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Indian Laws Countering Environmental Challenges

Climate is a weather condition of the place or area; conditions of temperature, rainfall, wind, etc. The term 'climate' describes the general average pattern of the weather in a place over a period of years. Climatologists usually considers a period of 30 years to assess the climate of any place.

Weather is the condition of the atmosphere at a particular place and name. It is characterized by parameters such as the temperature, humidity, wind and rain. Climate is the long-run pattern of weather conditions for a given area.

Until the middle of the twentieth century, the earth's climate was generally regarded an unchanging, but it is now known to be in a continuous and delicate state of flux. Change is a fundamental characteristic of the environment. As the climate has been changing, accordingly, minor changes in the climate would have a massive effect on the basic resources like food, water, etc.

The factors that influence the global climate are the amount of solar energy the earth receives, the condition of the atmosphere, the shape and rotation of the earth, and the currents and other processes of the ocean. The atmosphere is warming, and this trend will continue.

By the year of 2050, the scientists predicted that the world will be warmer by an average of between 1.5C and 4.5C. A Task Group set up by WHO had warned that climatic change may have serious impact on human health. Climatic change will increase various current health problems, and may also bring new and unexpected ones.

Climate change and air pollution have been a matter of serious concern all over the world in the last few decades. The present review has been carried out in this concern over the Indian cities with significant impacts of both the climate change and air pollution on human health.

The expanding urban areas with extreme climate events (high rainfall, extreme temperature, floods, and droughts) are posing human health risks. The intensified heat waves as a result of climate change have led to the elevation in temperature levels causing thermal discomfort and several health issues to urban residents. The study also covers the increasing air pollution levels above the prescribed standards for most of the Indian megacities.

The aerosols and PM concentrations have been explored and hazardous health impacts of particles that are inhaled by humans and enter the respiratory system have also been discussed. The air quality during COVID-2019 lockdown in Indian cities with its health impacts has also been reviewed.

Finally, the correlation between climate change, air pollution, and urbanizations has been presented as air pollutants (such as aerosols) affect the climate of Earth both directly (by absorption and scattering) and indirectly (by altering the cloud properties and radiation transfer processes).

So, the present review will serve as a baseline data for policy makers in analyzing vulnerable regions and implementing mitigation plans for tackling air pollution. The adaptation and mitigation measures can be taken based on the review in Indian cities to reciprocate human health impacts by regular air pollution monitoring and addressing climate change as well.

Meaning of climatic change

Average weather of an area is called climate. Climate is the average of general weather conditions, seasonal variations and extremes of weather in a region over a long period, at least 30 years. Since the beginning of this century, it is evidenced that there has been a rise in global mean temperatures of about 0.5C.

The enhancement of temperature on earth is called "Global Warming". If the warming is allowed to rise, there shall be several adverse effects upon the earth. In the year 1998, the average temperature of the world was recorded as 58F which is the highest in the century.

Definition of climatic change

The Convention on Climatic Change, 1992 defines "Adverse effects on climatic change" under Article 1(1); "Climate Change" has been defined under Article 1(2). And Article 1(3) of the Convention deals about "Climate System".

Legal instruments on climatic change

The important legal instruments relating to climatic changes are as follows:

The United Nations Legal Instruments
  1. The United Nations Framework Convention on Climatic Change (UNFCC) / UN Climate Convention
  2. Paris Agreement
  3. Kyoto Protocol

Other International Fora
  1. Inter-Governmental Panel on Climatic Change (IPCC)
  2. G8 and G20
  3. Forum of Major Economies on Climate and Energy (MEF)
  4. Organization for Economic Cooperation and Development (OECD)
  5. International Energy Agency (IEA)


India and Climate Change

India is one of the most vulnerable countries to climate change. About half of India's population is dependent upon agriculture or other climate sensitive sectors. About 12% of India is flood prone while 16% is drought prone.

India is now the third largest emitter of greenhouse gases in the world after China and the United States. India has almost tripled its annual emission between 1990 and 2009 from less than 600 metric tons to more than 1700 metric tons. India's annual emissions of carbon oxide are projected to further increase almost 2.5 times between 2008 to 2035.

The net greenhouse gas emissions from India with land use, land use change and forestry in 2007 were 1727.71 million tons of carbon dioxide. While the energy sector constituted 8% of the net carbon dioxide emissions, industry sector, agriculture and waste sector constituted 22%, 17% and 3% respectively of the net carbon oxide emission.

Thus, climate change and energy are now a focus of local, state and national attention around the world. Though India earlier emphasized that it being a developing country with historically low per capita emission rate, it is not responsible for past greenhouse gas emissions.

However, India has now become a key player in international negotiations and has begun implementing a diverse portfolio of policies, nationally and within individual states, to improve energy efficiency, develop clean sources of energy and prepare for the impacts of climate change.

Causes of environmental degradation

The underlying causes of environmental degradation in India takes within its fold various social economic and institutional factors. While the social factors include excessive population, poverty, and unchecked urbanization, the economic factors include market failures or the non-existent or poorly functioning markets for environmental goods and services.

And the unprecedented growth in all sectors of the economy including transport, industries, port and harbor activities etc. without any corresponding measures to check the resultant environmental degradation. Various institutional factors like lack of awareness and poor infrastructure make implementation of most of the laws relating to environment, extremely difficult and ineffective.

Environmental Laws and Policies

Even before India's independence in the year 1947, several environmental legislations existed, but the real impetus for bringing about a well-developed framework came only after the UN Conference on the Human Environment (Stockholm, 1972). Under the influence of this declaration, the National Council for Environmental Policy and Planning within the Department of Science and Technology was set up in 1972.

This Council later evolved into a full-fledged Ministry of Environment and Forests (MoEF) in 1985 which today is the apex administrative body in the country for regulating and ensuring environmental protection. After the Stockholm Conference, in 1976, constitutional sanction was given to environmental concerns through the 42nd Amendment, which incorporated them into the Directive Principles of State Policy and Fundamental Rights and Duties.

Then, what approach should India adopt in formulating policy responses to climate change, both domestically and internationally? In recent years, there has been a vibrant debate on this question. Though India already has several substantive laws for prevention and/or regulation of any activity that may cause climate change, including:

During the British Regime

  1. Shore Nuisance (Bombay and Kolaba) Act, 1853
  2. The Indian Penal Code, 1860
  3. The Indian Easements Act, 1882
  4. The Fisheries Act, 1897
  5. The Factories Act, 1897
  6. The Bengal Smoke Nuisance Act, 1905
  7. The Bombay Smoke Nuisance Act, 1912
  8. The Elephant's Preservation Act, 1879
  9. Wild Birds and Animals Protection Act, 1912.

Post-Independence of India

  1. Setting up of National Council for Environmental Policy and Planning was set up in 1972 which was later evolved into Ministry of Environment and Forests (MoEF) in 1985.
  2. Policy Statement for Abatement of Pollution and the National Conservation Strategy and Policy Statement on Environment and Development brought out by the MoEF in 1992
  3. EAP (Environmental Action Programme) was formulated in 1993 with the objective of improving environmental services and integrating environmental considerations into development programs.
  4. National Environment Policy, 2006
  5. Water (Prevention and Control of Pollution) Act, 1974
  6. Water (Prevention and Control of Pollution) Cess Act, 1977
  7. Air (Prevention and Control of Pollution) Act, 1981
  8. Atomic Energy Act of 1982
  9. Motor Vehicles Act , 1988
  10. The Wildlife (Protection) Act, 1972
  11. The Forest (Conservation) Act, 1980
  12. Environment (Protection) Act, 1986 (EPA)
  13. The National Environment Appellate Authority Act, 1997
  14. Public Liability Insurance Act (PLIA), 1991
  15. National Environment Tribunal Act, 1995
  16. Environment Impact Assessment (EIA) Notifications,

However, a specific guiding national strategy that addresses India's development concerns and mitigation and adaptation challenges was also important. This was the frame work that was laid out in the 'National Action Plan on Climate Change (NAPCC), Prime Minister's Council for Climate Change, Government of India (2008)' and its subsidiary Eight Missions:
  1. National Solar Mission (started in 2010);
  2. National Mission for Enhanced Energy Efficiency (approved in 2009);
  3. National Mission on Sustainable Habitat (approved in 2011);
  4. National Water Mission;
  5. National Mission for Sustaining the Himalayan Ecosystem (approved in 2014);
  6. National Mission for a Green India (approved in 2014);
  7. National Mission for Sustainable Agriculture (approved in 2010); and
  8. National Mission on Strategic Knowledge for Climate Change.

The Eight Missions listed above are expected to advance India's development and define its approach to climate mitigation and adaption while satisfying the principles of the National Action Plan on Climate Change.

Besides the afore stated legislations, rules and policies, there are several other plans and incentives by the governments for energy conservation and to mitigate impact of climate change.

Each State is now also in the process of developing State Action Plans on climate change with recommendations on how mitigation and adaptation can be main-streamed into development policy. Individual ministries and agencies have also developed their respective mission documents and policies for addressing climate change. It is hoped that the National Climate Change Strategy reported to be in the making shall be soon ready for its implementation.

Environment and Indian Constitution

The Indian Constitution is one of the few in the world that contains specific provisions on the environment. The Directive Principles of State Policy and the Fundamental Duties chapters explicitly enunciate the national commitment to protect and improve the environment. Three constitutional provisions bear directly on environmental matters.
  1. First and foremost, Article 21 states:
    "No person shall be deprived of his life or personal liberty except according to procedure established by law." In Subhash Kumar v. State of Bihar, A.I.R 1991 SC 420, and Virendra Gaur v. State of Haryana, (1995) 2 SCC 577, the Supreme Court recognized several liberties that are implied by Article 21, including the right to a healthy environment. The State High courts have followed the Supreme Court's lead, and virtually all now recognize an environmental dimension to Article 21.
     
  2. Second, Article 48A requires that:
    "The State shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country."
     
  3. Third, Article 51A establishes that:
    "It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers, and wild life and to have compassion for living creatures."
Though these latter two provisions have traditionally been incapable of enforcement through the exercise of writ jurisdiction, courts have increasingly relied upon them for support in resolving environmental controversies.

Role of Judiciary

Indian environmental law has seen considerable development in the last over three decades. Most of the principles under which environmental law works in India today were assembled over the last over three decades. A predominant share of essence of the existing law relating to the environment has developed through careful judicial thinking in the Supreme Court and the High Courts.

In the process of adjudication on the environmental matters, the Supreme Court has actually come up with the new pattern of "judge-driven implementation" of environmental administration in India. The court has played a pivotal role in interpreting those laws and has successfully isolated specific environmental law principles upon the interpretation of Indian statutes and the Constitution, combined with a liberal view towards ensuring social justice and the protection of human rights. So, when one analyses the Indian environmental law's development path, one will surely have to keep in mind the concept of judicial law making.

The orders and directions of the Supreme Court cover a wide range of areas whether it be air, water, solid waste or hazardous waste. The field covered is very vast such as - vehicular pollution, pollution by industries, depletion of forests, illegal felling of trees, dumping of hazardous waste, pollution of rivers, illegal mining etc.

The list is unending. The Supreme Court has passed orders for closure of polluting industries and environmentally harmful aqua-farms, mandated cleaner fuel for vehicles, stopped illegal mining activity, and protected forests and architectural treasures like Taj Mahal.

Some of the judgments wherein various principles relating to environment law were judicially recognized are worth mentioning:

  1. In MC Mehta v. UOI, WP (C) 13029/1985, the Hon'ble Supreme Court in its order dated 24-10-2018, decided that no motor vehicle conforming to the emission standard BS-IV shall be sold or registered in the entire country with effect from 01.04.2020, and the same shall be substituted by BS-VI compliant vehicles. Certain orders were also passed in therein with respect to imposing ban on diesel vehicles to curb the air pollution.
     
  2. In MC Mehta v. UOI, AIR 1987 SC 1086 (Oleum Gas Leak case), the Supreme Court formulated an indigenous jurisprudence of Absolute Liability in compensating the victims of pollution caused by hazardous and inherently dangerous industries.
     
  3. In M.C. Mehta vs. Union of India, AIR 1988 SCR (2) 538, wherein the issue of pollution of the Ganga River by the hazardous industries located on its banks was highlighted, the Hon'ble Supreme Court ordered the closure of a number of polluting tanneries near Kanpur.
     
  4. The Hon'ble Supreme Court in the case of TN Godavarman Thirumulpad vs. Union of India and Ors., W.P.(C) No. 202 of 1995, dealing with the issue of livelihood of forest dwellers in the Nilgiri region of Tamil Nadu being affected by the destruction of forests, passed a series of directions.
     
  5. Ganesh Wood Products v. State of Himachal Pradesh, AIR 1996 SC 149 - this judgment expanded the definition of forest to its ordinary dictionary meaning, and imposed a ban on all non-forest activities on forest land without prior approval of the Central Government and directions were given to constitute Expert Committee in each State to identify forests and for movement and disposal of timber, and for constitution of a High Power Committee to deal with forest.
     
  6. MC Mehta v. Kamal Nath, (1996) 1 SCC 38 is a case where there was an attempt to divert the flow of a river for augmenting facilities in a motel. The Supreme Court interfered by recognizing the Public Trust Doctrine and held that the State and its instrumentalities as trustees have a duty to protect and preserve natural resources such as rivers, lakes, forests, open spaces and other common property resources.
     
  7. MI Builders Pvt. Ltd. V. Radhey Shyam Sahu, AIR 1996 SC 2468, wherein also the Hon'ble Supreme Court applied Public Trust Doctrine and asked a city development authority to dismantle an underground market built beneath a garden of historical importance.
     
  8. In Vellore Citizens Welfare Forum v. UOI, AIR 1996 SC 2718, the Supreme Court adopted the Precautionary Principle to check pollution of underground water caused by the leather industries in Tamil Nadu. The Hon'ble Court also opined the precautionary principle and the Polluter Pays Principle are part of the environmental law of the country.
     
  9. In Indian council for Enviro-Legal Action v. UOI, AIR 1996 SC 1446, the Supreme Court reiterated and applied the principle to restore the environment of a village whose ecology had been destroyed by the sludge left out by the trial run of the industries permitted to produce the 'H' acid.
     
  10. In State of Himachal Pradesh v. Ganesh Wood Products, AIR 1996 SC 149, the Supreme Court invalidated forest-based industry, recognizing the Principle of Inter-Generational Equity as being central to the conservation of forest resources and sustainable development.
     
  11. The Hon'ble Supreme Court also noted in Indian Council for Enviro-Legal Action v. Union of India (CRZ Notification case), (1996) 5 SCC 281 that the Principle of Sustainable Development would be violated if there were a substantial adverse ecological effect caused by industry.
     
  12. The Principle of Sustainable Development was also recognized by the Supreme Court of India in the M.C. Mehta v. Union of India (Taj Trapezium case), AIR 1997 SC 734.
     
  13. In Enkay Plastics Pvt. Ltd. Vs. Union of India (UOI) and Ors., 2000(56) DRJ 828, the Delhi High Court upheld the order of closure of certain units which were manufacturing Urea Formaldehyde Powder in thickly populated residential areas and held that the direction to close down such industries cannot be treated as violative of Article 19 of the Constitution as it is in the larger public interest to prevent any danger to the health and life of the public at large.
     
  14. Amongst others, the Delhi High Court has also directed for preservation of ancient monuments of historical importance, restoration of water bodies in and around Delhi and in maintaining the forest ridge area in Delhi which are the lungs of the city.
     

8 Salient Points on Vienna Convention

  1. Vienna Convention is the first of its kind to be signed by each member-state involved in it and was universally ratified on 16th September 2009.
  2. To strengthen the Vienna Convention's goals of protecting the ozone layer, Montreal Protocol was brought in 1987 with an aim to reduce the production and consumption of (Ozone Depleting Substances) ODSs to protect the ozone layer.
  3. In 1994, 16th September (The day when Montreal Protocol was made open for signatures and the Vienna Convention was universally ratified) was proclaimed as Ozone Day by the UN General Assembly.
  4. The 8th amendment was made to Montreal Protocol and it came to be known as Kigali Agreement (The Amendment was signed in Rwanda's capital Kigali.) It aims to reduce the manufacture and usage of hydrofluorocarbons (HFCs) by about 80-85% from the baselines until 2045
  5. The member countries meet every three years to decide over research and systematic observations in the ozone layer.
  6. Ozone Research Managers is a forum that was introduced post-Vienna Convention. It is a forum of experts specialized in research related to ozone modifications.
  7. There is a multilateral fund that aids developing nations to help them make a transition from ozone-depleting harmful chemicals.
  8. There are two trust funds associated with the Vienna Convention:
    1. Trust Fund for Vienna Convention
    2. Trust Fund for Research & Systematic Observations
  9. Vienna Convention - Conference of Parties
A Conference of Parties (COP) is held triennially. The latest COP will be the 12th COP to Vienna Convention that is scheduled to take place from 23 November to 27 November 2020 in Tashkent, Uzbekistan. The 11th COP to Vienna Convention met in November 2017 in Montreal, Canada.

Members of Vienna Convention
  1. There are 198 members under the Vienna Convention.
  2. The United Nations Environment Program (UNEP) provides secretarial assistance to the Convention.

Vienna Convention & India

Is India a member of the Vienna Convention?
Yes, India is a member of the Vienna Convention. It acceded to the convention in 1991 and became a party to the Montreal Protocol in 1992.

India's Actions in protecting the Ozone Layer
  1. The Ministry of Environment, Forest & Climate Change is entrusted with the work related to the Montreal Protocol protection and implementation.
  2. Ozone Cell is set up for effective and timely implementation of the Montreal Protocol.
  3. Carbon tetrachloride (CTC) has been completely phased out by India as of 1st January 2010.

Stockholm Convention
Stockholm Convention is a global treaty that was adopted by the Conference of Plenipotentiaries in 2001 and came into force on 17th May 2004. It was introduced to protect human health from harmful POPs suspended in the air for a long period of time. The convention aims to reduce or eliminate the use of POPs through the active measures of the member states.

Salient Points on Stockholm Convention:
  1. The Global Environmental Facility (GEF) is the designated interim financial mechanism for the Stockholm Convention.
  2. The United Nations Industrial Development Organization (UNIDO) takes the responsibility for developing nations and transitioning economies to help them implement Stockholm Convention measures.

Objectives & Aims of the Stockholm Convention
  1. To implement control measures for the POPs
  2. To develop and implement action plans for unintentionally produced chemicals
  3. To develop inventories of the chemicals' stockpiles
  4. To review and update the National Implementation Plan
  5. To include the new chemicals in the reporting
  6. To include the new chemicals in the program for the effectiveness evaluation

There are three annexes under Stockholm Convention that define which POPs are eliminated, restricted and which unintentionally produced POPs will be reduced:
  1. Annex A - Chemicals listed under this annexure are to be eliminated by the member states (Some exceptions are given.)
  2. Annex B - Chemicals listed under this annexure are to be restricted for their use. (Some exceptions are given.)
  3. Annex C - Unintentionally produced chemicals are to be reduced with measures for ultimate elimination under this annexure.
     

Members of Stockholm Convention
  1. As of May 2017, there are 181 parties to the Stockholm Convention who have ratified it.
Is India a member of Stockholm convention?
Yes, India is a party to the Stockholm Convention. In May 2002, India signed the global treaty whereas it brought it in force in January 2006.

POPs & India
  • According to The Energy and Resources Institute (TERI) January 2018 report on POPs in Indian Environment, the level of POPs in Indian environment is high because of poor management of e-waste and municipal and industrial wastes.
  • India has been exempted from the ban of DDT as a result of the Stockholm Convention (SC) and is allowed to produce and use DDTbut only for the control of vector-borne diseases.

India's efforts towards meeting the aims of the Stockholm Convention
  • Promotion of non-POP alternatives
  • Insecticide Act, 1968 - Banning of use, manufacture and import of most of the listed POPs under Stockholm Convention into India Insecticide Act, 1968
  • India submitted its National Implementation Plan (NIP) on Persistent Organic Pollutants in 2011 (It is yet to include 16 additionally added POPs.)

Global warming: causes
The Deforestation is one of the main reasons of global warming. Cutting and burning of about 34 million acres of trees every year results in urbanization and the land for factories timber lead to deforestation. In addition to the deforestation, the below mentioned GHG's contributes to the global warming.
SL.NO. Green-House Gases Emission Of Green
1. Carbon-di-oxide (CO2)
  1. Power Plants (Burning of fossil fuels, Coal for electricity generation).
  2. Cars and Vehicles (20% burning of gasoline in the engines of vehicles).
  3. Buildings (The structures of Commercial & Residential buildings require a lot of fuel to be burnt) which emits more CO2.
2. Methane (MH4)
(20 times effectual than CO2)
  1. Rice Paddies: When rice fields are flooded, anaerobic situation of the organic matter in the soil decays releasing methane.
  2. Bovine Flatulence.
  3. Bacteria in flogs.
  4. Manufacture of Fossil Fuels.
3. Nitrous Oxide (N2O)
  1. Nylon and Nitric acid production.
  2. Cars with Catalytic Converters.
  3. Use of Fertilizers in agriculture.
  4. Burning of organic matter.

Recommendations and suggestions
The mitigation of climate change shall be achieved by following the below-mentioned measures:
  1. To cut down the use of fossil fuels and Chlorofluoro Carbons (CFC).
  2. To use energy more efficiently without wasting it.
  3. To increase the forest cover and tree plantations to utilize more CO2 from the atmosphere.
  4. To follow the sustainable agriculture.
  5. To Kyoto Protocol must be followed sincerely by all the countries including U.S.A to reduce CO2 emission by 5.2%.

According to the chairman of the Alliance for Climate Protection and former U.S. vice - president, Al Gore, who won the Nobel peace prize (2007), for his study on climate change, the U.S must usher in a climate change. The American public should demand that the U.S. join an International Treaty within next two years that cuts global warming pollution by 90% in developed countries and by more than half worldwide. The Kyoto Protocol has been so demonized in the U.S. It is expected that U.S would sign by the end of 2009 but it has not yet signed this Kyoto Protocol.

The Fourth Assessment Report of the Inter-Governmental Panel on Climate Change (IPCC) should be emphasized.

According to an Australian scientist, Professor Roger Short (2007), the age-old tradition of cremation contributes to global warming and it ultimately leads to climate change. He has suggested that people could choose to help environment after death by being buried in a card board box under a tree. The tree gets nutrients from the decomposing body and converts CO2 into O2 for decades.

During the creation of an average male, the body is heated to 850 degrees C for 90 minutes and 50 kg of CO2 is released into the atmosphere in addition to the burning of the wooden casket. It is not a bad idea to bequeath one's body which is good for this planet.

CONCLUSION
What can we all do when we know and understand that climate change is a complex bio-physical phenomenon with profound implications for human civilizations and life on the planet? As a country, accustomed to natural climatic variability, there is always a tendency to think that we have seen it all before and there is nothing new.

But present-day climate change is different. It is now well accepted that human beings have interfered with basic natural cycles, such as energy and water cycles, which have kept our planet in equilibrium for millennia. Carbon dioxide levels are now at their highest in six lacs fifty thousand years.

It is projected that at present rates of increase of emissions, the world is heading to a 40 Celsius rise by the end of the century, which may not only spell doom for wild wife and sea creatures but also significant stress on everything from human health to livelihood security and economic development. In other words, our life, our very existence may be at stake.

There is much that can be done. Addressing climate change means small, medium and big actions. We can act in the full range of roles that we occupy - as workers, students, consumers, investors, educators, entrepreneurs and as citizens. And we can act in all of our spheres of influence - our homes, schools, work places and in public life. We can all work to get out the message that climate change is real, it is happening and we need to take action now to address it.

The climate change is no more a concern of environment. It's been emerged as the magnanimous developmental challenge for the entire planet. Few among the major reasons for the failure of the working of UNFCC is that the convention is not legally binding over the member parties and in the last few conferences held, it is struggled to produce consensus. In addition to that, the vast majority of the parties have failed to put forward any of the mentioned worthwhile targets.

Thus, the failure of the working of UNFCC can be corrected by translating the UNFCC and other International Policy Instruments into Effective Instruments. The Clear Climate Policy Signals need to reach the local levels to motivate them to change their way of working and support the transactions on ground.

Written By: Bhaswat Prakash, Ajeenkya DY Patil University, Pune (B.A.LL.B)

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