In India How might Indian law address climate governance? | ENVIROCOTE & ADVOCOTE

In India How might Indian law address climate governance? | ENVIROCOTE & ADVOCOTE

As climate change becomes a greater concern, tackling the issue solely through policy may be insufficient. In this paper, Dubash and Sridhar argue that climate legislation can secure economic consequences, and they present nine principles that governments wanting to implement climate legislation should meet in order to effectively combat climate change. They address different techniques to designing these laws while keeping the larger political context in mind, to ensure that both environmental and development objectives are accomplished.

Although India has a growing climate policy infrastructure,

climate change considerations are rarely represented in Indian law. However, the complexity and breadth of the climate challenge suggest that tackling climate concerns solely through the policy process will be limited in the long run. Climate change may entail the establishment of new coordinating and information organisations, as well as overarching mechanisms like a carbon market. Furthermore, to secure an economy-wide low-carbon and climate-resilient future, climate change may need to be mainstreamed through sectoral decision-making. However, incorporating climate governance into law is a difficult task. Should this be accomplished by new legislation? Should it continue by gradually amending existing legislation? Should its primary goal be to encourage experimentation or to compel regulatory conformity with new directions?

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Climate governance responsibilities

The latest modification to the Energy Conservation Act (approved in the Lok Sabha) follows the route of internalising climate change through changes to existing law by establishing the legal underpinnings for a carbon trading mechanism. This is a break from previous practise, as most Indian laws addressing greenhouse gas mitigation have done so indirectly, by addressing energy supply and usage, whereas the ECA amendment bill intends to regulate carbon directly.

Is this ‘distributed upgrade’ approach to climate legislation appropriate? Is a more methodical approach required? We discuss how to approach climate legislation in a recent brief (Sridhar et al.) issued by the Centre for Policy Research in partnership with colleagues at the London School of Economics and Climate Legal, South Africa. We believe that governments would be wise to start by asking what problem any proposed legislation or legal modifications are attempting to tackle.

To put it another way, climate change carries with it a set of distinct governance duties that any government wanting to effectively address climate change must meet through its governance instruments. They are as follows:

i) Narrative and high-level policy direction – to focus political attention and set expectations

ii) Expert guidance and knowledge – to keep climate action current with constantly growing understandings of dangers and solutions.

iii) Strategy articulation entails putting in place short- and long-term strategies for large-scale climate change transformation.

iv) Integration entails improving current laws and policies to ensure that climate objectives are met in a consistent manner.

v) Mainstreaming – establishing processes in other sectors, such as agriculture and construction, to increase their capacity and enthusiasm for going green.

vi) Coordination – to achieve all-government climate collaboration: between the centre and states, between states, and between ministries.

vii) Stakeholder involvement and alignment – to foster agreement and credibility on climate policy and activities

viii) Mobilization and channelling of finances (private, public, national, and international) sufficient to meet climate ambition

ix) Oversight, accountability, and enforcement – to build a rigorous monitoring and penalty framework to ensure strict plan adherence.

As seen by this list,

the governance functions connected with a well developed response to climate change are significant. However, this does not imply that all of these events must occur simultaneously; rather, they can be suitably ordered. Starting with a governance functions approach — identifying the challenges to be solved – permits legal reform to be tailored to various national settings, with country-specific approaches to tackling these governance functions rather than adopting a one-size-fits-all approach to climate law.

Alternative ways to climate governance

There are several viable paths forward, each with advantages and disadvantages. First, the law does not have to fulfil all functions. Countries such as India could opt to fulfil some of these goals through executive mechanisms such as the National Action Plan on Climate Change (formed in 2008) and future missions.

While this may be a useful and low-cost approach to get started, policy actions may be limited. Laws, as opposed to administrative actions and policies, are the most formal expressions of political consensus in a democratic government. Laws can improve accountability, strengthen government action, prevent backsliding, and increase outcome acceptability – all of which may be critical for meeting the long-term, transformational needs of climate change.

As a result, a second option,

consistent with the ECA amendment that built a foundation for carbon markets, is for India to continue seeding ‘climate upgrades’ in current laws on a case-by-case basis. The Air and Water Acts, for example, might be altered to categorise greenhouse gases (GHGs) as pollutants and charge the National and State Pollution Control Boards with monitoring GHG emissions.

Taking the scattered upgrading method, however, comes with design hazards, since India’s climate law corpus may wind up with the head of an elephant and the tail of a squirrel. If laws – and the climate governance systems they govern – are altered haphazardly, the many adjustments may not work well together, and may even act against one another. Such an approach may also necessitate an unusual amount of effort and an inconvenient amount of time.

The third approach is, of course,

an all-encompassing climate law. Unitary rules can and have been adjusted to context in many circumstances. Typically, such laws enshrine a powerful narrative-guiding action. Notably, many existing regulations focus on time-bound mitigation, while others focus on green growth or integrating development and mitigation, and yet others on adaptation. Framework laws also include procedures for merging disparate laws and policies, paving the way for past efforts at a scattered upgrade to be harmonised. They also include provisions for the formation of specialised climate bodies to perform knowledge and coordinating functions. Because these bodies are by definition cross-cutting, they are normally established by a single climate law rather than a single sectoral law.

At the same time, a unified law necessitates the most political unanimity, not least around a compelling domestic narrative of climate action. Given the pervasiveness of the climate problem, competent integration with the larger governance architecture is also required to ensure that other development objectives, in addition to climate mitigation and adaptation, are realised.

While unitary law may be a necessary consequence in the end, the journey to it may be long and convoluted. Climate governance functions so present a good means of addressing the issue of climate law in a gradual manner. It enables governance to be tailored to the local context, other development goals to be internalised, and changes to be sequenced in accordance with degrees of political agreement within complex polities like India.