- A recent Supreme Court order stated individuals had the right to be free against the adverse effects of climate change, which legal experts say could open the door to more climate litigation in India.
- The statements were made during an ongoing case about the conservation of the great Indian bustard. The Court modified its previous order in the case, which directed all overhead power transmission lines be undergrounded.
- Conservationists are concerned that the emphasis on human rights in the judgement could overshadow the rights of critically endangered species like the GIB, a majority of which live in India.
On April 7, the Supreme Court released an order which many called extraordinary. While hearing a petition about the habitat of the critically endangered great Indian bustard (GIB), the apex court declared individuals had the right to be free against the adverse effects of climate change – an observation that could fortify climate litigation in India.
Only a handful of climate litigation cases have made it to courts in India. The articulation of human rights against the adverse effects of climate change by the country’s highest court could encourage more pre-emptive action against future impacts, legal experts told Mongabay-India.
The apex court was responding to the central government’s claim that overhead power lines installed by renewable energy projects – one of the primary threats to GIBs – could not be embedded underground in accordance with the court’s previous directions in 2021.
The Supreme Court used the necessity of renewable energy as a springboard to explore the rights of individuals in a changing climate, urging for a “delicate balance” between GIB conservation and “the environment as a whole” on the other. But there are concerns among conservationists that the emphasis on human rights in the judgement could overshadow the rights of vulnerable species like the GIB, which number just 200 globally. “The judgement clearly mentions that the primary contention here is choosing between conserving biodiversity and addressing climate change. Such distinction is problematic because conservation of natural ecosystems and biodiversity cannot be separated from the climate change crisis,” Debadityo Sinha, a conservationist and lead of climate and ecosystems at Vidhi Centre for Legal Policy, said in a post on the social media platform X, formerly known as Twitter.
Renewable energy and land use
In January this year, the Ministry of Environment, Forests and Climate Change (MOEFCC) filed an affidavit saying the court’s order to put high voltage wires underground was “practically impossible to implement.” It said the GIB was threatened by a myriad of factors such as low birth rate, poaching, habitat destruction and predation, and listed the many programmes for bustard conservation that the government has initiated. Besides not being feasible, “a blanket direction of the nature that has been imposed by this Court…would also not result in achieving its stated purpose, i.e., the conservation of the GIB,” the government said.
Companies such Adani Green Energy Ltd, ReNew Power Pvt. and Acme Solar Holdings have major solar and wind energy projects in the Thar (Rajasthan) and Kutch (Gujarat) regions, and have said undergrounding existing power lines will cost them Rs. 300 million. The 2021 decision said that all existing high and low voltage power lines should be put underground, with a three-member committee assigned to monitor progress and evaluate future cases for exemption. The committee allowed 98% of applications for future projects in Rajasthan and 82% in Gujarat to continue with overhead lines, while the rest were rejected because the wires would cut through priority GIB areas.
The Supreme Court’s latest order, however, is a major departure from what it said in 2021. The apex court now believes undergrounding the wires is “not likely to lead to the conservation of the species,” will be “prohibitively expensive” for renewable companies to draw power and is “unsafe and impractical” to carry out in the desert. It directed the feasibility of undergrounding cables to be assessed for 13,663 sq. km. of the GIB’s “priority areas.” The previous judgment covered both priority and “potential” areas, extending to 80,680 sq. km.
“Habitat loss from transmission lines and renewable energy projects is going to be permanent and the same species is going to suffer both climate impacts and anthropogenic pressure,” said Sumit Dookia, assistant professor at Guru Gobind Singh Indraprastha University in New Delhi and a specialist in bustard conservation.
A majority of the world’s GIBs exist in India, where they inhabit desert and grassland ecosystems and act as keystone species for these regions. Open ecosystems, like grasslands, are favourable for renewable energy projects because of their topography and exposure to the sun. According to some estimates, establishing 175 gigawatts of renewable energy capacity requires between 55,000 to 125,000 sq. km of land. India aims to set up 500 GW of renewable energy capacity by 2030.
Large swathes of land are unlikely to come unencumbered, and land disputes have broken out with local communities in several places. A study by The Nature Conservancy found that over 85% of solar projects were built on land cover types that could create potential biodiversity and food security conflicts.
In its judgement earlier this month, the Court referenced India’s obligations under international laws and conventions such as the United Nations Framework Convention on Climate Change and initiatives like the One Sun One World One Grid to say that renewable energy like solar “not only meets the country’s growing energy demands but also helps mitigate the adverse effects of climate change by reducing greenhouse gas emissions.” According to Dookia, the references to climate conventions and initiatives, and not biodiversity ones, make the judgement “one-sided.”
“We are also a signatory to the Convention on Migratory Species. About one lakh birds of different species are dying due to collisions or electrocutions with power lines. Current power line infrastructure is going to increase in these areas, and that will mean more deaths,” said Dookia.
The Wildlife Institute of India estimated a yearly death rate of four birds due to collisions with power lines, which could lead to their extinction within 20 years.
The Supreme Court has constituted a new committee to assess the feasibility of undergrounding power lines in priority conservation areas “considering factors such as terrain, population density, and infrastructure requirements.” The new committee includes the director of the Wildlife Institute of India, former senior forest officers, bureaucrats from the Ministries of Environment and New and Renewable energy, officials with the Central Electricity Authority, and one independent expert, Devesh Gadhavi of the Corbett Foundation, who was also part of the previous committee.
The committee will have to submit a report with its recommendations to the Supreme Court by July.
The case for climate litigation
India’s courts have a history of intervening in environmental matters. The fundamental right to life, Article 21 of the Indian Constitution, has often been invoked for the right to a clean environment and water. Climate litigation, however, where cases use the impacts of climate change to support their petitions, has been somewhat limited.
The apex court’s observation is the first time that protection against climate change has been articulated as a fundamental right to life and equality (under Articles 21 and 14 of the Constitution). “Without a clean environment which is stable and unimpacted by the vagaries of climate change, the right to life is not fully realised,” the court observed.
“In the past, climate change has been a passing reference in judgements, but this judgement puts climate change on centre stage. With environmental laws, you need to show that a violation has taken place under the Air Act or Water Act. In this case, one can proactively litigate without waiting for climate impacts to occur,” said Ritwick Dutta, founder of the Legal Initiative for Forest and Environment (LIFE).
In a paper published in 2020, environmental lawyer Shibani Ghosh identified and analysed cases before Indian courts where climate change was included in the petitions or in the judgements. None of the decisions in these cases were based on India’s commitments under the Paris Agreement, and they also did not direct actors to adopt adaptation or mitigation measures on the basis of rights-based arguments. “It’s not that the Indian courts are not open to considering climate change while deciding cases. But in most cases climate change is raised along with other arguments, and in making their final decision, the courts rely primarily on the non-climate arguments, and make climate change an add-on reason, if at all,” said Ghosh, who is an Advocate-on-Record at Supreme Court of India, and a visiting fellow, Sustainable Futures Collaborative.
The court’s comments come at a time when the central government has cracked down on environmental activists and experts for opposing the expansion coal thermal power and other high emitting activities. Last year, the Central Bureau of Investigation filed a case against LIFE, alleging its legal activities were funded by an international non-profit aimed at “targeting and stalling” coal power projects in India, thus threatening the country’s economic security. A case was also filed against Environics Trust, an NGO, for allegedly funding protests against a steel plant in Odisha. “The government’s own affidavit makes a case for renewable energy by saying, in several places, that coal-based power has harmful impacts. Now there is a judicial recognition, based on the government’s submission, that coal and thermal power is problematic. Then why take action against civil society groups, which are also raising the voice against?” asked Dutta.
In many parts of the world, individuals are taking legal action against entities and governments contributing to the climate crisis. Just last week a European court ruled in favour of hundreds of Swiss women who sued the government for failing to adequately protect them against the impacts of climate change.
Both Dutta and Ghosh believe the Supreme Court’s directions will give climate litigation a stronger footing in India. Others, like Debadityo Sinha, are more sceptical about the enforceability of climate rights in India.
“How exactly these rights are defined is something we have to wait and watch for. The right to life, equality, and freedom of expression, which underwrite the Supreme Court’s approach, make for a very fertile ground to bring rights relating to climate change. The way things have developed in our jurisprudence over the last 30 years, one could be optimistic that we will continue down that path with climate rights too,” said Ghosh.
Banner image: A great Indian bustard. Photo by Kesavamurthy N/Wikimedia Commons.