Vidya Ann Jacob1
The 25th Conference of Parties of the United Nations Framework Convention on Climate Change (“UNFCCC”) took place in Madrid during December of 2019. Thousands of negotiators and observers emphasized the goals laid down by the Paris Agreement of 2015. International climate change negotiations are convened not only with the goals of mitigating and adapting to climate impacts, but also looking at mechanisms to lessen climate-induced human rights violations, and achieving feasible sustainable development. The possible solutions to these challenges are interlinked. The link between climate change mitigation and human rights violations can be addressed through climate justice. The Intergovernmental Panel on Climate Change’s (“IPCC”) report on “Renewable Energy Sources and Climate Change Mitigation” states that access to clean energy globally would help accomplish sustainable, socio-economic development and address issues of climate change.2 Policy makers are concerned that a delay in technology transfer and clean energy access would lead to increased emissions and grave injustice. The solution to the challenges of human rights violations and reduction of emissions has to be based on a new pathway to ensure climate justice. Two core principles of climate justice are fairness and equity.3 To ensure fair and equitable solutions, nations need to initiate policies and negotiations at the domestic level ensuring reduction in greenhouse gases globally and enabling sustainable development.
II. Global North and Global South
The impacts of climate change are global in nature. The consequences are unevenly distributed across nations. The Global North and Global South face different climate challenges, and there are unequal conditions related to climate mitigation and adaptation impact between the two due to geographic, economic, and demographic factors.4 The Global South faces challenges that are immediate in nature. Without seeking to generalize, these challenges are often shaped by many factors, which include: development trajectories, vast population, resource scarcity, high incidence of poverty, and the prevalence of communal and ethical tensions.5 In many ways, the Global South is more immediately vulnerable to climate change, as can be seen by the harsh impacts suffered by vulnerable populations in these countries.
A. Global South
The Global South, particularly India, Bangladesh, Brazil, and Indonesia, is more vulnerable to climate change. This is due to the fact that their economies rely more heavily on climate-reliant activities, in particular, farming. Countries like India are grappling with climate change as the sea level continues to rise and climatic catastrophes are increasing in both intensity and frequency. Additionally, concerns of public health due to air pollution, heat waves, and threats to food security are pressing. As a developing country, India has made poverty eradication and development its main concerns in the international climate change debates.6 According to a World Bank report from 2018, the change in the rainfall pattern and rise in temperatures due to climate change is likely to cost India 2.8 percent of its GDP and reduce the standard of living of nearly half the country’s population by 2050.7 India’s population at large depends on climate sensitive sectors like forestry and agriculture. India is posed with challenges of providing accessible and affordable energy to help poverty eradication and meet energy needs for social and economic growth.8 India followed the norms formulated in various international conventions, such as the UNFCCC, Kyoto Protocol, and the Paris Agreement negotiations. Along these lines, at the domestic level, the Indian government has introduced various measures including the Energy Conservation Act (2001), National Environment Policy (2006), and the National Action Plan on Climate Change (2008), to meet the challenges of climate change. The National Solar Mission and the National Mission for Enhanced Efficiency under the National Action Plan on Climate Change have made efforts to move towards clean energy. The courts have been proactive in either scrutinizing the efforts of the government or issuing directives themselves where the efforts were found wanting.9 In spite of all these measures, climate change issues continue to be of grave concern. Hence a robust needs-based action plan on climate change is required, which will not only cater to the domestic needs of India, but also meet international requirements. It is important for the Global South to get assistance for technological advancement and financial aid to meet the goals of the Paris Agreement.10
The Paris Agreement identifies financial support to be facilitated by developed countries to help developing countries with mitigation and adaptation, but “in continuation of their existing obligations under the Convention.”11 Other provisions on support with regard to mitigation,12 adaptation,13 technology,14 and transparency15 addressed in the Paris Agreement are vague in identifying who is to provide such support.16 The success of the support package provided in the Paris Agreement will be evaluated on the basis of the developing countries meeting the mitigation goal set in the Paris Agreement. Developing countries had negotiated that any mitigation measure to meet the ambitious level should be matched with enhanced support. The negotiation resulted in a subtle shift whereby developed countries were required to financially assist developing countries in mitigation and adaptation measures according to the compromise struck under the Convention.17
B. Global North
In the Global North, the United States is a global leader in the production of renewable energy. From 1970s onwards, the United States has made efforts to use renewable energy sources.18 At the federal level the United States provides incentives to states to move towards clean energy.19 Some states, like California and Oregon, have already created their own incentive program.20 Also, the Clean Air Act has read provisions into the existing norms to impose liability on greenhouse gas emitters through which the U.S. has been and remains the epicenter of climate litigation.
The current principal federal statute that regulates “air pollutants” in the U.S. is the Clean Air Act (“CAA”).21 The CAA generally deals with emissions of “air pollutants” from mobile sources and stationary sources.22 CAA § 302(g), 42 U.S.C § 7602(g) defines air pollutant as “any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive . . . substance or matter which is emitted into or otherwise enters the atmosphere.” This section of the CAA addresses the efforts taken through federal actions to regulate greenhouse gas emissions and the rulemaking power vested in the EPA after the Supreme Court’s decision in Massachusetts v. EPA23 in 2007.24
In the state of Oregon, policy initiatives to generate electricity from solar and other renewable energy sources have shown how states can move towards clean energy by reducing emissions while developing their economies. Today, solar and onshore wind generated power are considered to be the cheapest bulk renewable energy sources worldwide.25 A report by the Green Energy Institute in 2019 states that the approach undertaken by Oregon to invest and incentivize usage of renewable energy will generate employment opportunities and socio-economic growth.26 This could be used as a model for countries in the Global South to attain climate justice.
Developing countries like India have the potential to deploy a large amount of renewable energy products, systems, and services, but there are various concerns that have to be addressed to ensure energy justice. The government needs to bring about mechanisms to meet the supply demand gaps as the population increases, address environmental concerns, identify potential energy sources, and provide access to all. The Global South requires mechanisms to eradicate poverty and enable development that can be achieved through sustainable development.
The climate justice approach is the best practical climate policy method because both individual and collective action can help mitigate and adapt to climate concerns. The justice mechanism should include fueling economic growth and job opportunities and promoting energy independence. If successfully implemented, the ambitious goals under the Paris Agreement to limit the global average temperature increase to “well below two degree above pre-industrial levels” and to “pursue efforts to limit the temperature increase to one point five degree above pre-industrial levels”27 can be achieved.
- ↑ 1 Research Scholar, National Law School of India University, Bangalore. This research was conducted during her Fulbright Fellowship at Lewis and Clark Law School under the guidance of Professor Craig Johnston. The author is indebted to Prof. Lisa Benjamin, Professor Lewis and Clark Law School and Prof. M.K Ramesh, Professor National Law School of India University, Bangalore, for their valuable insights and guidance.)
- ↑ 2 Renewable Energe Sources and Climate Change Mitigation: Special Report of the Interovernmental Panel on Climate Change 33 (Ottmar Edenhofer et al eds., Cambridge Univ. Press 1st ed. 2012), https://www.ipcc.ch/site/assets/uploads/2018/03/SRREN_Full_Report-1.pdf [https://perma.cc/C5YN-7ZMS].
- ↑ 3 Climate Justice Post Durban, Mary Robinson Foundation – Climate Justice (Jan. 18, 2012), https://www.mrfcj.org/resources/climate-justice-post-durban/ [https://perma.cc/D2TD-UUQV].
- ↑ 4 S. Nazrul Islam & John Winkel, Climate Change and Social Inequality, (DESA Working Paper No. 152, Oct. 2017), https://www.un.org/esa/desa/papers/2017/wp152_2017.pdf [https://perma.cc/7SGF-YEDF]; Carmen G. Gonzalez & Sumudu Atapattu, International Environmental Law, Environmental Justice, and the Global South, 26 Transnat’l L. & Contemp. Probs. 229 (2017).
- ↑ 5 Emma Schwartz, Quick Facts: How climate change affects people living in poverty, Mercy Corps (Nov. 15, 2019), https://www.mercycorps.org/articles/climate-change-affects-poverty [https://perma.cc/RBV5-YREQ].
- ↑ 6 Ministry of Environment, India’s Intended Nationally Determined Contribution: Working Towards Climate Justice 1 (Feb. 10, 2015), https://www4.unfccc.int/sites/submissions/INDC/Published%20Documents/India/1/INDIA%20INDC%20TO%20UNFCCC.pdf [https://perma.cc/MPN6-85X3].
- ↑ 7 Muthukumara Mani et al., South Asia’s Hotspots: The Impacts of Temperature and Precipitation Changes on Living Standards 8, (World Bank Group 2018), https://openknowledge.worldbank.org/bitstream/handle/10986/28723/9781464811555.pdf?sequence=5&isAllowed=y [https://perma.cc/X58J-WBBT].
- ↑ 8 India, UNDP Climate Change Adaptation, https://www.adaptation-undp.org/explore/india (last visited Mar. 17, 2020) [https://perma.cc/8PNW-SM37].
- ↑ 9 Shibani Ghosh, Litigating Climate Claims in India, 114 Am. J. Int’l. L. Unbound 46 (2020).
- ↑ 10 U.N. Framework Convention on Climate Change, Rep. of the Conference of the Parties on Its Twenty-First Session, Adoption of the Paris Agreement, U.N. Doc. FCCC/CP/2015/L.9/Rev.1 (Dec. 12, 2015) https://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf [hereinafter Paris Agreement] [https://perma.cc/TTZ5-A2FN]; Lavanya Rajamani & Emmanuel Guérin, Central Concepts in the Paris Agreement and How They Evolved, in The Paris Agreement on Climate Change: Analysis and Commentary 74, 74, 88–89 (Daniel Klein et al. eds., 2017).
- ↑ 11 Paris Agreement, supra note 9.
- ↑ 12 Id. art 4(5)
- ↑ 13 Id. art 7(13)
- ↑ 14 Id. art 10(6)
- ↑ 15 Id. art 13(14)
- ↑ 16 The Durban Platform paved way for the Paris Agreement to include support for finance, technology development and transfer, and capacity building. U.N. Framework Convention on Climate Change, Rep. of the Conference of the Parties on Its Seventeenth Session, Dec. 1/CP.17, Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action, ¶ 5, U.N. Doc. FCCC/CP/2011/9/Add.1 (Dec. 11, 2011) https://unfccc.int/resource/docs/2011/cop17/eng/09a01.pdf#page=2 [https://perma.cc/G36T-F7C8].
- ↑ 17 Rajamani & Guérin, supra note 9, at 88–89.
- ↑ 18 Chris Wold et al., Climate Change And The Law 617 (2d ed. 2013).
- ↑ 19 See generally Shelley Ross Saxer & Jonathan Rosenbloom, Social-Ecological Resilience and Sustainability 414-419 (2018).
- ↑ 20 Id. at 415
- ↑ 21 Id. at 239. [The Supreme Court has held that the EPA may regulate to some extent greenhouse gases under the CAA. Robert Barnes, Supreme Court: EPA can regulate greenhouse gas emissions, with some limits, Wash. Post (June 23, 2014), https://www.washingtonpost.com/politics/supreme-court-limits-epas-ability-to-regulate-greenhouse-gas-emissions/2014/06/23/c56fc194-f1b1-11e3-914c-1fbd0614e2d4_story.html [https://perma.cc/28KN-D3LD].
- ↑ 22 Jonathan Martel et al., Clean Air Regulation, in Global Climate Change and U.S. Law 117, (Michael B. Gerrard & Jody Freeman eds., 2d ed. 2014).
- ↑ 23 Massachusetts v. EPA, 549 U.S. 497, 528–29 (2007).
- ↑ 24 Michael B. Gerrard, United States Climate Change Law, in The Oxford Handbook of International Climate Change Law, 608, 609–10 (Kevin R. Gray et al. eds., 1st ed. 2016).
- ↑ 25 Michael Taylor, Cheaper than coal: IRENA’s comprehensive report on cost declines, all renewables categories, energypost.eu (Jul. 12, 2019), https://energypost.eu/cheaper-than-coal-irenas-comprehensive-report-on-cost-declines-all-renewables-categories/ [https://perma.cc/UR8E-5M9T].
- ↑ 26 Amelia Schlusser et al., Oregon’s Solar Future: A Background Report on the Oregon Solar Plan 1 (Apr. 2017), https://law.lclark.edu/live/files/24192-oregons-solar-future [https://perma.cc/LU74-Q657].
- ↑ 27 Paris Agreement, supra note 9, art. 2.