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Paper Code: AIJACLAV11RP2024
Category: Research Paper
Date of Submission for First Review: Nov 16, 2024
Date of Publication: December 21, 2024
Citation: Ms. Rakhi Tewari, “Legal Frameworks for Environmental Sustainability: Addressing Climate Change and Biodiversity Loss", 4, AIJACLA, 116, 116-124 (2024), <https://www.aequivic.in/post/legal-frameworks-for-environmental-sustainability-addressing-climate-change-and-biodiversity-loss>
Author Details: Ms. Rakhi Tewari, Assistant Professor, Faculty of Law, SGT University, Gurugram
Abstract
The purpose of this study is to investigate the intricate relationship that exists between law and environmental sustainability, with a particular emphasis on the significant portion that legal frameworks play in the formation of efficient environmental policy and governance. Strong legal mechanisms are becoming increasingly necessary for the purpose of boosting environmental protection and promoting sustainable development as the difficulties posed by climate change and the loss of biodiversity in the world become more severe. The purpose of this study is to investigate a wide range of legal mechanisms, such as international treaties, national legislation, and local rules, with the intention of preventing the deterioration of the environment and fostering the resilience of ecosystems.
The research offers useful insights into the effectiveness of existing legal tactics by analysing the successes and obstacles encountered in the execution of these laws, particularly in terms of enforcement and compliance. This has been accomplished by examining the successes and barriers encountered. Furthermore, the article highlights the significance of public participation as well as the contributions made by non-governmental organisations in the process of pushing for more stringent environmental protections.
This research highlights the demand for a unified and adaptable legal framework that is capable of tackling critical environmental challenges. This is accomplished through an analysis of case studies from a variety of jurisdictions. Ultimately, the findings indicate that a comprehensive legal strategy is not only essential for addressing the environmental difficulties that are occurring right now, but it is also essential for guaranteeing that future generations will have a future that is sustainable.
Keywords: Environmental Law, Sustainability, Climate Change, Legal Frameworks, Biodiversity.
INTRODUCTION:
One of the most pressing problems that concern human societies, ecosystems and global economies today is climate change combined with the loss of biodiversity which makes environmental sustainability a necessary condition for the development of the 21st century. The two challenges are interrelated by some factors such as deforestation, pollution and excessive exploitation of natural resources. Addressing these concerns surely requires robust and sustained legal environment anchored on international and regional than national laws. Climate Change and Biodiversity loss raises questions to some of the current legal frameworks for environmental sustainability by looking at legislation on these issues as a way of demonstrating how they work in terms of their effectiveness through if-then relationships before but describing that type of law output based on its normative thickness were so far oriented. In like manner, it is the purpose of this paper to explore what laws do or seek to do provide information about changes that may be regarded as justifications for improvement on past inadequacies.
1. The legal framework for climate change
1.1 . International Frameworks
A. UNFCCC 1992: The UNFCCC, adopted at the Rio Earth Summit, underpins all international climate change law. It guides intergovernmental climate change projects worldwide. Humankind worries about climate change, thus the Convention aims to stabilise greenhouse gas concentrations in the atmosphere to prevent disastrous anthropogenic climate change. It establishes a framework under which treaties like the Kyoto Protocol and Paris Agreement set emissions reduction targets.
· All Parties must prepare and communicate national greenhouse gas emission inventories and implement national measures to mitigate climate change, including significant contributions from the forestry sector (UN Climate Change Secretariat). UNFCCC's core idea is "common but differentiated responsibilities and respective capabilities" People share but have distinct responsibilities. Developing countries should implement policies based on their economic capabilities, whereas affluent nations should accept larger responsibility based on capacities and historical concerns. Industrialised nations must adopt rich-country emissions reduction obligations and provide poor nations with financial and equipment (such as sociably clean energy)
· The first major global accord under the UNFCCC was the 1997 Kyoto Protocol, ratified in Kyoto, Japan. The accord set legally binding emission reduction targets for 37 developed nations and the EU, a major achievement. The Protocol set "quantified emission limitation or reduction objectives" (QELROs) for each country. The main goal was to reduce the combined emissions of six major greenhouse gases (such as carbon dioxide, methane, and nitrous oxide) by 5% below 1990 levels during the initial commitment period (2008–2012).
Kyoto Protocol had many issues. The US, the largest emitter, signed the Protocol but did not ratify it due to economic concerns and the removal of impoverished countries from legally enforceable targets. Protocol emissions reductions were optional for developing nations like China and India. This casts doubt on its fairness and efficacy. The 2011 Canadian pullout and some nations' noncompliance highlighted the difficulties of implementing global climate agreements. The Kyoto Protocol created carbon trading, the Clean Development Mechanism (CDM), and Joint Implementation (JI) to allow governments to invest in emission reductions abroad to reach their goals, despite its restrictions..
· COP21 held in Paris in 2015 came up with the Paris Agreement which is a climate governance approach more flexible, more inclusive and more ambitious. Whereas Kyoto Protocol, focuses on mandatory targets for industrialised nations only, The Paris Agreement is a global approach to climate change. The agreement calls for Parties, to provide “nationally determined contributions” (NDCs) of their intended climate change adaptation and mitigation measures. These NDCs contain a “ratcheting mechanism”, which means that states need to change and strengthen their commitments every five years according to their national circumstances.
· The Paris Agreement seeks to limit the increase in global average temperature to less than 2 degrees Celsius above the levels witnessed before industrialisation. Recognising that limiting the increase to 1.5 degrees Celsius will significantly mitigate the impacts and risks of climate change, significant efforts are being undertaken to manage it. In addition, the Agreement encompasses adaptation, financial assistance, technological transfer, capacity building, and a five-year "global stocktake" to evaluate current efforts. A strong monitoring, reporting, and verification (MRV) plan improves openness and accountability in the Paris Agreement. This framework requires countries to provide transparent and uniform information on their climate policies and NDCs.Poor nations' climate projects must be funded by wealthier nations under the Paris Agreement. The Agreement seeks $100 billion from public and private funding by 2020 for climate action in developing nations. The 2018 "Paris Rulebook," which details Agreement aspects including transparency, carbon markets, and universal NDC deadlines, was also approved.
1.2 Regional And National Frameworks
A. The European Union (EU) has formulated a comprehensive regional climate policy, encompassing the European Green Deal. The aim of this program is to achieve climate neutrality in Europe by the year 2050, becoming the first continent to do so. Two particularly significant pieces of legislation are the EU Emissions Trading System (ETS), which imposes a restriction on emissions from power plants, industries, and airports, and the Climate Law, which legally obligates the EU to achieve climate neutrality by 2050.
B. At the national level, the United States has created several legal frameworks to tackle climate change and safeguard the environment, which mirrors its changing approach to sustainability and the reduction of emissions over time.
· The Clean Air Act (CAA), first passed in 1963 and updated in 1970, 1977, and 1990, is a significant legislative legislation. The Clean Air Act authorises the EPA to regulate air pollutants that harm public health and the environment. In 2007, the U.S. Supreme Court ruled in Massachusetts v. EPA that greenhouse gases (GHGs) constitute Clean Air Act pollutants. This ruling allowed the EPA to regulate greenhouse gas emissions from cars and factories. This ruling laid the groundwork for the Clean Power Plan, which reduced power industry carbon emissions. The Clean Air Act also established the National Ambient Air Quality Standards (NAAQS) to limit the emission of six principal contaminants, including particulate matter, sulphur dioxide, and nitrogen oxides, which cause local air pollution and global warming..
Aside from the Clean Air Act, the United States has implemented further legislation to tackle particular elements of environmental sustainability.
· The Endangered Species Act (1973) protects biodiversity by preventing the elimination of species that are in danger of becoming extinct. Concurrently, the National Environmental Policy Act (NEPA) (1969) requires federal agencies to assess the environmental effects of their intended operations using Environmental Impact Statements (EIS) and Environmental Assessments (EA), so ensuring the inclusion of sustainability considerations into federal decision-making processes.
· Recently, the 2022 Inflation Reduction Act (IRA) changed U.S. climate policy. This substantial regulation aims to reduce greenhouse gas emissions by roughly 40% below 2005 levels by 2030. This will be done through incentives, investments, and regulations. The Act invests $370 billion over ten years on renewable energy, energy efficiency, and climate resilience. Notable IRA features include: The Act expands and improves tax incentives for wind, solar, and geothermal energy. There is a new production tax credit (PTC) and investment tax credit (ITC) for renewable energy systems, including battery storage, hydrogen generating, and advanced nuclear energy. These incentives accelerate sustainable energy technology and reduce fossil fuel use.
· The Individual Retirement Account (IRA) provides tax credits of up to $7,500 for the purchase of new electric vehicles and up to $4,000 for the purchase of used electric vehicles. This provides consumers with an incentive to switch from cars powered by internal combustion engines to vehicles that are more ecologically friendly. Furthermore, it includes financial assistance for the creation of charging infrastructure for electric vehicles, which is intended to facilitate the widespread adoption of electric vehicles.
Investment in Sustainable Infrastructure- The IRA provides significant financial resources for the modernisation and reduction of carbon emissions in infrastructure. This includes the electrification of public transport systems, the establishment of high-speed rail networks, and the enhancement of the electric grid to support greater production and storage of renewable energy.
To mitigate the unequal effects of climate change and pollution on susceptible communities, the Act designates dedicated monies to support efforts aimed at enhancing climate resilience. The main goals of this initiative are to improve air quality, mitigate flood risks, and strengthen water infrastructure in rural areas that are both economically and socially disadvantaged. Moreover, it addresses the matter of environmental justice by providing monetary aid and essential material resources to regions that have historically experienced the most significant consequences of environmental hazards.
The IRA employs innovative ways to reduce methane emissions, a highly harmful greenhouse gas in the atmosphere. The provision imposes a tax on methane emissions resulting from oil and gas operations, therefore incentivising firms to detect and correct any leaks and direct resources towards renewable technology. Moreover, the Act offers monetary assistance for research and development activities focused on improving methodology for measuring and mitigating methane emissions.
· The Carbon Capture, Utilisation, and Storage (CCUS) Act provides tax credits to businesses that effectively capture and store carbon dioxide emissions, therefore promoting the adoption of emissions capture systems. Moreover, it encourages the progress of direct air capture projects and other innovative methods to remove carbon from the environment, thereby reducing emissions from industries that are difficult to reduce carbon footprint, such as cement and steel production.
· The Industrial Revolution Act (IRA) includes provisions to promote sustainable agricultural practices such as cover cropping, agroforestry, and improved soil health management. Moreover, it guarantees financial assistance for the conservation and restoration of forests, wetlands, and grasslands, which play a crucial role in sequestering carbon and safeguarding biodiversity.
Collectively, the Inflation Reduction Act, in conjunction with the Clean Air Act and other environmental legislation, embodies a methodical strategy by the United States to reduce emissions, transition to a sustainable energy economy, and enhance resilience against climate change. Furthermore, apart from addressing climate change, these legislative frameworks also aim to accelerate sustainable development, create green jobs, and ensure a just and equitable transition for all communities. Taken together, they underscore the United States' commitment to meeting its global climate obligations and advancing global sustainability goals.
C. INDIA: India's diverse legislative and regulatory framework addresses climate change and promotes environmental sustainability while balancing development and conservation. India's socio-economic backdrop, energy needs, and climate sensitivity determine its climate change policy as a quickly developing nation with a large population.
1. The 2008 National Action Plan on Climate Change (NAPCC) is an integral component of India's climate policy initiatives. The eight "National Missions" of the NAPCC focus on specific climate action areas aimed at mitigating and adapting to warming. Missions encompass:
· National Solar Mission: Promotes solar energy technology development and deployment to reach 100 GW by 2022. The Mission prioritises grid-connected solar power facilities and rooftop solar installations to reduce fossil fuel use and greenhouse gas emissions.
· National Mission for Enhanced Energy Efficiency: Improves energy efficiency in industry, transportation, and buildings. Market-based systems like the Perform, Achieve, and Trade (PAT) program set energy efficiency targets for energy-intensive companies and allow energy-saving certificate trade.
· National Mission on Sustainable Habitat: Promotes energy efficiency in urban design, building construction, and public transportation. It promotes energy-efficient building rules, public transportation, and waste reduction to create sustainable urban ecosystems.
· National Water Mission: Promotes integrated water resource management, water efficiency, and wastewater recycling to ensure sustainable water management. The Mission urges adaptation to climate change's effects on water resources, such as lower freshwater supply and more droughts and floods.
· National Mission for a Green India: Increases carbon sequestration and biodiversity by improving forest cover and damaged ecosystems. Considering forests' role in climate adaptation and mitigation, it seeks to restore 5 million hectares of degraded forest and improve community-based forest management.
· National Mission for Sustainable Agriculture: Promotes climate-resilient cropping patterns, soil conservation, and water efficiency to make agriculture more climate-resilient. It also promotes technology and innovation to boost agricultural output and reduce environmental impact.
· National Mission on Strategic Knowledge for Climate Change: Builds climate change knowledge and capacity. Research, education, and information sharing on climate science, technology, and policy are promoted.
· National Mission on Himalayan Ecosystems: Protects and improves the Himalayas' unique biodiversity, water supplies, and ecological health, which is vulnerable to climate change. The Himalayas Mission promotes conservation, sustainable tourism, and community-based natural resource management.
These missions aim to reduce greenhouse gas emissions, promote sustainable development, and strengthen India's climate resilience. Besides the NAPCC, India has passed many environmental laws to govern environmental activities and promote sustainable development:
India's environmental regulation structure is based on the 1986 Environmental Protection Act (EPA). In reaction to the 1984 Bhopal Gas Tragedy, the Act gives the central government wide authorities to regulate pollution, handle dangerous substances, and preserve the environment. It authorises environmental quality standards, industrial emission regulations, and penalties and fines for noncompliance. The EPA allows the government to close or regulate polluting industries and respond to environmental disasters.
2. National Green Tribunal Act (2010): The NGT Act created the National Green Tribunal, a specialised judicial body that resolves environmental protection and forest and natural resource conservation issues quickly and efficiently. The NGT allows individuals and organisations to contest environmental law violations, enabling access to justice and environmental accountability. The Tribunal's important rulings on air, river, deforestation, and industrial waste management have helped enforce environmental regulations. It also promoted compliance and environmental rights awareness, enhancing environmental governance.
3. Forest Conservation Act (1980): The FCA governs industrial and infrastructure development on forest property. The central government must approve forest land diversion and emphasise compensatory afforestation to counteract forest cover loss. Indian forests are crucial carbon sinks that support biodiversity, regulate the water cycle, and mitigate climate change. The Act attempts to conserve them.
4. The primary objective of the Biological Variety Act (2002) is to preserve biological variety, promote the sustainable utilisation of its components, and ensure just and equitable distribution of benefits. This legislation establishes national and state biodiversity authorities to oversee the access to genetic resources and preserve traditional knowledge associated to biodiversity for the advantage of local populations.
India's legislation and regulations carefully manage the trade-off between economic development and environmental sustainability. They endorse India's objectives in the Paris Agreement to address climate change by decreasing emissions, advancing renewable energy, enhancing energy efficiency, and preserving natural resources. India places climate justice and underprivileged communities as top priorities in its pursuit of sustainable development objectives.
By incorporating climate action into its national development objectives and enacting robust environmental legislation, India has established itself as a crucial participant in the worldwide battle against climate change. Thus, it demonstrates the compatibility of economic expansion and environmental preservation. The National Ambient Air Quality Standards (NAAQS) govern six significant environmental contaminants, including as particulate matter, sulphur dioxide, and nitrogen oxides, that contribute to both local air pollution and global warming.
2. LEGAL FRAMEWORKS FOR BIODIVERSITY CONSERVATION
Many international and national laws govern biodiversity protection. These frameworks safeguard ecosystems, species, and genetic diversity while promoting sustainable usage and equitable distribution of natural resource benefits. The international community has created various accords and conventions to combat biodiversity loss and promote sustainability.
2.1 International Plans
Ø CBD Convention (1992): The main international biodiversity conservation and usage agreement is the Convention on Biological Diversity. The CBD was adopted at the 1992 Earth Summit in Rio de Janeiro with three key goals: biological diversity conservation, sustainable use of its components, and fair and equitable genetic resource benefit sharing. Diversity is crucial for human well-being and economic progress, and its conservation needs worldwide cooperation, according to the Convention.
The CBD encourages member nations to create national biodiversity strategies and action plans (NBSAPs) adapted to their ecological, social, and economic settings to conserve biodiversity. The Convention's Strategic Plan for Biodiversity 2011-2020 established the 20 ambitious Aichi Biodiversity Targets to stop biodiversity loss and promote ecosystem sustainability. These aims protect habitats, conserve species, promote sustainable agriculture, and restore degraded ecosystems. They also promote biodiversity protection, integrate it into national development policies, and raise awareness and funds. While progress on the Aichi Biodiversity Targets has been varied, they have guided global and national biodiversity policies. The CBD produced the Post-2020 Global Biodiversity Framework, which builds on the Aichi Targets and sets more ambitious 2030 and beyond goals. This approach addresses climate change, pollution, and invasive species while strengthening indigenous peoples and local communities' biodiversity protection roles.
Ø CITES Convention on International Trade in Endangered Wildlife and Flora CITES protects wildlife and plants by regulating international trade. CITES, introduced in 1973, regulates endangered species and commerce to prevent overexploitation. It arranges species by conservation status in three appendices:
Only in exceptional situations can endangered species be traded internationally under Appendix I. Appendix II includes non-threatened species whose commerce must be controlled to minimise harm.
One country has asked CITES Parties' aid controlling trade in Appendix III species.
Member nations must create management and scientific agencies to regulate commerce, issue licenses, and enforce CITES. According to the deal, countries should share best practices, prohibit illegal wildlife trading, and encourage sustainable natural resource usage. CITES protects elephants, rhinos, and tigers from poaching and trafficking. Implementation needs greater enforcement, capacity-building, and finance.
Ø Nagoya Protocol (2010): The CBD's 2010 supplementary accord on genetic resource access and benefit sharing. This law ensures that genetic resources including plants, animals, and microorganisms benefit their home countries and communities properly. Indigenous peoples and local communities have the right to share biodiversity-related traditional knowledge and resources, the Protocol states.
Genetic resource access needs provider-user countries' prior informed consent (PIC) and mutually agreed terms (MAT) under the Nagoya Protocol. Rewarding governments and communities for commercial and non-commercial genetic resource use in pharmaceuticals, agriculture, and cosmetics promotes biodiversity conservation. The Protocol promotes national genetic resource governance, transparency, and international cooperation.To promote its implementation, the Nagoya Protocol created the online Access and Benefit-Sharing (ABS) Clearing-House for information exchange, transparency, and compliance. The Protocol is lauded for recognising countries and communities' rights over genetic resources and knowledge, but its success depends on strong national laws and capacity-building to enable fair benefit-sharing.
3. OBSTACLES IN ENFORCING LEGAL FRAMEWORKS
Notwithstanding the presence of strong legal structures, there are still notable obstacles in effectively tackling climate change and biodiversity loss:
· The implementation and adherence to environmental regulations will be hindered by inadequate resources, corruption, and a dearth of political will in several countries. International accords, such as the Paris Agreement, mostly rely on voluntary commitments, which may not necessarily align with the interests or capacities of individual participating countries.
· Another aspect is Regulatory fragmentation. The term "regulatory fragmentation" refers to the existence of multiple regulatory instruments that overlap with one another and sometimes contradict one another, which may make it more difficult to carry out laws in an effective manner. One of the most common outcomes of the phenomena of fragmentation is the occurrence of regulatory gaps and contradictions on a national, regional, and worldwide scale.
· When it comes to the proper implementation of environmental legislation, developing nations frequently suffer a lack of adequate funding and resources. This is because these nations often lack the financial and technical resources that are necessary for the process. Disparities across countries may become even more pronounced as a result of the unequal distribution of funds for climate change and the inadequate availability of technologies.
· Lack of Local Community Involvement: In order for environmental governance to be effective, it is necessary for local communities, indigenous groups, and civil society to be actively involved. On the other hand, a great number of legal frameworks do not adequately involve these stakeholders in the mechanisms that are responsible for making decisions.
4. PROPOSED MEASURES TO ENHANCE LEGAL FRAMEWORKS
To optimise the efficacy of legal frameworks for environmental sustainability, the subsequent modifications are proposed:
· Improving international cooperation: More effective achievement of consistency and coherence in legal responses to climate change and biodiversity loss can be facilitated by enhancing the coordination between international agreements and fostering global partnerships.
· Enhanced transparency and accountability: In order to ensure that governments fulfil their responsibilities and to foster confidence in international treaties, it is helpful to put in place robust procedures for monitoring, reporting, and verification.
· Strengthening Capacity Building and Funding: When it comes to the resources and capabilities necessary for the successful implementation of environmental legislation, providing poor nations with both financial and technical assistance can help close the gap that exists between them.
· It is possible to improve the credibility, effectiveness, and longevity of environmental policies by making it easier for local populations and indigenous peoples to participate in the formulation and implementation of these procedures.
· The maximisation of public awareness and activism is crucial in enabling policy reform and fostering a sustainable environmental management mentality. Augmenting educational campaigns, capacity-building programs, and advocacy efforts is crucial to raise awareness about the importance of environmental sustainability, the impacts of climate change and biodiversity loss, and the urgent need for action at all levels of society.
It is possible that the global society will be able to build a legislative framework for environmental sustainability that is more effective and equitable if it gives priority to these essential topics. By fostering increased cooperation, collective accountability, and comprehensive participation, we may be able to achieve our goal of addressing the complex and interconnected problems of climate change and the reduction of biodiversity, so ensuring that future generations will inherit a planet that is strong and sustainable.
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