Climate Change Law and

Policy
Bonosree Rani
 Introduction
• Climate Change is a global commons problem
• GHG emissions growth between 2000 and 2010 has been larger than
in the previous three decades.
• About half of cumulative anthropogenic CO2 emissions between 1750
and 2010 have occurred in the last 40 years.
• Regional patterns of GHG emissions are shifting along with changes
in the world economy.
 Risk
• Without additional mitigation, global mean surface temperature is
projected to increase by 3.7 to 4.8°C over the 21st century.
• Sea level rise and flooding – impact on coastal cities
• Food insecurity
• Rainfall Patterns Changing
• Rising Flood Risk
• Extreme Weather
 Selected Predicted Global Climate Change
Impacts
• Multi-year draughts in USA and Southern Canada
• Damage to riparian ecosystems due to flood protection
• Area of Lake Chad declining
• Rural water supply affected by extended dry season in Benin
• Health problems due to arsenic and fluoride in groundwater in India
• Flood disasters in Bangladesh
 Responses
• UNFCCC promotes international, national/regional, and subnational
initiatives like bilateral agreements, non-UN IOs, other UN IOs,
partnerships, city networks, transnational city networks, other
environmental treaties, regional governance, subnational regional
initiatives, other multilateral clubs, etc.
• Mitigation can result in large co-benefits for human health and other
societal goals.
• However, effective mitigation will not be achieved if individual agents
advance their own interests independently.
• Equity, Precaution, CBDR, transfer of technology, GCF, etc.
• SSC
• Paris Agreement 2015.
 Responses
• Cap and trade is a common term for a government regulatory program designed
to limit, or cap, the total level of emissions of certain chemicals, particularly
carbon dioxide, as a result of industrial activity. Under this program, a
government issues a limited number of annual permits that allow companies to
emit a certain amount of carbon dioxide. The total amount permitted thus
becomes the “cap” on emissions. Companies are taxed if they produce a higher
level of emissions than their permits allow. Companies that reduce their
emissions can sell, or “trade,” unused permits to other companies.
• The use of Command and Control in regulation involves the government or
similar body to “command” the reduction of pollution (e.g., setting emissions
levels) levels and to “control” the manner in which it is achieved (e.g., by installing
pollution-control technologies). This approach differs from other regulatory
techniques, e.g., the use of economic incentives, which frequently includes the
use of taxes and subsidies as incentives for compliance.
 Law and Policy Challenges
• Responsibility/Attribution (State/Private)
• Human Right including refugees
• Equity and Justice including procedural tools
• Technology Distribution/Impacts
• Finances (sources and types) and Trade
• Monitoring, Reporting, and Verifying
• Time
• Political Will
 NDC (Art. 4 of PA)
• NDCs refer national plans representing governments’ response to
the threat of global climate change and their contribution to achieve
the global targets set out in the Paris Agreement.
• the Agreement requires all parties to put forward their best efforts
through NDCs and regularly report on their emissions reduction
efforts.
• COP 19 & 21 (INDCs & NDCs).
• NDCs v SDGs.
• Developing countries v NDCs.
 India’s Climate Change Policy
► India is the world’s third largest emitter of greenhouse gases (GHGs), after China and the USA (CarbonBrief).
► However, India is also very vulnerable to climate change - it was ranked in the top ten (seventh) countries
most affected by climate change in 2019 (Global Climate Change Index 2021)
► India’s average temperature has risen by around 0.7°C during 1901–2018; by 2100 it is estimated that this
temperature increase by another 4.4°C (‘Assessment of Climate Change over the Indian Region’ report by the
Government of India Ministry of Earth Sciences)
► Key vulnerabilities include:
► Rising sea levels (sea surface temperature (SST) of the tropical Indian Ocean has risen by 1°C on average during 1951–2015,
markedly higher than the global average SST warming of 0.7°C, over the same period)
► Melting glaciers (changes in the Himalayas, an important concentration of snow and a critical water source for millions,
resulting in a declining trend in snowfall and retreat of glaciers)
► Changing precipitation patterns (overall decrease of seasonal summer monsoon rainfall during the last 6–7 decades has led
to an increased propensity for droughts over India; there is an increase in dry periods during the monsoon season, yet
increased intensity during wet periods)
► Increasing weather and climate extremes (general decrease in the annual frequency of tropical cyclones in the area from
1951; yet an increase in tropical cyclones in India in the last two decades)
► NAPCC: 8 Initiatives. NMEEE Enhanced energy efficiency:
► Perform achieve and Trade-energy saving certificates
► Energy Efficiency Financing platform-facilitate energy efficient investments
► Market Transformation for energy Efficiency- CFL Bulbs, super efficient energy equipment supported by World Bank
► Framework for energy efficiency economic development-hedge energy investments
National Legislative Framework
► Protection of the environment by the government and the citizen is anchored in the
Indian Constitution: Articles 48 a) and 51 g)
► Air Prevention and Control of Pollution Act 1981 (EPA) enacted by the Central
Government: Central and State Control Boards to handle matters connected with
improvement of air quality, monitoring activities, enforcement through fine and
criminal prosecutions; State Governments can designate particular areas as “air
pollution control areas"' and every industrial operator within that area is required to
obtain a permit from the state board
► Environment Protection Act, 1986(EPA): enables the Central Government to take
any measures as it deems for the protection of the Environment
► rules framed under the EPA prescribe emission norms for specific industries and general
emission standards' which apply in absence of industry specific norms
► Ozone Depleting Substances (Regulating) Rules, 2000
► The Forest (Conservation) Act, 1980 (“Forest Act”), which sets out provisions
relating to the conservation of forests (read with the Compensatory Afforestation
Fund Act, 2016)
National Action Plan on Climate Change
NAPCC/ National Policy Framework
► NAPCC first established 2008
► provides the framework for India's Climate Change policy
► concept of 'co-benefits' between development and Climate Change policy
► covering adaptation and mitigation
► 8 missions backed by institutional structure -> focused on energy efficiency, conservation of forests
and ecosystems and sustainable agriculture
► Example: “Green India Mission” = programme to protect, restore and enhance India’s forest
coverage at the same time increase forest-based livelihood incomes
► The National Environment Policy, 2006- promotes sustainable development, efficient
use of resources, and the integration of environmental concerns in the economic sector
► The National Forest Policy, 1988- recognises the urgency for forest conservation,
including the preservation, maintenance, sustainable utilisation of the natural
environment.
► Institutions: Ministry for Environment, Forestry and Climate Change (2014)
Climate Change Litigation in India.
➢ Indian Environmental Judiciary:
1. Supreme Court
2. High Courts
3. National Green Tribunal (since 2010)
➢ Judgements where the parties raised ‘climate change’ or ‘global warming’ issues and
‘international negotiations’:
1. Hanuman v. India, Civil Appeal No. 12251/2018. 39
2. R v. Himachal Pradesh, Application No. 492/2014
3. Punamchand v. India, Application No. 10/2013
4. Vimal v. MoEF, Appeal No. 5/2011
5. Pandey v. India, Application No. 187/2017
 Pandey v India
• To remedy the alleged injury to the present and future climate, petitioner (a
9-year-old girl) asked the court to order the national government to undertake a
variety of measures:
• including but not limited to inclusion of climate change in the issues considered by
environmental impact assessments, preparation of a national greenhouse gas
emissions inventory, and preparation of a national carbon budget against which
particular projects’ emissions impacts can be assessed.
• "There is no reason to presume that Paris Agreement and other international
protocols are not reflected in the policies of the Government of India or are not
taken into consideration in granting environment clearances."
 Jan v. MoEF, W.P.(C) No. 8399/2009.
• Recent directions of the Court to the Ministry of Environment and
Forest to get public consultation conducted for any proposed
development project at the environmentally significant sites give
some hope.
• Both the Paris Agreement and India's NDC are admitted as key
aspects of India's environmental rule of law (Hanuman v. India).
• Court failed to assign government the responsibility to mitigate global
warming (R v. Himachal Pradesh).
 Paris Agreement & Nationally
Determined Contributions
India’s first measurable domestic commitments to protect the environment and address climate
change.
Goals Results
To reduce the emissions intensity of GDP 2 degrees compatible, but not consistent
by 33%–35% by 2030 below 2005 levels; with Paris Agreement (1.5).
On pace for 40% non-fossil power
To increase the share of non-fossil-based capacity target through the use of
energy resources to 40% of installed hydroelectricity and nuclear power.
electric power capacity by 2030, with help India’s emissions intensity in 2030 will be
of transfer of technology and low-cost
international finance including from around 50% below 2005 levels, far ahead
Green Climate Fund (GCF); of the 33-35% target.The Indian
government set the target for 2022 to
175 GW of renewable capacity.
To create an additional (cumulative)
carbon sink of 2.5–3 GtCO2e (gigatonnes Effects of COVID-19; GHG emissions
of Carbon dioxide equivalent) through falling, but economic crisis looming.
additional forest and tree cover by 2030.
In total, India estimates it will need at least $2.5tn up to 2030,
from both domestic and international funds, to fulfill its pledge.
 Critique/Challenges/Opportunities

● India's National CC Policy and its institutions are too fragmented -

not yet coordinated enough and they lack personnel (in the Ministry
for Environment, CC and forestry only 7 people + 12-15 assisting on
consultancy basis)
● Legislations such as the Forest Conservation Act, EPA, were passed
before rise of awareness on climate change. They lack the important
concerns of national and international climate discourse.
● Climate Change Litigation: it is still not robust but its judiciary is well
placed to be more proactive and effective in the upcoming years.
Climate Change in Pakistan
 Background
Extreme weather
Rising temperatures events (1960-2010)
resulting in enhance i.e. Intense Floods, Mean
heat and water-stressed drought Temperatu
Pakistan’s Vulnerability to
conditions Climate Change Threats
re
(1901-2010)
Reduction in the Rainfall
already scanty forest Monsoon
cover, arising from
Winter
the natural migration Increase siltation of Projected recession
rainfall
of adversely affect major dams caused by of the Hindu,
plant species more frequent floods Kush-Karakoram-Hi Observational trends
malayan Glaciers
Policy Initiatives in Response to Climate Change Issue
● National Climate Change Policy 2012
● National Disaster Risk Reduction Policy 2012
Provide a comprehensive framework for policy goals and actions
towards mainstreaming climate change in the economically and
socially vulnerable sectors of the country.
Framework for Implementation of the Climate Change Policy
2013 (2014-2030)
A follow-up to the policies of 2012, outlines the vulnerabilities of
various sectors to climate change and identifies appropriate
adaptation and mitigation actions.
Policy Initiatives in Response to Climate Change Issue

The Framework promotes preparation of the National

Adaptation Plan (NAP), Nationally Appropriate Mitigation
Actions (NAMAs), future National Communications to the
UNFCCC as well as detailed sub-national adaptation action
plans.
· Technical Needs Assessment (TNA) with the assistance of
UNEP.
ü Remains unrealized due to financial and technical
challenges.
 Pakistan’s Vision 2025

● Pakistan’s Vision 2025 is a major policy document providing a roadmap for Pakistan’s national
development until the year 2025. The 4th of the 7 pillars is dedicated to “Water, Energy and Food
Security”.
● Relevant top 10 goals in relation to Energy:
○ Add another 25,000 MW of electricity to the national grid by 2025 (once electricity
supply-demand gap is fixed)
○ Complete two major hydel projects: Diamer- Bhasha and Dasu dams.
○ Operationalize the immense potential of Thar coal and complete Gaddani Energy Park with
6600 MW capacity.
○ Tap Pakistan’s huge potential for alternative energy.
○ Complete new Nuclear power generation plants.
○ Increase transmission and distribution efficiency since Pakistan suffers huge T&D losses: 25%
(7% in the OECD).
● They identify “Minimal investment in development of indigenous, inexpensive and scalable sources
of power generation: specifically Hydropower and Coal” as a cause of the energy crisis.
● Concerted programs are being launched to tap Pakistan’s immense potential for developing Shale
Oil and Gas, and untapped coal reserves. With regards to concerns about GHG emissions they talk
mention “Clean Coal Combustion Technologies”.
 Framework for implementation of climate change policy
(2014-2030)
Example: water sector
❏ Outline the objective:
Sector involved: e.g. To conserve water by
❏ Water sector ADAPTATION ACTION
adopting appropriate
❏ Agriculture and DIFFERENT Priority Action: within 2 years techniques and measure
livestock SECTORS THAT
❏ Respective Strategy:
❏ Forestry sector ARE VULNERABLE Short term Actions: within 5 years

TO CLIMATE Developing local rainwater

❏ Energy sector CHANGE Medium term Actions: within 10 years
harvesting measure
❏ Transport sector ❏ Action adopted:
Long term Action: within 20 years

Priority/Short Term/Medium
Term
❏ Implementing institutions:
e.g. Provincial / State
Irrigation Department
Limitations of Policy Initiatives
● The requisite institutional and policy linkages have not been fully
established.
● Technical capacity for climate proofing of existing and future
developmental projects is low and not sophisticated.
● Capacity building programmes are not implemented at
sub-national level.
● There is no harmonization between national and sub-national
policies.
 Judicial Responses to climate change in Pakistan
Ashgar v. Pakistan, W.P. No. 25501/2015
The Judiciary of Pakistan took positive and reformative stance in the first climate
change litigation in Pakistan’s history, where the petitioner requested for
enforcement of NCCP and the FICCP. The Pakistan Government was ordered to
enforce its own climate policy and establish a climate change commission to
oversee the process.
Leghari v. Federation of Pakistan (2015)
The petitioner was a Pakistani farmer who requested the enforcement of the
National Climate Change Policy of 2012 and the Framework for Implementation of
Climate Change Policy (2014-2030).
The Lahore High Court ordered the government to implement the Framework and
create a specialized body to mitigate climate change.
 Rabat Ali v. Federation of Pakistan (2016)
Petitioner seeks an injunction from the Supreme Court to stop the development of coal
fields in the Thar Desert in Pakistan’s south-eastern Sindh province. The China-Pakistan
Economic Corridor, under the Belt and Road Initiative, has planned investments worth $1.2
billion in coal-fired power plants. New coal fields are expected to increase Pakistani coal
output per year from 4.0 million metric tons to 60 million metric tons.
In Sheikh v. Pakistan case, the court based on the constitutional fundamental rights
provided instructions to revise and implement climate change related laws. The court
based on the constitutional fundamental rights provided instructions to revise and
implement climate change related laws.
In Maria v. Pakistan case, it has been alleged that the government has violated the firm commitments
made by the State of Pakistan pursuant to the Paris Agreement through its failure to prioritise clean
energy projects and to abate GHG emissions.
 Climate Change Act 2017
● Climate Change Council: responsible for National Climate Change
Report; only meets at least twice a year; lacks powers to enforce
accountability; lacks mandate to supervise Nationally Determined
Contributions (NDCs)
● Climate Change Authority: legal entity that can sue or be sued in courts;
responsible for the thrust of mitigation policies, including technical
aspects of NDCs and compliance with the Paris Agreement; too
centralized; lacks full autonomy; red tape can hinder work with
international development agencies
● Climate Change Fund: a fund to finance climate change mitigation;
source of funds to include “donations, endowments, grants and gifts”;
prior approval required for foreign aid; bureaucratic bottlenecks
 Analysis
● Pakistan’s NDC is rooted in its Vision 2025, which is a roadmap of
economic growth. According to this vision, Pakistan is expected to be
listed among the ten largest economies of the world by 2047.
Consequently, its NDC is more concerned about sustained economic
growth than climate change mitigation.

● Afghanistan, Bangladesh, Bhutan, Maldives, Nepal, Sri Lanka, and

China.