Resilient City New Delhi, India Air pollution as a result of urbanisation
“The earth, the air, the land and the water are not an inheritance from our fore fathers but on loan from our children. So we have to hand over to them at least as it was handed over to us”.
– Mahatma Gandhi
NIGEL BROOK PARTNER, CLYDE & CO SUMEET LALL PARTNER, CSL CHAMBERS
With an increase in climate related events and societal trends such as urbanisation, businesses are facing economic disruptions and challenges previously unseen. Businesses need to consider their approach to resilience management and adapt to these future risks. Clyde & Co, in association with CSL Chambers is committed to supporting initiatives that facilitate greater resilience in the developed and developing world. Clyde & Co’s resilience campaign examines a number of these complex issues, helping
businesses understand the latest thinking on risk management, the regulatory landscape and what the future may hold. This report is part of a series looking at how cities around the world are responding to three seismic megatrends: climate change, urbanisation and globalisation. This report discusses the challenges being faced by Delhi due to rapid urbanisation and some of the measures that are being taken by the government and the courts to help reduce the impact of air pollution to build greater resilience.
Deteriorating air quality
Ancillary issues for Delhi
View from Acclimatise
Building resilience to air pollution
Air Pollution is defined “as the presence of any air pollutant in the atmosphere, or as any solid, liquid, or gaseous substance present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment. 2 Public health is a clear and present issue. Continual exposure to contaminated air has caused a surge in the number of patients suffering from respiratory diseases in Delhi. 3 The high amounts of pollutants in the air have caused a vertical drop in the quality of ambient air in the city. According to some studies, such drastic degradation in air quality has reduced the lung capacity of the average citizen and the overall life expectancy rate of the average citizen residing in Delhi has also plummeted. 4 5 AnAmbient Air Quality study conducted on respiratory symptoms and lung functions among a sample of children in Delhi indicated that the abundance of air
In many developing and emerging economies like India, China, and Pakistan, air pollution is a rapidly escalating issue. By 2030, more than 50% of India’s population 1 is expected to live in urban areas with the highest population density being in the National Capital Region of Delhi. This rapid urbanisation is forcing people to create homes where there were none before and has, in part, led to an increase in the number of motor vehicles which has significantly contributed to the escalation of air pollution. This is significantly worsening pollution due to increased exhaust fumes, construction dust, domestic pollution, crop burning, as well as industrial emissions. Meanwhile, deforestation as a direct result of urbanisation has diminished the Aravalli Range and left Delhi less able to cope with harmful airborne pollutants. With Delhi projected to become the most populous city in the world by 2028 and India expected to have the largest number of urban dwellers by 2050, the challenges of urbanisation will have consequences for policymakers and businesses as they seek to adapt to build greater resilience to these environmental threats.
1 India Urbanisation Econometric Model; McKinsey Global Institute analysis Pg. 15 available at https://www.mckinsey.com/~/media/McKinsey/Featured%20Insights/Urbanization/Urban%20awakening%20in%20 India/MGI_Indias_urban_awakening_executive_summary.ashx 2 Section 2(a) and 2(b) of the Air (Prevention and Control of Pollution) Act, 1981 of India 3 The Supreme Court of India in the case of M.C. Mehta v. Union of India, (2005) 10 SCC 217, order dated April 5, 2002 4 Study on ambient air quality, respiratory symptoms and lung function of children in Delhi, Central Pollution Control Board Ministry of Environment & Forests, 2012 available at http://cpcb.nic.in/openpdffile.php?id=UmVwb3J0RmlsZXMvMzNfMTQ1ODEyNzM4OV9OZXdJdGVtXzE5MV9TdHVkeU FpclF1YWxpdHkucGRm 5 Id.and Michal Nachmany, Sam Fankhauser, Joana Setzer and Alina Averchenkova “Global Trends in Climate Change Legislation and Litigation” (2017), 13
pollutants in the atmosphere has also led to the development of respiratory illnesses in new-borns and young children. 6 In the words of Honourable Mr Justice M B Lokur of the Supreme Court of India: “the citizens of Delhi are paying a heavy price with hopelessly polluted air to breathe and consequent damage to their lungs, respiratory problems and possible damage to the brain of infants and children”. 7
The Supreme Court while expressing grave concern for the health of citizens has observed as follows:
“It is an established principle of law that the right to life, as envisaged under Article 21 of the Constitution of India includes the right to a decent environment. It includes within its ambit the right of a citizen to live in a clean environment. It has been held that the right to clean environment is a fundamental right. The right to live in an environment free from smoke and pollution follows from the
6 Supra Note 5 7 The Supreme Court of India in the case of M.C. Mehta v. Union of India,WP (C) NO. 4677 OF 1985, order dated December 15, 2017
“quality” of life which is an inherent part of Article 21 of the Constitution. The right to live with human dignity becomes illusory in the absence of a healthy environment. The right to life not only means leading a life with dignity but includes within its ambit the right to lead a healthy, robust life in a clean atmosphere free from pollution. Obviously, such rights are not absolute and have to co-exist with sustainable development. Therefore, if there is a conflict between health and wealth, obviously, health will have to be given precedence.When we
are concerned with the health of not one citizen but the entire citizenry including the future citizens of the country, the larger public interest has to outweigh the much smaller pecuniary interest of the industry…”.
Deteriorating air quality
5. Construction and road dust; 6. Deforestation in the Aravalli Range; 7. Inflow of dust from the Thar Desert; 8. Particulate matter from the burning of residual crops; and 9. The limited dispersion of pollutants in Northern India because of its unique topography. Addressing the anthropogenic factors is of paramount importance to prevent further degradation of air quality in Delhi. Primary air pollutants: pollutants emitted directly from any emission source in the atmosphere e.g. sulphur dioxide, carbon monoxide, lead, ammonia, etc. Secondary air pollutants: formed by the reactions between primary air pollutants and normal atmospheric constituents.
Air quality is monitored on a real-time basis. In Delhi, the quantity of pollutants in the air consistently exceeds the prescribed safety standard. 8 The situation is worsening due to climatic, geographic, seasonal and many anthropogenic (man-made) factors, such as: 1. Vehicle emissions; 2. Poor garbage disposal methods inter- alia by open burning of waste; 3. Unchecked emissions from factories; 4. Excessive burning of firecrackers during festivities, exacerbated by low pressure conditions during the winter;
Deteriorating air quality
1. VEHICLE EMISSIONS
2. POOR GARBAGE DISPOSAL
Some studies 9 claim that vehicle pollution alone contributes about 72% 10 of air pollution in New Delhi albeit this figure varies in different studies. In addition, domestic pollution, industrial emissions, road dust, and burning of garbage also contribute a large share in Delhi’s total pollution levels. 11 Although the levels of sulfur dioxide (SO 2 ) have fallen, primarily because diesel taxis, buses and other modes of public transport have been phased out, there is a stark rise in the levels of nitrogen oxide (NO 2 ) concentration in Delhi. This is mainly attributable to an 83% increase in traffic in the city 12 due to the significant population growth. Furthermore, there is a greater use of cars and motorcycles which do not conform to current emissions standards. Traffic congestion 13 on the roads is another very important factor contributing to air pollution. The increase in four-wheeled vehicles (as opposed to bicycles and motorcycles) creates congestion and due to their size leads to a high frequency of traffic jams. To reduce pollution at traffic intersection points, time clocks have been installed to encourage cars to switch off their engines, although this is hardly ever observed, which further adds to the atmospheric pollution load.
The burning of garbage in Delhi leads to the emission of dangerous particulate matter into the environment. Despite authorities heavily clamping down on this practice, it is still prevalent and a contributor to Delhi’s worsening air pollution situation.
3. INDUSTRIAL EMISSIONS
The rapid growth of the industrial sector in India, particularly in Delhi is also responsible for the decline in air quality in the city. There are 900,000 14 industrial factories in Delhi; an 18% increase since 2005. Some of these operate in residential or non-conforming areas, in defiance of the 2003 Supreme Court judgement. In most instances, air pollution control devices are either inadequate or absent leading to the emission of pollutants directly into the atmosphere without any filtration. Newer factories have small chimneys, which restricts the polluting gases from escaping into the upper layers of the atmosphere.
9 http://cpcbenvis.nic.in/envis_newsletter/Air%20pollution%20in%20Delhi.pdf 10 ‘Status of The Vehicular Pollution Control Programme in India’, Pg.16 available at http://www.indiaenvironmentportal.org.in/files/status%20of%20the%20vehicular%20pollution.pdf 11 ‘Through the thick air’, by the Centre for Science and Environment available at https://www.downtoearth.org.in/coverage/air/delhi-air-pollution-56180 12 Ranjeet S. Sokhi, ‘World Atlas of Atmospheric Pollution’, Pg. 23, Fig.2.4 13 https://swachhindia.ndtv.com/dust-upnpaved-roads-traffic-congestion-local-factors-for-pollution-cpcb-26780/ 14 Report by the Economic Survey of Delhi
4. EXCESSIVE BURNING OF FIRECRACKERS
6. DEFORESTATION AS A DIRECT RESULT OF URBANISATION
Bursting of firecrackers during festivals also results in emissions of large amounts of particulate matter and poisonous gases in the air. These activities take place during the winter season when low pressure conditions slow down pollutant dispersal. In a recent case, 15 the Supreme Court banned the production and sale of all crackers except for ‘Green Crackers’, which are low emission firecrackers. Challenges remain in implementing such orders and ensuring strict compliance mechanisms.
In a recent study conducted by the John A. Paulson School of Engineering and Applied Sciences at Harvard University, the predominant driver of pollution-linked healthemergenciesinDelhieverywinterhas been crop burning in neighbouring states. 18 Crop burning is a recent phenomenon in the region, precipitated by increased mechanisation of harvesting (leading to crop stubbles) and shorter cropping cycles. 19 In addition, another contributing factor is the deforestation of the Aravalli Range which experts 20 believe will lead to a series of ecological disasters in the wider area. Rampant real-estate activity and illegal mining has adversely affected the Aravalli Range. In fact, the state government was recently servedanotice by theNational Commission for Human Rights, demanding that protection be given to the Aravalli Range in the wake of powerful dust-storms that hit Delhi in June 2018. These dust storms led to a serious spike in levels of air pollution. The notice was served as the open forest cover in the Aravalli Range has decreased severely in the last three decades.
5. CONSTRUCTION AND ROAD DUST
In a 2016 study it was found that road dust contributed to 38% of Delhi’s air pollution, Initiatives are in place to try to minimise dust, such as creating vegetative buffers, street sweeping, sprinkling water on construction sites and better maintenance of roads and pathways. 17
15 Arjun Gopal v. Union of India, 2018 (14) SCALE 209 16 https://www.analyticsvidhya.com/blog/2016/10/complete-study-of-factors-contributing-to-air-pollution/ 17 http://www.epca.org.in/EPCA-Reports1999-1917/Final-EPCA-Report-71-CAP-for-Delhi-NCR.pdf 18 Quantifying the influence of agricultural fires in northwest India on urban air pollution in Delhi, India available at http://acmg.seas.harvard.edu/publications/2018/cusworth_2018_india.pdf 19 Strategies to reduce crop residue burning for air pollution mitigation: Key highlights by Centre for Science and Environment available at https://cdn.cseindia.org/userfiles/strategies-mitigation.pdf 20 As per Colonel (retired) S S Oberoi, a Delhi-based environmental activist and legal expert, who has filed petitions in the Human Rights Court upholding the protection of the environment
Deteriorating air quality
Several studies 21 have indicated that increasing human interference has played a major part in the degradation of the Aravalli Range over the last few decades. According to one study, 22 vegetation cover in the Aravalli Range has reduced from 80% at the beginning of the 20th century to a mere 7% in 2001. Also, it was observed that around 60% of forest land has been lost. A recent survey conducted on the Aravalli Range in Haryana, by the Wildlife Institute of India (WII), termed the scrub forests in the range as the “most degraded” in India. “Most of the indigenous plant species have disappeared. The rapid deforestation and developmental activities are destroying the unique landscape that requires immediate conservation attention,” it states.While the forests have been disappearing, human settlement across the entire Aravalli Range has increased by 158% in 26 years, from 247 sq km in 1980 to 638 sq km in 2016. At the same time, the area taken up by industries has gone up from nil to 46 sq km.
The above has led to a series of ecological disasters in the wider area, including sand storms, heat waves, floods and droughts, besides contributing to biodiversity loss.
7. INFLOW OF DUST FROM THE THAR DESERT
Desertification is the result of a “natural drift” of the Thar Desert towards the northwest, itself a consequence of a loss of forests. This has led to environmental hazards including more dust in the air, thereby increasing concentration of particulate matter in the lower atmosphere. It can also lead to greater unpredictability of climate, meagre recharging of groundwater, drying up of several natural water bodies and flooding during rains. 23
21 As per the study conducted by the Wildlife Institute of India in May 2017 in 52 sites in the Aravalli range “the occupancy estimates are higher in the areas where the habitat covariates such as shrub cover and tree cover are highest. Forest cover in the study area is very low and only exists in the form of two categories i.e. Open Forest and Scrub.” The report is available at https://41ngmc3nsigz3kwwbw1kp5ic-wpengine.netdna-ssl.com/wp-content/ uploads/Aravallis-Report-WII-May-2017-compressed.pdf Another report of Hindustan times depicts a significant decrease in the green cover between 1980 and 2016 in Aravalli range. The report is accessible at https://www.hindustantimes.com/gurugram/saving-aravallis-desert- inches-towards-delhi-gurugram-as-urbanisation-hits-buffer-zone/story-7Pb9ZdSmV1u7qv7YnS56HI.html 22 ‘Deforestation in Great Aravalli Mountain Region of India’, carried out by Narpat Singh Rathore – associate professor in geography, College of Social Sciences and Humanities, Mohanlal Sukhadia University, Udaipur 23 https://weather.com/en-IN/india/news/news/2018-09-20-degradation-aravalis-ecological-disaster
8. BURNING OF BIOMASS
for wheat cultivation being limited, the farmers choose to burn the residue right on the field as a cheaper alternative to hiring labour. Some states in India have taken preventive measures to discourage this practice such as banning crop residue burning, use of remote sensing technology and satellite imagery to detect occurrences of crop residue burning, and providing incentives to the farmers to avoid burning crops. This practice accompanied with the devastation of the Aravalli Range has led to increasing levels of air pollution in Delhi. The rapid and unplanned growth in population in Delhi and its neighbouring states has significantly increased the man-made air pollution with the unintended consequences of the urban sprawl and deforestation.
Burning of agricultural biomass residue, or crop residue burning is one of the major health hazards amongst all other factors. It not only exposes people to high levels of particulate matter concentration, in addition, it is also a major regional source of pollution, contributing between 12-60% of particulate matter concentration according to various source apportionment studies. 24 The main cause of crop residue burning is the very short window of time between harvesting of paddy and cultivation of wheat, at the end of the Kharif season i.e. July to October. With labour being unavailable due to mechanisation of farming practices and the time window for preparing the field
Burning of crops October– November 2018
Deteriorating air quality
9. METEOROLOGICAL OR ENVIRONMENTAL FACTORS
The winters play a fundamental role in impacting the overall air pollution in Delhi, characterised by dry, cold air and ground-based inversion with low wind conditions, which are responsible for increasing the concentration of pollutants. Due to atmospheric pressure, a high concentration of pollutants is trapped close to the earth’s surface, under a layer of warm air, which acts as a lid on top. These conditions, exacerbated by other sources of pollution, mean Delhi is subject to dense fog during the winter months. Similarly, wind has a direct bearing on air pollution. During autumn and winter, approximately 500m tons of crop residue is burnt in the Indo-Gangetic Plains. The particulate matter from crop burning is aided by the north/north-east wind, resulting in a combination of pollution and fog, leading to heavy smog formation in Delhi. In summers, although there is no inversion phenomenon, there is still deterioration in the air quality because of dust coming in from the Thar Desert, although in the monsoon season, pollution level goes down due to dust suspension. Consequently, air pollution in Delhi is also a trans-boundary and climate induced phenomenon.
In addition to man-made factors, geographic, local climatic and seasonal factors also affect the air quality in Delhi. Geographically, Delhi is a land- locked territory, with limited dispersal of pollutants, unlike costal metropolitan cities, such as Mumbai, Kolkata and Chennai which enjoy favourable wind conditions. The seasonal pattern of Delhi is greatly variable and plays a pivotal role in diffusing pollutants into the atmosphere. It is surrounded by regions of varied climate: at its west, there is Thar Desert of Rajasthan, while in the north and east directions there are cool hilly regions,andfinally to its south, there are central hot Indo-Gangetic Plains. Delhi is located in the subtropical belt with extremely hot summers, moderate rainfall and cold winters.
Ancillary issues for Delhi
Delhi is susceptible to natural disasters and chronic weather events. Over the years these events have caused extensive damage to life and property and have adversely affected economic development. Delhi is relatively prone to earthquakes and falls into the high-risk category. In addition, periodic heatwaves have led to casualties in the past. Climate change is projected to increase the frequency and intensity of these incidents. Delhi also faces the problem of acute shortage in the supply of ground water. Ground water supply and water from the Yamuna River are the two dominant sources of water for usage by the residents of Delhi. Recent studies suggest that Delhi is heading towards amore serious situation as the level of groundwater has continuously depleted over the last two decades. This has resulted in 90% of the city being categorised as semi-critical or critical.
In addition, the city of Delhi dumps more than 58% of its waste into the Yamuna River, contributing to the recognition of Yamuna as the most polluted river in India and the dubious title of one of the most polluted rivers in the world. Delhi already faces an overpopulation crisis, with incidences of water shortage and vast unemployment reported in many migrant inhabited areas.
25 https://timesofindia.indiatimes.com/city/delhi/sc-wake-up-or-youll-have-zero-groundwater-by-2020/ articleshow/64953385.cms http://www.thinkenvironment.in/coverage-90-of-delhi-in-critical-zone-as-groundwater-level-dips-1645
Industry Opinion: View from Acclimatise
“While there are increasing legal, governmental, and civil society efforts at tackling air quality in Delhi, concerted action is needed at developing and emphasizing immediate adaptation measures. These need to be distinguished from policies and regulation aimed solely at improving air quality in the long run.While mitigation is undoubtedly critical, adaptation measures such as shutting down emitting industries on bad-air days, as well as health and activity-linked advisories to schools and hospitals are crucial in ensuring that the vulnerable and worst affected are able to better cope in the present. Such a distinction takes cognizance of the fact that policies to curb pollution are likely to kick in over- time and citizens need immediate
recourse to stave off the worst effects of deteriorating air quality in the capital.” Anu Jogesh, Policy and Governance lead- South Asia, Acclimatise – Acclimatise is a specialist advisory and analytics company providing expertise in climate change adaptation and risk management. Acclimatise works with governments, public sector organisations, as well as the private sector to assess climate change vulnerability and risk, and provide advice on resilience measures at the strategic, operational and institutional levels. Acclimatise has a diverse team of technical specialists working on adaptation projects in over 70 countries globally. The organisation works to bridge the gap between the latest scientific developments and real world decision- making, helping institutions interpret this knowledge within the context of their own policies, processes, and stakeholders.
Building resilience to reduce air pollution
In order for Delhi to become a truly resilient city, it needs to be prepared for all natural and man-made calamities. Legal protections, regulations and policies have been instituted with the aim of improving Delhi’s resilience and reducing the damaging impacts of air pollution and other environmental issues or extreme weather on Delhi’s growing population. Additionally, the Delhi government has recognised the need to have a proactive, comprehensive and sustained approach to disaster management to reduce the harmful effects of disasters on overall socio-economic development.
Building resilience to reduce air pollution
1. REGULATORY AUTHORITIES
disposal of cases on environmental protection and conservation of forests and other natural resources. This includes enforcement of any legal right relating to the environment and giving relief and compensation for damages to persons and property or any connected matters. It is a specialised body expert in handling environmental disputes involving multidisciplinary issues and is not bound by the procedure laid down under the Code of Civil Procedure, but it is guided by the principles of natural justice. Besides the above, courts in India have undertaken the task of preserving the environment by turning watchdogs and imposing stringent penalties on the offenders and violators under the various environment related statutes in force.
Existence of air pollutants causes serious health and environmental hazards such as smog, acid rain, damage to crops and trees and property damage and therefore the need for effective management becomes inevitable. TheAir (Prevention and Control of Pollution) Act, 1981 (Act) bestows various powers and functions to the Central Pollution Control Board (CPCB) to tackle the problem of air pollution. The CPCB launched a nationwide programme called the National Air Quality Monitoring Programme (NAMP) formerly National Ambient Air Quality Monitoring Programme (NAAQM) and has identified three air pollutants, (SO2, NO2 and Respirable Suspended PM) for regular monitoring at all the locations. The monitoring of meteorological parameters such as wind speed and direction, relative humidity and temperature was also integrated with the monitoring of air quality. The government is taking proactive measures to curb air pollution by ensuring co-operation and collaboration between different departments. The National Green Tribunal (NGT) was established in 2010, under the NGTAct 2010 (NGT Act), for effective and expeditious
2. THE ROLE OF THE JUDICIARY TO COMBAT AIR POLLUTION IN DELHI
The Supreme Court is trying to alleviate the problem for example, by phasing out polluting cars, 26 using cleaner alternatives to traditional petrol, 27 encouraging the government to convert government vehicles from diesel/petrol to eco-friendly electric vehicles and banning certain automobiles. When referring to a World Health Organization study, the Supreme
25 https://timesofindia.indiatimes.com/city/delhi/sc-wake-up-or-youll-have-zero-groundwater-by-2020/ articleshow/64953385.cms http://www.thinkenvironment.in/coverage-90-of-delhi-in-critical-zone-as-groundwater-level-dips-1645 26 M.C. Mehta v. Union of India, W.P. (Civil) 13029 of 1985, decided on October 24, 2018 27 M.C. Mehta vs. Union of India, (1999) 6 SCC 9
3. CORPORATE SOCIAL RESPONSIBILITY
Court observed that utter disregard to environment has placed Delhi in an unenviable position of being the world’s third grubbiest and most polluted and unhealthy city. 28 In an attempt to preserve the green cover in Delhi, the Supreme Court banned all mining activity in the Delhi ridge area (an extension of the Aravalli Range) and further declared it a ‘Reserved Forest’. 29 In a significant and innovative move to reduce the vehicular pollution in Delhi, the Supreme Court has directed to reroute buses and all commercial vehicles carrying goods not destined for Delhi. By virtue of this ruling, such vehicles are prohibited fromoperating inDelhi from6am to 11pm. 30 In its recent ruling, the NGT directed the seizure of vehicles which are more than 15 years old 31 and ordered that vehicles which do not meet the prevailing emission norms cannot be sold with effect fromApril 1, 2020. 32 Further, the government of India has taken measures to ensure that BS-VI (read Euro VI) compliant fuel is available in Delhi from 1 April 2018 instead of 2024 after the Supreme Court’s intervention. A more unorthodox approach by the Delhi High Court has been to order respondents to plant 15,000 trees in the south Delhi area for using delaying tactics during a trial. 33 Although not directly related, it does demonstrate a proactive approach by the judiciary to tackle environmental issues.
In order to help build future resilience,many companies are incorporating Corporate Social Responsibility (CSR) initiatives to foster environmental sustainability. Philips India Ltd. planted trees in various cities and rural areas across India in a drive towards a greener and cleaner India. 34 Another CSR project to highlight is that of GE Renewable Energy who are providing 120 turbines for the Gadhsisa Wind Farm in Gujarat. This 300MW project will power the equivalent of 1.1million homes in India. The need for India to move towards cleaner fuels and renewable power in the drive to tackle climate change reflects the changing attitudes of companies and governments alike.
28 M.C. Mehta v. Union of India (1992) 3 SCC 256 29 M.C. Mehta v. Union of India (2018) (11) SCALE 50 30 M.C. Mehta vs. Union of India, (2016) 4 SCC 269 31 Vardhaman Kaushik v. Union of India, 2015 (5) FLT 456 32 M.C. Mehta v. Union of India, W.P. (Civil) 13029 of 1985, decided on October 24, 2018 33 https://www.ndtv.com/india-news/2g-case-court-directs-respondents-to-plant-15-000-trees-for-no-response-1989933 34 https://csrbox.org/India_CSR_Project_Green-India-Delhi_3842
Building resilience to reduce air pollution
India’s National Action Plan on Climate Change (NAPCC) was launched in 2008 with eight national missions to achieve key goals in relation to climate change. These include energy efficiency, solar energy, sustainable habitat, water management, safeguarding the Himalayan ecosystem, balance and maintenance of bio-diversity (Green India), sustainable agriculture and a strategic knowledge mission responsible for research and technology as a response to climate change. With a combined spend of $1.96billion across these missions, solar has achieved just over 24,500MW with a sanction for another 45 solar parks and an aggregate capacity of 26,500MW. Greater energy efficiency has seen a reduction in emissions of 31 million tons. In addition, Himalayan task forces have been established to tackle climate change, as well as 11 centres for excellence, 20 research and development programmes and climate change centres in 10 states to support climate change adaptation. 35
Furthermore, in ratification of the Paris Agreement in 2016, India has set a target to generate 40% of its electricity from renewable sources. Furthermore, all states and union territories in India have developed state action plans on climate change making it one of the largest efforts at sub-national climate action globally. 36 Delhi has been the last state to submit its action plan in 2019, 37 eight years after the government of India requested states to undertake these plans.
35 http://www.lse.ac.uk/GranthamInstitute/law/national-action-plan-on-climate-change/ 36 http://www.cprindia.org/research/reports/margins-mainstream-state-climate-change-planning-india-door-opener- sustainable 37 https://www.hindustantimes.com/delhi-news/delhi-finally-submits-its-climate-change-action-plan/story- cocvenqvovWvVRFdIilntL.html
4. POLLUTER PAYS PRINCIPLE
The PPP has actively been used to assist the court in measuring the liability of an industry engaged in hazardous or dangerous activities and ensures the costs are correlated to the damage done. 39 In addition, an amount in compensation can be set aside for those who were proven to have suffered.
When the NGT passes an order or decision, it relies upon three core principles of sustainable development, precautionary principle and the Polluter Pays Principle (PPP). –– Sustainable development is described as “the right of every generation to get benefit from the natural resources” . 38 –– The precautionary principle applies where an anticipated or likely injury to the environment creates a cause of action –– The PPP is important for determining punitive costs of damages from environmental violations caused by industries or individuals and ensures the costs are borne by the industry or the individual found liable. It is also an important means for tackling public health hazards that result from environmental pollution. The PPP has the potential to play an important role in shaping the performance of industries /commercial enterprises andmake them adopt environmentally responsible practices.
38 Brundtland’s report 39 M. C. Mehta v Union of India, AIR 1986 SC 1086
Health, as we all know, is an all-pervasive subject, lying not only within the scope of the health department but with all those involved in human development. Many great scholars from Buddha to Hippocrates have emphasised the importance of environment in the health of the individual. Therefore, it is the duty of every citizen to think in a broader perspective and take appropriate steps to control pollution, in order to prevent our future generations from living in an unhealthy environment, plagued with respiratory diseases and lung problems. Delhi has seen an unprecedented population rise and it is expected to increase by a further 40% by 2021 due to the migration of people to the capital. Such rapid urbanisation has led to pressure on existing infrastructure, deforestation and a greater susceptibility to both man-made and natural disasters. A city can recover quicker by building smarter and better and adapting in how they respond.
The Government and judiciary have taken several steps to combat the level of air pollution in the city during the last ten years. The benefits of air pollution control measures are evident in the readings recorded undertaken to further reduce the levels of air pollution. The measures already in force need to be strengthened and their scope needs to be magnified to a larger scale. The legislative and judicial efforts alone are not sufficient, participation of the community is crucial in order to make a palpable effect in the reduction of pollution. by various governmental agencies. 40 However, more proactive steps need to be
40 CPCB issues annual reports and various periodical publications highlighting the effect of air pollution. The reports are available at http://cpcb.nic.in/annual-report.php.
The importance of urbanisation and climate change as critical business issues cannot be underestimated – with implications across all industry sectors and reaching right up to the highest echelons of corporate leadership. With new forms of legal action currently being launched against more types of defendants in more jurisdictions, and historic as well as future liabilities at stake, ignoring such risks is not a viable option. A proactive judiciary to help protect the fundamental rights enshrined in the Constitution of India has led to a wide range of measures being taken by the government and environmental protection bodies. As the problem grows, so do public calls for more to be done, and resulting government legislation, regulation and policies. In these circumstances, corporates in various sectors need to focus on continuously transitioning in their mode of operations to maintain symphony with the legislative reforms.
The Honourable Supreme Court of India in their quest for environmental governance recently observed the following: “Environmental governance is founded on the need to promote environmental sustainability as a crucial enabling factor which ensures the health of our eco system. Since the Stockholm Conference, there has been a dramatic expansion in environmental laws and institutions across the globe. In many instances, these laws and institutions have helped to slow down or reverse environmental degradation. However, this progress is also accompanied, by a growing understanding that there is a considerable implementation gap between the requirements of environmental laws and their implementation
and enforcement – both in developed and developing countries alike. The environmental rule of law seeks to address this gap. The environmental rule of law becomes a priority particularly when we acknowledge that the benefits of environmental rule of law extend far beyond the environmental sector. While the most direct effects are on protection of the environment, it also strengthens rule of law more broadly, supports sustainable economic and social development, protects public health, contributes to peace and security by avoiding and defusing conflict, and protects human and constitutional rights. Similarly, the rule of law in environmental matters is indispensable “for equity in terms of the advancement of the Sustainable Development Goals63, the provision of fair
access by assuring a rights- based approach, and the promotion and protection of environmental and other socio- economic rights.” 41 Indian courts are witnessing a great number of climate-related cases since activists seek to open new fronts with new class actions. Clyde & Co has been tracking the wave of litigation and the risks of climate liability to businesses around the world. 42 New waves of litigation, new regulation and new duties of care may in turn shift the risk landscape for firms, lenders and their insurers operating in India. Cities like Delhi taking due consideration around responsibility, risk and resilience are fundamental to developing best practice and protecting against the long tail of potential liability. As a leading law firm, Clyde & Co, in association with CSL Chambers is committed to supporting initiatives that facilitate greater resilience in the developed and developing world. Helping businesses deal with the multi-faceted effects of urbanisation and climate change is an area where Clyde & Co is particularly active, with extensive experience advising a range of clients in many sectors on the complex issues it raises and how to adapt to these disruptive forces.
41 Hanuman Laxman Aroskar vs Union Of India, Civil Appeal Nos. 12251 of 2018 and 1053 of 2019 42 https://resilience.clydeco.com/videos/climate-change-a-burning-issue-for-businesses-and-boardrooms 43 www.clydeco.com/resilience
individuals, and governments on a wide range of contentious and transactional matters. Clyde &Co has a particularly strong track record in complex cross-jurisdictional disputes and an outstanding reputation in international arbitration. Clyde & Co is committed to supporting initiatives that help to close the global protection gap and foster greater resilience in the developed and developing world. In the face of climate change, the risk-management challenges facing corporates, governments and communities are considerable. Clyde&Co’s support of institutionsworking to create a more resilient world means the firm remains focused on supporting the development of climate risk management expertise across the world. Further information on our resilience initiative can be found on the Resilience Hub, 43 along with reports prepared on Parametric Insurance, Inclusive Insurance and Climate Change.
This report has been produced by Clyde & Co and CSL Chambers, Delhi. Clyde & Co and CSL Chambers have a close associationwhich means clients benefit from specialist market knowledge and understanding, local support and an international network. Clyde & Co is a dynamic, rapidly expanding global law firm with over 50 offices worldwide, providing a complete legal service to clients at the heart of commerce and trade. CSL Chambers focuses on providing innovative legal solutions and adroitly resolving complex issues in line with the client’s commercial interests. Clyde & Co is an international law firm with a pioneering heritage and a resolute focus on its core sectors of insurance, aviation, energy, healthcare, infrastructure, industrials, marine, professional practices, shipping and trade. With over 1,800 lawyers operating from over 50 offices and associated offices across six continents, the firm advises corporations, financial institutions, private
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