Climate Change Litigation in India, Emerging Trends and Legal Strategies

Abstract

Climate change litigation is also becoming a global force to be reckoned with in holding governments and corporations to account for climate inaction. This article explores leading global cases and the promise of India’s ability to drive climate claims through its robust tradition of environmental rights and Public Interest Litigation. It discusses the National Green Tribunal, new trends like net zero and ESG, and offers strategies and challenges towards making climate pledges legally binding in India.

In India, there is no independent climate litigation regime yet, but the judiciary’s broad interpretation of Article 21, the right to life, has provided a solid basis for climate claims. The iconic MC Mehta cases and the doctrine of intergenerational equity highlight the judiciary’s willingness to defend the environment as a constitutional right. The National Green Tribunal (NGT) also has a crucial function to play in enforcing environmental standards, even though it has yet to rule directly on big climate cases; its rulings regarding pollution, tree cutting, and waste disposal have obvious climate implications.

This article analyzes international precedents, India’s legal framework, strategic avenues, and the challenges that climate litigants are likely to encounter, including issues of justiciability, scientific proof, and resource limitations. Through comparative jurisprudence and building on India’s rich environmental legacy, courts, civil society, and policymakers can turn climate ambitions into legally binding commitments, allowing India to meet the defining challenge of the times.

Introduction

Climate change is a threat to the very existence of human life livelihoods and ecosystems globally. India, with its high population density, extensive coastline, and dependence on climate-sensitive agriculture, is most vulnerable to the negative impacts of global warming.

Litigation has become a significant tool to convert policy promises into concrete action in this regard. Across the world, individuals, non-governmental organizations, and sub-national governments increasingly use the courts to engage states and corporations for what they have done, and what they have achieved to reduce emissions. This article discusses the growth of climate change litigation in the world and how India’s well-developed environmental legal system can be leveraged to support homegrown climate litigation efforts

Climate Change Litigation: A Global and Indian Perspective

In courts of justice everywhere, climate change is no longer only an issue of policy; it’s an issue of law. Climate change litigation, in short, is the exercise of bringing legal cases to remedy the causes and effects of the climate crisis. Citizens, communities, and even youth are increasingly going to courts to hold governments and corporations to account when they don’t.

Internationally, climate litigation has skyrocketed in recent years. In a 2023 report, the Grantham Research Institute and the Sabin Center for Climate Change Law reported that more than 2,000 climate cases have been brought across over 40 countries. A number of the cases are pioneering by establishing a connection between inaction on climate and human rights abuses and constitutional obligations.

A key test case is Urgenda Foundation v. State of the Netherlands (2015). There, the Supreme Court of the Netherlands directed the government to reduce greenhouse gas emissions by at least 25% below 1990 levels, the first ever ruling that determined inaction on climate change a breach of the European Convention on Human Rights.

Another landmark case is Juliana v. United States (2015). Although the case was dismissed on procedural grounds, it encouraged youth climate cases globally.

India’s Unique Approach: PILs and Environmental Rights

India does not yet have a dedicated climate litigation framework. But it does have a rich tradition of Public Interest Litigation (PIL) and a progressive approach to environmental rights. Indian courts have long interpreted Article 21 of the Constitution, the right to life, as including the right to a clean and healthy environment.

This concept has its origin in classical cases such as MC Mehta v. Union of India (1987), which caused the shut-down of Ganga polluting factories and established the “polluter pays” and “precautionary” principles. In Vellore Citizens Welfare Forum v. Union of India (1996), the Supreme Court established that economic development needs to balance with conservation, instituting sustainable development in Indian law.

India’s judiciary has also adopted intergenerational equity, the notion that we are holding the environment in trust on behalf of future generations. In State of Himachal Pradesh v. Ganesh Wood Products (1995), the Supreme Court indicated firmly that the protection of the environment is not solely on behalf of today’s citizens, but also tomorrow’s — a notion which climate litigants could increasingly resort to.

National Green Tribunal: A Key Player

This concept has its origin in classical cases such as MC Mehta v. Union of India (1987), which caused the shutdown of Ganga polluting factories and established the “polluter pays” and “precautionary” principles. In Vellore India’s National Green Tribunal (NGT), established under the National Green Tribunal Act, 2010, is another puzzle piece. The NGT offers a quick adjudication forum for hearing green cases.

It might not yet have directly ruled on principal climate litigation, but through its judgments on air pollution, burning of stubble, felling of trees, and industrial emissions, it indirectly impacts India’s climate objectives.

The NGT’s speedy rulings and technical expertise suggest it can have a strong role to play in upcoming climate change matters, especially with India trying to meet its Paris Agreement targets.

New Frontiers: Net Zero, ESG, and Greenwashing

At COP26 in Glasgow, India pledged to reach net-zero emissions by 2070. This commitment could become a new benchmark for courts and activists to measure whether policies and actions are adequate.

Meanwhile, India’s focus on Environmental, Social, and Governance (ESG) standards is tightening. The Securities and Exchange Board of India (SEBI) now requires major listed companies to submit detailed Business Responsibility and Sustainability Reports (BRSR). Globally, misleading ESG claims, known as greenwashing, are already landing companies in court. In Australia, for example, the Federal Court recently examined an oil company’s claims about being carbon-neutral. Similar lawsuits may soon test India’s ESG regime, especially under consumer protection and unfair trade practice laws.

Legal Strategies for India

To succeed in India, climate litigation will require innovative, solidly based strategies. Some of the potential directions include:

• Broadening Article 21: Pleading that weak climate action amounts to a violation of the right to life and health under the constitution.
• Intergenerational Justice: Filing PILs defending children’s rights and future generations’ rights.
• Global Obligations: Relying on India’s commitments under the Paris Agreement as a compelling precedent for firmer domestic action.
• Corporate Responsibility: Combating false sustainability claims and violations of norms of Corporate Social Responsibility under the Companies Act, 2013
• Community-Initiated Cases: Advocating for vulnerable communities to seek climate justice under current environmental and forest rights laws.

Challenges Ahead

India’s green jurisprudence is forward-looking, but climate litigation poses real challenges. Courts might be reluctant to enter what they perceive as political territory. Making transparent scientific connections between emissions and local effects is tricky and expensive. Climate cases require a lot of evidence, expert witnesses, and long-term funding, all of which may discourage litigants.

Resistance from influential industrial lobbies is also a reality, as tighter emission controls at times are seen as barriers to growth. Judges have to balance developmental priorities against climate imperatives, a function that requires caution and courage.

Despite India’s progressive environmental jurisprudence, climate litigation still faces stiff obstacles. One of them is one of justiciability, the courts would be reluctant to go very far in what they see as policy or legislative grounds, especially where the issue is one of prescribing emission levels, allocating budgets, or choosing the technology option for decarbonisation. Separation of powers concerns always keep judges wary of issuing orders that would be seen as overstepping executive authority.

A second challenge is establishing causation and attribution. Climate harms are intangible and complicated. Even in typical environmental cases, the cause of pollution is often discrete at a specific factory or project, demonstrating that an action by a corporation or government resulted directly in measurable effects on the climate necessitates rigorous scientific evidence. This takes advanced climate modelling, expert testimony, and deep financial resources, obstacles that many grassroots signers or low-income communities cannot surmount.

Proving standing is an additional legal challenge. Petitioners must show that they are immediately injured in a definite, tangible way. While India’s liberal PIL regime has extended standing in public causes, climate-specific claims of future or intergenerational harm may test available doctrines to their limits.

Practical concerns include lengthy timelines and costly litigation. Climate cases, especially those involving complex expert evidence or global defendants, can drag on for years. Petitioners must hold funds and legal assets in the long term, something that may deter many from initiating large-scale claims.

On the political and economic front, state governments and industries generally argue that additional climate measures will be able to strangle economic growth, job generation, or infrastructure construction. Corporate interests with a firm grip may campaign against tougher laws or seek rollbacks of laws. Judges must balance development imperatives against constitutional and human rights protections, no simple task.

Finally, India’s climate litigation system must grapple with implementation gaps. Even when courts render tough judgments, enforcement may be difficult in the presence of lax enforcement, bureaucratic ineffectiveness, or political resistance. Without follow-up historic judgments might remain lettered only.

Conquering the obstacles will require the collaborative work to construct legal capacity, invest resources in capability in climate science, and mobilize coalitions across communities, lawyers, scholars, and policymakers It will also require innovative arguments connecting action on climate and inherent constitutional rights, arguing that the right to dignity and life cannot be affirmatively secured without securing against climate change.

Looking Forward

If climate litigation is to live up to its potential in India, public awareness and legal capacity must grow in tandem. Legal education by law schools, civil society, and bar councils requires investment to train lawyers to deal with climate science, environmental law, and international precedent. Policymakers must encourage the diligent application of existing laws and explore enforceable measures like carbon budgets or open-book emission standards. Grass-roots activism and youth movements will also be instrumental, as they have been in other places, in driving the climate agenda in courts of law.

Conclusion

India’s courts have long stood guard over the environment, crafting an impressive body of green law. Today, the climate crisis calls for this legacy to evolve further, to meet the biggest challenge of our time. By learning from global examples and creatively using India’s Constitution and laws, climate promises can become enforceable actions. The time to turn legal theory into climate reality is now.

References

• Urgenda Found. v. State of the Netherlands, Hoge Raad [HR] [Supreme Court of the Netherlands], 20 Dec. 2019, ECLI:NL: HR:2019:2007.
• Juliana v. United States, 217 F. Supp. 3d 1224 (D. Or. 2016)
• MC Mehta v. Union of India, (1987) 1 S.C.C. 395 (India)
• Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 S.C.C. 647 (India)
• State of Himachal Pradesh v. Ganesh Wood Products, (1995) 6 S.C.C. 363 (India)
• National Green Tribunal Act, No. 19 of 2010, Acts of Parliament, 2010 (India). Paris Agreement, Dec. 12, 2015, T.I.A.S. No. 16-1104, 55 I.L.M. 740 (entered into force Nov. 4, 2016).
• Securities & Exch. Board of India, Circular No. SEBI/HO/CFD/CMD-2/P/CIR/2021/562, Bus. Responsibility & Sustainability Reporting (BRSR), May 10, 2021.
• Glasgow Climate Pact, U.N. Doc. FCCC/PA/CMA/2021/L.16 (Nov. 13, 2021) (adopted at COP26, Glasgow)