Watch out for the legal implications of climate inaction

It calls upon states to (i) prevent significant harm to the environment, laying out a due diligence standard requiring countries to maintain legal, regulatory, administrative and enforcement measures to achieve rapid and sustained emission reductions.

And (ii) mandatorily cooperate with other countries internationally, which involves acting in good faith through information-sharing, joint efforts to mitigate the effects of climate change and transferring the technology needed to achieve the goals of climate treaties.

Both these duties are under customary law and therefore applicable to all states regardless of their signatory status vis-a-vis climate treaties.

This ruling, although not backed by enforcement power, is being hailed for increasing the pressure of legal opinion on states that are not acting in conformity with the Paris Agreement’s goals.

India too may come under increased scrutiny on its climate actions under the Paris Agreement. The possibility of legal action cannot be ruled out. The ICJ ruling recognizes and endorses the principle of common but differentiated responsibility (CBDR).

But it also recognizes that the classification of countries as ‘developing’ or ‘developed’ is not static, opening the door to much stricter obligations for India as we pursue our vision of achieving developed-country status by mid-century.

Also, while India has made good progress in its adoption of renewable energy, as per its Nationally Determined Contributions (NDCs), it is not easy to establish the adequacy of national actions towards meeting the global goal of net-zero emissions by 2050, especially when these actions are determined primarily by national circumstances rather than the global need.

However, upcoming climate negotiations could very well change this flexibility, particularly in light of the ICJ ruling.

In this context, we should thank NGOs like Climate Analytics that have been fine-tuning methods to evaluate national commitments and are tracking the progress of each country against Paris goals.

In their current assessment, India’s policies and actions against our fair share of the burden is insufficient even to cap global warming at 3° Celsius above the pre-industrial average, while our conditional NDC targets are highly insufficient.

Our alignment towards meeting our own CBDR-based 2070 net-zero commitment is rated as poor. While such analysis may not hold up in a court of law, it could still provide the basis for a future legal challenge.

India’s continued reliance on fossil fuels, in particular coal and oil, and the lock-in effects of continued investment in fossil-based infrastructure could also be a red flag. India is not expected to reach peak oil or peak coal usage before 2040.

As ours would be the world’s third largest economy by then, our fossil energy consumption levels would be relevant to the world’s ability to achieve net-zero emissions by 2050. Not only would this add to India’s legal vulnerability, but also sharpen the threat of stranded assets that India cannot afford.

It would also be unsurprising if, as climate impacts become increasingly tangible and large proportions of our population suffer from inevitable climate extremes, legal actions are initiated locally against businesses and governments at various levels.

It is heartening to note the 1 August observations of the Supreme Court on a petition against an order of the Himachal Pradesh high court that the entire state could ‘vanish’ as a result of unsustainable development and climate impact.

The apex court rightly stated that “earning revenue is not everything” and “revenue cannot come at the cost of the environment and ecology.” It cited the unchecked construction, hydropower projects, four-lane roads and extensive deforestation that are pushing the delicate Himalayan ecosystem to its limit.

Through this observation, the top court has lent credibility to the de-growth movement, which aims to transform economies so that they respect the planet’s limits as a way to achieve sociopolitical equity and ecological sustainability.

The ICJ ruling also calls upon states to better regulate private sector activity. Domestic pressure can be placed on companies engaging in fossil fuel production and import activity and on governments for inaction.

International experiences point to increasing litigation against the largest such companies. As of September 2024, the annual number of climate-related lawsuits filed against the world’s largest fossil fuel producing companies had nearly tripled since the Paris Agreement in 2015.

Out of 86 climate lawsuits, three categories have gained the most traction; most ask for compensation for climate-related damages such as from extreme weather events (38%), followed by allegations of greenwashing or false advertising (16%) and complaints about the failure of companies to adopt and implement emission reduction plans (12%).

These arguments point to increasing legal uncertainty and vulnerability at the international and national levels that could push the hand of the Indian government and local industries.

They also reveal potential new stressors that could arise from climate negotiations. The operating environment is changing rapidly. India should urgently review—and perhaps redefine—its climate strategy with the ICJ ruling in mind.