NATIONAL LAW UNIVERSITY ODISHA, CUTTACK

“CLIMATE CHANGE LITIGATION IN INDIA: ISSUES AND CHALLENGES”

A PROJECT WORK ON ENVIRONMENT LAW

Under the guidance of: Submitted by:

DR. NIKITA PATTAJOSHI V AISHALI

(21BBA052)
In Indian legal system, there are various options for under existing environmental laws through
which an individual can start a litigation. However, one of the most difficult parts of climate
change-related lawsuits is still proving a clear causal link between environmental harm and
climate change. Because it establishes the overarching laws that coordinate environmental
protection at the federal and state levels, the Environment (Protection) Act, 1986, got its name.
Prior laws like the Air (Prevention and Control of Pollution) Act of 1981 and the Water
(Prevention and Control of Pollution) Act of 1974 are complementary to it. According to Section
2(a) of the Environment (Protection) Act, the term "environment" refers to anything that is in
contact with people, other living things, plants, and property, including land, water, and air. An
environmental pollutant is any substance described under Section 2(b) of the Act that is present
in such concentration that it may be injurious to the environment, whereas environmental
pollution refers to the presence of such pollutants in the environment as described in Section
2(c).

The Act does offer a definition that is similar to that found in the Environment Act, especially
with relation to air pollution. In contrast to the latter, it does not establish emission criteria;
instead, the Environment (Protection) Act's general authority does. Due to inadequate legislative
administration and business opposition to regulators, environmental norms are still not strictly
enforced. The courts have filled the void left by inadequate enforcement of environmental
legislation by adopting an increasingly aggressive approach to environmental lawsuits. The
judiciary was largely inactive about environmental deterioration throughout the first 20 years of
the contemporary environmental movement's development in India. However, courts started to
become more activist in the 1980s as environmental protection concerns became more apparent,
which resulted in a significant shift in Indian environmental jurisprudence toward what it is now.
The most important question that emerges from all of them is locus standi, or who will file a
lawsuit. Historically, the only people who could seek legal recourse were those whose private
rights had been directly violated. Since harm, like air pollution, affects entire populations rather
than just specific individuals, this stringent requirement hindered environmental litigation.

Public Interest Litigation: Public Interest Litigation, which evolved in India, has transformed
the mode of accessing environmental justice. PIL enabled any interested individual or institution
to approach the Supreme Court or High Courts in good faith under Articles 32 and 226 of the
Constitution. This judicial innovation gave marginal people the protection of fundamental rights,
although they could not seek redress. This was the time-passing process in which eventually the
judiciary broadening the scope of PIL to encompass environmental protection and interpreted
Article 21 of the Constitution that incorporates the right to wholesome environment along with
access to clean air and water.

Public Nuisance: Public nuisance, unreasonable interference with the rights of the general
public, constitutes another avenue for legal redress in environmental pollution. The gamut of
public nuisance claims in India extends from defective sewage disposal and hazardous waste
management practices to environmental pollution caused by industries. However, much has not
yet been tested by the judiciary in the realms of climate change. Proving direct cause and effect
between specific greenhouse gas emissions and damage to the plaintiff is one of the critical
issues in climate litigation. This strife-to prove that the defendant's emissions have caused global
warming effects to a particular locality at the most difficult point in drawing a conclusion about
the relationship between them.

State Trusteeship: This is the idea of environmental trusteeship, which creates a conceptual
framework for addressing the problem. The Supreme Court has stated that all natural resources
belong to the state as a trustee, to be held in trust for public use and enjoyment. This principle is
seen so evidently in a landmark case in Himachal Pradesh 1, where the court held that the state
had a constitutional obligation to protect natural resources. The case was concerned with Span
Motels, which, upon acquiring land that was a part of a protected forest, dredged and built
concrete walls that changed the course of a river, causing damage to the ecology. The court has
laid heavy fine on the company. The judgment concerns an entirely different environmental
issue, but the principle underlying it-that state has an obligation to prevent environmental harm-
can be invoked in climate change litigation.

Judiciary’s role

1
MC Mehta vs Kamalnath 1996 SC 711
Judicial role with regard to environment protection is to say the least is most. The Indian Penal
Code, 1860, Section 268, defines public nuisance as 'an act or illegal omission that causes
common injury, danger or annoyance to the public or to those who may be affected by it.'
Importantly, the nuisance cannot be justified by mere convenience or advantage derived from it.
Industries polluting the air or creating excessive noise can therefore be charged as causing a
public nuisance if the public health is adversely affected by it. Section 133 of the Code of
Criminal Procedure 1973 is a better provision as it enables magistrates to issue conditional orders
for removal of the public nuisance within a stipulated time. The magistrate may be moved on the
basis of police reports or citizen complaints, thereby making this an expeditious and independent
remedy.

The Supreme Court emphasized the mandatory nature of such provision through its landmark
judgment in Municipal Council, Ratlam v. Vardhichand 2, wherein it directed the municipality to
take immediate measures to put an end to water pollution. Such judicial perspective is being
imparted even to air pollution cases, where courts have been found to issue very stringent orders
against polluting industries. A famous example is that of the Taj Trapezium Case 3, wherein the
Supreme Court directed some industries to shift, after expert reports suggested that their
emissions were damaging the Taj Mahal. The causal connection between industrial emissions
and the monument's deterioration was established very clearly by scientific evidence, thus
strengthening the court's decision.

In the past few years, the Indian judiciary has immensely contributed to environmental
jurisprudence by widening the ambit of fundamental rights, by relaxing the standards of
procedures, and by ensuring that pollution-causing agents are held accountable under
environmental law.4 Ever since the PIL introduced public nuisance-type claims and statutory
provisions, courts have been able to formulate an arsenal of legal remedies for environmental
protection. Unfortunately, enormous challenges lie ahead, specifically in addressing climate
change, where providing proof of direct causation seems almost impossible. The implications of
the changing judicial approach would suggest that while litigation by itself will not cure the
environmental illnesses, it remains a potent weapon for forcing the state and corporate actors to
2
Municipal Council, Ratlam vs Shri Vardhichand 1980 AIR 1622
3
MC Mehta vs Union Of India & Ors 1997 (2) SCC 353
4
Amit Garg, P. R. Shukla, & Manmohan Kapshe, From Climate Change Impacts to Adaptation: A Development
Perspective for India, 31 National Resources Forum 132 (2007).
honor their environmental obligations. This sustained intervention by the judiciary in matters
relating to the environment demonstrates an increasingly growing acceptance that ecological
preservation is at the heart of human rights and development in India.

PIL Activism

The advent of Public Interest Litigation (PIL) in India has become a unique mechanism for
environmental activism whereby often those issues of utmost importance confront the Indian
judicial system-a sort of second line of action-front because such issues have been long either
avoided or delayed by the legislative system. A unique blend of sympathy and activism adopted
by the Indian judiciary has given shape to environmental jurisprudence, the law having been
molded through landmark judgments asserting the right to a clean and healthy environment. 5
Today, the PIL has become an instrument for environmental justice, with both private and public
entities being held accountable for various forms of environmental degradation. One of the great
gifts of PIL to the environmental law of India is the extension of Article 21 of the Constitution.
The Supreme Court has interpreted it as including the right to life with all its corollaries,
including the right to a pollution-free environment, clean air, and clean water. Such judicial
activism resulted in landmark judgments compelling industries and government agencies to
mitigate environmental damage. The courts have emphasized the precautionary principle,
sustainable development, and the polluter-pays principle, whereby the responsibility for damage
to the environment rests with the polluter.

In a number of cases, the Supreme Court intervened to protect natural resources while treating
the State to be a trustee of the environment. The apex court has directed industries to either adopt
pollution control measures or, if need be, stop operations altogether, as seen within the Taj
Trapezium Case6, directing polluting factories away from the Taj Mahal so as not to harm the
monument any further. Similarly, PILs have been utilized to prevent pollution of air and water,
deforestation, and urban waste management by compelling the municipal authorities to discharge
their environmental duties. The proactive initiatives adopted by the judiciary have clearly acted
to change the policies and also endorse environmental governance. The establishment of the
5
Lavanya Rajamani, Public Interest Environmental Litigation in India: Exploring Issues of Access, Participation,
Equity, Effectiveness and Sustainability, Oxford Journal of Environmental Law, Vol 19 No 3, (2007)
6
M C Mehta, n(3).
National Green Tribunal (NGT) is clear evidence of judicial activism in providing specialized
concern for environmental disputes. Also, through PILs, international environmental principles
have been patched into Indian law, thereby strengthening India's commitment to global climate
goals under agreements like the Paris Climate Accord. 7 Environmental PIL activism remains a
challenge despite some successes, battling delayed implementations and much resistance from
vested interests. The impact, however, is undoubted, thereby conceiving the judiciary as a key
pillar in India's environmental governance. Through PILs, once again, the courts act as guardians
of environmental rights with accountability and legal consciousness.

However establishing a direct causal connection between environmental harm and negligent
conduct remains one of the most challenging aspects of pollution-related litigation. This
challenge is compounded many times over in climate change cases due to uncertainties within
the scientific data and the many interlinked factors involved.

Emerging Trends in Climate Change Litigation

The tendency of society is shifting to accept that human activity is associated with greenhouse
gas emissions and subsequent damage to the environment. This is what fuels today's cases in
three areas: liability claims for nuisances or negligence; regulation by administrative law claims
by public authorities for emission lapses; and claims on corporate accountability mostly on their
misleading environmental disclosures or failure to address climate risks.8

Liability-Based Claims: Liability claims hold that a defendant's conduct or negligence results in
harm from climate change. Often, such claims are framed within public nuisance theory, where a
mechanism of action causes widespread harm, i.e., rising sea levels, unusual weather patterns, or
biodiversity loss, on the grounds of emissions. Private nuisance claims have little effect because
the impacts of climate change are so diffuse and entangled; however, public nuisance is the only
potential means of holding major polluters accountable. The challenge, however, remains that a
direct causal relationship must be established between the emitter's actions and the
environmental damage caused.

7
Rajmani, n(1).
8
Arpita Saha, Judicial Activism in India: A Necessary Evil, Social Science Research Network (July 8, 2008)
Holding Governments Accountable: Administrative law claims relate to a lack of enforcement of
regulatory norms or action itself by the government. The plaintiffs assert, in these claims, that the
authorities are constitutionally/statutorily obliged to mitigate climate change and regulate
emissions. Such suits have been quite successful in many countries where the courts have
ordered governments to take aggressive actions toward fulfilling climate commitments. In India,
writ petitions are routinely filed to direct authorities to enforce environmental laws and pollution
control measures, which seems to be a very promising avenue for climate litigation under
administrative law.

Greenwashing and Climate Disclosures: Corporate accountability claims relate to the

The Indian Potential for Climate Change Litigation

India, despite evidencing a great potential for climate litigation, has not yet availed itself of the
resources of existing environmental legal frameworks. The Common Law, such as the doctrines
of nuisance and negligence, have found extensive applications in the pollution context, but not as
direct applications in matters concerning climate change. Some statutory provisions, such as the
Environment Protection Act and other such statutes, provide avenues of legal course against
environmental harm, but litigation in the area of climate change remains largely unexplored.
However, with public awareness increasing and global trends in law changing, India could soon
witness a flurry of climate lawsuits that would force industry and policymakers alike to act more
strongly against climate change.9 The NGT National Green Tribunal is a newly found institution
for the nation towards environmentally sound development. The tribunal, despite statutory
limitations, has taken on progressive reasoning in legal terms to enforce environmental
protection, even in the matters that would only indirectly relate to climate change. However,
9
ibid.
since there is no comprehensive climate change law in India, the challenges in establishing a
clear legal basis for climate litigation prevail.

It has taken long for the Indian judiciary to apply international environmental principles, as rules
attracting them become persuasive in deciding domestic cases. It may be noted that courts have
repeatedly referred to international treaties and doctrines to enlarge the legal ambit in favor of
environmental protection. For instance, in Society for Protection of Environment & Biodiversity
v. Union of India10, the NGT was called to put its hands on the notification from the government,
which eroded environmental law. The case was heavily dependent on the doctrine of non-
regression, an international environmental law principle that postulates that the protection level
of the environment should not go down from its current standards. Even though there is nothing
to that effect in Indian law, the NGT put reliance on it to uphold her decision on staying the
notification. The authority would end by declaring the notification ultra vires in part, showing a
growing willingness on the part of courts to weave international environmental principles into
Indian jurisprudence. This case highlights the ways in which Indian courts are widening their
ambit of jurisdiction over the environment by importing foreign legal concepts. The challenge
remains-how to make sure that such judicial innovations are converted to effective
implementation of climate policies.

Who can bring a case up before courts or tribunals has become one of the significant issues
concerning environmental litigation in India. While the broad access is permitted through Public
Interest Litigation by the Supreme Court and High Courts, the NGT functions on strict rules of
standing. Under section 14 of the NGT Act, only a person with a substantial interest in
environmental issues can move before the tribunal. However, the NGT has been gradually
widening the ambit of standing through its ruling. In Samir Mehta v. Union of India 11, the
tribunal explained that an "aggrieved person" cannot be restricted to those immediately affected.
The tribunal remarked that environmental problems have a bearing on society at large; therefore,
anybody interested in the problem of environmental degradation may file an action. This
judgment brought the NGT's approach in line with the principles of PIL and, thus, their expanded

10
Society for Protection of Environment & Biodiversity v. Union of India
11
Samir Mehta vs Union of India
access to environmental justice. In Samata v. Union of India 12, the tribunal opined that
associations and others working on environmental issues are also aggrieved persons. These
judgments, thus, suggest a trend toward expanded access to climate litigation, and this could very
well have ramifications for a plethora of climate litigation in the years to come.

Progress and Limitations

India presents a curious case in the development of climate change litigation practice. On the one
hand, it has improved environmental jurisprudence with courts going excessively proactive along
the way into forcing not only government entities but corporates as well into compliance with
environmental standards. On the other hand, all progress in climate change litigation is merely
infant-like, primarily because there is no comprehensive or specific climate law in India.

Unlike other countries that have enacted specific climate legislation, India relies on a patchwork
of environmental laws to address climate-related issues. India has also adopted the National
Action Plan on Climate Change (NAPCC) and Intended Nationally Determined Contributions
(INDCs) under the Paris Agreement, but these are policy frameworks rather than enforceable
laws. This regulatory gap makes it difficult for litigants to frame climate change cases under a
specific legal provision. In Gaurav Kumar Bansal v. Union of India & Others 13, the petitioner
sought judicial intervention to enforce the NAPCC and compel state governments to implement
State Action Plans. The NGT, while acknowledging the significance of climate action, did not
issue a clear ruling on its authority over NAPCC implementation. Instead, it directed states to
finalize their SAPCCs, reflecting the lack of a structured approach to climate litigation.

Despite the absence of a specific climate law, Indian courts have creatively applied existing
environmental laws to address climate-related issues. A prominent example is Court on Its Own
Motion versus State of Himachal Pradesh and Others14, which raised the issue of glacial pollution
at Rohtang Pass in the Himalayas. The discussion revolved around air pollution and vehicles
choking the glaciers as a result of direct climate change induced effects. Being that no law in
India precisely regulates climate change, the arbitration took rule under the reference point of air
12
Samata v. Union of India
13
Gaurav Kumar Bansal v. Union of India & Others
14
Court on Its Own Motion versus State of Himachal Pradesh and Others
pollution laws and the polluter pays paradigm to bring forth the idea. Judgement restricted
movement of vehicles in the area, levied fees on polluting vehicles, and ordered restoration
works. This experimentation is indicative of how courts can use existing environmental policy to
account for climate change effects without needing dedicated laws. However, relying solely on
judicial innovation is not going to be a sustainable long-term solution.

Prospects for Successful Climate Litigation

While judiciary is active about issues associated with climate, but many hurdles remain in the
ground of developing climate litigation as an effective means by which to achieve action and
hold such action accountable. One of the larger issues challenging climate litigation within the
greater global context is the direct connection between introverted emissions and climate impact.
Unlike the case with traditional environmental pollution—a factory with waste material can be
traced to pollution in air or water—effects of climate change have, connected apparently,
resulted from cumulative emissions of gases over a period, which makes it unclear how to pin
exact responsibility on any industry or government agency with respect to any climate harm. On
the basis of expert reports and scientific evidence, the courts have ventured into cases such as the
Taj Trapeziam case; however, it is difficult to draw parallels between the courts' ways and those
of climate litigation.

Availability of instruments in the form of the NAPCC and state-level SAPCCs as policy
instruments remain in force above itself as non-implementable legal instruments. Their direction
by the courts may not be effective since these directives do not have any statutory backing.
Large-scale climate litigation generally involves strong corporate interests or government bodies.
Most of these have seen delays owing to appeals and continued litigation alongside non-
implementation. In several other pollution-related cases, such as the Narmada, pollution, even
promises within the state are failing to count into implementation. These will face similar kinds
of resistance, thus strong legal mechanisms are needed to ensure compliance. Climate litigation
would require legislation in India, providing Government obligations for mitigation and
adaptation, Industry obligations for reduction of emissions and reporting of climate-related risks,
and Legal remedies available to citizens in case of climate-related harm, to have full effect. This
will provide the clear legal basis needed to anchor climate-related cases in law without requiring
judicial innovation in each instance.

Conclusion

Climate litigation inevitably raises social and ethical issues because it relates to broader issues of
justice, accountability, and rights for future generations. As climate change increasingly
hammers out on the three facets of human rights-relevant and economic stability and
environmental sustainability issues, it is raised in court how ethical questions are posed in the
process. There is legal duty for practitioners to ensure that their counseled clients comprehend
how climate change would speak to rights and responsibilities attached to such endeavors.
However, there are also moral obligations beyond the courtroom by individuals and societies.
The principle of intergenerational equity states that the present generation has the ethical
obligation to preserve the environment for future generations, which will also influence the
discourse on climate justice. That contrast can be seen with India, which means in such different
socio-economic realities as those within which climate litigation is at present. In the first place,
environmental activism in this country has more often than not centered on other concerns of
poverty, unequal resource distributions, and fast growth of population. The Indian judiciary has
made significant strides in activist judicial creation of environmental law; however, so far,
climate change has not been the focus of litigation. Legal accountability may explain much of the
different focus found in the U.S. et al. on regulatory failure or corporate accountability and on
account of which litigation has come about in India, which is historic, from people who agitate
for social and ecological justice. Such a social context may explain why classical legal actions
based on nuisance, negligence, or administrative failures are also not yet fully engaged to tackle
climate-related issues.

The ethical dimension of climate litigation goes beyond borders; it is a global battle for the
environment. Who would be expected to shoulder the burden of dealing with climate changes-
government or corporations or individuals? The question is still being debated. As awareness
grows, the legal system will increasingly be called upon to mediate these ethical and social
disputes, determining not just liability, but also the broader moral obligations of societies toward
a sustainable future.