How could Indian law tackle climate governance?

As climate change becomes an increasing concern, addressing the problem only through policy may not be enough. In this piece, Dubash and Sridhar suggest that legislation around climate can ensure economy-wide outcomes, and put forth nine considerations that countries hoping to implement climate law should satisfy to effectively tackle climate change. They discuss possible approaches to design these laws – taking into account the broader political context – to make sure that both environmental and development objectives are met.

India has a growing edifice of climate policy, but climate change considerations are scarcely reflected in Indian law. Yet the scale and broad scope of the climate challenge suggest that, over time, addressing climate concerns only through the policy process will be limiting. Climate change may necessitate the creation of new coordinating and information institutions, or overarching mechanisms such as a carbon market. Additionally, it may well need the mainstreaming of climate change through sectoral decision-making, to ensure economy-wide low-carbon and climate resilient futures. However, introducing climate governance to law is a complex endeavour. Should this happen through new legislation? Should it proceed through the gradual modification of existing law? Should its focus be to enable experimentation, or to force regulatory compliance with new directions?

Climate governance functions

The recent amendment to the Energy Conservation Act (passed in the Lok Sabha), takes the route of internalising climate change through amendments to existing law by introducing the legal foundations for a carbon trading scheme. This marks a departure from past practice, because most Indian laws bearing on greenhouse gas mitigation have done so indirectly– by addressing energy supply and use – while the ECA amendment bill seeks to regulate carbon directly.

Is this ‘dispersed upgrade’ approach to climate law appropriate? Or is a more systematic approach required? In a recent brief (Sridhar et al.) produced by the Centre for Policy Research in collaboration with colleagues at the London School of Economics and Climate Legal, South Africa, we examine the question of how to approach climate law. We suggest that countries would be well advised to begin by asking what problem any suggested laws or legal amendments are trying to solve.

To put it differently, climate change brings a set of distinct governance functions, which any country hoping to tackle climate change effectively must satisfy through its governance instruments. These are:

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

ii) Knowledge and expert advice – to keep climate action up-to-date with constantly evolving understandings of threats and solutions

iii) Strategy articulation – to implement short- and long-term strategies for large-scale climate transformation

iv) Integration – to upgrade existing laws and policies to ensure coherent enabling of climate objectives

v) Mainstreaming – to establish processes in other sectors like agriculture and building, to build their capacity and appetite for going green

vi) Coordination – to bring about an all-of-government collaboration on climate: between the centre and states, between states, and between ministries

vii) Stakeholder engagement and alignment – to build consensus and credibility around climate policies and actions

viii) Finance mobilisation and channelling – to mobilise funds (private, public, national, and international) adequate to climate ambition

ix) Oversight, accountability, and enforcement – to establish a robust regime of monitoring and penalties to ensure strict implementation of plans.

As this list suggests, the governance functions associated with a fully developed response to climate change are considerable. But it does not imply that all these must happen at once; rather, they may be appropriately sequenced. Starting with a governance functions approach – identifying the problems to be solved – allows the tailoring of legal reform to disparate national contexts, with country-specific approaches to addressing these governance functions rather than seeking a one-size-fits-all approach to climate law.

Possible approaches to climate governance

A number of paths forward are possible: each with their upsides and downsides. First, all functions need not be met through the law. Countries like India could choose to meet some of these objectives through executive processes, such as India’s National Action Plan on Climate Change (established in 2008), and its subsequent missions.

While this may be a useful and low transaction cost way of getting started, policy actions may also be limited. In a democratic polity, laws – as opposed to executive actions and policies – are the most formal expressions of political consensus. Laws can enhance accountability, empower government action, prevent backsliding, and increasing acceptability of outcomes – benefits which may prove crucial for the long-term, transformational demands of climate change.

A second option, therefore, consistent with the amendment to the ECA that established a basis for carbon markets, is for India to continue seeding ‘climate upgrades’ in existing laws on a case-by-case basis. For example, the Air and Water Acts might be amended to classify greenhouse gases (GHGs) as pollutants, and task the National and State Pollution Control Boards to monitor GHG emissions.

Yet, taking the dispersed upgrade approach also comes with design risks, wherein India’s corpus of climate law might end up with the head of an elephant and the tail of a squirrel. If laws – and the climate governance mechanisms they regulate – are amended opportunistically, the various changes may not work efficiently together, and possibly even against one another. Such an approach might also need too many amendments, requiring an unlikely amount of effort and unhelpful amount of time.

The third approach is, of course, an omnibus climate law. Unitary laws can be, and in many cases have been, tailored to context. Such laws typically enshrine a strong narrative-guiding action. Notably, while many existing laws do focus on time-bound mitigation, others focus on green growth or bringing development and mitigation together, and yet others on adaptation. Framework laws also have mechanisms for integrating divergent laws and policies, providing a route for harmonising earlier efforts at a dispersed upgrade. They also have provisions for establishing specialised climate bodies that can serve knowledge and coordination functions. Since these bodies are by nature cross-cutting, they are usually instituted by a single climate law, as opposed any one sectoral law.

At the same time, a unitary law requires the greatest political agreement, not least around a strong narrative of climate action domestically. Given the pervasive nature of the climate problem, it also requires skillful integration with the broader edifice of governance, to make sure that other development objectives are met along with those of climate mitigation and adaptation. While a unitary law may, ultimately, be a necessary outcome, the path to it may be long and complex.

Climate governance functions therefore, provide a useful way of engaging the question of climate law, by doing so in a phased way. It allows tailoring governance to local context, internalising other development objectives, and sequencing changes consistent with levels of political agreement within complex polities like India.