CLIMATE CHANGE AND VARIABILITY IN THE GANGA BASIN IN …

CLIMATE CHANGE AND VARIABILITY IN THE

GANGA BASIN IN INDIA: THE ROLE OF THE

SUPREME COURT IN LEGAL AND INSTITUTIONAL

CHANGE

HEM AITKEN

M.Sc. (Environmental Management), B.G.L.

Principal Supervisor: Professor Donna Craig

A thesis presented for the Degree of Doctor of Philosophy

School of Law, University of Western Sydney, Australia

March 2012

iii

The work presented in this thesis is, to the

best of my knowledge and belief, original

except as acknowledged in the text. I

hereby declare that I have not submitted this

material, either in full or in part, for a degree

at this or any other institution.

...................................... .................................

Hem Aitken

2012

v

TABLE OF CONTENTS

ACKNOWLEDGEMENTS........................................................................................……ix

PUBLICATIONS AND PRESENTATIONS .....................................................................x

ABSTRACT........................................................................................................................xi

LIST OF SELECTED ACRONYMS ................................................................................xii

LIST OF FIGURES AND TABLES.................................................................................xiv

CHAPTER 1 INTRODUCTION......................................................................................1

I Background..............................................................................................................2

II Significance of the Study.........................................................................................4

III Research Questions..................................................................................................7

IV Scope of Dissertation Topic.....................................................................................9

V Literature Review..................................................................................................10

VI Methodology..........................................................................................................11

VII Thesis Structure.....................................................................................................14

CHAPTER 2 THE IMPACTS OF CLIMATE CHANGE ON GLACIERS AND

DEPENDENT RIVER SYSTEMS..................................................................................16

I Climate Change: Background................................................................................17

II Overview of Impacts of Climate Change: An International Perspective...............21

III Impacts of Climate Change: An Indian Context....................................................29

IV Conclusion.............................................................................................................43

CHAPTER 3 CLIMATE CHANGE AND THE GANGA BASIN..............................44

I The Ganga in History.............................................................................................45

II The Ganga in Mythology.......................................................................................46

III The Ganga Basin....................................................................................................50

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IV Hydrology of the Ganga Basin..............................................................................54

V Challenges to the River Ganga..............................................................................54

VI Actions Taken So Far to Protect the River Ganga.................................................79

VII Conclusion.............................................................................................................87

CHAPTER 4 INTERNATIONAL LEGAL RESPONSES TO CLIMATE

CHANGE..........................................................................................................................89

I International Environmental law............................................................................90

A Background............................................................................................................90

B International Legal Responses to Climate Change................................................95

C India’s Participation in International Climate Negotiations................................108

D International Water Law Framework...................................................................109

E Interim Conclusion..............................................................................................114

II Climate Change Adaptation.................................................................................115

A Introduction..........................................................................................................115

B Adaptation and the Water Sector.........................................................................117

C Interim Conclusion..............................................................................................129

III International and National Climate Adjudication................................................130

A Introduction..........................................................................................................130

B Role of Law and Courts in Responding to Climate Change................................131

C International and National Climate Change Case Laws......................................136

D Interim Conclusion..............................................................................................150

IV Conclusion...........................................................................................................152

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CHAPTER 5 CLIMATE CHANGE AND THE ENVIRONMENTAL LEGAL AND

INSTITUTIONAL FRAMEWORKS IN INDIA........................................................154

I Indian Federalism and Environmental Law........................................................155

A Division of Authority under the Constitution......................................................155

B Struggle Between the Parliament and the Supreme Court...................................159

C Central Government Authority over International Affairs..................................163

D Constitutional Provisions for Environmental Protection.....................................164

II Climate and Environmental Legal and Institutional Frameworks in India..........168

A Environmental Protection and Pollution Control.................................................168

B Key Enforcement Agencies for Water and Environmental Legislation in India.184

C An assessment of India’s Environmental Laws and Enforcement Institutions....194

D Climate Change Policy.........................................................................................198

E National Action Plan on Climate Change: A Critical Analysis...........................205

III The Indian Supreme Court and Environmental Litigation..................................211

A Important Case Laws and Principles Developed Therein....................................214

IV Conclusion...........................................................................................................225

CHAPTER 6 THE ROLE OF THE SUPREME COURT IN ADDRESSING

CLIMATE CHANGE IN THE GANGA BASIN IN INDIA...............................228

I Possible Role of the Supreme Court in Legal and Institutional Change in Case of

Identified Scenarios in the Ganga Basin..............................................................230

A Action under Constitutional Provisions for Addressing Climate Change...........234

B Action in Tort.......................................................................................................243

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II Possible Roadblocks to Judicial Intervention......................................................258

III Conclusion...........................................................................................................261

CHAPTER 7 SUMMARY AND CONCLUSION.......................................................263

I Observations and Recommendations...................................................................269

REFERENCES...............................................................................................................273

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ACKNOWLEDGEMENTS

With great pleasure, I acknowledge and thank the people who made this thesis

possible. First and foremost, I offer my deepest gratitude to my Supervisors Professor

Donna Craig and Professor Michael Jeffery, who not only provided their guidance,

advice and insight throughout this project but went an extra mile and extended their

parental care, love and support to me. I could not have imagined having better

advisors and mentors for my PhD study.

I am grateful to Mr MC Mehta for encouraging me to undertake a PhD and for

helping to select the subject of the thesis.

My sincere thanks go to the University of Western Sydney (UWS) for giving me this

valuable opportunity to undertake a PhD and for the financial help during the course

of my studies. I would also like to thank the UWS Law School staff for their kind

help. Thanks should also go to my fellow students at UWS with whom I have shared

the ups and downs of the PhD process.

My deepest and heartfelt gratitude are due to my parents and my siblings, Yatin and

Nisha who unconditionally believed in me and supported me all through my studies. I

am also thankful to my brother-in-law, James, for his support and am indebted to my

mother-in-law for keeping me in her prayers for my success.

Special thanks to the most important person in my life, my husband Patrick, for his

encouragement and endless love, and his beautiful and inspirational music.

Above all, this thesis is especially dedicated to God who made all things possible.

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PUBLICATIONS AND PRESENTATIONS

‘Sustainable Development, Climate Change and Challenges for India’ in peer-

reviewed journal ‘The International Journal of Environmental, Cultural, Economic

and Social Sustainability’ (under publication).

‘Role of Supreme Court in Facilitating Adaptation to Climate Change Impacts in

India’, ‘Journal of Environmental Research And Development (JERAD)’, (abstract

accepted, full length paper under consideration).

‘Sustainable Development, Climate Change and Challenges for India’, (presentation

at the Sustainability Conference, New Zealand, 5-7January 2011).

‘The Challenge of Climate Change Adaptation in the Ganga Basin- Legal Options for

India’, (presentation at the Early Career Researchers Fourth National Forum &

Workshop, Australian Climate Change Adaptation Research Network for Settlements

and Infrastructure (ACCARNSI), Adelaide, South Australia, 24- 26 November 2010).

xi

ABSTRACT

Climate change is one of the most serious global challenges of our time. It is not just a

scientific issue but an economic, social, cultural, political and legal issue as well. The

world community has taken many steps to reduce the emissions of greenhouse gases

to mitigate climate change. However, they have failed to take the drastic measures

needed to address it effectively. This failure of the international community to

effectively address climate change has encouraged environmental activists and

victims of climate change to take recourse to international as well as national legal

systems to better address these issues.

India is particularly vulnerable to the changing climate and its Himalayan-fed rivers,

such as the Ganga River, will be seriously affected because of the melting glaciers

and changes in rainfall patterns due to climate change. Moreover, climate change can

cause a violation of the ‘Right to Life’ provided to the people of India by its

Constitution. The Indian Supreme Court has liberally interpreted this right to include

the right to a healthy environment and has taken an active interest in protecting the

environment and related rights of the people of India. The Supreme Court could

potentially play an important role in addressing climate change issues in India by

applying the broad constitutional provisions and the rich environmental jurisprudence

developed by it in landmark environmental cases.

This thesis discusses the potential role the Indian Supreme Court could play in future

in addressing climate change issues with a focus on the Ganga Basin in India.

xii

LIST OF SELECTED ACRONYMS

CETP Common Effluent Treatment Plant

CO2 Carbon Dioxide

COP Conference of Parties

CPCB Central Pollution Control Board

EPA Environment Protection Act

ETP Effluent Treatment Plant

GAP Ganga Action Plan

GHG Green House Gas

GLOF Glacier Lake Outburst Flood

HEP Hydro Electric project

ILR Interlinking of Rivers

IPCC Intergovernmental Panel on Climate Change

NAPCC National Action Plan on Climate Change

NGO Non Governmental Organisation

NGRBA National Ganga River Basin Authority

NWDA National Water Development Agency

PIL Public Interest Litigation

SPCB State Pollution Control Board

UNEP United Nations Environment Programme

xiii

UNFCCC United Nations Framework Convention on Climate

Change

WCD World Commission on Dams

WWF World Wildlife Fund

xiv

LIST OF FIGURES AND TABLES

Figure 2.1 India’s Share in Global Carbon dioxide Emissions.......................31

Table 2.1 Water Resources of India...............................................................37

Table 2.2 Record of Retreat of Some Glaciers in the Himalayas...................41

Fig 3.1 The Ganga Basin.............................................................................53

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CHAPTER 1

INTRODUCTION

Climate change is one of the most serious global environmental challenges today.

Increasing greenhouse gas (GHG) emissions are leading to a rise in temperatures

which is contributing to increased melting of glaciers, including the glaciers of the

Himalayas. The receding Himalayan glaciers are a cause of concern for millions of

people who are dependent on downstream river basins, such as the Ganga (or the

Ganges) River Basin; and will have a drastic impact on already stressed water

supplies, particularly in the dry seasons.

For India, climate change can have serious consequences as it may lead to violation of

the fundamental right of ‘Right to Life’ provided to its people by the Constitution.

The Supreme Court of India has expanded this right to include ‘right to a healthy

environment’. As the final interpreter of the Constitution, which includes these

fundamental rights, the Supreme Court could play an important role in addressing

issues arising due to climate change in India.

This thesis first looks at the general problem of climate change, then the more specific

problems in India with a focus on the Ganga Basin, and finally the scope of the role of

the Indian Supreme Court in addressing the impacts of climate change in India,

specifically to the Ganga Basin. It looks at the Supreme Court’s role in the past where

it has exhibited active interest in protecting the rights of the people in respect to the

environment and in the process has contributed in developing rich environmental

jurisprudence in important environmental cases in India. The Supreme Court could

2

build on these important case laws to play a vital role in addressing the impacts of

climate change in India.

This chapter provides background information to climate change and outlines the

significance of this thesis, introduces the research questions which will be explored

and sets out the scope of the study, literature review and methodology of the thesis.

I BACKGROUND

Climate change, in general, can be explained as the trends in climate averages over

longer periods of time, which may be decades or longer, while climate variability is

changes in weather in short spans of time such as day to day, seasonal, annual or

inter-annual. 1

The Intergovernmental Panel on Climate Change (IPCC)2 defines

climate change as “any changes in climate over time, whether due to natural

variability or as a result of human activity” and climate variability as the “variations

in the mean state and other statistics (such as standard deviations, the occurrence of

extremes) of the climate on all temporal and spatial scales beyond that of individual

weather events”.3 In other words, deviation in the state of climatic variables (such as

temperature and precipitation) from the average state, which may be above (positive

anomaly) or below the average value (negative anomaly), is the climate variability.

Variability may be due to natural internal processes within the climate system

1 It is important to note the difference between ‘weather’ and ‘climate’. Weather denotes the current atmospheric

condition (for example, temperature, precipitation, humidity, cloudiness etc) at a given place on a short time

scale like daily, weekly or even yearly. Climate, on the other hand, is the average weather conditions over

longer time scale which may range to even millions of years. 2 The Panel was first established in 1988 by two organizations of the United Nations: the World Meteorological

Organization (WMO) and the United Nations Environment Programme (UNEP), to assess the scientific,

technical, environmental, economic and social aspects of climate change. 3 IPCC, 2007: Summary for Policymakers. In: Climate Change 2007: The Physical Science Basis. Contribution of

Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change [S.

Solomon, et al (eds.)], Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA.

This usage differs from that in the Framework Convention on Climate Change, where climate change refers to

a change of climate that is attributed directly or indirectly to human activity that alters the composition of the

global atmosphere and that is in addition to natural climate variability observed over comparable time

periods.

3

(internal variability), or to variations in natural or anthropogenic external forcing

(external variability).4 Although daily weather data departs from the climatic mean,

the climate is considered to be stable if the long-term average does not significantly

change. Significant annual climate variability over longer periods of time results in

climate change. In recent decades, the impacts of climate change and variability are

becoming evident all around the world.

Climate variability (short- to medium term climate fluctuations) and climate change

(longer-term trends) are closely associated with each other, and for the purposes of

this thesis, the combined effect will be referred to as climate change. The focus of the

thesis is on the potential climate change impacts on the Ganga Basin in India. For this

thesis, two extreme scenarios A and B have been hypothesized which could unfold as

a result of climate change in the Ganga Basin over a time period of next

approximately forty years, which are discussed in chapter 3. Although it is difficult to

predict specific impacts of climate change, particularly at a regional level, such as the

Ganga Basin, scientific evidence about the growing impacts is strengthening and

undoubtedly, mitigation5 and adaptation

6 to these impacts, irrespective of the causes,

is of utmost importance. However, the focus of the present thesis is not to ascertain

the scientific certainty of these impacts but the focus is on the role of judiciary,

particularly the Supreme Court of India, in legal and institutional7 change in

addressing climate change in the Ganga Basin in face of great degree of uncertainty

4 Ibid. 5 Mitigation refers to efforts to reduce greenhouse gas emissions, deforestation and other drivers of climate change.

Mitigation also includes reducing emissions by enhancing carbon sinks such as forests, soils and oceans. 6 Adaptation can be understood as efforts to reduce our vulnerability to the impacts of climate change. 7 ‘Institutional’ refers to the formal and informal rules as well as organisational arrangements governing human

interactions, including social and economic activities. Jon Barnett et al, 'National Climate Change Adaptation

Research Plan: Social, Economic and Institutional Dimensions' (National Climate Change Adaptation

Research Facility, 2011).

4

and the need for the application of the precautionary principle, which is one of the

best developed legal aspects of sustainable development and law.

As the contribution of anthropogenic activities such as burning fossil fuels and

deforestation are widely recognised to be the causes of increased rates of climate

change, the legal system in general is expected to play a significant role in responding

to climate change. It is understood that the legal system cannot adequately capture all

of the interactions of climate change and variability and the complex array of

adaptation strategies that will be required. This approach is taken, in the context of

India, because of the key role that the Indian Supreme Court and the Constitutional

law potentially play when other Indian institutions fail to respond to extreme threats

to ecosystem and society. The Supreme Court is important as it is the final interpreter

of the Constitution and has been a successful recourse for affected people and non-

government organisations (NGOs) often faced by failure of legislature and other

government institutions. Though the Supreme Court is not a solution to complex

policy, legal and institutional frameworks, it can be an important avenue for

addressing climate change and facilitating adaptation in the Ganga Basin.

II SIGNIFICANCE OF THE STUDY

Climate change has received significant attention from scientists and scholars in the

recent decades which has helped to advance our knowledge about various climate

issues and their driving factors. Scientists have confirmed that some impacts of

climate change are unavoidable even if steps are taken immediately to control

emission of greenhouse gases as past emissions will continue to have harmful effects

on the environment and the dependent communities. Now that the anthropogenic

origin of climate change has been ascertained, it is very likely that legal systems

5

would be required to play an important part in redressing the complex challenges due

to climate change.

There is significant literature about the science of climate change and greenhouse

gases but a wide gap exists in the literature on the legal and institutional strategies and

mechanisms to address the impacts of climate change and variability, especially at

regional levels. In India too, an urgent need is felt to fill this gap and have a better

understanding of legal and institutional measures to address climate change and also

facilitate effective and timely adaptation strategies for facing potential climate change

impacts. This is particularly important in context of a country such as Indian with a

1.21 billion population, many of whom experience poverty and vulnerability,8 have

limited capacity and resources to adapt to a changing climate and are heavily

dependent on natural resources. The vulnerability of the Ganga River Basin

supporting millions of people, to the impacts of climate change is a cause of concern

for the country and the world.

The major responsibility of protecting freshwater ecosystems, communities and their

livelihoods from any potential dangers lies with the government which can use its

laws, policies, leadership and resources for this purpose. If one assumes that the

Indian government fails in its duty in providing leadership and effective adaptation

strategies to the potential climate change impacts, an appeal to the Supreme Court

could be important for the protection of people in the Ganga Basin and their

livelihoods. Besides, the Supreme Court has played an important part on many

8 The IPCC defines vulnerability as, “the degree to which a system is susceptible to, and unable to cope with,

adverse effects of climate change, including climate variability and extremes”. IPCC, 2007. In: Climate Change

2007: Impacts, Adaptation and Vulnerability, Contribution of Working Group II to the Fourth Assessment Report

of Intergovernmental Panel on Climate Change, [M.L. Parry et al (eds.)], Cambridge University Press, Cambridge,

UK.

6

occasions in the protection and conservation of the environment. It has performed its

duty of upholding the Constitution and acting as the guardian of fundamental rights of

Indians, particularly in relation to the right to a healthy environment. However, the

Supreme Court has limits on its powers and jurisdiction and has to function within its

constitutional boundaries. Nevertheless, it provides an important avenue for

responding to climate change and to fill in the void created by the inaction of

government and executive authorities.

The scope of the potential impacts of climate change and variability on the Ganga

Basin and the dependent communities is enormous. The thesis will primarily focus on

specific scenarios of climate change in the Ganga Basin, as mentioned earlier and the

legal, policy and institutional issues associated with the more widely debated and

developed area of climate change and sustainable development in India.

India is a unique example of legal and institutional frameworks owing to its evolved

environmental jurisprudence and active judiciary. The Constitution of India includes

provisions which safeguard protection of environment, and the Indian Supreme Court,

with liberal interpretation of the Constitution, has further expanded the scope of

environmental jurisprudence. One of the most striking features is the Supreme Court’s

inclusion of the right to a healthy environment in the right to life (Article 21)9

guaranteed by the Constitution. The Indian Supreme Court has earned the credit for

possibly being the most environmentally conscious judiciary in the world and has

evolved various important doctrines and precedents to help conserve the environment.

The Supreme Court has taken initiatives to come to the rescue of the people and the

environment, particularly when the legislature failed to perform its constitutional

9 Article 21 states, ‘No person shall be deprived of his life or personal liberty except according to procedure

established by law’.

7

duty. Some of the examples of the Supreme Court stepping forward to protect

environment and the citizens’ right are landmark cases including protecting the Taj

Mahal from coal and coke pollution,10

relocating hazardous industries in Delhi,11

re-

directing an illegally diverted river case,12

curbing vehicular pollution,13

aquaculture

case,14

and cleaning up the Ganga.15

In case of climate change resulting into negative impacts to the Ganga Basin and

dependent communities, the issue of concern is whether this role of the Supreme

Court could be appropriately extended to encompass the complex and significant legal

and institutional mechanisms and the probable violation of constitutional rights due to

climate change in the Ganga Basin.

III RESEARCH QUESTIONS

The role of the Indian Supreme Court in addressing climate change and the possible

legal and institutional change in the Ganga Basin in India, will primarily be explored

in the context of the development of a robust constitutional jurisprudence over more

than last two decades relating to sustainable development in India. In particular this

thesis explores the role of the Supreme Court and public interest litigation in

addressing the likely impacts of climate change in the Ganga Basin using the present

legal framework and the principles and doctrines developed by the Supreme Court in

environmental cases.

10 M.C. Mehta v. Union of India, 2 SCC 353 (1997). 11 M.C. Mehta v. Union of India, AIR 1996 5 SCC 281. 12 M.C. Mehta v. Kamal Nath, AIR 1988 SC 103. 13 M.C. Mehta v. Union of India, 6 SCC 12 (1999). 14 S. Jagannath v. Union of India, AIR 1997 SC 811. 15 M.C. Mehta v Union of India, 6 SCC 63 (1998). This is discussed in detail in chapter 3.

8

As mentioned, for the purposes of this thesis, two probable scenarios have been

hypothesised in chapter 3 of this thesis. The purpose of this approach is not to claim

scientific certainty relating to nature and timing of the scenarios but to support the

argument based on chapter 2 and 3 of this thesis that there is a reasonable risk of these

events occurring over a period of the next forty years and therefore important for the

Indian legal system to anticipate such risks and plan strategies to address them in

time. As these two scenarios are probable, they provide a useful focus to understand

the strengths and limits of the potential role the Indian Supreme Court could play in

responding to climate change.

The thesis explores the following research questions:

1. What is climate change? What are its potential key impacts on the glaciers of

the world in general, and on glaciers in the Himalayas in India? This is

discussed in chapter 2.

2. What is the significance of the Ganga Basin for India? What could be the

potential impacts of climate change on the Basin? This is examined in chapter

3.

3. Is the international climate change regime adequate to mitigate and adapt to

climate change in context of major river systems with a focus on the Ganga?

This is discussed in chapter 4 of the thesis.

4. What is the significance of adapting to climate change and what adaptation

measures are currently being practiced in river basins around the world? This

is also discussed in chapter 4.

5. What is the role of the legal systems in addressing climate change? What are

the complex issues that have arisen in past climate change litigation and what

9

approach have the courts around the world adopted to address them? Chapter 4

includes a discussion of this.

6. What are the current Indian policies, laws and institutions and constitutional

provisions related to climate change and the environment and how adequate

are they in regard to the identified scenarios A and B in the Ganga Basin?

Chapter 5 addresses these questions.

7. What role does the Indian Supreme Court play within the framework of the

Indian Constitution? This is also discussed in chapter 5.

8. What role has the Supreme Court played in the past in protecting and

conserving the environment through development of environmental

jurisprudence in India? This too is discussed in chapter 5.

9. What potential future role can the Supreme Court of India play in addressing

the effects of climate change within the constitutional framework, applying

existing legal doctrines, principles and approaches to scenarios A and B in the

Ganga Basin? This is discussed in chapter 6.

10. What are the barriers and limits to judicial intervention in addressing climate

change issues in India? Chapter 6 provides a critique of this issue.

IV SCOPE OF DISSERTATION TOPIC

Climate change will require changes at every level and sector of India and it is also

interconnected in global, political and economic spheres. International environmental

law and sustainable development principles have become part of Indian jurisprudence.

This thesis will primarily deal with domestic development of these principles within

India. Similarly there will be urgent need for adaptation through innovative, flexible

and appropriate legislation and related processes that are implemented, enforced and

10

resourced as we learn more and also have to deal with unexpected impacts and

unanticipated magnitudes of impacts. This thesis will not attempt to deal with all of

the complex strategies for appropriate environmental governance16

in the face of

adapting to climate change nor the authenticity of climate science.

It will not claim scientific certainty in relation to predicted impacts of climate change

on India and the Ganga Basin. Also, surface water resources are the main subject of

the scenarios that are identified. Groundwater issues are not specifically addressed,

although their interconnection is obviously part of the aquatic ecosystem.

The purpose of the research is to understand the strengths, issues and problems

associated with a robust aspect of Indian governance i.e. the role of the Supreme

Court and public interest suits in providing leadership and approaches to legal and

institutional change in addressing climate change and in facilitating adaptation in the

Ganga Basin.

V LITERATURE REVIEW

The literature review was undertaken through various libraries, scientific and research

institutions, environmental jurisprudence developed by courts, online material,

information and reports from different government and non-government agencies,

legislation and case reports, conference proceedings and media releases.

The literature review focussed on four main areas. First, climate change and its impact

on glaciers and river systems; second, international law and policy related to

mitigating and adapting to climate change; third, legal and institutional frameworks

16 The term good governance is generally characterised as referring to “openness, participation, accountability,

predictability, and transparency... It has been identified as a set of social norms comprising, among others, the

rule of law, anti-corruption, and accountability”. Durwood Zaelke, Mathew Stilwell and Oran Young,

'Compliance, Rule of Law, and Good Governance' (2005) 1(29) Making Law Work 36.

11

related to environment and water in India; and fourth, the enrichment of the Indian

environmental jurisprudence through Supreme Court activism.

VI METHODOLOGY

The methodology used in this thesis is largely doctrinal legal research which involves

the study of documents and legal and appellate decisions. The research involves

aspects of qualitative research17

for the purposes of addressing the research questions

to look at the extent and nature of climate change in the Ganga Basin and the part

Supreme Court may play in resolving disputes arising due to changed situations using

existing legal framework.

There are many ways that climate change could impact life in India, but the Ganga

Basin was purposely chosen as a focus because it is the largest river basin in India and

has great spiritual, cultural and economic significance attached to the river. Climate

change will have an adverse impact on the lives of millions of people dependent on

the Basin. Thus, it is important to study the predicted impacts of climate change and

adequacy of present legal system in India to cope with it. In order to understand the

strengths and weaknesses of the Indian Supreme Court as an institution, and the legal

principles that it has developed, two extreme, but feasible/probable scenarios are

identified. This is not meant to provide detailed scientific or social analysis: this

method is adopted to enable a detailed exploration of the potential role of the Supreme

Court in tackling the huge challenges involved in addressing issues arising due to

climate change and in adapting to it in the Ganga Basin.

17 Terry Hutchinson, 'Researching and Writing in Law' (Lawbook Co., Second ed, 2006).

12

The use of scenarios is an established methodology in predicting future patterns. It has

been used worldwide by government planners, corporate managers and military

analysts to assist in decision making in face of uncertainties.18

Scenarios are used to

gain more insight into possible future developments,19

to enable us to develop

intensive and focused actions to positively influence future developments. Different

authors define scenarios in a different way. For example, Godet and Roubelat (1996)

understand a scenario as a description of a future situation and the course of events

which allows one to move forward from the original situation to the future.20

For

Warfield (1996), scenarios are “narrative description of a possible state of affairs or

development over time”.21

It should be noted that scenarios are different from

forecasting the future. They help us to better prepare for key uncertainties whose

impacts and significance we may not have anticipated. The main idea behind them is

to be able to address the ‘what if’ question, and “minimise surprises and broaden the

span of managers thinking”22

to help understand various future possibilities. Scenarios

were first used by the oil company Shell which enabled it to anticipate the oil crisis of

1973. Scenario planning tools can have great significance for climate change

adaptation given the complex and unpredictable processes underlying climate change

and their poor understanding. Access to climate information, especially to the

communities most vulnerable and least capable to adapt is limited, so scenarios help

us to understand and be prepared for the possible future situations and to test the

adequacy of present laws and policies for their rigour and performance in case of

future uncertainties.

18 D. Mietzner and G. Reger, 'Advantages and Disadvantages of Scenario Approaches for Strategic Foresight'

(2005) I(2) Int. J. Technology Intelligence and Planning 220. 19 K. Van der Heijden, 'Scenarios: The Art of Strategic Conversation’ (Chichester: Wiley, 1996). 20 M. Godet and F. Roubelat, 'Creating the Future: The Use and Misuse of Scenarios' (1996) 29(2) Long Range

Planning 166. 21 J. Warfield, in E. Slaughter (ed), An Overview of Future Methods (1996) . 22 Mietzer and Reger, above n 18.

13

A number of developmental projects, such as the damming and tunnelling of the

rivers, are undergoing and are being planned in the upper stretches of the Ganga

Basin. To assess the extent of such developmental activities, which could influence

the way climate change would impact the Ganga Basin and also the choice of

adaptation measures to climate impacts in the Basin, field visits were conducted in the

upper stretches of the River Ganga, along the River Bhagirathi and River Mandakini,

a tributary of the Ganga. This helped to get first hand information about these

developmental projects and their effects on the local people.

Semi -structured interviews of different groups of people including scientists,

academicians, environmentalists, religious leaders, economists, government and non-

government officials working on issues related to the River Ganga, and local people

and farmers in the upper stretches of the Basin were also conducted. The main

purpose of the interviews was to assess the public perception about the massive

construction activities going on in the Basin. It was also significant as most of these

developments, being new and ongoing, are not well documented and the dimensions

and views associated with such projects are under-represented. Construction of many

of the dams and tunnels on the river have been opposed by the local people from time

to time and in some cases even legal recourse was adopted. Therefore, obtaining

information directly from the ground through interviews and field visits was

significant for the study.

However, some problems were faced during the interviews as most of the government

officials did not disclose data related to River Ganga, citing such data as classified, as

the Ganga is a transboundary river shared by both India and Bangladesh, who

unfortunately do not have a very cordial history of sharing Ganga water. Also, many

14

of the interviewees did not wish to be recorded, for different reasons, like fear of

being identified or perceiving risk to their jobs. Some local people feared that if they

were recorded, the police may identify them and later on harass them for taking part

in protests against the developmental projects undertaken by the government.

Extreme caution was taken pursuant to ethical obligations not to disclose the identity

of the interviewees under the Ethics Approval,23

and the purpose of the interviews

was to gain a wider evidence base related to changes in the Ganga and how they may

be, exacerbated by existing and proposed development in its upper reaches.

VII THESIS STRUCTURE

The thesis is divided into seven chapters. This present chapter provides an

introduction and background to the thesis.

Chapter 2 provides an introduction to climate change and discusses its impacts on

glaciers, including the Himalayan glaciers.

Chapter 3 focuses on the significance of the Ganga River for India and the potential

impacts of climate change on the Ganga Basin. It identifies two climate change

scenarios and the possible implications on the Ganga Basin.

Chapter 4 discusses the international climate change regime and explains the concept

of mitigation and adaptation to climate change. It throws light on international legal

efforts to mitigate climate change, and the growing importance of adaptation. It refers

to some examples of adaptation in the water sector to the impacts of climate change

23 Ethics approval is required to be obtained from the Human Ethics Research Committee for conducting

interviews for ensuring welfare, rights, dignity and safety of the interviewees and for undertaking to not

disclose their identity.

15

around the world and introduces some of the existing climate litigation in various

courts.

Chapter 5 discusses the role of Indian Supreme Court in the constitutional framework;

climate and environmental legal regime in India and their adequacy in relation to

scenarios A and B. Chapter 5 also discusses various doctrines and principles

developed by the Supreme Court of India in landmark environmental cases.

The applicability and adequacy of present legal framework in India and the principles

developed by the Supreme Court is tested in relation to the two identified scenarios in

the Ganga Basin in chapter 6.

Chapter 7 concludes and summarises the thesis highlighting the important findings

and recommendations for further research.

16

CHAPTER 2

THE IMPACTS OF CLIMATE CHANGE ON GLACIERS AND

DEPENDENT RIVER SYSTEMS

Climate change is one of the most hotly debated issues of this century. The United

Nations Secretary General Ban Ki-moon described climate change as ‘the defining

challenge of our age’.24

The importance of this phenomenon was highlighted when

the Nobel Prize for peace was awarded to Al Gore and the Inter-governmental Panel

on Climate Change (IPCC) in 2007. It is predicted that climate change will have

disastrous implications on major aspects of life including melting of glaciers and

water availability; food security; submerging coastal lands; displacement of people;

increasing frequency of extreme events like droughts and hurricanes, heat waves and

freezes; river flooding; large scale desertification affecting availability of food and the

extinction of many species.

This chapter provides the necessary context to understand the first research question

and gives the background to climate change and its impacts with an international and

Indian perspective. The focus is on the impacts of climate change on the water

resources and glaciers, including the Himalayan glaciers which source the Ganga

River. This is done in order to examine the general trend of the way glaciers around

the world, and in the Himalayas, are responding to the changing climatic conditions.

This is important for the purposes of predicting the adequacy of the present Indian

legal system and potential role of the Supreme Court of India to address legal issues

arising due to such changes in the Ganga Basin and to suggest possible adaptive

measures that would be necessary due to changes in water flows that result from

24 Elisabeth Rosenthal, 'UN Chief Seeks More Climate Change Leadership', New York Times 17 November 2007.

17

climate change. The purpose of this discussion is not to establish all the scientific

facts about the relationship between climate change impacts and glaciers but to be

able to make reasonable predictions about the way source glaciers of the Ganga River

are expected to respond to climate change over the next forty years.

I CLIMATE CHANGE: BACKGROUND

The atmosphere of planet Earth consists of several gases in varying concentrations.

These gases absorb radiation at different points of the spectrum. Some of these gases,

known as greenhouse gases (GHGs), are transparent to incoming solar radiation but

absorb significant amount of outgoing radiation. This results in a rising of the

temperature of Earth’s surface.25

Carbon dioxide (CO2) is the major GHG along with

other gases like water vapour, methane, nitrous oxide, ozone in lower atmosphere and

chlorofluorocarbons (CFCs). In reality, it is only because of this warmth due to the

GHGs that it is possible to have life on planet Earth. The real issue of concern is the

scale at which concentration of these gases is currently increasing, mainly due to

anthropogenic reasons such as the burning of fossil fuels and clearing of forests.

These increased amounts of GHGs give rise to enhanced greenhouse effects raising

the average temperature of Earth’s atmosphere, altering climatic processes, causing

disastrous implications like altering rainfall patterns, melting of glaciers and the rising

of sea levels.

Though the Earth’s climate has always been changing and some variability is natural

and has always been there, it is the rate of change in recent decades that is the cause

of concern for humanity. Scientists have concluded that the world has already

25 H Le Treut et. al. 2007: Historical Overview of Climate Change. In: Climate Change 2007: The Physical

Science Basis. Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental

Panel on Climate Change [S. Solomon et al (eds.)] Cambridge University Press, Cambridge, United Kingdom

and New York, NY, USA, 115.

18

experienced 0.8°C warming compared to pre-industrial time (about 150 years ago)

and the global temperature is predicted to rise by 2-4.5°C by the end of this century. 26

This can have devastating impacts on planet Earth considering that the difference in

global temperature is of only about five or six degrees between the coldest part of an

ice age and the warm periods in between ice ages.27

The concern is that increase of greenhouse gases may reach levels that can cause

serious irreversible damage to the climate. This stems from the fact that the

concentration of greenhouse gases in the atmosphere has increased many times since

the industrial revolution. Global atmospheric concentrations of CO2, methane and

nitrous oxide have increased from 280 ppm (parts per million) to 379 ppm, 715 ppb to

1774 ppb and 270 ppb to 319 ppb respectively, between pre-industrial period and

2005.28

Since 1850, land-use change is estimated to have released 136 GtC (Giga

tonnes of Carbon) and fossil fuel combustion about 270 GtC. 29

Of this, 180 GtC has

ended up in the atmosphere, while 110 GtC has been absorbed by vegetation and

oceans.30

This growing concentration of CO2 in the atmosphere is a cause of concern

about global climate change. Some of these greenhouse gases such as CO2, nitrous

oxide and some CFCs can stay in the air for more than a century and so even if

present emissions are reduced, the past emissions will continue to affect the climate

system.

26 IPCC, 2007: Climate Change 2007: The Physical Science Basis. Contribution of Working Group I to the Fourth

Assessment Report of the Intergovernmental Panel on Climate Change, [S. Solomon et al (eds.)], Cambridge

University Press, Cambridge and New York. 27 John Houghton, 'Global Warming: The Complete Briefing' (Cambridge University Press, Fourth ed, 2009). 28 IPCC 2007: Summary for Policy Makers. In: Climate Change 2007: Impacts, Adaptation and Vulnerability.

Contribution of Working Group II to the Fourth Assessment Report of Intergovernmental Panel on Climate

Change, [M.L. Parry et al (eds.)], Cambridge University Press, Cambridge, UK. 29 B. Bolin and R. Sukumar, 'Global Perspective' in R. T. Watson, I. R. Noble and B. Bolin (eds), Land Use, Land

Use Change and Forestry (Intergovernmental Panel on Climate Change, Cambridge University Press 2000) . 30 Ibid.

19

The IPCC warns that any increase in global temperatures above two degrees Celsius

over the next century would have devastating consequences for the world. It also

indicated that atmospheric GHG concentrations should be stabilized at 450 ppm CO2

equivalent.31

The IPCC indicates that global GHG emissions due to human activities

have grown since pre-industrial times, with an increase of 70 per cent between 1970

and 2004.32

Under the Kyoto Protocol,33

Annex I Countries are required to reduce

their emissions to fixed percentages below 1990 levels. However, most countries

have failed to keep up with the Kyoto Protocol and their emissions have dramatically

increased. For example, Canada’s emissions rose to 27 per cent over 1990 levels by

2007.34

More disturbing is that there is no hope of Canada trying to reduce its

emissions as it has recently announced its withdrawal from the Kyoto Protocol. The

increasing concentrations are changing the world’s climate at an unprecedented rate

and causing a variety of implications around the world.

Some scholars fear that climate change may be far more disastrous than what we

currently anticipate and the changes in climate may get out of control considering the

way we are rapidly transforming the climate system.35

It is argued that the climate

models have underestimated the interactions between greenhouse gases and the

biosphere which may signal that warming could be more significant than the IPCC

predicted in its fourth assessment report. 36

There is already evidence that the climate

31 ‘Equivalent’ signifies that CO2 is not the only greenhouse gas. To create a single measure, other GHGs such as

methane and nitrous oxide are converted into a CO2 equivalent. 32 IPCC, 2007: Climate Change 2007: Synthesis Report. Contribution of Working Groups I, II and III to the Fourth

Assessment Report of the Intergovernmental Panel on Climate Change [R.K. Pachauri and A. Reisinger

(eds.)], IPCC, Geneva, Switzerland. 33 Details about the Kyoto Protocol are given in chapter 4. 34 Benjamin J. Richardson et al (eds), Climate Law and Developing Countries: Legal and Policy Challenges for

the World Economy, Supporting Adaptation in Developing Countries at the National and Global Levels

(Edward Elgar Publishing Limited, 2009). 35 Herve Kempf, 'How the Rich Are Destroying the Earth' (Finch Publishing Sydney 2008). 36 Ibid.

20

system is changing faster than predicted in IPCC reports,37

and it is very likely that

the effects could manifest themselves much earlier than estimated in any of the

previous assessments.38

This is strengthened from the claims that the global

temperature increase and the rate of sea level rise are at (or above) the worst-case

scenario of the IPCC.39

This signifies the urgent need to take action to address the fast

changing climatic conditions. Though there may be some positive benefits in some

regions, for some specific purposes, planning is required to deal with potential large

scale change and catastrophic effects.

Though scientists are certain that we are committed to some warming of temperature

due to past emissions of greenhouse gases, even if all there are radical reductions in

their emissions at present,40

there is no doubt about a great deal of uncertainty

associated with predicting specific impacts of climate change especially on a regional

basis. However, given the high level of risk associated with changing climate and its

irreversible effects on society, polity and economy, it is utmost important to prepare

for it prospectively without waiting for the impacts to occur. The costs of unchecked

climate change in economic loss, human misery, and loss of ecosystem services are

likely to be enormous.41

The United Nations Environment Programme (UNEP)

estimated that climate change could cost world gross domestic product from $150 to

$300 billion annually unless strong efforts are made by developed and developing

37 Will Steffen, 'Climate Change 2009: Faster Change & More Serious Risks' (Department of Climate Change,

Govt. of Australia, 2009) 38 T. Lenton, A. Footitt and A. Dlugolecki, 'Major Tipping Points in the Earth’s Climate System and Consequences

for the Insurance Sector' (World Wide Fund for Nature (WWF) and Allianz, 2009). 39 Chris Stokes and Mark Howden (eds), 'Adapting Agriculture to Climate Change: Preparing Australian

Agriculture, Forestry and Fisheries for the Future’ (CSIRO Publishing, 2010). 40 IPCC, 2007, above n 3. 41 American Chemistry Society, Public Policy 2007-2010: Global Climate Change

(<http://www.una.edu/faculty/mbmoeller/Climate%20Change%20Class/ACS%20Climate%20Change%20Pol

icy.pdf>.

21

nations to curb greenhouse gas emissions.42

The Stern Review has suggested that the

overall costs and risks of climate change will be equivalent to losing at least five per

cent of global GDP each year, now and forever.43

Though there is a time lag between identifying and understanding the nature of the

problems, then designing and implementing responses; waiting for relative certainty

about the nature of climate change before taking action to reduce climate change

related risks may prove far more costly than taking certain pro-active management

and planning steps now.44

Law and legal institutions will need to consider the

changing situation and will need to play a significant role in addressing complex legal

issues associated with climate change. It is of utmost importance to anticipate the

risks of climate change and test the present policies, laws and institutions for their

adequacy to deal with changed future climate so that the extent of harm may be

reduced.

II OVERVIEW OF IMPACTS OF CLIMATE CHANGE: AN INTERNATIONAL PERSPECTIVE

This section provides a snapshot of climate change impacts worldwide. Emphasis is

on its impacts on the melting of glaciers and subsequent implications on the fresh

water resources in the glacier fed rivers, such as the Ganga River. The purpose is to

understand the risks of climate change on the glaciers and to establish a general trend

for predicting the impacts on source glaciers of the River Ganga in the Himalayas.

Though climate change is having an impact on the entire globe in varying degrees,

most of the African and Asian countries stand to lose the most. In Africa, small-scale

42 UNEP, 2002, Climate Change & the Financial Services Industry, United Nations Environment Programme, July

2002. 43 N. Stern, 'The Economics of Climate Change' (Cambridge University Press, Cambridge, 2007). 44 M. Monirul Qader Mirza and Q. K. Ahmad (eds), 'Climate Change and Water Resources in South Asia' (A.A.

Balkema Publishers, 2005), 191.

22

farming, heavily dependent on direct rainfall, employs over 70 per cent of the people.

45 The slightest change in weather patterns can have serious consequences on food

security. Climate change may put an estimated 80-120 million people at risk of

hunger, of which 70-80 per cent will be in Africa.46

Desertification and higher

temperatures caused locust plagues in 2004 in several West African states destroying

millions of hectares of crops and causing a food crisis. 47

Climate change is also

expected to exacerbate the already water-stressed situation in Africa.

For the developing countries of Asia, climate change could represent an additional

stress on ecological and socioeconomic systems that are already facing tremendous

pressures due to population growth, rapid urbanization, industrialization and

economic development. Rising temperatures may affect crop yields, further stressing

food supply and increasing the risk of hunger. Asian countries also face increased risk

of water borne diseases in the new climatic conditions.

Developed economies like Australia and New Zealand are also under risk and face

ongoing water shortages, particularly in southern and eastern Australia, which may

become worse by 2030. Ecologically important regions such as the Great Barrier Reef

and Kakadu National Park are likely to lose a significant part of their wildlife by

2020.48

Some coastal communities are very likely to see an increased risk of coastal

storms and flooding. Temperature rises of 1°C-2°C are likely to bring benefits to

cooler areas, such as New Zealand, in the form of longer growing seasons and

reduced energy demand. However, greater warming is also likely to bring a net

negative impact - such as increased risk of drought and fire.

45 'Africa-Up in Smoke?: The Second Report From the Working Group on Climate Change and Development'

(New Economics Foundation, June 2005). 46 Ibid. 47 Ibid. 48 'Climate Change Around the World', BBC News 6 April 2007.

23

Central and Eastern European countries could face water stress due to reduced

summer rainfall. Health risks due to heat waves are expected to increase. Forest

productivity is expected to fall and the frequency of peatland fires to increase.

Southern European countries are very likely to see reduced water supplies, lower crop

production, more wildfires and health impacts from increased heat waves. In 2003,

the unusual heat wave in Europe claimed more than 35000 lives. Though the causes

cannot be ascertained to climate change with confidence, nevertheless, there is no

doubt that these heat waves have become recurrent phenomena in recent years.

Northern countries are likely to benefit from increased crop yields, forest

productivity, and food supplies from the North Atlantic. However,by 2020, most areas

of Europe are likely to see an increased flood risk. In the Netherlands, where much of

the landmass is at or under sea level, sea defences are already in place but an

expenditure of US$12000 million would be required if more than half of coastal

lowlands is to be protected against a sea level rise of 1 m.49

Warming in the western mountains in North America is very likely to reduce

snowpack, bringing more floods in winter and reduced water supplies in summer.

Problems with pests, diseases and forest fires may increase. Intensity of storms is

likely to become stronger. Recently, Washington DC recorded a winter snowfall

which was the heaviest on record since 1899. Though it cannot be assigned to climate

change with certainty, it highlighted the need for more detailed study of climate

impacts.

According to one estimate, the number of great natural catastrophes worldwide

increased nearly threefold from the 1960s to the 1990s, while economic losses from

49 Houghton, above n 27, 186.

24

these same catastrophes increased ninefold during the same period.50

Another study

claims that nearly 12000 lives were lost and over 153 million lives were impacted by

wind storms, wildfires, floods, temperature extremes, and droughts worldwide in 2005

alone.51

Globally, the last thirty years have been the warmest since accurate records began

over 100 years ago.52

The warming is predicted to melt the polar ice and expand the

volume of water in the world’s oceans, thereby causing the sea levels to rise.

Globally, average sea level rose at an average rate of 1.8 mm per year over 1961 to

2003. The rate was higher over 1993 to 2003, about 3.1 mm per year.53

Relatively

conservative scientific predictions include a rise in sea level of a metre or more over

the next century. This is of particular concern to the Island nations, especially the ones

that are little more than a metre above the existing sea level where even the smallest

rise is a potential threat to their survival. Low-lying countries like Bangladesh and

some of world’s most populated cities like Mumbai are also threatened due to these

rising sea levels.

2010 was one of the warmest years since 1850, with record temperatures, record-

breaking rainfall and a further decrease in Arctic ice cover.54

The second-highest

numbers of loss-related natural catastrophes were recorded in the year 2010, 2007

being the highest.55

Wildfires in Russia and the devastating floods in Pakistan caused

losses worth billions. In the Pakistan floods, one of the worst in the country’s history,

50 'Topics 2000: Natural Catastrophes- The Current Position (Special Millennium Issue)' (Munich Re Group,

December 1999). 51 Ronald D. Brunner and Amanda H. Lynch, 'Adaptive Governance and Climate Change' (American

Meteorological Society, 2010) 4. 52 Houghton, above n 27. 53 IPCC, 2007, above n 3. 54 'Topics Geo: National Catastrophes 2010: Analyses, Assessments, Positions' (Munich Re, 2011). 55 Ibid.

25

one-fifth of the country was flooded, which affected about 20 million people and left

2000 dead.56

Australia’s East Coast was hit by severe floods in 2010- 2011 amounting

to losses of several billion US dollars. The rising sea engulfed New Moore Islands or

the Talpatti, near the Bay of Bengal signalling the devastating impacts of climate

change.57

The exact cause and effect may be difficult to prove for each of these

catastrophes but the precautionary principle should apply and measures should be

taken urgently to mitigate and adapt to climate change.

Glaciers are particularly important in climate change study and are commonly

regarded as sensitive indicators of climate change.58

The following section discusses

impacts of climate change on glaciers around the world.

A Impact of Climate Change on Glaciers Worldwide

Glaciers are ancient rivers of compressed snow that creep through the landscape,

shaping the planet’s surface. Glaciers and ice sheets are considered as proxy records

of climate change due to their sensitivity and wide-spread distribution in space.

Seventy percent of Earth’s fresh water is frozen in glaciers. Often, glaciers provide

the major source of water during the dry seasons. Fresh water resources are already

under severe stress due to growing population and unsustainable development. By

2025, about two-thirds of the world population, particularly in the developing world,

is predicted to be subjected to moderate to high water stress.59

The melting of glaciers

due to climate change is likely to put additional stress on limited water resources

endangering life and livelihood of millions of people.

56 'Pakistan Floods: World Bank to Lend $900m for recovery', BBC News 17 August 2010. 57 'Disputed Bay of Bengal Island 'Vanishes' Say Scientists', BBC News 24 March 2010. 58 D.P. Dobhal and Manish Mehta, 'Snout Fluctuation of Dokriani Glacier (1962-2007) vis-a-vis the Impact of

Climate Change' (2008) 29(3) Himalayan Geology 23. 59 Jayant Sathaye, P.R. Shukla and N.H. Ravindranath, 'Climate Change, Sustainable Development and India:

Global and National Concerns' (2006) 90(3) Current Science 316.

26

Glacier advance and retreat are both a consequence and cause of the climate change.60

Though glaciation and de-glaciation are continuous natural processes, the enhanced

rate of glaciers melting in recent decades cannot be explained by historical trend. The

20th

century witnessed retreating glaciers at an unprecedented scale. The first phase of

this glacier retreat was associated with the emergence from the Little Ice Age (15th

to

19th

century). It corresponded with a warming of 0.3ºC in the first half of the 20th

century in the northern hemisphere and in the last 25 years, a second 0.3ºC warming

pulse has caused northern hemisphere temperatures to rise to unprecedented levels

compared to the last 1,000 years.61

A study considered the mass balance changes of over 200 mountain glaciers globally

and concluded that the reduction in global glacier area amounted to between 6,000

and 8,000 km2

over a 30- year period between 1961 and 1990.62

Wessels et al (2001)

compared the historical glacier data which revealed a significant shrinkage of

mountain glaciers in the Andes, the Himalayas, the Alps and the Pyrenees.63

These

observations are consistent with the melting trend of many other glacier studies

around the world.

In the Antarctic Peninsula and adjacent lands, the analyses of aerial photographs and

satellite images show that 87 per cent of glaciers have retreated over the last six

decades. 64

Coastal glaciers and ice sheets in the Antarctic are also melting. The Arctic

Islands, consisting of Greenland, the Canadian Arctic Archipelago to the west,

60 'Preliminary Consolidated Report on Effects of Climate Change on Water Resources' (Ministry of Water

Resources (Government of India), 2008), 3. 61 'An Overview of Glaciers, Glacier Retreat, and Subsequent Impacts in Nepal, India and China' (WWF Nepal

Program, 2005). 62 M.B. Dyurgerov and M.F. Meier, 'Mass Balance of Mountain and Sub-Polar Glaciers: A New Global

Assessment for 1961-1990' (1997) 29(4) Arctic and Alpine Research 379. 63 R.L. Wessels, J.S. Kargel and H.H. Kieffer, 'Global Land Ice Measurements from Space: Documenting the

Demise of Earth’s Glaciers using ASTER' (2001). 64 A.J. Cook et al, 'Rretreating Glacier Fronts on the Antarctic Peninsular over the Past Half-Century' (2005) 308

Science 541

27

Iceland, Svalbard and the West Arctic Islands, as well as the East Arctic Islands, have

also been receding, with the exception of Scandinavia and Iceland where increase in

precipitation resulted in glacier growth.65

Arctic melting appears to have accelerated

in the late 1990s; estimates of combined annual melting rose from 100 sq km per year

from 1980-89 to 320 sq km in 1997 and 540 sq km in 1998.66

NASA reported

overnight breakup of a glacier in the Greenland recently.67

Though it is not unusual,

but the fact that it was detected within hours is unusual for the scientists. Entire

portions of the Greenland ice sheet (containing 12 per cent of the world's ice) appear

to be sliding towards the sea. Furthermore, thin seasonal ice (ice that melts and

refreezes every year) makes up about 70 per cent of the Arctic Sea Ice in wintertime,

up from 40 per cent to 50 per cent in 1980s and 1990s. Thicker ice, which survives

two or more years, now comprises just 10 percent of wintertime ice cover, down from

30 per cent to 40 per cent.68

Glaciers in the Rocky Mountains and Western Coastal ranges in North American

continent have experienced considerable losses and the melting is accelerating rapidly

in southern Alaska.69

If the present rate of warming continues, there will be no

glaciers left in the Park by 2030.70

Scientists in Bolivia say that country’s most famous glacier, Chacaltaya, has almost

disappeared due to climate change.71

Many other glaciers have recorded significant

65 J. Jania and J.O. Hagon, 'Mass Balance of Arctic Glaciers' (International Arctic Science Committee, 1996),

quoted in Stacey Combes et al, 'Going, Going, Gone! Climate Change and Global Glacier Decline ' (WWF,

Undated). 66 ‘Going, Going, Gone! Climate Change and Global Glacier Decline’, above n 65. 67 NASA, Researchers Witness Overnight Breakup, Retreat of Greenland Glacier (9 July 2010)

<http://www.nasa.gov/topics/earth/features/jakobshavn2010.html>. 68 ‘Going, Going, Gone! Climate Change and Global Glacier Decline’, above n 66. 69 Ibid. 70 M.H.P. Hall and D.B. Fagre, 'Modeled Climate-Induced Glacier Change in Glacier National Park, 1850-2100'

(2003) 53 (2) Bioscience 131. 71 James Painter, 'Huge Bolivian Glacier Disappears', BBC News 12 May 2009.

28

melting, many times faster than previous decades. The Northern Andes contain the

largest concentration of glaciers in the tropics, but these glaciers are receding rapidly

and losses have accelerated during the 1990s.72

In the Alps, the water tower of Europe, glacier melting has accelerated since 1980 and

10-20% of glacier ice was lost in less than two decades.73

A US study reporting Africa’s tallest peak Mt. Kilimanjaro could vanish in 20 years

made headlines in major newspapers recently.74

The study said that the ice sheet that

capped Kilimanjaro in 1912 was 85 percent smaller by 2007, and since 2000 the

existing ice sheet has shrunk by 26 percent. According to World Wildlife Fund

(WWF), 7 of the 18 glaciers present in 1900 on Mt. Kenya had disappeared by 1993

and many have lost much area. Glaciers of Ruwenzori mountains are also melting

rapidly.75

The shrinking of glaciers will likely have a significant socio-economic impact in some

mountain regions, though exact local impacts remain uncertain and may vary. The

response of small glaciers is especially important as they respond rapidly to climate

change and their melt affects millions of people depending on their water. Scientists

predict that small glaciers and ice caps are biggest sources of the rise in global water

levels, contrary to a previous focus on Antarctic and Greenland.76

This infers that the

72 ‘Going, Going, Gone! Climate Change and Global Glacier Decline’, above n 66. 73 W. Haeberli and M. Beniston, 'Climate Change and its Impacts on Glaciers and Permafrost in the Alps' (1998)

27(4) Ambio 258. 74 AFP, 'Melting Away: Snows of Kilimanjaro Could Vanish in 20 Years', The Sydney Morning Herald 3

November 2009. 75 ‘Going, Going, Gone! Climate Change and Global Glacier Decline’, above n 66. 76 Physorg.com, Glaciers Adding More to Global Sea Rise Than Ice Sheets, Study Says (11 December 2006)

<http://www.physorg.com/news85073557.html>.

29

increased melting and near disappearance of smaller glaciers cannot be overlooked as

it can cause serious problems of water availability.

It can be concluded that climate change is causing increased receding of glaciers

around the world. It seems likely that these changes will continue for the foreseeable

future due to ongoing, and even accelerating emissions of carbon dioxide and other

greenhouse gases.77

Scientists claim that as emissions continue to grow, we may be

heading for an ice-free planet.78

At the same time, increasing ice mass balances and

growing glaciers have been reported in the Karakoram mountains in the western part

of the Himalayan region,79

which exemplifies the complexity of the situation. Yet the

major trend shows that glaciers all over the world are experiencing increased

receding.80

III IMPACTS OF CLIMATE CHANGE: AN INDIAN CONTEXT

This section addresses the climate change impacts on India and the Himalayan

glaciers and provides an understanding of the vulnerability of the country to climate

change and the critical situation it would face due to reduced water resources because

of melting Himalayan glaciers. Adaptive and preventive actions are necessary to

reduce the intensity of these impacts to lower the vulnerability of the Ganga Basin to

77 J Canadell et al, 'Contributions to Accelerating Atmospheric CO2 Growth From Economic Activity, Carbon

Intensity, And Efficiency of Natural Sinks' (2008) 104 Proceedings of the National Academy of Sciences

18866. 78 Andrew Glikson, 'As Emissions rise, We May Be Heading for an Ice-free Planet', The Conversation 18 January

2012. 79 Kenneth Hewitt, 'The Karakoram Anomaly? Glacier Expansion and the ‘Elevation effect’ Karakoram Himalaya'

(2005) 25(4) Mountain Research and Development 332; Kenneth Hewitt, Understanding glacier changes (1

February 2010) China Dialogue

<http://www.chinadialogue.net/UserFiles/File/Glacier_Changes_2010_CD_ver4.pdf>; D. Scherler, B.

Bookhagen and M.R. Strecker, 'Spatially Variable Response of Himalayan Glaciers to Climate Change

Affected by Debris Cover' (2011) 4 Nat. Geosci. 156; Alister Doyle, 'Some Himalayan Glaciers Advance

Despite Warming', Reuters 23 January, 2011. 80 See, for example, ANI, 'Glaciers Melting 100 Times Faster', Hindustan Times 7 April 2011; 'Glacier Melting A

Key Clue to Tackling Climate Change', Times of India 4 March 2010.

30

climate change, in specific context of the Indian laws and institutions that can be

applied in case of climate change impacts in the Ganga Basin.

A The Background

Since India gained independence from the British in 1947, it has come a long way in

little over 60 years. However, this largely fossil fuel based economic growth has

contributed to rising green house gas emissions which rose from 682 Mt (million

tons) CO2 in 1990 to 1,342 Mt CO2 in 200481

and to 1,904.73 Mt in 2007.82

India’s

emissions are ranked the third highest in the world today83

but as a developing

economy whose industrial process began only in the later half of the 20th

century, it

does not bear historical responsibility for emission reduction targets.84

Further, India’s

contribution to the cumulative global CO2 emissions is only five per cent and its per

capita carbon emissions are relatively much smaller compared to that of US (twenty

times that of India) and Western Europe and Japan (ten times more than India’s

emissions).85

The Climate Change Performance Index portrays India as one of the

relative global leaders in climate change performance.86

81 L Watkins, 'UNDP Human Development Report 2007/2008: Fighting Climate Change: Human Solidarity in a

Divided World' (2007). 82 Indian Network for Climate Change Assessment, 'Greenhouse Gas Emissions 2007: Executive Summary'

(Government of India, May 2010) 5. 83 Gopal Sharma, 'India Says Is Now Third Highest Carbon Emitter', Reuters (Kathmandu), 4 October 2010. 84 Under the Kyoto Protocol, Annex I Countries are required to reduce their GHG emissions to at least 5% below

1990 levels between 2008 and 2012 and have been assigned specific emission quotas under Annexes A and

B. 85 'State of Environment Report: India 2009' (Ministry of Environment & Forests, Government of India, 2009) 26.

Also, according to recent Climate Change Performance Index, India’s share of global carbon dioxide is

4.86%, which is much less than that of US (19.09%) and China (22.29%)

<http://www.germanwatch.org/klima/ccpi11.pdf> 86 The data excludes issues like deforestation and land use and only energy related emissions are accounted for.

http://www.germanwatch.org/klima/ccpi11.pdf

31

Figure 2.1: India’s Share in Global Carbon dioxide Emissions

Source: World Development Indicators 2007 (quoted in State of Environment Report, Ministry

of Environment and Forests, India, 2009)

Though the present GHG emissions of India are lower, but due to a number of

developmental activities going on, the GHG emissions are expected to rise steadily in

the future. According to the Economic Survey 2009-10, India's per capita carbon

dioxide emissions will increase by 2-2.5 tonnes by 2020 and 3-3.5 tonnes by 2030, 87

while the per capita emissions in 2007 were 1.5 tonnes/capita.88

One study predicts

that India might suffer the highest GDP loss from climate change in case of 2.5° C

increase in global temperature.89

Though, according to the government, the emissions intensity of India’s GDP

declined by more than 30 per cent during the period 1994-2007 and the government

intends to further reduce the emissions intensity of GDP by 20-25 per cent between

87 'The Economic Survey 2009-10' (Ministry of Finance, Government of India, 88 Indian Network for Climate Change Assessment, above n 82. 89 William Nordhaus and Joseph Boyer, 'Warming the World: Economic Models of Global Warming' (MIT Press,

2000).

32

2005 and 2020,90

yet, the dependence on hydrocarbon resources for development has

costed dearly in terms of high GHG emissions. Though its per capita emissions still

remain much below that of the developed world, its emissions on whole contribute

significantly to global warming. India continues to face the challenge of maintaining

high rate of economic growth to provide decent standard of living to its poor without

a GHG dependent economy.

B Observed and Projected Impacts of Climate Change in India

Climate change represents an additional stress on ecological and socio-economic

systems in India apart from the pressures due to rapid urbanization, industrialization

and economic development. India could be 2°C warmer than 1970s levels within 20

years, which would disrupt rain cycles and wreak havoc on the country's agriculture

and freshwater supplies.91

With its huge and growing population, a 7,500-km long

densely populated and low-lying coastline, and an economy that is closely tied to its

natural resource base, India is considerably vulnerable to the impacts of climate

change.

Though the possible impacts of climate change cannot be predicted with certainty,

various studies have pointed out that certain critical sectors can be negatively affected

by climate change. Some highlights from the NATCOM I to United Nations

Framework Convention on Climate Change (UNFCCC) 92

and others are listed below.

90 Indian Network for Climate Change Assessment, above n 82. 91 Indian Network for Climate Change Assessment, 'Climate Change and India: A 4x4 Assessment' (Ministry of

Environment and Forests, Govt of India, 2010). 92 'India’s Initial National Communications to the United Nations Framework Convention on Climate Change'

(Ministry of Environment and Forests, 2004).

33

1 Risk of Rising Temperatures

An increase of 0.4°C has been observed in surface air temperatures over the past

century.93

The IPCC, in its 2007 report, predicted temperature increase of 2.7-4.3° C

over India by 2080s. A climate change developed over Indian sub-continent projected

that over the inland regions of the Indian sub-continent, the mean surface temperature

may rise between 3.5°C and 5.5°C by 2080.94

The trend is continuing as 2010 was

declared as the hottest year on record for India.95

2 Extreme Events

Extreme temperatures and heat spells have already become common in India, often

causing loss of human life. In May 2003, peak temperatures of 45-49° C claimed over

1600 lives throughout the country. A year earlier, a one-week heat wave with

temperatures topping 51° C took over 1000 lives.96

In 1998 alone, 650 deaths

occurred in Orissa due to heat waves. In the cyclone in Andhra Pradesh in 1996, more

than 1000 people died and there was huge property loss.97

The super-cyclone of 1999

wreaked havoc in Orissa, knocking decades off its development and claimed more

than 30,000 lives.98

This is of serious concern as many scholars predict increase in the

cyclones in coastal regions due to global warming.99

However frequency of monsoon

depressions and cyclones formation in Bay of Bengal and Arabian Sea is on the

93 Ibid. 94 ‘Preliminary Consolidated Report on Effects of Climate Change on Water Resources’, above n 60, 37. 95 'Annual Climate Summary of India During 2010' (Indian Metereological Department, Government of India,

2011). 96 IMD (2000-2003): Disastrous Weather Events. DWE Reports, Annual 2000, 2001, 2002, 2003, India

Meteorological Department Publication. 97 ENVIS Newsletter, 'Climate Change: Response Network' (ENVIS Centre, Environment Department,

Government of Maharashtra, October 2010 April - May, 2010). 98 ‘State of Environment Report: India 2009', above n 85. 99 A. S. Unnikrishnan et al, 'Sea Level Changes Along the Indian Coast: Observations and Projections' (2006)

90(3) Current Science 362.

34

decline since 1970 but intensity is increasing causing severe floods in terms of

damages to life and property.100

Extreme droughts and flood events are also becoming increasingly common, in terms

of spatial coverage, frequency and severity. In Orissa, the great drought of 2001 was

the first since the great famine of 1866, and it affected 25 of the Orissa’s 30 districts

and also lives of 11 million people.101

The drought in 2000 was worst to hit Gujarat in

past 100 years. In the year 2002, rainfall deficiency for the country as a whole

amounted to 19 per cent and drought conditions impacted 29 per cent of India’s

geographical area.102

In August 2000, the monsoon driven floods in the state of Andhra Pradesh left

thousands homeless, brought misery to millions and damaged large areas of crops.

The capital city of Hyderabad received an unprecedented 24 cm of rainfall in mere 24

hours.103

In the devastating floods in Orissa in 2001, over 50 Lakh104

people were

affected, and more than 5 Lakh had to be moved to safer places.105

The monsoon

wrecked havoc in seven districts of Maharashtra in September 2002, claiming 35 lives

and causing massive damage to crops. In 2002, flooding due to heavy rains in state of

Assam caused bursting of dams and rivers to overflow, inundating more than 5000

villages and destroying hundreds of thousands of houses.106

Incessant monsoon rains

and melting snow in the Himalayas, caused the Indo-Gangetic plains of Northern

100 IPCC 2007, Impacts, Adaptation and Vulnerability, above n 8, 476. 101 Murari Lal, ‘Implications of Climate Change on Interlinking Project’ in M. Monirul Qader Mirza, Ahsan Uddin

Ahmed and Qazi Kholiquzzaman Ahmad (eds), 'Interlinking of Rivers in India: Issues and Concerns' (CRC

Press/Balkema, 2008). 102 US De, RK Dube and GS Prakash Rao, 'Extreme Weather Events Over India in the Last 100 years' (2005) 9(3)

Journal of Geophysical Union 173. 103 Omer Farooq, 'Andhra Pradesh: At Nature’s Mercy', BBC News 25 August 2000. 104 One Lakh is equal to 100,000. 105 Prafulla Das, '50 lakh people affected in Orissa Floods', The Hindu July 20, 2001. 106 De, Dube and Rao, above n 102, 173.

35

Bihar to flood and over 4 Lakh people got stranded in July 2004.107

A record 944 mm

of rainfall in Mumbai on 26 to 27 July 2005 led to loss of over 1000 lives with loss of

more than US$250 million.108

It is hard to prove the exact causes of these climatic events. All that can be said is that

they have occurred more often during recent decades and that heavily populated

regions such as coastal areas, including river basins, are the most exposed to such

events such as cyclones, floods and droughts.

3 Impact on Agriculture

Every 1 °C rise in temperature reduces wheat production by 4-5 Million Tonnes.109

Pathogens and insect populations are strongly dependent upon temperature and

humidity, and changes in these parameters due to climate change may affect their

population dynamics impacting agricultural yields. Other impacts on agricultural and

related sectors include lower yields from dairy cattle and decline in fish breeding,

migration, and harvests. Global reports indicate a loss of 10-40% in crop production

by 2100.110

4 Sea Level Rise

Unnikrishnan and Shankar have estimated that sea levels have risen between 1.06-

1.75 mm per year in north Indian Ocean over the last 40 years (approximately) which

is consistent with 1-2 mm per year global sea level rise estimates of IPCC.111

A mean

Sea Level Rise (SLR) of 15-38 cm is projected along India's coast by the mid 21st

107 Lal, above n 101. 108 IPCC 2007, Impacts, Adaptation and Vulnerability, above n 8, 476. 109 'National Action Plan on Climate Change' (Government of India, 2008) 15. 110 Ibid. 111 A.S. Unnikrishnan and D. Shankar, 'Area Sea Levels Trends Along the North Indian Ocean Coasts Consistent

With Global Estimates?' (2007) 57(301) Global and Planetary Change 15.

36

century and of 46-59 cm by 2100.112

This could inundate low lying areas, drown

coastal marshes and wetlands, erode beaches, exacerbate flooding and increase the

salinity of rivers, bays and aquifers. Coastal mangroves will be affected which will

have an impact on fisheries. In addition, a projected increase in the intensity of

tropical cyclones poses a threat to the heavily populated coastal zones in the

country.113

5 Impact on Human Health

Increased temperatures can increase the risk of malarial outbreaks by creating

conditions favourable to disease carrying vectors.114

If there is an increase of 3.8 °C in

temperature and a 7 per cent increase in relative humidity the transmission windows

i.e., months during which mosquitoes are active, will be open for all 12 months in 9

states in India.115

6 Impact on Water Resources of India

India is bestowed with an abundance of water systems with a large number of rivers,

with twelve major river basins,116

forty six medium river basins117

and fifty five minor

river basins118

besides numerous lakes, ponds and wells. However, distribution of

water resources is highly uneven in space and time. Due to the uneven temporal and

spatial distribution of rainfall, for a large part of the country, failure of monsoons may

lead to severe drought and scarcity conditions whereas abundance of rainfall in some

areas causes floods. The National Water Development Agency (NWDA) assesses that

112 ‘National Action Plan on Climate Change’, above 109, 16. 113 NATCOM 2004. 114 Sumana Bhattacharya et al, 'Climate Change and Malaria in India' (2006) 90(3) Current Science 369. 115 ‘National Action Plan on Climate Change’, above 109, 15. 116 Catchment area 20,000 km2 or more 117 Catchment area between 20,000 and 2,000 km2 118 Less than 2000 km2 catchment area

37

about one third of the country is prone to droughts and one eighth area is prone to

floods.119

According to the Ministry of Water Resources (MoWR), India has a total

precipitation of around 4000 km3 and the availability from surface water and

replenishable groundwater is estimated at 1869 km3.120

However, due to various

constraints of topography, uneven distribution of resources over space and time, only

about 1123 km3 including 690 km

3 from surface water and 433 km

3 from groundwater

resources can be put to beneficial use.

Table 2.1 Water Resources of India

Estimated annual precipitation (including snowfall)

Average annual potential in rivers

Estimated utilisable water

(i) Surface

(ii) Ground

4000 km3

1869 km3

1123 km3

690 km3

433 km3

Source: Preliminary Consolidated Report on Effects of Climate Change on Water Resources , Ministry

of Water Resources, 2008.

Water security is increasingly emerging as an important issue for India. Many Indian

cities are already experiencing water stress for various reasons like agricultural

growth, industrialization and urbanization. India will reach a state of water stress

before 2025 when water availability falls below 1000 m3 per capita.

121 Intense rain

occurring over fewer days, which implies increased frequency of floods during the

monsoon, will also result in loss of the rainwater as direct run off, resulting in reduced

119 National Water Development Agency (NWDA), 'Annual Report 2009-10' (Ministry of Water Resources,

Government of India, . 120 ‘Preliminary Consolidated Report on Effects of Climate Change on Water Resources’, above n 60. 121 IPCC 2007, Impacts, Adaptation and Vulnerability, above n 8, 484.

38

groundwater recharging potential.122

With the rapidly growing population, along with

industrial and urbanization activities, the demand for water is expected to increase

even faster.123

These shortages would be further aggravated by receding of glaciers

and dwindling fresh water resources. Water stress is likely to be a major impact of

climate change, with flows of some of India's major rivers such as the Indus and

Brahmaputra projected to fall by as much as a quarter.124

The Himalayas possess one

of the largest resources of snow and ice and its glaciers form a source of water for the

perennial rivers such as the Indus, the Ganga, and the Brahmaputra. Glacial melt may

impact their long-term lean-season flows, with adverse impacts on the economy in

terms of water availability and hydropower generation.

7 Impacts of Climate Change on Himalayan Glaciers

The Himalayan range comprises about 15,000 glaciers which store about 12,000 km3

of freshwater and create the “Water Tower of Asia”. The Himalayas have the highest

concentration of snow and glaciers outside the Polar Regions and so are called the

Third Pole. The seventy kilometer long Siachen Glacier at the India-Pakistan border is

the second longest glacier in the world outside the polar region. Across China, India,

Nepal, Pakistan, Myanmar, Bhutan and Afghanistan, 1.3 billion people rely on the

waters flowing from the glaciers in the Himalayan region. They are the source of

three of the world's major river systems, the Indus, the Ganga-Brahmaputra, and the

Yangtze.

Being closer to Tropic of Cancer, the Himalayan glaciers receive more heat than the

Arctic and temperate climate mountain glaciers, and hence they are very sensitive to

122 Ibid. 123 ‘State of Environment Report: India 2009', above n 85,102. 124 Ibid, 102.

http://en.wikipedia.org/wiki/Glacier

http://en.wikipedia.org/wiki/River

39

the rising temperature or climate variability both at regional and global levels.125

This

is resulting in the accelerated melting of glaciers and the depletion of the massive

water store of the region. A significant rise of about 1.6°C in air temperature has been

reported in the northwest Himalayan region in the last century due to a rise in both the

maximum and minimum temperatures.126

The annual temperature in the Himalayas is projected to increase from 0.9±0.6ºC to

2.6±0.7ºC in the 2030s.127

Further, the net increase in temperature ranges from 1.7ºC

to 2.2ºC with respect to the 1970s. Northern India is already facing severe water

scarcity and millions of people depend on the tributaries of the glacier-fed Indus and

Ganga rivers for irrigation and drinking water. In 1999, the Indus reached record high

levels because of glacial melt.128

The waters of melting glaciers forms lakes at their

ends which are held together only by frozen mud dams which can break and cause

flash floods of water, rocks and gravel leading to Glacial Lake Outburst Flood

(GLOF) which can destroy villages and fields downstream.

Recently IPCC reports came under criticism as the Panel's landmark Fourth

Assessment Report included an unsubstantiated claim that the Himalayan glaciers

could disappear by 2035. Though this criticism dealt a blow on the credibility of

scientific findings about climate change, it does not challenge the basis of climate

change science, or the evidence of global warming that is visible across the globe.

Data from measurements of the lower tips of the Himalayan glaciers indicate that

these glaciers are retreating and the controversy, ignited by the unrefereed reports

125 WWF, Witnessing Change: Glaciers in the Indian Himalayas (2009) . 126 M.R. Bhutiyani, Vishwas S. Kale and N.J. Pawar, 'Long-Term Trends in Maximum, Minimum and Mean

Annual Air Temperatures Across the Northwestern Himalaya During the Twentieth Century' (2007) 85

Climatic Change 159. 127 Indian Network for Climate Change Assessment, above n 82. 128 ‘State of Environment Report: India 2009', above n 85.

40

quoted by the IPCC, does not in any way contradict this.129

Rather, it highlights the

need for careful study of the rate of glacier retreat.

Mountaineers claim loss of ice on the Everest and that it might become unclimbable

in near future.130

The Khumbu Glacier, a popular climbing route to the summit of Mt

Everest, has retreated over 5 km from where Sir Edmund Hillary and Tenzing Norgay

set out to conquer the world’s highest mountain in 1953.131

An unexpected result was reported in a recent study which used satellite

measurements for measuring ice loss in all of Earth’s land ice, it claimed slowing

down of melting of higher glaciers on the Himalayas.132

However, it confirmed

melting of lower-altitude glaciers. This will, no doubt, have serious impacts on

downstream river basins, such as the Ganga Basin.

In India, the Himalayan snow and ice supports three main river systems. The Indus,

Ganga and Brahmaputra have an average annual stream flow of 206 km2, 488 km

2

and 510 km2 respectively.

133 Nearly 60 per cent of the water resources of India are

located in the Ganga-Brahmaputra-Meghna system.134

The continued receding of the

source glaciers of these rivers seriously affect water availability for millions of

people. Various studies attempted to model changes in the ice cover and discharge of

glacial melt by assuming different climate change scenarios. With a 2ºC increase by

129 Surendra P.Singh, Vishal Singh and Margaret Skutch, 'Rapid Warming in the Himalayas: Ecosystem Responses

and Development' (July 2010) Climate and Development . 130 AFP, 'Everest Holds More Peril As Snows Vanish', The Australian 28 February, 2012; AFP, 'Himalayan

Sherpas Lament Climate Change Devastation', The Times of India 26 February 2012. See also, Sebastian

Smith, 'Photos show Himalayan Glaciers Receding', Sydney Morning Herald 17 July 2010’. 131 An Overview of Glaciers, Glacier Retreat, and Subsequent Impacts in Nepal, India and China, above n 61. 132 Thomas Jacob et al, 'Recent Contributions of Glaciers and Ice Caps to Sea Level Rise' (23 February 2012) 482

Nature 512; See also, Steve Cole and Alan Buis, NASA Mission Takes Stock of Earth’s Melting Land Ice (8

February 2012) NASA <http://www.nasa.gov/home/hqnews/2012/feb/HQ_12-

048_GRACE_Land_Ice_Study.html>; 'Himalayan Melt Slows', Sydney Morning Herald 10 February 2012. 133 Mirza and Ahmad, above n 44. 134 National Water Development Agency, above n 119.

41

2050, 35% of the present glaciers are predicted to disappear and runoff will increase,

peaking between 2030 and 2050.135

Table 2.2 Record of Retreat of Some Glaciers in the Himalayas

Glacier Period Retreat of snout

(metre)

Average retreat

of glacier

(metre/year)

Triloknath Glacier (Himachal

Pradesh)

1969 to 1995 400 15.4

Pindari Glacier (Uttaranchal) 1845 to 1966 2,840 135.2

Milam Glacier (Uttaranchal) 1909 to 1984 990 13.2

Ponting Glacier (Uttaranchal) 1906 to 1957 262 5.1

Chota Shigri Glacier (Himachal

Pradesh)

1986 to 1995 60 6.7

Bara Shigri Glacier (Himachal

Pradesh)

1977 to 1995 650 36.1

Gangotri Glacier (Uttaranchal) 1977 to 1990 364 28.0

Gangotri Glacier (Uttaranchal) 1985 to 2001 368 23.0

Zemu Glacier (Sikkim) 1977 to 1984 194 27.7

Source: IPCC 2007: Climate Change 2007: Impacts, Adaptation and Vulnerability. Contribution of

Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change.

Global warming and retreating glaciers can have five major implications on the water

resources:136

135 Xu Jianchu et al, The Melting Himalayas: Regional Challenges and Local Impacts of Climate Change on

Mountain Ecosystem and Livelihoods (2007) International Centre for Integrated Mountain Development

(ICIMOD). 136 Mirza and Ahmad, above n 44, 15.

42

(1) In the short run, continued retreat of glaciers is expected to supply more melt

water to the glacier dependent rivers. This may enhance the dry season water

availability for a short time;

(2) Increased retreat may lead to enhanced chances of Glacier Lake Outburst Floods

(GLOFs);

(3) Raising of snowline will continue with rising temperature increasing the risk of

flash floods during wet season;

(4) In the long-run, dry season flow in upstream Himalayan rivers could be greatly

reduced, posing serious ecosystem problems;

(5) In the short run, with increase in dry season discharge, sediment supply in the

rivers may increase. This may pose a threat to the existing dams and reservoirs in the

region. More melting will result in more siltation and will have an effect on the life of

dams and reservoirs.

However, as Peare puts it, it would be a mistake to assume a mechanical connection

between the shrinking glaciers and global warming, without considering other

factors.137

Mountain glaciers have been shrinking since the 19th

century and it cannot

be inferred that the shrinking is simply connected to rise in air temperatures as other

factors like changes in cloud cover, the timing of snowfalls and changes in humidity,

all of which could be related to global climate change, may be factors as well.138

137 Fred Pearce, Global Warming: The Flaw in the Thaw (27 August 2005) New Scientist

<http://fichierforum.iservio.ca/glacier1.pdf> 138 Ibid.

43

Though the causes of this recently enhanced retreat of glaciers may not be solely

linked to climate change, there is an evident general trend of faster melting of glaciers

all around the globe. Since glaciers feed many of the important rivers on which

humankind depends, their increased melting will have disastrous implications on

world’s water resources. Even though establishing the causes of glacier retreat remain

an active area of research, its negative impacts on availability of fresh water remains

beyond doubt. It is therefore important to explore options to reduce the vulnerability

of people to such disasters. Prediction of specific timing is not always necessary to

plan precautionary strategies.

IV CONCLUSION

Climate change can probably be considered as the greatest environmental challenge of

our time. There is growing awareness about climate change and its catastrophic

impacts are becoming more and more visible all around the world. However, a wide

range of uncertainties persist as to the exact scope, timing and likelihood of the

possible impacts of climate change and so the policy choices available to address

them. India is highly sensitive to changing climate and is concerned about increased

stress on availability of fresh water resources. The Himalayan glaciers are in

conformity with most of the glaciers of world and exhibit enhanced melting. This will

have a devastating impact on the rivers that originate from these glaciers, such as the

Ganga River, which will affect millions of people that depend on them. The next

chapter discusses climate change impacts on the Ganga Basin and its potential

impacts on the people of India.

44

CHAPTER 3

CLIMATE CHANGE AND THE GANGA BASIN

Climate change will likely have an impact on all the river systems in India but the

significance of the Ganga stands apart. Ganga Basin is the largest river basin in India

and supports nearly 400 million people. The Ganga is spiritually and culturally unique

to the people. The Ganga and Brahmaputra Basin make up 60 per cent of the

country’s total water resources. Recently declared as India’s National River,139

it is a

lifeline for millions of people and is aptly called the “River of India”.

Millions of people visit the Ganga during various religious ceremonies to take holy

dip in it. Worshipped and revered by the people, it is lovingly called the Mother

Ganga. The beauty of Mother Ganga takes more than just words. Originating as a

playful stream from the glaciers, it turns into deep and rushing river until it enters the

plains at Rishikesh. It reduces to a great extent in parts of Uttar Pradesh in dry seasons

and in monsoons, then swells to up to several kilometres depositing fertile soils on its

banks. From lazy to torrential, with varying moods in different seasons, it is truly a

dynamic river. It has unique historical, economic, cultural and spiritual importance for

the country and represents its rich cultural heritage.

The Ganga has silently witnessed India’s transition from ancient agrarian to a modern

industrial society, but in the process has continued to be treated as a dumping bin by

the people. It is already under severe pressure as the amount of waste thrown in it far

exceeds the river’s biological assimilative capacity. With the dangers of climate

change, it faces threats of drying up of its source glaciers and being reduced to a

139 Recently, the Government declared Ganga as the National River of India. India is only one of the two countries

with national rivers. The other is the United States, whose first, Buffalo National River, was given its status to

prevent it from being dammed.

45

seasonal river. Climate change will likely exacerbate the existing problems for the

river and will present new challenges as well. It is important to anticipate such

challenges to take precautionary action for timely addressing them.

This chapter addresses research question two and discusses the religious and

economic significance of the Ganga River for India and also identifies the various

challenges faced by it related to climate change. The chapter begins with a discussion

of the profound ecological, cultural, spiritual, historical and economic significance of

Mother Ganga for India. It then discusses the likely impacts of climate change on the

river. Various actions taken by the judiciary and the government to save the river

from pollution problem are also discussed before concluding the chapter.

I THE GANGA IN HISTORY

Any mention of Indian culture and civilization is incomplete without the mention of

the River Ganga. The rise of the Ganges civilization can be traced down from the

records of ancient Indian literature to the early fifth and sixth centuries B.C. records

of the early Buddhist period. In Jain texts Kampilya, Banaras and Champa

representing the upper, middle and lower Ganga were counted among the ten ancient

capital cities of India. The Buddhist literature gives a detailed account of traffic along

the Ganga in the Jatakas.140

The Mauryas brought about the unification of the Ganga

valley with region from Haridwar to Tamralipti falling under the rule of Ashoka.

According to Megasthenese, the city of Patliputra extended nine miles along the

Ganga surrounded by high wooden ramparts fitted with gates and military placements.

The Indian emperor Akbar called it the "water of immortality". According to Abul

Fazal’s Ain-A-Akbari, the emperor used to drink the Ganga water both at home and

140 A.C.Shukla and Vandana A., 'Ganga: A Water Marvel' (Ashish Publishing House, 1995).

46

during his travels. The British East India Co. used only Ganga water on its ships

during the three-month journey back to England, because it stayed "sweet and fresh".

An interesting account of the popularity of the river is given by Parua (2010).141

According to him, Columbus on his fourth voyage to the New World heard the

natives of Panama speak of the great river, the Ganga which lay 10 days’ journey

ahead from the coast. Megasthenese described the Ganga as the largest river of the

world.142

Ptolemy’s account and the graphic, showing the descent of the river on earth

influenced and attracted geographists.143

Alexander, imagined the river to be the

farthest limit of the earth and while invading India, aspired to reach it.144

Thus, the Ganga at that time was the centre of Indian civilization. The Indo-Gangetic

plain was the political epicentre of great dynasties of ancient and medieval India.

II THE GANGA IN MYTHOLOGY

Even if separated by hundreds of miles, anyone reciting the name of Ganga

repeatedly, would be absolved of all their sins, and would attain ‘Moksha’.

--Snanavidhiprayoga, from Bhartiya Sanskritikosha, Vol II, p. 674. (Ganga)145

The Ganga was running its course long before the first semblances of Indian

civilization and has watched the country and its people throughout its history. The

Ganga has been revered since the Vedic times in the Hindu scriptures and regarded as

religious, social, cultural and linguistic wealth. It has been more than a passive

141 Pranab Kumar Parua, 'The Ganga: Water Use in the Indian Subcontinent' (Springer Science and Business

Media, 2010). 142 Ibid. 143 Ibid. 144 Ibid. 145 Quoted in Pt. Mahadevshastri Joshi (ed), 'Human Impact on Ganga River Ecosystem' (Concept Publishing

Company, 1986).

47

onlooker in India’s history and religion-it has helped shape them.146

The River Ganga

has served as an elixir of life from times immemorial to millions of people. For

centuries, Ganga has been the centre of Indian civilization. According to popular

belief, bathing in Mother Ganga dissolves all sins, drinking her waters cures illness,

and dying on her banks ensures moksha (freedom from the cycle of death and rebirth).

In Sanskrit literature, in the epics and the Puranas the Ganga has been portrayed in her

most magnificent form. She has 108 names and is the only river to follow from all the

three worlds - Swarga (heaven), Prithvi (earth) and, Patala (netherworld), thus she is

called "Tripathagā" (one who travels the three worlds). There are numerous references

to the Ganga in the Vedas.147

The Ganga is mentioned in the Rig-Veda, the earliest

and holiest of the Hindu scriptures. In the nadistuti (Rig-Veda 10.75), the Ganga is

referenced in the listing of rivers from East to West. The Ganga is also referred in the

Rig-Veda at 6.45.31, 3.58.6, and the Gangetic dolphin is referred to at 1.116.18-19. In

the Bhagavath Gita, when describing His glorious manifestations from age to age

Lord Krishna declares, “Among the rivers, I am the Ganga”.

The Ganga is personified as a goddess in the great Hindu epic, the Ramayana, written

in Sanskrit by sage Valmiki between 1400 and 1000 BC, which remains the bedrock

of Hindu civilization. In the Mahabharata (400 BC), the great Hindu epic written and

compiled after the Ramayana, the Ganga is both a goddess and an earthly woman. She

is mentioned with reverence in Buddhist and Jain scriptures too. In the post Vedic era,

the Hindu Puranas mention Viyad Ganga, or heavenly Ganga, which flows from the

toe of Vishnu.

146 M. C. Mehta, 'In the Public Interest: Landmark Judgements and Orders of the Supreme Court of India on

Environment and Human Rights' (Prakriti Publications, 2009) 67. 147 Sacred texts of the Hindus.

48

Numerous mythologies are associated with the descent of Ganga. Legend has it that

she was brought down to the earth for the salvation of the 60,000 sons of King Sagara

who were burnt to ashes by an angry gaze of Sage Kapila. They could be revived and

their souls delivered in heaven if the Ganga flowed over and purified their ashes. King

Sagara’s scions performed pious rites to bring down the Ganga on the Earth but their

two generations failed. Then King Bhagiratha, third generation king of Sagara, finally

succeeded in propitiating Lord Shiva and Goddess Ganga after a long penance.

Ultimately Ganga descended to the Earth. Since the Earth would not have been able to

sustain the torrential fall of Ganga, Lord Shiva is believed to have caught her in his

matted hair in order to lessen the impact of her fall. Ganga is believed to exist as

Mandakini in heaven, Ganga in the Earth and Alakananda in the underworld,

showering her blessings on all the three worlds.

The ritual importance of the Ganga cannot be overemphasized. For hundreds of years,

saints and sages have performed great penance on its banks and the power of their

spiritual energy is believed to have assimilated in the waters of the river and bestowed

it with divine powers. Every day, in cities all along the Ganga’s banks, the holy river

is worshipped with the ritual of Aarti.148

All along the course of Ganga, from its

source at Gaumukh to its mouth at Sagar Island, it is considered holy and millions of

people take bath in it every day to purge away the sins. When a child is born, it is

wished that a drop of Gangajal (Ganga water) shall be placed in his/her mouth. Upon

death, it is wished that a drop of Gangajal be placed in the dying person’s mouth. It is

believed that immersing oneself in the Ganga is key to the attainment of Moksha, and

that life is incomplete without bathing in the holy river at least once. People have

148 Aarti is a Hindu religious ritual of worship in which light from wicks soaked in ghee (purified butter)

or camphor is offered to one or more deities. Aarti also refers to the songs sung in praise of the deity, when

lamps are being offered.

49

immense faith in its powers of healing and regeneration. This is accepted

scientifically too that Gangajal has extraordinary self-purification qualities and can

kill harmful bacteria.149

Sediments of Ganga are said to contain special chemicals that

destroy harmful bacteria.150

This may be the reason that there has never been a report

of any epidemic even during mass bathing festivals along the Ganga.

Hundreds of verses have been composed in her praise in ancient books of India. The

first Prime Minister of India, Late Jawahar Lal Nehru, noted famously in his book,

“The Ganga, especially, is the river of India, beloved of her people, round which are

intertwined her memories, her hopes and fears, her songs of triumph, her victories and

her defeats. She has been a symbol of India's age-long culture and civilization, ever

changing, ever flowing, and yet ever the same Ganga.”151

Ganga houses the most pilgrim centres of India and a number of religious ceremonies

along its banks. One of the biggest religious and spiritual festivals is the “Maha

Kumbh”152

. It is an age old Hindu festival where millions of people, saints, sadhus,

monks, gurus gather to take holy dip in the Mother Ganga receiving her blessings,

cleansing their karma and healing their souls.

149 Julian Crandall Hollick, Mystery Factor Gives Ganges a Clean Reputation (16 December 2007) National

Public Radio <http://www.npr.org/templates/story/story.php?storyId=17134270>; Central Board for the

Prevention and Control of Water Pollution, 'Basin Sub-Basin Inventory of Water Pollution: The Ganga Basin:

Part II' (1984). 150 Jaideep Hardikar, NEERI Explains Why Ganga is Pure (November 30, 2006 )

<http://www.youthejournalist.com/article.php?aid=1115&sid=19> 151 Jawaharlal Nehru, The Discovery of India by Jawaharlal Nehru (Meridian Books 1946). 152 The Ardh (half) Kumbh Mela is celebrated every six years at Haridwar and Prayag (Allahabad), the Purna

(complete) Kumbh takes place every twelve years at four places Prayag, Haridwar, Ujjain and Nasik. The

Maha (great) Kumbh Mela comes after 12 'Purna Kumbh Melas', or 144 years. The recent Maha Kumbh Mela

was celebrated in Haridwar (State of Uttarakhand) in 2010.

50

III THE GANGA BASIN

The Ganga Basin is the largest river basin in India occupying slightly more than one-

fourth (26.3 per cent) of total land area of the country. The river basin is bounded by

the snow peaks of the Himalayas in the north and the peninsular uplands and the

Vindhya range on the south. The Ganga River rises in the Himalayas in the ice-cave

of Gaumukh at the snout of the Gangotri glacier, some 4100 m above mean sea level

in the state of Uttarakhand. It is called the Bhagirathi in this stretch. Thereafter, the

Bhagirathi starts its long journey downwards where it joins another head stream, the

Alaknanda, at Devprayag. It is below this confluence that the united stream is

generally known as the Ganga. Thereafter, gorging a distance of about 220 km in the

Himalayas it enters the plains at Haridwar. The watershed of River Ganga is spread

over ten states of India, covering the entire states of Uttarakhand, Uttar Pradesh (UP),

Bihar, Delhi, and parts of Punjab, Haryana, Himachal Pradesh, Rajasthan, Madhya

Pradesh and West Bengal. The main river stream originates in the northern most part

of Uttarakhand, flows through UP, Bihar and West Bengal before merging in the Bay

of Bengal. The Ganga flows through wide geographical diversity comprising hilly

terrain in North, low lying alluvial plains in the middle and deltaic region in the East.

The Basin has a catchment area of 8,61,404 sq. km in India and supports about 43 per

cent of the population.153

It is called the ‘Food Bowl’ of India and about 47 per cent of

the total irrigated area in the country is located in the Ganga Basin alone. It is spread

over four countries-India, Nepal, Bangladesh and China. Along the 2525 km stretch, it

supports, 29 Class I cities (towns with a population of one million and above), 23

153 'Status Paper on River Ganga: State of Environment and Water Quality' (National River Conservation

Directorate, Ministry of Environment and Forests, Government of India, August 2009).

51

Class II cities (towns with population of 50,000 to one million), 48 towns and

thousands of villages.

The Ganga has a large number of tributaries. Some of these are of Himalayan origin

having considerably large water wealth. The important tributaries within India are the

Kali, the Ramganga, the Yamuna, the Gomti, the Ghaghara, the Gandak and the Kosi,

all of which arise in the Himalayas and are mainly snow fed. The River Yamuna,

although a tributary of Ganga, is a river in itself. Its major tributaries are Chambal,

Sind, Betwa, and Ken. The main plateau tributaries of the Ganga river are Tons, Son,

Damodar, and Kangsabati-Haldi.

By the time the river passes West Bengal, it becomes sluggish and is described as a

‘dying’ river. In Bangladesh, the Ganga is joined by the River Brahmaputra and then

is known as the Padma. The waters of the Padma River joined by the Meghna River at

Chandpur flow into the Bay of Bengal.

The upper stretches in the Himalayan region are comparatively less populated with

major population density being concentrated in the middle and lower reaches. The

Himalayas known for their calm, serene and peaceful atmosphere attracts devotees

from all over the world to offer prayers and penance. Despite its exquisite beauty and

being endowed with vast forest resources, livestock and agricultural products, the

region still faces the peril of urbanisation which is leading to depletion of forest

resources. The industrial development of the region has led to more clearing of forests

and added to the problem. The indiscriminate deforestation led to a popular protest by

the local population in the early 1970s known as “Chipko” movement in which the

villagers hugged the trees to protect them from being felled.

52

Agriculture is by far the most important and widespread occupation in Uttarakhand

and ninety per cent of the rural population participates in this activity. Mixed farming

is followed by the people with animal husbandry and agriculture being the two

components. The economy is primarily agrarian and four fifths of the working

population is directly engaged in agriculture.154

The Himalayas are water towers for human kind. The Uttarakhand mountains are rich

in water resources with dozens of perennial streams and numerous rain fed rivers

along with innumerable rivulets, waterfalls, and ponds. However, the Himalayan

aquatic resources have been gravely mismanaged and the region experiences dry

spells particularly during summer season. Ironically, in the land of plentiful water,

most of the villages do not have access to potable water.

154 SC Bhatt and Gopal K. Bhargava, 'Land and People: of Indian States and Union Territories' (Kalpaz

Publications, 2005).

53

Fig 3.1 The Ganga Basin

Source: National River Conservation Directorate, 'Status Paper on River Ganga: State of Environment

and Water Quality' (Ministry of Environment and Forests, Government of India, August 2009).

54

IV HYDROLOGY OF THE GANGA BASIN

The headwater reaches of the river receive a considerable part of precipitation as

snow and some mountain peaks in the region are permanently snow covered.155

There

is much variation in average annual rainfall which varies from 35 cm at the western

end to nearly 20 cm near the delta. The average annual discharge of the Ganga, the

Brahmaputra and the Meghna rivers is 16,650, 19,820, and 5,100 m3/s respectively.

The flow of the Ganga varies largely with large summer flows during March to June

due to snow and glacier melt. The maximum discharge of the river is attained during

September, close to 60,232 m3/sec, which drops to a minimum discharge of 1743

m3/sec during the peak of dry season.

156

The surface water resource potential of the Ganga and its tributaries in India is

assessed to be 525 billion m3, of which 250 billion m

3 is considered utilizable. Despite

having abundant water resources, the Basin suffers from unequal distribution both

spatially and temporarily. With more than 75 per cent of the annual rainfall occurring

in monsoon months, large areas are subjected to floods on one hand and droughts on

the other.

V CHALLENGES TO THE RIVER GANGA

The multiple challenges faced by the Ganga River are a cause of concern for the

country. Given the great spiritual and economic significance of it, anything affecting

health of the river will affect the faith, life and health of millions of people depending

on it. Climate change can greatly affect the water availability in the river basin and

may exacerbate the negative impacts of other challenges such as unsustainable

155 Sharad K. Jain, Pushpendra K. Agarwal and Viyay P. Singh, 'Hydrology and Water Resources of India'

(Springer, 2007). 156 Mirza and Ahmad, above n 44, 184.

55

development and the pollution with less water available for dilution in the long run.

The following section considers the important challenges to the river.

A Potential Climate Change Impacts on the Ganga Basin

The effects of climate on hydrology in the river basin can have many facets. In the

Himalayas, the precipitation is stored in the form of snow and ice (in glaciers) over a

long period and provides a large water reservoir that regulates annual water

distribution in the rivers that originate from it. The majority of rivers originating in

the Himalayas have their upper catchments in snow-covered areas and flow through

steep mountains. The impacts of any possible climatic variability in the Himalayas

would be felt severely in the downstream countries like India.

The water of the Ganga river is used for a number of purposes: drinking, agriculture,

fishing, hydro-electricity production, religious ceremonies, tourism and recreation.

The changed flows in the river will impact on the ways the river can be used in future.

This will be accompanied by changes in the ecosystem and interdependent social,

economic and cultural systems. The precise consequences of these changes are hard to

predict, but they will be significant.

A study was conducted to investigate the changes in rainfall and temperature regimes

of Ganga Basin in India which indicated a decreasing trend in rainfall magnitude and

number of rainy days and an increasing trend for annual maximum temperature. 157

Though it is difficult to ascertain the actual causes to climate change, the study

demonstrates that the climate of the Ganga Basin is undergoing a gradual change.

157 U.C. Kothyari, V. P. Singh and V. Aravamuthan, 'An Investigation of Changes in Rainfall and Temperature

Regimes of the Ganga Basin in India' (1997) 11 Water Resources Management .

56

The Ganga Basin contains a total of 7,963 glaciers and has a total glaciated area of

9,012 km2 with estimated ice reserves of about 794 km

3.158

Climate change will

impact the glaciers that feed the Ganga and most of them have been reported to be

retreating.159

The observed retreat in the glaciers is varying from 3.0 m/year to 48.8

m/year, however, average annual retreat of the majority of the glaciers is about 0.30

per cent of their total length.160

Though the time frame of disappearance and melting

of these glaciers may not be certain but the fact that they are retreating rapidly in

recent decades cannot be argued.

The Gangotri glacier, considered as the main source of Ganga River, has also been

retreating rapidly since the Little Ice Age that ended in 19th

Century, but the rate of

retreat in the last three decades has been found to be more than three times the rate

during the earlier 200 years.161

Between 1842 and 1935, the glacier was receding at an

average of 7.3 m every year; the average rate of recession between 1985 and 2001 is

about 23 m per year.162

However, the retreat of Gangotri glacier is reported to be

slowing (17.5 m/year till 2004 and 11.95 m/year in 2004-07), without any significant

change in melt water discharge,163

which illustrates complexity of the situation. The

consequences of any change for glaciological hazards and water resources are

complex and so hard to predict. It is likely that there are large variations in glacier

response to a complex pattern of climatic changes within the Himalayas. Nonetheless,

the general trend appears to be of retreat of glaciers.164

158 Samjwal Ratna Bajracharya and Basanta Shrestha, 'The Status of Glaciers in the Hindu Kush-Himalaya Region'

(International Centre for Integrated Mountain Development, 2011). 159 ‘Preliminary Consolidated Report on Effects of Climate Change on Water Resources’, above n 60, 68. 160 Ibid, 68. 161 An Overview of Glaciers, Glacier Retreat, and Subsequent Impacts in Nepal, India and China, above n 61. 162 S.I. Hasnain, 'Himalayan Glaciers Meltdown: Impacts on South Asian Rivers' in H. A. J. van Lanen and S.

Demuth (eds), FRIEND 2002- Regional Hydrology: Bridging the Gap between Research and Practice (IAHS

Publication, 2002) vol 274, 417. 163 K. Kumar et al, 'Estimation of Retreat Rate of Gangotri Glacier Using Rapid Static and Kinematic GPS Survey'

(2008) 94(2) Current Science 164 See, ‘The Status of Glaciers in the Hindu Kush-Himalaya Region’, above n 158.

57

For example, on 6 June 2000, large amounts of sediments were transported from the

glacier due to heavy rains and deposited as a huge bulk of debris in the valley near

Bhujbas (four kilometres downstream of the glacier snout). This debris deposit

blocked the Bhagirathi river to form a short-lived extensive lake. Bursting of this lake

caused flash floods in the entire area and caused damage to the buildings at Bhujbas.

The water level of the river was elevated by about 3 metres. Similar devastating

events were observed at Gangotri town (located 18 km downstream of the snout of

Gangotri glacier) where minor damages occurred to the Gangotri temple and three

lodges. 165

The bursting of such lakes could also spell disaster for the people living

downstream.

A controversial section of the Inter-governmental Panel on Climate Change (IPCC)

report attributes global warming due to increase in anthropogenic emission of

greenhouse gases as the reason for the receding and thinning of Himalayan glaciers.166

The relatively high population density near these glaciers and consequent

deforestation and land-use changes have also adversely affected these glaciers.

However, other studies have been conducted to assess the implications of climate

change on future discharges in Ganga, Brahmaputra and Meghna rivers in Bangladesh

using a sequence of empirical models and climate change scenarios from four general

circulation models.167

According to the study, future changes in peak discharge of the

Ganga River are expected to be higher than those of the Brahmaputra River. Meghna

River will also experience significantly increased peak discharges. Faster changes

165 ‘State of Environment Report: India 2009', above n 85, 78. 166 IPCC 2007, Impacts, Adaptation and Vulnerability, above n 8. 167 M. Monirul Qader Mirza, R.A. Warrick and N.J.Ericksen, 'The Implications of Climate Change on Floods of

the Ganges, Brahmaputra and Meghna Rivers in Bangladesh' (2003) 57 Climate Change 287; See also, M.

Monirul Qader Mirza, 'Global Warming and Changes in the Probability of occurrence of Floods in

Bangladesh and Implications' (2002) 12 Global Environment Change 127.

58

may occur at low temperature increases (2° C) than those at higher temperature

changes. The study predicts that climate change may greatly increase the chances of

severe floods in Bangladesh. It can be inferred that upstream of River Ganga in India

will also experience increased river flows due to climate change, which will

ultimately flow down to Bangladesh with increased flood risks in both the countries

and requiring strengthening of flood management policies and adaptation measures.

1 Probable Scenarios of Climate Change Impacts on the Ganga Basin

Climate is a major determinant of availability of water resources in the Ganga Basin.

The primary source of water in the basin is summer monsoons (June to September)

and snowmelt from the Himalaya Mountains in Nepal and the Western Uttar Pradesh

region of India. During the dry months (December through February), ice- and

snowmelt from the region’s mountains is critical. The climate has been changing in

the Ganga Basin and, although uncertainty remains about the precision of various

climate change predictions, forecasts suggest that changes in climate will further

exacerbate the existing variability.168

In the Ganga Basin, climate change is expected to increase temperatures, resulting in

the retreat of glaciers; increase variability in precipitation, resulting in increased

magnitude and frequency of droughts and floods.169 These changes in the mountain

hydrological regimes due to climatic change will likely alter the water resources in the

Ganga, leading to fresh water scarcity in summer months when melt waters contribute

up to 75 per cent of the river water.170

It is estimated that in the Ganga River, the loss

168 IPCC 2007, Impacts, Adaptation and Vulnerability, above n 8. 169 Heather R. Hosterman et al, 'Water, Climate Change and Adaptation: Focus on the Ganges River Basin'

(Nicholas Institute for Environmental Policy Solutions, August 2009). 170 ‘State of Environment Report: India 2009', above n 85.

59

of glacier melt water would reduce July-September flows by two-thirds, causing water

shortages for millions of people and 37 per cent of India’s irrigated land.171

Overall, an increase in summer precipitation and decrease in winter precipitation is

predicted, whereas an increase in intensity of heavy rainfall events is likely due to

climate change.172

The greatest melting season for snow coincides with the summer

monsoon, and any intensification of the monsoon is likely to contribute to flood

disasters in the catchments of the Eastern Himalayan rivers such as the Ganga.173

Shifts in the timing and intensity of the monsoon, will have major impacts on the

timing and amount of runoff in river basins including the Ganga. These changes will

likely impact on the region’s agriculture and power generation and will cause water

stress for several million people as well as irrigated land.174

Based on the IPCC and other reports, for the purposes of analysing the research

questions in this thesis, two hypothetical scenarios are proposed involving the impacts

of climate change in the Ganga Basin, particularly in the upper stretches. These are

deliberately identified as extreme scenarios to test the adequacy of existing legal and

institutional frameworks for addressing climate change in India:

Scenario A: Initial flooding and other natural disasters requiring disaster planning

and response.175

171 C.K. Jain, 'A Hydro-Chemical Study of a Mountainous Watershed: The Ganga, India' (2001) 36(5) Water

Research 1262 and P.S. Singh et al, 'Snow and Glacier Contribution in the Ganges River at Deoprayag'

(National Institute of Hydrology, Roorkee, India, 1994). 172 IPCC (2007) Climate Change 2007: The Scientific Basis. WG I contribution to IPCC 4th assessment report.

Cambridge: Cambridge University Press. 173 ‘The Status of Glaciers in the Hindu Kush-Himalaya Region’, above n 158, 39. 174 ‘State of Environment Report: India 2009', above n 85. 175 IPCC 2007, Impacts, Adaptation and Vulnerability, above n 8, 483; R.T.Watson, M.C.Zinyowera and

R.H.Moss (eds), The Regional Impacts of Climate Change: An Assessment of Vulnerability (Cambridge

University Press, UK, 1997), 241; Union of Concerned Scientists, Early Warning Signs of Global Warming:

Glaciers Melting (2003) <http://www.ucsusa.org/global_warming/science_and_impacts/impacts/early-

warning-signs-of-global-5.html>; Hosterman et al, above n 169, 7; International Rivers, 'Mountains of

60

Scenario B: The initial flooding may be followed by reduction of runoff and

droughts, after significant glacier melt, creating extreme water shortages impacting on

health of humans and ecosystem.176

In the past, the Ganga Basin has been suffering from recurrent floods and growing

population; dwindling resources, melting glaciers and increased intensity of rainfall

may make the situation more acute. Extensive damming and tunnelling of the river

upstream can also add to catastrophic consequences of climate change.

Apart from having these direct impacts, climate change may also have indirect

impacts such as social instability, conflicts relating to water to meet basic human

needs as well as economic uses, forced migration and conflict between states over use

of stressed natural resources. Equitable access and use of resources and poverty

alleviation strategies will become increasingly difficult to implement as these

scenarios unfold unless adaptation and mitigation measures are urgently, proactively

and appropriately implemented.

The initial basis of trends in scenarios were developed in chapter 2 which reviewed

the glaciers response to changing climates and noted that most of the glaciers are in

retreat mode and that this will, most likely, impact on the rivers that originate from

them in the same manner as given in the scenarios. Though floods have been recurrent

in the Ganga Basin, climate change may induce floods outside of range of past

extremes, which could be due a combination of glacier melt and heavy monsoon

rains. The fast moving glacier-melt water may result in killer flash floods and the

Concrete: Dam Building in the Himalayas' (2008)

<http://www.internationalrivers.org/files/IR_Himalayas_rev.pdf>. 176 Ibid.

61

GLOFs (Glacier Lake Outburst Floods) which result when water flows from these

melting glaciers until it breaks the natural ice dams that hold it in place.177

These can

be extremely devastating and can wash away almost anything in their way. Once the

glaciers are drained of significant amounts of water, perhaps in a few decades, it will

result in extreme water shortage in the area.178

The occurrence of these situations may

give rise to a variety of legal claims from the victims and present a challenge to the

present legal and institutional structure to cope with them.

The reason for choosing these scenarios for the study is to simplify the complex

nature of the climate change impacts as it would be very difficult to have a

comprehensive study of all impacts of climate change in the basin in the time frame of

the thesis. The study focuses on the above two scenarios as probable implications of

climate change and tries to analyse the present legal “tool kit” available to the

Supreme Court of India to address issues arising because of it and also to identify the

possible preventive and adaptive measures the Supreme Court may advise to avert the

serious consequences. It is also relevant that hundreds of dams and tunnels are being

built in the upper stretches of the Ganga which may exacerbate the risks of flash

floods due to climate change in case of their failure and may even hinder adaptive

measures.

Prediction of the exact nature and timing of the impacts of climate change is not

possible. But the thesis argues that based on precautionary principle, which is

accepted as part of Indian law, it is mandatory for the government to take preventive

actions to the potential climate change impacts in the Ganga Basin. Failure of the

177 See, for example, Julien Bouissou, 'How Melting Glaciers and ‘Mountain Tsunamis’ Threaten Himalayan

Kingdom of Bhutan', Worldcrunch 9 November 2011; Saleem Shaikh and Sughra Tunio, 'Pakistan Seeks to

Track Flood Risk From Melting Glaciers', Alertnet 19 September 2011. 178 See, for example, ‘State of Environment Report: India 2009', above n 85.

62

government to do that may infringe upon the constitutional right to life of the people

of India which has been expanded by the Supreme Court to include right to

environment and access to clean water.179

The possibility of increased litigation may

arise due to the encroachment of constitutional rights, of conflicts among people due

to reduced water supply, adverse impact on people’s livelihood, forced migration

from flood and drought prone areas, damage to infrastructure and crops or damage to

life and property due to increased extreme events like floods and droughts.

In that case, the Supreme Court may be forced to play an important role to protect the

people’s rights and to pressure the government and the society to take adaptation

measures to the potential impacts of climate change. This is important for a

developing country like India as equitable access to resources and poverty alleviation

strategies will become increasingly difficult to implement as these scenarios unfold

unless adaptation and mitigation measures are urgently and appropriately

implemented.

B Impact of Climate Change on the Hydro-electric Projects (HEPs) on the Ganga

River

With the high slopes and huge quantities of fast moving waters, the Himalayan Rivers

have always been looked upon as having great potential to generate hydroelectric

power.180

However, recent years have seen a renewed push for building dams in the

Himalayas. Massive plans are underway in the Himalayan countries of Pakistan,

India, Nepal and Bhutan to build several hundred dams in the region, with over

150,000 Megawatts (MW) of additional capacity proposed in the next 20 years in the

four countries.181

Some of these dams – including the 3,000 MW Dibang project in

179 This is discussed in detail in chapter 5. 180 'Mountains of Concrete: Dam Building in the Himalayas' (International Rivers, 2008). 181 Ibid.

63

India, the 1,000 MW Tala project in Bhutan, and the US$12.6 billion Diamer-Bhasha

Dam in Pakistan – are among the world’s largest and most expensive planned dams.

A number of dams are being planned by the State of Uttarakhand (India) on Rivers

Bhagirathi, Alaknanda and the Ganga.182

According to a 2009 government list, 558

dams are under construction or being surveyed in the state.183

If dam-building

momentum becomes a reality in Uttarakhand on the Bhagirathi, Alaknanda and

Ganga, it will eventually seriously threaten the nation’s lifeline. These harmful

consequences have now also been confirmed by the interim report of Comptroller and

Auditor General (CAG) presented to the Governor of Uttarakhand but not presented

to Parliament yet which states that the planned 53 hydro power projects on these

rivers when completed would translate to a dam every 5-7 km of the river stretch. 184

It is widely understood that the Himalayas are the most ecologically sensitive and

fragile areas. The sudden bursting of glacial lakes giving rise to GLOFs should also

raise questions for the safety of planned dams, and ultimately the rivers and peoples

downstream.

1 Debate Surrounding Large HEPs and Interviews Conducted

Construction of large dams have always been a subject of controversy with the

proponent claiming them to be sustainable as hydropower is renewable and non

polluting source of energy,185

whereas, opponents pointing toward the social and

182 Bhagirathi and Alaknanada join at Devprayag to form the Ganga. 183 Kumkum Dasgupta, 'A Dam Big Scandal', The Hindustan Times June 17 2010. 184 See Pradeep Thakur, 'Power Plants Will Dry Up Ganga in Uttarakhand: CAG ', The Times of India April 2,

2010. 185 See R. Rangachari et al, 'Large Dams: India’s Experience: Final Report' (World Commission on Dams (WCD),

November 2000); J.A. Veltrop, 'Water, Dams, and Hydropower in the Coming Decades' (1991) 43(6)

International Water Power and Dam Construction .

64

environmental problems created by them.186

The World Commission on Dams

(WCD) earlier supported dams claiming that they have played a key role worldwide

in development and helped resolve the problem of spatial and temporal insufficiencies

of natural precipitation.187

It further claims that hydro-electric generation provides a

number of economic, operational and social advantages over other modes of energy

generation as it is relatively cheaper at the time of installation and grows economical

with passage of time. Also, dams helped in ensuring supply of water, control floods,

irrigate agricultural lands and provide for navigation. However, while recognising the

benefits delivered by big dams, the WCD now accepts that in many cases heavy price

is to be paid to secure for these benefits, especially in social and environmental

terms.188

Although, these projects ensure a regular supply of water, they still endanger aquatic

ecosystems, fauna and flora, by blocking canals and altering currents in the rivers and

water bodies. The disastrous consequences of large dams are getting recognized and

some countries have started to remove them. For example, in the United States, two

dams on the Elwha, the Glines Canyon Dam and the Elwha River Dam were removed

to provide way for free flow of river and free passage of the salmon.189

The big dams

can cause disastrous social and environmental damage. The Three Gorges dam in

China, the Sardar Sarovar Project and the Tehri dam in India are examples. The

Three Gorges Dam, though a masterpiece of engineering completed at a cost of US

$27 billion, displaced more than twelve Lakh people. Built on Asia’s longest river, the

Yangtze, it stopped the migration of fish and diminished the river’s self cleaning

186 See International Rivers <http://www.internationalrivers.org/en/node/365>, Matu People’s Organisation

<http://www.nadir.org/nadir/initiativ/agp/free/dams/tehri_dam.htm> 187 See R. Rangachari, above n 185. 188 See World Commission on Dams, 'Dams and Development: A New Framework for Decision Making'

(November 2000). 189 William Yardley, 'Removing Barriers to Salmon Migration', The New York Times 29 July 29 2011.

65

capacity. The fluctuating water level in the reservoir destabilizes the slopes of the

valley and triggered frequent landslides. More than 300,000 people may have to

relocate to stabilize the banks of the reservoir. Climate change poses additional risks

to the project with decreasing river flows, changing precipitation and extreme events.

The reservoir was expected to fill in 2009 but failed due to insufficient rains. With

Central China experiencing one of the worst droughts in 50 years, this mega project

faces increasingly serious risks and losses due to climate change.190

Similar concerns were raised for the 2400 MW Tehri Dam, on River Bhagirathi 1.5

km downstream of Tehri town in Uttarakhand in India. It is one of the largest dams in

Asia, with a height of 260 meters (855 feet), the reservoir of the dam, the fifth highest

in the world completely submerged historic Tehri Town and 40 villages while

partially submerging 72 villages, affecting around 100,000 people. They not only lost

their homes but also their social networks and a shared cultural heritage. The project

was approved in 1972 but the dam was severely criticised, initially for poor

rehabilitation, and subsequently for environmental issues such as the increased

incidences of reservoir-induced seismicity, enhancement in slope instability and the

impact of landslide induced flash floods.191

The dam is now complete and power

generation has begun but the issue of rehabilitation of the people uprooted remains

largely unresolved.

Indeed, the rationale behind many of the multi-purpose river valley projects has now

been questioned because of their social and environmental consequences. The

perception about dams has undergone a big change. In the past they were viewed as

190 See Peter Bosshard, 'The Lessons From the Three Gorges Dam for Northeast India', The Arunachal Times 26

May 2011. 191 Naresh Rana et al, 'Socio-economic and Environmental Implications of the Hydroelectric Projects in

Uttarakhand Himalaya, India' (2007) 4(4) Journal of Mountain Science .

66

symbols of national pride but today they are largely viewed as anti-people and anti-

environment. Decision-making processes about them have failed to keep pace with

increased knowledge about climate change and climate variability and adaptation

strategies. It is often argued that the idea of augmentation of water resources through

damming rivers has been borrowed from the west. Traditional Indian methods

promote conserving rain water through excavation of tanks and ponds to store water

where it falls. This obviates the need for building big dams by passing the associated

social and environmental consequence as well as it ensures more community

engagement and ensures optimal utilization of water resources.

According to the South Asia Network on Dams, Rivers and People (SANDRP), there

are 18 dams along the Bhagirathi River, either in operation, under construction or

planned.192

At many places, plans are underway to make the river run through tunnels.

Such tunnels may empty the flows in the same rivers several kilometres downstream,

or into a different river. This will leave parts of river virtually dry or with very less

flow. This tunnelling will reduce the rate of evaporation, further impacting rate of

precipitation and will accelerate the melting of glaciers in the Himalayas. Such

diversion projects can disrupt fisheries, agriculture and livelihoods of people

dependent on the river. Where there are a series of such projects planned, the impacts

will be particularly severe.

In Uttarakhand, on the Bhagirahti River and its tributaries, a series of such projects

are planned by the government of India. If all these projects come up, there will be no

192 'The Disappearing Ganga: Is There Any Hope for This Holy River? ' (South Asia Network on Dams Rivers and

People (SANDRP), 2008).

67

flowing river between Gangotri and Haridwar.193

The stretches of river would

virtually disappear for the people on the banks and others interested in seeing the holy

river. Bharat Jhunjhunwala, an economist and column writer and a resident of

Bhagirathi Valley estimates that of the 270 km of the Alaknanda River, one of the

tributaries of Ganga, 116 km will be affected by tunnels and 179 km will be affected

by either tunnels or reservoirs.194

According to a report by the International Rivers,195

climate change is likely to have

most serious implications for dams in the Himalayas as it may fundamentally alter the

basic assumptions on which dams are planned, especially the water flows. The entire

climate of the region, including rainfall, temperature and geographical phenomena

such as erosion and landslides, may change dramatically and it will also have an

impact on the region’s ecology, agriculture and livelihoods. Increased precipitation

due to climate change will lead to more erosion, mass wasting and bed and bank

cutting of rivers and will add to sedimentation rates. Reservoirs will be particularly

vulnerable as the current storage space will be filled up at a faster rate due to

exacerbated sedimentation.196

Yet, none of the dams built or planned in the Himalayas

have taken this into consideration.197

In South Asia, reservoirs are losing storage space much faster than was expected

during their design. Indian reservoirs, on an average, are losing storage space at a rate

of 1.49 acre-feet/mile2/year.

198 The Kulekhani reservoir, in Nepal, with life

193 Ibid. 194 Report on Kotli Bhel Project by Bharat Jhunjhunwala (unpublished), October 2007. Quoted in ‘Mountains of

Concrete: Dam Building in the Himalayas', above n 180, 25. 195 ‘Mountains of Concrete: Dam Building in the Himalayas', above 180, 32. 196 Mirza and Ahmad, above n 44, 17. 197 ‘Mountains of Concrete: Dam Building in the Himalayas', above 180, 32. 198 Mirza and Ahmad, above n 44, 17.

68

expectancy of 100 years has lost 1 million m3 of its gross storage capacity of 12

million m3 in just 12 years after its impoundment.

199

Most dams are designed based on historical data of river flows, assuming that the

pattern of flows remains the same as in the past. The increased rate of glacial and

snow melt due to climate change will likely lead to higher river flows in the short-

term. It is probable that dams will be subjected to higher flows due to climate change

which raises concerns about dam safety, increased flooding and submergence; and

subsequent lower flows will adversely impact performance of such huge investments.

Increased incidences of extreme events like floods will also pose the question of

security of the dams. Even if a dam is able to survive higher flows, bigger floods are

likely to lead to higher backwaters, increasing the areas affected by submergence.200

Also, the glacier melt-water lakes or the GLOFs formed due to rapid melting of

glaciers can cause floods in the rivers and pose a serious threat to dam safety.

As mentioned earlier, interviews were conducted among representatives of

government, non -governmental organisations, activists and the local people in the

Ganga Basin. The objective was to see the extent of developmental activities

undertaken and their influence on encouraging or hampering the adaptation activities

and their potential in possibly exacerbating climate change impacts.

In an interview, a glaciologist expressed concern about rising temperatures and

melting glaciers in the Himalayas.201

He mentioned that there are two hundred and

thirty glaciers that feed the Ganga, but out of these, about sixty per cent glaciers are

199 Ibid, 17. 200 ‘Mountains of Concrete: Dam Building in the Himalayas', above 180, 33. 201 The details of interviewees cannot be disclosed in accordance with the conditions of Ethics Approval. See

above n 23.

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less than five sq. km. Rapid melting of small glaciers is a bigger concern as they

respond to rising temperatures faster. He expressed concern about building multiple

dams in the basin and argued that, “All these dams which are being constructed

depend on the glaciers water. No study has been done on it. Whatever water we get

during lean period is only from the ice and glaciers. So how much water you are

getting and how much water will you distribute to dams...I don’t think they have

considered that in their study.” He further stressed that when glacier moves, it brings a

lot of sediment with it. He argued that none of the studies have considered how much

sediments these glaciers are bringing every year, every month and whether the dams

have the capacity to bear it.

Though the government stresses the need for such big hydro-power projects for the

country’s development, but the local inhabitants of the areas continue to be adversely

affected. In another interview with the legendary octogenarian environmentalist and

the leader of the Anti-Tehri movement, “Dams are temporary solution to permanent

problem of water. The rivers in the hills have the ability to purify themselves. The

meandering and striking against the hills helps in purifying them. But because of

tunnelling of the rivers, their self purifying qualities will no longer be there. Dams are

a way to destruction. They are the death of the river”. He argued that the Himalayas

should be used as a natural dam and should be covered with forests to facilitate that.

He questioned the government’s pursuance of dams and said that in spite of big

promises by the government, the life of a dam is very short and is going to be further

shortened because of reduced flows in rivers due to climate change. He gave a vivid

account of the hardships of the people who are forced to leave their homes and settle

downhill. He pointed to how the government ruthlessly killed the people protesting

against the dam. Sitting in peaceful protest since 1989 against the Tehri Dam, he

70

wonders about its fate as he can feel that summers are getting prolonged and the water

level in the river has gone down by almost half.

A great religious leader, during the interview, expressed concern that if the

government allows the dams to be constructed, the Ganga will disappear. He asked,

“What will the government do for electricity and irrigation then? They can never

make new Ganga again!”

Most of the villagers and farmers interviewed along the banks of Mandakini River, a

tributary of the Ganga River, complained of cracks in their homes due to explosions

for the construction work for tunnels on the river. The blasting continued day and

night making lives of villagers difficult. The loud noise from the drillers interrupted

with their enjoyment of life and also with studies of their kids. The people complained

that when they protest, the work was stopped but resumed at night. The farmers

mentioned they used to be able to grow sufficient crops for their sustenance and never

needed to buy anything from market but now things have changed since the flows in

rivers have reduced. The people accused government officials of accepting bribes for

giving permissions to cut trees in the area. They accused the project workers of felling

many trees without obtaining permission from the Sarpanch (Head of the village) and

also that when the Sarpanch objected to it; they even conspired to get her removed

from office. The people accused the construction workers of using the poverty of the

villagers for bribing them to stop taking part in the protest marches against the

construction activities on the river. Some people pointed to the dams already

constructed and that they are performing below expectation due to reduced water

levels, and raised question about the viability of planned dams in the basin. People

71

alleged that power cuts were becoming common in the area, though this was not so

frequent before these dams came up.

However, one of the arguments proposed in favour of these dams is that many of

these are run-of-the-river dams and so are socially and environmentally benign. A

run-of-the-river dam means diverting water for generation of electricity and then

letting it back in the river.202

However, it is argued that run-of-the-river projects can

have serious implications by disturbing downstream river flows and that where these

projects divert water into tunnels and leave sections of downstream rivers dry, more

serious impacts are caused downstream.203

One argument presented by a government official during the interview justifying

dams was that as the variability of precipitation is likely to increase, an increase in

storage capacity will be needed. Also with changed river flows, greater storage

capacity is needed in case of increased flows; and more storage to carry over

occasional high flows will be required in case of reduced river flows. However, this

argument ignores the fact that dams will be subjected to increased safety hazards due

to climate change, including the risk of flash floods and the GLOFs. Also, with

decreased river flows with time, they may not be able to deliver the desired benefits

and will be expensive investment along with the series of other problems including

displacement, biodiversity loss and impact on the environment and the people.204

Due to protests from local people and environmentalists, the government was forced

to scrap two projects, 381MW Bhaironghati and 480MW Pala-Maneri hydroelectric

plants on the Bhagirathi. Yet, the government decided to continue construction of the

202 In the words of one of the interviewees who is an activist and freelance columnist. 203 ‘Mountains of Concrete: Dam Building in the Himalayas', above 180, 25. 204 Ibid.

72

600 MW Loharinag Pala dam, citing Rs 600 crore as having already been spent on it

and another Rs 2000 crore sanctioned for the venture. However, after popular protests

from the local people, environmentalist and religious groups and the fast-unto -death

taken by a renowned scientist and environmentalist Prof. G.D. Agarwal, the

government decided to shut down the Loharinag Pala dam.205

The Government also

decided to declare the 135 km stretch between Gomukh and Uttarkashi as an eco-

sensitive zone under the Environmental Protection Act, which would mean that

certain kinds of activities that can have an adverse effect on environment and

biodiversity would not be allowed in this area.206

However, against stopping the work on the Loharinag Pala project a writ petition

(no.15 of 2005) in the High Court of Uttarakhand was filed by a local group Rural

Litigation and Entitlement Kendra (RLEK). Two more writ petitions, WP (PIL) No.

532/2008 of Rural Litigation and Entitlement Kendra (RLEK) and WP (PIL) No.

468/2008 of Indian Council for Enviro-Legal Action (ICELA) pertaining to work on

Pala Maneri and Bhaironghati projects were also filed in the High Court. The Court

decided that the National Ganga River Basin Authority (NGRBA) should decide the

entire issue, i.e., whether to continue or not with the said projects.

The local people continue to protest against government apathy towards the Ganga.

Very recently a 34- year old ascetic Swami Nigmananda, who had been fasting for

205 Dr GD Agarwal has always campaigned actively for rivers. He had sat on a fast-unto-death to ensure that river

Bhagirathi was allowed to flow in its natural form between Gangotri and Uttarkashi. He called off his first

fast on the 18th day on 30 June 2008 after the Uttarakhand government promised in writing to suspend work

on the Bhairon Ghati (380 MW) and Pala-Maneri (480 MW) hydropower projects (HPPs) on the Bhagirathi

river, and the central government also gave a written commitment to ensure perennial environmental flows in

all stretches of Bhagirathi to keep it alive. However Agarwal resumed his fast-unto-death on 14 January 2009

charging the central government with reneging on this commitment. He broke the fast on the 38th day on 20

February 2009 when the central government gave a written commitment to suspend all work on the

Loharinag-Pala hydro power plant with immediate effect. See, Indian Council for Enviro-Legal Action

(ICELA), Ganga Calling (<http://www.icela.org/index.html>; Nitin Sethi, 'Dam on Bhagirathi Can Be Shut

Down', The Times of India 24 June, 2010. 206 Press Trust of India, 'Centre Declares 135-km Gaumukh-Uttarkashi Stretch as Eco-sensitive', The Financial

Express November 3, 2010.

73

almost four months to protest against pollution, illegal mining and stone crushing

along the Ganga near Haridwar, laid down his life for the cause. Many people have

alleged that he was poisoned. Subsequently, the government is planning to put a ban

on sand mining along the Ganga.

As informed by an environmentalist during the interview, the Ganga has great

economic significance for India through the religious ceremonies organised on its

banks. For example, in 2010 Kumbh Mela more than 80 million people converged on

the banks of the Ganga to take a holy dip in it. He asserted, “Assuming each one of

them spent a modest amount of Rs 3000 on his/her trip, multiplied with 80 million, it

gives rise to a mind-boggling figure and shows how much economy the River

provided to the government”. He blamed the government for not taking proper care of

the River Ganga and for its lopsided policies which allowed enormous waste to be

disposed in the river.

As a small number of people were interviewed, the results may not be taken as

representative of whole Ganga Basin. It was conducted for the purposes of assessing

the extent of developmental activities being undertaken in the basin and their impacts

on the people. Such assessment is important as the developments can have significant

influence, in both supporting and hindering, the adoption of adaptation measures, and

may also affect the choice of adaptation measures. It also contributes to an

understanding of vulnerability to climate impacts and adaptation strategies in the

region. It was found that people were aware about changing water availability and the

impacts of intense developmental and construction activities in the basin and were

concerned about the availability of the river water for their local use, community life

and the environment.

74

Climate change looms as a huge threat to the safety of dams and people with the

higher flows, raising concerns of dam safety and subsequent lower flows, dam

performance, along with increased floods, GLOFs and intensified sedimentation in the

Himalayas. Thus, there is a need for a comprehensive review of dam building in the

river basins in the Himalayas and local people who will be most affected due to the

construction of these dams should be given a meaningful say in decision-making

processes. This research and policy debate will be central to the nature and viability of

future adaptation measures for the Ganga Basin.

C Other Challenges to the Ganga River

Apart from climate change and the HEPs presenting serious challenges to the Ganga,

other challenges like the intensive pollution of the river and the proposed inter-linking

of rivers project also stand to enhance the problems. A brief discussion of these

problems is given below.

1 Pollution - The Quality of Ganga Water

No other river in the world evokes such awe and reverence as the Ganga and yet this

devotion since time immemorial could not save the holy river from pollution. It

continues to be treated as a dumping bin for the industrial as well as municipal

sewage. Nearly 89 million litres of sewage is daily disposed into the Ganga from the

12 municipal towns that fall along its route till Haridwar. Pollution in the Ganga has

reached alarming levels and its waters are put in D Category denoting excessive

pollution.207

A World Wildlife Fund (WWF) study has included the Ganga in the 10

most endangered rivers of the World.208

207 Utpal Parashar, 'Ganga Pollution Reaches Alarming Levels', The Hindustan Times (Dehradoon), 5 June 2007

<http://www.hindustantimes.com/Ganga-pollution-reaches-alarming-levels/Article1-227845.aspx> 208 C.M. Wong et al, World’s Top Ten River’s at Risk (2007) WWF International

<http://assets.panda.org/downloads/worldstop10riversatriskfinalmarch13.pdf>.

75

Though the river has great religious significance, ironically, at most times, the process

of worship itself has a polluting influence on the river as the bulk of worship materials

are wrapped in polythene bags and is discharged in the river. Inadequate cremation

procedure leads to a large number of partially burnt or unburnt corpses floating down

the Ganga and causes pollution in the river. Even mass bathing during religious

congregations has a negative impact on the water quality. On some occasions like the

Kumbh Mela,209

millions of people take a bath in a short span of time in specific

stretches of the river. A 1988 study conducted by the Central Pollution Control Board

(CPCB) showed that the feed coli form organisms increased from 12 to 200 times

during the religious occasions. 210

According to one study, the most significant

problem for Ganga is the lean flow during dry season and dumping of nearly 50 per

cent untreated and/or partially treated sewage into river.211

One reason for this lean

flow is the diversion of river water through Upper and Lower Ganga canal, leaving

virtually very little flow in the main river, which makes it impossible for fair weather

dilution even with treated sewage. The study further says that unabated discharge of

treated sewage, even after 100 per cent treatment and 30 mg/l of BOD cannot bring

the water to bathing quality level in the lean season river flow.

Pollution has continued to be a big problem to the river and many steps have been

taken from time to time by the government and the judiciary, which are both

discussed later in this chapter. These steps did help, to some extent, to clean the river

and check the various kinds of pollution in the river. However, the Ganga still

continues to be polluted and more and more untreated and partially treated municipal

and industrial waste finds its way into the holy river. In a warmer climate, reduced

209 Kumbh Mela is a mass Hindu pilgrimage in which Hindus gather at the Ganga River and take holy dip in it. 210 ‘Central Pollution Control Board (CPCB), 'Water Pollution from Mass Bathing in Ganga River During Kumbh

Mela' (1988). 211 'Ganga Water Quality Trend' (Central Pollution Control Board, December 2009)31.

76

flows in future will make the dilution of waste difficult and will further pollute and

deteriorate the quality of the river.

2 The Proposed Interlinking of Rivers (ILR) Project

India is expected to face severe water shortages in the coming years due to growth in

population, agricultural and industrial activities, and contamination of water

resources. In view of this, interlinking of river (ILR), a highly ambitious and massive

yet highly debated project is planned by the government of India at a stupendous cost

of Rs 5,60,000 crore.212

The proposal of the interlinking of rivers in India is not a new idea and was first

proposed during British colonial rule to facilitate trade through navigation canals. It

resurfaced in the early 1970s but in a different manner, scale and purpose. The

present proposal started in 1980 when the Ministry of Water Resources (MoWR)

prepared a National Perspective for Water Development. Two years later, the NWDA

(National Water Development Agency) was established to prepare follow-up studies.

According to NWDA, the project of interlinking of rivers of India emanates from a

desire of the political leadership of the country to bring a permanent solution to the

negative impacts of drought and water shortages in the country.213

The proposal has two main components, namely the Himalayan component with 14

links and the Peninsular component with 16 links. The Himalayan component entails

construction of reservoirs and canals on the main tributaries of the Ganga and the

Brahmaputra system to transfer excess water to the west. The Peninsular Rivers

component is concerned with connecting the peninsular rivers themselves and also

212 B.P Radhakrishna, 'Linking of Major Rivers of India- Bane or Boon?' (10 June 2003) 84(11) Current Science . 213 M. Monirul Qader Mirza, Ahsan Uddin Ahmed and Qazi Kholiquzzaman Ahmad (eds), 'Interlinking of Rivers

in India: Issues and Concerns' (CRC Press/Balkema, 2008) 187.

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linking the Ganga to the peninsular rivers. Water is to be transferred either by gravity

flows (tunnelling through mountains) or by lifting across natural barriers.214

While

many of the links provide water for irrigation within a given basin, some of the links

create inter-basin transfers to augment flow in “water-deficit” regions. The project is

expected to deliver improvements such as increasing living standard of people,

consistency of water supply for domestic use, agriculture and industries, to help in

flood control, improvement in water flow, navigation and food security. To achieve

these results, 334 billion cubic meters of water must be transferred by constructing 30

inter-river links, 36 big dams, 94 tunnels and 10,876 kilometers of canals.215

In 2002, a writ petition with the title, “And Quiet Flows the Maily Yamuna” was filed

in the Supreme Court. The Supreme Court converted this into an independent Public

Interest Litigation (PIL) Writ Petition and mandated that the central government

immediately start working on the project that linked all the major Indian rivers so as

to provide water to drought prone states for irrigation and other uses.216

This led to the

appointment of a Task Force. Based on approvals from the Technical Advisory

Committee and the Planning Commission, as well as on an environmental impact

assessment under the Environment Protection Act 1986, the project was given a

approval to proceed.

The ILR project has now entered into an implementation phase and the first

Memorandum of Understanding was signed between the Chief Ministers of Uttar

Pradesh and Madhya Pradesh in August 2005 to implement Ken-Betwa Link Project

214 Imran Ali, 'Interlinking of Indian Rivers' (25 February 2004) 86(4) Current Science . 215 Mirza, Ahmed and Ahmad, above n 213, 7. 216 WP Civil No. 512/2002.

78

or KBLP of the Peninsular component. Although it’s part of Peninsular component,

these rivers supply water to the Yamuna River, a tributary of the Ganga River.

However, many scientists and others are worried about river diversions, which would

disturb the entire hydrological cycle by stopping the rivers from performing their

normal ecological functions. The project is alleged to change the composition of

sediment load, river morphology and the shape of the delta formed at the river

mouth.217

Mere transfer of a quantum of water from one river to another is not

enough. Construction of large storages will be required for the massive amount of

water transferred, the availability of potential sites of appropriate scale and their likely

impacts on environment and human displacement also need to be considered. The

project will also have international legal implications as it will impact on the

neighbouring countries too. Bangladesh has already objected to it and Nepal and

Bhutan are also expected to be affected by it.

A study conducted using Hydrologic Modelling System to simulate seasonal and

annual flow in the Ganga after construction of the Himalayan component of ILR,

shows that reduction in base flows of the Ganga watershed will have negative impacts

on agricultural areas downstream of the river which are already water stressed. 218

According to the simulation results, populations living along the tributaries Gandak

and Ghaghara will be severely impacted year-round by the proposed diversions. The

reduction in flow at Farakka during dry season will enhance political tensions with

Bangladesh and call into question India’s ability to meet its obligations to Bangladesh

per their water sharing treaty.219

Reduction in water quantity downstream of Farakka

217 Ali, above n 214. 218 Mirza, Ahmed and Ahmad, above n 213. 219 Discussed in chapter 4.

79

would worsen salt intrusion into channel and ground water aquifers which would

impact negatively the drinking water supply and also agricultural production.

Thus, as seen, the River Ganga continues to suffer from many challenges and there is

possibility that climate change may add another dimension to them and make their

consequences more severe due to changes in glacier melt, precipitation patterns and

river flows. The dangers of these challenges to the river and the people cannot be

overlooked. From time to time, the judiciary and the government, have taken various

actions to address the challenges, particularly of the pollution to the river. It is

important to discuss the past challenges and actions taken in order to understand the

nature and extent of problem and the effectiveness of the actions taken. A brief

discussion is given below.

VI ACTIONS TAKEN SO FAR TO PROTECT THE RIVER GANGA

1 Public Interest Litigation (PIL) in the Supreme Court

To clean the pollution and to restore the river to its original glory, a case was filed in

the Supreme Court of India in 1985 as a public interest litigation (PIL) by a public

spirited person by the name of M.C. Mehta. The Supreme Court has been overseeing

the Ganga Case for more than two decades and has passed various landmark orders

and judgments taking innovative actions and an eco-centric approach in an effort to

clean up the Ganga River. What began as a case against just two industries, soon

swelled to about 200,000 industries and 300 cities and towns all along the Ganga.220

Many tanneries, distilleries and other hazardous industries were closed down or were

asked to establish treatment plants. Many Municipal Corporations were ordered to set

up sewage treatment plants.

220 Mehta, above 146, 91.

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The centre-piece of the litigation was the right to a healthy environment provided to

citizens of India by Article 21 of the Constitution. The pollution in the river interferes

with their right to a healthy environment and right to life. The litigation focused the

Supreme Court’s attention on government’s statutory duty to protect the Ganga. The

Water (Prevention and Control of Pollution) Act 1974 gave the state governments a

clear mandate to act and empowered them to form the necessary administrative bodies

to enforce the Act. However, failure of the government to perform its duty and the

deteriorating condition of the river was called into question in the Supreme Court.

In August 1985, the Supreme Court directed that a list of all industries discharging

their effluents in the Ganga and all the Municipalities and local bodies discharging

their sewerage into Ganga be provided. However, due to the sheer number of

industries along the Ganga Basin, the Court tactfully decided to take on the industries

which were most polluting and most hazardous first. The Supreme Court dealt with

the Kanpur stretch of the Ganga to begin with as it was the most acutely polluted due

to cluster of around 160 leather tanneries and over 275 million litres of sewage (mld)

per day.221

The tanneries in Kanpur used chrome tanning process that used 175

different chemicals and produced voluminous waste water with high suspended and

dissolved solids and high chemical oxygen demand (COD). The 60 tanneries clustered

at Jajmau (Kanpur) produced about 12000 hides per day and discharged over 5

million litres of waste water.222

The waste water percolated into ground and caused

ground water pollution as well. Most of the waste was discharged into the Ganga

without any treatment.

221 M.C. Mehta v Union of India and Ors. (1988) 2 SCR 543. 222 M.C. Mehta v Union of India and Ors., (1988) 1 SCR 294.

81

In an important order, the Supreme Court closed down 29 tanneries that failed to even

respond to the notice and also ordered other tanneries to set up primary treatment

plants. The Court noted,

“Just like an industry which cannot pay minimum wages to its workers cannot be

allowed to exist, a tannery which cannot set up a primary treatment plant cannot be

permitted to continue to be in existence for the adverse effects on the public at large

which is likely to ensue by the discharging of the trade effluents from the tannery to

the river Ganga would be immense and it will outweigh any inconvenience that may

be caused to the management and the labour employed by it on account of its

closure.”223

The Supreme Court also persuaded the Union of India and Government of Uttar

Pradesh to develop plans for a Common Effluent Treatment Plant (CETP), a

secondary treatment facility shared among many industries.

Another source of pollution was from the distilleries and the Supreme Court ordered

them to set up Effluent Treatment Plants (ETPs). The Court set up a committee to

review the progress of implementation in the matter. This form of remedy is

innovative and unusual in most common law systems and it reflects the seriousness of

Ganga pollution loads and the failure of other regulatory institutions in India.

The Court also addressed to pollution caused by the Calcutta (now Kolkata) tanneries

in state of West Bengal, with a cluster of 550 tanneries that were discharging large

amounts of highly toxic and untreated waste into the river. The Court issued orders to

them to install ETPs and CETP. But the Court faced problem in adopting the similar

223 M.C. Mehta v Union of India and Ors., (1988) 1 SCR 298.

82

approach as adopted to Kanpur tanneries as due to the density of development in the

area, there was no space to develop the common treatment plant. Based on a

committee recommendation, the Court ordered the tanneries to move away to a

common location away from Ganga so that a CETP could be installed to contain

pollution. The vacant land left after moving away of the industries was to be

converted into green space.

The Court also took up the litigation against thousands of general industries that were

discharging their effluents without treatment in the Ganga. A conservative estimate

puts the number of polluting industries at over 200,000.224

The Court adopted a

systematic approach, with a notice to industries of their compliance status and an

opportunity to appear in the Court. The industries making progress in setting up

effluent treatment plants would be given a timeline to comply with the orders and

threat to close the ones which fail to meet deadline. If an industry misses a series of

deadline, the Court would pass a closure order. On 17 September 1993, the Court

ordered 190 industries to shut down after they repeatedly ignored notices. The

Supreme Court adopted the Polluter Pays Principle, and established pollution fines on

industries that failed to contain their pollution as a penalty for continuing to pollute

after missing the deadline to install pollution control equipment.225

Following the filing of the petition, the government of India initiated the Ganga

Action Plan (GAP) in 1985. The plan was formally launched on 14 June 1986. The

main thrust was to intercept and divert the wastes from urban settlements away from

the river. The broad aim of the GAP was to reduce pollution and to clean the river and

224 Mehta, above n 146, 102. 225 M. C. Mehta v Union of India, 1997 (2 )SCC 411.

83

to restore water quality at least to Class B (i.e. bathing quality: 3 mg/l BOD and 5

mg/l dissolved oxygen).

2 The Ganga Action Plan (GAP)

A comprehensive scientific survey was carried out in 1979 by the Central Board for

Prevention and Control of Pollution, now the Central Pollution Control Board

(CPCB) in order to classify river waters according to their designated best uses, which

served as the basis for formulating the Ganga Action Plan. It detailed land-use

patterns, domestic and industrial pollution loads, fertiliser and pesticide use,

hydrological aspects and river classifications. This inventory of pollution was used by

the Department of Environment in 1984 when formulating a policy document. An

apex body, namely the Central Ganga Authority, (CGA) was set up in February 1985

with the Prime Minister (PM) as the Chairman to finalize the policy framework and to

coordinate and oversee the implementation of the Action Plan by late PM Mr Rajiv

Gandhi. The Ganga Project Directorate (GPD) was established in June 1985 as a

national body operating within the Ministry of Environment and Forest and was

intended to serve as the secretariat to the CGA and also as the Apex Nodal Agency for

implementation. The government renamed the GPD as the NRCD (National River

Conservation Directorate) in June 1994.

The objective, at the time of launching the Ganga Action Plan, was to improve the

water quality of Ganga to acceptable standards by preventing the pollution load from

reaching the river. Later, in 1987, on the recommendations of the Monitoring

Committee of GAP, the objective of the Plan was modified to restoring the river water

quality to the Designated Best Use class of Ganga, which is “Bathing Class” (Class

B).

84

The Plan of Action developed to achieve these objectives included those actions that

addressed the major, direct causes of pollution in the Ganga identified as “core sector”

schemes, and those that address indirect sources or sources deemed to be direct but of

a lower impact called the “non-core sector”. The core sector schemes included the

interception and diversion of sewage reaching the river and installing treatment

facilities to treat the intercepted sewage, while non-core sector schemes consisted of

providing Low Cost Sanitation (LCS) facilities at community and individual levels,

installation of crematoria, River Front Development (RDF) including bathing ghats,

afforestation and public awareness.226

The GAP-I envisaged to intercept, divert and treat 882 mld (million litres per day) out

of 1340 mld of waste water generated in 25 class-I towns (with population more than

1 lakh) in 3 states of Uttar Pradesh, Bihar and West Bengal. The NRCD had

scheduled the GAP-I for completion by March 1990 but extended it progressively up

to 31 March 2000. GAP-I was extended to GAP-II which was approved in phases

from 1993 to 1996 covering major tributaries of Ganga, viz, Yamuna, Gomti, and

Damodar. This Plan covers pollution abatement works in 25 class-I towns left out in

Phase-I and other polluting towns along the river. GAP-II was merged with NRCP

(National River Conservation Plan) which included other rivers too. Approved outlays

for the GAP-I and the GAP-II were Rs 462.04 crore and Rs 1276.25 crore

respectively. The central government was to bear the entire expenditure on schemes

under the GAP-I, and to share it equally with the states in the GAP-II. The

government of India decided in November 1998 to bear the entire expenditure on

schemes from April 1997, as the states found it difficult to provide their matching

share.

226 'Status Paper on River Ganga: State of Environment and Water Quality', above n 153.

85

Though the Action Plan was initiated with a sincere intention to bring the water

quality of river Ganga to bathing levels, the success of the plan is under sharp

criticism.227

Even after a total expenditure of Rs 901.71 crore over a period of 15

years, it has not been able to achieve its objectives.228

There exists a wide chasm

between the promise of Ganga Action Plan and the reality of millions of litres of all

kinds of pollution meeting the river every day.

Of the total domestic sewage of 5044 mld, in 110 towns selected for pollution

abatement along the banks of river Ganga and its tributaries, the GAP addressed itself

to process only 2794 mld.229

The reported achievement of the participating States was

1095.69 mld, i.e. only 39 per cent of truncated target. The assets created in the

Scheme suffered impairment and closure because of technical design flaws

and mismatch of the schemes and their components, problems in land acquisition,

contract mismanagement, lack of adequate maintenance, and in general because of

lackadaisical attitude of the States and their implementing agencies.

No government agency is willing to take the responsibility. The central government’s

contention is that they only provide funds and the operation and maintenance of GAP

schemes are the responsibility of the states. The state governments lack the interest

and commitment to implement the GAP. The government contends that without GAP,

the situation would have been worse.230

This may be true but there is no denying the

fact that the Ganga Action Plan did not succeed in achieving its objectives

completely.

227 See, for e.g., Rakesh Jaiswal, Ganga Action Plan-A critical Analysis (28 May 2007)

<http://gangapedia.iitk.ac.in/sites/default/files/Critical%20analysis%20of%20GAP.pdf>; Julian and Martine

Crandall Hollick, Ganga Action Plan on its Last Legs in Kanpur (15 November 2004)

<http://www.ecofriends.org/reports/040JulianMartine.htm>. 228 Ganga Action Plan, Report of the Comptroller and Auditor General (CAG) on Union Government, March 2000. 229 Ibid. 230 'Status Paper on River Ganga: State of Environment and Water Quality', above n 153.

86

The government set up the National Ganga River Basin Authority (NGRBA) under

the chairmanship of the Prime Minister to replace the ad hoc efforts and take holistic

measures for the Ganga. It aims to stop all untreated sewage flowing into Ganga by

2020. Between 1985 and 2009, the central government spent Rs 916 crore (Rs 9.16

billion) to clean up the river, but the Ganga is still dirty.231

Despite the failure of the

plan, the central government agreed to spend further Rs 15000 crore over next decade

to ensure no untreated sewage or effluent flows into the Ganga.232

The government

has also sought assistance from the World Bank, which agreed to lend £600m ($1bn)

to clean up the Ganga. The funding is part of the Indian government's multi-billion

dollar initiative to end the discharge of untreated waste into the Ganga by 2020.

3 Mission Clean Ganga

The ‘Mission Clean Ganga’ Initiative was launched with the first meeting of the

National Ganga River Basin Authority (NGRBA) held on 5 October. It was decided

that under ‘Mission Clean Ganga’, no untreated municipal sewage and industrial

effluents will flow into the River Ganga by year 2020. The allocation for the NGRBA

was doubled to Rs 500 crore for the financial year 2010-11.

New projects worth Rs 1394.11 crore were cleared, including projects worth Uttar

Pradesh (Rs 800 crore), Bihar (Rs 440 crore), West Bengal (Rs 105 crore) and

Uttarakhand (Rs 45 crore). These include projects for development of sewer

networks, sewage treatment plants and sewage pumping stations, electric crematoria,

community toilets, development of river fronts, resuscitation of canals, and public

campaigns.

231 Chetan Chauhan, '24 yrs, Rs 916 cr Later Ganga has Only Got Filthier', The Hindustan Times (New Delhi),

2009. 232 Bhadra Singh, 'Govt Admits Ganga Plan Flawed, Yet Gives Rs 15,000 Crore', The Hindustan Times (New

Delhi), March 5, 2010.

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These measures signify the importance and urgency that the Prime Minister is placing

on the River Ganga, which has such an important place in the country’s culture, and

which is so central to the livelihoods of millions of its people.

VII CONCLUSION

The River Ganga has great cultural and economic significance for India but in the

event of the scenarios occurring due to climate change, it can be seriously affected

and could result in water shortages at an unprecedented scale in the Ganga Basin and

could have adverse impact on the livelihoods of people. This will violate the

constitutional right to life and healthy environment available to the people of India.

There is an urgent need to take action proactively. The government has shied away

from including climate change factors in studies related to dams and pollution and the

focus is on actions that promote present developmental models virtually

independently from addressing potential changes in the climate. Considering the

accelerated receding of glaciers, there is a probability that government actions will

prove insufficient in reducing vulnerability and increasing preparedness to future

climate change. The judiciary will need to consider these matters if actions are

brought before the Court. The need to plan for precautions and preparations to avert,

or at least reduce, the negative impacts of climate change cannot be overemphasized.

The Supreme Court will need to expand the role and scope of legal and institutional

approaches that will be necessary to address the issues arising from changed climatic

conditions.

Before discussing the Indian legal system and the position of the Supreme Court in

the constitutional framework in India, the mitigation actions taken by the international

community to cope with the challenge of global climate change and its adequacy with

88

respect to river basins with a focus on the Ganga Basin are discussed in the next

chapter. The chapter also reviews various climate litigation around the world and the

approach adopted by courts in addressing them.

89

CHAPTER 4

INTERNATIONAL LEGAL RESPONSES TO CLIMATE CHANGE

Since climate change is a global problem, any one nation will not be able to take

effective action for reducing greenhouse gas (GHG) emissions and so the significance

of global action in addressing climate change and limiting GHG emissions is of

utmost important.

The world community has recognized this global problem and has taken some steps

towards addressing it. While mitigation i.e. reducing emissions of greenhouse gases,

is still considered to be the main pillar of climate change policy worldwide, the

significance of adaptation i.e. adjustment to changed climatic conditions, to the

inevitable consequences of climate change is becoming widely recognized. However,

international law has not been very successful in curbing climate change, as it is

dominated by sovereign interest of the nations, and the traditional hurdle of

responsibility for historical emissions by the developed countries mars most of the

climate negotiations. The failure of international community to fulfil even modest

commitments to reduce emissions under the Kyoto Protocol strengthens the

significance of adaptation measures, since scientists claim that the world is already

committed to some level of temperature increase due to past emissions.

This is particularly true as the impact of climate change is already visible and most of

the mitigating measures currently practiced or being planned focus on limiting

temperature increase to 2°C, implying that the temperature will most likely rise to that

level in spite of all the efforts undertaken for global mitigation. For this reason, most

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states have developed individual adaptation measures to identify and protect the most

vulnerable infrastructure and the people.

This chapter addresses research question three, four and five by reviewing the

international policy and legal frameworks and strategies in place to mitigate and adapt

to climate change in context of major river systems with a focus on the Ganga River;

and by considering the role law and courts could play in addressing climate change.

The chapter is divided into four parts. The first part reviews the adequacy of the

international climate change regime in mitigating and adapting to the climate change

impacts, in the context of major river systems with a focus on River Ganga. Part two

discusses the significance of adaptation and some examples of adaptation strategies

practiced in river basins around the world. The third part considers the role of national

laws and courts in addressing climate change, exemplified by climate change

litigation in various parts of the world, providing insight into the complex issues

related to climate change and the role of judiciary in current domestic

implementation. Part four summarises and concludes the chapter.

I INTERNATIONAL ENVIRONMENTAL LAW

A Background

International environmental law is still a relatively new field. For example,

environment protection was not included in the United Nations Charter of 1945

among the purposes and principles that it aims to promote. International

environmental law began to evolve in a significant way only in the 1960s and 1970s

and it was only in the 1970s that a United Nations body specifically devoted to

environmental matters, the United Nations Environment Programme (UNEP), was

established.

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Initially, international environmental law focused on visible, immediate

environmental issues mostly local or regional in character, for example, the hunting of

migratory birds, shared use of river basins, or the fumes emitted by Trail Smelter in

Canada, which drifted south across the border, causing damage to crops in the United

States.233

Subsequently, international environmental law has evolved to include many

complex and global environmental issues including the hole in the ozone layer,

mercury pollution, fisheries losses and the recent effects of climate change. The 1972

Stockholm Conference convened by the United Nations, was the first in a series of

huge global conferences including the 1992 Rio Conference on Environment and

Development and the 2002 Johannesburg World Summit on Sustainable

Development.

The UN General Assembly (UNGA) organised the United Nations Conference on the

Human Environment in Stockholm in 1972 which was attended by 113 nations. This

conference resulted in three influential contributions to international environmental

law and policy: the Declaration on the Human Environment which proclaimed 26

principles for international cooperation; the Action Plan for the Human Environment;

and the UNEP.

The Stockholm Declaration on the Human Environment (Stockholm Declaration)

placed the primary responsibility for environmental protection on national and local

governments, affirmed State’s sovereignty over their own natural resources, and

adopted the concept of Ecologically Sustainable Development (ESD) which has

become part of a global phenomenon. Principle 13 of the Declaration touched on ESD

233 Daniel Bodansky, Jutta Brunnee and Ellen Hey (eds), 'The Oxford Handbook of International Environmental

Law', International Environmental Law (Oxford University Press, 2007); Daniel Bodansky, Jutta Brunnee and

Ellen Hey (eds), 'The Oxford Handbook of International Environmental Law', International Environmental

Law (Oxford University Press, 2007) 3.

92

as follows:

“In order to achieve a more rational management of resources and thus to improve the

environment, States should adopt an integrated and coordinated approach to their

development planning so as to ensure that development is compatible with the need to

protect and improve the environment for the benefit of their population.”

The Action Plan identified issues requiring international attention and urged a number

of actions that the international community subsequently took, like the ten-year

moratorium on commercial whaling.

The UNEP is a subsidiary of the UN General Assembly that catalyzes cooperation

within the UN system to address environmental issues. Many global and regional

environmental treaties have been negotiated under the guidance of UNEP, including

the Basel Convention on the Transboundary Movement of Hazardous Wastes and the

Vienna Convention for the Protection of the Ozone Layer.

In 1987 the World Commission on Environment and Development, established by the

United Nations, published an influential report, Our Common Future (often referred

to as the Brundtland Report), which called for the promotion of sustainable

development defined as “development that meets the needs of the present without

compromising the ability of future generations to meet their own needs”.234

The report

recognised that the world’s current pattern of economic growth was not ecologically

sustainable and contained proposals for long term environmental strategies for

achieving ESD. The report emphasised that the environment and development are

intertwined and must not be regarded as separate concerns.

234 UNGA A/42/427, 4 August 1987.

93

The report highlighted the urgent need of sustainable development and suggested a

meeting of governments to assess how best to achieve sustainable development. This

led to the “Earth Summit”, the United Nations Conference on the Environment and

Development, which was held in Rio de Janeiro in June 1992. The conference

produced many important documents including: the Rio Declaration on Environment

and Development, which was a statement of 27 general principles; the United Nations

Framework Convention on Climate Change (UNFCCC); the Convention on

Biological Diversity; Agenda 21—an 800-page guidebook for sustainable

development; and a Statement of Principles for the Sustainable Management of

Forests. Some of the Rio Declaration principles have been subsequently accepted in

the national jurisprudence by the Indian Supreme Court,235

namely:

“Principle 15. In order to protect the environment, the precautionary approach shall be

widely applied by States according to their capabilities. Where there are threats of

serious or irreversible damage, lack of full scientific certainty shall not be used as a

reason for postponing cost-effective measures to prevent environmental degradation.

Principle 16. It stresses on internalization of costs and is known as the polluter pays

principle which takes into account the approach that the polluter should, in principle,

bear the cost of pollution including the cost of preventing potential harm rather than

imposing it upon society at large.”

The role of the law in relation to sustainable development was stated in Principle 11

of the Rio Declaration:

“States shall enact effective environmental legislation. Environmental standards,

management objectives and priorities should reflect the environmental and

development context to which they apply. Standards applied by some countries may

235 This is discussed in chapter 5.

94

be inappropriate and of unwarranted economic and social cost to other countries, in

particular developing countries.”

Chapter 8 of Agenda 21 provided that laws and regulations suited to the conditions of

each country were among the most important instruments for transforming

environment and development policies into action. Chapter 28 acknowledged the

importance of local authorities in furthering ESD. Principle 10 of the Rio

Declaration proclaimed that environmental issues were best handled with informed

public participation.

To monitor the implementation of the Rio Declaration and Agenda 21, the States at

the Rio Summit also created a Commission on Sustainable Development (CSD).

The UNGA adopted the Millennium Declaration in 2000, which emphasised on water

security, water quality and poverty alleviation; and identified fundamental values

essential to international relations in the twenty first century including ‘Respect for

nature’.

The World Summit on Sustainable Development took place in Johannesburg, South

Africa in 2002, and adopted the Johannesburg Declaration on Sustainable

Development and the Johannesburg Plan of Implementation. Social development and

poverty alleviation came to be highlighted as one of the important components of

ESD, joining economic development and environmental protection.

Climate change has by far proved to be the gravest challenge faced by the

international world and has grabbed the attention of scientists, policy makers and

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public alike. Various levels of negotiations have been held by the international

community to address climate change, which are discussed in the following section.

B International Legal Responses to Climate Change

Climate change suffers from certain constraints in development of global legal

framework for action. The consensus- based international legal process poses

difficulties as all countries do not share equal interest in reducing emissions. Also, the

historical aspect of the problem impedes the development of effective control

mechanisms, as past emissions raise significant issues of environmental justice.

Furthermore, nearly every human activity, directly or indirectly, can be associated to

GHG emissions, including transportation, industrial activity, and use of electric

power. Thus, lawmaking in this field involves essential interests such as economic

development and national security. Although scientists largely agree on the causes

and general effects of climate change, the localized effects of climate change are hard

to predict, as are the costs and benefits of reducing GHG emissions. The pervasive

nature and scale of problems posed by climate change presents challenges to the

international lawmaking institutions and processes.

Between 1979 and 1990 a number of international conferences began to address

climate change. As international concern increased, the United Nations Environment

Programme (UNEP) and World Meteorological Organisation (WMO) established the

Intergovernmental Panel on Climate Change (IPCC) in 1988 to address the science

and the environmental, economic and social impacts of climate change.

The IPCC has produced four climate change Assessment Reports: in 1990, 1995,

2001 and 2007. The IPCC’s First Assessment Report concluded that human activities

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are substantially increasing the concentrations of greenhouse gases and enhancing the

greenhouse effect. The findings of the first IPCC Assessment Report played a

decisive role developing the United Nations Framework Convention on Climate

Change (UNFCCC). The IPCC Second Assessment Report (1995) addressed the

ultimate objective of that Convention, and stressed the need to reduce atmospheric

concentrations of greenhouse gases for the purpose of preventing dangerous

anthropogenic interference with the earth’s climate system. The UNFCCC signatories

met in Kyoto, Japan, and adopted a protocol that assigned mandatory targets for

industrialized nations to reduce greenhouse gas emissions, which is discussed later in

this chapter. The IPCC Third Assessment Report placed climate change in the context

of sustainable development and provided policy advice to governments. The latest,

IPCC Fourth Assessment Report, was launched in 2007 in four volumes entitled:

(i) Physical Science Basis Report; (ii) Impacts, Adaptation and Vulnerability Report;

(iii) Mitigation of Climate Change Report and (iv) Synthesis Report. It synthesizes

current scientific understanding of global warming and projects future climate change

using the most comprehensive set of well-established global climate models.

1 The United Nations Framework Convention on Climate Change (UNFCCC)

To date, the primary international legal response to climate change is the United

Nations Framework Convention on Climate Change (UNFCCC) 1992, which came

into force in 1994. The ultimate objective of the convention, as stated in Article 2 is

“stabilization of greenhouse gas concentrations in the atmosphere at a level that would

prevent dangerous anthropogenic interference in the climate system”.236

As a first step

toward meeting the ultimate objective, the UNFCCC included Article 4 (2), a non-

binding commitment of 36 industrialized countries specified in Annex I to the

236 United Nations Framework Convention on Climate Change, 31 ILM 849 (1992).

97

convention to reduce their emissions of greenhouse gases to 1990 levels by the year

2000.

Article 3 of the Convention sets forth a series of guiding principles that attempt to

balance the aims of environmental protection, economic development and sharing of

burden between developed and developing country parties. One of the principles

adopted is the “Precautionary Principle”:

“The Parties should take precautionary measures to anticipate, prevent or minimize

the causes of climate change and mitigate its adverse effects. Where there are threats

of serious or irreversible damage, lack of full scientific certainty should not be used as

a reason for postponing such measures...”237

In accordance with the legal principle of ‘common but differentiated responsibility’

(CDR Principle), the Convention stresses the developed countries to take the lead in

combating climate change and its adverse effects.238

However, the participation of

developing countries is conditional. The participation and implementation of the

Convention by the developing countries would depend on the effective

implementation of the commitments of financial resources and technology transfer by

the developed countries.239

Unfortunately, like most other international negotiations, the Convention was also

influenced by the confrontation between the developed and relatively prosperous

(collectively called the North) and the developing and relatively poor countries

(collectively called South). The North has been blamed for most of the emission of

237 Ibid. Article 3.3. 238 Ibid. Article 3.1 239 Ibid. Article 4.7

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the green house gases and gained most economic advantage. Per capita emissions

remain the highest for them, about 12 metric tons of CO2 per person per year,

compared with about 3 metric tons in developing regions and 0.8 metric ton in Sub-

Saharan Africa.240

However, it is important to mention that the emissions per unit of

economic output fell by more than 20 percent in the developed regions, while they

increased by 35 percent in South-Eastern Asia and by 25 percent in Northern

Africa.241

Unfortunately, climate change does not impact areas in proportion to their

contribution towards emissions. It will have an adverse impact on almost all areas, but

the Arctic, small islands, mega deltas in Asia and Africa, and the African region

overall seem to be especially vulnerable because of their high exposure to the effects

of climate change and their populations’ limited capacity to adapt.242

Resistance by prominent nations, including United States and the OPEC States, to

mandatory reduction of GHGs led to the reduction “targets” being guidelines, rather

than a legal commitment.243

Thus, the UNFCCC merely calls on the Parties in Annex

I to “aim” to return to their emissions of 1990 levels.

The UNFCCC also provides that all Parties will develop and submit national

inventories of emissions by sources and removals by sinks,244

implement national

plans that include measures to mitigate climate change,245

promote and cooperate in

technology transfer246

and encourage and assist in scientific research on climate

change. The Convention has also established an Annual Conference of Parties (COP)

240 United Nations, 'The Millennium Development Goals Report 2008' (November 2008). 241 Ibid. 242 Ibid. 243 Ranee Khoosie Lal Panjabi, 'Can International Law Improve the Climate? An analysis of the United Nations

Framework Convention on Climate Change Sighed at the Rio Summit in 1992' (1993) 18 North Carolina

Journal of International Law and Commercial Regulation . 244 UNFCCC, Art 4.1 (a) 245 UNFCCC, Art 4.1 (b) 246 UNFCCC, Art 4.1 (c)

99

to oversee its implementation in the member countries. The first addition to the treaty,

the Kyoto Protocol, was adopted in 1997.

2 The Kyoto Protocol

The realization that more substantive measures were needed to address climate

change led to the adoption of the Kyoto Protocol247

under the UNFCCC in 1997,

which came into effect in 2005. The protocol imposed binding obligations on the

Annex I countries not to exceed a specified amount of emissions of six greenhouse

gases, calculated as CO2 equivalent and averaged over the five-year period (2008-

2012). The parties, overall, were required to reduce their emissions by at least 5 per

cent below 1990 levels. Australia ratified the protocol late in 2007, which left the

United States as the only Annex I country not party to it. The US withdrew support

and abandoned the Protocol in 2001after the Senate raised concerns about not setting

binding reduction targets on developing countries such as China and India.

Withdrawal of the US undermined the efficacy of the Protocol to a great extent.

However, the remainder of the negotiating States ultimately finalised the Protocol’s

operational systems in ‘Marrakesh Accords’ at the seventh meeting of the COP in

Marrakesh, Morocco in 2001. The Marrakesh Accords outline an emissions trading

scheme, a Clean Development Mechanism, a Joint Implementation Mechanism, rules

of counting emissions reductions from carbon ‘sinks’, and financial and technological

support mechanisms to help developing countries contribute.

The Protocol recognises other ways of meeting emissions reduction targets, such as in

the Land-Use, Land-Use Change and Forestry (LULUCF) sector, accounting for

247 Kyoto Protocol. 37 ILM 22 (1998).

100

carbon sinks, and afforestation, reforestation and deforestation. One important aspect

of the Protocol and subsequent agreements was recognition of carbon sequestration as

a means of reducing atmospheric carbon dioxide (CO2). Carbon sequestration refers to

removal of carbon from the atmosphere, for example, by plants that take in CO2

through photosynthesis and incorporate it into their cell mass, which keeps the CO2

out of atmosphere. Another development in international climate discussions is

recognition of carbon capture and storage (CCS) which involves the removal of CO2,

mainly from fossil fuel combustion and ferreting away the CO2 in underground

geological formations like deep oceans.248

The technology has not yet been proved to

be safe or viable on a commercial scale.

(a) The Kyoto Protocol Flexibility Mechanisms

The Protocol adopts various mechanisms to reach an emission reduction target and to

enable the Annex I countries to meet their commitments and to engage participation

from all countries in addressing climate change. States that cannot meet their

emissions targets by cutting domestic emissions may compensate for excess emissions

by creating or enhancing national sinks under the Land-Use, Land-Use Change and

Forestry program. To supplement national emission reduction and sink development

efforts, the Protocol established three “flexibility” mechanisms for reducing costs and

engaging developing countries: Emissions Trading (ET) under Article 17, Joint

Implementation (JI) under Article 6, and Clean Development Mechanism (CDM)

under Article 12.

248 Michael I. Jeffery, 'Carbon Capture and Storage: Wishful Thinking or A Meaningful Part of The Climate

Change Solution' (2009-10) 27 Pace Environmental Law Review .

101

(i) Emissions Trading (ET)

The ET allows Annex I parties to trade emissions credits with other Annex I parties

who may have an easier, or harder, time meeting their targets. Under ET, one Annex I

Party is allowed to purchase or otherwise transfer part of its assigned amount of GHG

emissions to another Annex I Party over the five-year commitment period. The

Party’s assigned amount can be subdivided into “assigned amount units” (AAUs),

with each AAU corresponding to the right to emit one carbon dioxide equivalent ton

of GHG emissions.

(ii) Joint Implementation (JI)

JI is a mechanism established for Economies In Transition (EIT), such as the former

Soviet republics. Like ET, JI can take place only between Annex I countries. JI grants

“emission reduction units” (ERUs) to Annex I States that sponsor projects to reduce

emissions in other Annex I States. Under JI, industrialised States can upgrade out-

dated technology in other industrialised States and thereby reduce emissions at lower

cost than needing to invest more for up gradation of their own advanced technology.

The host Annex I Party transfers a corresponding portion of its assigned amount to the

investing Annex I Party in the form of ERUs, which the investing Party can add to its

assigned amount.

(iii)Clean Development Mechanism (CDM)

The CDM is aimed at developing countries such as China, India, and Brazil which

allows Annex I nations to invest in non-Annex I, developing countries, and receive

credit towards their own targets. Article 12 of the Protocol establishes CDM and has

provisions which enable the industrialized Parties to generate additional emission

units by funding projects in non-Annex I countries that promote sustainable

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development and can earn certified emission reductions (CERs) for themselves. Most

of these projects involve construction of industrial facilities that use clean technology

or overhauling old facilities.249 Afforestation and reforestation projects may also be

used to offset emissions, however, only restricted amount of reduction units are

available to the Annex I states.

(b) An Assessment of the Kyoto Protocol for Addressing Climate Change

The success of the Kyoto Protocol remains below satisfaction, as most Annex I

countries are reported to have an increase in their GHG emissions. According to a

study, UNFCCC 2009 data suggests that the United States, increased its emissions of

greenhouse gases by 14.0 per cent from 1990 to 2006 and the US and other

industrialized countries increased their aggregate emissions by 9.1 per cent from 1990

to 2006.250

In 2004-05, Japan’s emissions were more than 14 per cent above its Kyoto

targets.251

Global GHG emissions are estimated to have increased 70 per cent from

1970 to 2004 and are expected to continue to increase under current policies and

practices.252

Even if the Kyoto Protocol, as originally drafted, is implemented meeting all targets

by the developed nations, it would still constitute a very modest step towards

stabilizing the atmospheric concentrations of the GHGs. This is true for two important

249 Craig N. Johnston, William F. Funk and Victor B. Flatt, ‘Legal Protection of the Environment' (American

Casebook Series, Third ed, 2010) 816. 250 Brunner and Lynch, above n 51, 3. 251 Ikuko Kao and Neil Chatterjee, Japan's Kyoto Gap Widens as Emissions Rise (17 October 2006) Climate Ark

News Archive <http://www.climateark.org/shared/reader/welcome.aspx?linkid=62104>.

252 IPCC, 2007: Summary for Policymakers. In: Climate Change 2007: Mitigation. Contribution of Working

Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change [B. Metz, et al

(eds)], Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA, 3.

103

reasons.253

First, as indicated above, the Protocol in its first commitment period of

2008-2012 requires the Annex I Parties to reduce their GHG emissions on an

aggregate by 5 per cent below 1990 levels. In addition, current scientific analyses

confirm that the global atmospheric temperatures should not rise beyond 2º C to

prevent dangerous anthropogenic interference with the climate system. However, this

will require the world community to reduce their GHG emissions by 60-70 per

cent.254

Moreover, industrialized countries might have to reduce their emissions by as

much as 80 per cent by the middle of the century if developing nations are to be

permitted some growth in their emission levels.255

Second, under the Protocol, the developing countries are left out of any commitments

for emission reductions, even though it is projected that by 2025 the developing

world’s share of global emissions will be approximately 55 per cent.256

This is

substantiated by the fact that recently China has surpassed the US in CO2

emissions.257

Equity issues remain as the “per capita emissions” for the developing

countries are well below Annex I countries.

The failure of world community to implement even the modest commitments under

the Kyoto Protocol is a serious cause of concern for the planet. Even full

implementation of the Kyoto Protocol would reduce projected warming in 2050 by

only about one-twentieth of one degree and projected sea level rise by merely 5

253 See, William C. G. Burns and Hari M. Osofsky (eds), 'Adjudicating Climate Change: State, National and

International Approaches', 'Overview: The Exigencies That Drive Potential Causes of Action for Climate

Change' (Cambridge University Press, 2009). 254 Jonathan Pershing and Fernando Tudela, A Long-Term Target: Framing the Climatic Effort (2004) Pew Centre

on Global Climate Change 23. (Stabilization of CO2 concentrations at 550 parts per million, yielding an

estimated 1.6-2.9° C increase in temperature from preindustrial levels, necessitates 60% reduction in

emissions. 255 David D. Doniger, Antonia V. Herzog and Daniel A. Lashof, 'An Ambitious, Centrist Approach to Global

Warming Legislation, Science 3 November 2006: Vol. 314 page 764' ( 3 November 2006) 314 Science 764. 256 Kevin Baumert and Jonathan Pershing, Climate Data: Insights and Observations (2004) Pew Centre on Global

Climate Change. 257 John Vidal and David Adam, China overtakes US as world's biggest CO2 emitter, John Vidal and David Adam

(19 June 2007) Guardian.co.uk <http://www.guardian.co.uk/environment/2007/jun/19/china.usnews>

104

mm.258

According to a recent study, to cap the temperature increase to 2°C, global

energy emissions must be stabilized by 2015 and rapidly decline by 6-8 per cent

annually between 2020 and 2040, and full decarbonisation by 2050.259

3 Post Kyoto

At COP-13 in Bali, in 2008, at, the Parties to the UNFCCC established the Ad Hoc

Working Group on Long-term Cooperative Action (AWGLCA) as a subsidiary body

under the UNFCCC. The Bali Action Plan sets out a roadmap that includes four

building blocks: mitigation, adaptation, technology transfer, and financial

resources.260

The AWGLCA is to consider mitigation commitments or actions,

including quantified emission limitations and reduction objectives by all developed

country Parties.261

Nationally appropriate mitigation actions are to be adopted by the

developing countries in context of sustainable development, supported and enabled by

technology, financing, and capacity-building, in a measurable, reportable, and

verifiable manner. The Bali Action Plan calls for international cooperation to support

urgent implementation of adaptation action using vulnerability assessments, financial-

needs assessments, and capacity-building and response strategies, among others.262

In regard to technology transfer, AWGLCA is to consider means for the removal of

obstacles and provision of financial and other incentives for scaling up of the

development and transfer of technology to developing countries to promote access to

258 Martin Parry et al., 'Buenos Aires and Kyoto Targets Do Little to Reduce Climate Change Impacts' (1998) 8

Global Environmental Change 285. 259 Kevin Anderson and Alice Bows, 'Reframing the Climate Change Challenge in Light of Post-2000' (29 August

2008) Philosophical Transactions of the Royal Society 3863. 260 United Nations Framework Convention on Climate Change, Bali Action Plan, Decision- / CP.13,

http://unfccc.int/files/meetings/cop_13/application/pdf/cp_bali_action.pdf. 261 Ibid. 262 Ibid.

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affordable environmentally sound technologies.263

Enhanced action on the provision

of financial resources is to consider improved access to adequate, predictable and

sustainable financial resources and technical support to developing countries,

including new and additional resources and mobilization of private sector funding and

investment.264

Some of other subjects outlined for future discussion in the Bali Action Plan include

the use of sectoral approaches; approaches to enhance the cost-effectiveness of

mitigation actions, including market mechanisms and the issue of reducing emission

from deforestation and forest degradation in developing countries.

The COP-14 at Poznan, Poland was to evaluate the progress made in the various

forums and to propose the work programme until December 2009. The Poznan

strategic programme on technology transfer was announced as a step towards scaling

up the level of investment in technology transfer to help developing countries address

their needs for environmentally sound technologies.265

Financial contributions were

invited from developed countries and other Parties to the Global Environment Facility

(GEF).266

It empowered the GEF to address the various issues raised over the

implementation of Resource Allocation Framework, to continue mitigation and

adaptation measures by appropriate, transfer of and access to environmentally sound

technologies.

263 Ibid. 264 Ibid. 265 Development and Transfer of Technologies, UNFCC 2009 Decision 2/CP.14. 266 GEF was established in 1991 and is an independent financial mechanism for providing “new and additional

grants and concessional funding to cover the ‘incremental’ or additional costs of measures to assist in the

protection of the global environment and to promote environmental sustainable development. Global

Environment Facility, World Bank, <http://go.worldbank.org/5NUKDEM4V0>.

http://go.worldbank.org/5NUKDEM4V0

106

Much hope was expressed from the COP-15 in Copenhagen in December 2009.

Unfortunately, it could only arrive at the non-binding Copenhagen Accord, which was

merely "recognized", rather than approved, given the lack of unanimous support.

However, the nonbinding Accord recognized the scientific view that global

temperature should not exceed 2°C without indicating a deadline by which GHG

emissions should peak. It was also suggested that the developed countries will provide

US $30 billion to developing countries across the next three years, reaching $100

billion a year by 2020.267

The Accord addresses emissions technology by calling for

developed country pledges to undergo "rigorous, robust and transparent" review by

the UNFCCC while developing countries to submit national reports on emissions

pledges.268

While the Accord includes a 2°C target, developed countries failed to agree to legally-

binding emission targets and the international community failed to set a global goal,

such as 80 percent below 1990 emissions levels by 2050. MIT's John Sterman notes

that, based upon pledges coming into Copenhagen, global temperature would increase

by 3.9°C above preindustrial levels.269

In contrast, in the COP-16 in Cancún in 2010 proved to be more successful than

Copenhagen with all the signatories to UNFCCC agreeing for the first time on a

binding undertaking to limit the rise in temperature to 2° C in relation to pre-industrial

times. The consensus to set up a Green Climate Fund to finance climate protection

and adaptation also became binding.

267 UNFCCC, December 7-18, 2009, Copenhagen Accord, FCCC/CP/2009/L.7

<http://unfccc.int/resource/docs/2009/cop15/eng/l07.pdf>. 268 Copenhagen Accord at ¶ 4-5. 269 Stu Seidel, 'Climate Accord In Hand, Obama Turns To Senate', NPR 19 December 2009.

107

The COP-17 under the UNFCCC in Durban, South Africa in 2011, led to the pact,

known as the "Durban Platform", and resolved a new legally binding deal by 2020

and set out a road map to get there. The Durban Platform also proceeded with some

details of the new Green Climate Fund established in Cancún, however, it failed to

define how industrialized countries will meet their commitments to allocate US$100

billion annually by 2020 to help poor countries cope with global warming. The

agreement settled some of the technical details including carbon capture and

sequestration projects in the Clean Development Mechanism, which allows

industrialized countries to offset their emissions by paying for clean energy projects in

developing countries.

The plan has been criticised as too timid to slow global warming.270

The agreement

commits the countries to negotiating new treaty by 2015, but the new commitments

will take effect only after 2020. Moreover, China, the United States and India, the

world's three biggest emitters accounting now for about half of all global CO2

emissions, are not bound by Kyoto and would not be bound to any legally enforceable

numbers until at least 2020. India and China said curbing their emissions would hurt

their fast-growing economies and will put their people at risk who are already

suffering from poverty. The Organisation for Economic Cooperation and

Development said global average temperatures could rise by 3-6° C by the end of the

century if governments failed to contain emissions and it will have serious impact on

the ecosystems.271

270 Jon Herskowitz, 'Analysis: Durban Deal May Do Little To Cool Heating Planet', Reuters 12 December 2011;

Also, Fiona Harvey and John Vidal, 'Durban Deal Will Not Avert Catastrophic Climate Change, Say

Scientists’', The Guardian 11 December 2011. 271 Herskowitz, above n 270.

108

Although the Durban deal included agreement to negotiate a second commitment

period under the Kyoto Protocol, but, as Canada, Japan and Russia, along with the

United States, have expressed their unwillingness to accept new emissions reduction

targets under the extended Kyoto framework, significant reduction in emissions may

not be expected by the extension of Kyoto under the deal.

C India’s Participation in International Climate Negotiations

As discussed previously, climate change will have serious consequences for India and

will affect the economic development which will further worsen condition of millions

of poor people. It is for this reason that India has a huge stake in the international

climate change negotiations.

India is a party to both the UNFCCC and the Kyoto Protocol, though, as a non Annex

I (developing) country, India has no binding emissions limits under the Protocol. The

Indian government has reiterated many times that the developed world is responsible

for most of the historic emissions of GHGs and as India’s per capita emission remains

much below that of the developed world, it reserves the right to development and

providing decent standard of living to its people. Although neither the Protocol nor

UNFCCC obligate the government of India to reduce its GHG emissions, the

government has undertaken several voluntary measures to curb its GHGs, as

discussed in chapter 5. Also, the government has adopted National Action Plan on

Climate Change (NAPCC) in 2008 with eight missions, which promotes renewable

energy, among other provisions. The government also promotes investment in cleaner

development technologies and energy regulations. India is an active participant in the

Clean Development Mechanisms (CDM) established under the Protocol. The

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government also established new ministries, administrative agencies and many special

committees to consider other avenues for action.

The NAPCC pledges that at no point India’s per capita emission would rise above that

of the developed world even while pursuing the development objectives. Alhough

India does not have a substantial contribution to global GHGs, it remains vulnerable

to a range of implications due to changing climate. As discussed in chapter 3, India’s

cumulative emissions are steadily rising and with a developing economy, the

emissions are expected to rise further. It is, therefore, very important for India to take

active part in international negotiations and take all steps possible to curb the danger

of climate change looming on itself and on the world, at large.

D International Water Law Framework

International water law includes a number of instruments. They do not necessarily

apply in Indian context but contribute in various ways to the development of water

law in the country. Initially international water law included treaties mostly

concerning navigation in international rivers, which was one of the areas of

collaboration of the states. Over time, this has been expanded to many non-

navigational aspects but the focus on international water courses remains an important

part of water law, as exemplified in the Farakka treaty between India and Bangladesh

on sharing of Ganga water, discussed below. The Convention on the Law of the Non-

navigational Uses of International Watercourses 1997272

remains the only multilateral

treaty in the field of water. The basic principle of 1997 UN Water Convention is

equitable and reasonable utilization of water.273

This provides a framework for

272 Convention on the Law of the Non-Navigational Uses of International Watercourses 1997, 36 ILM 7113 720

(1997). 273 Ibid, Article 5.

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cooperation among states on international watercourses concerning the use of their

waters apart from navigational aspects.274

Article 7 of the 1997 UN Convention on

International Watercourse provides the ‘no-harm obligation’, i.e. in utilizing an

international watercourse, states have an obligation to ‘prevent the causing of

significant harm’ to other states sharing the watercourse.

Besides the UN Water Convention, there also exist a number of international treaties

that are directly or indirectly concerned with water. The Convention on

Environmental Impact Assessment in a Transboundary Context,275

for instance,

applies to dams and other water related infrastructure projects. The Desertification

Convention276

clearly links water and desertification and recognises that

rehabilitation, conservation and sustainable management of water are the key to

combating desertification. The Ramsar Convention (Convention on Wetlands of

International Importance Especially as Waterfowl Habitat) 1971277

is also related to

water. However, it covers not only the trans-boundary wetlands but also the ones

which are entirely within the territory of a member state.

Apart from these treaties, several non-binding instruments also have a bearing on

water. For example, the Dublin Statement which laid down principles of water sector

reforms in the early 1990s.278

Overall, it can be said that the international water law is well developed regarding

collaboration among states concerning trans-boundary issues such as navigation on

international watercourses. In recent decades, the importance of collaboration on non-

274 Ibid, Article 1. 275 Convention on Environmental Impact Assessment in a Transboundary Context, 30 ILM 802. 276 UN Convention to Combat Desertification, 33 ILM 1016 (1994). 277 Convention on Wetlands of International Importance, 11 ILM 963 (1972). 278 Dublin Statement on Water and Sustainable Development, International Conference on Water and the

Environment, Dublin, 31 January 1992.

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navigational aspects of international watercourses is also growing. However,

international law is yet to be effectively developed with regards to cooperation on

issues related to water found within national boundaries and there does not appear to

be integration with the evolving climate change regime.

1 The Farakka Ganga Water Sharing Treaty

Many important tributaries of Ganga originate in the Nepal Himalayas and supply

water to downstream countries of India and Bangladesh. India and Bangladesh share

54 trans-national rivers but unfortunately water has always remained a contentious

issue between the two countries. A significant amount of Ganga water is withdrawn in

the upstream part of the river in India which leaves only residual water supplies for

Bangladesh. High seasonality i.e. the dry season and monsoon flows of the river

varies significantly and so demand usually mismatches supply. Population growth,

agriculture, pressure on urban water supply, and industrial and environmental needs

further compound the problem.

Farakka Barrage on the Ganga, completed by India in 1974, is located 10 km from the

Indian side of the border between India and Bangladesh, in the state of West Bengal.

The dam was built to divert the Ganga River water into the Hooghly River, in order to

prevent siltation of that river and Calcutta Harbour. Bangladesh and India have had

many debates as the Farakka Barrage cuts off Bangladesh's water supply, especially in

dry months of November to May for irrigation, to prevent siltation and resulting

flooding of the Bangladesh portion of the Ganga River, and also to hold back salt-

water intrusion from the Bay of Bengal.

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Bangladesh, known as East Pakistan at the time, brought the issue before the United

Nations General Assembly. At first, India refused to accept that the Ganga is an

international river, but later ceased from denying it and accepted the principle that

‘each riparian State was entitled to a reasonable and equitable share of the waters of

an international river’.279

Bangladesh claimed that:

“[i]n the apportionment of waters, at any rate in the dry season or months of scarcity,

Bangladesh was entitled to the natural flow of the Ganges in order to satisfy existing

human and ecological needs that could not be met in any other way...The new use of

the water by India contrasted with the existing multiple and interconnecting beneficial

uses to which it was put by Bangladesh.”280

Bangladesh also invoked Principle 21 of the 1972 Stockholm Declaration as a

justification for its demand that India refrain from causing it harm through the

Farakka Barrage.281

Against this plea, India maintained that:

“When a river crossed more than one country, each country was entitled to an

equitable share of the waters of that river...the insistence on the continued flow of an

international river, as asserted by Bangladesh, was inconsistent with the concept of

equitable utilization of the waters of a river.”282

279 Stephen C. McCaffrey, 'The Law of International Watercourses: Non- Navigational Uses' (Oxford University

Press, 2001) 251. 280 UNGAOR 31st Session, Special Political Committee, 20th meeting, 3-4. 281 Mccaffrey, above n 279, 252. 282 UNGAOR 31st Session, Special Political Committee, 21st meeting, p. 2-3.

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On 12 December 1996, India and Bangladesh concluded a new agreement on the

Sharing of the Ganges Waters at Farakka,283

which is to remain in force for thirty

years and is renewable by mutual consent.284

The Treaty’s preamble mentions the

parties’ desire to find a ‘fair and just solution without affecting the rights and

entitlements of either country other than those covered by this Treaty, or establishing

any general principles of law and precedent’. Many of the provisions of the Treaty

were later echoed in the UN Convention, which was concluded subsequent to the

signing of the Treaty.

According to the water-sharing formula provided for in the 1996 Farakka Treaty, if

during the dry season (1 January-31 May) the flow of the Ganga at Farakka is 70,000

cusecs or less, it is to be shared equally by the two countries; if the flow is between

70,000 and 75,000 cusecs, Bangladesh is allocated 35,000 cusecs with the balance

going to India; and when the flow is over 75,000 cusecs, India is to receive 40,000

and Bangladesh the remainder. 285

A reduction in flow below 50,000 cusecs would

trigger immediate consultations for the purpose of making necessary adjustments ‘in

accordance with the principles of equity, fair play and no harm to either party’.286

The Treaty provides for the water sharing arrangements to be reviewed at least every

five years. Any needed adjustments are to be made on the basis of the ‘principles of

equity, fairness, and no harm to either party’.287

If agreement on adjustments is not

reached, India is to release no less than 90 per cent of Bangladesh’s share ‘until such

time as mutually agreed flows are decided upon’.288

The Treaty sets up a joint

283 Treaty on Sharing of the Ganges Waters at Farakka, New Delhi, 12 December 1996, 36 ILM 519 (1997). 284 Ibid, Art XII. 285 Ibid, Annexure I. 286 Ibid, Art II (iii). 287 Ibid, Art X. 288 Ibid, Art. XI.

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committee for the implementation of the Treaty (articles IV to VII). However, the

Treaty is criticised for narrow scope and lacking provisions for the management of

water resources of the Ganga Basin.289

The altered river flows due to climate change may further strain the relationship

between the countries. Water in the river reduces significantly by the time it reaches

Farakka especially during the dry season makes difficult to meet the water

requirements of both countries. In case of reduced resources, pressure will further

increase to re-negotiate terms and agreements. Construction of dams and reservoirs to

augment the flows will have significant environmental effects. In a warmer climate in

the future, the reduced water supply in the river will complicate negotiations

regarding sharing arrangements.290

E Interim Conclusion

Water is a scarce natural resource and the world faces many disputes related to water

between States and also within the States. Climate change stands to make the situation

worse and due to forecasts of ceased water flows in the rivers, international relations

between riparian States may get affected negatively. Efforts of the world to mitigate

climate change are far from being satisfactory. Since existing international laws and

policies have not mitigated climate change, adaptation measures are imperative to be

adopted to combat the disastrous effects of climate change. International law related

to shared water-courses has largely focused on navigation and sharing the resource.

Once again, these older international agreements lack synergy with the UNFCCC and

the Kyoto Protocol. The following section discusses the importance of adaptation as a

289 Mohiuddin Farooque, in Daud Hassan (ed), 'International Rivers: Rights of the Riparian States’ (Bangladesh

Environmental Lawyers Association (BELA), 2009) . 290 Mirza and Ahmad, above n 44, 19.

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complimentary measure to mitigation of climate change and discusses some

adaptation measures in practice in important river basins around the world.

II CLIMATE CHANGE ADAPTATION

A Introduction

Responding to climate change by only mitigation might not be enough, given the long

history of past emissions from industrialized nations and the inertia of the climate

system. Adaptation to climate change and its impacts is receiving increasing attention

as an alternative and a complementary response strategy to mitigation or reducing net

emissions of greenhouse gases. 291

The IPCC Fourth Assessment Report (IPCC AR4)

concluded that climate change adaptation is unavoidable in view of the expected

impacts of climate change in the next few decades, in spite of even the most hopeful

mitigation efforts.292

A substantial amount of climate change is expected even if we make huge cuts.

Although Article 3 of the UNFCCC calls upon signatories to take steps to reduce

climate impacts, adaptation in comparison to mitigation has received relatively little

attention. As current mitigation efforts will not suffice in combating the risks of

climate change, adaptation to the inevitable impacts assume significance.

The IPCC defines adaptation practices as ‘actual adjustments, or changes in decision

environment, which might ultimately enhance resilience or reduce vulnerability to

291 Jeroen C.J.H. Aerts and Peter Droogers (eds), 'Climate Change in Contrasting River Basins: Adaptation

Strategies for Water, Food and Environment', Adaptation for Regional Water Management (CABI

Publishing, 2004) 2. 292 R.J.T Klein, S.H.E. Eriksen, L.O. Naess, A. Hammill, T.M. Tanner, C. Robledo and K.L. O’Brien, 2007,

Portfolio Screening to Support the Mainstreaming of Adaptation to Climate Change into Development

Assistance, Tyndall Centre Working Paper No. 102. Tyndall Centre, Norwich, UK.

116

observed or expected changes in climate’.293

Adaptation may be anticipatory or

reactive, planned or autonomous, public or private.294

Anticipatory or proactive

adaptation occurs before impacts are experienced.295

Planned adaptation is the result

of a deliberate policy decision, whereas autonomous adaptation is an individual rather

than a policy-induced response to climate impacts.296

For example, relocation

following an extreme event such as cyclone or flood.

The IPCC proposes a number of adaptation approaches to cope with uncertainty on

climate change impacts. These include no-regrets policies “that would generate net

social and/or economic benefits irrespective of whether or not anthropogenic climate

change occurs”, “the increased use of water management measures that are relatively

robust to uncertainty”, and integrated water resources management.297

According to Adger et al. (2005), 298

adaptation can involve both building adaptive

capacity (thereby increasing the ability of individuals, groups or organizations to

adapt to changes), and implementing adaptation decisions (i.e. transforming that

capacity into action).

There is increasing international debate on how best to effectively manage freshwater

and adaptation. First, the debate focuses on whether poverty reduction or vulnerability

reduction makes for better adaptation.299

Second, in relation to adaptation across

scales, discussion focuses on identifying scales of action to deliver more effective

293 IPCC 2007, Impacts, Adaptation and Vulnerability, above n 8. 294 IPCC, 2007, Summary for Policymakers above n 3. 295 Ibid. 296 IPCC 2001, Impacts, Adaptation and Vulnerability, above n 8. 297 B.C. Bates et al, 'Climate Change and Water: Technical Paper of the Intergovernmental Panel on Climate

Change' (IPCC Secretariat, 2008). 298 W. N. Adger, N.W. Arnell and E.L. Tompkins, 'Successful Adaptation To Climate Change Across Scales'

(2005) 15(2) Global Environmental Change 77. 299 E. L. F. Schipper, Climate Change Adaptation and Development: Exploring the Linkages. Tyndall Centre

Working Paper No. 107. Tyndall Centre for Climate Change Research, 2007, Norwich, UK.

117

adaptation, and how to get actors at different geopolitical scales to work together

rather than hinder adaptation work. Third, there is the question of how adaptation

measures can best be integrated into society.

Climate change adaptation is generally seen as a bottom-up process which is driven

by the market or by self-interest of the individual, organisation or community

benefitting from the adaptation measures. However, recent increased frequency and

severity of climate related disasters have proved their capacity to escalate costs as

infrastructure as well as social support systems. Improved resilience to such impacts

delivers wider social and economic benefits but for society to enjoy these benefits, it

needs to bear some cost. Therefore, adaptation has social benefits that may include

protection of most vulnerable, increased social and economic development and

regeneration, protection of social assets and critical infrastructure, among other

things.300

Considering that the impacts of climate change are already being felt, intervention

aimed at reducing the negative impacts and risks are required. Irrespective of the

reason for adaptation, either purposeful or unintentional adaptations can generate

short-term or long-term benefits.

B Adaption and the Water Sector

Climate change impacts on the water sector are likely to be pronounced. In general, it

is difficult to detect if changes in water availability in rivers, lakes and ground water

are due to climate change or other factors such as increasing population and economic

development leading to increased demand. Increase in water use has resulted in lower

300 ‘Malcolm Dowden, 'Climate Change and Sustainable Development: Law, Policy and Practice’ (EG Books,

2008).

118

water levels in lakes, the most dramatic example is the Lake Aral in Central Asia.301

In some cases, changes in climate have contributed to dropping lake levels, for

example, the water level of Lake Chad in Western Africa declined due to both human

activities and reduced rainfall.302

However, some of the changes in surface water discharge can be linked to climate

change. For example, the timing of river flows in regions where winter snowfall has

significantly reduced.303

Warming temperatures lead to melting of winter snow earlier

in the season and, the winter precipitation falling as rain instead of snow. As a result

of both these effects there is a shift in peak river runoff to winter and early spring and

less stream flow during summers, when demand is the highest. This change in the

timing of river flows can have a large impact upon water resource management,

causing water shortage in summers.

The IPCC states that “observational records and climate projections provide abundant

evidence that freshwater resources are vulnerable and have the potential to be strongly

impacted by climate change”.304

Climate change is likely to exacerbate already

strained water resources and poses a great challenge to the policy makers,

practitioners and water managers to develop sustainable water management practices

as well as adopt adaptation measures to cope with it. Climate change will have a

significant impact on water availability and safety. Every year millions of people are

affected by floods and droughts and climate change is likely to increase both the

301 P. Kabat and H. van Schaik, 'Climate Changes the Water Rules: How Water Managers Can Cope with Today’s

Climate Variability and Tomorrow’s Climate Change' (Dialogue on Water and Climate,The Netherlands,

2003). 302 Fulco Ludwig and Marcus Moench, 'The Impacts of Climate Change on Water' in Fulco Ludwig et al (eds),

‘Climate Change Adaptation in the Water Sector’ (Earthscan, 2009) 35. 303 T.P. Barnett, J. C. Adam and D. P. Lettenmaier, 'Potential Impacts of A Warming Climate on Water

Availability in Snow-Dominated Regions' (2005) 438 Nature 303. 304 Bates et al, above n 297.

119

number and magnitude of such events. Mitigation and adaptation to the present and

potential impacts of climate change are inevitable.

Adaptation is explicitly addressed in several policy documents, such as declaration of

the UNFCCC (1992), where Article 4.1b states that “parties are committed to

formulate and implement national, and where appropriate, regional programmes

containing measures to facilitate adequate adaptation to climate change”. This has

been strengthened in Article 10 of the Kyoto Protocol (UNFCCC, 1997), where

“parties are further committed to promote and facilitate adaptation and deploy

adaptation technologies to address climate change”.305

The IPCC declares that “adaptation to changing conditions in water availability and

demand has always been at the core of water management”.306

Such historical actions

in the water sector are defined as autonomous adaptation measures “that do not

constitute a conscious response to climate stimuli, but result from changes to meet

altered demands, objectives and expectations which, whilst not deliberately designed

to cope with climate change, may lessen the consequences of that change”. 307

Such

adaptations are widespread in the water sector, although with varying degrees of

effectiveness in coping with climate change.

As the climate continues to change, adaptation is considered to be an ongoing rather

than a finite process.308

The urgency to take action is more apparent than ever. But

water managers continue to face a lack of information on how to adapt to the changes

in climate, especially at the river basin level. As the impacts primarily take place at

305 Aerts and Droogers, 'Climate Change in Contrasting River Basins’, above 291, 10. 306 Z.W. Kundzewicz, et al, 2007: Freshwater Resources and Their Management. IPCC 2007, Impacts, Adaptation

and Vulnerability, above n 8, 196. 307 Bates et al, above n 297. 308 J.H. Mathews and A.J. Wickel, 'Embracing Uncertainty in Freshwater Climate Change Adaptation: A Natural

History Approach' (2009) 1(3) Climate and Development 269.

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the regional (river basin) level or local scales, adaptation similarly should be sought at

those scales.309

According to Aerts and Droogers, 310

where flood control is concerned, fundamental

distinctions exist between strategies that rely primarily on structural measures (dams,

embankments and diversions) to control flows and strategies that allow water to

spread, but mitigate the impact of flooding by discouraging the development of

vulnerable activities and investments in floodplains, strengthening early warning and

encouraging drainage. However, as a high degree of uncertainty is involved in

predicting future climatic conditions with precision, any attempts to identify future

flow volumes and thus, assessing the embankments required or space needed for

water to spread, will also carry a high degree of uncertainty.

The contrast between structural and more adapted approaches to flood control also has

environmental management implications. Maintaining ‘space’ for water to spread

during floods helps in maintaining riparian zones and wetlands. This provides the

diverse ecosystem niches necessary for species to adapt as climatic conditions

change.311

Whereas structural approaches tend to limit the wetlands and riparian zones

and so, maintenance of environmental values may require more proactive, directed

interventions.312

Undertaking adaptation measures in the Ganga Basin will be unavoidable for averting

the risks on the scenarios hypothesized in chapter 3. It will be useful to consider some

309 Aerts and Droogers, 'Climate Change in Contrasting River Basins’, above 291, 2. 310 Jeroen Aerts and Peter Droogers, 'Adapting to Climate Change in the Water Sector' in Fulco Ludwig et al (eds),

Climate Change Adaptation in the Water Sector (Earthscan, 2009) 97. 311 Ibid, 99. 312 Ibid, 99.

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of the adaptation measures being undertaken in various river basins in the world to

learn lessons from them.

1 Examples of Adaptation in the Water Sector

(a) Australia

A brief account of adaptation measures undertaken in the city of Melbourne in the

state of Victoria in South-East Australia has been described by Brunner and Lynch.313

Three of the most severe droughts on record occurred in 1994, 2002 and 2006 with

average rainfall deficits in Melbourne of around 180 mm, 250 mm and 210 mm. After

the 2002 federal government election, water availability became one of the key areas

of emphasis for the government. A goal to reduce urban water demand by 15 per cent

by 2010 was adopted for the city of Melbourne. Provisions enacted to meet the goal

included the Storm water and Urban Water Conservation Fund to ‘support local scale

innovative water sensitive urban development initiatives, storm water conservation

and water recycling initiates across Victoria’.314

Reformed water pricing with a block

tariff system was adopted with each additional block to cost more per unit. Also,

rebates for water saving devices, such as efficient shower heads were provided and a

major campaign was established to change water-consumption behaviour. These

efforts led to a 22 per cent reduction in urban demand in Melbourne.

(b) Mexico

Mexico suffers from the problem of reduced and uneven distribution of water

resources and water scarcity in large portions. Climate change forecasts predicting

further deterioration on water resources, for example, less runoff and more frequent

313 Brunner and Lynch, above n 51, 82. 314 Department of Sustainability and Environment, Stormwater and Urban Water Conservation Fund, quoted in

Brunner and Lynch, above n 51.

122

droughts in the arid north of Mexico, make the situation worse. Climate change can

further affect the demand for consumptive water which is expected to exceed supply,

and has become an urgent issue.

Integrated river basin management was adopted as one of the World Wildlife Fund

(WWF) projects in the drought-prone, over allocated Rio Conchos Basin.315

The

autonomous adaptation measures included: modernization of irrigation practices, pilot

sustainable watershed management projects in the upper basin, development of

environmental flow assessment, proposal to improve water allocation, creation of the

Inter-institutional Working Group as a basin organisation.316

Efficient irrigation

infrastructure resulted in savings of between 25 and 43 per cent in crop water use,

increase in irrigation efficiency from 44 to 66 per cent.317

Though these measures led to improvement in river basin management, it also gave

some adverse outcomes too like impacts of surface water efficiency measures that

were not managed in conjunction with the ground water. As surface water allocations

contracted, it led to more extraction of ground water. But at the same time, the

importance of management of both surface and ground water together was

demonstrated to the farmers to reduce their vulnerability to water scarcity.

The water management paradigm in Mexico had promoted total extraction of water

for consumptive uses. A proposal in the Rio Conchos to set up an environment was

focussed on the water requirement for the environment, which could be used to limit

water extraction in order to foster long-term sustainability. This ecosystem based

315 J. Eugenio Barrios, J. Alfredo Rodriguez-Pineda and Mauricio De La Maza Benignos, 'Integrated River Basin

Management in the Conchos River Basin, Mexico: A Case Study of Freshwater Climate Change Adaptation'

(2009) 1(3) Climate and Development . 316 Ibid. 317 Ibid.

123

approach was anticipated to increase resilience of the environment and local society to

the impacts of climate change.

(c) Brazil

Another study was conducted in Sao Joao River Basin, by the WWF, where the

degradation of the rivers and coastal lagoons by discharge of untreated waste waters

threatened the tourism and fishing industries which comprise 70 per cent of the

region's economy. The Consortium, fishing community and allied NGOs lobbied and

took legal action against the state government pollution regulator. A key outcome was

the renegotiation of water supply company concessions that led to an initial USD 38.5

million investment in 2002-2005 in new sewerage treatment infrastructure and a

reduction of wastewater discharge by 75 per cent.318

A USD19.3 million second phase

planned to collect all waste waters for collection by 2009, and a third phase from 2010

to 2023 is planned to separate storm water from sewerage.319

In addition, the silted up

entrance to the Araruama Lagoon was dredged to restore greater exchange of water

with the sea. The substantial reduction of pollution inflows has reduced the threat that

eutrophication of lagoon waters would be exacerbated by higher temperatures with

climate change.

These interventions resulted in substantial socio-economic benefits in restoring the

fishing and tourism industries. Improved water quality has seen restoration of

mangrove habitats and increases in fish, shrimp and bird populations and the fishing

and tourism industries have been recovered. Economic growth has helped in

increasing regional training and employment opportunities.

318 Luiz Firmino Martins Pereira, Samuel Barreto and Jamie Pittock, 'Participatory River Basin Management in the

Sao Joao River, Brazil: A Basis For Climate Change Adaptation?' (2009) 1(3) Climate and Development 319 Ibid.

124

Following success in reducing water pollution, the Committee and Consortium

decided to scale up work from 2007 to reduce erosion and conserve the water sources

and biodiversity through linking and restoring remnant riparian and other wetland

habitats. The Juturnaiba Dam will be retrofitted with a fish ladder at a cost of US

$400,000 to reconnect populations of migratory species like grey mullet, sea bass and

prawns, and the dam's operating rules are being revised. The river bypass canal

downstream of the dam will be decommissioned at a cost of US $700,000 to restore

the Rio Sao Joao's natural course and the adjacent flood plain wetlands. The canal will

be converted to aquaculture ponds, further diversifying the local economy. A payment

for environmental services scheme is funding previously unemployed residents to

restore riparian forests. This is reducing erosion and linking remnant habitats of a

threatened primate, the Golden Lion Tamarin, whose population is increasing as the

forests are restored.

(d) Tanzania

The Great Ruaha River (GRR) is home to about 6 million people. Its waters support

the Usangu wetlands (Western Utengule and Eastern Ihefu wetlands), Selous Game

Reserve and Ruaha National Park. These ecosystems are of both national and

international importance as they are sources of foreign exchange generated through

tourism and sport hunting while some of the swamps are designated under the Ramsar

Convention on Wetlands. In addition, the country's major hydropower plants of Mtera

and Kidatu use the waters of the GRR and account for about 48.5 per cent (280 MW

out of 577 MW) of installed generation capacity connected to the national power grid.

In the GRR headwaters, 46 per cent of the 1.5 million residents live in poverty and

depend largely on agriculture for their livelihood.

125

Since the early 1990s the GRR has experienced decreased flows. The normally

perennial GRR is facing unprecedented cessations of dry season flows. Rainfall in the

catchment is declining since 1950s and there is a major change in land use with larger

areas converted to agriculture. The demand for water has increased due to growing

human population and the irrigation requirements. The construction of intakes and

diversions to abstract water from rivers for supplementary irrigation in order to

minimize the risk of crop failure has resulted in the GRR and its tributaries being

severely drained.

Despite all that, the challenge remains of how to ensure equitable allocation of

available water resources and improve water productivity, while strengthening

institutions at the grassroots level and providing alternative livelihoods, as well as

coping with the pressures of a changing climate.

The WWF Tanzania Programme Office commenced a project in 2003 to promote

integrated and sustainable water use and management of natural resources in order to

maintain ecosystem functioning for improved livelihoods. A study conducted by

Kashaigili, Rajabu, and Masolwa320

found that although originally not planned for

climate change, the project achieved a number of adaptation outcomes like, reduction

in over-dependency on water to sustain livelihoods by engaging communities in fewer

water-intensive economic activities notably retailing, manufacturing clothing and bee-

keeping, minimised degradation of the catchment by proper management of the

watersheds through reduction of grazing near water sources and river banks,

afforestation, reduction of valley-bottom (vinyungu) farming and demolition of

320 Japhet J. Kashaigili, Kossa Rajabu and Petro Masolwa, 'Freshwater Management And Climate Change

Adaptation: Experiences from the Great Ruaha River Catchment in Tanzania' (2009) 1(3) Climate and

Development

126

houses built near water sources. Moreover, construction of Kangaga Dam with a

capacity of 40,860 m3 at a cost of US $ 42,373 has helped in providing adequate water

for livestock as well as for domestic consumption during the dry season and dry years.

Consequently, people's vulnerability to the impacts of drought and low flows in the

dry season has been minimized. The conservation of riparian zones and restoration of

springs and river flows have benefited the biodiversity. Flows have recommenced into

the Ihefu wetlands, and the number of zero flows downstream into the National Park

has been reduced from almost three months per year to less than a month. There is

increased awareness of sustainable management and use of water and other catchment

resources.

As a result of the project interventions from 2003 to 2009, rural livelihoods became

more profitable and water-sustainable, and local livelihood strategies were diversified.

Regional ecosystems improved as a result of restoring river flows in some rivers,

conservation of riparian vegetation and halting tree felling for charcoal production. As

a result of these changes the communities and ecosystems in the Great Ruaha River

catchment should be more resilient to emerging climate change impacts, yet the need

for further physical interventions and institutional reform is identified. The study

concludes that strengthening local institutions and capacity building are fundamental

to climate change adaptation and sustainable freshwater management.

However, the environmental flow assessment completed by the WWF for the GRR

concluded that the better catchment management measures applied, while highly

beneficial in increasing river flows and reducing vulnerability of local communities to

water scarcity in the upper basin, would not exceed the threshold needed to pass dry

season water flow through the Usangu wetland and further downstream. Nevertheless,

127

the project demonstrated the significance of restoring ecosystem functions and better

management of natural resources can help in increasing resilience to water scarcity.

(e) The Netherlands

One quarter of the Netherlands lies below sea level and its residents have had to deal

with abundance of surface water and threats of flooding for centuries. Traditional

flood defence systems such as dikes and dunes bordering rivers, lakes and sea,

prevent 65 per cent of the country from being flooded on a regular basis. However,

the extremely high water levels in rivers during 1993 and particularly 1995 led to a

fear of breach of the dikes and many people had to be evacuated. Though, it proved

unnecessary as the dikes stayed in place, the event helped create awareness among the

politicians and the public that physical protection in the form of dikes and draining of

land could not work forever.

With climate change set to have an impact on the occurrence of these events, the

Royal Netherlands Meteorological Institute (KNMI) developed sets of climate

scenarios and the projections include rise in temperature, increased rainfall with less

frequency but more extremes and a rise in sea level.321

In the River Rhine in the low-lying Netherlands, a striking example of ‘non-

infrastructural’ adaptation has been followed where the principle of ‘Room for the

River (RvR)’ has replaced the traditional approach of raising dikes for floods. Under

the new approach, controlled flooding areas along the rivers have been created which

are useful for agriculture during normal to low river discharges and are used as

321 Michelle J. A. Hendriks and Joost J. Buntsma, 'Water and Spatial Planning in The Netherlands: Living with

Water in the Context of Climate Change' in Fulco Ludwig et al (eds), ‘Climate Change Adaptation in the

Water Sector’ (Earthscan, 2009)

128

buffers during high flows to provide protection from flooding.322

Other innovative

approaches include: broadening of the river bed; allocation of area for water storage;

adjustment of bridges and weirs; and nature conservation development.323

(f) Thailand

In spite of the Netherlands case example, infrastructural adaptation measures are, in

general, still considered the best adaptation measures. For example, in a recent case in

Thailand, the disaster experts and politicians proposed to construct a wall 80 km long,

300 m offshore and 3m higher than mean sea level to protect Bangkok and two

surrounding provinces. 324

It is claimed that such a wall would allow mangroves to

grow inside and slow down coastal erosion as well.

(g) London

The City of London Corporation’s climate adaptation strategy, the first of its kind by

a UK local authority identifies the priority risks associated with climate change and

proposes adaptation measures designed to ensure that the city’s infrastructure and

services cope under a changing climate. Various risks and opportunities identified in

the report include: managing flood risks, water resources, heat risks and air pollution,

ground conditions, identifying cross-cutting issues and opportunities.325

To manage flood risks, the report recommends the businesses to consider relocating

flood sensitive IP equipment and archives out of London to areas of negligible flood

322 See, for e.g., Bart Fokkens, 'The Dutch Strategy for Safety and River Flood Prevention' in 'Extreme

Hydrological Events: New Concepts for Security', NATO Science Series (Springer, 2007) vol 78, 337-352. 323 Hendriks and Buntsma, above n 321. 324 Louis Lebel et al, 'Adaptation to Climate Change and Social Justice: Challenges for Flood and Disaster

Management in Thailand' in Fulco Ludwig et al (eds), ‘Climate Change Adaptation in the Water Sector’

(Earthscan, 2009) 132.

325 Rising to the Challenge-The City of London Climate Change Adaptation Strategy. First Published May 2007.

Revised and Updated January 2010. http://www.cityoflondon.gov.uk/NR/rdonlyres/ECD1C5D2-A645-4D5F-

AD03-F9B17BC1D14C/0/SUS_AdaptationStrategyfinal_2010update.pdf.

http://www.cityoflondon.gov.uk/NR/rdonlyres/ECD1C5D2-A645-4D5F-AD03-F9B17BC1D14C/0/SUS_AdaptationStrategyfinal_2010update.pdf

http://www.cityoflondon.gov.uk/NR/rdonlyres/ECD1C5D2-A645-4D5F-AD03-F9B17BC1D14C/0/SUS_AdaptationStrategyfinal_2010update.pdf

129

risks and assets and equipment which are needed on-site, to be moved away from

locations such as basements to higher locations.

The report calls for examining a range of incentives to encourage sustainable drainage

systems and green roofs. To lead by example, the report recommends that the

Corporation should consider installing sustainable drainage systems, green roofs or

green walls on City of London Corporation-owned car parks and buildings when they

are refurbished or replaced.

For managing water resources, the report advises the corporation to investigate the

feasibility and cost of incorporating rainwater harvesting systems in its operational

properties, gardens and large open spaces where appropriate. It also recommends to

coordinate an awareness campaign for the businesses, property developers and people

for educating about conservation of water. The report calls for considering installing

drought-resistant landscaping schemes and ‘low water gardens’ in open spaces that

require minimal irrigation.

C Interim Conclusion

The implementation of adaptation measures is essentially a governance issue.

Adaptation measures involve various actions taken by people, individually as well as

collectively, often in their own interest, but the measures have much wider

implications both in space and time than to those directly involved. In such a

situation, governments have a role in steering society towards longer-term outcomes.

As seen, adapting to climate impacts is important. Though a great deal of uncertainty

is associated with predicting the specific impacts of climate change, especially at a

regional level such as the Ganga Basin, lessons can be learnt from ongoing adaptation

130

measures adopted in river basins around the world which will be beneficial for both

the people and the environment, irrespective of climate change.

In light of unavoidable extreme events such as flooding and droughts, people should

have insurance facility and legal recourse as well. It is highly likely and perhaps

inevitable that climate change litigation will increase in the coming years as the

impacts of a changing climate are felt worldwide. The following section discusses the

role of law and courts in addressing climate litigation.

III INTERNATIONAL AND NATIONAL CLIMATE ADJUDICATION

A Introduction

As the above discussion makes clear, the likelihood of international climate regime in

achieving significant mitigation or adaptation does not seem promising. Given the

urgency of the problem and complexity of the politico-legal solutions, many state and

non-state actors have begun to look beyond traditional international treaty

mechanisms for the solutions. This has strengthened the resolve of many citizens and

NGOs to take national action, including recourse to the courts when political

responses are inadequate. Though this does not remove the urgency for global action,

it has encouraged concerned individuals and organisations to take recourse to the

national legal framework to claim for the losses suffered and also to force action on

part of the respective governments.

This section discusses the important role law and courts can play in addressing

climate change as illustrated by case laws in various parts of the world related to

climate change.

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B Role of Law and Courts in Responding to Climate Change

Until recently, fossil fuel based energy resources were considered not only lawful but

also socially and economically desirable for continued growth. Responding to the

threat of climate change will require massive reductions in the emissions of

greenhouse gases and will be a challenge to conventional approaches to law making.

Co-operation at the international and intra-national levels will be necessary to develop

legal mechanisms to help swiftly transform current emitting practices.

In the near future, legal measures to climate change will come to affect every aspect

of life. Climatic consequences of ‘business as usual’ will be too severe to be ignored

and businesses will be required to cut back on their GHG emissions and promote

energy efficiency measures. Introduction of robust domestic legal responses will be

significant for implementation of emissions reduction measures.

An effective legal response to the problem of climate change will require the adoption

of a series of cohesive legal instruments and mechanisms, internationally and

nationally, that create legal rights and duties (regulatory response), penalise non-

compliance and other unlawful acts (liability response) and promote innovation to

minimise global greenhouse gas emissions (market response).326

Though the law is

just one part of the global response to the climate change, it is a critical part and its

importance in addressing climate change and related issues cannot be ignored. For an

effective solution to climate change, it is very important to reform the existing legal

frameworks and create an integrated legal response using a successful combination of

326 Nicola Durrant, 'Legal Responses to Climate Change' (The Federation Press, 2010) 3.

132

regulatory, liability and market mechanisms capable of promoting the changes

essential to achieving the rapid transition to a low carbon society.327

For climate change litigation, the key question for lawyers remains about the

‘reasonable foreseeability’ requirement for some causes of action. If the direction,

magnitude and pace of climate change are reasonably foreseeable, then a wide range

of potential liabilities may arise mainly in contract and tort in the common law.328

In contract, the knowledge of the parties at the time of making of contract is important

and can influence the court’s ability to assess risk and the question of liability.

However, once an event has occurred, such as the contamination of spinal anaesthetic

by seepage through microscopic cracks in glass ampoules in Roe v Minister of Health

[1954] 2 AII ER 131, then the occurrence of an event of that type must be treated as

reasonably foreseeable.329

In line with this, the impacts of climate change may also be

called reasonably foreseeable, and so at every stage of design and planning,

construction and beyond, it must be ensured that appropriate steps have been taking

climate change into account. An ability to demonstrate having considered climate

resilience measures at the outset can provide significant defences to claims that might

subsequently be made in respect of the advice given or decisions made.

As discussed earlier, some impacts of climate change are inevitable and so, some

level of adaptive behaviour is necessary for modern society even if we are successful

in meeting the most challenging of the IPCC stabilization scenarios.330

Also, the more

we delay, the worse the effects and the more draconian will be the adaptation

327 Ibid, 4. 328 Dowden, above n 300, 27. 329 Ibid. 330 IPCC, Climate Change 2007: The Synthesis Report: Summary for Policy Makers. Fourth Assessment Report of

the Intergovernmental Panel on Climate Change, 19.

133

measures. Increasingly, people are becoming aware of the changing environment but

very few have sufficient information about the most effective steps to take.

Unfortunately, many solutions to climate change lie beyond the capacity of individual

action and much depends on governments to lead; they have the most recent

information, the resources, the authority and the mandate to take collective action and

to protect people from exposure to impacts of climate change. It is the governments

who can put a price on carbon, take regulatory measures to promote the uptake of

renewal energy and stimulate alternatives to promote energy efficiency and they have

the capacity to respond to natural disasters.331

However, it is unfortunate that the

governments of most countries, in spite of acknowledging the seriousness of climate

change, are falling short of taking effective actions. In these circumstances, recourse

to law and legal institutions may be one of the viable options.

Law can play an important role in addressing the risks of climate change and

facilitating adaptation to climate impacts. The role of law in facilitating adaptation is

multifaceted and includes both anticipatory and reactive functions such as proactive

urban planning and development consent functions, access to affordable insurance,

emergency management planning, compensation programs and clear and

comprehensive regulatory frameworks to promote community resilience to the

impacts of climate change.332

Law confers rights and imposes obligations; provides

the architecture for regulating behaviour and activities, including the performance of

government functions; establishes the framework for public participation in

government decision making; and arbitrates and resolves disputes between the state

331 Helen Sykes (ed), Climate Change: On For Young and Old (Future Leaders, First ed, 2009). 332 Durrant, above n 326, 250.

134

and private individuals and between individuals.333

Law provides a basis for policies

aimed at changing behaviour to promote adaptation measures before impacts are

experienced and a framework for responding to losses and harm after the occurrence

of the event.334

Law can address climate change, using regulation to reduce exposure or sensitivity to

climate hazards, establishing the legal architecture for new market mechanisms,

funding arrangements for adaptation costs and liability for climate impacts, ensuring

the accountability of adaptation decision making and addressing some of the social

justice dimensions of adaptation.335

Yet there are also characteristics of legal

institutions, processes, and principles that may impede adaptation, such as by creating

compensable property rights that hinder new regulation. In addition, the high levels of

uncertainty, irreversibility, inability to predict specific impacts, the time gap between

emissions and their impacts, and the interaction between climate change impacts and

other environmental, social, and economic stressors may limit the applicability of law

to climate cases.336

Legal institutions such as courts have no direct role in addressing climate change or

promoting adaptation to it. Courts are not legislative rule makers or general

administrative policy makers. Any role courts may play in responding to climate

change related issues have to be indirect and as a consequence of exercising functions

333 Jan McDonald, 'The Role of Law in Adapting to Climate Change' (March/April 2011) 2(2) Wiley

Interdisciplinary Reviews. Climate Change 283. 334 Ibid. 335 Ibid. 336 Ibid.

135

vested in them to adjudicate disputes before them, with different disputes involving

different functions.337

At the international level, both the United Nations Framework Convention on Climate

Change (UNFCCC) and the Kyoto Protocol are silent on the allocation of

responsibility for damage caused due to anthropogenic greenhouse gas emissions, and

so reparation of harm must be addressed through existing international law principles.

At the national level in India, the absence of specific legislation addressing emissions

of GHGs and the allocation of responsibility for the emissions present a challenge for

the courts in responding to climate change. In this context, courts are likely to

experience an increased number of claims in the torts of negligence and nuisance as a

result of rising greenhouse gas emissions and related harms to the people and their

properties. In an Indian context the courts may be able to apply the constitutional

provisions as it provides the right to life which will be threatened by the impending

climate change. This is discussed in the next chapter in relation to the two discussed

scenarios in the Ganga Basin.

With the disastrous implications of climate change becoming increasingly evident,

more and more instances of cases being filed with the local, national and/or

international court are coming into picture which represent complexity of climate

change litigation. Some of the cases are discussed below.

337 Brian J Preston, 'The Role of Courts in Relation to Adaptation to Climate Change' in Tim Bonyhady, Andrew

Macintosh and Jan McDonald (eds), Adaptation to Climate Change: Law and Policy (The Federation Press,

2010) 157.

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C International and National Climate Change Case Laws

1 International Actions

(a) Inuit Petition

The rapid pace of climate change in the Arctic is posing great challenge to the Inuit

people. A petition filed on behalf of the Inuit in the US and Canada with the Inter-

American Commission on Human Rights in December 2005 claimed that their human

rights are violated due to climate change policies of the United States.338

The petition

truly represents the complexity and multi-dimensional nature of climate change

litigations. The petitioners are simultaneous citizens of particular nation-states, the US

and Canada, as of members of indigenous nations within those nation states. The

respondent is the United States, and the petition is filed with the Inter-American

Commission on Human Rights-a regional human rights body established by the

Organization of American States (OAS).

The petition alleged that climate change threatened the lives, culture and the economy

of the Inuit and constituted human rights violations under the American Declaration

of the Rights and Duties of Man, as well as other human rights instruments. The

petition was rejected after a year on the ground that the information provided was not

sufficient to determine whether the alleged facts tended to characterise a violation

under the Declaration. A subsequent hearing held upon request of the petitioners on

the general connection between climate change and human rights in March 2007 was

338 Inuit Circumpolar Conference v. USA, Inter-American Commission on Human Rights (IACHR), Petition to the

Inter-American Commission on Human Rights Seeking Relief From Violations Resulting from Global

Warming Caused by Acts and Omissions of the United States, Submitted by Sheila Watt-Cloutier, With the

Support of the Inuit Circumpolar Conference, On Behalf of all Inuit of the Arctic regions of the United States

and Canada, 7 December 2005.

137

also rejected. However, the arguments brought in this case continue to be frequently

discussed in other potential climate change cases and in academic discussion. 339

(b) World Heritage Committee Petitions

Several UNESCO petitions were filed with the World Heritage Committee requesting

for listing World Heritage Sites in Australia, Belize, Peru, Canada and the United

States on the “List of World Heritage in Danger” under the World Heritage

Convention on the grounds that they were threatened by climate change.340

Although

the Committee did not decide to list the sites, it adopted a “Strategy to Assist State

Parties to Implement Appropriate Management Responses” to climate change.341

These petitions are not directed against those responsible for emissions, but they play

a part in acknowledging the actual effects of scientifically predicted climate change

and indirectly allocate responsibility to the concerned states and actors to take action.

2 Local and National Actions

(a) Australia

Most of the prominent climate change litigation in Australia is related to GHG

emissions from coal mining projects. Australia relies heavily on coal for export as

well as domestic energy production. Due to its reliance on coal, Australia’s GHG

emissions per capita are the highest in the world.342

339 See, A. Sinden, 'Climate Change and Human Rights' (2007) 27 Land Resources & Environmental Law 255. 340 See the following UNESCO petitions: in Australia for the protection of the Blue Mountains and the Great

Barrier Reef, in Belize for the Barrier Reef, in Nepal for the Sagarmatha National Park and in Peru for the

Huascara National Park, and finally for the protection of the Waterton-Glacier Peace Park,

<http://portal.unesco.org/en>. 341 Available at <whc.unesco.org/uploads/news/documents/news-262-2.doc>. 342 Kevin Baumert and Jonathan Pershing, Climate Data: Insights and Observations (2004) Pew Centre on Global

Climate Change.

138

(i) Australian Conservation Foundation v Minister for Planning

The Hazelwood coal-fired station, one of Australia’s largest producers of GHGs was

due to run out of coal in 2009. The owner of the plant applied for developing an

alternative coal field, known as the West Field, to prolong the plant’s operation until

2031. A panel was set up to consider the proposal under the Planning and

Environment Act 1987 (Vic). On the instruction from the Minister, the panel did not

consider matters related to greenhouse gas emissions from the Hazelwood power

station. An action was brought by environmental groups in the Victorian Civil and

Administrative Tribunal alleging that the environment impact statement assessed the

greenhouse gas emissions only from direct mining of coal and failed to consider

potential greenhouse gas emissions from the burning of coal from the West Field

mine used in generation of electricity after 2009. It was alleged that the reviewing

panel’s failure to consider it violated the Victorian Planning and Environment Act

1987. The Tribunal held that the panel should consider an assessment of the

greenhouse gases that would result from the burning of coal in the associated

Hazelwood Power Station.343

(ii) Gray v The Minister for Planning and Ors (the Anvil hill case)

In another important climate change case, in November 2006, the New South Wales

Land and Environment Court invalidated the state government’s acceptance of an

environmental assessment for a new coal mine- the Anvil Hill project- because the

government failed to consider greenhouse gas emissions from burning of coal after

mining.344

It was held that the environmental assessment had omitted to assess the full

343 Australian Conservation Found. v. Minister for Planning, [2004] VCAT 2029 (October 29, 2004). 344 Gray v. The Minister for Planning, Director-General of the Department of Planning and Centennial Hunter Pty

Ltd, [2006] NSWLEC 720; See Anne Davies, 'Landmark Climate Change Ruling Puts Heat on Industry',

Sydney Morning Herald 28 November 2006.

139

impact of greenhouse gas emissions resulting from the project. Although emissions

arising directly from the project and from its electricity use were assessed in detail,

the indirect impacts of burning of coal by third parties (both locally and globally) was

held to be insufficient.

An extensive judgment applied two common environmental law concepts in the

context of New South Wales Environmental Planning and Assessment Act 1979:

inter-generational equity, to require assessment of cumulative impacts; and

the precautionary principle, to shift the burden of proof.

It was held that the greenhouse gas impacts of burning coal must be taken into

account in the environmental impact assessment of new coal mines.345

(iii)Wildlife Preservation Society of Qld v. Minister for Environment and Heritage

In this case, the applicant unsuccessfully sought judicial review of two decisions by

the Federal Minister for Environment and Heritage for failure to take into account the

environmental effects of greenhouse gas emissions when approving the construction

of two new coal mines. 346

It was alleged that the Minister’s failure violated the

Environment Protection and Biodiversity Conservation Act 1999 (Commonwealth)

which prohibits any action which have, or are likely to have, adverse environmental

impacts unless approved by the Minister as being “controlled actions”. In deciding

whether an action is a controlled action, the Minister must consider the impacts the

action will have, or will likely to have, on a “protected matter”. The applicant claimed

that the emission of GHG from coal mines will lead to global warming, which in turn

345 Ibid, 127-135. 346 Wildlife Preservation Society of Queensland Proserpine/ Whitsunday Branch Inc v. Minister for Environment

and Heritage & Ors, Federal Court of Australia, 22 July 2005, [2006] FCA 736.

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will have adverse effects on protected matters including the Great Barrier Reef World

Heritage Area and that the Minister failed to consider these adverse impacts arising

from mining, transport and use of coal from mines. The Court dismissed these claims

and held that the Minister considered the possibility of climate change due to GHG

emissions and the consequential impacts upon protected matters and concluded them

to be insignificant.

The applicant also sought to rely upon the precautionary principle of ecologically

sustainable development (ESD) that provides that lack of scientific certainty should

not be used for postponing measures to environmental degradation. However, the

court held that it was not clear whether the projects would cause serious or

irreversible damage to the environment in view of the fact that the Minister had

decided that there would be no likely significant impact.

These cases signify the importance of scientific evidence in establishing causation and

the evidentiary hurdles being faced by the environmental litigants.347

(iv) Thornton v Adelaide Hills Council

The residents of the township of Forreston in South Australia appealed against a

decision of the Adelaide Hills Council to issue a development consent for the

construction of a shed which would house a 4 megawatt capacity coal-fired boiler and

associated bunded concrete pad or “bunker” for coal storage. 348

The appellants were

concerned about the adverse environmental impacts of the operation of the coal-fired

boiler, in particular the pollution of water catchment areas, emissions from the stack

and the release of greenhouse gases into the atmosphere. The Environment, Resources

347 See Dr Joseph Smith and Professor David Shearman, Climate Change Litigation: Analysing the Law, Scientific

Evidence & Impacts on the Environment, Health & Property (Presidian Legal Publications, 2006) 61. 348 Thornton v Adelaide Hills Council, (2006) 151 LGERA 1.

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and Development Court of SA held that the principles of ESD should be taken into

account by a relevant authority when assessing a proposed development and that

councils are under an obligation to facilitate development that is sustainable. The

court recognised that the combustion of fossil fuels is the greatest source of

greenhouse gases, particularly carbon dioxide, and that the consequences of global

warming are already visible. The court stated that increasing the emission of

greenhouse gases is not consistent with the principles of ESD. However, as the

appellants failed to make any real attempt to provide the court with evidence of the

likely increase in greenhouse gas emissions caused by the proposed development

compared with the existing operation, the court declined to reject the proposal.

(b) United States

(i) Massachusetts v. EPA349

In a ground breaking case in climate change litigation, in 1999 a coalition of

environmental groups, states, and cities brought this case challenging the U.S.

Environmental Protection Agency's decision not to regulate greenhouse gas emissions

by motor vehicles. The key clause in the Clean Air Act is 202(a)(1), which states "The

Administrator shall by regulation prescribe... standards applicable to the emission of

any air pollutant from any class or classes of new motor vehicles or new motor

vehicle engines, which in his judgment cause, or contribute to, air pollution which

may reasonably be anticipated to endanger public health or welfare." The petitioners

requested the EPA to take regulatory action under § 202 (a) to perform its mandatory

duty to regulate the emissions of carbon dioxide (CO2) and other greenhouse gases

349 Massachusetts v. EPA, 549 U.S. 497 (2007).

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describing them as pollutants. It was claimed that under the Act, actual harm is not

required as a precautionary decision can be made.

Four years later, the EPA denied the petition stating that it lacked statutory authority

under the Clean Air Act to regulate carbon dioxide and other greenhouse gases

(GHGs) for climate change purposes and that greenhouse gas emissions are not air

pollutants under the regulatory provisions of the Act, and that even if it had such

authority, it would decline to exercise it.

A petition for review of the EPA petition was made in the US Court of appeals for the

District of Columbia Circuit which decided on September 13, 2005, to uphold the

decision of the EPA. The court held that the EPA was within its discretion not to

impose mandatory limits on greenhouse gas emissions from new motor vehicles.

However, on appeal, the US Supreme Court held for the plaintiffs and ruled that

carbon dioxide is an air pollutant under the Clean Air Act. Reversing the circuit court

decision, the Supreme Court held that the EPA possessed authority to regulate such

emissions and had failed to provide a “reasoned explanation” for its conclusion that it

would not regulate such emissions even if it possessed the authority to do so. In short,

the EPA has offered no reasoned explanation for refusing to decide whether

greenhouse gases cause or contribute to climate change and therefore, its action was

“arbitrary, capricious,... or otherwise not in accordance with law”.350

350 42 USC §7607 (d)(9)(A).

http://www.supremecourtus.gov/opinions/06pdf/05-1120.pdf

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(ii) People of the State of California v General Motors Corporation and Ors

In this case, the State of California sought damages against various automakers for

creating and contributing to an alleged public nuisance – global warming. 351

The

District Court determined it lacked the jurisdiction to hear the matter and that the

issues raised were ‘political questions’ which were not issues that the Court could, or

should, resolve at that time.352

(iii)Friends of the Earth, Inc v. Watson

In 2002, Friends of the Earth, Greenpeace and the City of Boulder and Colorado

brought proceedings against two US Government agencies, the Export-Import Bank

(Ex-Im) and the Overseas Private Investment Corporation, alleging that they had

supplied over $32 billion in financing and insurance over the preceding 10 years for

their fossil fuel based projects around the globe including oil fields, pipelines and

coal-fired power plants without complying with the National Environmental Policy

Act (1969) (NEPA). The plaintiffs submitted evidence that the projects funded by the

defendants accounted for about one-third of the total US carbon emissions and nearly

eight percent of the world’s CO2 emissions.

The court accepted that the plaintiff had legal right to bring an action against the

defendants as the global warming as a result of the projects being funded by the

defendants could have an impact on US cities as well. 353

The defendants moved a motion for summary judgement which was denied by the

court in 2005. The defendants claimed the plaintiffs lacked standing to bring the case

351 People of the State of California v General Motors Corporation et al 2007 (Case No. C06-05755 MJJ, 2007,

United States District Court for the Northern District of California) at 1.

352 Ibid, 11-12.

353 Friends of the Earth, Inc v. Watson, 2005 U.S. Dist. LEXIS 42335 (2005).

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as under Article III of US Constitution, to support standing, plaintiff needs to show:

firstly, injury in fact; secondly, causation (i.e. a causal connection between the injury

and the act complained of); and, thirdly, redressability ( i.e. that the injury will be

redressed if decision is granted in their favour).

The defendants argued that the injuries claimed varied widely in nature and that it was

not clear how human-induced climate change would affect the climate. They further

argued that this lack of clarity regarding emission impacts implied that the petitioner

could not establish causal link between the projects and the injury. The plaintiffs

rejected these arguments and claimed that they only needed to show a “reasonable

concern” of harm and a “reasonable probability” that the defendants’ actions

contributed to it. The question of standing of the plaintiffs was rejected by the court

and it was held that the plaintiffs only needed to show reasonable probability of the

challenged actions to be a threat to their concrete interest.

The defendants argued that the plaintiffs are required to direct the suit against some

particular agency rather than an entire program of the agency and that they were not

performing agency actions. The court rejected this argument and concluded that the

agencies’ decisions to pursue the overseas projects constituted final agency actions.

It was also argued that the OPIC was exempt from judicial review as the plain

language of its organic statute showed that Congress had chosen to exempt it from

such review of compliance with various statutory obligations. The defendants also

contended that Congress had decided not to apply the NEPA to OPIC. However, the

court rejected both these arguments.354

Though the settlement agreement is subject to

354 See Settlement agreement to the case Friends of the Earth, Inc., et al. V. Spinelli, et al. (Civ. No. 02-4106, N.D.

Cal.), 6 February 2009.

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judicial approval, OPIC and Ex-Im have agreed to implement NEPA’s evaluation

requirements for at least some of the projects the agencies fund.

This lawsuit represents a significant victory for the environmentalists as for the first

time a US federal court granted standing to plaintiffs seeking judicial review of an

alleged failure by government agencies to evaluate impacts of their activities on

global warming.

(iv) Comer v Murphy Oil

In this case, the claimants brought nuisance action against several oil and insurance

companies seeking compensation against damage to their property caused by

Hurricane Katrina. 355

The plaintiffs alleged that defendants’ operation of energy,

fossil fuels and chemical industries caused the emission of greenhouse gases and

contributed to global warming, which in turn caused sea levels to rise and added to the

ferocity of the Hurricane and destroyed their property. The Southern Division District

Court of Mississippi held that the plaintiffs failed to meet the required standing

threshold and additionally that their claims were non-justiciable political questions.

The plaintiffs appealed the decision to the Fifth Circuit where the District Court’s

finding was reversed.356

In 2010, the Court granted an order for a rehearing of that

decision before a larger panel of judges on the Fifth Circuit. On 28 May 2010, the US

Court of Appeals for the Fifth Circuit dismissed the case, not on the merits of the

case, but based on the procedural rules of appellate law. This largely means that the

original decision of the three-judge panel would stand as the decision in the appeal.

355 No. 05-CV-436LG (S.D. Miss. Aug. 30, 2007). 356 Comer at al v Murphy Oil USA, et al. (5th Circuit, 07-60756)

<http://www.ca5.uscourts.gov/opinions/pub/07/07-60756-CV0.wpd.pdf>.

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(v) Native Village of Kivalina v ExxonMobil Corp

In another similar case, an action was commenced for damages by the Native Village

of Kivalina, Alaska, affected by climate change against 19 oil companies for their

contribution to the nuisance of global warming.357

In this lawsuit, the villagers alleged

that global warming caused the melting of Arctic sea ice which formerly protected the

village from winter storms, and that the increased pace of the melting ice has caused

erosion. The case was dismissed by the District Court on grounds of standing and

non-justiciability of the issues.358

(vi) Connecticut v American Electric Power, Inc

This case was brought by eight US states, the city of New York and three land trusts

against five large carbon dioxide emitters, under public and private nuisance.359

The

complaint alleged that these utilities together emit 650 million tones of carbon

dioxide, which is “approximately ten percent of all anthropogenic caron dioxide

emissions in the United States.”360

The plaintiffs did not seek monetary damage but

sought for injunctions requiring the defendants to cap their carbon dioxide emissions

and reduce them to a specified percentage for at least a decade. In 2005, the US

District Court for the Southern District of New York dismissed the case on the basis

of non-justiciable political questions to be addressed by political branches. It was

appealed and the US Court of Appeal concluded that the district court erred in finding

that these claims presented non-justiciable political questions.

357 Native Village of Kivalina v ExxonMobil Corp, 28 USC 1331 at 2201 (filed 26 February 2008). Available at

<http://www.globalclimatelaw.com/uploads/file/Kivalina%20Complaint.pdf>. 358 Native Village of Kivalina v ExxonMobil Corp (08-01138). 359 State of Connecticut et al v American Electric Power Company et al 406 F Supp 2d, 265. 360 Ibid, 26.

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(c) Germany

(i) Germanwatch and Friends of the Earth Germany (BUND) v. German Federal

Ministry of Economics and Labour

In June 2004, a legal action was launched by German Watch, a German

environmental group and BUND (Friends of the Earth Germany) against the German

Federal Ministry of Economics and Labour, in the Administrative Court in Berlin to

disclose information regarding contribution to greenhouse gas emissions made by

projects funded by the German export credit agency (Hermes).361

Hermes is one of the

leading agencies that provides funding for energy, mining and transport projects

around the world on behalf of the German taxpayer. Hermes and the concerned

ministries had refused an information request made previously in 2003.

In January 2006, in an important judgment, the Berlin Administrative Court rejected

both arguments of the German government, first, that its export credit activities were

not subject to European environmental information laws; and second, that these

credits did not affect climate change and the environment. 362

The environmental

groups’ request for details of energy production projects supported by the German

Government was upheld.

(ii) German Watch launches compliant against Volkawagen

In 2007, the NGO German Watch brought an action against Volkswagen with the

Federal Ministry of Economics accusing the company of violating the OECD

Guidelines for Multinational Enterprises by contravening principles of global

361 Germanwatch and Friends of the Earth Germany (BUND) v. German Federal Ministry of Economics and

Labour, Administrative Court Berlin (VerwG Berlin), Judgment of 15 June 2004. 362 See Bund fur Umwelt und Naturschutz Deutschland e.v. (BUND) (German section of NGO Friends of the

Earth) and Germanwatch e.v. v. Federal Republic of Germany represented by the Minister of Economy and

Labour (BMWA) 2006, VG 10A 215.04, Administrative Court Berlin (Verwaltungsgericht) (10 January

2006).

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sustainable development.363

The Guidelines seek to establish corporate responsibility

to co-operate with others in the field of environmental and climate protection, and

provide detailed instructions for the company. However, the German Ministry of

Economics dismissed the complaint.

(d) Nigeria

(i) Gbemre v. Shell Petroleum Development

Nigerian citizens living near oil production facilities that flare off natural gas filed a

lawsuit against Royal Dutch Shell and other companies engaged in the practice.364

The plaintiffs claimed that the gas flaring contributes to release of substantial amounts

of greenhouse gases365

and also produces numerous toxic gases that endanger human

health and so, violates their constitutional rights to life and dignity. The Federal High

Court found for the plaintiffs and concluded that the defendants’ act constituted gross

violation of the fundamental rights to life (including healthy environment) and dignity

of the plaintiffs under the Nigerian Constitution. Defendants were also restrained from

further flaring of gas in the plaintiff’s community.

In April 2006, after the filing of contempt of court proceedings against Shell, the

company was granted a "conditional stay of execution", releasing it from the duty to

comply with a court order in November 2005 to stop flaring, on three conditions.

However, Shell has appealed against the ruling arguing that the court is not competent

363 Germanwatch, 'Complaint against Volkswagen AG under the OECD Guidelines for Multilateral Enterprises

(2000), ' (Submitted May 7, 2007); See also, Cornelia Heydenreich, Gunda Züllich and Christoph Bals,

'Germanwatch Raises Complaint Against Volkswagen, German Watch Briefing Paper ' (2007). 364 Jonah Gbemre, representing the Iwherekan Community in Delta State, Nigeria v. Shell Petroleum Development

Company et al., Nigeria Ltd, Nigerian National Petroleum Corporation and the Attorney General of the

Federation, Suit No. FHC/CS/B/153/2005, Order of the Federal High Court of Nigeria, Benin Judicial

Division, 14 November 2005. 365 Friends of the Earth, Shell Fails to Obey Court Order to Stop Nigeria Flaring, Again (Media Advisory, May 2,

2007) <http://www.foei.org/en/media/archive/2007/0502>.

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to try the case. Though the oil companies refused to abide by the court order, the case

reflects a successful attempt on behalf of individual victims to force the regulations of

emissions via judiciary.

(e) Canada

In the first climate change lawsuit in Canada, Friends of the Earth Canada filed a

lawsuit in 2007 before the Canadian Federal Court of Appeal that the federal

government is in violation of a Kyoto Protocol Implementation Act (KPIA) that

requires Canada to take strong action to meet binding international commitments to

fight climate change. The lawsuit was an application for judicial review and alleges

that the government’s failure to effectively regulate greenhouse gases is likely to

violate the United Nations Framework Convention on Climate Change, UNFCCC,

and its Kyoto Protocol. It further alleges that this violation of international law

contravenes section 166 of the Canadian Environmental Protection Act 1999, which

states that Canada must abide by its international agreements in preventing

pollution.366

The issue was on appeal after a lower Canadian federal court held that KPIA itself

was not justiciable, i.e. it was not an issue that the courts could resolve. The court held

that Parliament should resolve the issue. This lawsuit was filed less than a month

before the Government of Canada indicated its intention to quit participating in the

Kyoto Protocol when it expires in 2012.367

366 See, Environmental News Service, Canada Sued for Abandoning Kyoto Climate Commitment (May 29, 2007)

<http://www.ecojustice.ca/media-centre/press-clips/canada-sued-for-abandoning-kyoto-climate-commitment> 367 See, Friends of the Earth, Environmental Groups Challenge Federal Government on Failure to Act on Climate

Law (Media Release, October 15, 2009)

<http://www.foecanada.org/index.php?option=content&task=view&id=398&Itemid=2>

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(f) New Zealand

(i) Genesis Power Ltd. V. Franklin District Council

On 7 September 2005, the New Zealand Environment Court allowed an appeal

brought by the Energy Efficiency and Conservation Authority against the refusal of

permission to build a wind farm, under the Resource Management Act 1991. The

court cited reduction of emissions of greenhouse gases and climate change as factors

supporting the case and rejected the argument that, because the wind farm was a

relatively small one (63 MW), its climate benefits were not relevant. The project was

subsequently approved. 368

D Interim Conclusion

Climate litigation around the world play an important part in building people

awareness and giving people, suffering from climate change impacts, an avenue for

redress. A number of cases related to climate change and GHG emissions are being

fought in courts in various countries as public awareness about climate change is

growing faster in recent decades. This is driven, to some extent, by increasing

scientific evidence about climate change and the real impacts affecting real people.

More than actual winning or losing the suits, the simple process of filing such cases

itself is important, as part of the response to government failure and the leadership of

civil society in this area. Importantly, it has forced the inclusion of climate impacts in

decision-making, improved information, transparency and processes (such as EIA) in

some jurisdictions.

368 See, Genesis Power Ltd. V Franklin Dist. Council, Decision No. A 148/2005,

<http://www.mfe.govt.nz/rma/central/nps/hearing-proceeding/49-6-genesis-awhitu-decision-extract.pdf>

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Climate change, unlike other international environmental problems, involves

complexities of science of global ecology. Often, the injuries suffered differ in

geographic and temporal distance and present new challenges to the courts. This

forces climate advocates to innovate new strategies and push for progressive

development of laws and related institutions. Judicial remedies, may be inadequate to

the full dimensions of the action required for climate change but it is a legitimate

avenue of recourse.

These climate policy debates have focussed primarily on global issues such as average

temperature increase, average sea-level rise and average change in precipitation.

Climate litigation helps in shifting the focus to the localised impacts of climate

change, such as the melting glaciers affecting a particular area or rising sea-level

affecting people living on the coast. This focus on specific injuries helps in linking

climate change with the lives of ordinary people. Climate change affects real people,

typically those already marginalised, and they suffer real losses for acts done by

others. Losses are individual and collective. The increase of a few degrees in

temperature does not necessarily grab attention of people but seeing the impacts of

climate change before them, like suffering of the Inuit due to melting Arctic ice and

rising seas engulfing people’s land makes climate change more tangible. Climate

change litigation also influences the political will for stronger international co-

operation to address this urgent issue, as seen in case of Canada, where the Canadian

environmental group filed a lawsuit asking the courts to declare Canada in non-

compliance with the UNFCCC and the Kyoto Protocol.

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IV CONCLUSION

In spite of some success, international law continues to be plagued by the blame game

played by the developed and the developing countries about responsibility for historic

emissions and the right to development using cheap carbon based fossil fuels. In the

meantime, greenhouse gas emissions in the atmosphere keep on rising due to

continued failure of obligations to reduce them under the international law. Even

though current obligations are modest, which even if completely fulfilled, will still

result in significant climatic consequences, the world community seems to be

unwilling to compromise with their economic development.

It is widely understood now that mitigating GHG emissions alone won’t be sufficient

and adaptation measures will also need to be significant to combat climate change

impacts. Some adaptation measures are already in practice in the water sector and

offer an opportunity to learn from them and consider their efficiency to reduce the

risks of climate change.

Due to the inadequacy of international and legal regimes to provide a satisfactory

response in curbing climate change, activists and NGOs are resorting to courts to

address climate change. The courts serve as an important avenue to redress climate

change, though it can be argued that going to courts is not the answer, as legal

proceedings are often time consuming and unaffordable. Nonetheless, legal actions

serve an important purpose of pressuring the corporate leaders and the government to

incorporate measures for sustainable development in their decisions and ease pressure

on the natural resources of the Earth.

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In Indian context, because of the active interest taken by the Indian Supreme Court in

protection of people’s right and environment and despite the fact that it has not yet

dealt directly with any climate change litigation, it could be expected to play an

important role in adjudicating and addressing the issues arising due to climate change.

Courts usually consider lawsuits in other jurisdictions and derive lessons from them.

The Indian Supreme Court may utilize the experience drawn from climate litigation

internationally and with suitable modification, may apply them to the scenarios A and

B in the Ganga Basin if they become the subject of actual litigation.

The bold attitude shown by the Supreme Court in environmental matters have made a

remarkable difference in the quality of life of the people and forced the government to

adopt more compliant and proactive approach in its policies. The following chapter

discusses the environmental and climate legal framework in India and discusses the

important role played by the Supreme Court in various environmental cases.

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CHAPTER 5

CLIMATE CHANGE AND THE ENVIRONMENTAL LEGAL AND

INSTITUTIONAL FRAMEWORKS IN INDIA

India is one of the most vulnerable countries to the impacts of climate change. It is

already suffering from degradation of its environmental conditions due to pressure on

its natural resources because of growing population and demand for a higher standard

of living for its people. Climate change poses the most serious environmental

challenge to the country including its water resources. The government has enacted a

number of laws and policies for the protection and conservation of the environment.

However, in the past, the environmental legislation and the enforcement agencies

suffered from many drawbacks and implementation issues, and it required

interventions from the Supreme Court on many occasions for protection of the

environment and people’s rights.

The Supreme Court exhibited remarkable interest and activism in coming to the

rescue of the breach of people’s rights due to degrading environmental conditions. It

adopted many principles and doctrines for protection and conservation of the

environment and made itself more accessible to the people of India by adopting

various innovative remedies and strategies.

In the event of the two prospective scenarios for the Ganga Basin, identified in

chapter 3, the Supreme Court could be expected to play an important role in

addressing the impacts of climate change and related disputes. It may also be able to

provide the requirements or advice to governments and agencies to prompt them to

consider adopting adaptation strategies in the Ganga Basin.

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To appreciate the role of the Supreme Court in such a situation, it is important to

understand the effectiveness of the present climate and environmental legal

framework in India and the constitutional framework in which the Supreme Court

operates. This is discussed in this chapter, which is divided into four parts. Part one

and two address research questions six and seven through examining the nature of

India’s legal system and the current Indian policies, constitutional provisions, and

laws and institutions related to climate change and environment and their adequacy to

respond to climate change in India. They also discuss the role played by the Supreme

Court within the constitutional framework in India. Part three discusses research

question eight by looking at various landmark environmental cases in the Supreme

Court and the principles and doctrines developed therein, and which have helped in

the development of rich environmental jurisprudence in the country. Part four

concludes the chapter.

I INDIAN FEDERALISM AND ENVIRONMENTAL LAW

A Division of Authority under the Constitution

India gained independence from the British rule after decades of social and political

turmoil. The Constitution was drafted by the Constituent Assembly in the period

leading up to independence and during the initial years of an independent India. It

spent two years, 11 months and 18 days to frame the Constitution and adopted the

draft on 26 November 1949 but the Constitution came into force on 26 January 1950.

The Constitution of India is the lengthiest369

constitution in the world. It is a unique

blend of constitutional experience of many nations. It is the highest law of the land,

supreme among all other laws, including the acts of legislature. Article 368 provides

369 Originally consisted of 395 Articles and 9 Schedules and its text covered 254 pages.

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that the Parliament cannot amend it by ordinary legislation and has to follow difficult

amending process of constitutional character. The Constitution establishes a federal

government combining elements of the British parliamentary and U.S. constitutional

models. It is a federal Constitution with a unitary bias. It establishes a ‘union’ of

states with a strong central government. The Indian Constitution is marked by the

traditional characteristics of a federal system, namely supremacy of the Constitution,

division of power between the Union and State, and the existence of an independent

judiciary. The three organs of the State – State, Legislature and Judiciary – have to

function within their own spheres demarcated under the Constitution.

The Constitution gives a detailed description of the structure of government. The

central government consists of a Parliament which performs the legislative function,

(Constitution of India, Articles 79-88), a Prime Minister who performs the executive

function in consultation with a Council of Ministers. The Constitution provides for a

President, who is a nominal head of the government but does not carry out the

executive functions, and a judiciary which performs the judicial function for both the

national and state governments. (Constitution of India, Articles 124-147). The Indian

states' governments are structured much like its national government (Constitution of

India, Part VI).

The Constitution, modelled on the United States Constitution’s Bill of Rights,

provides for the “fundamental rights” provisions to the people (in Part III). Some of

the protections provided are the Right to Equality, the Right to Freedom, the Right

against exploitation, the Right to Freedom of Religion, the Cultural and Educational

rights, and the Right to Constitutional Remedies. A number of these rights established

by the Constitution have acquired implications for climate and other environmental

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policy issues. While the Constitution guarantees its citizens fundamental rights, they

are not necessarily unlimited. They are subject to constitutional amendments, for

instance, the right to property originally included as a fundamental right was removed

from Part III and reconstituted as a general right under Article 300 A.370

Further, the

government has authority to suspend these rights during an emergency, including the

right to judicial review, but the power is subject to reasonable substantive and

procedural safeguards.

Most importantly, Article 21 of the Constitution provides: ‘No person shall be

deprived of his life or personal liberty except according to procedure established by

law’. The Supreme Court has liberally interpreted this article and has included many

ancillary rights in it, such as rights to livelihood,371

health,372

basic necessities,373

travel abroad374

and privacy.375

The Supreme Court relied on directive principles (non

binding provisions of the Constitution), various non-Indian courts’ decisions and on

international laws and principles to imply all these rights under the Article 21. Above

all, the Supreme Court has extended right to life to include right to a healthy

environment, clean air and clean water. Thus, Article 21extends beyond mere survival

and includes poverty alleviation, higher standards of living and rights relating to

environmental quality.

One of the other distinctive features of the Indian Constitution is the inclusion of

“Directive Principles of State Policy”. Though they are non judiciable, they are

fundamental to the governance of the country. They articulate the socio-economic

370 Inserted by the Constitution (Forty-fourth Amendment) Act 1978. 371 Hoskot v. State of Maharashtra, A.I.R. 1978 S.C. 1533. 372 Bandhua Mukti Morcha v. India, A.I.R. 1984 S.C. 802. 373 Olga Tellis v. Bombay Municipal Corporation, A.I.R. 1985 S.C. 180 374 Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597. 375 Kharak Singh v. State of U.P., A.I.R. 1963 S.C. 1295.

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responsibility of the state towards its citizens by securing for all citizens just and

humane conditions of work and maternity relief, compulsory education for all

children up to age of fourteen, free legal services to all indigent persons and

establishment of sound international relations (Article 36-51).

The Constitution provides for a three-tier integrated system of judiciary with the

Supreme Court (SC) at the highest level, High Courts (HC) as head of judiciary in

each state, though some states have common High Courts, and district level courts.

The Supreme Court has limited original jurisdiction in case of disputes between the

central government and one or more states, and between various states. It has

appellate jurisdiction in case of appeals from High Courts in certain cases and

advisory jurisdiction at the behest of the President. In addition, the Supreme Court has

extensive writ jurisdiction powers when fundamental rights are at issue. The Supreme

Court is the interpreter of the Constitution and the law as declared by it is binding on

all courts within the country. The High Courts are the intermediate appellate courts in

the system and they also have writ jurisdiction. However, their jurisdiction is not

limited to fundamental rights only but extends to other legal rights as well. Though

India has a federal system of government, the court system is integrated and there is

no bifurcation between central and state judiciary, which work as an integrated

system.

The Constitution sets forth detailed lists enumerating the areas of legislative

jurisdiction of the union (List I- Union List) and the state (List II- State List), as well

as areas of concurrent jurisdiction (List-III Concurrent List).376

The union list gives

Parliament the exclusive jurisdiction over 97 topics including foreign affairs, defence

376 These three lists are set out in the Seventh Schedule of the Indian Constitution. Constitution of India Art. 246.

159

and interstate rivers. The state list gives state governments exclusive power over

certain areas including public health and sanitation, water supplies and irrigation.

Both the union and state governments have power to make laws on matters

enumerated in the concurrent list which provides for forests, protection of wild

animals and birds, and population control and family planning. A union law regarding

a concurrent subject generally prevails over a state law on the same subject.

B Struggle Between the Parliament and the Supreme Court

Though the Constitution provides for clear bifurcation of powers and no organ of

State is expected to encroach upon the powers of another, yet over the years the

Parliament as the legislator and the Supreme Court as the final interpreter of

Constitution have been engaged in a struggle to keep a check on each other. 377

During the first two decades of independence, the struggle between the courts and

Parliament largely took place over issues of economic and social change. During this

period the executive and the legislature tried to find ways to circumvent judicial

rulings with which they disagreed, resulting in weakening of judiciary.378

The period

between 1967 and 1977 was particularly difficult for the Supreme Court as it tried to

exert its authority but was suppressed. The Parliament generally resorted to its

familiar tool of amendment to the Constitution to suppress the Court.

The Supreme Court is armed with two important provisions of the Constitution which

ensure compliance with constitutional norms by providing for judicial supervision of

political actions. First, Article 13 (2) provides: ‘The State shall not make any laws

377 Nick Robinson, 'Expanding Judiciaries: India and the Rise of the Good Governance Court' (2009) 8(1)

Washington University Global Studies Law Review . 378 Robert Moog, 'Judicial Activism in the Cause of Judicial Independence: The Supreme Court in the 1990s'

(May-June 2002) 85(6) Judicature .

160

which takes away or abridges the rights conferred by [the Constitution’s fundamental

rights provisions] and any law made in contravention of this clause shall, to the extent

of the contravention, be void’. Thus the Constitution permits the judiciary to

invalidate legislative acts and executive orders inconsistent with fundamental rights.

Second, Article 32 authorises the Supreme Court to issue writs to compel compliance

with the provisions of Fundamental Rights. It further guarantees the right to challenge

both legislative and executive actions of the state and federal governments.

However, the Constitution provides for the power of amendment to the Constitution

to the Parliament. The Parliament has used this power many times to curtail judicial

invalidation of legislative acts. Just in the second year of adoption of the

Constitution, the Parliament passed the first amendment to the Constitution which

added Article 31A to it and precluded the courts from invalidating certain kinds of

agrarian reform legislation on the grounds of violation of the fundamental rights

provisions. Additionally, the amendment added Article 31B, which precluded the

courts from invalidating any legislation that Parliament had placed on Schedule Nine,

even on the grounds of inconsistency with the fundamental rights provisions.

However, the Supreme Court has recently struck back and in 2007 ruled that laws

included in the Ninth Schedule of the Constitution after 24 April 1973 were open to

judicial review.

After nearly two decades of the Parliamentary erosion of its constitutional powers, the

Supreme Court attempted to regain lost ground in a case concerning the scope of

Parliament's power to amend the Constitution. In the 1967 controversial Golak Nath

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v. State of Punjab decision, 379

the Court limited the seemingly absolute grant of

amending power to Parliament to unilaterally amend most portions of the

Constitution. In response to Golak Nath, Parliament amended Article 13 to include a

provision stating that nothing in the Article applies to any amendment of this

Constitution made under Article 368.

Parliament's efforts to legislatively overrule Golak Nath were reviewed by the

Supreme Court in Kesavananda Bharati v. State of Kerala.380

The Court unanimously

voted to overrule Golak Nath's conclusion that constitutional amendments were

subject to judicial invalidation under Article 13(2). The majority concluded that

although Parliament's amendment powers extend to all segments of the Constitution,

including those relating to fundamental rights, but at the same time, concluded, that

the Parliament cannot make amendment to the Constitution which can alter its basic

structure.381

The Supreme Court, through the basic structure doctrine has placed

implicit limitation on the Parliament’s express constitutional powers, ostensibly to

maintain the balance of power contemplated by the Constitution’s framers.382

Following this the Parliament attempted to renew its efforts to exclude the judiciary

from the constitutional amendment process by passing the Forty Second Amendment

Act 1976 stating that no amendment made by Parliament including the fundamental

rights provisions can be called in question in any court of law and that there shall be

379 I.C. Golaknath v. State of Punjab, AIR 1967 SC 1643. 380 Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461. 381 Although the definition of basic structure is not clear, the Supreme Court included the following ideas in the

concept: supremacy of the Constitution, existence of republic, basics of democratic government, secular

nature of the state, separation of powers, federalism, and the existence of a welfare state, the unity and

integrity of India, sovereignty of India, parliamentary democracy and judicial review. See, Burt Neuborne,

'The Supreme Court of India' (2003) 1(3) International Journal of Constitutional Law 476. 382 Maureen Callahan Vandermay, 'The Role of Judiciary in India's Constitutional Democracy' (1996) 20 Hastings

International and Comparative Law Review .

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no limitation on the constituent powers of Parliament to amend the provisions of the

Constitution. In Minerva Mills Ltd v Union of India,383

the Supreme Court struck out

the above provisions on the grounds that they seek to alter one of the basic features of

the Constitution.

With Minerva Mills, the struggle for the survival of judicial review in the Indian

Constitution ended with a qualified victory for the judiciary. Although property ceases

the status of fundamental right384

and judicial review has been narrowed down, the

fundamental rights of freedom of speech, religion and personal liberty are safer than

ever, protected from parliamentary erosion by the basic structure doctrine.

Since the 1980s, the Supreme Court has shown remarkable activism especially in

social and environmental matters. In a number of landmark cases, it has accepted

principles of sustainable development on international law as law of the country and

has evolved new principles for environmental protection and sustainable

development. This has helped in raising awareness among people towards

environmental protection and its effects on their lives and livelihoods and also on

Supreme Court being an alternative for redressing their grievances, specially in case

of failure of legislature. The most recent environmental challenge of climate change is

very likely to have an adverse effect on almost all sections of people, their

livelihoods, availability of food and fresh water. The Supreme Court is a logical

recourse in addressing impacts of climate change and climate wrongs in India.

383 Minerva Mills Ltd. v Union of India (1980) 3 SCC 625. 384 The Constitution originally provided for the right to property under Articles 19 and 31. Article 19 guaranteed to

all citizens the right to acquire, hold and dispose of property. Article 31 provided that "no person shall be

deprived of his property save by authority of law." It also provided for compensation to be paid to a person

whose property had been taken for public purposes. The Forty-forth Amendment of 1978 deleted the right to

property from the list of fundamental rights. Thus, the right to property is no longer a fundamental right, but it

is a legal right.

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However, since the causes of climate change are global emissions of greenhouse

gases, some uncertainty is associated in predicting national climate change impacts,

and this poses a significant challenge to the Supreme Court for redressing the wrongs

done to the people due to climate change. Moreover, the Constitution has empowered

the Parliament to deal with matters of foreign affairs and the Supreme Court is

expressly prohibited from interfering with the foreign affair matters.

C Central Government Authority over International Affairs

Article 253, contained in part XI of the Constitution, “Relations between the Union

and the States,” provides: “Notwithstanding anything in the foregoing provisions of

this Chapter, Parliament has power to make any law for the whole or any part of the

territory of India for implementing any treaty, agreement or convention with any other

country or countries or any decision made at any international conference, association

or other body.”385

Article 51 (c) reads: “The State shall endeavour to foster respect for international law

and treaty obligations in the dealings of organised peoples with one another.”386

Entry

13 in the Union List in Seventh Schedule states: “Participation in international

conferences, associations and other bodies and implementing of decisions made there

at.”387

Entry 14 provides: “Entering into treaties and agreements with foreign

countries and implementing of treaties, agreements and conventions with foreign

countries.”388

385 Constitution of India, Part XI, Article 253. 386 Ibid. Part IV, Article 51 (c). 387 Ibid. Seventh Schedule, List I, Entry 13. 388 Ibid. Seventh Schedule, List I, Entry 14.

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Any endeavour by the Supreme Court to address people’s grievances due to climate

change must ensure that it does not encroach upon the powers of Parliament to deal

with international affairs.

D Constitutional Provisions for Environmental Protection

The Constitution of India is one of the few in the world to provide specifically for the

protection of the environment. Since the UN Conference on Human Environment held

in 1972, a number of useful provisions have been introduced in Part IV (Directive

Principles) and Part IV A (Fundamental Duties) through Constitutional amendments.

The protection of the environment has thus been given a constitutional status rather

than a merely legislative one.

The Forty-second Amendment Act, passed in 1976, explicitly incorporated

environmental protection into the Indian Constitution for the first time. Article 48 A,

added to the Directive Principles of State Policy,389

imposed on “the State”390

the

responsibility to protect the environment: “The State shall endeavour to protect and

improve the environment and to safeguard the forests and wildlife of the country.”391

As stated earlier, the Directive Principles are not justiciable under the Constitution,

but the Supreme Court declared them to be fundamental in governance of country.

Article 39 (b) mandates that ‘the State shall, in particular, direct its policy towards

securing that the ownership and control of the material resources of the community

are so distributed as best to subserve the common good’. Article 51 A of a new

chapter entitled “Fundamental Duties” imposed a similar duty on all Indian citizens:

389 As mentioned, the Directive Principles of State Policy set forth goals intended to guide legislators and

executives in governing the country. 390 As used in Article 48A, “the State” includes the national, state, and local governments. See Constitution of

India, Part IV, Article 36; Part III, Article 12. 391 Constitution of India, Part IV, Article 48A.

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“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.”392

Thus the Indian Constitution makes two-fold provisions. First, it gives directive to the

State for the protection and improvement of environment and second, the citizens owe

a constitutional duty to protect and improve the natural environment. Because of the

activist approach of judiciary the legal value of Directive Principles, jurisprudence is

constantly being developed through the Indian Constitutional framework.

Debate over the interpretation of the Forty-second Amendment Act centers on

whether the central government’s objective in passing the Act was simply to express

its willingness to deal with environmental problems, or actually to acquire additional

powers necessary to do so.393

It can be seen that the central government’s willingness

to prevent environmental pollution was fulfilled by incorporation of Article 48A in

the Directive Principles of State Policy. For the first time, environmental protection

was given constitutional status. On the other hand, incorporation of significantly

weaker language in Article 51A (g) which established a duty on citizen and Article

48A, that “the State shall endeavour to protect and improve the improvement,” 394

does not seem to grant any additional powers to the central government.395

Yet, the Forty- second Amendment Act, 1976 through the constitutional changes

effected in the Seventh Schedule proved a milestone step in the direction of the

protection of the environment. For instance the subject of forests originally was in the

392 Constitution of India, Part IVA, Article 51A(g). 393 Kilaparti Ramakrishna, 'The Emergence of Environmental Law in the Developing Countries: A Case Study of

India' (1984-85) 12 Ecology Law Quarterly 912. 394 Emphasis added. 395 Ramakrishna, above n 393, 913.

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State List as entry 19, which resulted into no uniform policy by the State as to the

protection of the forests. By placing the item 'forest' now in the concurrent list by the

entry 17-A, along with the State, Parliament has acquired a law making power.

In addition, the Seventy-third Amendment Act 1992, added to the Constitution the

Eleventh Schedule which assigned the functions such as soil conservation, water

management and watershed development, social and farm forestry, drinking water, to

the Panchayats (local self governments at village level) with a view to environmental

management. The Seventy-fourth Amendment Act, 1992 added the twelfth Schedule

to the Constitution commands the urban local bodies such as municipalities to

perform the functions of protection of environment and promotion of ecological

aspects.

1 “Water” in the Constitution

In the scheme of distribution of legislative powers, the power to make laws for the

protection of the environment is available under all three lists - the Union List, the

State List, and the Concurrent List. Matters relating to water and air pollution are

considered under the subjects “Water”, “Air”, and “Environment”. The subject

“Water” is listed at Item 17 of the State List in the Seventh Schedule (by virtue of

Article 246) of the Constitution of India. The subjects “Air” and “Environment” are

not specified in any of the three lists of the Seventh Schedule. They are, therefore,

presumed to come under the residuary powers of the central government under Item

97 of List I (Union List).396

The inability of the Government of India to legislate for

environmental protection, available only in the State List, was overcome by means of

Article 253 in enacting the Environmental Protection Act, 1986. Under this article,

396 Bharat Desai, 'Some Enforcement Issues for Water Pollution Control in India' (1993) 30(3) International

Studies .

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Parliament has power to make law for the whole or any part of the territory of India

for implementing any treaty, agreement, or convention with any other country or

countries or any decision made at any international conference, association, or other

body. This provision has an overriding effect even if a particular subject falls within

the ambit of any of the items on the State List.

While the Constitution does not recognise the fundamental right to water, the

Supreme Court decisions deemed this right to be implied in Article 21. The Supreme

Court, in 1980, indirectly conceived this right in a monumental judgment in the case

of Ratlam Municipality v Vardichand,397

and held the neglect of sanitation of the town

of Ratlam by Municipal Council as a health hazard. In Subhash Kumar v. State of

Bihar,398

the Supreme Court recognized that right to life includes right of pollution

free water and air for full enjoyment of life. In another important case, the Supreme

Court directly derived the right to water from Article 21 and stated that water is the

basic need for survival of human beings and is part of right to life and human rights as

enshrined in Article 21.399

The Supreme Court affirmed in M.C. Mehta v. Kamal Nath, that water is a public trust

and the State is the trustee of all natural resources which are by nature meant for

public use and enjoyment.400

As climate change is a recent phenomenon, it is not mentioned in the Constitution.

The global nature of climate change makes it challenging for the government to take

action to redress the effects. As detailed in earlier chapters of this thesis, with rising

397 Ratlam Municipality v Vardichand, AIR 1980 SC 1622. 398 Subhash Kumar v. State of Bihar, AIR 1991 SC 420. 399 Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751. 400 M.C. Mehta v. Kamal Nath, AIR 1991 SC 420.

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temperatures and decreased run-off, climate change is expected to increase the

frequency and intensity of extreme weather events, such as flooding and droughts, and

can have serious impacts on the country’s water resources particularly on the rivers

originating from the Himalayas, including the Ganga River. Indian policy makers and

executives will have to deal with these issues over the coming decades.

II CLIMATE AND ENVIRONMENTAL LEGAL AND INSTITUTIONAL FRAMEWORKS IN

INDIA

A Environmental Protection and Pollution Control

The Constitution provides for the continuation of all laws in force at the time of the

adoption of the Constitution. It generally follows the scheme introduced in the

Government of India Act 1935, where water is a state subject. States have the

exclusive power to regulate water supplies, irrigation canals, drainage and

embankments, water storage, water power and fisheries. There are restrictions

regarding the use on shipping and navigation on national waterways, on tidal and

territorial waters and on adjudication of inter-state water disputes (Article 262).

Environmental legislation began in 1970s in India with the active interest taken by the

then prime minister Mrs. Indira Gandhi. The new found awakening of the

international world towards the importance and problems of the environment

motivated the Stockholm Conference in 1972 in which India was also a party. Since

then environmental jurisprudence has evolved a great deal in India and the Supreme

Court in particular has played a large role in it. Mrs Gandhi attended the Stockholm

Conference and the following years saw the Indian Parliament pass expansive

environmental protection legislation including the Water (Prevention and Control of

Pollution) Act 1974, the Air (Prevention and Control of Pollution) Act 1981and many

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others. The EPA (Environment Protection Act), 1986 came into force soon after the

Bhopal Gas Tragedy and is considered an umbrella legislation as it fills many gaps in

the existing laws. Thereafter a large number of laws came into existence as other

problems arose, for example, Handling and Management of Hazardous Waste Rules

in 1989.

Given that climate change is only one of many environmental problems, the general

circumstances and institutional capacity of environmental protection in India will

influence the enforcement of climate policies and adaptation measures too. An

understanding of evolution of India’s environmental legal process will be helpful in

understanding their present status and the context they are applied to. These laws form

the nexus of all environmental activities in the nation and provide a common context

for all policy actions.

1 Water Pollution Legislation Prior to the Water Act 1974

The earliest legislation concerning water pollution in India was the Shore Nuisance

(Bombay and Kolaba) Act of 1853, under which the Collector of Land Revenue in

Bombay was authorised to order removal of any nuisance below the high-water mark

in Bombay harbour. The Oriental Gas Company Act of 1857 was enacted to regulate

water pollution by only one enterprise, the Oriental Gas Company. The Act imposed

fines on the Company and provided right of compensation to anyone whose water was

fouled by the Company. The Easement Act of 1882 protected rights of riparian

owners against “unreasonable” pollution by upstream users; material diversion or

diminishment of streams; and material draining of lakes and ponds. A series of laws

were enacted during the colonial period, including laws regulating canals for

navigation purposes and levying taxes on the users, river conservation, and rules on

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ferries and fisheries (e.g., Northern India Ferries Act 1878, Indian Fisheries Act

1897). Another important enactment was Northern India Canal and Drainage Act

1873 which regulated irrigation, navigation and drainage. Several other pre-

independence legislations also touched upon water pollution.401

The Indian Penal Code also mentions specifically water pollution as well as general

environmental pollution and imposes fine and prison term on whoever voluntarily

corrupts or fouls water of any spring or reservoir in order to render it less fit for

purposes for which it is ordinarily used. Pollution of a kind not specified in the code

may be punishable as a public nuisance, subjecting the polluter to a fine.

India entered a new era in the field of environmental legislation with the passage of

the Water (Prevention and Control of Pollution) Act of 1974 by the Parliament.

However, legislation relating to water is for most part, an extension of colonial

policies, and importation of common law principles continues to govern both surface

as well as ground water. Article 372 of the Constitution provides for the continuation

of certain laws and legislation enacted prior to the Constitution.

2 Water (Prevention and Control of Pollution) Act 1974

Under the Constitution, the Parliament has no power to make laws for states with

respect to water pollution control (apart from the provisions in Articles 249 and 250)

unless the legislatures of two or more states pass a resolution in pursuance of Article

401 For e.g., The India Ports Act 1908; The Indian Forests Act 1927, The Factories Act 1948 etc. For more details,

see, Philippe Cullet and Joyeeta Gupta, 'India: Evolution of Water Law and Policy' in Joseph W. Dellapenna

and Joyeeta Gupta (eds), The Evolution of the Law and Politics of Water (Springer, 2009) .

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252. 402

Article 249 grants power to Parliament to legislate for states in national

interest if the Council of States declares by resolution supported by not less than two-

thirds of the members present and voting and under Article 250, Parliament can

legislate for states if Proclamation of Emergency is in operation. The Water

(Prevention and Control of Pollution) Act was passed by the Parliament in accordance

with Article 252.The Water Act was approved by the central government only after a

history of lengthy discussion and subsequent approval at the state level. The Water

Act is a milestone as it acknowledges that water pollution is a problem of national

scope.

The Constitution of India in Article 15, paragraph 2 also recognises the primary

principle of equality - and in particular equal access to water. It explicitly states that

no citizen shall “on grounds only of religion, race, caste, sex, place of birth or any of

them” be subject to any disability, liability, restriction or condition with regard to “the

use of wells, tanks, bathing ghats”.

The Water Act provides for the prevention and control of water pollution and the

maintaining or restoring of the wholesomeness of water. Its Statement of Objects and

Reasons declares that the problem of pollution of rivers and streams has assumed

considerable importance and urgency. It seeks to ensure that the domestic and

industrial effluents are not allowed to be discharged into water courses without

adequate treatment. The Act is quite comprehensive in its coverage of various types of

402 Article 252 sates, “(1) If it appears to the Legislatures of two or more States to be desirable that any of the

matters with respect to which Parliament has no power to make laws for the States except as provided in articles

249 and 250 should be regulated in such States by Parliament by law, and if resolutions to that effect are passed by

all the Houses of the Legislatures of those States, it shall be lawful for Parliament to pass an Act for regulating that

matter accordingly, and any Act so passed shall apply to such States and to any other State by which it is adopted

afterwards by resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses

of the Legislature of that State”. Constitution of India, Article 252.

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water and provides that for the purpose of the Act, a “stream” includes a river, a water

course (whether flowing or for the time being dry), inland water (whether natural or

artificial), subterranean waters, and sea or tidal water to the extent specified by

notification in the Official Gazette.

It provides for the constitution of a Central Board (Central Pollution Control Board)

by the central government; and the State Boards by the state governments and gives

wide powers to these boards, without imposing any rules, regulations, or standards.

These boards can sue and can be sued and have full time staff. Agricultural, fishing,

industrial and trade interests are represented on the boards. The functions of central

board include advising the central government on matters concerning the prevention

and control of water pollution, co-ordinating the activities of the State Boards and

resolving disputes among them, carry out and sponsor investigations and research

relating to problems of water pollution, and educating the public on water pollution

problems.

The Act provides for the state boards to obtain information and take samples from any

stream or trade effluent. The Act seeks to prohibit the use of stream or well for

disposal of polluting matter and to obtain consent of state boards before discharge of

trade or sewage effluent into a stream or well.403

The powers and functions of the Central Pollution Control Board and the State Boars

are discussed in detail later in this chapter.

403 The powers and functions of central and state boards are discussed in detail later in the chapter.

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There is also provision for the establishment of Central and State Water Laboratories.

The Act provides power to the board to make application to courts for restraining

apprehended pollution of water in streams or wells.

The central board is bound by the directions of the central government only, whereas

the state boards are bound by the directions of both the central board and the state

government. When a direction given by the state is inconsistent with direction given

by the central board, the matter is referred to the central government for decision.404

3 The Water (Prevention and Control of Pollution) Rules 1975

In the exercise of powers conferred by the Water (Prevention and Control of

Pollution) Act 1974, the central government after consultation with the Central Board

for the Prevention and Control of Water Pollution, made the above said Rules. These

Rules provide for the terms and conditions of service of the members of the central

board and of its committees; powers and duties of members of the board and the

budget of the central board. The central board is authorised to act as the state board

for Union Territories.

4 The Water (Prevention and Control of Pollution) Cess Act 1977

According to the provisions of the Water Act, the central government and state

government have to provide funds to the central board and state boards for prevention

and control of pollution respectively. However, due to pressure on the limited

resources, the state governments are not able to provide adequate funds to the state

boards for their effective functioning. This Act, therefore, provides for the levy and

collection of a cess on water consumed by persons carrying on certain industries and

404 Water (Prevention and Control of Pollution) Act 1974, Section 18.

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by local authorities.405

The main objective of this Act is to increase the resources of

the Central Board and the State Boards for prevention and control of water pollution.

The Act provides for giving rebate of twenty-five percent of the cess to be paid under

the Act, to any person or local authority which installs a plant for the treatment of

sewage or trade effluent. The proceeds of the cess have to be credited first to the

“Consolidated Funds of India’ and then paid out by the central government to the

central or state boards after deducting the costs of collection.406

The Water Cess Act was passed by the central government without state approval and

it gives the central government rulemaking authority over significant aspects of

pollution control. This centralised power in the Act was challenged by many

industries in the courts but the courts ruled that the enactment of the Water Cess Act

did not lead to exceeding the legislative power of the central government.407

5 The Water (Prevention and Control of Pollution) Cess Rules 1978

These were enacted in accordance with the exercise of powers conferred by Section

17 of the Water (Prevention and Control of Pollution) Cess Act 1977. They provide

for standards of meters and places where they are to be fixed and that the state

governments have to remit the amount of cess collected from consumer to the central

government and that the person installing treatment plant of sewage or trade effluent

to get rebate.

405 M. C. Mehta, 'Lal's Commentaries on Water & Air Pollution and Environment (Protection) Laws' (Delhi Law

House, 4th ed, 2000). 406 No money can be withdrawn from the fund except under the authority of an act of Parliament. 407 See, Ramakrishna, above n 393.

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Although the Water Act is a significant step in the direction of comprehensive

environmental protection in India, the loopholes within the Act weaken its

enforcement. The strengths and weaknesses of the Act are assessed later in the

chapter.

Water in India is governed under three different Acts: the Environmental Protection

Act (1986), the River Boards Act (1956) and the Inter-State Water Disputes Act

(1956) (discusses in subsequent sections). Other Acts and Regulations affect water

resources in different ways by addressing its importance for agriculture, biodiversity

and conservation and drinking water. These three Acts, however, have the broadest

scope in terms of how they affect all aspects of water management.

6 The Environment (Protection) Act 1986

A number of laws were enacted for environmental protection following the Water Act

but they generally focussed on specific types of pollution, or specific categories of

hazardous substances. In 1986, the Parliament enacted Environment Protection Act

(EPA) to deal better with some of the problems of coordination, implementation, and

enforcement. The EPA is an umbrella legislation providing a single focus in the

country for the protection of environment and seeks to plug the loopholes of earlier

legislation related to the environment. The EPA fulfilled the need for enactment of a

general legislation on environmental protection to enable coordination of activities of

various regulatory agencies, creation of an authority with adequate powers for

protection of the environment, regulation of discharge of environmental pollutants,

speedy response in the event of accidents threatening the environment and deterrent

punishment to those who endanger human environment, safety and health.

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The Act provided the first official definition of the term “environment” as including

“water, air and land and the inter-relationship which exists among and between water,

air and land, and human beings and other living creatures, plants, micro-organisms

and property”.408

One significant feature of the legislation is that it allowed the federal

government to delegate authority and to use existing resources to implement its

provisions, as well as, to have countrywide jurisdiction. Section 3 specifically vests

power in the central government to take measures necessary or expedient for the

purpose of protecting and improving the environment.

The Supreme Courts have accepted the “Precautionary Principle” as part of the law of

the land and it makes it mandatory for the government to anticipate, prevent and

attack the causes of environmental degradation.409

The section also enumerates such

measures which include coordination of actions by state governments, planning and

execution of nationwide programme for protection of the environment, laying down

standards for emission or discharge of pollutants, carrying out and sponsoring

investigations and research relating to problems of environmental pollution and

collection and dissemination of information related to environmental pollutions. The

main purpose of the Act is to create an authority or authorities under Section 3(3),

with adequate powers to control pollution and protect the environment. For example,

in exercise of the powers conferred under the Act, the central government set up the

‘National Ganga River Basin Authority’ (NGRBA) as an empowered planning,

financing, monitoring and coordinating authority for the Ganga river. The central

government under Section 5 can issue directions to direct the closure, prohibition or

regulation of any industry. The Supreme Court has adopted the ‘Polluter pays

408 The Environment Protection Act 1986, Section 2 (a). 409 M.C.Mehta v. Union of India, (1997) 3 SCC 715.

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principle” and has directed on many occasions that the tanneries, though might have

installed pollution control devices, have been polluting the environment for a long

time and are liable to pay pollution fine.410

The Act provides for not allowing emission or discharge of environmental pollutants

in excess of standards and penalty for contravention of provisions of the Act which

may extend to five years or one lakh rupees fine or both, and in case of continuance of

contravention an additional fine of five thousand rupees every day from the date of

contravention. The imprisonment may be extended to seven years if contravention

continues beyond one year. Payment of compensation by way of cost for the

restoration of environment and ecology of the area is permitted by the Supreme

Court.411

One significant feature of the legislation is that it allowed the federal government to

delegate authority and to use existing resources to implement its provisions. Also,

unlike the Water Act, it provided central government countrywide jurisdiction.

Another significant feature of the Act is to provide the third-party right to take the

offending party to court after giving notice of sixty days to the central government.

However, the Act fell short of environmentalists’ expectations as it barred the courts

from entertaining environmental complaints, it freed heads of firms and industries

from assuming full responsibility, and it denied citizens the right to sue the

government for ignoring its duties.412

410 Vellore Citizens Welfare Forum v. Union of India, (1996) 5 SCC 647 at 665. 411 M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388. 412 Jordi Diez and O.P. Dwivedi (eds), 'Global Environmental Challenges: Perspectives from the South'

(Broadview Press, 2008).

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7 The Environment (Protection) Rules 1986

These Rules were made by the central government in exercise of powers conferred by

Sec. 6 and 25 of the EPA 1986. The important provisions include setting up standards

for emission or discharge of environmental pollutant, prohibition and restriction on

the location of industries and carrying on operations and processes in different areas,

procedure for submission of samples among others.

8 River Boards Act 1956

The Act was adopted in 1956 and the regulation and development of inter-state rivers

and river valleys was to be entrusted to it. The River Boards were designed to advise

the central government on development opportunities, co-ordinate activities and

resolve disputes. Under their mandate, the Boards were required to provide advice to

the central government on various issues including conservation with a view to

control and optimise use of water resources, promotion and operation of schemes

related to irrigation, water supply and drainage, promotion and operation of schemes

related to hydro-power and flood control, promotion of aforestation and control of soil

erosion, promotion and control of navigation and other duties as deemed necessary.

However, the government has been unable to constitute a River Board since the Act

was enacted.

9 Inter-State Water Disputes Act 1956

Under Article 226 of the Constitution, the Parliament enacted the Inter-State Water

Disputes Act 1956 which aims to resolve water-related inter-state disputes. This Act

gives government the power to constitute Tribunals to serve as intermediaries in the

disputes. River water disputes among the states started surfacing soon after the

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adoption of the Constitution. For example, the Krishna-Godavari waters dispute

between Maharashtra, Karnataka, Andhra Pradesh and Orissa; the Cauvery water

dispute among Tamil Nadu, Karnataka and Kerala; the Narmada water dispute among

Gujarat, Madhya Pradesh, Maharashtra and Rajasthan, all of which brought to fore the

inadequacies of existing legal frameworks in effectively resolving inter-state water

disputes.

10 National Water Policy

The government faces the ongoing challenge of a sustained supply of fresh water. The

problem is aggravated due to increased freshwater consumption for agriculture,

industry and municipalities on one hand and polluted water supply on the other.

Until 1987, there was no comprehensive policy statement on the water sector. Since

water was largely a state subject, the lack of a national policy on water proved to be a

major impediment to the development of coherent water policies. In 1986, a National

Water Resources Council (NWRC) chaired by the Prime Minister was created, which

drafted and adopted the first policy document on water and which served as a

guideline to help planners and managers develop the country’s water resources to its

maximum potential and promote the sustainable management of the country’s water

resources. The National Water Policy (NWP) was adopted in 1987. But it did not help

much in conservation of water and in fact, the situation worsened in respect of

augmentation of supply or conservation or maintenance or unregulated groundwater

exploitation. Thus, it was replaced by a new policy, the National Water Policy 2002.

These two developments are similar, focusing on developing a data bank, estimating

the availability of water, prioritizing water (with access to drinking water accorded

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priority), developing groundwater rules, meeting drinking water needs, developing

irrigation facilities, encouraging the participation of stakeholders in water

management, monitoring water quality, promoting conservation consciousness,

developing a flood control and management system, using cost effective measures to

minimise erosion, maintenance and modernization of water works, ensuring the safety

of structures built on water bodies, developing relevant science and technology, and

training of personnel.413

The key differences between the documents are that the 2002

policy focuses on the development of an improved institutional framework with a

focus on improving the performance of the institutions, promotion of rehabilitation

schemes for the displaced, enhancing participation by private parties in water

management, developing an effective monitoring system, and ensuring that states

share the waters of a joint river.414

The national policy has been supplemented by

adoption of a number of state water policies. The national and state policies are based

on a set of principles which are broadly similar.

The revised Policy integrates quantity and quality aspects as well as environmental

considerations for water through adequate institutional arrangements. Besides,

‘ecological needs’ have been assigned due priority in water allocation. One significant

change being promoted by these water policies is the introduction of water rights.

Though water related rights are not new and there is ample jurisprudence related to

control over water, these policies, restate the proposition that the state is the sole

owner of water resources even while they propose the creation of water rights in

favour of users.415

The policies seek to introduce wide range of legal and institutional

413 Cullet and Gupta, above n 401. 414 Ibid. 415 See, Philippe Cullet et al (eds), 'Water Law for the Twenty-First Century: National and International Aspects of

Water Law Reform in India’ (Routledge, 2010).

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reforms including the introduction of various amendments to existing laws as well as

introduction of new laws.

However, the Policy is criticized as a hotchpotch of contradictory perspectives,

completely lacking in integrity. 416

Further, it is said to have left many loopholes for

the market forces to take advantage of and it does not provide any punitive measures

against wrongdoers in a clause for encouraging those who harness water. Regarding

resettlement and rehabilitation of the people displaced by the dams over the years, an

important principle of “land for land” had come to be recognized which implies

compensation by land for loss of land due to submergence. However, a new clause in

the Policy allows the State to evolve its own detailed settlement and rehabilitation

policies taking into account local conditions. So, if the local conditions includes

government’s difficulty in finding land they may revert back to old practice of cash

compensation. The Policy also goes back on the condition reiterated recently by the

Supreme Court that resettlement and rehabilitation must precede dam construction

and speaks of ensuring it happening simultaneously and smoothly.417

The Policy does

not include any provision for water rates and thus, in a way, fails to avoid misuse of

water in all sectors including agriculture, industry and domestic use.

The government of India has recently released the Draft National Water Policy

2012.418

The Draft National Water Policy (NWP) is circulated by the Ministry of

Water Resources to water experts as part of its consultation procedures. The draft

NWP emphasises on the need for a national water framework law, comprehensive

legislation for optimum development of inter-state rivers and river valleys and public

416 See, P.C. Bansil, 'Water Management in India' (Concept Publishing Company, 2004). 417 See, Ibid. 418 Ministry of Water Resources, Draft National Water Policy, at

<http://mowr.gov.in/writereaddata/linkimages/DraftNWP2012_English9353289094.pdf>.

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trust doctrine. It accords pre-emptive priority for safe and clean drinking water and

sanitation for all, and prioritizes meeting water requirements for ecosystems. It

recommends that a portion of river flows should be kept aside to meet ecological

needs ensuring that the proportional low and high flow releases correspond in time

closely to the natural flow regime. Recycling and reuse of water is incentivized.

Water use efficiency has been emphasized - in agriculture, industry and urban

domestic sector, and improvements in rural water supply, waste water treatment and

re-use of treated waste water.

The draft NWP 2012 seeks to take into account the climate crisis and recognizes the

need to adapt to climate change scenario in planning and implementation of water

resources projects. Coping strategies for designing and management of water

resources structures and review of acceptability criteria has been emphasized.

The draft NWP is criticized for favouring privatisation of water-delivery services and

suggesting pricing of water to recover operation costs and administration of water

projects.419

Moreover, the important “polluter pays principle” has been replaced with

“incentives” for effluent treatment and reuse of water. Though reclaiming wastewater

is necessary to bridge the water deficit, it is feared that in the absence of strong

regulations to limit polluting activities, such incentives to polluters to treat effluents,

might work as an incentive to pollute more.420

Water experts have expressed concern

that limited participation of communities in the process could make the exercise

undemocratic.421

419 Dipannita Das, 'Water Policy Draft Favours Industry: Experts', The Times of India 12 March 2012. 420 Shiney Varghese, Corporatizing Water: India's Draft National Water Policy (February 2012) Institute for

Agriculture and Trade Policy <http://www.iatp.org/files/2012_02_28_IndiaNWP_SV.pdf>. 421 Himanshu Thakkar and Parineeta Dandekar, 'Press Release: Draft National Water Policy 2012' (South Asian

Network on Dams, Rivers & People (SANDRP), 1 February 2012).

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11 National Environment Policy 2006

The government pronounced the National Environment Policy (NEP) of 2006 to

improving environmental conditions while promoting economic prosperity

nationwide. The NEP’s key environmental objectives include conservation of critical

environmental resources, intra-generational equity, livelihood security for poor,

integration of environment in economic and social development, efficiency in

environment resource use, environmental governance, and enhancement of resources

for environmental conservation.

12 Other Environmental Legislation

Other laws and regulations related to environmental protection include the Air

(Prevention and Control of Pollution) Act 1981, the Hazardous Waste Management

Rules 1989, the Wildlife Protection Act 1972, the National Environment Tribunal Act

1995, the National Environment Appellate Authority Act 1997, the Municipal Solid

Waste (Management and Handling) Rules 2000, Environmental Impact Assessment

(EIA) Notification 1994, and the Public Interest Litigation (PIL) Act. PILs have been

effectively sued by NGOs and concerned citizens to invoke Supreme Court’s

intervention for granting relief for the protection of environment and humans. The

Supreme Court has accepted PILs brought by even persons who may not be an

aggrieved party to a dispute. The Supreme Court has relaxed the procedural

formalities in case of PILs addressing problems of national interest or immediate

harm to people and environment. As discussed in later sections of this chapter, some

landmark cases have been brought before the court as PILs which helped in enriching

environmental jurisprudence in India.

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B Key Enforcement Agencies for Water and Environmental Legislation in India

The effectiveness of a legal framework is essentially conditioned by the agencies

entrusted with the task of enforcement. As seen above, India has enacted a number of

policies and laws for protection of environment, but most often they are not

complemented by effective enforcement by the institutions concerned. The

enforcement agencies suffer from a number of short comings including paucity of

funds, limited authority to regulate the polluting industries, loopholes in law,

cumbersome court procedure and low rate of conviction, which in turn results in

further deterioration of environmental conditions. It is for this reason that many a

times the Supreme Court was forced to order the institutions to perform their statutory

duty and protect the environment and the people.

It is important to have an understanding of the key institutions concerned with

implementation of law and policy related to water and environment, as they could

play a significant part in implementation of the Supreme Court’s directions and also

in facilitating adaptation measures in case of two identified scenarios unfolding in the

Ganga Basin.

For matters concerning the environment, the Department of Environment of the

Government of India is the focal point in the administrative structure and policy

making. The Department of Environment was set up in pursuance of the

recommendations made by a high-level committee in February 1980 to suggest the

legislative and administrative measures needed to ensure environmental protection. It

came into existence on 1 November 1980 and subsequently, in September 1985, a

full-fledged Ministry of Environment and Forests was constituted. Some state

governments also have a separate Department of Environment. However, the actual

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implementation of the relevant laws is in the hands of the statutory Pollution Control

Boards both at the centre and in the states. These bodies were first set up under the

Water (Prevention and Control of Pollution) Act 1974, to control water pollution.

They were later given the task of preventing and controlling air pollution also under

the Air (Prevention and Control of Pollution) Act 1981.

The management of India’s water resources falls under the jurisdiction of a number of

government agencies, although primary responsibility for the development of water

resources belongs to the individual states. The central government oversees the

implementation of national policy on resources development and exploitation, as well

as manages inter-state and international rivers and river valleys.

1 Ministry of Environment and Forests (MoEF)

The Ministry of Environment & Forests is the nodal agency in the administrative

structure of the Central Government. 422

The Minister of Environment and Forests

holds cabinet rank as a member of the Council of Ministers. The ministry is

responsible for the planning, promoting, co-ordination and overseeing the

implementation of India's environmental and forestry policies and programmes.

Implementation of policies and programmes relating to conservation of the country's

natural resources, including its lakes and rivers, its biodiversity, forests and wildlife,

ensuring the welfare of animals, and the prevention and abatement of pollution,

aforestation, regeneration of degraded areas and protection of the environment are the

primary concerns of the Ministry.

422 For more information, see official website of MoEF, http://moef.nic.in/index.php.

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The ministry also serves as the nodal agency in the country for the United Nations

Environment Programme (UNEP), South Asia Co-operative Environment Programme

(SACEP), International Centre for Integrated Mountain Development (ICIMOD) and

for the follow-up of the United Nations Conference on Environment and

Development (UNCED). The ministry is also entrusted with issues relating to

multilateral bodies such as the Commission on Sustainable Development (CSD),

Global Environment Facility (GEF) and of regional bodies like Economic and Social

Council for Asia and Pacific (ESCAP) and South Asian Association for Regional Co-

operation (SAARC) on matters pertaining to the environment.

2 Ministry of Water Resources (MoWR)

The Ministry of Water Resources is responsible for laying down policy guidelines and

programmes for the development and regulation of India's water resources. The

ministry coordinates overall planning and policy formulation and provides guidance

in the water resources sector. Some of the important functions of the ministry

include:423

formulation of national water development perspective and the

determination of the water balance of different basins and sub-basins for

consideration of possibilities of inter-basin transfers; coordination, mediation and

facilitation in regard to the resolution of differences or disputes relating to inter-state

rivers; operation of the central network for flood forecasting and warning on inter-

state rivers; the provision of central assistance for some State Schemes in special

cases; and preparation of flood control master plans for the Ganga and the

Brahmaputra.

423 The information has been obtained from the official website of MoWR,

<http://wrmin.nic.in/index2.asp?slid=284&sublinkid=531&langid=1>.

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3 Central Water Commission (CWC)

The Central Water Commission is one of the organisations of the MoWR and is a

premier technical organisation in the country in the field of water resources and is

responsible for initiating, coordinating and furthering, in consultation with the state

governments concerned, schemes for control, conservation and utilisation of water

resources throughout the country, for purpose of flood control, irrigation, navigation,

drinking water supply and water power development.

4 The Central Pollution Control Board (CPCB) and the State Pollution Control

Boards (SPCB)

The Central Pollution Control Board (originally called the Central Board for the

Prevention and Control of Water Pollution) is a statutory organisation and was

constituted under the Water (Prevention and Control of Pollution) Act, 1974. Further,

CPCB was entrusted with the powers and functions under the Air (Prevention and

Control of Pollution) Act, 1981. It serves as a field formation and also provides

technical services to the Ministry of Environment and Forests of the provisions of the

Environment (Protection) Act, 1986. The CPCB has oversight powers over the

various State Boards. It sets emission standards and lays down ambient standards.

The CPCB also conducts nationwide surveys about the status of pollution, and of

pollution mitigation. As per the Water (Prevention and Control of Pollution) Act,

1974, and the Air (Prevention and Control of Pollution) Act, 1981, principal functions

of the CPCB include promoting cleanliness of streams and wells in different areas of

the states by prevention, control and abatement of water pollution, and to improve the

quality of air and to prevent, control or abate air pollution in the country. It also co-

ordinates the activities of the State Boards and resolve dispute among them.

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The Central Board serves as State Boards for the Union Territories and advises the

Governments of Union Territories with respect to the suitability of any premises or

location for carrying on any industry which is likely to pollute a stream or well or

cause air pollution. It also lays down standards for treatment of sewage and trade

effluents and for emissions from automobiles, industrial plants, and any other

polluting source. It identifies any area as air pollution control area to be notified under

the Air (Prevention and Control of Pollution) Act, 1981 and assesses the quality of

ambient water and air.

The implementation of the national environmental laws, and the enforcement of the

standards set by the CPCB is decentralised at the level of each state, with the SPCB in

charge of this role. To reduce pollution, the enforcement agencies have a range and

combination of options available. These include sanction-based strategies and penal

approach. The SPCB can demand information from any industry about the

compliance with the Act. Non -compliance can be punished with fines up to Rs.

10000, and imprisonment up to three months. In case of continued non-compliance,

an additional daily fine of Rs. 5000 can be imposed. Until 1988 amendment to the

Water Act of 1974, the only enforcement tool of the SPCB was criminal prosecution.

The boards now have the power to close non-compliant companies or to cut their

water and power supply. However, control and sanction is not the only way of

interaction between the boards and the polluting entities. Under the Water Cess Act of

1977 state boards may charge industries and municipalities with a water cess

calculated on the volume of water consumed, and for consent fees. Nevertheless any

fee levied by the SPCBs has to be sent to the central government. The central

government is then supposed to return 80 per cent of the fees to the SPCBs.

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However, the ultimate recourse remains public interest litigation in the Supreme Court

as the water act provides the right to move the court to enforce the statutory

provisions of the Act. During the last decade, the Supreme Court has been involved

several times in large-scale environment-related measures. The Court allowed a

public interest litigation to clean the River Ganga due to failure of the municipal

authorities and the Boards to perform their statutory duties. In fact, in April 1995, the

Court ordered that 538 tanneries located in three clusters in Calcutta be shifted from

the city to a leather complex and a CETP (Common Effluent Treatment Plant) be

provided to treat the effluent generated from the complex. In 1996, it ordered the

closure of all tanneries in Tamil Nadu that had not set up pollution control systems. In

another case, the Court ordered shifting of hazardous industries out of Delhi as they

were operating without effluent treatment plants.424

Failure of the enforcement agencies to control pollution from a refinery and hundreds

of polluting industries around the Taj Mahal, a UNESCO World Heritage Site,

resulting in severe negative impacts to the historic monument as well as the people in

the area, led to a PIL in the Supreme Court.425

The Court has been monitoring the case

since 1984 and has passed various important orders and judgments to control

pollution around the Taj, which include a switch over of Mathura Refinery to clean

fuel and establishing a green belt around the Taj Mahal, among others.

In the Bichchri case, the Supreme Court accepted a Writ Petition filed against heavily

polluting industries which were operating without obtaining permission from the

authorities and discharged toxic untreated effluents on open grounds rendering entire

424 M.C. Mehta v Union of India, AIR 1996 5 SCC 281. 425 M.C. Mehta v. Union of India, 2 SCC 353 (1997).

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ground water of the area unfit for human consumption.426

The Supreme Court

observed that the Writ Petition was in substance against the statutory authorities

which had failed to carry out their duties.

Describing the weak performance of the boards, a commentator has stated, “A meager

number of prosecutions launched by the State Boards reflect their performance on this

front. Since the Water Act came into force [1974], a total number of 1, 602 cases ...

launched till 1987-88 against various industries by the State Boards underscores this

point. Of these cases, 288 have been decided and 1,314 cases are still pending at

various stages in the courts throughout the country”.427

During the 14 years (1974-

1988), the Uttar Pradesh Board launched 155 prosecutions (39 of which were decided

by 1988); the Bihar Board launched 13 prosecutions (none of which were decided by

1988); and the West Bengal Board had launched 12 prosecutions (none of which were

decided by 1988).428

5 National Disaster Management Authority (NDMA)

The National Disaster Management Authority, headed by the Prime Minister of India,

is the Apex Body for disaster management in India. The setting up of the NDMA and

the creation of an enabling environment for institutional mechanisms at the State and

District levels is mandated by the Disaster Management Act, 2005.

The NDMA is mandated to lay down the policies, plans and guidelines for disaster

management to ensure timely and effective response to disasters. Its main

responsibilities include - laying down policies on disaster management; approving the

426 Indian Council for Enviro-Legal Action v. Union of India, 1996 (3) SCC 212. 427 Bharat Desai, 'Water Pollution in India: Law & Enforcement' (Lancers Books, 1990). 428 Estimates Committee, “Sixty-first Report”, Lok Sabha Secretariat: New Delhi, 1988. Quoted in Mehta, above n

146.

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National Plan and plans prepared by the Ministries or Departments of government in

accordance with the National Plan; coordinating the enforcement and implementation

of the policy and plan for disaster management; taking measures for the prevention of

disaster, or mitigation, or preparedness and capacity building for dealing with the

threatening disaster, among others.

However, improper enforcement and implementation issues continue to plague the

NDMA and various State Disaster Management Authorities. For instance, the

government of India was completely unprepared for the 2010 floods, in which about

17 people were killed, thousands of homes were washed away and some two million

people were forced to evacuate in a 24-hour period in the State of Uttar Pradesh,

along with an extensive damage to crops worth around 35 billion rupees.429

The State

Disaster Management Authorities also suffer from poor enforcement. For example, in

a report the CAG (Comptroller and Auditor General) of India rapped the Uttarakhand

state for virtually non-functional Authority and for careless approach towards

implementation of important aspects of disaster prevention, mitigation and

preparedness.430

With increased threat of more severe and intense extreme events predicted due to

climate change, there is an urgent need to improve the efficiency of these authorities

and for their capacity building for taking adequate adaptation measures.

6 National River Conservation Authority (NRCA)

The Ganga Action Plan (GAP) Phase I taken up in 1985 as 100 per cent centrally

429 'Indian Floods Wash Away Thousands of Homes', The Guardian 23 September 2010. See also, 'Floods Caught

the Government Unprepared', Daily News and Analysis 21 September 2010. 430 'CAG Raps Uttarakhand for Disaster Management', The Hindu 1 April 2011.

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funded scheme for controlling pollution in River Ganga and the Ganga Project

Directorate (GPD) was set up in MoEF in 1985 for coordinating implementation of

the Ganga Action Plan (GAP). A Central Ganga Authority under the Prime Minister

was constituted to finalize the policy framework and to oversee the implementation of

the Action Plan. The programme of river cleaning was extended to other major rivers

in the country under two separate schemes of GAP Phase II and the National River

Conservation Plan (NRCP). In 1996, the GAP Phase II was merged in NRCP. The

then Ganga Project Directorate was converted into National River Conservation

Directorate which is entrusted with implementation of National River Conservation

Plan (NRCP) and the National Lake Conservation Plan (NLCP). The CGA was re-

named as the National River Conservation Authority (NRCA) with a larger mandate

to cover all the programmes supported by the National River Conservation

Directorate.

The objective of the National River Conservation Plan is to improve the water quality

of the major rivers which are the major fresh water source in the country through the

implementation of pollution abatement schemes. It covered pollution abatement

works in 46 towns along the polluted stretches of 18 rivers spread over 10 States.

7 National Ganga River Basin Authority (NGRBA)

In view of the shortcomings in the approach followed in GAP, the need for revamping

the river conservation programme was recognised. Accordingly, the Government of

India has given Ganga the status of a National River and has constituted the National

Ganga River Basin Authority (NGRBA) on 20 February 2009 under Section 3(3) of

the Environment (Protection) Act, 1986. The Authority is chaired by the Prime

Minister and the Chief Ministers of the Ganga main stem states and various union

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Ministers as members. The Ministry of Environment & Forests is the nodal ministry

for the authority and provides the administrative and technical support. The NGRBA

is a planning, financing, monitoring and coordinating body of the centre and the

states. The objective of the NGRBA is to ensure effective abatement of pollution and

conservation of the river Ganga by adopting a river basin approach for comprehensive

planning and management.

The major functions of the NGRBA include, development of a river basin

management plan; regulation of activities aimed at prevention, control and abatement

of pollution in Ganga to maintain its water quality, and to take measures relevant to

river ecology and management in the Ganga basin states; maintenance of minimum

ecological flows in the River Ganga; collection, analysis and dissemination of

information relating to environmental pollution in the River Ganga and issue

directions under Section 5 of the Environment (Protection) Act, 1986 for the purpose

of exercising and performing these functions and for achievement of its objectives.431

8 National Green Tribunal (NGT)

Recently, the setting up the National Green Tribunal by the Parliament has created

history in India. This new court would try only environmental cases for the first time

ever in the country. India is only the third country in the world to set up a separate

judiciary for environmental cases, after Australia and New Zealand. The Green

Tribunal is empowered to order the violators of environmental laws to pay civil

damages to any amount that it finds fit to be compensated. Previously, only 25,000

rupee ($564) was the highest amount that was levied as liability for polluting the

431 National Ganga River Basin Authority (NGRBA), http://moef.nic.in/modules/recent-

initiatives/NGRBA/index.html>.

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rivers or felling of the forests. The decisions of the Tribunal can be appealed against

in the Supreme Court of India.

C An Assessment of India’s Environmental Laws and Enforcement Institutions

In spite of a series of laws and statutes addressing environmental pollution problems

and the various enforcement agencies both at central and state levels, the

environmental conditions continue to deteriorate in India. This calls into question the

actual implementation of the laws and also a look at the role of the enforcement

agencies entrusted with the task. The present setup of the Central and State Pollution

Control Boards in India faces some problems in the enforcement of the statues

concerned.

Availability of sufficient funds is important to ensure effective performance of the

enforcement machinery. The availability of funds does not appear to have posed much

of a problem in the functioning of the Central Pollution Control Board.432

For

instance, the central board received grant from the government to the tune of Rs 1500

lacs for the year 1999-2000.433

However, the basic source of funds for the state boards

is the grants-in-aid received by their respective governments. As these grants are

uncertain, the unavailability of sufficient funds hampers smooth functioning of the

boards. It needs to be noted that the Water Act (1974) is silent on the provision of

funds for the boards. Even the Water Cess Act 1977 is not very helpful in this respect

as it provides for the levy of a cess on every person carrying on a “specified industry”

or on every local authority on the basis of consumption of water. This, however, is

rather by way of an incentive to the entrepreneur to install a plant for the treatment of

432 See, Desai, above n 396, 319-333. 433 Central Pollution Control Board, Annual Report, 1999-2000,

http://www.cpcb.nic.in/upload/AnnualReports/AnnualReport_4_annualreport1999-00.pdf.

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sewage or trade effluents and claim a rebate of 70 percent.434

The Cess Act confers

the power on the state boards to assess the cess, to recover it, and to remit the money

on the central government (to be credited to the Consolidated Fund of India).435

A major flaw of the Water Act is that there is no provision for prosecution of a

government department or agency for an offence as they can use an escape clause by

claiming that such an offence was committed without their personal knowledge or that

they exercised due diligence to prevent the commission of the offence. The Water Act

suffers from various other drawbacks too. In case of failure by any industry to comply

with the conditions laid down in the consent order, the main strategy of the board is to

coax and cajole into complying. It is only when every effort fails then the board

resorts to prosecutions. However, the Water Act provides that for its violation, the

polluter must have “knowledge”, which is often difficult to prove by the prosecution.

Injunctive relief is unavailable and there is no provision to enable a court to direct

closure of an erring industry. The burden of proof also lies with the prosecution,

which must establish that the effluents in a given case endanger public safety.436

Establishing this is often expensive and difficult; and finally, no private right of action

is provided.

On the whole, the effectiveness of the Water Act remains dismal, as the Planning

Commission of India has also stated that, “Three-fourths of surface water resources

are polluted and 80 per cent of the pollution is due to sewage alone”.437

Implementation of environmental laws is a major problem in India. Implementation of

434 See Water (Prevention and Control of Pollution) Cess Act (1977), Section 7. 435 Water (Prevention and Control of Pollution) Cess Act (1977), Section 6. 436 Ramakrishna, above n 393. 437 O.P. Dwivedi, 'Environmental Challenges Facing India' in Diez and Dwivedi, above n 412, 118.

196

Indian environmental policy has been hampered by conceptual problems in

understanding the nature of environmental problems and the kinds of policies and

procedures necessary to address the problems and a lack of bureaucratic and political

commitment.438

The major statutes for control of water pollution are Water Act and

Environment Act but these have not been used effectively. Under Section 25 and 26

of the Water Act, previous consent of the state board is essential to bring into use any

“new or altered outlet” for the discharge of sewage or trade effluent into a stream or

well or sewer or on land. The pollution control boards have been lenient in passing the

consent orders which allowed the industries to discharge effluents, albeit subject to

certain conditions. In one case, the Supreme Court found that nearly 550 tanneries

situated on the banks of Ganga in Kolkata (West Bengal) discharging highly toxic

effluents, never applied for consent to the State Pollution Control Board.439

Due to the

failure of the tanneries to construct effluent treatment plants, the Supreme Court

ordered they shift to a place of common treatment plant.

The Supreme Court in many cases has liberally interpreted the Water Act and has

involved many innovative strategies for the protection of water resources and the

environment. For example, Section 24 (1) of the Act provides that no person shall

knowingly dispose of polluting matter in the stream or well. However, in M.C. Mehta

v. Union of India, 440

regarding liability of occupier or officer in charge of actual

operation of the caustic chlorine plant, the Supreme Court held that in case of escape

of chlorine gas resulting in death or injury to any workmen or people living in the

vicinity, the management will be personally responsible for payment of compensation

for such death or injury caused. The Supreme Court has decided that in case the

438 See, Michael R. Reich and B. Bowonder, 'Environmental Policies in India: Strategies for Better

Implementation' (1992) 20(4) Policy Studies . 439 M.C. Mehta v Union of India, (1997) 2 SCC 411. 440 M.C. Mehta v Union of India, 1986 (1) SCR 312.

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authorities have not taken action required of them by law and their inaction

jeopardises right of citizens, it is the duty of the Court to intervene. If provisions of

law and directions issued by lawful authorities are violated, the Supreme Court can

issue appropriate directions to ensure compliance with law.441

In M.C. Mehta v.

Kamal Nath, 442

the Supreme Court held that water is a public trust and that the state is

seen as “the trustee of all natural resources which are by nature meant for public use

and enjoyment”, thus enabled better protection of water resources.

Often the judicial proceeding are time consuming and expensive. The Supreme Court

of India has suggested on many occasions for the setting up of Environmental Courts

to speed up the disposal of cases. 443

Recently the Parliament enacted the National

Green Tribunal Act 2010 which provides for the establishment of a National Green

Tribunal (NGT) for effective and expeditious disposal of cases related to

environmental protection. The Supreme Court has directed the Tribunal to ensure

wide publicity to inform people about the existence of such a body.444

However, despite the amount of legislation present, the environmental scenario

remains unchanged due to a number of reasons, including lack of expertise and

resources, weak enforcement, loopholes in law, meagre rate of conviction and time

consuming court process. The government of India, on many occasions, has failed to

provide an effective pollution control mechanism due to its attitude towards the

environment and the dilemma of “economy versus ecology”. The government of India

has adopted a soft attitude towards polluting industries and has not taken concrete

441 Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212. 442 M.C. Mehta v Kamal Nath (1997) 1 SCC 388. 443 The Supreme Court has made this observation in M.C. Mehta v. Union of India, 1986 (1) SCALE 199. 444 PTI, 'National Green Tribunal to Function From July 4', The Times of India 7 June 2011.

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actions beyond giving warnings to the industries to set up pollution control devices.445

As a result a large number of industries are still operating without adopting any

pollution control measures. The enforcement agencies have consistently shown a

helplessness to proceed against the powerful political-bureaucratic-industrial nexus

and, in a large number of instances, have even joined hands to perpetrate

environmental crimes.446

Climate change presents the most recent and unprecedented challenge and adequacy

of present laws and enforcement agencies to reckon with it seems questionable. Some

of the laws dealing with environment are decades old and came into existence before

the issue of climate change was given serious attention, for example, the Water Act

1974. Moreover, most of these policies and laws focus on pollution prevention and

conservation of the resources which does not directly deal with issues arising due to

climate change. Some of the laws have some bearing on helping curb rising emissions

and promoting renewable energy. However, they do not match the scale of action

required to address adverse impacts of climate change.

D Climate Change Policy

Various measures under different environmental legislations discussed above are

intended to have some bearing on climate change, for example, submission of an

Environmental Statement by polluting units seeking consent either under the Water

Act 1974 or the Air Act 1981 or both and mandatory purchase of renewable energy

under the Electricity Act 2003. However, there is no explicit provision to reduce

carbon dioxide emissions under the present pollution control laws. The government

445 Mahesh Chander Mehta, 'Making the Law Work for the Environment' (1997) 2(3 & 4) Asia Pacific Journal of

Environmental Law . 446 Donna G. Craig, Nicholas A. Robinson and Koh Kheng-Lian (eds), Capacity Building For Environmental Law

in the Asian and Pacific Region: Approaches and Resources (Asian Development Bank, 2003).

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has taken voluntary action and released the National Action Plan on Climate Change

(NAPCC) outlining policies and plans for climate change mitigation and adaptation.

1 National Action Plan on Climate Change (NAPCC)

In 2008, the Prime Minister of India, Manmohan Singh, released India’s first National

Action Plan on Climate Change (NAPCC) which aims at adopting a low carbon

energy path for achieving sustainable development without compromising on

economic growth and quality of life.447

The Plan outlines existing and future policies

and programs addressing climate mitigation and adaptation. The plan identifies eight

core “national missions” running through to 2017 which include a national solar

mission, a national mission on enhanced energy efficiency, a national mission on

sustainable habitat, a national water mission, a national mission for sustaining the

Himalayan ecosystem, a national mission for green India, a national mission for

sustainable agriculture and a national mission on strategic knowledge for climate

change. Emphasising the overriding priority of maintaining high economic growth

rates to raise living standards, the plan “identifies measures that promote our

development objectives while also yielding co-benefits for addressing climate change

effectively.” It says these national measures would be more successful with

assistance from developed countries, and pledges that India’s per capita greenhouse

gas emissions “will at no point exceed that of developed countries even as we pursue

our development objectives.”

The National Solar Mission: India being a tropical country receives abundant

sunshine and the National Solar Mission aims to promote the use of solar energy for

447 ‘National Action Plan on Climate Change’, above 109.

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power generation and other applications.448

The stated objective of the mission is to

increase the share of solar energy and other renewable and non-fossil based energy

sources in the total energy mix of the country. Most parts of India experience clear

sunny weather for 250 to 300 days a year and just 1per cent of India's land area can

meet India's entire electricity requirements till 2030.449

The Plan includes goals of:

Increasing use of solar thermal technologies in urban areas, industry, and

commercial establishments;

Increasing production of photovoltaic to 1000 MW/year; and

Deploying at least 1000 MW of solar thermal power generation

Other objectives include the establishment of a solar research centre, increased

international collaboration on technology development, strengthening of domestic

manufacturing capacity and increased government funding and international

support.450

The ultimate objective of the Mission is to develop a solar industry in

India that is capable of delivering solar energy competitively against fossil based

energy options.

The National Mission on Enhanced Energy Efficiency: Under the Energy

Conservation Act 2001 a legal mandate is provided for the implementation of the

energy efficiency measures through the institutional mechanism of the Bureau of

Energy Efficiency (BEE) in the central government and designated agencies in each

state. A saving of 10,000 MW is expected by the end of the year 2012. The industry

sector is the largest user of commercial energy in India and accounted for 42 per cent

of the country’s total commercial energy use during 2004-05. The CO2 emissions

448 ‘National Action Plan on Climate Change’, above 109, 19. 449 Ibid. 450 Ibid.

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from the industrial sector can be broadly categorised into two heads - process related

emissions and emission due to fuel combustion in industries. Energy use accounted

for nearly 60 per cent of direct CO2 emissions from the industry of total 250 million

tonnes in 1994.451

The Plan proposed three heads of GNG mitigation options in the

industry:

Sector specific technological options

Cross-cutting technological options

Fuel switch options

The Plan suggests new initiatives for energy efficiency:

Mandated specific energy consumption decreases in large energy consuming

industries and a provision to certify energy savings in excess of mandated

savings which may be traded amongst companies to meet their compliance

requirements.

Providing tax incentives with differential taxation to promote energy

efficiency.

Encouraging financing for public-private partnerships to reduce energy

consumption through demand-side management programmes in the municipal,

buildings and agricultural sector.

The National Mission on Sustainable Development: The Mission aims to promote

energy efficiency as an integral component of urban planning and urban renewal

through three initiatives:

Extending the existing Energy Conservation Building Code (ECBC).

A great emphasis is laid on the recycling of material and Urban Waste

451 India’s Initial National Communication, 2004 (NATCOM I) to UN Framework Convention on Climate Change.

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Management including power production from waste.

Better urban planning and model shift to public transport. The total

number of registered motor vehicles in India has increased from 21.4 million

in 1991 to 72.7 million in 2004. As per the NAPCC document, the Planning

Commission estimates an energy saving potential of 115 mtoe (million tonnes

of oil equivalent) in the year 2031/32 by increasing the share of railways and

improving efficiencies of different modes of transport.

The Mission proposes to address the need to adapt to future climate change by

improving the resilience of infrastructure, community based disaster management,

and measures for improving the warning system for extreme weather events.

The National Water Mission: Many parts of India are water stress and India is likely

to be water scarce by 2025. Climate change may worsen the situation. The National

Mission proposes to develop a framework to optimize water use by increasing water

use efficiency by 20 per cent through regulatory mechanisms with differential

entitlements and pricing. It places emphasis on recycling of waste water to meet water

needs of urban areas and promoting new and appropriate technologies such as low

temperature desalination technologies for coastal cities. The plan also seeks to ensure

basin level management strategies to deal with variability in rainfall and river flows

due to climate change.

The Plan aims to have studies conducted on management of surface water resources

which include estimating river flows in mountainous areas, customising climate

change models for regional water basins, among others. For groundwater

management, the plan proposes mandating water harvesting and artificial recharge in

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relevant urban areas; enhancing recharge of groundwater aquifers; mandatory water

assessments and audits; ensuring proper industrial waste disposal and regulation of

power tariffs for irrigation.

The Plan also places emphasis on upgrading storage structures for fresh water and

drainage systems for waste water and on the conservation of wetlands.

The National Mission for Sustaining the Himalayan Ecosystem: The Himalayas

houses a unique eco-system with rich bio-diversity. This Mission aims to evolve

management measures for sustaining and safeguarding the Himalayan glacier and

mountain eco-system and conserve bio-diversity, forest cover and other ecological values

in the Himalayan region, where glaciers that are a major source of India’s water supply

are projected to recede as a result of climate change. It reaffirms the following measures

mentioned in the National Environment Policy 2006:

Adopt appropriate land-use planning and watershed management practices for

sustainable development of mountain ecosystems.

Adopt best practice norms for infrastructure construction in mountain regions

to avoid or minimize damage to sensitive ecosystems and despoiling of

landscapes.

Encourage cultivation of traditional varieties of crops and horticulture by

promotion of organic farming enabling farmers to realize a price premium.

Promote sustainable tourism through adoption of best practice norms and

multi-stakeholder partnerships to enable local communities to gain better

livelihoods.

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Taking measures to regulate tourist inflows into mountain regions to keep it

within the carrying capacity of the mountain ecology.

Developing protection strategies for certain mountain scapes with unique

“incomparable values”.

The National Mission for a Green India: Forests play an important role in the

preservation of ecological balance and maintenance of bio-diversity. Forests

constitute one of the most effective carbon sinks and sequester billions of tons of

carbon dioxide in the form of bio-mass and soil carbon. The mission proposes to

focus on increasing the forest cover to 6 million hectares of degraded forest land and

density cover from 23 per cent to 33 per cent of India’s territory.

The National Mission for Sustainable Agriculture: With 21 per cent contribution to

country’s GDP, agriculture is vital to India’s economy and people’s livelihood. The

Mission proposes to devise strategies to make Indian agriculture more resilient to

climate change. It aims to identify and develop new varieties of crops and especially

thermal resistant crops and alternative cropping patterns, capable of withstanding

extremes of weather, long dry spells, flooding, and variable moisture availability. The

proposed national mission focuses on four areas crucial to agriculture adapting to

climate change: dry land agriculture, risk management, access to information and use

of biotechnology.

The National Mission on Strategic Knowledge for Climate Change: The Plan

envisages a new Climate Science Research Fund, to gain better understanding of

climate science, improved climate modelling and increased international

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collaboration. It also encourages private sector initiatives to develop adaptation and

mitigation technologies through venture capital funds.

Implementation of the plan has been left to lead ministries. They are directed to

develop objectives, implementation strategies, timelines, and monitoring and

evaluation criteria, to be submitted to the Prime Minister’s Council on Climate

Change. The Council will periodically review and report on each mission’s progress.

E National Action Plan on Climate Change (NAPCC): A Critical Analysis

The NAPCC, no doubt, is a mile stone in India’s climate change policy. It is the first

comprehensive step taken by the government of India to address climate change. In

many ways, it enunciates a new approach for climate change mitigation strategies

different from previous approaches.452

Firstly, the Plan considers a policy priority to

devise adaptation measures to adverse impacts of climate change based on the IPCC

predictions of adverse implications of climate change for food security, livelihood and

water compared to earlier approach which was mainly concerned with ensuring

energy (oil) security.453

Secondly, its emphasis is on qualitative shift rather than on the quantitative reductions

of emissions. Developed countries have not even been able to agree on the base year

to measure reductions, the percentage reductions to be brought about, and the

quantities of carbon that can be eliminated without affecting economic growth

because each country looks at the problem through prism of its national industry.454

452 Stellina Jolly and Amit Jain, 'Climate Change: Changing Dimensions of Law and Policy’ (MD Publications Pvt

Ltd, , 2009). 453 Mukul Sanwal, 'The G-8 and India’s National Action Plan on Climate Change' (19 July 2008) 43(29) Economic

& Political Weekly 17. 454 Ibid.

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Thirdly, it stresses on developing new knowledge to modify carbon intensive

activities.

However, the Plan faces much criticism on various accounts. Critics point out that the

Plan lacks transparency and was drafted in a confidential process without seeking

opinions of a broader community of experts and other knowledgeable and concerned

sections.455

The Plan lacks vision as it proclaims its intention is to constitute a “national strategy

to firstly, adapt to climate change and secondly, to further enhance the ecological

sustainability of India's development path”. But it does not give any details about

devising adaptation strategies. The NAPCC simply reiterates adherence to “common

but differentiated responsibilities” of the Kyoto Principle and rejects binding

emissions reduction targets. The Plan fails to mention its expectations from the West

and limits itself to saying that the developed countries should “affirm their

responsibility for accumulated GHG emissions and fulfil their commitments under the

UNFCCC”.

According to another critique of the Plan, “Climate change provides a unique

opportunity to make India’s development path people and environment-friendly, but

the NAPCC completely misses that opportunity... Rather than challenge the model of

development that has already jeopardised the livelihood of millions and contributed to

the climate change, the NAPCC endorses it and says that sustaining the GDP growth

on the same old path is top priority”.456

455 Raghu, 'India’s Climate Action Plan: Many Points, No Direction' (6 July 2008) XXXII(26) People’s

Democracy . 456 Himanshu Thakkar, 'India’s National Action Plan on Climate Change: A Civil Society View: There is Little

Hope Here' (South Asia Network on Dams, Rivers and People, February 2009).

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Though the Plan has a welcome focus on promoting renewable energy, it fails to set

targets for increasing the proportion of renewable energy in the total energy mix. In

the Solar Mission, the plan does set a target of 80 per cent coverage for all low

temperature and 60 per cent coverage for medium-temp solar energy applications in

urban areas, industries and commercial areas but assessing performance is difficult as

it fails to give any benchmark figures. It does not mention nuclear and wind energy

potential as a clean source of energy. On the energy efficiency front, the plan

discusses new technologies but falls short of mandating increased energy efficiency.

On the contrary, the plan mentions the need for foreign investment for transfer of

technology from developed countries, which makes it a weak proposition.

On water resources, it admits that India is heading towards severe water scarcity but

only vaguely mentions to develop a framework to optimise water use by increasing

water use efficiency by 20 per cent. The plan attempts to push for more big dams,

irrigation projects, hydropower projects, interlinking of rivers and such other long-

distance water transfer projects.457

This was despite the increasing evidence of the

non-performance of such projects, whereas, there are many examples where the

community-driven processes have shown that through local water systems, it is

possible to achieve equitable, sustainable and pro-poor development.458

It merely

reiterates promises from earlier reports and documents such as increasing forest cover

to 33 per cent, a government target going back at least a decade, and a promise for

afforestation of 6 million hectares of degraded land, for which funds have been set

apart under the Supreme Court orders as compensation for diversion of forest lands

for commercial and industrial purposes.459

457 Gargi Parsai, 'Action Plan on Climate Change Lacks Transparency', The Hindu 2 March 2009. 458 Thakkar, above n 456. 459 Raghu, above n 455.

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The plan leaves many questions unanswered about its implementation and reaching to

the millions of people of India, nor does it specify the sources of funding for

implementation of the plan. There is a fear that it may just remain a hostage to the

concerned ministries for implementation. The design and implementation of legal and

institutional arrangement is left uncertain and compliance measures under the policy

are a major concern.

Despite these drawbacks, simply having such a plan is significant for climate- related

debates in India.460

The National Action Plan on Climate Change, though far from

sufficient, is a welcome step as a first concrete action towards addressing climate

change. The country does not have any legal framework in place to address climate

regime through the main environmental laws. India lacks any integrated law for

dealing directly and effectively with climate change, for example, the Resource

Management (Energy and Climate Change) Amendment Act 2004 of New Zealand

which promotes the use of renewable energy for reducing GHGs and the Climate

Change and Emissions Management Amendment Act 2003 of the Canadian province

of Alberta, the first law of its type to impose greenhouse gas cuts on large industrial

facilities.

2 Energy-Related Policies

India has a number of policies that, while not driven by climate concerns, contribute

to climate mitigation by reducing or avoiding GHG emissions. For example, the

Electricity Act 2003 requires that State Electricity Regulatory Commissions (SERCs)

must purchase a minimum percentage of power from renewable sources.

460 Anonymous, 'Climate Change: Not Vision, Not Plan' (12 July 2008) 43(28) Economic and Political Weekly 5.

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Policies related to some of the renewable and other sources of energy are discussed

below.

Wind Power - Wind power comprises over 65 per cent of renewable capacity, ranking

India fourth in terms of wind power generation worldwide.461

The Ministry of New

and Renewable Energy estimates the overall potential for wind power at 45,000 MW,

with only about 6270 MW currently developed.462

The central government allows 80

per cent accelerated depreciation for the first year; concessions on import duties, sales

tax and excise duties; and a 10-year income tax exemption for profits from wind

generation.

Solar Power - To encourage foreign investment in solar photovoltaic technology, the

government allows an automatic approval procedure for up to 74 per cent of foreign

direct investment in joint venture projects and up to 100 per cent foreign direct

investment is permitted if approved by the Foreign Investment Promotion Board. In

New Delhi, the use of solar water heating systems in certain categories of buildings

has been made mandatory.463

Other renewables - Biomass projects for power generation receive fiscal incentives

including subsidies, income tax holidays, excise duty and sales tax exemptions, and

accelerated depreciation. Small hydropower projects (up to 25 MW) are eligible for

incentives such as concessional customs duties and income tax exemptions for 10

years.

461 'Annual Report 2006-2007' (Ministry of New and Renewable Energy, Government of India, 2007). 462 'Climate Change Mitigation Measures in India: International Brief 2' (Pew Centre on Global Climate Change,

September 2008). 463 This category includes industries, hospitals and nursing homes, government buildings, educational institutions,

corporate and residential buildings having an area of 500 sq. km. and above.

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Coal - According to the NAPCC, about 7 per cent of the installed coal capacity is in

inefficient plants that will be retired by 2012, and an additional 10,000 MW will be

retired or reconditioned by 2017. Indian coal suffers from very high ash content which

reduces the efficiency of coal-fired power generation. Since 2001, the use of washed

coal has been mandated at all power plants more than 1000 kilometers from the

mining source, or in urban, sensitive and critically polluted areas.464

Nuclear Power - The Integrated Energy Policy sets a goal of increasing installed

nuclear capacity from about 3900 MW to 20 gigawatts (GW), a five-fold increase, by

2020.

Energy Efficiency: The Energy Conservation Act (2001) established a national

Bureau of Energy Efficiency (BEE) which develops energy efficiency labels for

refrigerators and other electrical appliances, conducts mandatory energy audits of

large energy-consuming industries, and establishes benchmarks for industrial energy

use. In 2007, the Energy Conservation Building Code was introduced, initially on a

voluntary basis, to establish energy performance requirements for commercial

buildings with loads of 500 KW and above.

Vehicles: The National Auto Fuel Policy (2003) mandated that all new four-wheeled

vehicles in eleven cities meet Bharat Stage III emission norms for conventional air

pollutants, (similar to Euro III emission norms), and comply with Euro IV standards

by 2010. The largest urban fleet of compressed natural gas (CNG) vehicles was

introduced in New Delhi and Mumbai to reduce pollution.465

464 'Climate Change Mitigation Measures in India: International Brief 2', above n 462. 465 In compliance of the Supreme Court Order in M.C. Mehta v Union of India, 6 SCC 12 (1999).

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Though the government of India has taken some voluntary actions to control emission

of greenhouse gases and to promote renewable energy, they are not adequate response

to the scale of the challenge. Moreover, it seems unlikely that the government will

undertake critical measures voluntarily - critical pollution controls in the past have

been motivated by the judicial intervention to protect the rights of people and exert

pressure on government and agencies to fulfil their statutory duties.466

In a number of

landmark environmental cases, the Supreme Court took active interest and accepted

various international principles into the Indian national law, and developed some

innovative principles, which took environmental jurisprudence to unprecedented

heights. The following section discusses the important role played by the Supreme

Court in environmental case over the last two decades.

III THE INDIAN SUPREME COURT AND ENVIRONMENTAL LITIGATION

The India Supreme Court is described as possibly the world’s most environment

friendly court. It has expanded the scope of environmental jurisprudence in India

through liberal interpretation of the Constitution. As opposed to most other

government institutions, since the late 1970s the Supreme Court has proven to be

remarkably adept at building a constituency and accumulating goodwill. The Supreme

Court of India construes and enforces the world’s lengthiest, most complex

Constitution, a mammoth document with 395 articles, twelve schedules and more than

100 amendments. The bulk of the Supreme Court’s work is devoted to construing the

fundamental rights provisions codified in Articles 14-32. What began in the late

1970s and early 1980s as a burst of judicial activism primarily pertaining to rights of

466 For instance, the government passed legislation adopting the Euro Emission II standards for all roads vehicles,

following litigation before the Supreme Court of India. See M.C. Mehta v. Union of India and Others, WP

13020/1985 (1999.04.06); shifting of tanneries in Ganga case, M.C. Mehta v. Union of India and Others,

(1997)2SCC411; relocating of hazardous industries outside Delhi, M.C. Mehta v. Union of India, AIR 1996 5

SCC 281.

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the underprivileged had, by the 1990s, expanded to other areas.467

Typical of this is

the court’s activism in the field of environment and through the introduction and

expansion of PILs, the Supreme Court has expressed the willingness to expand

environmental protection and allowed increased access to courts.468

The Supreme Court of India has come a long way from its early days of suppression

with a low social visibility to a liberated agency with a high socio-political

visibility.469

The Supreme Court used PILs as the remarkable method to enforce the

rights of vulnerable citizens. What made the PIL cases so extraordinary was the

Supreme Court’s radical departure from the usual rules of adversary judicial

procedure and separation of powers. PIL cases depart from the judicial norm in four

ways.470

First, PILs completely abandoned the traditional requirement of doctrine of standing

or the locus standi, that litigation can be carried out only by an aggrieved person. The

Court reasoned that many people unaware of their rights being poor and uneducated

are unlikely to bring a case for themselves, and allowed persons and organisations

working for public good to approach the court on their behalf. Second, the Court

waived all formal pleading requirement in PIL cases, allowed simple letters addressed

to just one justice of the bench and even newspaper clippings to be treated as petition,

and termed it as the ‘epistolary jurisdiction’. Third, the Court virtually abandoned

fact-finding in PIL cases, instead, established fact finding commissions. Mere

affidavits were considered to be sufficient rather than live testimony subject to cross-

467 Robert Moog, 'Judicial Activism in the Cause of Judicial Independence: The Supreme Court in the 1990s'

(May-June 2002) 85(6) Judicature . 468 J. Mijin Cha, 'A Critical Examination of the Environmental Jurisprudence of the Courts of India' (2005) 10

Albany Law Environmental Outlook Journal . 469 Upendra Baxi, 'Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India' (1985)

Third World Legal Studies 108, 1. 470 Neuborne, above n 381.

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examination. And fourth, the Court dramatically expanded its remedial powers, taking

note of failure of government institutions and requiring them to take steps to undo

past inaction.

The Court established a separate cell called the ‘PIL Cell’ seeing the substantial

progress in the number of PIL letters. The movement helped a number of poor people

to invoke the rule of law to better their lives. Though the PILs are not free from

criticism and the so called activism of the judiciary is debated by many, the popularity

gave a chance to people to know that the Court has constitutional powers of

intervention which can be invoked to ameliorate their miseries arising from

repression, governmental lawlessness and administrative deviance.471

Despite the

criticisms, PIL stands as a remarkable example of capability and commitment of the

judiciary to come forward for enforcing the right of the people. Since the early 1990s

the Supreme Court has probably been more active, at least in sheer number of cases,

in the environmental area than in any other normally associated with judicial activism.

Much of this is the result of M.C. Mehta, a Supreme Court advocate and

environmental activist who has met with remarkable success when petitioning the

Supreme Court.472

The Indian Supreme Court has accepted a greater burden than perhaps any other court

in the world. The Supreme Court with its receptive and visionary approach developed

many principles and set many precedents through some landmark cases that have

dramatically changed the scope and depth of environmental litigation in India.

471 Baxi, above n 469; Neuborne, above n 381, 504. 472 Robert Moog, 'Activism on the Indian Supreme Court' (1998) 82(3) Judicature , 129.

214

This section discusses various landmark environmental cases handled by the apex

court and the various important principles it developed and established in the process.

These principles will then be applied to test their effectiveness in addressing climate

change impacts and adaptation measures with reference to the Ganga Basin for the

two previously identified scenarios.

A Important Case Laws and Principles Developed therein

1 Right to Clean Water

The Supreme Court, using its constituent power in Subhash Kumar v State of Bihar,473

declared right to pollution-free air and water based on the constitutional guarantee of

right to life in Article 21.474

The Court held, "Right to live is a fundamental right

under Article 21 of the Constitution and it includes the right of enjoyment of life. If

anything endangers or impairs that quality of life in derogation of laws, a citizen has

right to have recourse to Article 32 of the Constitution for removing the pollution of

water or air which may be determined to the quality of life”.475

A right was declared but no accompanying remedy was provided. 476

Although the

decision in the case did not really pave the way to clean up the air people in Indian

breathe or the water they drink, it did facilitate cases being submitted directly to the

Court through its writ jurisdiction under Article 32. Article 32 is designed for the

enforcement of fundamental rights of a citizen by the Supreme Court. The Court can

issue various writs, (for example, Writ of Mandamus, Prohibition, Certiorari) for

ensuring protection of fundamental rights of the citizens of India.

473 Subhash Kumar v State of Bihar, AIR 1991 SC 424. 474 Though the case was filed as a Public Interest Litigation, the Court found it to be for private interest and gains

and fined the petitioner to discourage misuse of PILs. 475 Subhash Kumar v State of Bihar, AIR 1991 SC 424. 476 Moog, above n 472.

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The Supreme Court used its constituent power once again in MC Mehta v Union of

India, 477

and established the right of public to be educated in environmental matters.

In Rural Litigation and Entitlement Kendra v State of Uttar Pradesh,478

the Apex

Court converted a letter into written petition alleging that the operation of

unauthorised and illegal mining in the Mussorie -Dehradun belt affected the ecology

of the areas and led to environmental disorder. The Bench ordered mining operations

to close down on the ground that lime stone quarries operation was causing ecological

imbalance and a hazard to healthy environment.

The striking feature of this decision is that the Court converted a letter to writ petition,

under Article 32, without referring to any article from the chapter on fundamental

rights.

2 Precautionary Principle

The precautionary principle is part of national law in India and requires the parties

wanting to carry out developmental activities to provide evidence to support that the

intended activity is safe. In Vellore Citizens Welfare Forum v Union of India,

immense pollution was caused by the 600 tanneries in Vellore region in the State of

Tamil Nadu, India which were discharging untreated waste into agricultural fields,

road-sides, waterways and open lands. The untreated waste finally reached the Palar

River, the main source of water supply to the residents of the area. This severely

limited access to potable water for drinking and irrigation. Women and children had

to walk miles to get drinking water.

477 M.C. Mehta v Union of India, WP (C) No. 860/1991, Judgment dated 22 November 1991. 478 Rural Litigation and Entitlement Kendra v State of Uttar Pradesh, AIR 1985 SC 652.

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The Court adopted the precautionary principle into Indian environmental

jurisprudence and held, “... we have no hesitation in holding that the Precautionary

Principle and the Polluter Pays Principle are part of the environmental law of the

country. Once these principles are accepted as part of the Customary International

Law, there would be no difficulty in the Supreme Court in accepting them as part of

the domestic law. It is almost an accepted proposition of law that the rules of

Customary International Law which are not contrary to the municipal law shall be

deemed to have been incorporated in the domestic law and shall be followed by the

courts of law.”479

The Court broke the Principle into three basic tenets:480

1) That the government and statutory authorities must anticipate, prevent and attack

the causes of degradation; 2) where there are threats of serous and irreversible

damage, lack of scientific certainty should not be used as a reason for postponing

measures to prevent environmental degradation and 3) the onus of proof is on the

actor or the developer/industrialist to show that his action is environmentally benign.

The learned judges also observed that the new concept which places the Burden of

Proof on the developer or industrialist, who is proposing to alter the status quo, has

also become part of India’s environmental law.

In A.P. Pollution Control Board v. Prof. M.V. Nayudu,481

the Supreme Court

explained these principles in more detail. The Court observed that,

479Vellore Citizens Welfare Forum v Union of India and others, (1996)5SCC647. 480Vellore Citizens Welfare Forum v Union of India and others, (1996)5SCC647. 481 Andhra Pradesh Pollution Control Board v. Prof. M.V. Nayudu,, AIR 1999 SC 812.

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“In the environmental field, the uncertainty of scientific opinions has created serious

problems for the Courts. In regards to the different goals of science and the law in the

ascertainment of truth, the U.S. Supreme Court observed in Daubert vs. Merrel Dow

Pharmaceuticals Inc. (1993) 113 S.Ct 2786, as follows:

"...there are important differences between the quest for truth in the Court- room and

the quest for truth in the laboratory. Scientific conclusions are subject to perpetual

revision.

Law, on the other hand, must resolve disputes finally and quickly." It has also been

stated by Brian Wynne in `Uncertainity and Environmental Learning, (2. Global

Envtl.Change 111) (1992)

"Uncertainty, resulting from inadequate data, ignorance and indeterminacy, is an

inherent part of science."

Uncertainty becomes a problem when scientific knowledge is institutionalised in

policy making or used as a basis for decision-making by agencies and courts.

Scientists may refine, modify or discard variables or models when more information

is available; however, agencies and courts must make choices based on existing

scientific knowledge. In addition, agency decision making evidence is generally

presented in a scientific form that cannot be easily tested. Therefore, inadequacies in

the record due to uncertainty or insufficient knowledge may not be properly

considered. (The Status of the Precautionary Principle in Australia: by Charmian

Barton (Vol.22) (1998) (Harv. Envtt. Law Review p.509 at pp510-511).

The inadequacies of science result from identification of adverse effects of a hazard

and then working backwards to find the causes. Secondly, clinical tests are performed,

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particularly where toxins are involved, on animals and not on humans, that is to say,

are based on animals studies or short-term cell testing. Thirdly, conclusions based on

epidemiological studies are flawed by the scientist`s inability to control or even

accurately assess past exposure of the subjects. Moreover, these studies do not permit

the scientist to isolate the effects of the substance of concern. The latency period of

many carcinogens and other toxins exacerbates problems of later interpretation. The

timing between exposure and observable effect creates intolerable delays before

regulation occurs. (See Scientific Uncertainty in Protective Environmental Decision

making - by Alyson C. Flournay (Vol.15) 1991 Harv. Envtt. Law Review p.327 at

333-335).

It is the above scientific uncertainty in the environmental context, that has led

International Conferences to formulate new legal theories and rules of evidence…”

The Supreme Court considered the Vellore Judgement and observed that:

“The Vellore judgment has referred to these principles briefly but, in our view, it is

necessary to explain their meaning in more detail, so that courts and tribunals or

environmental authorities can properly apply the said principles in the matters which

come before them.

The Precautionary Principle replaces the Assimilative Capacity Principle:

A basic shift in the approach to environmental protection occurred initially between

1972 and 1982. Earlier the Concept was based on the `assimilative capacity` rule as

revealed from Principle 6 of the Stockholm Declaration of the U.N. Conference on

Human Environment, 1972. This principle assumed that science could provide policy-

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makers- with the information and means necessary to avoid encroaching upon the

capacity of the environment to assimilate impacts and it assumed that relevant

technical expertise would be available when environmental harm was predicted and

there would be sufficient time to act in order to avoid such harm. But in the Principle

11 of the U.N. General Assembly Resolution on World Charter for Nature, 1982, the

emphasis shifted to the ‘Precautionary Principle’, and this was reiterated in the Rio

Conference of 1992 in its Principle 15 which reads as follows:

Principle 15: In order to protect the environment, the precautionary approach shall be

widely applied by States according to their capabilities. Where there are threats of

serious or irreversible damage; lack of full scientific certainty shall not be used as a

reason for proposing cost-effective measures to prevent environmental degradation."

Thus the Supreme Court, after referring to the principles evolved in various

international Conferences and to the concept of ‘Sustainable Development’, stated

that “the Precautionary Principle, the Polluter-Pays Principle and the special concept

of Onus of Proof govern the law in India, and found that in Articles 47, 48-A and 51-

A(g) of Indian Constitution and in the various environmental statutes, such as the

Water Act, 1974 and other statutes, including the Environment (Protection) Act, 1986,

these concepts are already implied.

3 Strict and Absolute Liability

In M.C. Mehta v Union of India,482

a highly hazardous industry manufacturing caustic

chlorine and sulphuric acid was operating in the thickly populated area of Delhi. A

PIL was filed against oleum gas leakage in the industry which affected health of a

482 M.C. Mehta v Union of India, AIR 1987 SC 1965.

220

large number of people and caused the death of one person. The Supreme Court

allowed the plant to restart subject to certain stringent conditions laid down in the

order. But the notable development is that for the first time the Court came up with

the principle of strict and absolute liability setting aside the strict liability rule in the

English case Rylands vs Fletcher (1866). According to this, where an enterprise is

engaged in a hazardous or inherently dangerous activity and an accident in such an

operation results in the escape of a toxic gas, the enterprise is strictly and absolutely

liable to compensate all those who are affected by the accident, and such liability is

not subject to any of the exceptions under the rule of strict liability.

The Supreme Court clearly treated the right to live in a healthy environment as

fundamental right under Article 21 of the Constitution.

In the judgement, Chief Justice P. N. Bhagwati stressed on the need to develop a law

recognising the rule of strict and absolute liability in cases of hazardous or dangerous

industries operating at the cost of environment and the human life. The learned Chief

Justice observed:

"We in India cannot hold our hands back and I venture to evolve a new principle of

liability which English Courts have not done. We have to develop our law and if we

find that it is necessary to construct a new principle of liability to deal with an unusual

situation which has arisen and which is likely to arise in future on account of

hazardous or inherently dangerous industries which are concomitant to an industrial

economy, there is no reason why we should hesitate to evolve such principle of

liability merely because, it has not been so done in England".483

483 M.C. Mehta v Union of India, AIR 1988 SC 1089.

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The stricter standard applied in this case acted as the backbone of the Polluter Pays

Principle in India.

4 Polluter Pays Principle

The Polluter Pays Principle has firmly established itself in the judicial landscape of

India.484

In Research Foundation for Science Technology and Natural Resources Policy v.

Union of India and Another,485

the Supreme Court offered a definition of the Polluter

Pays Principle:

“The Polluter Pays Principle basically means that the producer of goods of other items

should be responsible for the cost of preventing or dealing with any pollution that the

process causes. This includes environmental cost as well as direct cost to the people

or property, it also covers cost incurred in avoiding pollution and not just those related

to remedying any damage. It will include full environmental cost and not just those

which are immediately tangible. The principle also does not mean that the polluter can

pollute and pay for it. The nature and extent of cost and the circumstances in which

the principle will apply may differ from case to case.”

The formal recognition of the principle came in Vellore Citizens Welfare Forum v

Union of India,486

where the Supreme Court held that:

484 Rajendra Ramlogan, 'Sustainable Development: Towards a Judicial Interpretation’ (Martinus Nijhoff

Publishers, 2011). 485 Case No Writ Petition (C) No.657 of 1995 (With S.L.P.(C) No.16175 and C.A. No. 7660 of 1997), Supreme

Court of India, Order dated 5 January 2005. 486 Vellore Citizens Welfare Forum v Union of India, (1996) 5 SCC 6 47.

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“During the two decades from Stockholm to Rio ‘Sustainable Development’ has come

to be accepted as a viable concept to eradicate poverty and improve the quality of

human life while living within the carrying capacity of the supporting ecosystems.

‘Sustainable Development’ as defined by the Brundtland Report means “Development

that meets the needs of the present without compromising the ability of the future

generations to meet their own needs”. We have no hesitation in holding that

‘Sustainable Development’ as a balancing concept between ecology and development

has been accepted as a part of the customary international law though its salient

features have yet to be finalised by the international law jurists... Remediation of the

damaged environment is part of the process of ‘Sustainable Development’ and as such

the polluter is liable to pay the cost to the individual sufferers as well as the cost of

reversing the damaged ecology... the Polluter Pays Principle have been accepted as

part of the law of the land...”

The Vellore case is considered to be one of the cases where the Supreme Court

attempted to achieve a balance between the challenges of development and

environmental preservation.

In another case, in the village of Bichchri in Udaipur (Rajasthan), an industrial

complex contained numerous chemical industries.487

The businesses heavily polluted

the surrounding environment by failing to treat and dispose of their waste products

safely.

The respondents were operating without obtaining the requisite

clearances/consents/licences and they failed to install any equipment for treatment of

487 Indian Council for Enviro-Legal Action v. Union of India, 1996 (3) SCC 212.

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highly toxic effluents discharged by them. Since the toxic untreated waste waters

were allowed to flow out freely and because the untreated toxic sludge was thrown in

the open in and around the complex, the toxic substances percolated deep into the

bowels of the earth polluting the aquifers. The water in the wells and the streams

turned dark and dirty rendering it unfit for human consumption, unfit for cattle to

drink and for irrigating the land. The soil became polluted, rendering it unfit for

cultivation, the mainstay of the villagers. It spread diseases, death and disaster in the

village and the surrounding areas. The villagers then rose in virtual revolt leading to

the imposition of Section 144 CrPC by the District Magistrate in the area.

A PIL was filed before the Supreme Court by an environmentalist organization

requesting for appropriate remedial action. The Supreme Court found that several

state authorities, in their positions as public trustees, were responsible for monitoring

these factories. The authorities failed to prevent the pollution. Applying the Polluter

Pays Principle, the Supreme Court ordered that the companies must pay to restore the

damage and ordered the statutory authorities to conduct the restoration using money

from the companies.

The Supreme Court invoked Article 48-A,488

Article 51-A,489

Water (Prevention and

Control Pollution) Act, 1974,490

Air (Prevention and Control of Pollution) Act,

1981,491

and the Hazardous Wastes (Management and Handling) Rules 1989.492

The

488 It says that the State shall endeavour to protect and improve the environment and to safeguard the forests and

wildlife of the country. 489 It sets out the fundamental duties of the citizens. One of them is (g) to protect and improve the natural

environment including forests, lakes, rivers and wild life, and to have compassion for lining creatures” 490 Section 24(1) of the Water Act provides that “Subject to the provisions of this section- (a) no person shall

knowingly cause or permit any poisonous, noxious or polluting matter determined in accordance with such

standards as may be laid down by the State Board to enter (whether directly or indirectly) into any stream or

well ...” 491 Section 3 empowers the central government “To take all such measures as it deems necessary or expedient for

the purpose of protecting and improving the quality of the environment and preventing, controlling and

abating environmental pollution”. Sub-section (2) elucidates the several powers inhering in the central

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Court noted the finding in the Oleum Gas Leak Case under which an enterprise that is

engaged in a hazardous or inherently dangerous activity, which results in harm to

anyone, is strictly and absolutely liable to compensate all those who are affected by

the activity and are bound to take all necessary measures to remove sludge and other

pollutants lying in affected areas.

In M.C. Mehta v Kamal Nath, the court held that if rights were violated by disturbance

of environment, damages could be awarded not only for causing ecological

imbalance, but also for the victims who have suffered due to that disturbance.493

Thus the Polluter Pays Principle in the context of Indian environmental jurisprudence

includes both the cost of compensating the victims of pollution and also restoring the

environment to its undegraded condition.

5 Public Trust Doctrine

The Indian Express carried a report detailing the activities of a private company, Span

Motels Private Limited, in which the family of a former Minister for Environment and

Forests had a financial interest. The company was found to have diverted the course

of the river Beas in order to save itself from future floods and reclaimed prime forest

land in the state of Himachal Pradesh in order to beautify the motel.

Not only did the Supreme Court adopt the Public Trust Doctrine but set exemplary

damages on the Minister as a deterrent for others.494

The discussion included Roman

government in the matter of protection and promotion of environment. Section 5 empowers the central

government to issue appropriate directions to any person, officer or authority to further the objects of the

enactment. Section 6 confers rule-making power upon the central government in respect of matters referred to

in Section 3. Section 7 says that “no person carrying on any industry, operation or process shall discharge or

emit or permit to be discharged or emitted any environmental pollutant in excess of such standards as may be

prescribed”. 492 Prescribing the manner in which the hazardous wastes shall be collected, treated stored and disposed of. 493 M.C. Mehta v. Kamal Nath, AIR 1991 SC 420.

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Law, Indian and American cases, and academic opinion. It was held that, without any

specific laws which deal with the use of public resources, the executive is bound by

the doctrine of public trust. The Public Trust Doctrine holds that certain natural

resources which are too important to be in private ownership should be owned by the

public at large and are thus held in trust by the State. As such it cannot “abdicate the

natural resources” and convert them into private ownership. The State was held to be

a trustee and therefore under a legal duty to protect natural resources.

The importance of development and acceptance of these principles and doctrines in

significant growth of environmental jurisprudence in India cannot be overemphasised.

This made the people aware of their rights and made the Supreme Court more

accessible to the needy. It is a role which few other courts are able to undertake, under

their Constitutions, or are willing to take because of judicial conservatism. The open

standing and simple writ process means that the Indian Supreme Court has had a

wider range of issues, perceptions and interests argued before it, providing insight and

experience for the Supreme Court in environmental matters. The Supreme Court is in

a unique position to apply these principles for furthering the cause of protecting

people’s rights and pressurising the government authorities to perform their statutory

duties as public trustees to address climate change and take appropriate adaptation

measures for its impacts.

IV CONCLUSION

Though the process of climate change is certain, there is great uncertainty associated

with nature and timing of climate change and it is hard for law to keep up with them

or for new laws to be framed to address specific concerns arising due to changing

494 M.C. Mehta v. Kamal Nath, AIR 1991 SC 420.

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climate. Laws and institutions need to evolve along with the unfolding of events of

climate change and so legal institutions play an important role in applying the existing

laws and in formulating innovative strategies to deal with new and unforeseen

situations.

The present Indian environmental laws and enforcement institutions seem highly

unlikely to be able to cope with the potential climate change impacts. In the event of

the government and institutions failing in their statutory duty of protecting the

environment and the people’s rights, the Supreme Court has often taken the challenge

up itself. The Supreme Court, either by way of Public Interest Litigations (PILs) or on

its own, has taken up the cause and has forced the government and enforcement

agencies to perform their statutory duty and to implement the existing laws and was

successful in protecting environment and the people. It devised new and innovative

principles and incorporated many internationally accepted laws into the country’s

legal system.

With climate change presenting new challenges and the likely inadequacy of existing

laws to tackle it and in absence of any explicit climate legislation, the Supreme Court

would need to play an important role in addressing climate change related disputes

and may also require adaptation solutions to be developed by the government and

private sector that are viable for both the environment and the people.

The next chapter discusses the role the Supreme Court could play in case of climate

litigations arising in case of two identified scenarios in the Ganga Basin. In this role,

the Supreme Court provides leadership and acts as a catalyst, but it cannot replace

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governance under the Constitution. Policy and legal development primarily remain

the responsibility of governments.

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CHAPTER 6

THE ROLE OF THE SUPREME COURT IN ADDRESSING CLIMATE

CHANGE IN THE GANGA BASIN IN INDIA

It is the primary role of Parliament and the government to make laws and policies in

response to changing conditions due to climate change to ensure effectiveness of the

laws to changed situations and to increase resilience to its projected negative impacts.

It is a viable policy position that at the very least, government should provide the

primary leadership, informed by a precautionary approach, to adapt to climate change.

Many adaptation measures related to water scarcity, adjusting to extreme events such

as floods and providing equitable use are win-win option for good governance and

risk management. This is the case regardless of whether there is conclusive evidence

that the events are caused by climate change and climate variability.

However, under the Indian Constitution, the Supreme Court, as the third organ of the

state, performs an important function of maintaining checks and balances on the

legislature and executive. In case of their failure to take timely or appropriate actions,

the Supreme Court can be approached for necessary directions.

A vigilant court can help promote environmental protection and the court can require

government to take timely action to address climate change and to facilitate

adaptation to its impacts, which often require taking urgent measures (for instance,

relocation of people, promoting efficient water use techniques, switch over to clean

fuel) when governments may be unwilling to take such drastic measures for the fear

of losing citizen support. Under these circumstances, the Supreme Court, may be

prepared to take measures for long term benefits of the environment and people and

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determine processes for enforcement. It has done so on many occasions through

public interest litigations (PIL). For example, in a landmark case against pollution

from vehicles and its health impacts in Delhi, it ordered the whole of Delhi's public

transport to switch over to cleaner fuel Compressed Natural Gas (CNG).495

Although

it was initially met with severe criticism by citizens as well as government, it later

contributed to a noticeable improvement in pollution levels in Delhi.496

Because of this role in taking initiatives for protecting the environment and people,

the Supreme Court is held in high esteem by the people of India. Through its liberal

and broad interpretation of the Constitution, it has brought justice closer to many

Indians, especially the poor. As seen in the last chapter, the Supreme Court has been

innovative in the past and applied various international principles to Indian conditions

in landmark environmental cases. The Supreme Court is in unique position to

facilitate legal and institutional change necessary to develop and implement

adaptation measures to the climate change impacts in India and in particular, the

Ganga Basin. Obviously, they cannot undertake these tasks alone and success depends

on the many attributes of good governance. However, the Supreme Court can require

studies, educational programs, political and administrative action necessary to

develop options for address climate impacts and promoting adaptation to climate

change impacts in the Ganga Basin.

The Indian Supreme Court has a wider jurisdiction and powers than many comparable

national courts but it has limitations as well. Though it can bring an action suo moto,

i.e. it can take cognizance of the matter on its own, but it may not be able to do much

495 M.C. Mehta v Union of Union, 6 SCC 12 (1999). 496 See, for example, Sidhartha P. Goyal, 'Present Scenario of Air Quality in Delhi: A Case Study of CNG

Implementation' (December 2003) 37(38) Atmospheric Environment 5423; 'Status of the Vehicular Pollution

Control Programme in India' (Central Pollution Control Board (CPCB), Ministry of Environment & Forests,

Government of India, March 2010).

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unless the matter is brought before it to adjudicate. Given the nature of climate change

and the problems associated with it, it is likely that ordinary people will be profoundly

affected and that a number of cases could be brought before the Supreme Court.

This chapter discusses research question nine and ten by reviewing the role the

Supreme Court of India could play in addressing climate change impacts, within its

constitutional framework potentially applying existing legal doctrine, principles and

approaches, adopted by it in landmark environmental cases, to scenarios A and B in

the Ganga Basin. It also discusses possible limitations of the role and power of the

Supreme Court given the nature of the institution and the separation of powers under

the Indian Constitution.

I POSSIBLE ROLE OF THE SUPREME COURT IN LEGAL AND INSTITUTIONAL CHANGE IN

CASE OF IDENTIFIED SCENARIOS IN THE GANGA BASIN

The following discussion identifies the potential defendants and plaintiffs in the event

of the Scenario A i.e. increased melting of glaciers due to global warming and

resultant increased water flows in rivers; and Scenario B i.e. cessation of river flows

due to significant melting of glaciers in the long run, occurring in the Ganga Basin. In

the emerging area of climate litigation, arguably the Courts’ role has extended by the

need to develop and adapt legal principles to identify wrongdoers, recognise the

wrong done and allocate blame and apportion the losses. It will be important to see

the extent to which the present legal regime and the principles and doctrines, which

although originally not specifically designed for addressing climate change, could

potentially be applied by the Supreme Court to climate impacts in the Ganga Basin.

The potential defendants are collectively identified for both the scenarios A and B as

climate change will be the main cause for both the events and so, the defendants

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whose activities would be claimed to give rise to or add to the problem will be very

much same for the two events. Potential plaintiffs for Scenarios A and B are also

identified collectively as some of the rights violated of the people would be common

and the same people might fall victim to both the scenarios, although, over a space of

time.

Potential defendants in case of scenarios A and B could be:

1. Direct producers of fossil-fuels;

2. Large-scale users of fossil-fuels, example coal-fired power plants, whether

publically or privately owned;

3. Indirect emitters;

4. Manufacturers of emitting products, example producers of automobiles;

5. Governmental institutions failing to regulate GHG emissions;

6. Proponents of development (such as dams), and regulatory authorities that approve

them, increasing vulnerability to climate impacts and impeding or reducing adaptation

options;

7. Authorities failing to control large scale deforestation of Himalayas, leading to

increased emissions of CO2 and so contributing to climate change.

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Potential plaintiffs in case of scenarios A and B could be:

1. Any citizen whose right to life and right to a healthy environment and clean water

is at risk;

2. Property owners who may experience increased inundation of their property

initially due to faster melting glaciers, and eventually reduced value of their property

due to the extremes of water availability;

3. Those whose resources are affected by the consequences of climate change;

4. Those whose health and living conditions are detrimentally affected by climate

change in the form of personal injury or loss of life. For example, increased water-

borne diseases as an aftermath of floods or droughts that may cause deaths or

migration of people;

5. Citizens such as farmers whose livelihoods will be negatively affected, for

example, by reduced crop yield due to reduced water availability;

6. Pilgrims, sadhus, saints and Hindus who may not be able to take holy dip in the

Ganga and perform religious ceremonies along its banks due to flash flooding or

subsequently reduced water availability in the river, and thus deprived of their

fundamental right to profess, practice and propagate their religion;497

7. Tourist operators and members of other sectors reliant for a living on pilgrims

travelling for religious ceremonies to visit the Ganga River.

497 Article 25 (1) sates, “Subject to public order, morality and health and to the other provisions of this Part, all

persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate

religion”. Constitution of India, Article 25 (1).

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Applying the Polluter Pays Principle, the victims of damage caused by climate change

could sue companies or utilities such as power plants, oil companies, electricity

suppliers, producers of fossil-fuels, agencies responsible for managing forests and

manufacturers of vehicles whose emissions cause global warming. However, it may

be difficult for the Court to establish direct causal linkage between the defendants’

emissions and the injury claimed by the plaintiff.

The victims can also sue the government for having allowed the harmful conduct of

the public, private and state-owned companies or utilities directly responsible for the

GHG emissions or for their failure to take appropriate mitigation and adaptive

measures to prevent such damage. For example, actions may be brought because of

the failure of government to necessarily extend the flood defence. The victims can

also sue the government for violation of their fundamental right to religion due to

reduced water in the rivers and the religious values associated with the Ganga River.

People who will be affected due to construction of a series of dams could sue the

government for failing to consider the impacts of multiple dams on the river and

enhanced risks due to climate change on the dams and the river.

Also, the government or other institutions could bring a case against companies or

utilities for failure to take adequate measures to reduce emissions and undertake

mitigation measures. The case can be brought for actual damage as well as for the

costs of adaptation as a result of climate change and for restoration of environment.498

In addition, the companies and utilities can also sue the government for the costs they

would need to incur for investment in accordance with state policy measures to

498 Discussed in chapter 5.

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combat the predicted consequences of climate change which may actually fail to

materialize in the end.499

If cases, based on Scenarios A and B, were initiated, the Supreme Court could apply

the constitutional provisions and the principles and doctrines adopted by it in

landmark environmental cases, as discussed in last chapter. Also, common law

principles such as negligence and nuisance may also be invoked to redress the climate

wrongs.

A Action under Constitutional Provisions for Addressing Climate Change

Various constitutional provisions related to protection and safeguarding of the

environment may play an important role and can be invoked in the Supreme Court for

action under identified climate change scenarios. The Supreme Court has been quite

creative in its interpretation of the Constitution and has invented an impressive range

of concepts. Increasingly, the Supreme Court is being identified by both the justices

and the people as the “last resort for the oppressed and the bewildered”.500

As previously discussed, one important feature of the Indian Constitution is that it

contains a chapter on fundamental rights (in Part III) along with the Directive

Principles of State Policy (in Part IV) of the Constitution.501

The Directive Principles

constitute an important and creative part of the Constitution and encapsulate the social

and economic rights of the people. The Directive Principles cannot be enforced in a

court of law, but the Constitution has declared them to be fundamental in the

499 Miriam Haritz, 'An Inconvenient Deliberation: The Precautionary Principle’s Contribution to the Uncertainties

Surrounding Climate Change Liability’ (Kluwer Law International, 2011) 145. 500 Baxi, above n 469. 501 Discussed in chapter 5.

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governance of the country, so that not only the legislature and the executive but also

the judiciary are bound to act in furtherance of them discharging their functions.

As noted earlier, the Indian Supreme Court has expanded Article 21 of the

Constitution and included the right to clean water and environment in the right to life.

The High Court, in states, have also included this in their orders and judgments. For

example, in a decision by the High Court of Andhra Pradesh, the High Court

expressly invoked Article 21 and noted that the right to a clean environment is a

fundamental right and stated that, “The slow poisoning of the atmosphere caused by

the environment pollution and spoliation should be regarded as amounting to a

violation of Article 21 of the Constitution”. 502

The Court further asserted that it is

“the legitimate duty of the Courts as the enforcing organs of the constitutional

objectives to forbid all actions of the State and the citizens from upsetting the

ecological and environmental balance.”503

Thus, the Supreme Court of India and other

lower courts have expanded fundamental rights enshrined in the Indian Constitution

and have included environmental protections and the right to a clean and healthy

environment in it.

The Supreme Court has liberally interpreted the Constitutional provisions and

environmental legislation and accepted a number of public interest litigations (PILs)

covering a range of subjects including environmental protection, and in the process

broadened the horizons of justice to bring it closer to the people. The main obstacle

that stood in the way of the disadvantaged and the access to justice was the traditional

rule of locus standi, meaning, the litigants must show that they are adversely affected

by the impugned action or that their rights have been violated. This rule of standing

502 T. Ramakrishna Rao v. Hyderabad Urban Development, Writ Petitions No. 36929 of 1998 (July 20, 2001). 503 Ibid.

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effectively barred the doors of the Court to the poorly educated masses. The Supreme

Court therefore decided to deviate from the traditional rule of locus standi and

broadened the access to justice. It allowed any member of the public or social action

group to bring a case, acting bona fide, in the High Court or the Supreme Court, on

behalf of a person or a class of persons, who suffered a legal wrong or injury by

reason of violation of their constitutional or legal right, and are not able to reach the

courts by reason of their poverty or disability.

The Supreme Court also realized that when a member of the public or a social action

group is allowed to raise a cause for the poor, it might not be fair to expect them

acting pro bono publico to incur the expensive cost of litigation, hiring lawyer and

preparing a regular petition, and so, in such a case, the Supreme Court accepts a

simple letter as an appropriate proceeding under Article 32 of the Constitution. This

came to be known as the “epistolary jurisdiction” where the Supreme Court can be

moved by just addressing a letter on behalf of the disadvantaged class of persons.

Furthermore, the Supreme Court states that the letters need not be addressed to the

Court or the Chief Justice, and even a letter addressed to individual justice would

suffice, as most of the letters would be written by poor or disadvantaged people who

may know only one particular judge from their state.

Epistolary jurisdiction has proved to be a major breakthrough in bringing justice

closer to the poor and helped people to know that the Supreme Court has

constitutional power of intervention, which can be called upon to alleviate their

miseries arising from repression, governmental lawlessness and administrative

deviance.504

However, not every letter addressed to the Supreme Court or to an

504 Baxi, above n 469.

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individual justice is treated as a petition. Only where the letter is addressed by or on

behalf of a person in custody or for enforcement of the constitutional or legal rights of

a class or group of persons, does the Supreme Court entertain a letter as a petition. As

pointed out earlier, the Supreme Court can also accept a case suo moto in PIL.

The Supreme Court has waived the rule of prematurity or “ripeness” and allowed the

cases about fundamental rights to be decided before any actual violation occurs, on

the ground that majority of people may not be aware of their rights and their

violations.505

Thus, in case of climate change scenarios occurring in the Ganga Basin,

a substantial threat of violation of rights due to climate change should be sufficient to

invoke the Supreme Court’s jurisdiction under Art 32. The Supreme Court also has

the authority to determine whether an injury has occurred or not without relying on

statutory enactments.

The Supreme Court’s invocation of epistolary jurisdiction could prove promising in

case of claims arising from the scenarios A and B in the Ganga Basin. Any public

spirited person or organisation, may be able to bring a case, by a simple letter petition

even before actual harm occurs and claim the protection of their rights which may be

violated due to climate change.

Though the liberalization of the doctrine of locus standi has made justice more

accessible and open to public interest litigants, it may have many negative impacts

too. It may lead to a flood of litigation, as a letter itself is sufficient and may act as a

petition to the Supreme Court. There are also chances of people misusing this

505 S.P. Sathe, 'Judicial Activism: The Indian Experience' (2001) 29(6) Washington University Journal of Law &

Policy .

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provision for their personal gains. By liberalizing the rules of standing in PIL, the

Court may risk losing its legitimacy.

The Supreme Court has acknowledged that it may be difficult for the poor and

uneducated people and the social organisations to produce evidence in favour of their

cases or for proving violation of their legal right, on account of their lack of resources.

The Supreme Court, therefore, has resorted to many innovative strategies to order

their own investigation. In various cases, it has appointed social activists, teachers,

researchers, journalists, and government and judicial officers as Court commissioners

to visit particular locations for fact-finding and to submit a report setting out their

findings as well as their suggestions and recommendations.506

For example, in Rural

Litigation & Entitlement Centre, Dehra Dun, 507

the Supreme Court appointed a panel

of geological experts and a panel of environmental experts to advise the Court,

enabling them to make an informed decision about whether limestone quarries should

be stopped or allowed in the Mussoorie hills.

Some judges also used spot visits to get first-hand information and to understand the

nature of environmental problems. For instance, in Ratlam Municipal case,508

Justice

V.R. Krishna Iyer visited the Ratlam town and assessed the problem before directing

the Ratlam Municipality to take appropriate measures for constructing drainage

systems in the city.509

In the Narmada Dam case, Justice S.P. Barucha visited the dam

site before arriving at a decision and expressed dissatisfaction with the rehabilitation

506 ‘P.N. Bhagwati, 'Judicial Activism and Public Interest Litigation' (1984-1985) 23 Columbia Journal of

Transnational Law . 507 Rural Litigation & Entitlement Centre, Dehra Dun v. State of Uttar Pradesh, Writ No. 8209 (S.C. 1983). 508 Municipal Council, Ratlam vs Vardichan and Ors, (1980) 4 SCC 162. 509 Geetanjoy Sahu, 'Implications of Indian Supreme Court’s Innovations for Environmental Jurisprudence' (2008)

4(1) Law Environment and Development Journal .

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process and the way of giving environmental clearance to construct the dam in the

river valley.510

Though the spot visits have been helpful in providing on the ground information and

assessment of environmental conditions by the judges, it depends on personal interest

taken by the judges and may not be feasible to undertake in every case.

The Supreme Court has even shown willingness to be flexible in cases involving

significant environmental damage. For example, in the River Ganga case, as

mentioned earlier, a petition was filed against pollution created by the Kanpur

tanneries and Kanpur Municipal Council in the River Ganga, and the Supreme Court

ordered notices in newspapers asking all the concerned industries, Municipal

Corporation and Municipal Councils to appear before it.511

The case started against

two industries for creating pollution in the River Ganga, but the Supreme Court

expanded the scope of litigation to include nearly 200,000 industries and 300 cities

and towns all along the course of the Ganga.512

Similarly, in T.N. Godavarman case, a

petition was filed to protect the Nilgiri forests from deforestation by illegal timber

operations, the Supreme Court expanded the matter of ceasing illegal operations in the

Nilgiri forests into reformation of the entire country’s forests.513

As a lack of proper remedies would undermine all these innovations adopted by the

Supreme Court to address problems of the disadvantaged people, the Court invented

new remedies for giving relief. For example, the Supreme Court, while ordering the

hazardous polluting industries in Delhi to relocate, ensured the rights of labourers

510 Narmada Bachao Andolan v. Union of India and Others, AIR 2000 SC 3753. 511 M.C. Mehta v. Union of India, AIR 1988 SC 1037. 512 Mehta, above n 146, 91. 513 T. N. Godavarman v. Union of India, AIR 1997 SC 1228.

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were safe. 514

The Supreme Court ordered that the workers would have the same

opportunity of employment at the new business location, and the industries to pay

normal wages for the duration of the shift. For those labourers, who chose to relocate

with the industries, and those who had been employed for one year with the industry,

the Supreme Court ordered them to be paid one year’s wages as a ‘shifting bonus’,

and those who were employed over one year to be paid six years’ wages.

It should be noted that with this judicial activism, the Court did not try to act like a

parallel government but merely enforced the constitutional and legal rights of the

underprivileged by making the government carry out its obligations under the law.515

The Supreme Court can also provide remedies by issuing writ of mandamus

compelling the government and an authority to do what it is legally bound or

forbidden to do. This can be useful in case of climate related litigation. The Supreme

Court can also issue “continuing mandamus” obligating the government to take

specific actions and report progress on a regular basis.516

As the orders of the

Supreme Court need to be enforced, the failure of state agencies to implement the

orders and actively cooperate in the task mars the whole purpose of public interest

litigation and denies effective justice to the poor and disadvantaged. Thus, the

Supreme Court went one step further to ensure effective enforcement and appointed

monitoring agencies.

With this progressive attitude, the Supreme Court can be expected to play a

significant role in the case of scenarios A and B unfolding in the Ganga Basin to

514 M.C. Mehta v Union of India, 1996 SCC (4) 750, JT 1996 (6) 129. 515 Bhagwati, above n 506. 516 Deepa Badrinarayana, 'The Emerging Constitutional Challenge of Climate Change: India in Perspective' (2009)

19(1) Fordham Environmental Law Review .

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protect people’s rights. As discussed earlier, climate change will encroach upon the

fundamental right to life, including the right to water and livelihood, under Article 21

of the Constitution. Using the Court’s liberal provisions of broad locus standi, any

public spirited person or group of persons or social organisation, in the Ganga Basin

or elsewhere in India, may be able to bring an application to invoke the Supreme

Court’s intervention, even by way of a letter addressed to the Supreme Court and also

even before the harm actually occurs. Also, many principles and doctrines, adopted by

the Supreme Court in the course of deciding environmental cases like the

Precautionary Principles, Polluter Pays Principle, Strict and Absolute Liability and the

Public Trust Doctrine can also be applied by the Supreme Court for giving relief to

the people in the Ganga Basin.517

Under the Precautionary Principle, the state should take preventive measures to

reduce the severity of harm that may be incurred due to climate change, even when

the science is uncertain. Based on available literature, as discussed in chapter 2, it can

be inferred that there is sufficient risk of climate change affecting the melting of

glaciers and in turn flows in the river, and so an action in precautionary principle may

be sustainable in the Supreme Court. The Supreme Court may issue writ of mandamus

requiring government to take precautionary measures to address climate impacts.

The Supreme Court may also hold the government and the enforcement institutions as

under obligations to protect natural resources of India for the benefit of present as

well as future generations as a trustee under the Public Trust Doctrine. Climate

change projections will impact the River Ganga in multiple ways with increased

melting of glaciers, intense precipitation in fewer days and enhanced evaporation. In

517 These are discussed in detail in chapter 5.

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addition, the construction of multiple dams is having increasingly negative effects on

the health of the river. The failure of government and institutions to control and

reduce the disastrous effects on the river due to climate change and dams can be

challenged in the Supreme Court. The Supreme Court may direct the government and

concerned agencies to develop adequate mechanism to adapt to climate change,

improve resilience and options for future adaptation and to take precautionary

measures such as reconsidering the construction of multiple dams.

In case of scenario A with increased glacier melt resulting in floods, the Supreme

Court may direct the government to relocate the people to safer areas, restrict

development activities along the banks of the river, make infrastructure resilient to the

impacts of climate change and order studies for evaluating the effectiveness of these

dams for adaptation measures to climate change.

In case of scenario B with little water from the glaciers and the resulting droughts in

the Basin, the Supreme Court may direct the government to provide water for

drinking and for other purposes to meet the basic needs of people. The Court may also

suggest promoting less water intensive agriculture in the Basin and also promoting

less water intensive livelihood options, like giving training to people in handicrafts.

However, much depends upon the discretion of the Court to accept or reject a case in

the case of climate change scenarios, as it has adopted an inconsistent approach in the

past. For example, it established a committee in the Doon Valley case, mentioned

earlier, for inspecting the limestone quarries and, on the basis of the Committee’s

report, ordered certain mining operations to be closed. Similarly, in S. Jagannath v.

Union of India, the Supreme Court, on the basis of Central Pollution Control Board

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study and other expert committees, declared the intensive and semi-intensive

aquaculture environmentally harmful. However, in the Tehri Dam case, ignoring the

report of the Environmental Appraisal Committee of the Ministry of Environment and

Forest which concluded that the Tehri Dam Project did not merit environmental

clearance,518

the majority judgment allowed the government to construct the dam

without ensuring compliance with the conditions of environmental clearance of the

project.519

However, given the openness of the Supreme Court to accept new principles and

doctrines and willingness to interpret the Constitution broadly to protect the rights of

the people and the environment, it may not be only strategically desirable but an

important option in addressing climate change.

B Action in Tort

Apart from the constitutional provisions and in the absence of a specified legislative

framework specifying climate change impacts, the Supreme Court, recognizing a

preventive approach, may rely upon the conventional legal tools, such as interim

injunctions, or negligence and nuisance, for the purposes of restraining the harm to

public health and environment. Many such legal mechanisms were developed in the

context of protection of property or economic concerns, mostly for protecting private

rights, and were not intended as a means to avert harm to common interest or shared

resources. However, a very high threshold test would be required for the satisfaction

of the courts before they permit any interference with these rights to protect health or

518 Tehri Bandh Virodhi Sangarsh Samiti and Others v. State of Uttar Pradesh and Others, 1992 Supp (1) SCC 45. 519 Prashant Bhushan, 'Supreme Court and PIL' (2004) 39(18) Economic and Political Weekly .

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the environment.520

Generally, applicants seeking the court’s intervention will be

required to satisfy legal conventions of proof with sufficient evidence to justify their

claims of threat of serious or irreversible damage. This may present an impediment in

cases where scientific knowledge about the likelihood of risk to health and

environment due to climate change is uncertain and involves scientific and legal

resources that are scarce and expensive.

1 Action for Negligence and Strict Liability

In order to bring an action under negligence, a plaintiff is required to demonstrate that

the defendant owed him or her a duty of care, that the duty of care was breached due

to the defendant’s action or inaction and that it resulted in an injury or damage to him

or her. The existence of duty of care depends upon the relationship between the

parties. A key aspect of establishing whether a duty exists is whether it was

reasonably foreseeable to a person in the defendant’s position that his action or

omission would be likely to cause the harm suffered by the plaintiff. Beyond the

established categories, the court may consider the ‘reasonable foreseeability’ of the

circumstances as described in the well-known ‘neighbour principle’:

“You must take reasonable care to avoid acts or omissions which you can reasonably

foresee would be likely to injure your neighbour. Who then, in law, is my neighbour?

The answer seems to be – persons who are so closely and directly affected by my act

that I ought reasonably to have them in contemplation as being so affected when I am

directing my mind to the acts or omissions which are called into question.”521

520 Jacqueline Peel, 'The Precautionary Principle in Practice: Environmental Decision-Making and Scientific

Uncertainty’ (The Federation Press, 2005). 521 Donoghue v Stevenson, [1932] AC 562 at 580.

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However, claiming liability in negligence in case of climate change could be difficult

owing to the uncertainty in science relating to causation and difficulty in setting the

optimal standard of care, as the exact scope of specific damage is hard to anticipate

and calculate when the events materialise.

For example, when an applicant sues an oil company or any utility contributing in

emissions of CO2, the question for climate change is to what extent the violation of

law could be foreseen in the emissions themselves (act) or in allowing emissions of

CO2 (omission), whether that constitutes a violation of law (for example, the

Precautionary Principle) or breach of a duty of care. Since the impacts of climate

change extend beyond the local community to regional, national and global spaces

over long time scales, the respondent may be able to claim that the harm caused to the

plaintiff due to climate change was not foreseeable at the time of emission of

greenhouse gases or that their emissions are not solely or significantly responsible for

the harm claimed.

However, the Inter-governmental Panel on Climate Change (IPCC) Report identifies a

clear link between temperature increases and greenhouse gas emissions and concludes

that “most of the observed increase in global average temperatures since the mid-20th

century is very likely due to the observed increase in anthropogenic greenhouse gas

concentrations”.522

As scientific certainty related to evidence of consequences of

climate change, as laid down in IPCC reports, grows, so the foreseeability and

calculability of the costs of continued GHG emissions grows. Most scientific studies

now predict rising temperatures and direct impacts from them, such as reduced glacier

522 Climate IPCC, 2007: Summary for Policymakers. In: Climate Change 2007: The Physical Science Basis.

Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate

Change [Solomon, S., D. Et. Al. (eds.)]. Cambridge University Press, Cambridge, United Kingdom and New

York, NY, USA, 10. ‘Very likely’ according to the IPCC Report refers to a scientific certainty of above 90

percent.

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ice, and so, can be considered as foreseeable impacts.523

Other issues like the timing

of impacts of climate change, question of what impacts and where they may occur,

remain problematic.

The indirect types of harm resulting from the interaction between rising temperatures

and other factors may be less foreseeable, but even these are now widely

anticipated.524

With the increased scientific certainty and advancements in the

scientific predictions of the causative impacts of emissions, it could be said that nexus

between the emitter of GHGs and the injured party is expected to become closer and

more direct in coming decades.525

Principles of joint and several liability may apply when a group of actors are found

liable for an indivisible injury. There are examples of joint and several liability for

contaminated land in the United States where a small contribution to pollution can

result in liability for the clean up or other mitigation action. It is then the

responsibility of the defendant to seek contribution from other polluters. In the

contaminated land context, owners and occupiers may also be liable to clean up

contamination that they did not cause. This is a form of “economic” risk and

allocation of the cost of remediation. Past pollution may be difficult to prove and

responsible individuals or companies may no longer exist. Therefore, clean up

liability is primarily aimed at parties who have an economic interest in land or the

carrying on of activities on the land. Therefore, there is a well established legal

precedent for establishing liability when there are multiple sources of pollution and

where the actual contribution of the defendant is relatively minor. Arguably, a

523 David Hunter and James Salzman, 'Negligence in the Air: The Duty of Care in Climate Change Litigation’'

(September 2007) 155 University of Pennsylvania Law Review 129. 524 Ibid,129. 525 Durrant, above n 326.

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connection should be established between the benefits the defendant derives from an

activity, and the climate risks and harm associated with it. The rigorous causation

requirements usually associated with other areas of the law, such as criminal law, may

not be required in public interest law suits related to climate change. However, these

principles have never been applied on such a large scale and another factor is that

contributing to harm may be transnational, which will make establishing liability

difficult. This expansion of common law principles and causes of actions usually

requires legislation or a new statutory regime.

An applicant may also be able to sue the government, in negligence, for failing to act

as trustee of natural resources and failing to curb GHG emissions, leading to severe

impacts on the country and the Ganga Basin and its population’s lives and livelihood.

Also, neglecting to take preventive and adaptive actions to climate change, which

exacerbated the risks associated, may also give rise to a claim for negligence.

Whether the defendant breached the duty owed is determined by reference to an

objective standard of care, that is, what steps would a ‘reasonable person’ of ordinary

prudence have taken to avoid or minimise the risk of breach.

With respect to the risk of harm caused by climate change, the emitters of GHG can

be expected to have control over the nature and amount of emissions produced and

emitted by their activities, including the choice to reduce their emissions by capturing

and storing or through sequestration. However, it may be outside individual control to

avoid climate change and the harm resulting from it.

Since climate change is a global phenomenon and is contributed by both the natural

processes and historic anthropogenic emissions, the Supreme Court may consider it

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unreasonable to hold the defendant liable due to partial contribution of emissions.

However, just because others are also responsible to emissions and climate change,

the Court may not absolve the individual defendants for their liability of emitting

GHGs. So, it depends on the attitude adopted by the Court in particular circumstances.

In order to impose liability on the defendants alleged to have not taking steps to

mitigate their climate impacts, or having not begun taking concrete actions after the

resulting injury became foreseeable, the Court will need to answer two important

questions—if there are any specific injuries foreseeable and when that foreseeability

arose.526

Although the Supreme Court may conclude that injury from climate change

could be foreseeable for about a decade or more, the ability to identify specific

impacts of climate change will be difficult and may vary considerably, depending

upon the circumstances.

When an applicant seeks interim injunctions as a remedy, for example against

developmental activities like the dams in the floodplain, the Supreme Court will be

requested to restrain the commission of the act, although full extent of potential

damage is not yet realised. In granting an injunction, the court will be required to

weigh the threats to public interest in continuing the proposed activity against the

economic detriment to the other party that may result from granting the remedy to

restrain the proposed developmental activity. However, in absence of firm scientific

evidence to prove serious threat or irreparable injury due to the proposed

developmental activities, it will depend on the willingness of the Court to question

526 Hunter and Salzman, above n 523, 129.

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closely, and in some cases look beyond, the scientific material presented to them to

avail the legal remedies.527

The applicant is also required to meet the challenge to meet the ‘onus of proof’. In

general the applicant seeking the remedy is required to bring forward factual evidence

to support their legal claims. However, as mentioned previously, the Supreme Court

in India has accepted reversal of onus of proof so that the proponent of an action

rather than those who challenge it on health or environment grounds, are responsible

to prove evidence to their claim.528

This is consistent with the application of the

Precautionary Principle.

However, in some cases the courts refuse to accept that the application of the

precautionary principle automatically leads to a finding of unacceptable environment

impacts. For example, in a case before the New South Wales Land and Environment

Court against a power station whose emissions could contribute to problems of

climate change, the court described the Precautionary Principle as:

“That a cautious approach should be adopted in evaluating the various relevant factors

in determining whether or not to grant consent; [precaution] does not require that the

greenhouse issue should outweigh all other issues.”529

It should be noted that this Australian case law developed in the absence of

constitutional protection and specific environmental jurisprudence applied by the

Supreme Court of India.

527 Peel, above n 520. 528 Vellore Citizens Welfare Forum v Union of India and others, (1996) 5 SCC6 47. Discussed in chapter 5. 529 Greenpeace Australia Limited v Redbank Power Company Pty Ltd (1994) 86 LGERA 143 at 154.

250

The Supreme Court may also consider applying strict liability530

in climate change

negligence cases. However, as it is often applied for particularly hazardous activities,

the Court would be required to consider the nature of the activity that involves a

particular risk and whether the activity is legally and socially accepted. In strict

liability, it is the responsibility of the person undertaking the hazardous activity to

consider all the possible costs and also the costs for taking due care and the cost of

any potential damage in case of unilateral accidents. When applying strict liability, the

injured party does not need to define the standard of care or breach of it by the other

party as the burden of proof shifts to the defendant once it is established that the

activity caused harm to the plaintiff. Causation issues remain problematic but this

may be a promising liability regime in the case of climate change. The Court may

apply strict liability for damages caused by climate change as an appropriate way of

putting the Polluter-Pays-Principle into practice.

However, the fields where strict liability currently applies, or is expected to apply in

the future, involve risks that manifest mostly in unintended accidents. In the case of

climate change, the damage would arise out of the regular form of conduct, usually

with statutory authority (such as licences, planning approvals) and not from a

particular incident in the sense of an unwanted side effect.531

For example, using

fossil fuels is an accepted activity approved by governments throughout the world, but

it has now become identified with the emission of greenhouse gases contributing to

climate change. This is a slow, gradual and complex change and not a discrete

accident or catastrophic event.

530 Discussed in chapter 5. 531 Haritz, above n 499, 176.

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Some scholars argue about the applicability of the Precautionary Principle to climate

change policy and advocate reducing climate change uncertainties before deciding

upon the most appropriate measures.532

Others stress that the application of the

Precautionary Principle has been justified as an ethical necessity in the development

of climate change law and policy, and it has also been claimed that the standards set

in the Kyoto Protocol would be insufficient in the light of the Precautionary

Principle.533

It has also been suggested that the Precautionary Principle is too one-sided and only

the potential effects of climate change on public health and the environment are taken

into account, whilst the negative side effects of application of restrictions on GHG

emissions on economic and social progress is disregarded.534

However, Haritz points

out that the practical role of the Precautionary Principle in climate change is real and

it can be said that “in the lack of full scientific certainty, the entire existing policies to

mitigate climate change are based upon Precautionary Principle” and that it is true for

the Kyoto Protocol which, although does not refer to it explicitly, is an emanation of

it.535

2 Action in Nuisance

The tort of nuisance is divided into two separate causes of action: private and public

nuisance. However, both these causes have at their heart the interference with a right

to use or enjoy land. Private nuisance is defined as an activity that substantially and

unreasonably interferes with the use and enjoyment of land and public nuisance is

532 R. Mendelsohn, 'Alternative Perspectives: Perspective Paper 1.1' in B. Lomborg (ed), 'Global Crises, Global

Solutions' (Cambridge University Press,, 2004) 44. 533 P. Taylor, 'Heads in the Sand as the Tide Rises: Environmental Ethics and the Law on Climate Change' (2000-

01) 19 UCLA Journal of Environmental Law and Policy 247. 534 I. Goklany, 'Applying Precautionary Principle in a Broader Context' in J. Morris (ed), 'Rethinking Risk and the

Precautionary Principle' (Butterworth-Heinemann Publications: Oxford and Woburn, MA, 2000) 189-228. 535 Haritz, above n 499, 107.

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defined as an unreasonable interference with a right common to the general public.

Claims in private nuisance may also be brought by the affected parties, for example

the farmers and the local people in the Ganga Basin, for interference with their rights

of use and enjoyment of their property, for instance due to frequent submergence of

their homes or agricultural land due to flash floods and the losses suffered thereto.

However, such claims would require a causal link to be established between

greenhouse gas emissions of the defendant and the wrongful harms complained by the

plaintiff.

Nuisance (and public nuisance) cases relating to climate change will also raise

questions of whether a duty not to harm landowners is geographically limited to some

extent. Ordinarily, in a nuisance claim, one neighbour’s emissions harm the

neighbouring landowner’s fields. In contrast, climate change litigation may present

plaintiffs and defendants who are geographically quite distant. The Supreme Court

could dismiss such cases on the theory that no duty is owed to plaintiffs so distant or

that the emissions were not the proximate cause of the damage. However, the

Supreme Court could be likely to avoid such a standard approach in favour of a more

general discussion of the foreseeability of the plaintiff. Given the global nature of

climate change, even distant plaintiffs could be viewed as foreseeable. 536

A public nuisance can be demonstrated where the defendant “knowingly contributes”

to a public nuisance. This requires that the defendant have knowledge that his actions

may lead to the nuisance, in this case, climate change, but it does not require that the

underlying conduct be measured against any objective standard of reasonableness. It

is not enough to focus solely on whether the actor exercised reasonable care or

536 Hunter and Salzman, above n 523, 151.

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whether the resulting harm was proximately caused by the activity. A duty must also

be owed by the party to the victim. The following questions arise:

1. What is the duty of care owed by oil companies to plaintiff communities

threatened by increased flooding or drought, say in the Ganga Basin?

2. Assuming the Court finds that the defendant does owe a duty to the particular

plaintiffs, there remains the equally difficult and related question of what the

duty of care should require. For negligence actions, the general level of the

duty of care is well known - to act reasonably or not to act in such a way that

creates an unreasonable risk of harm. But to characterize the reasonableness of

the behaviour of energy utilities whose emissions contribute to an increase in

temperature that reduces glacier ice and leads to flooding and subsequently

water shortage, may be difficult. For nuisance, the obligation is not to interfere

unreasonably or knowingly with the use and enjoyment of another’s property,

and for public nuisance it is not to contribute unreasonably or knowingly to an

interference with the public’s resources.

3. Whether the duty of care was breached.

Cases on similar principles have been brought before courts in various jurisdictions,

as discussed previously in chapter 4. For example, in Connecticut v. American

Electric Power,537

the complaint alleged that these utilities together emit 650 million

tons of carbon dioxide, which is “approximately ten percent of all anthropogenic

carbon dioxide emissions in the United States.” The action was brought under public

nuisance. The plaintiffs brought to attention, the ‘duty of care’ as under:

537 Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d.

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“Defendants, by their emissions of carbon dioxide from the combustion of fossil fuels

at electric generating facilities, are knowingly, intentionally or negligently creating,

maintaining or contributing to a public nuisance - global warming-injurious to the

plaintiffs and their citizens and residents...

Defendants’ emissions of carbon dioxide, by contributing to global warming,

constitute a substantial and unreasonable interference with public rights in the

plaintiffs’ jurisdictions, including, inter alia, the right to public comfort and safety,

the right to protection of vital natural resources and public property, and the right to

use, enjoy, and preserve the aesthetic and ecological values of the natural world.”

In Comer v. Murphy Oil,538

the claim for public and private nuisance alleged:

“Defendants have willfully, wrongfully, unreasonably, unwarrantably and unlawfully

used their property and conducted their business to mine, drill, manufacture, release,

vent, and/or combust substances in such a way as to produce massive amounts of

greenhouse gasses...

The Defendants’ behaviour and greenhouse gas emissions result in material

annoyance, inconvenience, discomfort, injury, and/or hurt to the public and the

Plaintiffs in particular...”

The claims for negligence addressed the duty issue directly, alleging that:

538 Third Amended Complaint, Comer v. Murphy Oil, U.S.A., No. 1:05-CV-00436-LTS-RHW (S.D. Miss. Apr. 18,

2006).

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“The Defendants had, and continue to have, a duty to conduct their business in such a

way as to avoid unreasonably endangering the environment, public health, and public

and private property, as well as the citizens of the State of Mississippi...

The Defendants breached their duties by emitting substantial quantities of greenhouse

gases, knowing that such emissions would unreasonably endanger the environment,

public health, and public and private property interests.”

Also, in California v. General Motors Corp.,539

public nuisance, California alleges

that, by manufacturing products defendants knew would contribute to climate change,

they have breached a duty not to unreasonably interfere with public welfare. In its

complaint, the state makes the following claims:

“2. . . . Defendants have for many years produced millions of automobiles that

collectively emit massive quantities of carbon dioxide in the United States and have

thus contributed to an elevated level of carbon dioxide in the atmosphere...

5. Damages caused by global warming are cognizable, ongoing, and increasing.

Defendants are aware of the impacts and have chosen to continue to produce products

that generate enormous quantities of carbon dioxide, to the detriment of California.

59. Defendants’ emission of carbon dioxide and other greenhouse gases, by

contributing to global warming, constitutes a substantial and unreasonable

interference with public rights in California’s jurisdiction, including, among other

things, public comfort and safety, natural resources and public property, and aesthetic

and ecological values.

539 California v. Gen. Motors Corp., No. 3:06CV05755 (N.D. Cal. 20 September 2006).

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61. Defendants know or should have known, and know or should know, that their

emissions of carbon dioxide and other greenhouse gases contribute to global warming

and to the resulting injuries and threatened injuries to California, its citizens and

residents, environment, and economy.”

Likewise, a case may be brought in case of scenarios in the Ganga Basin under public

nuisance, for breach of duty not to unreasonably interfere with people’s enjoyment of

land and public welfare.

Apart from allocation liability and responsibility through potential climate change

cases, the Supreme Court may advise the government to take timely adaptation

measures as well. However, as specific impacts are difficult to predict, recommending

very specific adaptation measures may not be feasible in most cases.

In the case of scenario A, the Supreme Court could suggest creating controlled

flooding areas and provide more room for flood, as done in the Netherlands.540

It may

order public awareness plan about the dangers of flash floods due to climate change

and also to reduce water demand. Other suggestion could be endorsing tree planting to

reduce flood impacts, flood protection reservoirs, flood control and defence systems, a

monitoring and flow forecasting system for effective early warning, integrated flood

management, promoting insurance for potential losses to property, agriculture and

people and maintain proper drainage to facilitate flood waters to recede.

In case of reduced water resources in scenario B, the Supreme Court may suggest

water recycling as a sustainable and cost-effective approach that can be used towards

adaptation to climate change. Recycled water can be used for recharging groundwater

540 See chapter 4.

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aquifers and augmenting surface water reservoirs. It can also be used to create or

enhance wetlands and riparian habitats. Promoting reduction in leakage of water

during pipe supply can also result in significant savings of water and will also save

the cost incurred in the treatment of water. This could be practiced to lessen the

decrease in water supply due to decline in precipitation and increase in temperature.

Proposals to improve water allocation and market-oriented approaches that promote

conservation of water can also be experimented with, with a differential payment

system based on incomes so as not to burden the poor further. Land-use and

agricultural practices have a significant impact on water quality. Promoting efficient

irrigation practices by extension, training, technical and regulatory actions could be

critical for future water conditions.

The Supreme Court may direct strict enforcement for operations of sewage treatment

plants, constructed under the Ganga Action Plan to improve the water quality of the

River Ganga. Reduction in over-dependency on water to sustain livelihoods may be

promoted by engaging communities in fewer water-intensive agricultural activities

and promoting other economic activities such as manufacturing clothing and

handicrafts could be helpful in case of reduced water supplies.

The Supreme Court may suggest the government considers some of these adaptation

measures, but it is unlikely at this stage that the Supreme Court will direct the

government to adopt specific adaptations as it cannot be said with certainty which

options or measures are viable in particular situations or which ones are preferable in

regards to environmental, social, cultural and economic factors. To a great extent, it

depends on expert advice and political acceptance (by ordinary citizens, the private

sector and government) and it is not solely a matter of legal principle. Also, the

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Supreme Court depends on other institutions of the State for the implementation of its

orders, which is a serious impediment in the way of making these directions more

effective.

II POSSIBLE ROADBLOCKS TO JUDICIAL INTERVENTION

The Constitution provides that law declared by the Supreme Court will be binding on

all courts within the territory of India.541

However, the reasons of climate change are

often beyond the national limits and since the Supreme Court has no jurisdiction over

foreign States under the Constitution, it may not be able to provide adequate relief

from the potential effects of climate change. Moreover, even the IPCC is uncertain

about extent of natural and man-made emissions responsible for climate change and

even if India’s emission rise by 2030 substantially, apportioning liability would be

difficult for the Supreme Court.

Furthermore, the Constitution grants the exclusive power to the central government in

matters of legislating for foreign relations. In fact, the Supreme Court is barred from

adjudicating international disputes,542

except for advising the President upon

request.543

Thus, at most, the Supreme Court can advise the government’s

international negotiations, however, in so doing, it will be intervening with the

541 Article 141 reads as, ‘The Law declared by the Supreme Court shall be binding on all courts within the territory

of India’. Constitution of India, Article 141. 542 Article 363, which reads as follows: Bar to interference by courts in disputes arising out of certain treaties,

agreements, etc.—(1) Notwithstanding anything in this Constitution but subject to the provisions of article

143, neither the Supreme Court nor any other court shall have jurisdiction in any dispute arising out of any

provision of a treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered

into or executed before the commencement of this Constitution by any Ruler of an Indian State and to which

the Government of the Dominion of India or any of its predecessor Governments was a party and which has

or has been continued in operation after such commencement, or in any dispute in respect of any right

accruing under or any liability or obligation arising out of any of the provisions of this Constitution relating to

any such treaty, agreement, covenant, engagement, sanad or similar instrument. Constitution of India, Article

363. 543 Article 143 reads as follows: Power of President to consult Supreme Court.—(1) If at any time it appears to the

President that a question of law or fact has arisen, or it is likely to arise, which is of such a nature and of such

public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the

question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the

President its opinion thereon. Constitution of India, Article 143.

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government’s powers of foreign affairs. The Indian Supreme Court, though, has

placed checks on the executive treaty-making power in the past. For instance in

Madhav Rao Scindia v. Union of India,544

the Supreme Court held that the

government does not have the authority to use its foreign affairs provision to

unilaterally withdraw recognition of royalty status to former princes. In spite of not

holding consistently that foreign affairs are a prerogative of the executive branch

(subject only to limited intervention from the legislative branch), anything the

judiciary does beyond directing government’s climate negotiations and policies, risks

overstepping its legitimacy.

Indeed, domestic legislation prohibiting certain actions and consequences may be the

best response, if one considers the decision in Pakootas v. Teck Cominco Metals

Ltd.545

In Pakootas, smelter industries, with proper permits from Canadian

environmental authorities, released hazardous waste into the Washington River. The

US Court held them liable under a US law on hazardous waste. The Court held that

even though the waste was released on the Canadian side, the companies responsible

for the pollution were liable to clean up the waste in the United States, since the

effects were felt within the U.S. In effect, the scope of a national legislation was

extended to a foreign entity. The companies' argument that they were not responsible

for the flow of the river, which essentially carried the waste from Canadian soil was

rejected by the Court.

544 Madhav Rao Scindia v. Union of India, A.I.R 1971 S.C. 530 545 Pakootas v. Teck Coinco Metals, Ltd., 452 F.3d 1066 (C.A.9 (Wash.) 2006).

http://au.westlaw.com/find/default.wl?tf=-1&spa=UWS-2003&rs=WLAU10.08&serialnum=2009492091&fn=_top&sv=Split&tc=-1&findtype=Y&ordoc=0342882484&mt=WLIGeneralSubscription&db=506&utid=1&vr=2.0&rp=%2ffind%2fdefault.wl&pbc=0767C7E5

260

The case demonstrates that, as opposed to international remedies, domestic legislation

can be the most accessible safeguard against individual rights violations.546

Hence, the

Indian Court could draw on the above case and can advise the government to pass

legislation on climate change to be able to hold foreign persons or States responsible

for breach of constitutional rights of Indians due to climate change and compensate

those who consequently suffer economic losses. However, such legislation may not be

supported by the government because of concerns over economic impact and issues of

national sovereignty.

Overall, the Supreme Court enjoys the faith and trust of the people of India, especially

because of various actions taken by the Court to protect the rights of people and

successfully performing its constitutional duty to act as the guardian of their

fundamental rights. It led to an increase in the local people’s involvement in

environmental decision-making, which is an essential component in ensuring

compliance with environmental regulations.547

This becomes even more important in

the wake of widespread corruption in the administrative system. Though India is one

of the fastest growing economies, it still remains home to some of the poorest people

in the world. The 2005 UN Human Development Index (HDI) places India at 127th

position among all nations.548

The sub-continent contains some of the most polluted

places in the world.549

With widespread poverty and a low literacy rate, a number of

Indians remain highly vulnerable to the violations of their fundamental rights due to

climate change. Thus, the Indian judiciary would be justified in exercising its

546 Deepa Badrinarayana, 'India's Constitutional Challenge: A Less Visible Climate Change Catastrophe' in

Benjamin J. Richardson et al (eds), Climate Law and Developing Countries: Legal and Policy Challenges for

the World Economy (Edward Elgar Publishing Limited, 2009) . 547 ‘Michael I. Jeffery QC, 'Intervenor Funding as the Key to Effective Citizen Participation in Environmental

Decision-Making: Putting the People Back into the Picture' (2002) 19(2) Arizona Journal of International and

Comparative Law . 548 Human Development Indicators, Human Development Report, 2005,

<http://hdr.undp.org/en/media/HDR05_HDI1.pdf> 549 Fiona Harvey, 'Planets Most Polluted Sites Unveiled', Financial Times 12 September 2007.

http://hdr.undp.org/en/media/HDR05_HDI1.pdf

261

jurisdiction within Article 32 to intervene in foreign affairs to safeguard rights of

people in relation to constitutional matters brought before it. Though this would not,

of itself, be a cure for poor governance and corruption within India and a weak

international climate regime. There are examples of extra- territorial environmental

liability for trans-boundary pollution, or activities that involve nationals or

corporations outside the territorial boundaries. Some United States environmental

laws are applied extra-territorially550

and some useful case law is evolving under the

Alien Tort Claims Act of USA.551

III CONCLUSION

The reality and severity of climate change is increasingly getting acknowledged and,

in the case of the two climate change scenarios hypothesized in the Ganga Basin

unfolding, it may result in breach of people’s constitutional and other rights. The

Supreme Court would then need to play an important role in addressing the disputes

arising due to these impacts and to protect the rights of the people. There is potential

for applying common law principles like negligence and nuisance to redress climate

impacts, however, the uniqueness and peculiarity of the Indian Constitution, and the

jurisprudence developed under it, provides a real prospect to invoke the Supreme

Court’s intervention in addressing climate change impacts in the Ganga Basin.

Though the Supreme Court is not free from limitations to its powers and jurisdiction,

the rich jurisprudence developed by it and the various important principles and

doctrines developed in many landmark environmental cases can play a significant role

to bring justice to the victims of climate change in the Ganga Basin and provide some

catalysts for the government and the private sector to develop adaptation options. The

550 See, David Hunter, James Salzman and Durwood Zaelke, 'International Environmental Law and Policy'

(Foundation Press, Third ed, 2007). 551 28 U.S.C. § 1350.

262

Supreme Court, surely, is a ray of hope for the victims of injustice due to climate

change.

There are limits to trying to explore to judicial response to Scenarios A and B further.

This chapter has identified potential parties, the causes of action that they could take

and the likelihood of success in the context of existing Indian case law. Implicitly, this

incorporates significant international sustainable development principles and related

legal principles from other jurisdictions such as the United States and Australia. The

scenarios are used as vehicle to analyse the potential role of the Supreme Court, in

absence of specific litigation requiring climate adaptation measures at the present

time. This chapter has considered the viability of existing environmental law and the

complex issues that will arise when this new litigation commences in India.

263

CHAPTER 7

SUMMARY AND CONCLUSION

The thesis has examined the potential role of the Indian Supreme Court in legal and

institutional change to address the impacts of climate change in the Ganga Basin in

India. It has discussed the present state of climate change impacts around the world

and in India, with a focus on glaciers and the glacier-fed river systems in India, in

particular the Ganga River system. The thesis has revealed the inadequacy of

international law to curb the emissions of greenhouse gases responsible for climate

change and pointed out the importance of national legal systems to address climate

change impacts and the ensuing issues. However, the legal systems, including the law

and courts, suffer from limitations in exercising their power and jurisdiction.

Nevertheless, they potentially serve as a legitimate and viable option in addressing

climate change, within the limits of their constitutional role and power. In the context

of India, and the Supreme Court, this role is more innovative and progressive than in

most other jurisdictions in the world.

Chapter 2 of the thesis has shown that climate change is widely accepted to be one of

the most serious environmental challenges facing the world today. Climate change is

a complex problem as it is global in nature, but has localised effects which are hard to

predict with accuracy, it’s uncertainties related to its timing as well as science.

However, the science has become more certain about the reality of climate change as

its effects become increasingly visible around the globe, especially in recent decades.

Based on the research in this thesis, it can be concluded that climate change is going

to have a disastrous impact on the fresh water supplies of the world as most of the

glaciers are receding alarmingly due to warming temperatures. This will negatively

264

impact on the rivers that flow from these glaciers which, in turn, will affect millions

of people who are dependent both directly and indirectly on these rivers.

The River Ganga depends on the Himalayan glaciers, which are feeling the heat as a

result of climate change and are exhibiting increased melting. This will have serious

consequences for dependent river basins, such as the Ganga River Basin, which has

such important cultural, spiritual, social and economic significance for India. The

Ganga Basin covers about one-fourth of the landmass of India, is inhabited by

millions of people and is the food-bowl of India. The unfolding of scenarios A and B

as described in this thesis as a result of climate change in the basin will drastically

affect lives and livelihoods of its inhabitants. More importantly, this will lead to a

violation of the constitutional right to life of the people of India, which has been

expanded by the Supreme Court to include the right to a healthy environment.

Since climate change defies political boundaries, a combined international, national

and regional strategy is necessary to address it. However, several rounds of

negotiations held by the international community for reducing the emissions of

greenhouse gases have failed to meet the desired success as all countries do not share

equal concern for reducing emissions and the liability for past emissions vary greatly

between the developed and the developing nations. The inadequacy of the

international climate regime and the increasing impacts of climate change have led the

activists, non-governmental organisations (NGOs) and the victims of climate change

to resort to courts to address the effects of climate change. The courts provide an

important option in addressing climate change issues, as exemplified by various

climate litigation around the world, in chapter 4.

265

The Supreme Court of India could play a particularly significant role in climate

change cases in the Ganga Basin, not the least because it has taken a keen interest in

environmental protection matters, especially where the legislature and executive

failed in their statutory duties. Following the Stockholm Conference in 1972, India

amended its Constitution and added direct provisions for the protection of

environment through the Forty-second Amendment Act. In the subsequent years, the

central and state governments enacted a plethora of legislation relating to protection

and conservation of the environment. However, the enactment of a number of laws by

the central as well as state governments failed in controlling environmental

degradation and, by and large, the laws remained unenforced, poorly administered and

mismanaged. Because of the failure of the government and the agencies to curb

environmental degradation, the activists and NGOs approached the Supreme Court for

suitable remedies and the Court intervened to remind the government and the agencies

to perform their statutory obligations and compelled them to take action to protect the

environment.

The Supreme Court has adopted various international principles, including the

Polluter Pays and the Precautionary Principles, as part of national law of India and has

interpreted the Constitution liberally to include the right to environment and the right

to clean air and water as part of fundamental rights of Indians, provided by the

Constitution. It has introduced many novel ways to make the Supreme Court more

accessible to the people. As discussed in chapter 5, the Supreme Court has expanded

the locus standi or standing for a case and allowed anyone, and not necessarily only

the people whose rights have been breached, to approach the Supreme Court. The

Supreme Court has accepted epistolary jurisdiction, where even a letter written by

266

disadvantaged people can be treated as a petition. This has great significance for the

people of India.

This judicial activism in environmental cases has been widely debated and discussed

in India. On the one hand, this judicial activism has been appreciated for providing

justice to the people and protecting their rights and conserving the environment.

Proponents of judicial activism argue that that it was the need of the hour to shake the

sleeping government and the agencies to remind them to perform their duties towards

the people and the environment. On the other hand, opponents of judicial activism

blame the Supreme Court for establishing itself at the “super-cop”552

under the

Constitution, and argue that the intervention of the Court in the affairs of

implementing agencies to protect the environment and enforce fundamental rights is a

violation of principle of separation of powers as each organ of the government is

required to perform within its prescribed limits and none is allowed to encroach upon

the powers of the others.

It cannot be denied, though, that the unprecedented activism of the Supreme Court led

to a number of positive outcomes for the environment and the people. The debate

about the activism of the Supreme Court brought the issue of poor enforcement by the

government and its institutions out into the open and persuaded them to perform. It

helped people become more aware about their rights and the constitutional provision

to approach the Supreme Court in case of violation of their fundamental rights. It has

definitely improved the environmental situation in India and raised hope of getting

justice for people suffering from the inefficiency of the government and its agencies.

552 Shubhankar Dam and Vivek Tewary, 'Polluting Environment, Polluting Constitution: Is a ‘Polluted’

Constitution Worse than a Polluted Environment?' (2005) 17(3) Journal of Environmental Law 383.

267

However, in a number of environmental cases the Supreme Court went beyond its

adjudication function for protecting the environment and the people and, in the

process, violated the principle of separation of power between the three organs of the

State, and thereby increased the country’s dependence on the Supreme Court for

environmental protection. The Supreme Court’s activism sometimes focuses on

improving the poor implementation by the agencies and the government. However, it

can only pass orders and judgments and cannot oversee their implementation and,

once the judgement is passed, it is left to the administration to implement it. The

enforcement agencies in many environmental cases have failed to match the interest

and activism of the Supreme Court and failed to enforce the orders in a timely way.

For example, the Supreme Court’s directions in the Ganga case have not been

implemented, the compensation awarded to the people of Bichhri whose ground water

was contaminated by chemical industries has not yet been paid and government

agencies have failed to undertake the remediation work.553

Though the positive outcomes of the Supreme Court’s intervention in environmental

cases cannot be ignored, the Supreme Court may need to adopt a more conservative

approach in the future so that the government agencies will take responsibility for

their part in implementing actions. The awareness of people due to Supreme Court’s

bold initiatives, that the government and the agencies have failed to perform their

statutory duties, may be challenged in the Supreme Court, and it may serve as an

incentive for better performance by the government. Ultimately, government and the

executive have to develop the will and capacity to provide governance within the

realm of climate change and adaptation. The Supreme Court cannot do it for them.

553 Mehta, above n 146.

268

The Supreme Court may well yet play an important role in addressing climate change

in the Ganga Basin, as seen in chapter 6. The history of environmental challenges in

the Indian Supreme Court indicates that they will probably take this leadership role

before the governments and the private sector are prepared to. This is because the

Constitution of India provides various provisions of environmental protection and

climate change violates the constitutional right to life of Indians and the Supreme

Court can apply the constitutional provisions and the principles developed by it in

various landmark cases to address climate change in the Ganga Basin. Apart from the

constitutional provisions, the Supreme Court may use common law principles of

negligence and nuisance too for responding to the wrongs done due to climate change.

However, in responding to issues arising due to climate change, the Supreme Court is

subjected to some limitations to its powers and jurisdiction and, as the Constitution of

India provides for separation of power, the Court will have to be careful not to

encroach upon the powers of other organs of the State, i.e. the legislature and the

executive. Since climate change, being a global problem involves foreign affairs

matters, which is under the powers of Parliament exclusively, the Supreme Court

would need to exercise extreme care not to override its powers granted under the

Constitution. Moreover, legal proceedings cannot resolve all conflicts and problems

as it leads to increasing case loads to the already overburdened courts. The Supreme

Court may even lack the resources needed to address complex issues arising due to

climate change, such as questions of science, risk assessment and liability.

Furthermore, legal proceedings are time consuming and expensive. Nonetheless, the

Supreme Court could serve an important purpose of catalyst for the corporate leaders

and the government to incorporate measures for sustainable development in their

decisions and ease pressure on the natural resources of the Earth.

269

In conclusion, it can be said that in the case of climate change in the Ganga Basin, the

Supreme Court could play an important role in responding to the negative impacts of

climate change, armed with the innovative provisions adopted by the Court and broad

interpretation of the constitutional provisions. Thus, theoretically, the Supreme Court

of India has the capacity to address the potential climate change issues and related

violations of fundamental rights.

I OBSERVATIONS AND RECOMMENDATIONS

Based on the research in the thesis, the following observations and recommendations

are made:

Climate scientists are increasingly confident that climate change is inevitable and so it

is important to take actions without waiting for actual impacts to unfold. However,

there are gaps in the science of climate change. The Inter-governmental Panel on

Climate Change (IPCC) reports are a good indicator at a global scale but lack regional

understanding. Further research is needed about science to establish the impacts of

climate change with greater certainty and levels of confidence, especially at regional

levels such as the Ganga Basin. This needs to be sufficient to enable risk

identification, risk management and future planning for adaptation options.

More work is needed to improve the ability of global and regional climate models to

provide information on availability of water-resources, evaluate the overall

hydrological impact and to identify the regional impacts of climate change.

Attempts should be made to better understand the inter-relationship between climate

science, climate impacts and adaptation options and the innovative legal and

270

institutional responses that will be urgently required to respond to potential future

scenarios.

Research should be encouraged on forecasting and monitoring of snow melting and its

related impact.

Water flows in rivers are changing drastically within short periods of time, which

means dams may prove to be ineffective after some time. Studies should be

undertaken to understand the impacts of climate change on dams and on the safety of

the inhabitants of the areas. A wider range of climate variability than provided by

historical record into infrastructure should be considered for expensive and long-lived

new infrastructure such as the dams and expensive and irreversible actions should be

avoided in climate-sensitive areas.

Though there is an increase in anti-dam sentiments in India and also worldwide, it

may not be wise to completely rule out hydrological projects. It would be otherwise

very difficult to ensure food security and a supply of water for energy and the

industrial sectors. Dams are also helpful in reducing our dependence on monsoons as

the precipitation patterns become more erratic due to climate change. The

governments will have to rationalize the options available and make the best use of

resources, understand the risks and ensure people’s welfare as well as economic

development.

Water stress is already a cause of concern in India and it may get worse due to climate

change. Water resource management should be improved through adequate training;

laying out comprehensive strategies and action plans for extreme events such as

floods and droughts. Integrated catchment planning and management is central for

271

these purposes in the Ganga Basin and elsewhere. New tools and methods should be

developed for modelling, data collection, water allocation schemes and financing

mechanisms.

Institutions related to water management should be strengthened. Decision makers

should re-evaluate technical and economic approaches for managing water resources

in light of potential climatic changes.

Water-efficient technologies should be promoted to better address the adaptation

agenda in water treatment and irrigation.

Water efficient crop varieties are needed to be identified and promoted for the

extreme events to increase adaptive capacity.

Traditional and alternative forms of water management such as rainwater harvesting,

reuse and recycling of waste water, may prove useful in addressing water shortage

and in promoting water conservation, and so should be considered as an option for

adaptation to climate change.

People should be involved and should be made aware about possible hazards of

climate change and in undertaking the adaptation measures. Public access to risk

information should be made available about the extreme events such as floods and

droughts.

Any activity leading to deforestation on the banks of the River Ganga and in the

Himalayas should be discouraged. Afforestation and establishment of vegetation

272

should be promoted. Local people should be involved in it, which can help in

generating employment and will provide incentives for taking care of the forests.

Authorities should enforce measures to prevent water pollution during mass bathing

in the Ganga River on auspicious days. This will ensure the health and safety of the

bathers and the residents of the region.

More emphasis should be paid to the treatment of municipal and industrial waste

water before discharging into the River Ganga. Concerned authorities like

corporations and municipalities should ensure proper implementation and strict

enforcement of laws for treatment of waste water all along the course of the River

Ganga to maintain the quality of the river.

Research should be done on the implications of climate change for water-sharing of

the Ganga River between Indian and Bangladesh, to enable India to meet its

obligations under the Farakka Ganga Water Sharing Treaty.

Research should be done on the climate change impacts on availability of ground

water, including quality, recharge rates and flow dynamics.

Reduction of water wastage and leakages could be practiced to cushion the decrease

in water supply due to the decline in precipitation and increase in temperature due to

climate change. Market-oriented approaches could be used to reduce the wastage of

water. In the Ganga River, where wet season river flows are estimated to increase and

the dry season flows projected to decrease due to climate change, the government

could enforce planned water management interventions that could help decrease wet

season flows and increase the dry season flows.

273

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