow
plants and provide people with food, vitality, health and happiness. Hence his injunction that
people should not kill cows. In the early Christian centuries, brahmanical texts lent religious
colour to the Buddhist teaching, speaking of dire consequences in the next world for those
who killed cows. Later, even the elephant came to be worshipped. However, human society
cannot advance by halting man‘s struggle against nature. In ancient times, this struggle was
principally directed against plants and animals.
Though the Harappan culture is found in an arid, semi-desert zone, this is attributed to good
rainfall. Scientists speak of adequate rainfall in the Harappan area in the third millennium
BC. Once the rainfall reverted to its usual level, this adversely affected the Harappan
settlements. Plant and animal remains from Inamgaon in Maharashtra suggest the onset of an
extremely arid phase around 1000 BC that forced the farmers to desert their homes and take
to pastoral nomadism.
Rainfall certainly helped human society in pursuing agriculture and founding settlements, but
heavy rains during the tropical monsoon deterred people from regular work. Gautama
Buddha used to suspend his mission of teaching Buddhism annually for four months during
the rainy season and stay at such places as Rajagriha, Vaishali, and Shravasti for varsha-vasa.

63 | P a g e
He is said to have spent twenty-six rainy seasons in Shravasti. This idea still influences some
people, and no marriages are performed in the rainy season, but today, unless the institutions
are closed or their workers granted leave, people have to continue work despite heavy
showers.
Some other natural hazards are far more catastrophic than heavy rainfall. They include
floods, hurricanes, and earthquakes. We hear of a famine leading to the migration of some
Jains, in pre-Mauryan times from Magadha to south India.

3.1.2 Climate Change and its approach in medieval times

A significant contribution of Mogul Emperors from the point of view of
environmental conservation was the most important feature in this era. Medieval India was
marked by the emergence of the Islamic rule of the Mughals. Known for their lavish
architectural heritage, the Mughal took pride in building great gardens, orchards, and parks
throughout the length and breadth of the country which were used as resorts or summer
retreat houses. Islam sought harmony between man and the nature. During this period people
lived in such a way as not to destabilise the eco-system. The Mughals never codified any law
regarding the environment; they did make laws regarding hunting. The lack of laws affected
forest conservation though the Mughals were known to be deep lovers of the environment.88

3.1.3 Climate Change and its approach during the British Rule in India
The British colonised India and for the next three hundred years and plundered the
naturalresources in the country with profit motive being the mechanism behind the
exploitation. Though environmental laws were passed, they were myopic with limited
territorial reach. These laws did not have any teeth because the law which existed to
prosecute the exploiters was made by the exploiters themselves. In essence, the British were
the only entity which invested in the exploiting the natural resources and the laws were made
by them, thus environmental protection took a backseat. Environmental laws mostly
regulated forest, water pollution and wildlife issues.89
The greatest exploitation of any natural resource in India was the forests. Due to the
geographical diversity in India, forests provided many different types of timber. The British
slowly extended their domination over Indian natural resources in 1805 when they formed a

88
An Appraisal of Environmental Law: Birth of The Right to Environment in India by Sangeetha Mugunthan-
http://www.legalserviceindia.com/articles/evn.htm
89
Ibid.

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commission to enquire into the availability of teak in the forests of south India. The
Conservator of Forest was appointed but the conserver in turn plundered the forest and the
post was abolished in 1823.
Removal of forest added land to the British territory and thus they were systematically
decimated. This land was to be used as agricultural land which in turn led to huge revenues
for the colonial power. Forests were also cleared to fuel the demand of timber for the British
Navy and the expansion of the railway network in the country.
In 1855 Lord Dalhousie, the then Governor General of India, started the Indian Forest
Department which led to the annexation of large tracts of land under the pretext of
conservation of forests. These forests became protected and were staffed by professionals.
The Indian Forest Department did not have intentions to protect the forests or give the royals
a place to hunt, but it was established strictly for income generation from selective
exploitation of Indian forests and increasing the clout of the imperial power with the
symbolic alliance of environmental protection under the increasingly powerful state
administration.

3.1.4 Climate Change and its approach during post-Independence Period

With time and with the development of science accompanied by the ever increasing
population, the pollution caused by mankind is leading to irreversible change in climate. With
the world wide race for economic development some where the focus of man‘s concern has
shifted from environment to Energy. It was almost impossible to found large agricultural
settlements in the Gangetic plains without deforestation and cultivation of the hard alluvial
soil. This could be effectively done only with the use of the iron axe and iron ploughshare
from about 500 BC. For this, iron mines had to be discovered and the technology for the
extraction and the manufacture of iron artefacts had to be developed in various parts of the
country.
The hard alluvial soil of the mid-Gangetic plains, the red soil of the Vindhyan zone, and the
black cotton soil of the Deccan and western India needed iron shares for effective ploughing.
Today, safeguarding the natural environment is emphasized. However, despite deforestation,
the doab forests continued until the sixteenth to seventeenth centuries when wild animals
were hunted in this area. This ecological change was completed only in modern times. In any
case, human society progressed at the cost of plants and animals.
Once human beings started growing plants and rearing animals, they multiplied both of them.
The location and size of settlements were conditioned by environmental factors, with soil and

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climatic conditions which determine the selection of sites. Favourable rainy zones with river,
lakes, forests, hills, minerals, and fertile soils attracted many settlers. On the other hand, arid,
desert areas without water resources discouraged people from settling there.
The Gangetic plains formed an attractive environmental zone. Numerous settlements were
established there in the post-500 BC period and quite a number in the earlier period. Many
towns were established in the doab and the mid-Gangetic plains. Rivers served as transport
routes like the roads and railways of today. When they flooded, they washed away forested
banks and prevented the forests from re-growing there. Moreover, they irrigated the land thus
made available to farmers.
Changes in river courses affected the fortunes of settlements around 2500 BC. The Sarasvati,
coterminous with the Ghagar-Hakara, was joined by the Yamuna and the Sutlej, and the three
together contributed to the growth of the Harappan culture. However, in 1700 the Sutlej, and
possibly the Yamuna, moved eastward, adversely affecting post-urban Harappan settlements.
The river junctions served as sites for the early settlements. The junctions effectively cleared
forests and helped human habitation. This can be said of Pataliputra, the first great city of
India. The deer were also hunted in the nearby forest. Although rivers were preferred sites for
settlement, people also settled near lakes and tanks. We find such sites in eastern UP and
northern Bihar in the second millennium BC. The practice of settling near water reservoirs
continues to this day.
There is no comprehensive law with regard to climate change in India. Although the existing
of environmental laws in India also influences in reducing the climate change emissions to a
certain extend. Following the constitutional trend and in pursuance of various declarations,
conventions and instruments adopted by the international community, India has been
proactive in the formation of policy into bindings rules of conduct as well as constitution of
various authorities to execute and achieve the goal of reduction of GHGs emission and
protection of endangered species in the country. A survey of the legislations enacted by the
Parliament with respect to environment points out its concern and outlook to climate change
and protection of the biodiversity. Thus, there have also been many policy responses under
the various environmental legislations so as to tackle the climate change.

The present environmental laws in India are; The Wildlife (Protection) Act, 1972; The Air
(Prevention and Control of Pollution) Act, 1981; The Environment (Protection) Act, 1986;
The Forest (Conservation) Act, 1980; The Indian Forests Act, 1927; The Biological Diversity

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Act, 2002; and legislation related to energy, which consist of the Energy Conservation Act,
2001. The following outline of such legislations shall substantiate the point.

3.2 India‟s Statutes & Acts:

There are various policies legislation and acts which indirectly talks about climate change in
India:

The Wildlife (Protection) Act, 1972:

The Act is first of its kind. Providing for the protection to wild animals, birds and plants
introduced and enforced at the time when there was no discussion on the climate change and
conservation of biodiversity drawing worldwide focus until 1992.90Hunting of wild animals
specified in schedules is prohibited91unless the animal become dangerous to human life or is
so disabled or diseased as to be beyond recovery or is required for education or research
purpose. Further, the Act prohibits picking, uprooting, damaging, acquiring or collecting any
specified plant92 from any forest land unless permitted by the concerned authority for certain
definite purposes. The Centre and the State government may, by notification, declare any area
as sanctuary93 or park94 if the area is of adequate ecological, faunal, floral, geo-morphological
or of natural significance, for the purpose of protecting, propagating or developing wildlife or
environment. The Act lays down for in-situ conversation as well as ex-situ conservation.

The Air (Prevention and Control of Pollution) Act, 1981:

The above Act is important for addressing climate change, for there is a direct link between
air pollution and the climate change. It is in fact due to theemission of six greenhouses gases
namely, nitrous oxides, carbon dioxide, CFCs, PFCs, methane and ground level ozone, that
the infrared radiation emitted by the earth's surface is trapped thereby raising the air
temperature, and leadingto global warming, hence climate change. 95The only way to prevent
climate change is to reduce emissions dramatically. The Act provides for prevention, control
and abatement of air pollution with a broader approach with a preservation of natural

90
Mehdi, Ali, ―Climate Change and biodiversity: India‘s Perspective and Legal Framework‖, Journal of Indian
Law Institute, ISSN 0019-5731, July-December, 2010.
91
Section 9 of the Wildlife (Protection) Act, 1972.
92
S.17 A of the Act
93
S. 18 of the Act
94
S. 35 of the Act
95
Ministry of Environment & Forests, Ministry of Power, Bureau of Energy Efficiency, Government of India,
India: Addressing Energy Security and Climate Change, available at
envfor.nic.in/divisions/ccd/Addressing_CC_091007.pdf (Last visited on April 2, 2016).

67 | P a g e
resources of the earth including the preservation of quality of air and establishment of air
pollution control boards to carry out the objects. It says that ―emission‖ means any solid or
liquid or gaseous substance coming out of any chimney, duct or flue or any other outlet. The
Act also lays down the institutional and regulatory framework which would restrict the
emission of gases from automobiles and that of industries. 96 This restriction of emissions
would have impact on the greenhouse gas emissions as transportation and industrial
emissions are two important sectors that have substantial contribution towards the greenhouse
gases. The boards are authorised to lay down standards for emission of air pollutants into the
atmosphere from industrial plants, automobiles or from any other source not being ship or an
aircraft. The boards are empowered to issue directions to the persons violating the law and
also lodge complaints against such persons in a court of law.

The Motor Vehicles Act, 1988:

It also comes into play in reduction of emissions from automobiles as central government is
provided with the power to makes rules for regulating emissions. Pursuant to this power the
emission norms such as Euro-I, Euro-II have been introduced.97 It says ‗emission‘ means any
solid or liquid or gaseous substance coming out of any chimney, duct or flue or any other
outlet. The boards are authorized to lay down standards for emission of air pollution into the
atmosphere from industrial plants, automobiles or from any other source not being ship or an
aircraft.

The Environment Protection Act, 1986:

After the special legislations, i.e. aforesaid the Air Act, 1981 and the Water Act, 1974 dealing
with the respective pollution problems, it was found that there were still areas left out of their
contours and the environment could not be protected due to activities not directly connected
to water and air pollution, there were no provisions demanding some affirmative actions to
improve the quality of the environment. The Act of 1986 is a comprehensive legislation
empowering the central government to take measures to protect and improve the quality of
environment by constituting authority/authorities98 that was not possible under the previous
legislations and this feature distinguishes it from other laws. Further, the Act empowers99the
central government to make rules for carrying out the purposes of the Act. By invoking these

96
Section 20 and Section 22 of Air (Prevention and Control of Pollution) Act, 1981
97
Section 110 of Motor Vehicles Act,1988.
98
S. 3 (3) of The Environment Protection Act, 1986
99
S. 25 of The Environment Protection Act, 1986

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provisions, the central government has constituted several authorities100with different term of
references to lessen the pollution load and also suggest viable options to avoid the impact of
restrictions imposed to protect and improve the environment. One of such authorities is the
central empowered committee constituted in 2002 to recommend the clearance of big
projectsinvolving exploitation of natural resources like mining and forests. Under the rule
makingpower, the central government, has made rules and regulations including concern of
biological diversity,101giving the Act a status of umbrella legislation. The Act, therefore, is
highly significant to prevent and control the climate change.

The Forest (Conservation) Act, 1980:

Forests have been identified richest source, amongst the natural resources, to be exploited for
commercial gain as well as for the infrastructure development by the colonial rulers. In this
process, the vision for sustenance of natural environment did not find any place resulting into
loss at the speed higher than the capacity to regenerate. The British in order to monopolise
the control over forest, introduced the Forest Act, 1865, having right of ownership denying
others and the power to protect the same. Such protectionist approach failed because the local
people lost interest in taking care of the forests as they were not the beneficiaries. Post-
colonial government continued the practice102 until it was realised to have a law in the form
of Forest (Conservation) Act in 1980 providing for the conservation of forests. The
underlining object of the law is to impose restrictions on use of forest land for non-forest
purpose and to protect and conserve the green cover essential for the trapping of carbon
dioxide.

The Biological Diversity Act, 2002:

India is one of the few countries103to have enacted such a legislation. The Union Ministry of
Environment and Forests (MoEF), the nodal agency for implementing provisions of CBD,
has developed a strategy for biodiversity conservation at macro-level in 1999 and enacted the
Biological Diversity Act in 2002. The Act provides for conservation of biodiversity within
species, between species, ecosystem and the traditional knowledge connected therewith. This

100
The Environment Pollution (Prevention and Control) Authority, Loss of Ecology (Prevention and Payment of
Compensation) Authority, Environment Impact Assessment Authority, etc. 2010] Climate Change and
Biodiversity: India’s Perspective and Legal Framework 359
101
The Environment Impact Assessment Regulation, 2006, makes mandatory for the proponent of the project,
under para. 6 read with appendix II, to point out categorically about threat to biodiversity and energy
conservation.
102
National Forest Policy, 1952, the first forest policy in independent India.
103
National Biodiversity Action Plan, MoEF, 2008, p. 5.

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Act primarily aims at giving effect to the provisions of CBD, i.e. conservation of biological
diversity, sustainable use of its components and fair and equitable sharing of the benefits
arising out of utilization of genetic resources, and regulates access to biological resources and
associated traditional knowledge. Under the law, three-tier regulatory authorities at the level
of centre, state and down to the local bodies are constituted for effective enforcement.
Another very significant feature of the Act is laying down the duty 104 of the central
government to develop national strategies, plans, programmes for the conservation,
promotion and sustainable use of biological diversity including measures for identification
and monitoring of areas rich in biological resources. It speaks of promotion of in situ and ex
situ conservation of biological resources, incentives for research, training and public
education to increase awareness with respect to biodiversity. Under Section 37, the state
government may, in consultation with the local bodies, notify areas of biodiversity
importance as biodiversity heritage sites. The Act also empowers the central government, in
consultation with the concerned state government, to notify any species which is on the verge
of extinction or likely to become extinct in the near future as a threatened species and prohibit
or regulate collection thereof for any purpose and take appropriate steps to rehabilitate and
preserve those species.105The biodiversity legislation has multifaceted scope and utility from
regulating the activities in biodiversity rich area to casting duties on the government to adopt
measures to conserve the diversity in the living organisms.

Energy Conservation Act, (2001):

The Energy Conservation Act of 2001, to provide for efficient use of energy and its
conservation and for matters connected therewith or incidental thereto.

Energy Conservation (Amendment) Act, 2010, to amend the Energy Conservation Act of
2001 Electricity Act 2003, Amended 2007, to better coordinate development of the power
sector by providing a comprehensive framework for power development.

The concept of energy conservation evolved in India in early 70s as a reaction to ―Gulf oil
shock‖, followed by an awareness programme initiated by Petroleum Conservation Research
Association (PCRA). Later Energy Management Centre (EMC), National Productivity
Council (NPC), National Council for Cement & Building Materials (NCB), The Energy
Research Institute (TERI) and Confederation of Indian Industry (CII) had also joined the

104
S. 36 of The Biological Diversity Act, 2002
105
S.38 of The Biological Diversity Act, 2002

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campaign for promoting energy efficiency but did not result in efficiency. Therefore, a need
was felt for a legal framework and the Energy Conservation Act - 2001 was enacted for
encouraging energy efficiency and discouraging wasteful use of energy. It established Bureau
of Energy Efficiency (BEE) aimed at reducing energy intensity. It conferred powers upon the
government of India to set energy consumption standards for equipment‘s and appliances,
specify energy conservation building codes for commercial buildings and set energy
consumption norms and standards for consumers. It also established a compliance
mechanismthrough energy audits to be conducted by accredited auditors.

National Action Plan on Climate Change (NAPCC), 2008

NAPCC was a turning point in the climate change regime of India which was released under
the leadership of Prime Minister Manmohan Singh in 2008.The National Action Plan on
Climate Change, 2008, prepared in pursuance of article 6(a) of the CBD, as well as section
36(1) and (3) of the Biological Diversity Act, 2002, is a relevant development in this regard
wherein India has adopted, inter alia, the principle of deploying appropriate technologies for
both adaptation and mitigation of greenhouse gases e-missions extensively as the population
is heavily dependent on natural resources. The national action plan for climate change
responds to the decision of the Prime Minister‘s council on climate change in July, 2007. It
identifies measures that promote the development objectives, while also yielding co-benefits
for addressing climate change effectively. It lists specific opportunities to simultaneously
advance India‘s development and climate related objectives of both adaptation as well as
green-house gas (GHG) mitigation.Therefore, eight point national missions have been set in
the name of action plan, representing multi-pronged and integrated strategies for achieving
key goals in the context of climate change till 2017.106

It lays down various steps for climate change adaptation, mitigation and research and
development.107The eight missions were namely National Solar Mission, National Mission on
Sustainable Habitat, National Mission for Sustaining the Himalayan Ecosystem, National
Water Mission, the National Mission on Enhanced Energy Efficiency, National Mission for a
Green India, National Mission for Sustainable Agriculture and National Mission on Strategic
Knowledge for Climate Change. These missions planned and promoted either on existing

106
National Solar Mission, National Mission for Enhanced Energy Efficiency, National Mission on Sustainable
Habitat, National Water Mission, National Mission for Sustaining the Himalayan Ecosystem, National Mission
for Green India, National Mission for Sustainable Agriculture and National Mission for Strategic Knowledge
for Climate Change.
107
Prime Minister http://pmindia.gov.in/climate_change_english.pdf

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legislation or policies, like the National Mission on Sustainable Habitat or the Green India
Mission, or conceptualized and created afresh like Solar Mission, which identified a
completely new and unique method to be adopted by the government to access a previously
untapped energy source.

State Action Plan on Climate Change (SAPCC)

The State Action Plan on Climate Change (SAPCC) in India is the most notable policy
reflecting the nature of decentralized climate change mitigation framework of the country. In
2009, the Government of India notified state governments to come up with their own climate
change mitigation and adaptation policies, plans and actions aligned with their respective
state priorities as well as the NAPCC goals. The states are required to seek prior approval
from the MoEFCC before implementation of activities listed therein. As of October 2014, 30
states (including Union Territories) have completed the draft plan; the ministry has endorsed
19 plans and the Expert Committee on Climate Change has considered three. For
implementation of SAPCCs, a combined budgetary requirement of INR 11.32 lakh crore
(USD 188.66 billion) has been received by the ministry (MoEF, 2014). How much of this,
will actually be disbursed from the central budgetary expenditures is not known? However, in
alignment with the national priorities, states receive all necessary help from the center needed
in implementation of these plans.

Within the decentralized framework of mitigation strategies, while the central government
formulates policy approaches at the national level, the actions are realized through the state
and local authorities in their respective jurisdictions. India assumes this approach as a critical
intervention in translating national level policies and objectives into local contexts for
effective delivery. This is because disaggregated climate data, their vulnerabilities and
opportunities are well understood at state and local level than at the country level. Through
states, national policies reach to a large number of sectors and actors effectively in a manner
while addresses state priorities at the same time. In addition, measurement and monitoring at
the state level can be taken up more efficiently. For this reason, many of the national policies
in India are implemented through the states. Some other standalone programmes are the
implementation of renewable purchase obligations, implementation of feed-in-tariffs, setting
up of state energy conservation funds, implementation of small and hybrid hydroelectric
systems and energy conservation building codes, are some of the fine examples of policies

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that are implemented through the states. Almost all of these now come together within the
larger umbrella of the state action plans.

National Clean Energy Fund (NCEF), 2010

The Government of India created the National Clean Energy Fund (NCEF) in 2010 for the
purpose of financing and promoting clean energy initiatives and funding research in the area
of clean energy in the country. The corpus of the fund is built by levying a cess of INR 50
(subsequently increased to INR 100 in 2014) per tonne of coal produced domestically or
imported.

In 2014, the Government of India expanded the scope of the NCEF to include financing and
promoting clean environment initiatives and funding research in the area of clean
environment. To finance these additional initiatives, the Clean Energy Cess has been
increased from INR 50 per tonne to INR 100 per tonne of coal.

National Adaptation Fund (NAF), 2014

On July 10, 2014 the Honourable Finance Minister of India announced an allocation of INR
100 crore towards a newly established National Adaptation Fund. This fund will assist
national and state level activities to meet the cost of adaptation measures in areas that are
particularly vulnerable to the adverse effects of climate change.

Establishment of National Green Tribunal (NGT)

Thus the National Green Tribunal Act, 2010 was passed by our Parliament and the same has
been notified by the Government of India on 18th October 2010. The National Green
Tribunal Act, 2010 provides that the central government shall by notification establish a
Tribunal to be known as the National Green Tribunal. In exercise of the powers conferred by
section 3 of the Act, the central government established ―The National Green Tribunal‖ to
exercise the jurisdiction, powers and authority conferred on it by or under the Act. Thus the
National Green Tribunal came into existence and previous Acts providing tribunal and
appellate authority were repealed. The first information about the abolishment of the NEAA
was given by an innocuous little notice outside the authority‘s office on 18th October 2010.

The National Green Tribunal has been enacted to fulfill the long felt need of alternative
forum to deliver speedy and inexpensive justice. The philosophy of public interest litigation
is echoed in this legislation because now a class of victims can knock the doors of this forum.

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The NGT Act provides one more innovation by providing strict penalty for non-observation
of the orders of the tribunal. The tribunal is playing a crucial and vital role in combating the
climate change.

National Mission on Enhanced Energy Efficiency (NMEEE), 2010

India‘s emissions trading progress originates form the NAPCC energy efficiency mission.
The National Action plan on Climate Change mandates, a market based mechanism to
enhance cost effectiveness of improvements in energy efficiency, in energy-intensive large
industries and facilities, through certification of energy savings that could be traded. (Perform
Achieve and Trade). It also provides for accelerating the shift to energy efficient appliances
in designated sectors through innovative measures to make the products more affordable,
(Market transformation for Energy Efficiency); creation of mechanisms that would help
finance demand side management programmes in all sectors by capturing future energy
savings. (Energy Efficiency Financing Platform) and developing fiscal instruments to
promote energy efficiency (Framework for Energy Efficient Economic Development). The
NMEEE functions under the Bureau of Energy Efficiency (BEE)- a statutory body under the
Ministry of Power, Government of India. India‘s ‗Perform Achieve and Trade‘(PAT)
initiative, which resembles an ETS, is currently undergoing its first phase (2012-2015), which
is considered as a test phase108.

The perform, achieve and trade (PAT) mechanism, which will cover facilities that account for
more than 50 per cent of the fossil fuel used in India, and help reduce carbon dioxide
emissions by 25 million tons per year by 2014-15.109There is also an announcement of levy –
a clean energy cess – on coal, at the rate of Rs. 50 per ton,110 applicable to both domestically
produced and imported coal and the money will go into a National Clean Energy Fund. Under
the Green India Mission, afforestation/eco-restoration is to be taken to a total area spread
over 20 million ha in the next 10 years. This would increase the above and below ground
biomass in 10 million ha of forests/ecosystems, resulting in increased carbon sequestration of
43 million tons‘ carbon dioxide annually.111

108
Climate and Development Knowledge Network, ―Creating Market Support for energy Efficiency: India‘s
Perform, Achieve and Trade Scheme.‖ (January 2013)
109
India: Taking on Climate Change Post-Copenhagen Domestic Actions, MoEF, p. 2 (2010).
110
Ibid.
111
Ibid.

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Twelfth Five-Year Plan and Climate Change Action Programme:

The ‗Climate Change Action Programme (CCAP)‘-a new thematic umbrella Scheme has
been approved by the Planning Commission (now Niti Aayog) for implementation during the
12th Five Year Plan112. The scheme aims at advancing scientific research information and
assessment of the phenomenon of climate change, building an institutional and analytical
capacity for research and studies in the area of climate change, and supporting domestic
actions to address climate change through specific programmes and actions at the national
and state level.

The scheme comprises of eight activities, of which, three relate to scientific studies on
climate change, two to institutional and capacity building and three relate to domestic and
international actions on climate change.113 Various other scientific initiatives are planned by
the Ministry as part of the Climate Change Action Programme.114

Ozone Depleting Substance Rule, 2000

Ozone Depleting Substances (Regulating) Rules, 2000, was enacted by the Central
Government in exercise of powers conferred by sections 6, 8 and 25 of the EPA. The Act
prohibits any person from production and consumption of ozone depleting substances, 115from
importing or exporting to any country not specified in Schedule VI, 116 and if specified in
Schedule VI, then a license has to be issued by the authority, but the grant of license shall not
result in consumption which exceeds the specified limit.117It also regulates the sale, stock or
exhibit for sale or distribute118any ozone depleting substance unless he is registered with the
authority specified in column (4) of that Schedule, and also the purchase 119of ozone depleting
substances. The Act also deals with Regulation on the use, manufacture, import, export of

112
GOI, Ministry of Environment and Forest, National Environment Policy, 351, (2012-13)
113
The Task Group will draw on multiple sources, including input and submissions from scientists,
governments, observer organizations and other relevant stakeholders. See, Future work of IPCC,
Intergovernmental Panel on Climate Change, http://www.ipcc.ch/apps/future/ at p.351
114
GOI, Ministry of Environment and Forest, National Environment Policy, 384, (2013-14)
115
Dr. A.N. Sarkar, Global Climatechange and Sustainable Energy Development 50 (2009).
116
E. Somanathan & Rohini Somanathan, Climate Change: Challenges Facing the Poor, ECONOMIC AND
POLITICAL WEEKLY, August 1 2009, Vol XLIV No. 31, 51.
117
Devesh Kapur, Radhika Kholsa & Pratap Bhanu Mehta, Climate Change: India's Options, ECONOMIC
AND POLITICAL WEEKLY, August 1 2009, Vol XLIV No. 31, 35.
118
PRODIPTO GHOSH, Is India a Solution to the Problem or a Problem to the Solution? 19 Climate change:
Perspectives from India, (Sunita Narain et al., ed., 2009).
119
The Bureau of Energy Efficiency (BEE) (It has been working with key industries which include cement,
aluminium, paper and pulp, to establish voluntary energy efficient practices. It is also devising standards for
energy labelling, building codes, certification programs, etc. See generally, Bureau of Energy Efficiency,
Engagement of Retainer Consultant for National Energy Conservation Awards 2008 programme of BEE).

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ozone depleting substance and strictly prohibits the production or consumption, export or
import, sale or purchase and use of ozone depleting substance in India.

3.3 Policies Related to Climate Change

There are different policies which talks about climate change:

a. National Environment Policy, 2006

The National environment policy is one of the first initiatives that establishes the broad
national framework for protecting the environment. It outlines the essential elements of
India‘s response to climate change which inter-alia, include adherence to principle of
―common but differentiate responsibility and respective capabilities‖ of different countries,
identification of key vulnerabilities of India to climate change, in particular impacts to water
resources, forests, coastal areas, agriculture and health, assessment of the need for adaption to
Climate change and encouragement to the Indian industry to participate in the Clean
Development Mechanisms.120

It is recognized that the conservation of environment is not the sole responsibility of the state.
It is the responsibility of every citizen and thus a character of partnership is to be realized
through the environment management of the country. The principles followed in the policy
are:121

a) Human Beings are at the Centre of Sustainable Development.

b) In order to achieve sustainable development, right to development must be read with
duty to conserve environmental, so as to meet the needs of present and future
generations.
c) Where there are probable threats of serious damage to prime environmental resources,
lack of full scientific certainty shall not be used as a reason for postponing cost-effective
measures to stop environmental degradation.
d) In different public actions for environmental conservation, economic efficiency would
be sought to be realized.

120
GOI, Ministry of Environment and Forest, National Environment Policy, 42-43, (2006)
121
National Environment Policy 2006, 2011, India‘s Daily E-Magazine of GK and Current Affairs,
http://www.gk
today.in/national-environment-policy-2006/, accessed on 17th January, 2016

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 b. Integrated Energy Policy (2006)122:

The need for Integrated Energy Policy was felt due to the responsibility for different energy
sources being distributed over a number of different Ministries, e.g. Petroleum, Coal, Power,
Water Resources (in the case of hydroelectricity), Atomic Energy and New & Renewable
Energy. Several other Ministries are also involved in determining policies which affect
energy demand (Transport, Urban Development, Industry, Steel, etc.) and the Finance
Ministry determines tax rates for different fuels. Hence the Planning Commission came up
with an integrated energy policy. To have common and consistent policies for different
energy sources and to be consistent with each other and the overall framework for energy to
be consistent with achieving the objective of inclusive growth the policy was a must. In many
areas policies relevant for energy are in the hands of State government e.g. urban transport,
city planning, building codes, etc. and these policies also need to be made consistent with the
overall energy policy. It was laid down in 2006 for the first time and subsequently it was
revamped in 2013. In context of Climate change concern it recommends to include power
structure reforms, ramping up mass transit, increasing nuclear power and renewable and
highlighting energy efficiency in all sectors.

c. National Biofuel Policy, 2015:

The Policy aims at mainstreaming of biofuels and, therefore, envisions a central role for it in
the energy and transportation sectors of the country in coming decades. The Policy will bring
about accelerated development and promotion of the cultivation, production and use of
biofuels to increasingly substitute petrol and diesel for transport and be used in stationary and
other applications, while contributing to energy security, climate change mitigation, apart
from creating new employment opportunities and leading to environmentally sustainable
development123.

The Goal of the Policy is to ensure that a minimum level of biofuels become readily available
in the market to meet the demand at any given time. An indicative target of 20% blending of
biofuels, both for bio-diesel and bio-ethanol, by 2017 is proposed. Blending levels prescribed
in regard to bio-diesel are intended to be recommendatory in the near term. The blending
level of bio-ethanol has already been made mandatory, effective from October, 2008, and will
continue to be mandatory leading upto the indicative target.It objectives focus on economic
growth, equity and human well-being. It aims at mainstreaming of biofuels to substitute
122
Planning Commission http://planningcommission.nic.in/sectors/index.php?sectors=energy
123
http://mnre.gov.in/file-manager/UserFiles/biofuel_policy.pdf last accessed on 10/4/2016

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petrol and diesel for transport contributing to energy security, climate change mitigation
leading to sustainable environmental development.124

3.4 Conclusion

Irrespective of what happens at international negotiations, India should address the growing
challenges arising out of a changing climate, within the domestic sphere. There is an urgent
need to enact specific laws which is aimed at mitigating Climate change. India should enact
laws like those of 'Climate Change and Sustainable Energy Act, 2006' and the 'Climate
Change Act 2008' which has been enacted in the United Kingdom, to create a statutory
framework to reduce GHGs and other emissions. The State governments should also enact
such legislations to minimize emissions and set out emission reduction goal. It should also set
a long-term target to reduce emissions of greenhouse gases, and the long-term target should
be further be supported by an interim target and a framework of annual targets intended to
drive the policies necessary for achieving the long-term target.

124
National Policy on Biofuels, Adopted by Government of India, Ministry of New and Renewable Energy,
Adopted on 24 December 2009, Available at, http://mnre.gov.in/file-manager/UserFiles/biofuel_policy.pdf, last
access on 6/4/16.

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 CHAPTER 4

RECENT DEVELOPMENTS IN CLIMATE CHANGE

The United Nations working with the French government towards securing a legally binding
global climate agreement to curb carbon emissions, in Paris, at the UNFCCC (COP 21)
climate change conference in December 2015. Before placing light on the agreement the
history of previous negotiations have been summed up which resulted to this deal at
international level among various countries.

4.1 History of Climate Negotiations

Prior to UNFCCC, the effects of greenhouse gases (GHGs) were known to man since the 19th
century, man-made climate change was recognised as a problem only in the second half of
the 20th century. And even though climate change was highlighted by scientists as early as
the 1950s, only in the 1990s did it begin to garner serious attention from governments across
the world as a potential threat to the global economy. Though the Vienna Convention for the
protection of the Ozone Layer in 1985 and the Montreal Protocol to the Vienna convention in
1987 were not intended for reduction of GHGs, they have been more successful in the
reduction of GHGs than other climate change related instruments.

The first international conference relating to the subject of climate change, called the World
Conference on the Changing Atmosphere, was held in June 1988 in Toronto, Canada. Many
leading scientists took part in this UNEP supported conference along with some national
leaders such as Gro Harlem Brundtland, the then prime minister of Norway. It was concluded
that "humanity is conducting an unintended, uncontrolled, globally pervasive experiment
whose ultimate consequences could be second only to a global nuclear war." The conference
recommended reducing carbon dioxide emissions 20% by 2005. Around the end of the same
year, an international scientific body was created by the World Meteorological Organisation
(WMO) and United Nations Environment Programme (UNEP). This body was called the
Intergovernmental Panel on Climate Change (IPCC). The initial task for the IPCC as outlined
in UN General Assembly Resolution 43/53 of December 1988 was to prepare a
comprehensive review and recommendations with respect to the state of knowledge of the
science of climate change; the social and economic impact of climate change, and possible
response strategies and elements for inclusion in a possible future international convention on

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climate. 125 IPCC submitted its first assessment report in 1990 stating that the increasing
accumulation of human made greenhouse gases in the atmosphere would "enhance the
greenhouse effect, resulting on average in an additional warming of the Earth's surface"
unless measures are adopted to limit the emissions of these gases.

Rio Conference and UNFCCC

The United Nations Conference on Environment and Development, better known as the Earth
Summit, was held in Rio de Jeneiro, Brazil in June 1992. One of the major outcomes of the
Conference was the development of the groundwork for the U.N. Framework Convention on
Climate Change (UNFCCC). 126 The UNFCCC was the first binding instrument relating to
climate change. Its key objective is "stabilization of greenhouse gas concentrations in the
atmosphere at a level that would prevent dangerous anthropogenic interference with the
climate system". At the time of adoption, there were 154 signatories who signed the
instruments. Developed countries agreed to return their emissions to 1990 levels. It was
ratified in 1994, and it was decided that the framework would be followed by sessions of the
Conference of the Parties (COP) and its subsidiary bodies to negotiate and agree upon further
action. Currently, it enjoys almost universal ratification with 197 parties.

Conference of Parties to UNFCCC and The Kyoto Protocol

The parties to UNFCCC have met annually in COPs since 1995 to assess the progress made
in dealing with the climate change problem. The first COP was at Berlin, Germany and it was
acknowledged that the UNFCCC is inadequate without country-specific commitments and
agrees to negotiate emission reduction targets for industrialized countries. At the second
conference of parties in Geneva, the U.S. agrees to legally binding targets and timetables to
reduce emissions, but also proposes an international emissions trading scheme. More than
100 other countries also agree to develop targets.

The third Conference of parties was convened in December 1997 at Kyoto, Japan, where the
Kyoto protocol was agreed upon. More than 150 countries signed the Kyoto Protocol. The
protocol identified 38 developed countries as Annex 1 countries and bound them to reduce
GHG emissions by an average 5.2% below 1990 levels for the period of 2008 to 2012. This

125
UN General Assembly Resolution 43/53 of 6 December 1988, available at
http://www.un.org/documents/ga/res/43/a43r053.htm (visited on 24th January 2016)
126
The United Nations Framework Convention on Climate Change, available at
https://unfccc.int/files/essential_background/background_publications_htmlpdf/application/pdf/conveng.pdf
(accessed on 24th January 2016)

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period was called the first commitment period. To come into effect and become a law, the
protocol was needed to be ratified by at least 55 countries and also needed to cover at least
55% of the annex 1 emissions. The agreement included "flexibility" mechanisms that allowed
industrialized nations to get credit for actions to reduce greenhouse gas emissions in other
countries. The non-annex 1 countries included the developing and under developed countries.
Because India and China being emerging economies did not have any obligation to reduce
emissions under the protocol, the United States Senate refused to ratify the protocol. Since
US was the largest GHG emitter at that time, its withdrawal resulted in weakening of the
Protocol. Some other developed countries like Australia followed the US example and
refused to ratify the protocol. Without proper ratification, the coming into force of the
protocol was delayed and it finally came into effect almost 8 years later in 2005. Despite of
the ambitious objectives of the protocol, it is considered as a failure because on one hand it
lacked participation from US and Australia, while on the other hand it put almost no limits on
the ability of developing countries to emit CO2. This meant that, even as countries in Europe
and Japan slowed down their emissions, they were more than made up for by the boom in
emissions from the global South, especially the rising powerhouse China, who in 2007
overtook the United States to become the world biggest carbon emitter. Global carbon
emissions continued to rise throughout the early implementation of Kyoto.

Failure at Copenhagen

The thirteen COP was hosted at Bali in 2007, where the parties agree to a road map that will
steer governments through a round of talks aimed at ensuring that a new agreement will be
concluded during the Copenhagen summit at the end of 2009. The Bali Road Map was an
action plan that set the world on the course to a new agreement that would take over from
Kyoto. In 2009, COP 15 in Copenhagen set out to reach a new climate agreement for the
post-Kyoto period that would commit developed as well as developing countries, but ended
in utter disappointment, because no binding agreement was agreed upon let alone any
successor to the Kyoto Protocol. The conference did result in the Copenhagen Accord, a non-
binding document that mentions the 2°C target, establishes the Green Climate Fund, and
agrees a goal to provide climate finance, from 'a wide variety of sources', worth US$100
billion per year to developing countries by 2020.

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The Durban Platform and The Road to Paris

In 2011, COP 17 in Durban resolved to conclude a new agreement by 2015, to enter into
force in 2020. Governments clearly recognized the need to draw up the blueprint for a fresh
universal, legal agreement to deal with climate change beyond 2020, where all will play their
part to the best of their ability and all will be able to reap the benefits of success together. The
agreement, referred to as the "Durban Platform for Enhanced Action", was notable in that for
the first time it included developing countries such as China and India, as well as the US
which had refused to ratify the Kyoto Protocol. The management framework for the Green
Climate Fund was also adopted at this conference.

4.2 Issues Before Negotiators in Paris

Climate change negotiations have historically been very difficult with less chances of any
successful resolution. The failure of Kyoto Protocol and the failure at Copenhagen in 2009
are glaring examples of this. However, the negotiators learned from those mistakes in the past
and endeavoured to reach a successful agreement at Paris. The following were the key issues
before the negotiators in Paris.

Common but Differentiated Responsibility

World leaders have agreed since efforts to fight climate change began that developed
countries have greater responsibility to tackle climate change than their developing
counterparts. The United States and European Union alone had emitted more than half of the
total carbon emitted up to the turn of the century, contributing far more to global warming
than their developing country counterparts.127

The most important difference between the Kyoto Protocol and the Paris agreement is that
developing countries are submitting pledges under the Paris agreement to reduce emissions.
They had no emissions-reduction (mitigation) obligations under Kyoto. The root of the sharp
dichotomy between developed and developing countries in the Kyoto Protocol, with respect
to mitigation obligations, is a well-known clause in the Convention itself:

―The Parties should protect the climate system for the benefit of present and future
generations of humankind, on the basis of equity and in accordance with their common but

127
Kevin A. Baumert, et al., Navigating the Numbers: Greenhouse Gas Data and International Climate Policy,
World Resource Institute. (2005)

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differentiated responsibilities and respective capabilities. Accordingly, the developed country
Parties should take the lead in combating climate change and the adverse effects thereof. 128‖

The first UNFCCC Conference of the Parties (COP-1) in Berlin interpreted the principle of
"common but differentiated responsibilities" (CBDR) narrowly, in a decision of the COP, as
follows:

―The process shall be guided…by the following: …(d) The fact that the largest share of
historical and current global emissions of greenhouse gases has originated in developed
countries, that the per capita emissions in developing countries are still relatively low

and that the share of global emissions originating in developing countries will grow to meet
their social and development needs; … The process will…for developed country…Parties
included in Annex I…set quantified limitation and reduction objectives within specified time-
frames, such as 2005, 2010 and 2020, for their anthropogenic emissions…Not introduce any
new commitments for Parties not included in Annex I…‖.129

The Kyoto Protocol, concluded at COP-3 in late 1997, realized the Berlin Mandate's vision of
differentiation.130However, there have been other visions of differentiation—in the research
literature and in policy circles. As time has gone on, these alternative approaches to
differentiation have been prompted in part by developing countries' emissions increasing
significantly—in absolute terms and relative to developed countries'—thus rendering one
motivation for sharp differentiation, quoted from the Berlin Mandate above, obsolete.

Most fundamentally, the notion of differentiated responsibilities means that developed

countries need to stem their carbon emissions much more quickly than their non-developed
counterparts. Many developing countries like India would like the notion of differentiated
responsibilities to permeate every element of the deal while the U.S. views differentiation as
more limited in scope. Seeing India and China agree to strong measures, even if those
measures different from those required for developed countries, played an important role in
the U.S. negotiating position.

128
Article 3, par. 1 (p. 9 of the official English text):
http://unfccc.int/files/essential_background/background_publications_htmlpdf/application/pdf/conveng.pdf
129
Decision 1/CP.1 ("The Berlin Mandate") (p. 4–5 of the official English text):
http://unfccc.int/resource/docs/cop1/07a01.pdf , June 6, 1995.
130
Robert N. Stavins, "The Warsaw Climate Negotiations and Reasons for Cautious Optimism," blog post, An
Economic View of the Environment, November 28, 2013.

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Climate Finance

Financing efforts to mitigate and adapt to climate change was a key issue before the
conference even began. Developed countries committed in 2009 to send $100 billion
annually to the developing world to fight climate change beginning in 2020. Developed
countries have not backed off the commitment, but they also haven‘t fully fleshed out the
details of where that money will come from. A recent report from the Organization for
Economic Co-operation and Development (OECD) found that $62 billion flowed from
developed countries to their developing counterparts in 2014, a $10 billion jump from the
previous year. But developing countries—India in particular—have questioned whether the
figure can be trusted and called for a new assessment with input from developing countries.

More than $10 billion was pledged recently to support mitigation and adaptation in
developing countries through the newly established Green Climate Fund. Developing
countries are trying to hold developed countries to their commitment to mobilize $100 billion
a year in public and private finance by 2020, and want assurances of increased flows in the
years beyond. Developed nations wanted to broaden the circle of donor countries, so the onus
would not be entirely on them.

Adaption

Many countries wanted an agreement that recognizes the urgent need for adaptation and
improves action on adaptation across the globe. A strong agreement has the potential to set in
motion a process that will accelerate countries‘ adaptation plans and action into the future by
setting a long-term global goal. Paired with a long-term global goal for climate mitigation,
this adaptation vision should aim to strengthen international cooperation for enhanced
resilience in all communities. It should recognize the growing need for adaptation and link
that need to the level of global ambition to cut emissions. Moreover, it should help set in
motion incentives and processes to accelerate action on adaptation, including by helping
countries generate and share new finance, knowledge, and other resources to support
adaptation – especially in the poor countries where many people are especially vulnerable.

Developing countries argued that the UNFCCC historically has been too mitigation centric
and adaptation has gotten short shrift. Many fought unsuccessfully in Lima to include
adaptation in the scope of INDCs, and therefore, they pushed other ways to devote more
attention and resources to the issue.

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Transparency

In international climate negotiations, transparency processes aim to build confidence that all
participants understand national proposals and the progress required to achieve them.
Existing UNFCCC requirements for the reporting and review of countries‘ efforts are
bifurcated: a more rigorous system for developed countries than for developing. Developed
countries are pushing for a common framework covering all parties.

Ambition

Developed countries, including the U.S. and members of the European Union have partnered
with the countries most vulnerable to climate change to form a high-ambition coalition
calling for an ambitious target to stem greenhouse gas emissions—which means shooting for
a lower rise in global temperatures. For years, policymakers have said that the conference
should aim to keep temperatures from rising by more than 2 C by 2100. But the high-
ambition group is calling for the agreement to make the target 1.5 C.

But notably absent from that high-ambition group are India and China—the two biggest and
most influential developing nations. Both countries have expressed concern that an overly
ambitious target will eventually mean emission reductions that would crimp economic
growth. The high-ambition coalition has also called for countries to assess and report on their
efforts to fight climate change every five years. This assessment period would provide
countries with a chance to intensify their efforts to stem their greenhouse gas emissions in the
event of advances in science or the increased availability of funding. While opposition to
such a review process has weakened, countries still have not agreed on when it should begin.

4.3 Determining The Legality of an International Instrument

―Legal‖ is an adjective ―qualifying substantives to indicate that they have a relation to the
Law‖. From that perspective, a legal norm or standard can be distinguished from a moral,
social, ethical or religious norm or standard. However, a legal norm does not necessarily have
a binding character or legal force. A norm is ―legally binding‖ only when it creates a legal
obligation. In international public law, a legally binding norm provides for a legal link
whereby a subject of international law can be bound vis-à-vis others to adopt a determined
behaviour. This is the case when a norm finds its origin in a formal source of international
law (treaty, customary rules, general international law principles, unilateral acts). Apart from
the formal source of the legal norm, it is important to examine its content. Very often, legal

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obligations laid down by international treaties and agreements, although legally binding in
form, are so softly worded, contingent or conditional, as to be devoid of real normative force.
―Legally enforceable‖ means that the legal norm is backed by procedural mechanisms that
can mobilize various ―disciplines‖.

A legal norm may be legally binding but not legally enforceable if there are no such
mechanisms to support and eventually ensure its implementation. This is the most frequent
situation found in international law. Such mechanisms may be established for the purposes of
ensuring the implementation of provisions laid down by a legally binding instrument
(international treaty or agreement) or by a non-legally binding instrument (for example a
resolution adopted by an international organisation) even if the latter tend to be weaker.
While such mechanisms can contribute to strengthening the normative force of a resolution
that is not legally binding, they cannot on their own give a legally binding character to such
resolutions.

4.3.1 Whether a Treaty or Not

UN negotiations had been building towards Paris since the Durban Platform in 2011 asked
for ―a protocol, another legal instrument or an agreed outcome with legal force under the
UNFCCC, applicable to all Parties‖ The Durban Platform gave three options as a basis for the
agreement at Paris. Since Parties have agreed at COP 19 in Warsaw that their contributions to
this instrument would be determined at the national level, it is crucial that the instrument is
effective. 131 Effectiveness can be seen in terms of implementation to ensure that Parties
deliver their contributions, and in terms of adequacy to ensure that aggregated individual
contributions progressively achieve the long-term global goal. Consequently, the agreement
has to be both dynamic and durable.

The question of the nature of the instrument has more political significance than legal. Any
agreement that commits the USA to legally binding emission reductions or financial
obligations would require the Senate's 'advice and consent'. However, in 1997, the US Senate
passed the Byrd-Hagel resolution, which blocks ratification of any agreement that commits
the USA to reducing emissions without commitments for developing countries, or harms the
US economy. As a result, the USA did not ratify the Kyoto Protocol. However, an agreement
of procedural nature, aimed at implementing or elaborating the UNFCCC, could take the

131
Decision 1/CP.19 of the Conference of Parties in Warsaw, further advancing the Durban Platform,
UNDoc.FCCC/ CP/2013/10/Add.1, 31 January 2014

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form of an 'executive agreement' that can be signed by the President without Congressional
approval, provided it can be implemented on the basis of existing law. Since US is one of the
top emitters of the world, its participation in this climate instrument is essential. Therefore,
even after the adoption of the agreement, US president said that the agreement is not a
―treaty‖.

However, the term ―Treaty‖ has been defined under Article 2(1)(a) of the Vienna Convention
on the Law of Treaties (VCLT), 1969 as ―an international agreement concluded between
States in written form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its particular designation‖.
This means that the designation of an international instrument does not preclude it from being
a treaty. So, under international environmental law, the Paris Agreement will be considered a
treaty. However, it may not be considered to be a treaty in US, under their municipal law.

4.3.2 Legal Form of Paris Agreement

The outcome of COP 21 consists of a COP decision (140 points and 20 pages), and the actual
text of the Paris Agreement (29 articles), which is presented as an annex to the decision. The
legal form was an important issue in the negotiations, with the EU and other Parties insisting
on a legally binding agreement, but US Secretary of State, John Kerry, warning that it must
not be a 'treaty' that legally requires countries to reduce their emissions. The agreement
avoids quantified targets for emissions reductions or financial flows, and does not provide for
enforcement or sanctions.

Because the Paris Agreement is a universal, legally binding agreement to tackle climate
change under international law, it joins other such agreements as the highest expression of
political intent and will. Yes, it has binding and non-binding components, but overall it is
durable and underpins decisive real-economy change and drives corresponding national
legislation and policy. Entering into legally binding agreements sends a strong signal to
corporations, planners, investors and other implementers that governments will enforce
climate policies. This is an agreement between countries in which each country indicates its
intent to be bound at the international level. Each country follows its own domestic
authorization process based on its own unique legal system, before joining this international
agreement.

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This legal form makes the Paris Agreement, adopted December 12, 2015 at COP21,
fundamentally different from the Kyoto Protocol. The Kyoto Protocol was a product of its
time, with only a small number of countries taking on binding emission reduction targets. The
Paris Agreement moves beyond that, achieving legal rigor while ensuring universal
participation.

The Paris Agreement includes every country and thus has to accommodate the different
development stages of those countries. The targets themselves are not binding, but all
countries are obliged to prepare, communicate and maintain their targets and pursue domestic
measures to achieve them. Framing the obligation in this way is likely to increase the
likelihood of implementation, since the targets are nationally-determined and in many
countries, already anchored in nationally binding laws and regulations. It‘s a more
accommodating way to bind countries to deliver their national plans, while recognizing that
some countries are not in a position to have their targets stated directly into a treaty.

It foresees a 'mechanism to facilitate implementation of and promote compliance ‗that shall

be 'be expert-based and facilitative in nature and function in a manner that is transparent,
non-adversarial and non-punitive‘. As set out in the COP decision, it will be led by an expert
committee comprising ‗12 members with recognised competence in relevant scientific,
technical, socio-economic or legal fields, to be elected by the Conference of the Parties on the
basis of equitable geographical representation ... while taking into account the goal of gender
balance‘.

4.4 Analysis of the Paris Agreement

The 21st Conference of the Parties to the United Nations Framework Convention on Climate
Change (‗UNFCCC‘)1 resulted – against all odds – in the adoption of a ‗Paris Agreement‘,
which will be opened for signature on the 22 April 2016.132 The provisions of this instrument
can be analysed in three broad groups. They are - Objectives, Action Mechanisms and
Implementation Techniques.

Goal and Objectives

Article 2 of the Paris Agreement sets three goals within the broader objective of Article 2 of
the UNFCCC. Most of the attention tended to focus on the figures and, more specifically, on

132
‗Adoption of the Paris Agreement‘, Draft Decision -/CP.21, 12 December 2015, FCCC/CP/2015/L.9
(‗Decision‘), para 2-3.

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whether limiting the increase in global average temperature to 2 °C is insufficient for some
countries and, more specifically, whether a target of a 1.5 °C increase would be more
appropriate. Behind this discussion lies a tension between science and equity. From an equity
perspective it seems clear that 1.5 °C would be preferable, but such a target would have
complex signalling effects because, scientifically, it looks extremely difficult to achieve 10
and, perhaps unrealistic. Selecting it as the only target could have placed the entire
Agreement under a different – mostly aspirational – light rather than as a truly regulatory
instrument. If the Agreement was meant to send a clear signal to producers and consumers as
to the need to shift from a fossil-fuel based economy to a decarbonised one (although the
term carbon neutrality was in the end not mentioned), both targets had to feature. That was
the solution eventually reached, with Article 2(1)(a) stating that the objective is to hold the
increase ―well below 2 °C … and to pursue efforts to limit the temperature increase to 1.5
°C.‖133

More importantly, Article 2 unravels or, more accurately ‗enhances‘ the objective of the
UNFCCC by adding ‗the increasing ability to adapt to the adverse impacts of climate
change‘134and to ‗make finance flows consistent with a pathway towards low greenhouse gas
emissions and climate resilient development‘.135

Paragraph (2) of Article 2 places these goals in the light of equity and the principle of
common but the differentiated responsibilities and respective capabilities (‗CBDR‘). This
principle was not present in the decision launching the Durban platform, but it has become
unavoidable in climate change negotiations. Of note is the fact that the two other key
principles of Article 3 of the UNFCCC, precaution and inter-generational equity, are not re-
stated. Only the preamble of the Agreement refers back to the principles of the UNFCCC,
but, again, it only singles out CBDR.

Action Mechanisms

The Paris Agreement sets three main action areas, two of which, mitigation (Articles 6) and
adaptation (Article 7), are given particular weight, whereas the third, loss and damage
(Article 8), is more limited and confined within narrow bounds.

133
Article 2 of Paris Agreement, available at, https://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf (last
visited on 24th January 2016)
134
Ibid, Article 2(b)
135
Ibid, Article 2(c)

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Mitigation (Article 4-6)

The key area of action that the Paris Agreement was expected to and did address is
mitigation. The entire system rests on a soft structure of ‗nationally determined contributions‘
or ‗NDCs‘136 set by State parties and to be compiled in a flexible ‗public register‘ 137. States
can thus choose their level of ambition subject to two requirements, namely the regular
updating, at least every five years,138and an obligation of non-regression139. The latter is new
and could become a major new principle of international environmental law in the years to
come. This soft structure, which recalls the pledges made by States after Copenhagen and
anchored in the Cancun Agreements, was important both politically and legally. From a
political standpoint, States get to choose their level of ambition, which allows great room for
differentiation in accordance with the principle of CBDR. That was part of the price to bring
high emitting developing countries under the regulatory system and given the non-regression
requirement, it may potentially entail that States will start by setting unambitious NDCs.
Legally, NDCs will arise frequently from the targets already set in domestic law, which gives
them higher impact on the private sector.

The specific contents of NDCs are yet to be specified. Those submitted before Paris, under
the system designed to this effect at the Warsaw COP, were quite diverse in nature and
content. The Paris Agreement recognises the need for clarity and transparency 140 and the
Decision adopting the Agreement has entrusted the Ad-hoc working group with the task of
providing guidance to this effect to be adopted by the Meeting of the Parties of the
Agreement (CMP).141

Beyond individual NDCs, one major discussion concerned the overall trend in global
emissions and the need to reach carbon neutrality sometime in the second half of the 21 st
Century. That requires ‗peaking‘ emissions as soon as possible, with more time given to
developing countries as a matter of the principle of CBDR, and then achieving significant
reductions so as to reach ‗balance‘ between emissions and removals. 142 The Decision
‗invites‘ Parties to communicate by 2020 ‗long-term low greenhouse gas emission

136
Ibid, Article 3 & 4
137
Ibid, Article 4(12)
138
Ibid, Article 4(9)
139
Ibid, Article 4(3)
140
Ibid, Article 4(8)
141
Decisions of the COP 21 at Paris, Para 26-28
142
Article 4(1) of the Agreement

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development strategies in accordance with Article 4(19)‘143, which will be published on the
Secretariat‘s website. Underpinning the term ‗balance‘ lie important questions of equity as
well as of geo-engineering. Soft geo-engineering, through afforestation, reforestation,
reduced deforestation and enhancement, is clearly encouraged by the Agreement 144but there
are more intrusive methods, such as ocean fertilisation as oceans are the most important
carbon sink, which the Agreement does not seem to exclude.

Adaption (Article 7)

Article 7 of the Agreement provides for action on adaptation. Over the years, the political
profile of adaptation has gained in importance, particularly since the 2010 Cancun
Agreements, which set up a Cancun Adaptation Framework. The Paris Agreement can be
seen as a culmination of these profile-raising efforts. Adaptation is now one of the three goals
in Article 2 and a specific provision (Article 7) is devoted to it.

Significantly, adaptation is now envisioned as a measurable goal, with Article 7 requiring the
adoption by each country of adaptation plans 145 and emphasising not only that adaptation
efforts by developing countries are to be ‗recognised‘ 146 but also that they are to be
communicated147, recorded in a public registry148 and even included in the global stocktake
contemplated in Article 14 of the Agreement149.

Another important point is the connection between, on the one hand, adaptation efforts and,
on the other hand, its potential implications from the perspective of social development.
Adaptation efforts may potentially require widespread governmental intervention, including
population displacement and relocation. Article 7(5) cautions against the possibility that
adaptation may become synonymous of intrusion and social engineering. It calls for
appropriate ‗consideration of vulnerable groups, communities and ecosystems‘ and for
‗integrating adaptation into relevant socioeconomic and environmental policies and actions‘.
The parameters highlighted in Article 7(5) are relevant not only in the relations between
governments and their populations, but must also be taken into account by relevant United

143
Para 36 of the Decisions
144
Article 5 of the Agreement
145
Ibid, Article 7(9)
146
Ibid, Article 7(3)
147
Ibid, Article 7(10)
148
Ibid, Article 7(12)
149
Ibid, Article 7(14)

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Nations bodies and agencies in their development work. After all, the conceptual boundary
between ‗adaptation‘ and ‗development‘ is becoming increasingly blurred.

Loss and Damage (Article 8)

Another conceptual boundary difficult to draw is that between adaptation and loss and
damage, as characterised in Article 8 of the Agreement. In theory, adaptation is a preventive
strategy aimed to avoid as much as possible the negative consequences of climate change
whereas loss and damage is geared towards coping with the damage that cannot be avoided.
In other terms, adaptation is about prevention whereas loss and damage is about response and
potentially reparation. Another way to see it is that adaptation is a long-term process whereas
loss and damage is about disaster response.

In practice, however, aside from the question of reparation, which is expressly excluded from
loss and damage, not much daylight separates both conceptual categories. Indeed, the
resilience and vulnerability reduction sought through adaptation plans encompasses responses
to extreme weather events and slow onset events. The type of early warning systems and
emergency preparedness plans referred to in Article 8(4) are likely to feature in any proper
adaptation plan. This is not a purely conceptual point to the extent that the implementation
measures, including the finance, set out in the Agreement only apply expressly to adaptation
and not to loss and damage.150

Two important questions in connection with loss and damage are compensation for the loss
already caused and climate change-related displacement. None is expressly mentioned in
Article 8, but the Decision introduces two clarifications. Displacement relating to the adverse
impacts of climate change is expressly contemplated in paragraph 50 of the Decision,
according to which the COP entrusts the Warsaw International Mechanism on Loss and
Damage with the setting up of a task force to develop, in collaboration with other bodies
‗recommendations for integrated approaches to avert, minimize and address displacement
related to the adverse impacts of climate change‘. This is a very welcome development and
contrasts with the firm rejection of the connection between loss and damage and liability, 151 a
point on which the United States were adamant.

150
Ibid, Article 9(1)
151
Para 52 of the Decisions

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4.5 Implementation Techniques

The main innovation of the Paris Agreement lies in its implementation techniques and,
particularly, the ‗enhanced transparency framework for action and support‘ established by
Article 13. This mechanism, the first of its kind in global environmental governance, is the
embodiment of the approach, followed since the launching of the Ad-Hoc working group of
the Durban Platform in 2011, according to which emission targets would be set domestically
and measuring, reporting and verification (MRV) would be organised at the international
level. It is, of course, not the only technique, as the Agreement also contemplates many
others.

The Paris Agreement provides for three techniques that can be understood as information-
based in that they not only rely on information but their very purpose is to provide
informational clarity in the short or the long term. Aside from the important emphasis placed
on education28, the Paris Agreement introduces two novelties, which are interconnected. The
first, provided for in Article 13, relies on public pressure to nudge States into taking action
not only in connection with mitigation and adaptation but also with respect to assistance. The
second, contemplated in Article 14, takes the form of a global stocktake, which is less geared
towards compliance and more towards the overall effectiveness of the climate change regime.

Enhanced transparency framework for action and support (Article 13)

Article 13 establishes an international mechanism of measuring, reporting and verification of

the action/support of individual States. This mechanism can be characterised by reference to
its nature, purpose, the information it is expected to gather, and the way in which it will
process it.

The perceived intrusiveness of an international MRV mechanism led to strong resistance,

particularly from China and India, who have resisted such an approach since the negotiations
that fail to reach a Copenhagen Protocol. Unsurprisingly, in Paris, this question remained
open until the very end. The underpinning tension related to the extent of differentiation in
connection with transparency. The final wording is a compromise among all the options.
Reference to the ‗robust‘ and ‗unified‘ character of the mechanism, as well as rigid
differentiation between developed and developing countries were left out. The agreed Article
13(1) applies to all countries but it stresses its inherently flexible nature and the need to
account for Parties‘ different capacities. The nature of the mechanism is further characterised

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in paragraphs 2 and 3, which refers to the needs of developing countries and less developed
countries, and stresses the fact that the mechanism is to be implemented in a ‗facilitative,
nonintrusive, non-punitive manner, respectful of national sovereignty, and avoid placing
undue burden on Parties‘.

The purposes of the mechanism are aligned with their focus on ‗action‘ and ‗support‘. On
action, the mechanism aims at tracking progress on a Party‘s ‗individual‘ progress in
achieving their NDCs and on Parties‘ progress on adaptation. On support, the mechanism
aims to provide clarity as to the support ‗provided‘ and ‗received‘ by ‗individual‘ Parties
under a range of headings, namely mitigation (Article 4), adaptation (Article 7), finance
(Article 9), technology transfer (Article 10) and capacity-building (Article 11). The absence
of loss and damage (Article 8) in this enumeration is conspicuous. Transparency on both
action and support is to feed the global stocktake contemplated in Article 14 of the
Agreement.

Global Stocktake (Article 14)

As noted above, the idea of a global stocktake has less to do with compliance and more with
effectiveness. At COP-21 States were very concerned by the fact that INDCs so far
announced, although they cover most the greenhouse gas emissions and emitters, still fall
short of the 2 °C. For the climate change regime to be effective overall, a focus on the ‗trees‘
(through the transparency mechanism) should not displace the more important overall view of
the ‗forest‘ (the overall stock of greenhouse gases in the troposphere as well as the ability of
States to cope with the impact of climate change). The global stocktake envisioned in Article
14 addresses this question.

This global stocktake is to take place periodically (every 5 years, starting in 2023) under
modalities still to be defined by the Ad-Hoc working group of Paris Agreement (APA). The
APA has also been entrusted with the task of identifying the relevant sources of information
to generate this global stocktake. Paragraph 100 of the Decision mentions some of them,
including communications from the Parties and the work of the Intergovernmental Panel on
Climate Change (‗IPCC‘), but the list is non-exhaustive. This raises a quality control
question, which has already been faced by the IPCC in the context of bitter accusations of
bias or unreliability.

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Management of Non-Compliance

This concerns situations where the information available suggests that, despite the many
means to facilitate compliance contemplated in the Agreement, a State Party finds itself in a
situation of non-compliance.

In international environmental law, many treaties, starting with the 1987 Montreal Protocol
on Substances that Deplete the Ozone Layer, have established non-adversarial mechanisms to
‗manage‘ situations of non-compliance. The Kyoto Protocol itself has one such mechanism,
established under Article 18 of the Protocol, and soon to face its ultimate test in connection
with compliance with States‘ quantified obligations under Kyoto‘s first commitment period
(2008-2012). The Paris Agreement provides for the establishment of a noncompliance
mechanism managed by a Committee 152 consisting of 12 experts elected by the CMP in
accordance with some distributional parameters.

Last but not least, Article 24 of the Agreement refers to the dispute settlement clause in
Article 14 of the UNFCCC as applicable mutatis mutandis to the Agreement. This clause,
which opens the possibility for States to accept the compulsory jurisdiction of the
International Court of Justice or of an arbitration tribunal, has never been used.

Summary

Meant to be a successor to the failed Kyoto Protocol, the Paris agreement shows more
promise than any of the previous climate change instruments. Apart from the fact that it
enjoys universal approval, it is also a triumph of the concept of multilateralism, and a
demonstration that countries with wildly differing interests can in fact come together to
address a common concern. It is believed that the Paris Agreement will positively influence
the world‘s ability to limit the adverse effects of climate change.

Past international climate agreements provided no clarity on the long-term process for
reducing global emissions. Countries‘ emissions targets stopped in 2020 with no provision
for any action beyond that. The Paris Agreement has a long-term goal that gives concrete
guidance to investors and policymakers on what they need to do and by when. Unlike
previous international climate agreements, which focused solely on mitigation, the Paris
Agreement provides equal attention to building resilience in all countries, especially the most

152
Article 15(2) of the Agreement.

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vulnerable. Provisions make it clear to governments and private sector actors that finance
flows should be consistent with a pathway towards low–carbon, climate-resilient
development. This is complemented by a set of provisions that developed countries will
continue to take the lead on providing climate finance, but that the contributor pool will
expand over time to include more countries.

The Paris Agreement relies on a careful combination of these three levers of action. It seeks
to be realistic more than aspirational, as conveyed by the mitigation goal stated in Article
2(1)(a), so as to signal the intention to coerce or incentivise, rather than only appealing to a
feeling of justice. It organises implementation through a blend of social coercion, providing
for individual transparency for everyone to see who contributes what exactly to the common
problem and interest, providing for support, both through assistance and efficiency, and
laying the foundations for understanding through education and a global stocktake. In fact, it
seeks to address the roots of the human behaviour that is causing climate change, but not
through a lens that would see humans as either subjects to coerce, rational actors to
incentivise, or moral agents to persuade, but as humans who benefit and suffer from the same
behaviour, who may be fair and unfair, rational and irrational, obedient and refractory.

Although, there is a criticism that the agreement doesn‘t provide any concrete goals and
targets to the states to achieve the objective of limiting global temperature within 2 degrees
Celsius. The agreement is clearly missing any clear global emission goal or a requirement for
the parties to submit their peak year in global emissions. Such an agreement only fixes an
ambiguous aim with no certainty. The INDCs submitted by the states do not cover the
required goal of emission reduction and the objective of limiting global temperature rise at 2
degrees from pre-industrial levels would not be realised. However, the agreement does
provide for what is popularly known as the ‗ratchet mechanism‘. It is a mechanism of review
in every 5 years and a requirement for the states to submit a new NDC for that period.
Therefore, the Paris agreement is not the solution to the climate change problem but it is
rather a starting point and a platform for further development in the years to come. The
current mechanism provided in the agreement facilitates better participation of the various
states of the world.

As such, it is a realistic instrument and, because of its imperfection, one that is much closer to
the human topography than its falsely ambitious predecessor signed in Kyoto. For that
reason, it stands a better chance to work.

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4.6 New Trends for Controlling Climate Change

Climate change is very likely having an impact now on our planet and its life, according to
the latest installment of a report published by the Intergovernmental Panel on Climate
Change (IPCC). And the future problems caused by rising seas, growing deserts, and more
frequent droughts all look set to affect the developing world more than rich countries, they
add. Moreover, the increase in greenhouse gases caused by human activity is often cited as
one of the major causes of global warming. These greenhouse gases reabsorb heat reflected
from the Earth's surface, thus trapping the heat in our atmosphere. This natural process is
essential for life on Earth because it plays an important role in regulating the Earth's
temperature. However, over the last several hundred years, humans have been artificially
increasing the concentration of these gases, mainly carbon dioxide and methane in the Earth's
atmosphere. These gases build up and prevent additional thermal radiation from leaving the
Earth, thereby trapping excess heat. Thus, there are numerous ways suggested for controlling
climate change.

4.6.1. Carbon Sequestration

Carbon sequestration means capturing carbon dioxide (CO2) from the atmosphere or
capturing anthropogenic (human) carbon dioxide from large-scale stationary sources like
power plants before it is released to the atmosphere. Once captured, the carbon dioxide gas
(or the carbon portion of the carbon dioxide) is put into long-term storage. Carbon dioxide
sequestration has the potential to significantly reduce the level of carbon that occurs in the
atmosphere ascarbon dioxide and to reduce the release of carbon dioxide to the atmosphere
from major stationary human sources, including power plants and refineries.

There are three major types of Carbon dioxide sequestration:

Oceanic Carbon Sequestration: The world‘s oceans are the primary long-term sink for
human-caused Carbon dioxide emissions, currently accounting for a global net uptake of
about 2 gigatons of carbon annually. This uptake is not a result of deliberate sequestration,
but occurs naturally through chemical reactions between seawater and carbon dioxide in the
atmosphere. While absorbing atmospheric carbon dioxide, these reactions cause the oceans to
become more acidic. Many marine organisms and ecosystems depend on the formation of
carbonate skeletons and sediments that are vulnerable to dissolution in acidic waters.
Laboratory and field measurements indicate that Carbon dioxide-induced acidification may

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eventually cause the rate of dissolution of carbonate to exceed its rate of formation in these
ecosystems. The impacts of ocean acidification and deliberate ocean fertilization on coastal
and marine food webs and other resources are poorly understood. Scientists are studying the
effects of oceanic carbon sequestration on these important environments.

Terrestrial Sequestration: Terrestrial (or biologic) sequestration means using plants to

capture Carbon dioxide from the atmosphere and then storing it as carbon in the stems and
roots of the plants as well as in the soil. In photosynthesis, plants take in Carbon dioxide and
give off the oxygen to the atmosphere as a waste gas. The plants retain and use the carbon to
live and grow. When the plant winters or dies, part of the carbon from the plant is preserved
(stored) in the soil. Terrestrial sequestration is a set of land management practices that
maximizes the amount of carbon that remains stored in the soil and plant material for the long
term. No-till farming, wetland management, rangeland management, and reforestation are
examples of terrestrial sequestration practices that are already in use. It is important to
remember that terrestrial sequestration does not store Carbon dioxide as a gas but stores the
carbon portion of the Carbon dioxide (the C in the CO2). If the soil is disturbed and the soil
carbon comes in contact with oxygen in the air, the exposed soil carbon can combine with
oxygen to form Carbon dioxide gas and re-enter the atmosphere, reducing the amount of
carbon in storage.

Geologic Sequestration: Geologic sequestration is putting carbon dioxide into long-term

storage in geologic zones deep underground. Geologic sequestration is the method of storage
that is generally considered for carbon capture and storage (CCS) projects. CCS is the
practice of capturing carbon dioxide at anthropogenic sources before it is released to the
atmosphere and then transporting the Carbon dioxide gas to a site where it can be put into
long-term storage. Geologic sequestration involves three main processes: capturing carbon
dioxide, transporting carbon dioxide, and placing the carbon dioxide in a geologic formation
for permanent or semi-permanent storage. The carbon dioxide is placed into the geologic
formation by means of a system of injection wells. An injection well is like an oil well or a
water well, except that instead of drawing material (oil or water) out of the ground, carbon
dioxide is injected into the well. Injection wells are also used for the disposal of various types
of wastes and to enhance oil recovery in some areas.

Before geologic sequestration can be widely used, two issues need to be addressed:

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 1. Only a handful of specialized facilities like natural gas-processing plants, coal
gasification plants, and ethanol plants currently have processes that
separatecarbon dioxide and make it available for geologic sequestration. Actions
are under way now to develop economical methods of separating and capturing
carbon dioxide at other large-scale systems like power plants that produce
relatively large quantities of anthropogenic carbon dioxide.
2. Although pure carbon dioxide has been stored as a gas in natural underground
deposits for millions of years and oil field operators have safely pumped millions
of tons of carbon dioxide underground into oil-producing formations to increase
production (carbon dioxide flooding), we need validation demonstrations in
geologic environments to ensure that we understand the best ways to site the
systems as well as monitor thecarbon dioxide in storage over the long term.
4.6.2 CAP and Trade

Cap and trade is the most environmentally and economically sensible approach to controlling
greenhouse gas emissions, the primary driver of global warming.

The ―cap‖ sets a limit on emissions, which is lowered over time to reduce the amount of
pollutants released into the atmosphere. The ―trade‖ creates a market for carbon allowances,
helping companies innovate in order to meet, or come in under, their allocated limit. The less
they emit, the less they pay, so it is in their economic incentive to pollute less.

The Kyoto Protocol, which entered into force in 2005, established a market-based mechanism
to allow developed countries with binding emissions targets to reduce greenhouse gases such
as carbon dioxide, methane, carbon tetrafluoride, trifluoromethane, and nitrous oxide. Under
the cap-and-trade system, industries would be allocated allowances limiting them to a certain
amount of greenhouse gas emissions each year. Most trading schemes use one-ton carbon-
dioxide units for sale, or convert non-CO2 gases into CO2-equivalent units for the purposes
of trading.

The buying and purchasing of allowances provide incentives to make emissions reductions
more economical. Some facilities could find it cheaper to reduce their emissions and then sell
their surplus allowances as credits, while others may find it cheaper to buy credits to offset
their emissions rather than make direct reductions. Greenhouse gas emission credits can be
purchased or sold from a carbon market as well as through projects and emissions credits
certified by the UN. Cap-and-trade systems have been used before to reduce emissions. The

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cap-and-trade system instituted under the 1990 Clean Air Act in the United States is
credited with achieving significant reductions in acid-rain-causing sulphur-dioxide emissions
by power plants.

Examples of Similar legislation

Cap and trade is not a new idea. While federal legislation to this effect has yet to succeed,
there are many examples in the world, and even in our own country, of this legislation being
enacted. This can give us an idea of the effect of national cap and trade legislation.

The Western Climate Initiative is a collaboration between California, Oregon, Washington,

Montana, Utah, Arizona, New Mexico, Quebec, Ontario, Manitoba, and British Columbia to
work together to reduce greenhouse gas emissions. They intend to do this by developing a
cap and trade system, issuing offset credits, promoting energy efficiency, and implementing
clean car standards.153 So far, only California has drafted true cap and trade legislation, a bill
which offers to give away credits and allow carbon offsets to keep costs low in a down
economy 154 .The Regional Greenhouse Gas Initiative (RGGI) is a similar project among
Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New
York, Rhode Island and Vermont. The RGGI has already begun auctioning carbon emission
credits, and the next auction is scheduled for December 1, 2010. The proceeds from these
auctions are used to fund energy efficiency and clean energy initiatives throughout the RGGI
member states.155The target reduction of the RGGI is 10% by 2018.

Illinois is a member of the Midwestern Greenhouse Gas Reduction Accord, which also
includes Iowa, Kansas, Manitoba, Michigan, Minnesota, and Wisconsin. While finalized
rules have not been drafted, early estimates of the effect of a cap and trade program in this
region are a .7% reduction in the growth of the gross regional product. 156 This is only a
reduction in the rate of growth — the gross regional product is still expected to increase.
This may be taken as evidence that the drastic economic effects often described by those
opposed to cap and trade are greatly exaggerated.

153
Western Climate Initiative. Clean Energy: Creating Jobs, Protecting the Environment. Western Climate
Initiative. [Online] May 24, 2010. http://www.westernclimateinitiative.org/component/remository/general/WCI-
Brochure-%28May-2010%29/.
154
Henderson, Peter. California unveils greenhouse gas trading plan. Yahoo! News. [Online] October 29, 2010.
http://news.yahoo.com/s/nm/20101029/us_nm/us_carbon_california
155
Regional Greenhouse Gas Initiative. Welcome. RGGI.org. [Online] 2010. http://www.rggi.org/home .
156
ICF International. Summary of the Midwestern Accord Economic Modelling Results. Midwestern
Greenhouse Gas Reduction Accord. [Online] 2010. http://www.midwesternaccord.org/Modeling_Summary.pdf.

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The largest single carbon market in existence today is the European Union Emission Trading
Scheme (EU-ETS). Faced with an inability to meet Kyoto Protocol targets to reduce
greenhouse gas emissions and the failure of an attempted carbon tax, the EU seems like an
unlikely forebear of the carbon market methodology. However, when the US failed to sign
the Kyoto Protocol, it signalled a chance for the EU to lead the way; the many countries in
the EU who favoured emissions trading were able to lead a charge. The idea of a carbon
market was preferred over command and control or carbon tax methods, which would have
drastically increased costs for businesses. Industry support lead to the bill‘s eventual passage
into law.157Early problems with the EU-ETS include an over-allocation of emissions credits
which caused the value of the credits to plummet to zero, and an actual increase in the level
of emissions in the first session of the EU-ETS. This has led to some public backlash and
some feel that the EU-ETS is not working to reduce emissions. Hopefully, these problems
will be overcome in the future.

One final example of cap and trade legislation is a national federal program in the United
States which was vastly successful: The Acid Rain Program (ARP). The stated goal of this
EPA program is to ―achieve significant environmental and public health benefits through
reductions in emissions of sulphur dioxide (SO2) and nitrogen oxides (NOx)‖. 158 Very
simply, the program sought to reduce the damage caused by acid rain, and did so by creating
a cap and trade system for sulphur dioxide and nitrogen oxide emissions. Overall, the system
has been very successful, causing improvements in air quality, acid deposition, and surface
water chemistry.159It is this program‘s success which is leading many to believe that a similar
system can help to reduce emissions of carbon dioxide.

Pros of Cap and Trade

As Global Warming continues to effect life all over the world, limiting pollution is one of the
greatest ways to slow down this process. Cap and Trade, through its regulation of pollution
and carbon emissions, can help the United States meet its obligations at home and abroad

157
Frank Convery, Christian De Perthuis, Denny Ellerman. The European Carbon Market in Action: Lessons
from The First Trading Period. Interim Report. MIT: Center for Energy and Environmental Policy Research.
[Online] March 2008. http://tisiphone.mit.edu/RePEc/mee/wpaper/2008-002.pdf.
158
EPA. Acid Rain Program. Environmental Protection Agency. [Online] April 14,
2009http://www.epa.gov/airmarkt/progsregs/arp/index.html.
159
Acid Rain Program 2009 Progress Reports: Environmental Results. Environmental Protection Agency.
[Online] October 29, 2010. http://www.epa.gov/airmarkt/progress/ARP09_3.html.

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while also better tracking the amount of pollution we release into the atmosphere every
year160.

Limits Carbon Release

The best part of Cap and Trade is that it limits and controls the amount of pollution released
into the atmosphere by American companies. By creating this system, companies will have to
pay for the amount that they pollute, providing a source of revenue as well as limiting
pollution when at all possible. This in turn leads to a better environment for everyone both in
the United States and abroad to enjoy. In addition, the United States comes out as an example
to lowering pollution amounts, giving support to our continued goals to limit pollution
worldwide. Finally, having a Cap and Trade system put in place shows future generations that
we are responsible.

Source of Government Revenue

Cap and Trade is sometimes called ‗taxed pollution.‘ This is because pollution credits are
given out to companies. The more credits you have, the more pollution you can release into
the atmosphere. Each credit has a cost that is owed to the government. Through regulating
emissions, the government generates a profit. Given the current deficits being faced by local
and state governments, having any additional source of income is a positive.In addition, these
resources can go towards the research and advancement of future green technologies. Helping
to cover the expense associated with research and development, safer and cleaner sources of
power, like wind turbines and solar panels, can be better researched and more effectively
commercialized.

Promotes Efficiency

One of the best parts about applying a tax through Cap and Trade is that it incentivizes
creativity. Now companies can save money and also go green by investing in cleaner sources
of power. By reducing their carbon foot print, these companies can help the environment
while saving themselves a lot of money down the road. In addition, it raises the potential that
these companies will invest in their own research and development in order to find cleaner
and safer ways to dispose of harmful chemicals.

160
http://apecsec.org/cap-and-trade-pros-and-cons/ (Last accessed on 28/04/2016)

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Cons of Cap and Trade

Problem will arise with whatever system we develop to reduce pollution. Cap and Trade is no
different. Though it represents the possibility of having pollution well regulated, opponents to
Cap and Trade ague that it will push companies away from green technology, that it will
create an industry of deception, and that the final cost may be passed on to the consumer161.

Pushes Companies in the wrong direction

Several leaders in the energy industry have come out against Cap and Trade because they
believe it will harm green tech advancement. With a Cap and Trade system, it is argued that
companies will begin using oil, gas, and coal because it has a cheaper offset. This will in turn
raise the demand for these resources while limiting interest in renewable energy sources.
Ultimately, Cap and Trade could just push the entire problem of pollution down the line for
future generations to struggle with.

Risks Creating an Industry of Deception

Cap and Trade is based on companies accurately reporting the amount of pollution they
cause. If Cap and Trade comes into effect, then there is a popular argument that this will
cause the energy industry to become deceptive in their reporting. Now, the primary way to
stop this would be through inspection of the various industrial sites by government regulators.
The challenge is that there are never enough regulators to get the job done. Whether through
a limitation of time or manpower, regulating Cap and Trade may prove to be more
challenging than one can ever thought.

Possible cost passed to the consumer

Another frequent argument against Cap and Trade is that any cost added to the industry will
be passed along to the consumer. For companies producing pollution while creating durable
goods, it is safe to assume that every company will be effected equally and increase their
prices as a result. The same is true for energy companies. As the majority of energy produced
in the United States still comes from these major pollution sources, the cost of energy may
rise when a new cost is added because of pollution.

161
http://nlcatp.org/6-vital-pros-and-cons-of-cap-and-trade/ (Last accessed on 28/04/2016)

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Alternatives to Cap and Trade

Cap and trade is not the only way to reduce greenhouse gas emissions. There are briefly two
alternatives to Cap and Trade which are as follows:

Command and Control Legislation: This legislation creates a policy that dictates a certain
action, such as requiring emissions to be below some mandatory level. This type of approach
is usually shunned in favour of cap and trade, as cap and trade is more efficient. For
example, if all coal plants in the United States emit 20 metric tons of carbon dioxide (mt
Carbon dioxide), and the desired goal is 15 mt Carbon dioxide each, then command and
control legislation would dictate this level and fine all those who exceed it. However, some
plants may be able to reduce their emissions at a lower cost than others. In a cap and trade
system, those who are able to reduce their emissions at a lower cost can reduce emissions
below the required level and then sell the rights to the unused pollution to another plant who
would otherwise have to perform costly upgrades to reduce emissions. This reduces the
overall cost to society of the legislation, creating a more efficient system in economic terms.

Carbon Tax: The carbon tax places a per-unit fee on goods and services which is
proportional to the amount of carbon emitted in the production or consumption of that
product.162While this is a feasible way to reduce carbon emissions, as people will consume
less and firms will seek to reduce carbon emissions, it suffers from the same inefficiency as
command and control legislation. Also, as companies pass the cost of this tax to consumers,
the cost of energy and carbon-intensive processes will rise noticeably. The decreased
efficiency means that consumers will pay a higher price for goods under this system than they
will under cap and trade. It is because of these inherent inefficiencies in alternatives to cap
and trade which makes cap and trade so appealing.

4.6.3 Carbon Trading

Carbon trading is an advances format, where firms or countries buy and sell carbon permits
as part of a program to trim out carbon emission. It is a widespread method countries utilise
in order to meet their obligations specified by international Kyoto Protocol (1997) of United
Nations Framework Convention on Climate Change; namely the reduction of carbon
emissions in order to mitigate future climate changes. It specifically targets carbon dioxide
calculated in terms of Carbon dioxide equivalent or Carbon dioxide.

162
http://www.ncsl.org/documents/environ/captrade.pdf (Last accessed on 28/04/2016)

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Currently, future contracts in carbon credits are actively traded in European
Exchanges(ECX). The European Union Emission Trading Scheme (EU ETS) is the largest
multinational, greenhouse emissions scheme in the world and is committed to reduce 8%
1990 levels of emission in 2008-2012.Carbon Development Mechanism(CDM) is another
trading project which is administered by the CDM executive which reports and is accountable
to the Conference of Parties(COP) Carbon Trading in India.

The Environmental Carbon Trading is done on the basis of the Carbon Credits earned. The
Carbon Credits are the production cost, for which, ultimately the consumer pays. These
credits are maintained in the form of Electronic certificates which facilitates its trading. Two
types of trading take place in carbon market Cap and trade (or emission trading) and Offset
trading (trading in project based carbon credits). Over the last few years several instruments,
mechanisms and markets have emerged for carbon trading. Two types of carbon market
exist-

a. Voluntary Market: Voluntary market support activities to reduce emission not

mandated by policymakers, including certifications to support carbon neutrality. In
this market the trade of carbon credit is on a voluntary basis. As of March 2010, there
are currently more than 2000 registered CDM projects in 58 Countries.
b. Compliance Market: The compliance market is used by companies and government
that, by law, have to account for their GHG emissions. It is regulated by mandatory
national, regional and international carbon reduced regimes.
Steps for Carbon Trading163

There are various steps of carbon trading which are as follows:

a. Setting a Clear Goal – Capping Emissions

The first step is to pass regulation that sets mandatory limits (or caps) on Carbon dioxide
emissions over a specific time period. The national cap determines the supply of allowances
over a given period, which will affect the price signal. The cap is set to achieve a reduction in
emissions to a desired level over the target horizon. Typically, this cap is broken down into
targets for different sub periods, providing interim goals for emission reductions along a path
towards the long-term target.

163
http://www.ijoart.org/docs/Environmental-carbon-trading-scenario-in-India-A-Global-issue-of-21-st-Century-
A-Review.pdf (Last accessed on 28/04/2016)

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 b. Assigning Responsibility – Allocating Allowances
National regulations specify which individual firms are covered by the cap –whether private
companies, public sector installations, or both. Each firm is given its own cap consistent with
an aggregate reduction in Carbon dioxide emissions. The firms are then allocated the
appropriate number of carbon allowances. At the end of the period covered by the
regulations, each firm must either reduce its Carbon dioxide emissions to a level at or below
its individual cap, or deliver allowances equal to the excess amount of emission. Firms that
fail to meet their targets are fined.
c. Facilitating Cost-Effective Emission Reductions – Trading
Once allowances are allocated, the stage is set for trading to begin. Each firm must determine
the most cost-effective means to reduce (or abate) its carbon emissions. The firm may invest
in improving its production processes. Or it may judge that it is cheaper to buy allowances in
the carbon market sufficient to cover its excess emissions.
d. Ensuring Accountability – Monitoring and Reporting
As with any market, a cap-and-trade market may not develop efficiently without the
necessary infrastructure. Experience suggests that a successful carbon- trade system relies on
the following elements: registration of the ultimate owner of allowances or credits
independent monitoring of emissions from a facility reporting of emissions to a central
authority over a given period verification of the level of emissions and confirmation of
reductions These components are critical for promoting both public and business confidence
in the system, allowing the market to function properly, and minimizing uncertainty. While
some of these functions may be provided by financial intermediaries, a central authority may
have responsibility for some or all of the functions.
e. Ensuring Compliance-Reconciliation
At the end of the period covered by the scheme, regulators must reconcile a firm‘s emission
against its holdings of allowances to ensure compliance. The firm must either deliver the
equivalent number of allowances for its excess emissions, or pay some predetermined fine if
they are short. This fine effectively sets an upper limit on prices for emissions. Without
effective compliance and enforcement, the incentives will not be in place to ensure an
aggregate reduction in emissions. In the case of the U.S. Acid Rain Program, compliance has
been very high, with over 99 per cent of firms meeting their targets, thanks to rigorous
monitoring, reporting requirements, and stringent penalties. By 2007, the Environmental
Protection Agency reported that sulphur dioxide emissions were 41 per cent below their 1980
levels, while emissions of nitrogen oxides were 57 per cent below their 2000 levels.

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Carbon Trading Practices in India

About 65 percent of India‘s carbon dioxide emissions in 2009 was from heating, domestic
uses and power sector. About 9 percent of India‘s emissions were from transportation (cars,
trains, two wheelers, airplanes, others). India‘s coal, oil and natural gas thermal power plants
are inefficient and offer significant potential for CO2 emission reduction through better
technology. Compared to the average emissions from coal-fired, oil-fired and natural gas-
fired thermal power plants in European Union (EU-27) countries, India‘s thermal power
plants emit 50 to 120 percent more Carbon dioxide per kWh produced 164 . This is in
significant part to inefficient thermal power plants installed in India prior to its economic
liberalization in the 1990s.

Between 1990 and 2009, India‘s carbon dioxide emissions per GDP purchasing power parity
basis have decreased by over 10 percent, a trend similar to China. Meanwhile, between 1990
and 2009, Russia‘s carbon dioxide emissions per GDP purchasing power parity basis have
increased by 40 percent. India has one of the better records in the world, of an economy that
is growing efficiently on Carbon dioxide emissions basis. In other words, over the last 20
years, India has reduced CO2 emissions with each unit of GDP increase 165. Per Copenhagen
Accord, India aims to further reduce emissions intensity of its growing GDP by 20 to 25
percent before 2020, with technology transfer and international cooperation. Nevertheless, it
is expected, that like China, India‘s absolute carbon dioxide emissions will rise in years
ahead, even as International Energy Agency‘s Annex I countries expect their absolute Carbon
dioxide emissions to drop.

These pollutants are emitted in large quantities in India every day from incomplete and
inefficient combustion of biomass (fuel wood, crop waste and cattle dung). A majority of
Indian population lacks access to clean burning fuels, and uses biomass combustion as
cooking fuel. India's poorly managed solid wastes, inadequate sewage treatment plants; water
pollution and agriculture are other sources of greenhouse gas emissions166.

India has a better opportunity for its industries to produce carbon credits because India has a
much less emission level as compared to other developed nations. Presently, after China India

164
International Energy Agency, France, CO2 Emission from fuel combustion highlights, 2011.
165
Ibid.
166
Ganguly et al., Indoor Air pollution in India – A major environmental and public health concern. Indian
Council of medical research, New Delhi, 2001

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the biggest producer of CERs in the world is India. This is because of the outdated
technology adopted by the energy sector industries which need an overhauling. Hence the
Coal fired power generations in India are the biggest polluter and the biggest opportunity for
emission reduction. The CDM projects in India include biogas, biomass, energy efficiency,
waste gas and wind energy. In India most of the energy sectors are the market for CDM
projects. Till date India has the second largest carbon market globally registered under CDM
projects.

Examples of Carbon Trading in India167

There are some of the examples for controlling climate change in India:

i. Powerguda in Andhra Pradesh:

The village in Andhra Pradesh was selling 147 tonnes equivalent of saved carbon dioxide
credits. The company has made a claim of having saved 147 MT of CO2. This was done by
extracting bio-diesel from 4500 Pongamia trees in their village.

ii. Jindal Vijaynagar Steel:

Years it will be ready to sell $225 million worth of saved carbon. This was made possible
since their steel plant uses the Corex furnace technology which prevents 15 million tonnes of
carbon from being discharged into the atmosphere.

iii. Handia Forest in Madhya Pradesh

In Madhya Pradesh, it is estimated that 95 very poor rural villages would jointly earn at least
US$300,000 every year from carbon payments by restoring 10,000 hectares of degraded
community forests.

Legal aspect of Carbon Trading in India

The Multi Commodity exchange started future trading on January 2008 after Government of
India recognized carbon credit as commodities on 4th January. The National Commodity and
Derivative Exchange by a notification and with due approval from Forward Market
Commission (FMC) launched Carbon Credit future contact whose aim was to provide
transparency to markets and help the producers to earn remuneration out of the environment
projects.
Carbon credit in India is traded on NCDEX only as a future contract. Futures contract is a

167
http://www.ijsret.org/pdf/carbon_trading.pdf (Last accessed on 28/04/2016)

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standardized contract between two parties to buy or sell a specified asset of standardized
quantity and quality at a specified future date at a price agreed today (the futures price). The
contracts are traded on a future exchange. These types of contracts are only applicable to
goods which are in the form of movable property other than actionable claims, money and
securities. Forward contracts in India are governed by the Indian Contract Act, 1872.

Under the present provision of the Forward Contracts Regulation Act, the trading of forward
contracts will be considered as void as no physical delivery is issued against these contracts.
To rectify this The Forward Contracts (Regulation) Amendment Bill 2006 was introduced in
the Indian Parliament. The Union Cabinet on January 25, 2008 approved the ordinance for
amending the Forward Contracts (Regulation) Act, 1952. This ordinance has to be passed by
the Parliament and is expected to come up for consideration this year. This Bill also amends
the definition of ‗forward contract‘ to include ‗commodity derivatives‘. Currently the
definition only covers ‗goods‘ that are physically deliverable. However, a government
notification on January 4th paved the way for future trading in CER by bringing carbon credit
under the tradable commodities.

4.7 Conclusion

Climate change is no more a trivial issue. IPCC in their 3rd report specifically mentions that
―Climate change will impede nations‘ abilities to achieve sustainable development pathways
as measured, for example, by long-term progress towards the Millennium Development
Goals‖. Over the next half-century, it is very likely that climate change will make it more
difficult for nations to achieve the Millennium Development Goals for the middle of the
century. It is very likely that climate change attributed with high confidence to anthropogenic
sources, per se, will not be a significant extra impediment to nations reaching their 2015
Millennium Development Targets since many other obstacles with more immediate impacts
stand in the way Climatic problem will not only damage our generation but it can render
devastating effects on our future generation. Thus, with the above ways one can control the
impacts of climate change. To conclude with I would mention that ―Mother nature can only
suffice our needs, not our greed‖. So it is our humble duty to make amendments for what we
mangled up. Enacting climatic law and spreading awareness can do a great job to nature and
likewise to humanity.

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 CHAPTER –5

JUDICIAL APPROACH TOWARDS CLIMATE CHANGE IN USA AND INDIA

There has been much positive activity on the international plane in developing international
legal norms for environmental protection since the Stockholm conference on Human
Environment in 1972. These forty years have been quite productive in evolving the principles
and conventional norms binding the states to actively enact legislation to protect
environment. Think globally act locally is the guiding principle. Sovereign states cannot be
practically forced to abide by the international legal norms in the creation of which they have
been a party. They can only be inspired and obliged to actively create national structure of
policies, laws, and governmental action to protect environment in accordance with
international norms.

Climate change liability litigation is a United States phenomenon. Though climate related
litigation exists in other countries, more climate change cases have been brought in the
United States than in the rest of the world combined, and the United States stands alone in
seeing significant litigation that seeks to hold greenhouse gas (GHG) emitters liable for the
harms caused by climate change.

The first wave of climate liability litigation began in the mid-2000‘s during President George
W. Bush‘s administration. Frustrated by the absence of a national climate change regulatory
scheme in the United States, climate liability litigation began as environmental groups sought
to compel policy development through two litigation avenues. One approach was to use the
existing United States legal and regulatory apparatus to address rising GHG emissions. The
second approach was to use the tort system to seek monetary or injunctive relief from the
largest emitters of GHGs, such as coal fired power plant operators, and the manufacturers of
emitting equipment, such as automobile companies.

Climate litigation is in its infancy in India. Climate-related claims have yet to be litigated in
the courts. There are a few cases in which climate change has been referred to but only in
passing. This situation may well be set to change. Climate change and its impacts are rapidly
capturing the popular imagination in India. There is a growing recognition of the importance
and urgency of the climate challenge, and a slew of climate policies and initiative at the

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national and state levels have been launched in response. India has an engaged and proactive
civil society, an activist judiciary, a progressive body of enviro-legal jurisprudence, and an
unparalleled culture of public interest litigation. This suggests not just that there are potential
litigants waiting in the wings but also that climate-related claims are likely to be favourably
entertained by the judiciary.

5.1 Judicial Approach in the United States of America

The United States is already developing a body of climate change law and policy at the
national level. To a great degree, this body of law is growing out of environmental law and
energy law, as well as other areas of law. This national policy also includes President Bush‘s
greenhouse gas intensity goal.The United States Supreme Court‘s April 2007 decision in
Massachusetts v. Environmental Protection Agency,168however, made the Clean Air Act a
likely basis for future regulation as well as the most likely foundation for future climate
change legislation.

Clean Air Act, 1963

Under the Clean Air Act, the EPA has established national ambient air quality standards for
six pollutants—sulphur dioxide, ozone, lead, particulate matter, carbon monoxide, and
nitrogen dioxide. These standards are intended primarily to protect human health from the
adverse effects of these air pollutants, which are also known as criteria pollutants. The Act
authorizes a significant regulatory program, principally administered by the states, to control
emissions of these pollutants from stationary sources such as power plants and factories, in
order to attain these standards. A second major program under the Clean Air Act controls
emissions of air pollutants from motor vehicles. These two programs, taken together, have
resulted in significant improvements to air quality and human health in the United States
since 1970.

Over the last decade, the number of cases involving climate change has increased noticeably.
Several cases have already been filed in national and international tribunals worldwide.
United States has experienced a surge of this kind of litigation. Massachusetts v. EPA169 was
one such case and the U.S. Supreme Court‘s decision in the same has significantly altered the
Government policy and re-drawn the litigation landscape. Massachusetts and several others

168
Massachusetts v. EPA, 127 S. Ct. 1438 (2007).
169
549 U.S. 497 (2007).

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brought claims against the U.S. Environmental Protection Agency (EPA) challenging the
agency‘s decision not to regulate GHG emissions from motor vehicles under the Clean Air
Act, 1963. Massachusetts contented that under the Clean Air Act, EPA had the responsibility
to regulate any air pollutant including greenhouse gases that can ―reasonably be anticipated to
endanger public health or welfare.‖170The U.S. Supreme Court decided that the Clean Air
Act, 1963 does give EPA the power to regulate.

National Environmental Policy Act [NEPA], 1969

The National Environmental Policy Act (NEPA) requires federal agencies considering any
major federal action ―significantly affecting the quality of the human environment‖ to prepare
a detailed statement on ―the environmental impact of the proposed action‖ and ―alternatives
to the proposed action.‖171It is increasingly clear that federal agencies need to consider the
climate change effects of their activities under the NEPA, including impacts from activities in
the United States and also activities sponsored by federal agencies in other countries. In its
recent decision in Center for Biological Diversity v. National Highway Traffic Safety
Administration, the court also remanded the 2006 CAFE regulation for light trucks because of
the agency‘s failure to fully analyse its climate change impacts under the NEPA.172

Meaning of Climate Change Litigation

The term ‗climate change litigation‘ can have a range of meanings. At its core, it describes
when claimants appeal to a court to enforce or clarify existing climate change laws– for
example, if citizens believe government or a corporation is not meeting its legal requirements
to reduce greenhouse gas emissions. Such lawsuits can only stand up, of course, when the
defendant is subject to legally-binding actions on climate change. Alternatively, they can be
called ‗pro-climate‘ lawsuits.
Markell and Ruhl, for instance, define climate litigation as any litigation ‗in which the party
filings or tribunal decisions directly and expressly raise an issue of fact or law regarding the
173
substance or policy of climate change causes and impacts.‘ This definition brings
productive clarity in that it helps identify cases in which climate change is at issue rather than
merely referenced in the obiter. It is also helpful because the application of such a definition
170
Sec. 202 (a) of Clean Air Act, 1963
171
42 U.S.C. § 4332(2)(C) (2000).
172
Center for Biological Diversity v. Nat‘l Highway Traffic Safety Admin., 508 F.3d 508 (9th Cir. 2007).
173
David Markell and J.B. Ruhl, ‗An Empirical Assessment of Climate Change in the Courts: a new
Jurisprudence
or Business as Usual?‘ (2012) 64 Florida Law Review 15, 27.

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identifies cases that the parties to the litigation and/or the Court, rather than scholars or
advocates, perceive and characterize as ‗climate litigation.‘

Climate change Litigation in USA

Over the last decade, the number of cases involving climate change has increased noticeably.
Several cases have already been filed in national and international tribunals worldwide.
United States has experienced a surge of this kind of litigation. Massachusetts v. EPA174was
one such case and the U.S. Supreme Court‘s decision in the same has significantly altered the
Government policy and re-drawn the litigation landscape. Massachusetts and several others
brought claims against the U.S. Environmental Protection Agency (EPA) challenging the
agency‘s decision not to regulate GHG emissions from motor vehicles under the Clean Air
Act, 1963. Massachusetts contented that under the Clean Air Act, EPA had the responsibility
to regulate any air pollutant including greenhouse gases that can ―reasonably be anticipated to
endanger public health or welfare.‖175 The U.S. Supreme Court decided that the Clean Air
Act, 1963 does give EPA the power to regulate.
This case is a typical example where the Supreme Court of U.S.A. decided an administrative
law question whereby avoiding a much disputed issue of scientific evidence for climate
change.176 Although, administrative law cases are not subject to Daubert Standard 177 and the
Federal Rules of Evidence, they do help in making up the backdrop of climate change
litigation in which common law actions proceed.178 However, establishing scientific evidence
in climate change litigation is an important step in deciding the standing of the parties.
In U.S.A., for climate change cases the courts are still reluctant to touch the scientific
question. Dealing with nuisance is, though, not uncommon there. The first of such kind
brought on the common law action of public nuisance was Connecticut v. American Electric
Power Co.179 In 2004, a coalition of states, private land trusts, and New York City sued a
group of major electric power companies for their perpetration of climate change. They
alleged that these power companies are the largest emitters of greenhouse gases (GHG) in the
United States, collectively emitting 650 million tons of carbon dioxide each year; that carbon
dioxide is the primary GHG; and that GHGs trap atmospheric heat and cause global climate

174
549 U.S. 497 (2007).
175
Sec. 202 (a) of Clean Air Act, 1963
176
Ryan Hackney, Flipping Daubert: Putting Climate Change Defendants in the Hot Seat, 40 Envtl. L. (2010) at
255.
177
Ibid, 265
178
Ibid, 261
179
406 F. Supp. 2d 265

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change, which is an ongoing public nuisance that must be abated under federal or state
common law. Plaintiffs sought a court order requiring defendants to cap and reduce their
GHG emissions.180
The United States District Court for the Southern District of New York dismissed this case in
2005 as a non-justiciable political question before any scientific evidence could be
presented.181However, in September 2009, restoring the case, the Second Circuit Court of
Appeals reversed the District Court‘s judgment. It held the political question doctrine did not
bar the Court from considering the case and all plaintiffs had standing to bring ―public
nuisance‖ lawsuit against power companies for injuries caused by climate change. 182 This
decision does not address the final position though, as rehearing is still pending in the Second
Circuit Court where the plaintiffs have opportunity to pursue their claims further.
Another significant case on climate change based on the ground of nuisance is Comer v.
Murphy Oil USA183 where a three-member panel of the Fifth Circuit Court revived a lawsuit
filed by residents along the Mississippi Gulf coast against several corporations in the energy
and fossil fuels industries, alleging they were responsible for property damage caused by
Hurricane Katrina. Initially in 2007, the plaintiffs sought damages under the tort theories of
unjust enrichment, civil conspiracy and aiding and abetting, public and private nuisance,
trespass, negligence, and fraudulent misrepresentation and concealment. At the district court
level, the defendants were successful in dismissing plaintiffs‘ complaint. The United States
District Court for the Southern District of Mississippi granted the defendants‘ motions and
dismissed the action on the ground that the plaintiffs did not have standing to raise political
questions that should not be resolved by the judiciary. The Court also found that the harm
was not traceable to individual defendants. On 16 October 2009, the U.S. Court of Appeals
for the Fifth Circuit overturned a District Court dismissal in part, holding that the plaintiffs
both have standing to raise at least three of the claims (nuisance, trespass, negligence), and
that the claims are justiciable only to vacate the panel decision on March, 2010 deciding that
it would itself consider the appeal from the District Court en banc.184
This recent development in Comer v. Murphy Oil USA is very important because this may set
a parameter for climate litigation for the American courts in the future. Also it may provide

180
Ibid.
181
Ibid, 271
182
Connecticut v. American Electric Power Co., 582 F.3d 309, 314-15 (2d Cir. 2009).
183
585 F.3d 855 (5th Cir. 2009) available at http://www.ca5.uscourts.gov/opinions/pub/07/07-60756-
CV0.wpd.pdf (last visited January 29, 2016)
184
Kivalina v. Exxon Mobil Corp., et al., 2008 (Federal Common Law Public Nuisance 28 U.S.C. §§ 1331,
2201)

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an answer to the question whether a corporate entity can be made liable for catalysing
devastating climatic incidents along with clarifying plaintiff‘s legal stand to bring a suit for
such activities. It is expected that scientific challenges may continue to affect climate change
lawsuits based on public nuisance and negligence actions. It is also argued that plaintiffs may
be successful by applying those common law theories. If it happens as expected, the damages
and costs of adaptation will be enormous and the interest in finding parties to pay those costs
will likewise be enormous.

5.2 Judicial Approach in India

Climate change discussions currently lay emphasis on mitigation strategies with minimum
adverse impact. India, as a rapidly transitioning economy, is critical to the outcome because
of the potential and actual increase in its energy consumption and greenhouse gas emissions.
However, concentrating on India‘s role, although crucial, undermines another concern—the
potential erosion of constitutionally guaranteed rights of millions of Indians. In particular, the
rights of Indians, whose head count support the Indian government‘s equitable claim to emit
greenhouse gases (GHG) based on a per capita calculation, are at stake, but there is no
remedy in sight.

The Supreme Court has been very vigilant and sensitive on the matter of environment in last
few decades of the twentieth century and introduced several basic principles of environmental
law emphasizing the need to preserve the environment- ―there should not be development at
the cost of environment and vice-versa. 185 The court endorsed Principle 3 of the Rio
Declaration stating as right to development must be fulfilled so as to equitably meet
development and environmental needs of the present and future generation.186The principle of
sustainable development encompasses all the socio-economic and the cultural activities and
the ecosystem that needs to develop in harmony. The supreme Court, acknowledging the fact
that global warming due to industrialization, burning of fossil fuels and massive
deforestation, has cautioned that the ―global warming is expected to profoundly affect species
and ecosystem‖.187 The court further planted188the concept of public trusteeship as a core
principle for the protection of natural resources of the land and sea in the corpus of Indian

185
Indian Council for Enviro-legal Action v. Union of India (1996) 5 SCC 281 at 296
186
Supra note 69 at 363.
187
Karnataka Industrial Area Development Board V. C. Kenchappa (2006) 6 SCC 371 at 380
188
M.C. Metha v. Kamal Nath, (1997) 1 SCC 388

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environmental law. The public trust doctrine is an affirmation of the duty of the state to
protect the people‘s common heritage of the components of environment.
Under Article 32 and 226 of the Constitution of India, the Public Interest Litigations have
been an eye opener in Environmental issues for a long time. The leading cases decided by the
Supreme Court of India has been PIL cases. The Delhi Vehicular Case regarding the
Pollution of Delhi is one of the most famous Public Interest Litigations in this regard. This
Petition was filed by M.C. Mehta to save many lives that were being affected by the
pollution, and the Supreme Court took a stand in this case and went to the extent of setting up
an expert committee and implementing the decisions of the committee. The court had
exhibited their authority in environmental issues also in the Dehradun Quarrying case. In
dealing with these cases, though not directly but indirectly the Supreme Court has already
taken steps to mitigate climate change. Since the Supreme Court had taken a step forward in
introducing technologies, it would not be very wrong to assume that faced with a similar
problem in hand there are chances that, keeping all aspects and expert comments in mind the
Supreme court might take active decisions regarding climate change mitigation.

Climate Concerns Raised in Indian Courts

Climate concerns have, however, begun to filter through to courts and tribunals at various
levels, as the cases that follow will demonstrate. The existing case law relating, however
tangentially, to climate concerns, can be divided into three broad categories: cases in which
petitioners raise climate concerns, among others, to challenge what they perceive as ill-
informed decision making on environmental matters; cases in which respondents raise
climate concerns, among others, to justify, in the face of a challenge, what they perceive as
environmentally sound decision making; and cases in which judges appear of their own
volition to refer to climate concerns, albeit in passing and as obiter, as one among the reasons
for their decision.

In the first category of cases, petitioners raise climate concerns, among others, to argue for
more environmentally friendly decision-making. In such cases petitioners appear to be using
‗climate concerns‘ as a sword to stimulate better-informed decisions and actions relating to
the environment. For instance, in Manushi Sangthan, Delhi v. Govt. Of Delhi & Ors189 the
petitioners challenged the limit set by the Delhi Municipal Corporation on the issuance of
cycle rickshaw licenses, arguing, inter alia, that the IPCC‘s Fourth Assessment Report, 2007,

189
168 (2010) DLT 168.

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had emphasized the need for policies that encourage use of more fuel-efficient vehicles,
hybrid vehicles, non-motorized transport, (such as cycling and walking), and better land-use
and transport planning. Although not directly with reference to this argument, the Court held
the limit imposed by the Delhi Municipal Corporation to be arbitrary, and ordered a more
detailed study on urban transportation options. In We the People v. Union of India190 the
petitioners argued that State authorities were cutting down old growth trees in the execution
of development projects such as road expansions, thereby contributing to global warming,
without planting oxygen-generating trees to compensate for the loss of such old growth trees.
The Allahabad High Court found merit in this argument and ordered the Principal Chief
Conservator of Forest to appear before the Court and provide details of compensatory tree
planting measures. The Court heard details of trees, including varieties, felled and planted in
the State of Uttar Pradesh in the context of road construction and expansion projects, and
directed the government to make provision for sufficient space to plant trees, the majority of
which should be old growth trees, while constructing roads.191

In the second category of cases, respondents raise climate concerns to justify their actions. In
such cases respondents appear to be using climate concerns as a shield to defend their actions.
In Nar Bahadur Bhandari and Ors v. the State of Sikkim and Ors, the petitioners challenged
the construction of a hydroelectric power project on the Teesta River. The Court referred to a
Ministry of Environment and Forests affidavit that had been filed in the Supreme Court in a
related case before the T. N. Godavarman bench. In this affidavit, the Ministry of
Environment and Forests justified their decision to permit the construction of this
hydroelectric power project. They argued inter alia that India suffered from a severe peak
power shortage, and ‗this position needs to be corrected through execution of more and more
hydro power projects to generate environment friendly and peak power and reduce
dependence on power generation based on fossil fuels which are contributing enormously
towards atmospheric pollution and global warming.‘

In the third category of cases, judges, in so far as this can be inferred from the judgments,
appear to refer suo moto to climate concerns, among others, in their judgments. This category
can be further distinguished into two: those cases in which climate concerns are part of the
rationale, albeit secondary, for the judgment; and those cases, in which climate is identified

190
Order of the Allahabad High Court in Misc. Bench No. 5750 of 2010, 16 June 2010, available at
http://www.indiankanoon.org/doc/1558452/(last visited on 30th January 2016)
191
Ibid., 18 June 2010, available at http://www.indiankanoon.org/doc/1172427/ (last visited on 30th January
2016)

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as one of many environmental concerns plaguing the planet. In deciding what legal value to
ascribe to the latter set of judicial references to climate change, however, it is worth keeping
in mind that in cases relating to social and environmental issues some Indian judges are given
to writing meandering judgments replete with obiter invoking religion, nature, philosophy,
literature and such like. Much can and is often read into such references but their overall legal
impact is muted.

In the first and more interesting sub-category of cases is the Supreme Court‘s decision in
Narmada Bachao Andolan v. Union of India. 192 The Supreme Court while allowing the
continued construction of the controversial Narmada Dam, noted as part of the rationale for
favouring hydroelectric power projects that ‗…thermal power projects use fossil fuels, which
are not only depleting fast but also contribute towards environmental pollution. Global
warming due to the greenhouse effect has become a major cause of concern. One of the
various factors responsible for this is the burning of fossil fuel in thermal power plants. …On
the other hand, the hydel power's contribution in the greenhouse effect is negligible and it can
be termed ecology friendly.‘ A more recent case in a similar vein is Tamil Nadu Newsprint
and Papers Ltd. v. Tamil Nadu Electricity Regulatory Commission 193 . In this case the
Appellate Tribunal for Electricity upheld an order fixing a tariff for the purchase of power
from non-conventional energy sources. The Tribunal observed in its order that, ‗the danger
[of climate change] needs to be averted by undertaking measures to curtail emission of
greenhouse gases. Though largely it is the developed countries which are major
contributories of greenhouse gases, we also need to regulate electricity sector for protection
of environment in accordance with the spirit of the Constitution and the Electricity Act, 2003.
Small steps in the first instance, to reduce dependence on fossil fuel to the extent possible,
which does not impact the progress of electricity sector, can ultimately lead to generation of
momentum for a giant leap in the development of technology for production of clean energy.‘

There are numerous cases in the second sub-category. Climate change concerns have been
taken note of, as one among many pressing environmental concerns, by the Supreme Court of
India and various High Courts. In Karnataka Industrial Areas Development Board v. Sri C.
Kenchappa & Ors 194 the Supreme Court, in ordering authorities to properly consider the
adverse environmental impacts of development before acquisition of lands for development,

192
AIR 2000 SC 3751
193
2007 ELR (APTEL) 157.
194
(2006) 6 SCC 371.

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referred to the devastating impacts of human intervention on the planet, including the impacts
of climate change and ozone layer depletion. Similarly, in Bombay Dyeing and Mfg. Co. Ltd.
v. Bombay Environmental Action Group and Ors, 195 the Supreme Court noted to need to
prioritise environmental issues, inter alia, due to climate change concerns. The Court has also
acknowledged climate concerns in the context of considering the merits of different sources
of energy. In Reliance Natural Resources Ltd. v. Reliance Industries Ltd,196while describing
the benefits of natural gas, the Court observed that ‗Its low carbon content, relative to other
fossil fuels, implies that its use may help in combating global warming problems‘.

The Allahabad High Court in Swami Parmanand Bhatta Company v. Union of India, ruled
that the government could regulate in the interests of the environment the petitioner‘s
exercise of his right to operate his brick kiln. The Court noted in this context that the ―adverse
effect of environmental pollution are now felt, as evidenced, like global warming, recurring
natural calamities and on health of people.‖ The Delhi High Court in Outdoors
Communication v. PWD and Municipal Corporation of Delhi, a case relating to the tendering
of outdoor advertising space, noted that ‗the warnings of global warming have deserved scant
attention.‘ The Bombay High Court in Goa Foundation v. Goa State Coastal Zone
Management refused to review a decision to allow the construction of a resort on Bagga
beach on the grounds that their power of judicial review was limited. However, the Court
observed that, ‗as far as the State of Goa is concerned, the entire coastline is filled with sand
dunes. Sand dunes do play akey role in protection of the hinterland, in as much as the sand
dunes as sentinel against any destructive cyclones, rising water level of the sea due to global
increase in temperature. …Their protection is, therefore, absolutely necessary and they are
rightly placed in CRZ I [Coastal Regulation Zone] category.‘

Judicial Activism and Public Interest Litigation

The Indian judiciary, unlike in societies more deferential to separation of powers, is a

dynamic actor that shapes law, evolves policy, and plays a central determinative role in the
governance of modern India. The Court plays this role primarily through the exercise of its
self-fashioned public interest jurisdiction. It is this jurisdiction that the Court is most likely to
exercise in a rights-based climate change claim.

195
(2006) 3 SCC 434.
196
(2010) 7 SCC 1.

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The origins of public interest jurisdiction in India can be traced to the late 1970s, early 1980s,
and in particular the case of S.P. Gupta v. Union of India in which Justice Bhagwati relaxed
the rule of locus standi, and opened up the doors of the Supreme Court to public-spirited
citizens – both those wishing to espouse the cause of the poor and oppressed (representative
standing) and those wishing to enforce performance of public duties (citizen standing).197

Public interest litigation in India can be pursued either in the High Court or Supreme Court. If
the complaint is of a legal wrong, Article 226 of the Constitution permits recourse to the High
Court of the State. If the complaint alleges a violation of fundamental rights, Article 32 of the
Constitution permits direct recourse to the Supreme Court. For violations of fundamental
rights, the Supreme Court may issue an order, direction or writ, including a writ in the nature
of habeas corpus, quo warranto, mandamus, prohibition or certiorari.198 The High Courts can
pass similar orders for enforcement of fundamental rights as well as other legal rights.199

At the behest of public-spirited individuals, the Courts have passed (and continue to pass)
orders in a range of cases. In the environmental field the Supreme Court, for instance, has
passed hundreds of orders inter alia to protect the Taj Mahal from corrosive air pollution,200
rid the river Ganges of trade effluents,201 address air pollution in Delhi and other metropolitan
cities,202 protect the forests and wildlife of India,203 and clear cities of their garbage.204

The power of public interest litigation in India lies in its freedom from the constraints of
traditional judicial proceedings. Public interest litigations in India have come to be
characterised by a collaborative approach, procedural flexibility, judicially-supervised interim
orders and forward-looking relief. Judges in their activist avatar reach out to numerous parties
and stake-holders, form fact-finding, monitoring or policy–evolution committees, and arrive
at constructive solutions to the problems flagged for their attention by public-spirited citizens.
Judges have tremendous power, in particular in public interest litigations, to design
innovative solutions, direct policy changes, catalyse law-making, reprimand officials and
enforce orders.

197
S.P. Gupta v. Union of India, 1981 Supp SCC 87, at 233.
198
Article 32, Constitution of India, 1950.
199
Articles 226, ibid.
200
Supra, note 27
201
M.C. Mehta v. Union of India (Ganga Pollution Case), 1987 AIR 965
202
M.C. Mehta v. Union of India (Delhi Vehicular Pollution Case), 1998(6) SCC 60 and 1998(9) SCC 589
203
T.N. Godavarman Thirumulkpad v. Union of India
204
Almitra Patel v. Union of India

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The Supreme Court is constitutionally empowered to ‗make such order as is necessary for
doing complete justice in any cause or matter pending before it.‘ 205 Judges are not hesitant to
exercise this power in what they perceive as the public interest. The discretion and flexibility
that the Courts have arrogated to themselves in the context of public interest jurisdiction will
enable them, when faced with a climate case, to tailor solutions to problems, evolve policy
where a vacuum exists, and govern when it perceives a governance deficit. The case of T.N.
Godavarman v. Union of India is a case in point. The Supreme Court defined a ‗forest‘ in the
absence of a definition in the Forest (Conservation) Act, 1980,206 and in so doing, the Court
extended the protective framework of the statute to all forests, irrespective of the nature of its
ownership or classification. It has since taken over the governance of all the forests in India.

In the recent past, the judiciary, has, however, struck a cautionary note. In Divisional
Manager, Aravalli Golf Club and Anr v. Chander Hass, the Court chastised the judiciary for
overreach, and advocated judicial self-restraint.207 In State of Uttaranchal v. Balwant Singh,
the Supreme Court directed the High Courts to formulate rules to encourage genuine public
interest litigations, and discourage those filed for extraneous reasons.208 Although some limits
to the use of public interest litigations may be in the offing, these will likely only weed out
those claims that are filed for private reasons, personal gain and such like. The public interest
culture, although straining the judicial system to its limits, is still alive and well.

The Constitutional Framework & Environmental Rights

The extensive public interest jurisdiction the Courts have arrogated to themselves, is
complemented by an expansive set of Constitutional rights. The Constitution of India, in Part
III, titled ‗Fundamental Rights,‘ creates a regime of protection for a privileged set of rights.
Laws inconsistent with or in derogation of these rights are void to the extent of their
inconsistency.209 The centrepiece of these fundamental rights is the right to life and liberty.210
This right has over the years been extended through judicial creativity to cover unarticulated
but implicit rights such as the right to live with human dignity,211 the right to livelihood,212the

205
Article 142, Constitution of India, 1950.
206
(1997) 2 SCC 267, at 269.
207
(2008) 1 SCC 683.
208
State of Uttaranchal v. Balwant Singh Chaufal (2010) 3 SCC 402.
209
Article 13 (2), The Constitution of India, 1950.
210
Article 21, Ibid.
211
Francis Coralie Mullin v. The Administrator, Union Territory of Delhi, (1981) 1 SCC 608
212
Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545

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right to education,213 the right to health and medical care of workers,214 and most importantly
for current purposes, the ‗right of enjoyment of pollution-free water and air‘.215

Although, thus far, no climate related claim has been brought before the Supreme Court, it is
likely, should such a claim be brought, given the Court‘s jurisprudence and its expansionist
proclivities, 216 that it would either interpret the environmental right to include a right to
climate protection or apply a human rights optic to climate impacts.

There are many different formulations of the constitutionally-protected environmental right in

India. Some of these formulations are expansive in that they can readily encompass
protection against new forms of environmental harm. Other formulations are more limiting.
The less expansive definitions define the environmental right in the context of either
pollution or health. So, for instance, in relation to pollution, the environmental right has been
characterized as the right to ‗pollution-free air and water‘, ‗fresh air, clean water‘, pollution
free environment‘, and ‗clean environment‘. It has been defined in the context of human
health, as for instance, the right to a ‗humane and healthy environment‘ a ‗hygienic
environment‘ and ‗sanitation‘. It may be difficult in the context of these formulations to argue
for an expansion of the environmental right to include climate protection, given that GHGs
are not generally considered pollutants and do not typically contribute to localized pollution
resulting in identifiable health impacts.

However, the constitutionally-protected environmental right has also been characterised as

the right to: ‗environmental protection and conservation of natural resources‘;217 ‗live in a
healthy environment with minimal disturbance of the ecological balance‘; 218 a ‗decent
environment‘; 219 and, a ‗living atmosphere congenial to human existence.‘ 220
These
formulations leave ample scope for value judgments and judicial discretion, and hence admit
the possibility of protecting against threats to the climate. Climate change will undoubtedly
disturb the ecological balance, however that term is defined. It will also render the
atmosphere less ‗congenial‘ to human existence. The inhabitants of the Sunderbans, at the
frontline of climate change, can testify to this

213
Mohini Jain v. State of Karnataka (1992) 3 SCC 666
214
Consumer Education and Research Centre v. Union of India (1995) 3 SCC 42
215
Subash Kumar v. State of Bihar (1991) 1 SCC 598
216
Ramlila Maidan Incident v. Home Secretary, Union of India
217
Intellectuals Forum, Tirupathi v. State of AP (2006) 3 SCC 549
218
Rural Litigation and Entitlement Kendra v. State of UP (1985) 2 SCC 431
219
Shantistar Builders v. Narayan Khimala Totame and Ors (1990) 1 SCC 520
220
Virender Gaur and Ors. v. State of Haryana and Ors (1995) 2 SCC 577

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Even if the Supreme Court is reluctant to extend the environmental right to cover climate
protection, it will likely be impressed with an approach that applies a human rights (in the
Indian context, a ‗fundamental rights‘) optic to climate impacts. A host of rights and
progressive realisation towards them, such as the rights to life, health and water, among
others will be at risk from climate impacts. There is a burgeoning and ever-persuasive
literature arguing the case. These rights – to life, health and water – are, as we have seen,
constitutionally protected in India. The Supreme Court would need but little persuasion to
read climate impacts as threatening these rights.

The environmental right is complemented by relevant provisions of the Directive Principles

of State Policy, in particular Articles 47 and 48A that articulate the duties of the State with
respect to public health and environmental protection. Although the Directive Principles of
State Policy are not intended to be ‗enforceable by any court‘, they are nevertheless
‗fundamental in the governance of the country‘ and it is ‗the duty of the State to apply these
principles in making laws.‘ In addition to the relevant Directive Principles of State Policy the
Constitutional schema also includes Article 51A (g) which imposes a duty on citizens to
protect and improve the environment.

Principles of International Environmental Law

In addition to the ‗extensive and innovative jurisprudence on environmental rights‘ 221 the
Indian courts have fostered, the Courts have also fleshed out the environmental right by
integrating into Indian environmental jurisprudence numerous principles of international
environmental law. 222 Such integration of international environmental principles will also
likely support rights-based climate litigants.

The principles, in particular, of precaution and inter-generational equity, and the doctrine of
public trust, as interpreted by the Indian courts, will prove useful to prospective rights-based
climate claimants. The precautionary principle requires the state to take environmental
measures ‗to anticipate, prevent and attack‘ the causes of environmental degradation. 223 It
posits further that, ‗where there are threats of serious and irreversible damage, lack of
scientific certainty should not be used as a reason for postponing measures to prevent

221
Michael R. Anderson, ‗Individual Rights to Environmental Protection in India,‘ in A. Boyle and M. R.
Anderson
(eds.), Human Rights Approaches to Environmental Protection 199 (OUP, Oxford, 1996).
222
Principles 3, 4, 15, and 16, Rio Declaration on Environment and Development, 1992.
223
Vellore Citizens‘ Welfare Forum v. Union of India (1996) 5 SCC 647

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environment degradation‘. 224 Finally, it lays the onus of proof on the actor or the
developer/industrialist to demonstrate that the proposed action is ‗environmentally
benign‘,225an unusual and controversial interpretation of the principle. Climate change falls
neatly into the category of threats that it would be wise to take early action on. This principle
could be used to argue the case for ambitious mitigation and adaptation intervention, and to
challenge state action that falls short.

The doctrine of public trust would add further weight to the argument. This doctrine places an
affirmative duty on the state as a trustee of certain public resources to protect resources like
air, sea, water and the forests for the enjoyment of the general public.226 The Court envisages
that this doctrine would be equally appropriate ‗in controversies involving air pollution, the
dissemination of pesticides, the location of rights of ways for utilities, and strip mining of
wetland filling on private lands in a state where governmental permits are required‘. The
issue of climate change could well engage the duty of a state as trustee to protect the
atmosphere from indiscriminate GHG emissions.

The principle of inter-generational equity may also be of assistance. 227 The principle,
formulated originally in the context of forest resources, holds that ‗the present generation has
no right to deplete all the existing forests and leave nothing for the next and future
generations.‘228 Climate change presents the ultimate ‗inter-generational‘ problem. Current
generations inherited the problem, are exacerbating it, and will likely leave a legacy that
imposes severe burdens of protection and sacrifice on future generations. All three principles
– precaution, public trust and inter-generational equity - are to varying degrees recognized in
the FCCC as well. These principles offer powerful building blocks in a rights-based claim
seeking more aggressive state action on climate change. The Indian Courts would likely
provide a nurturing environment for such claims.

National Green Tribunal

In addition to the High Court and Supreme Court, the newly constituted National Green
Tribunal may also offer climate litigants a forum in which they may raise climate claims in
relation to legal rights. No such claim has yet been brought before the Tribunal in its early

224
Ibid at para 11.
225
Ibid
226
M.C. Mehta v. Kamal Nath (1997) 1 SCC 388
227
State of Himachal Pradesh v. Ganesh Wood Products (1995) 6 SCC 363
228
Indian Council for Enviro-legal Action v. Union of India (1996) 5 SCC 281

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years of operation, but it offers an additional avenue for climate litigants. The National Green
Tribunal has jurisdiction over ‗all civil cases where a substantial question relating to
environment (including enforcement of any legal right relating to environment) is involved‘
and arises in the context of a defined set of environmental laws. The Tribunal is empowered
to hear appeals brought by ‗any person aggrieved‘ by the decisions or orders of authorities
under the Air, Water, Biodiversity, Environment and Forest legislations. In addition to the
customary extension of ‗person‘ to artificial juridical persons, the NGT, has read ‗aggrieved
person‘ expansively to include ‗any person, individual or group of individuals‘ as long their
credential have been verified and their motives are pure.229 A range of actors will in theory be
able to approach the National Green Tribunal. It is worth noting, however that the National
Green Tribunal (Practices and Procedures) Rules, 2011, impose various burdensome
procedural requirements, which may in practice, deter claimants from appearing in person.
Nevertheless, dedicated climate litigants are likely to bring their claims before the Tribunal.
Appeals lie from this Tribunal to the Supreme Court.

The Tribunal, while passing an order, is required to apply the principles of sustainable
development, precaution and polluter pays. These principles, discussed earlier, have been
fleshed out in case law, and are considered part of the law of the land. The application of the
precautionary principle, in particular, may prove beneficial to climate litigants. The Tribunal
also has far ranging powers to order relief and compensation to victims of pollution or
environmental damage, for restitution of damaged property, and even for restitution of the
damaged environment.

5.3 Conclusion

Climate consciousness in India has increased in leaps and bounds in the last five years. Once
the exclusive preserve of diplomats and bureaucrats, national policy-making and international
positioning in relation to climate change is now the subject of an active national debate. The
pressure thus generated has resulted in a raft of policies and practices in relation to climate
change. There is as yet no comprehensive legislation to address climate change mitigation or
adaptation. A private member‘s bill, ‗Climate Change Bill, 2012,‘ was introduced to fill this
gap, but it failed to pass. There is also as yet no litigation in which climate concerns have
been at issue. The Supreme Court, High Courts and various tribunals have acknowledged and

229
Vimal Bhai & Ors v. Ministry of Environment and Forests, Appeal No. 5 of 2011, Order dated 14 December
2011.

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even endorsed the relevance of climate concerns in the context of environment development
trade-offs and decision-making, however, a climate-centric rights-based or other claim is yet
to brought to the portals of the Indian Courts. Given the rapidly increasing interest in and
consciousness on climate impacts, the expansive interpretation of standing in Indian courts
and tribunals on matters of public interest, and the extensive enviro-legal and rights
jurisprudence developed over the years, a rights-based climate claim is both quite likely to be
brought before Indian courts, and to be favourably entertained. In particular, in so far as such
a claim relates to carefully circumscribed and argued adaptation-related fundamental rights
violations. While such cases will likely have tremendous narrative value, whether they will
catalyse progressive domestic legislation, address the numerous environmental governance
concerns that lie at the heart of ineffective implementation, or lead to a more proactive
international stance, however, is unclear.

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 MAJOR FINDINGS, CONCLUSION AND SUGGESTIONS

After analysing the data the researcher has come to the following findings, conclusion and
suggestions:

 MAJOR FINDINGS
The researcher through the present work has explored the nature, content and scope of
Climate Change. The research work has explored that till now there has been no
comprehensive legislation to address climate change mitigation or adaptation. However,
efforts have been made to introduce a private member‘s bill, ‗Climate Change Bill, 2012,‘ to
fill this gap, but it failed to pass.There is also as yet no litigation in which climate concerns
have been at issue. The Supreme Court, High Courts and various tribunals have
acknowledged and even endorsed the relevance of climate concerns in the context of
environment development trade-offs and decision-making, however, a climate-centric rights-
based or other claim is yet to brought to the portals of the Indian Courts.

Further, the work has also discovered the fact that apart from United States of America and
India no other countries have taken steps to incorporate specifically the laws relating to
climate change. While many other countries, though not expressly mentioning the term of
climate change in their constitution but they have come up with common consensus to
address the issue of climate change.

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  CONCLUSION
“We are the first generation to be able to end poverty, and the last generation that can take
steps to avoid the worst impacts of climate change. Future generations will judge us harshly
if we fail to uphold our moral and historical responsibilities.”

-Ban Ki-Moon

There is no doubt that the climate change is a global threat. ―Global threat‖ means a threat
that affects all the nations across the globe, in fact, it is a threat whose boundaries are not
limited only to nations of the world but to the entire planet Earth. The industrial revolution
and its anthropogenic impacts on climate were so grave and hazardous that it opened the
doors of threat and disaster for the coming generations. The West at the time of industrial
revolution, was busy in making wealth by exploiting the Earth‘s resources, without the fear of
its impact on climate; and after Industrial Revolution (1800s), they used their superior powers
to conquer much of the world, especially lands in Africa and Asia. With the development of
science and technology and only after exploiting the Earth‘s resources for around a century,
in 1900s, they (the West) came to know about their anthropogenic impacts on environment,
but it was too late to awake as the Earth‘s environment had already started changing and
today it has become a grave threat to the lives of all the living creatures on the planet.

The issue of climate change is more equitable in nature than legal. This concluding chapter
draws together different strands of the analysis. The issue of climate change is more equitable
in nature than legal.

The international response to climate change has so far been very inadequate. With climate
change creating devastating impacts all over the world, there is an urgent need to address
climate change not only at the domestic level, but also at the international level. The
Copenhagen Summit, which was supposed to devise a comprehensive, legally binding
international agreement, was a failure, and the only outcome was a 'non-binding' Copenhagen
Accord.An international community needs to come up with an international agreement on
climate change, without further delay, for this is the only way that the problem of climate
change could be dealt with. The agreement should be comprehensive, and should provide for
binding emission targets for both the industrialized developed and developing countries. The
agreement should take into account the future projected emission of a country, it should be
equitable and efficient, and should also be enforceable. These are the elements which form
the backbone of a climate change agreement.

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Coming to Indian scenario, India does not have a comprehensive Law on climate change,
although the other domestic laws have incorporated some provisions with regard to the
climate change problem, viz, the Air (Prevention and Control of Pollution) Act, 1981; Energy
Conservation Act, 2001; Environment (Protection) Act, 1986; Ozone Depleting Substance
Rule, 2000; The Biological Diversity Act, 2002; The Forest (Conservation) Act, 1980; The
Motor Vehicles Act, 1988 and The Wildlife (Protection) Act, 1972.

We must recognize that global climate change caused in part by human activities raises
serious problems of justice between our generation and future generations, and among
communities within these future generations. To fulfill our responsibility to future
generations we must respect principles of intergenerational equity. We need a Global
Strategy for Climate Change, which reflects principles of intergenerational equity. The
strategy should include measures to slow the rate of change, to minimize direct damage from
change, and to transfer the resources and tools necessary to adapt to climate change. Elements
of such a strategy must be translated into enforceable norms at the international, national, and
local levels.

Climate change is the defining issue of our times. It is perhaps, the greatest challenge to
sustainable development. It should be addressed by all countries with a shared perspective,
free from narrow and myopic considerations. The developed countries need to look beyond
their narrow self-interests and work jointly with the developing countries to evolve
cooperative and collaborative strategies on the issue of climate change, which is of immense
relevance for the future of mankind. However, the efforts so far in the direction of meeting
the challenges of climate change have been sporadic and incoherent. We urgently need a new
economic paradigm, which is global, inclusive, cooperative, environmentally sensitive and
above all scientific. According to Jeffrey Sachs, a perceptive commentator, ―The world‘s
current ecological, demographic and economic trajectory is unsustainable, meaning that if we
continue with ―business as usual‖ we will hit social and ecological crises with calamitous
results‖. Sustainable development based on addressing the needs of the poor and optimal
harnessing of scarce resources of water, air, energy, land, and biodiversity will have to be
sustained through more cooperative endeavors. Then alone, we could make some headway in
saving our lone planet from the brink of climate disasters.

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  SUGGESTIONS
Following suggestions may be submitted for combating and mitigating the effects of climate
change:

i. Compact Fluorescent Lamps (CFL) should be used instead of traditional electric bulbs
because it consumes very less power. CFL also does not radiate heat. Consequently, it
reduces the global warming. Government should take some initiatives in the form of
subsidy, incentive, etc.

ii. People should use public transport rather than personal connivances and adopt the
culture of ‗car-pooling‘.

iii. The speed of vehicles should be limited up to the range of 50-60 kilometer per hour.

iv. Population should be controlled by making the people aware about the disadvantages
of population explosion. As it is not easy in a complicated society like India, so
government should take some hard steps in controlling the population in the form of
some incentives to those who have only one or two children.

v. Afforestation should be promoted and deforestation should be avoided because plants

and trees decrease the concentration of carbon dioxide in the atmosphere.

vi. We should rely upon the rain water harvesting. All the new building should be
constructed with an open tank on the top most roof to collect the rain water which will
be used for various useful purposes.

vii. Building should be constructed with modern eco-friendly technology.

viii. Herbal beauty cosmetics should be used instead of other traditional cosmetic items
which are made of harmful chemicals. These herbal organic cosmetics are eco-
friendly and do not affect the climate.

ix. The dependency upon renewable energy such as solar energy, wind energy, etc.
should be enhanced. This is one of the strongest devices to combat climate change.
Government should concentrate on better research and technological advancement
regarding using the solar energy. There is also need to give subsidy to the public at
large so that the people could purchase the solar plate along with other devices. This
is best alternate of electricity which will help to combat the climate change.

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 x. We should rely upon the new ecological principle ―think globally, act locally,
consume less and share better‖ in place of only ―think globally but act locally.‖

xi. We should use papers as minimum as possible. We should rely upon online
transactions for depositing telephone bills, electricity bills, insurance premium, etc. It
decreases power consumption as well as complication of works. The habit of taking
print out of every material should be avoided and if there is need of hard copy, print
should be taken on both sides of paper. Manufacturing process of papers consumes
excessive power; so habit of not wasting the papers would help in adapting and
mitigating the climate change.

xii. Recycled paper should be used as maximum as possible because it consumes sixty per
cent less power as the normal paper in the manufacturing process.

xiii. Bio-degradable and eco-friendly carrying bags, pouches, packets, toys, baskets, etc.
should be used in place of plastic items.

xiv. The dependency on plastics and fibers has become an essential part of life right from
computer chips to the aero planes. So this is not possible now to remove the plastics
from our requirements. There is only one solution of this problem that research should
be done on manufacturing the bio-degradable plastics.

xv. We should ride cycle at least once in a week or in a month. By this, the concentration
of greenhouse gas emission will be decreased.

xvi. For implementing any steps towards the mitigation of climate change, first of all
people should be made aware through the campaigns, seminars, advertisements in
newspapers, broadcasting from the radio transistors about the different aspects of
climate change and need of those steps for mitigating the same.

xvii. The help of booklets, pamphlets, posters, etc. should be taken for communicating the
message of such initiatives.

xviii. The recently drafted National Action Plan should be implemented in coordinated
manner by every Ministries of the Government of India. All the private and public
organizations should cooperate in implementing the same.

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xix. Marriage ceremonies, Birth day parties, Get-together parties with the friends and
juniors, Fare well parties, etc. Should be organized on day time instead of night hours.
Power could be saved by following this habit.

xx. Traditional fuels such as coals, charcoals, woods, bio-fuels (dried dung), etc. should
be avoided as it causes air pollution which helps in global warming. Liquefied
petroleum gas should be used for domestic as well as commercial fuels for cooking
purposes.

xxi. People should change the mind set towards the protecting and preserving the
environment as all these things could not be left on the government. People at large at
the local level and non-governmental organizations (NGOs) should come forward
actively in implementation of National Action Plan and other governmental
programmes.

xxii. Government should take help of academicians, public spirited and expert individuals
in the concerned fields and NGOs in making the policies and plans concerning the
climate change.

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 BIBLIOGRAPHY

Books Referred:

 Bell Stuart, McGillivray Donald and Pedersen W. Ole ―Environmental Law‖ 8th
Edition, 2008 Published Oxford University Press 34-46.
 Bodansky Daniel, Brunnee Jutta, and Hey Ellen, ―The Oxford Handbook of
International Environmental Law‖ 2007 published by Oxford University Press Inc.,
New York 30-43
 Usha A. ―Environment and Air Pollution: Pollution &Perspectives‖ Published by The
ICFAI University Press, 17-24 (2010)
 Frank Maes, An Cliquet, et al. (eds.) ‗Biodiversity and Climate Change‘ 2008
Published by Edward Elgar Publishing Ltd., United Kingdom.
 Dr. J.J.R. Upadhyay, ―Environmental Law‖ Published by Central Law Agency, 356-
360 (2010)
 Leelakrishnan P. ―Environmental Law in India‖ Third Edition, 2008 Published by
Lexis Nexis Butterworth‘s, Wadhwa, Nagpur. 223-235
 Myneni S.R. ―Environmental Law‖ 13th Edition 2013, Published by Asia Law House.
 Sands P. ―Principles of International Environmental Law‖2nd Edition, 2003 Published
by Cambridge University Press. 829-843
 Shanthakumar S. ―Introduction to Environmental Law‖ 2nd Edition 2014, Published
by Lexis Nexis. 402-407
 Watchman Paul Q. (ed.); ‗Climate Change: A Guide to Carbon Law and Practice‘:1st
Edition. 2008, Published by Globe Business Publications Ltd. London.
Articles:

 ―A Subaltern View of Climate Change‖, Roy Dunu, Economic & Political Weekly,
Vol. L No. 31, 31-39 (2015)
 ―Addressing Loss and Damage from Climate Change Impacts‖, Lavanya Rajamani,
Economic and Political Weekly, Vol. L No. 30, 17-21 (2015)
 Climate Change Law: An Introduction‖, Kakade Seema & Dernbach C. John, Vol. 29
No.1, Energy Law Journal, 1-31 (2008)
 ―Climate Change: How can the developing countries benefit from the entering into
force of the Kyoto Protocol?‖, Vons Barbara. 1-22 (2003)

133 | P a g e
 ―Climate Change and Biodiversity: India‘s Perspective and Legal Framework‖, Mehdi
Ali, The Journal of the Indian Law Institute, Vol. 52 No. 3 & 4, 343-365(2010)
 ―The Constitution of India and the Judiciary‘s Take on Climate Change: Does it
suffice the Need of the Hour‖, Mahasweta Sengupta, NUJS Law Review, Vol. 1, 1-10
(2015)
 ―Climate Change Laws in India – Need for Change in Legal Climate?‖, Yogessh
Swatee, ISSN No 2277 – 8179, Vol. 5 Issue 2, 1-4 (2016)
 ―Climate Proofing Infrastructure Projects: A need for planning and policy‖, Singh
Devika, Indian Law Journal, Vol. 3 Issue 1, 1-6 (2016)
 Climate Change, Intergenerational Equity, and International Law‖, Edith Brown
Weiss, Georgetown University Law Center, 615-627 (2008)
 ―Climate Change Negotiations Stalled‖, Irshad A Khan, Economic and Political
Weekly, Vol. 49 Issue No. 51, 1-5 (2015)
 ―Climate Change, Forest Carbon Sequestration and REDD-Plus The Context of
India‖, Kumar Dilip P J, Economic and Political Weekly, Vol. XLIX No.21, 22-25
(2014)
 ―Climate Change Adaptation Linking Assessments with Actions‖, Jyotiraj Patra,
Economic and Political Weekly, Vol. XLIX No. 47, 22-26 (2014)
 ―Climate Change and Domestic Mitigation Efforts‖, Gupta Vijaya, Economic and
Political Weekly, 981-987 (2005)
 ―Climate Change Battle in Paris‖, Raman Meenakshi, Economic and Political
Weekly, Vol. LI No. 2, 35-40 (2016)
 ―Climate Change in India: Forgotten Threats, Forgotten Opportunities‖, Padukone
Neil, Economic and Political Weekly, Vol. XLV No. 22, 47-54 (2010)
 ―Climate Change Vulnerability Assessment Gaps and Challenges‖, Dhanapal G,
Architesh Panda, Economic and Political Weekly, Vol. XLIX No. 26 &27, 32-34
(2014)
 ―Carbon Trading and Climate Change: An Overview of Legal and Policy
Framework‖, Tandon Usha, (2015).
 ―India's Response to Climate change: The 2009 Copenhagen Summit and Beyond‖,
Saha Autri, The NUJS Law Review, Vol. 159, 1-28 (2010)

134 | P a g e
 ―International Liability as an Instrument to Prevent and Compensate for Climate
Change‖ Shoaib Alvi, International Journal of Law and Legal Jurisprudence Studies,
Volume 2 Issue 7, pp. 222-237
 ―Legal and Precautionary Principles on Conservation on Biodiversity with Reference
to Climate Change in India – An Analysis‖, Chandrika M.P., International Journal of
Law and Legal Jurisprudence Studies, Vol. 2 Issue 4, pp. 1-11
 ―Negotiations and Agreements on Climate Change at Bali‖, Gautam Dutt, Fabian
Gaioli, Economic and Political Weekly, 11-13 (2008)
 ―The Kyoto Protocol: Bad News for the Global Environment‖ Pardy Bruce, Journal of
Environment Law and Practice, Vol. 14, 1-21 (2004)
 ―The International Climate Change Legal and Institutional Framework: An
Overview‖, David Freestone, The George Washington University Law Journal,
published by Oxford University Press, 1-22 (2009)
 ―The Climate Change Convention and Evolving Legal Models of Sustainable
Development‖, Hodas David, Pace Environmental Law Review, Volume 13 No. 1,
75-95 (2010)

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