India

Indian courts have adopted fairly liberal rules of standing in environmental cases. Even if individuals are not directly affected by the environmental harm, they can still claim standing before the courts. This has allowed individuals to recur to the courts to challenge specific projects that allegedly led to more climate change.

Legal action against public actors in a project-specific context can be based on the public trust doctrine, on rights grounds or statutory duties.

Under the public trust doctrine, which forms part of the Indian legal system, the State has a legal duty to protect natural resources. The SC has quashed a lease deed granting forest land for the construction of a motel, relying upon the public trust doctrine (M.C. Mehta v Kamal Nath and Ors). Concerning another relevant principle, the SC recently made clear that the Environmental Rule of Law seeks to create essential tools to bring structure to the discourse on environmental protection and draw within the fold all stakeholders in formulating strategies to deal with current challenges such as climate change (Himachal Pradesh Bus Stand Management and Development Authority v The Central Empowered Committee and Ors).

Indian human rights jurisprudence has interpreted the right to life to include different specific environmental rights. Examples include the right to enjoyment of pollution free water and air (Subash Kumar v State of Bihar), the right to live in a healthy environment with minimal disturbances to ecological balance (Rural Litigation and Entitlement Kendra v State of Uttar Pradesh), and the right to environmental protection and conservation of natural resources (Intellectuals Forum v State of A.P).

Moreover, claims against the public sector may be made for dereliction of regulatory duties (e.g., failure to stop a polluting industry from operating). The Environment (Protection) Act 1986invests the Government with powers to enact rules and regulations concerning pollution and processes which impact the environment. Individuals could bring a claim against the State if regulatory processes under these rules and regulations do not include climate considerations at different stages, or if relevant considerations concerning sources and impacts of climate change were not taken into account during grant of regulatory approvals. This could be the failure to regulate GHG emissions in view of unacceptable environmental effects and a derogation from India’s commitment to the Paris Agreement (Ratandeep Rangari v State of Maharashtra and Court v State of Himachal Pradesh).

Relevant cases in this regard include a complaint by companies concerning a provision which obliged them to purchase energy from renewable sources, in which the SC upheld the validity of this regulation and recognised the importance of reducing emissions and reducing GHGs (Hindustan Zinc v Rajasthan Electricity). In another case, the NGT quashed a notification of the Delhi Development Authority which aimed at providing housing for the poor, keeping in view the serious impacts this would have on climate change (Mahendra Pandey v Union of India Ors). In Narmada Bacho Andolan v Union of India, the SC – while allowing to continue the construction of a controversial dam – noted as part of their rationale for favouring hydroelectric power that, while global warming has become a major cause of concern and thermal power projects contribute to environmental pollution by using fossil fuels, the specific contribution of the project would be negligible. In another case, the SC has stated that the danger of climate change needs to be averted and that although GHG emissions largely originate from developed countries, India also needs to regulate its electricity sector to protect the environment. (Tamil Nadu Newsprint And Papers Ltd. v Tamil Nadu Electricity Regulatory Commission). Other relevant judicial precedents may be found in the NGT’s decision concerning the submergence of forest land and resulting methane emissions due to a massive irrigation project (Om Dutt Singh v State of Uttar Pradesh), or the SC’s decision concerning impacts of polluting industrial emissions on heritage sites (M.C. Mehta v Union of India – Taj Trapezium case).

A challenge of regulatory approvals could be a statutory appeal in the NGT or a writ of mandamus in the High Court or SC seeking directions against a public actor or seeking to compel the government to execute its legal duties. As a precedent of possible judicial interventions, in Hanuman Laxman Aroskar v Union of India, the SC intervened in the construction of an international airport, stalling all work, and adopting a Zero Carbon Programme for both the construction and operational phase. While the suspension was lifted, a specialised body was appointed to oversee compliance of the directions issued by the Court. The NGT has ordered suspension of a clearance accorded by the Ministry of Environment and Forests for the construction of a hydroelectric power project, in line with the principles of sustainable development and the protection of endangered species (Save Mon Region Federation and Lobsang Choedar v Union of India). Remedies for cases of this kind include compensation for loss of livelihood and loss of property (Srinagar Bandh Aapda Sangharsh Samiti v Alaknanda Hydro Power Co. Ltd).

Concerning adaptation measures, India’s rights jurisprudence also provides potential bases for litigation. While there have been no specific decisions pertaining to the adequacy of climate adaptation measures taken by the government, the SC has struck down a government amendment to the Coastal Regulatory Zone Notification, diluting protection afforded to the coastline. The Court held that the amendments were against the public interest and granted the government unchecked discretion that could result in serious ecological damage (Indian Council for Enviro-legal Action v Union of India). The Court directed the government to complete the coastal planning exercise in a time-bound manner and ensure the enforcement of legal provisions in relation to coastal protection.