A law around low-carbon climate resilient development

• In M.K. Ranjitsinh and Others vs Union of India, the Supreme Court of India recognised a right to be “free from the adverse impacts of climate change” sourcing it from the right to life and the right to equality.
• A patchwork of these judicial interventions would fall short of the encompassing and systemic approach climate change requires.
• Therefore, a strong case for climate legislation, tailored to the Indian context is the need of the hour.

Law to inform development choices

• Preparing India to reduce the risks of climate change and address its impacts requires re-orienting development toward low-carbon and climate resilient futures.
• Climate change relentlessly targets the vulnerable, and because an energy transition must be just, it must be grounded in the imperative of advancing social justice.
• While the concept of climate law is often associated with a top-down approach of setting and achieving targets, in a developing country, this approach is limited because addressing climate change is about more than limiting emissions.
• Instead, it requires careful, ongoing, consideration of each developmental choice and its long-run synergies and tradeoffs with low-carbon and climate resilient futures.
• To achieve this, the substantive right of protection against adverse effects of climate change must be realised, in part, through well-defined procedures in law that are applicable across levels of government.
• Several countries (67 according to one estimate) have experimented with ‘framework climate laws’ that build governance capacity to address climate change.
• Umbrella laws that define government-wide goals and substantiate them with a set of processes and accountability measures are a known and increasingly popular way of bringing climate action to the heart of government.
• However, these laws vary, and India’s approach must be tailored to our context.

What should be India’s approach?

• Starting from a low base of per capita emissions less than half the global average India’s emissions are still growing
• Our objective should be to squeeze out as much development as possible from each ton of carbon and avoid locking-in to high carbon futures.
• Moreover, India is highly vulnerable to climate impacts, and climate resilience must be an essential element of the new law.
• In meeting both objectives, considerations of social equity must be central.
• Consequently, India’s law must ensure development, but in a low-carbon direction while building resilience to ever more pervasive climate impacts.

Have a low carbon development body

• An immediate priority is to create a knowledge body in government capable of rigorously parsing policy options and the futures they might generate.
• An independent ‘low-carbon development commission’, staffed with experts and technical staff, which could offer both national and State governments practical ways of achieving low-carbon growth and resilience.
• This body could also serve as a platform for deliberative decision-making.
  • Vulnerable communities and those that may lose from technological change need to be systematically consulted.

Way Forward

• Effective climate governance requires the ability to set directions, make strategic choices, and encourage the consideration of low carbon choices and climate change impacts within line ministries.
• Across the world, climate policy is often defeated by siloed decision-making.
  • So, the law could create a high-level strategic body, which could be ‘climate cabinet’, tasked with driving strategy through government.
• A whole-of-government approach will also require dedicated coordination mechanisms for implementation.
• Not least, the law must pay attention to India’s federal structure. Many areas crucial to reducing emissions and improving resilience, electricity, agriculture, water, health and soil are wholly or partially the preserve of State and local governments.
• Any institutional structure or regulatory instrument created to protect the Court’s newly established climate right must meaningfully engage with subnational governments.
• The Court’s historical pronouncement in M.K. Ranjitsinh opens the door to legal and governance changes that make possible an actionable right against the adverse effects of climate change.
• But to realize this promise, this open door has to actually be used to pass a climate law that is well suited to the Indian context, that steers Indian development choices toward a low-carbon and climate resilient future, and that also advances justice.