Climate vs conservation
SC on solar energy vis-a-vis protecting the Bustard
On March 21, 2024, the Supreme Court recognised a fundamental right against climate change impacts, in a case focused on protecting the Great Indian Bustard (GIB) from threats like collisions with electrical cables.
The court revisited its April 2021 ruling, which initially prohibited overhead power transmission lines in a presumed GIB habitat spanning 99,000 sq km. Various parties contested this, arguing the protected zone exceeded the GIB’s actual habitat and included areas suitable for solar energy production.
This case required the Supreme Court to do a balancing act, juxtaposing the need for promoting solar energy with the need for conserving the GIB.
The Court referenced India's commitments under international instruments including the Kyoto Protocol, the UN Framework Convention on Climate Change, and the Paris Agreement. Notably, it recognized that India's Nationally Determined Contributions under the Paris Agreement, included a pledge to derive 50 per cent of its electricity from non-fossil fuel sources by 2030. The Court stressed that investing in renewable energy not only aligns with international obligations but also brings socio-economic advantages like energy security, aordability, and poverty reduction, crucial for India's future prosperity and resilience.
In contrast, the Court evaluated the imperative of safeguarding the GIB and examined the consequences of “undergrounding” as a means to achieve this objective. Emphasising the significance of alternative approaches, the Court concluded that undergrounding power lines was impractical and financially burdensome, posed risks to environmental integrity and human safety, and failed to comprehensively tackle all factors contributing to the decline in the GIB's population.
The Court expanded upon previous interpretations of the right to a healthy environment by recognising the right to be “free” from the adverse impacts of climate change. This right was read into both Articles 21 and 14 of the Constitution.
In conclusion, the prohibition on overhead power lines was revoked and an Empowered
Great Indian Bustard
THE IMPLICATIONS
The
Committee tasked with undertaking measures to protect the GIB – including assessing the feasibility and extent of overhead and underground electric lines, exploring alternative construction methods, and suggesting additional protective measures to the Court. The Committee is required to submit a report by July 31, 2024, which the Court will review in the second week of August 2024.
The Supreme Court’s decision to recognise an express right to be free from the adverse eects of climate change is linked to an understanding that combating climate change not only involves undertaking activities that reduce the negative impacts of climate change (i.e. “mitigation”), but also involves undertaking measures to adapt existing ecological, social or economic systems to such eects (i.e. “adaptation”).
Thus, the right to be free from climate change's adverse eects encompasses both preventing further environmental degradation and adopting proactive measures like replacing fossil fuels with renewable energy sources.
The judgment reflects a careful balancing between conflicting interests.
Furthermore, the Court itself recognised the importance of climate change litigation as a tool in “advancing rights-based energy transitions”.
Indeed, this judgment is the latest in a slew of climate-forward judicial pronouncements occurring across the globe.
However, in the absence of a specific directive to the Government, it remains to be seen how this “right to be free from the eects of climate change” will be prioritised by the government.
Notani is Partner, Ghei is Principal Associate, and Yadav is Associate, Economic Laws Practice