Consentia on Multidisciplinary Research



Climate change is a long-term shift in the climate of a specific location, region or planet. The shift is measured by changes in features associated with average weather, such as temperature, wind patterns and precipitation. What most people don’t know is that a change in the variability of climate is also considered climate change, even if average weather conditions remain the same.

Climate change occurs when the climate of a specific area or planet is altered between two different periods of time. This usually occurs when something changes the total amount of the sun’s energy absorbed by the earth’s atmosphere and surface. It also happens when something changes the amount of heat energy from the earth’s surface and atmosphere that escapes to space over an extended period of time. [1]

Such changes can involve both changes in average weather conditions and changes in how much the weather varies around these averages. The changes can be caused by natural processes like volcanic eruptions, variations in the sun’s intensity, or very slow changes in ocean circulation or land surfaces which occur on time scales of decades, centuries or longer.

But, humans also cause climates to change by releasing greenhouse gases and aerosols into the atmosphere, by changing land surfaces, and by depleting the stratospheric ozone layer. Both natural and human factors that can cause climate change are called ‘climate forcing’, since they push, or ‘force’ the climate to shift to new values. [2]

There are a broad range of legal approaches and tools that can be employed to facilitate climate change adaptation. For new developments, legal approaches can be used to avoid, accommodate, defend against, or retreat from sea level rise. All of these approaches have been used, to some extent, by governments throughout. Climate legal risk arises from the impacts that changes in the natural environment have on legal risk.[3] Organisations can assess their climate legal risk and consider ways in which they can manage it by identifying the physical climate risks, with a view to determining the range of legal decisions that may be required to be made as a consequence of physical risk to which the organisation is exposed. To analyse how the relevant law regulates the issues at stake (i.e., a hypothetical application of the law). This will involve identifying what, why, where, when and how climate events could impact the achievement of the organisation’s objectives. In order to assess the legal risk, the analysis will assess what impact the applicable law and other relevant material may have on the rights and duties of the organisation.[4] Evaluating whether the legal outcome serves the organisation’s interests by distinguishing between acceptable legal risks and those legal risks that should be considered for treatment, and seeking to estimate the likelihood and consequence values for a range of typical climate legal decisions should be considered.


While there is no supranational body that generates binding International Environmental Law, the United Nations (U.N.) is an intergovernmental body that generates agreements among nations.[5] The two ways that international law is made are through customary law and treaty regimes.[6] Climate change has been addressed through global treaties. The United Nations Conference on Environment and Development (UNCED), also known as the Earth Summit, in Rio de Janeiro in June 1992 produced the United Nations Framework Convention on Climate

Change (UNFCCC).[7]


The UNFCCC is an intergovernmental effort to tackle the climate change challenge, and it entered into force on March 21, 1994.[8] The treaty is aimed at stabilizing GHG concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. It recognizes the climate as a shared resource whose stability can be affected by industrial and other emissions of carbon dioxide and other greenhouse gases (GHGs). Under the Convention, governments gather and share information on GHG emissions, national policies, and best practices, launch national strategies for addressing GHG emissions and adapting to expected impacts, including the provision for financial and technological support to the developing countries, and cooperate in preparing for adaptation to the impacts of climate change. The international treaty making process includes initiation, formulation, and adoption. Currently, nations have created framework conventions that are built upon protocols and annexes.[9]

The UNFCCC adopted a principle of “common but differentiated responsibilities” because the parties agreed that: (1) the largest share of historical and current global emissions of GHGs originated in the developed countries; (2) per capita emissions in the developing countries are still relatively low; and (3) the share of global emissions originating in the developing countries will grow to meet social and development needs.[10]  As of December 2002, the UNFCCC had 192 parties. The developed countries act first,[11] and all the countries are to promote sustainable development.


The Kyoto Protocol, signed December 11, 1997, and entered into force February 16, 2005, is linked to the UNFCCC by setting binding emissions targets for 37 industrialized countries and the European community at an average of 5% against 1990 levels by 2012.[12]  By U.S. law, all international treaties have to be ratified by the U.S. Congress. The Kyoto Protocol went into effect in 2005 when it was ratified by Russia, and some countries have decided that they will set targets. However, certain countries, such as the U.S., have not ratified the Kyoto Protocol and have not to set binding emissions targets, largely because certain other countries have not to set binding targets. The Protocol places a heavier burden on the developed nations in recognition that they have mainly contributed to the high levels of GHGs because of 150 years of industrial activity.

The Kyoto Protocol proposed incentive-based approaches for addressing environmental problems in general and climate change in particular. Article 12 of the Kyoto Protocol proposed the Clean Development Mechanism (CDM).[13]  Under the clean development mechanism (CDM), the developed countries may engage in projects in the developing countries, generating emissions credits if the project is certified to reduce net GHG emissions. The CDM attempts to engage the developing countries in international GHG abatement efforts.[14] Specifically, under the CDM, the developed countries, or companies in those countries, fund GHG abatement projects in the developing countries where abatement costs are much lower.  In turn, the developed countries receive credits, called “certified emission reductions,” or CERs, that can be used to offset their emission reduction obligations.[15] Technology transfer is an important tool of CDM. By transferring new and green technologies from the developed countries to the developing countries, emissions can be reduced substantially. The transferring country (or company) can be given due credit for the reduction in GHGs. Thus the Kyoto Protocol provides an outstanding baseline for countries to cooperate and actually address climate change in a realistic way.


International Development Law Organization (IDLO) provides developing countries with several interrelated legal and institutional reform services through the Legal Preparedness for Climate Change Initiatives (LPCCI).[16] Each country has different needs and capacities. In providing our services, IDLO gives priority to strategies that are built from existing laws, regulations and policies rather than solutions that require new resources. LPCCI legal services can include: [17]

  1. Identifying and providing recommendations to overcome legal and institutional barriers to adaptation, mitigation by participation in international mitigation schemes, and access to international climate funding;
  2. Engaging stakeholders to set legal and institutional reform priorities and ensuring stakeholder consultations that respect acceptable legal norms;
  3. Co-designing legal and institutional reform action plans;
  4. Enhancing the legal and institutional capacity of national and local climate change actors to implement action plans; and
  5. Providing legal research and analysis of proposed climate change related laws, regulations, standards and guidelines, to ensure that domestic legislation is in line with relevant international laws and standards, including those on climate finance, biodiversity, gender, and human rights.


Most people have heard the phrase ‘carbon management’, but it is worth defining to ensure a common understanding. The following definition is more concise than most: “Carbon management is the monitoring of carbon emissions and implementing measures to cut the level of atmospheric carbon dioxide (in order to reduce global warming)”.
While this definition provides some context, almost any activity we undertake can have an impact on carbon dioxide levels. In order to focus effort, it is necessary to establish a carbon management framework. There are a variety of carbon management frameworks that can be adopted.[18] The following is a simple, yet comprehensive framework:


A carbon footprint is the place to start the development of a carbon management strategy. The core carbon footprint calculations are very simple, yet the complexities have created an entire industry. This has, in part, been driven by government legislation, such as the National Greenhouse and Energy Reporting (NGER) Act, but also by industry itself, due to the need to have a transparent, credible carbon-reporting regime. The space has evolved quickly. The difference in the systems, standards and procedures that apply to carbon reporting now versus five years ago is remarkable. Many organisations now participate in voluntary public reporting schemes such as the Carbon Disclosure Project.


In an ideal world, an organisation would implement a carbon management strategy purely to reduce the impacts of climate change. The reality is executives and boards usually focus on more tangible benefits. Fortunately, there are many benefits that can be realised by a carbon management strategy. Benefits include cost savings, environmental performance, brand building, employee satisfaction and shareholder value. The best way to manage increasing energy prices and the impact of a price on carbon is to use less energy and emit less carbon.  A preferred approach is to set the targets in terms of a key measure of production for an organisation. A common metric is square metres of office space. Specialist measures may be appropriate for different business units; for example, power usage effectiveness (PUE) is often used for data centres.


Once the objectives are set, it is time to reduce carbon emissions.[19] There are many parts of a business that can contribute to carbon emissions. It is important to consider both integration with existing processes and access to a specialist team of carbon management professionals.
As almost any part of a business can impact carbon emissions, a comprehensive framework to drive change throughout the whole organisation is required.[20] Considerable effort is required to develop measures and programs to deliver these outcomes.


Sequestering carbon is the process of capturing the carbon before it is emitted to the atmosphere for indefinite storage. Considerable research into this technology is driven by the coal industry for use at coal-fired power stations. While a number of pilot plants are in existence, for most organisations it will be many years before this is a viable option.


For those organisations seeking to become carbon neutral, it is necessary to purchase carbon offsets for the remaining emissions. A carbon offset is created by another entity when they have reduced their emissions.[21] They can sell this reduction as an offset to any organisation. The revenue generated from the sale of offsets is often invested in projects in developing countries that would otherwise have no funds to invest in reducing emissions.



The perspective of developed and developing countries on climate change are different.


OECD and some other developed countries are of the view that since most of the additional carbon emissions will be taking place in the developing countries, the developing countries should also accept cut in greenhouse gas emissions. They also are of the view that in the long run, there has to be carbon equity. The permissible carbon emission per capita has to be same for humanity across the globe and the global community should work towards it. They want developing countries to slow their emission growth. USA is thinking of establishing a Clean Development Fund to facilitate adoption of clean technologies in developing countries. Some developed countries are strongly for introduction of carbon tax. The Developed countries objective is to pass the economic burden of GHG stabilization to others and retain competitive advantage in trade.[22] They also want to gain competitive advantage in the near-term in the energy sector. International Energy Agency (IEA) estimates US$ 20 trillion global energy investment till 2030, of which $ 10 trillion is in China, India, Brazil. There is a feeling that developed countries aim to minimize resource transfers to developing countries for adapting to climate change, either fiscal or sourced from carbon market.


On the other hand, developing countries aim to avoid the commencement of any process leading to uncompensated GHG constraints. They want to ensure that any apportionment of GHG emissions rights is based on equity (India and China are for equal per-capita basis with accounting for historical responsibility). They also look for realising their competitive advantage in trade in carbon credits (via the CDM) and to realise necessary resources for addressing adaptation to climate change.[23]



Climate change as we all know has become a topic of great debate in the contemporary times due to it being of considerable importance. In simple language it means huge increase in the temperature and global climate patterns largely due to the increased levels of atmospheric carbon dioxide produced by the use of fossil fuels from the mid to late 20th century onwards.

The key environmental challenges in India have been sharper in the past two decades. Climate change is impacting the natural ecosystems and is expected to have substantial adverse effects in India, mainly on agriculture on which 58 per cent of the population still depends for livelihood, water storage in the Himalayan glaciers which are the source of major rivers and groundwater recharge, sea-level rise, and threats to a long coastline and habitations.[24] Climate change will also cause increased frequency of extreme events such as floods, and droughts. These in turn will impact India’s food security problems and water security.[25]


India has a very comprehensive framework of legal and institutional mechanisms in the region to respond to the tremendous challenges to the environment it is facing, owing to population growth, poverty and illiteracy augmented by urbanization and industrial development. India is one of the leading developing country in so far as having incorporated into its Constitution.

The specific provisions for environmental protection. Article 48A of the Constitution of India provides that ‘the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country’. Similarly, Article 51A (g) makes it obligatory for every citizen of India, ‘to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.’ Despite the fact that India’s contributions to greenhouse gas emissions are very small, the Government of India has taken many measures to improve the situation in this regard. India has initiated several climate-friendly measures, particularly in the area of renewable energy. It has one of the most active renewable energy programmes besides having a dedicated Ministry for non-conventional energy sources. India had adopted the National Environment Policy 2006, and has also taken many other measures and policy initiatives.[26]



National Environment Policy 2006 is a response to our national commitment to a clean environment, mandated in the Constitution in Articles 48A[27] and 51A (g)[28], (DPSP) strengthened by Article 21 of the Constitution. It is recognized that the maintenance of the Healthy environment is not the responsibility of the state alone. It is the responsibility of every Citizen and thus a spirit of partnership is to be realized through the environment management of the country.[29]



(To protect and conserve critical ecological systems and resources, and invaluable natural and man-made heritage, which are essential for life support, livelihoods, economic growth, and a broad conception of human wellbeing.


To ensure equitable access to environmental resources and quality for all sections of society, and in particular, to ensure that poor communities, which are most dependent on environmental resources for their livelihoods, are assured secure access to these resources.


To ensure efficient use of environmental resources in the sense of reduction in their use per unit of economic output, to minimize adverse environmental impacts


To apply the principles of good governance (transparency, rationality, accountability, reduction in time and costs, participation, and regulatory independence) to the management and regulation of use of environmental resources.)[30]


To ensure higher resource flows, comprising finance, technology, management skills, traditional knowledge, and social capital, for environmental conservation through mutually beneficial multi stakeholder partnerships between local communities, public agencies, the academic and research community, investors, and multilateral and bilateral development partners.[31]



Although India has many domestic problems to address, it does have a strong legal framework for addressing environmental protection. India’s environmental laws can be traced back many years. Indians can rely on the constitutional right to a healthy environment.[32] Professor Badrinarayana writes, “Climate change presents a serious challenge to constitutional rights of Indians; rights which can only be taken away by the State and by proper legal procedure.”[33]

The enactment of Forest Act of 1865 was the first step at asserting the state monopoly right over forests by facilitating the acquisition of forests by the state. The Act was revised in 1878 and extended to most of the territories under British Rule. The provisions of the 1878 Act ensured that the state could demarcate tracts of forests that were needed for railway purposes and retain enough flexibility over the remaining extent of forest to revise its policy from time to time.

After the Bhopal tragedy, where methyl isocyanate (MIC) gas and other chemicals leaked out of a pesticide plant, exposing thousands of people, India enacted the Environmental Protection Act of 1986 to supplement existing pollution control laws.[34] Environmental Impact Assessment was introduced in India in 1994, making Environmental Clearance (EC) mandatory for expansion, or modernization of any activity or for setting up new projects such as mining, thermal power plants, infrastructure, etc.[35] India has also focused on acid rain, global warming, ozone depletion, marine pollution, and deforestation.

Because India’s constitution guarantees the fundamental right to a healthy environment, Indian citizens can bring environmental claims under Article 51A (g) of the Constitution. This Article imposes a duty on every citizen to protect and improve the natural environment, including forests, lakes, rivers, and wild life.[36] India’s courts have been quite activist in upholding the right to a clean environment. Some Indian citizens claim that their environmental constitutional rights are being violated because the problem of climate change is not being properly addressed. Standing based on the precautionary principle should be applied in environmental cases in India to increase citizens’ ability to bring suit.[37]

Many Indian cases illustrate how environmental citizen suits as public interest litigation (PIL) work to improve environmental conditions in India. In Rural Litigation and Entitlement Kendra v. State of U.P.,[38] the Supreme Court of India established the social obligation to protect the environment in the context of the environment and ecological balance, observing, “it has always to be remembered that these…permanent assets of…mankind are not intended to be exhausted in one generation.” The Indian courts have often treated environmental protection as an emergency situation and thus try to enforce the “polluter pays” principle.[39]

In M.C. Mehta v. Union of India, plaintiff successfully challenged the Indian government and hundreds of polluting corporations in the Supreme Court of India.[40] Petitioner filed under Article 32 of the Constitution stating that foundries, chemical and hazardous industries, and refineries at Mathura were emitting sulphur dioxide that was combining with moisture in the atmosphere to form sulphuric acid. Petitioner claimed this was corroding the Taj Mahal’s white marble. The Supreme Court of India held the emissions resulted in a violation of the right to life of the people living around the Taj Mahal.[41] In M.C. Mehta v. Kamal Nath,[42] the Supreme Court laid out three (3) principles: (1) the public trust doctrine applied and Himachal Pradesh violated the public trust in allowing motel developments in fragile forests, (2) Article 21 of the Constitution guarantees that any disturbance of the basic environmental elements, air, water, and soil, would be hazardous to life, and (3) the Court could impose exemplary (punitive) damages on polluters in order to deter further pollution and punish polluters.[43] Indian citizens should continue to bring PIL suits and hold their government and corporations accountable. Indian environmental law will help to shape India’s future, and the stronger India’s domestic laws become, the better bargaining position India will be in internationally.

The problem with environmental laws in India is with implementation and enforcement. The obstacles to better environmental protection, and indeed to progress, in India are poverty, hunger, overpopulation, corruption, and lack of infrastructure.[44] These factors have led to difficulties in setting binding emissions reductions targets to help global climate change treaties move forward. However, the courts have been a driving force for change and better environmental standards in India. Especially now that India is a hub for development and its business sector is booming, its development needs to be sustainable.[45]


Climate change has become a big problem for the world at large. It is a problem which needs to be tackled not by any one person, community, or country but by the contribution and sincere efforts of all the countries whether developed or developing. It is frequently said that the contribution made by the developed countries toward preventing climate change should be any day more than those by developing countries. This is totally justified as their carbon consumption is more than that of the developing countries. But now as the developing countries are industrialising at a very fast pace to compete with the developed countries in all spheres their carbon consumption is increasing owing to the fast developing process. Thus their efforts to prevent climate change is now coming in the foreground.

Early recognition of climate legal risk can potentially reduce the likelihood of subsequent legal action by affected stakeholders. But recognition alone is not enough; it is essential that protocols and procedures are in place that facilitate management of climate legal risk through implementation of climate change adaptation strategies and decision making process. International climate law, coordinated with domestic policies aimed at ensuring investor certainty, has the potential to contribute significantly to global GHG emissions reductions. Low-carbon technologies can achieve desirable socio-economic goals, yet the construction of large-scale renewable energy projects continues to generate opposition. Carbon management strategy is the major step or the need of the hour. The framework relating to carbon management mentioned in the paper if implemented in a uniform manner and adopted by developing countries then it would be their major bit for mitigating climate change. Apart from the strategy that is already there relating to carbon management there is a conscious need for the developing countries to evolve more such strategies and working principles which should meet the needs of changing times and is not stagnant. As a single policy or a strategy to tackle this mammoth problem of climate change which is not dynamic in nature will not serve the purpose. Thus dynamism  in climate change law is what is important and what is going to count in mitigating this drastic change which is taking place around us in a manner which is already hard to tackle and will further become uncontrollable if it is not given proper attention.

[1] Climate Change, NOAA National Weather Service, October 2007; last visited on 8th March, 2014 at 14:45.

[2] Core Writing Team, Pachauri, R.K. and Reisinger, A. (Eds.), Climate Change 2007 — Synthesis Report Contribution of Working Groups I, II and III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change. Geneva: IPCC, 2007.

[3] Mark Baker & Dr. Justine Bell, Climate Change Adaption Guided by the Law; A Report on Changing Winds: Climate Change and the Law, August 2013, DLA Piper, Brisbane, Page No. 9.

[4] Leurig and Dlugolecki (2013) Insurer Climate Risk Disclosure Survey, 2012 Findings and Recommendations, CERES.

[5] “Indians Largely Unaware of Climate Change.” last visited on 8th March, 2014 at 17:25.

[6] Jonathan Remy Nash, Environmental Law and Policy 160 (2010) Page No. 158.

[7] “What is the UNFCCC & the COP?” last visited on 8th March, 2014 at 18:01.

[8] “The United Nations Framework Convention on Climate Change,” last visited on 9th March, 2014 at 18:13.

[9] Paul Szasz, “International Norm-Making.” Environmental Change in International Law (1995).

[10] “The United National Framework Convention on Climate Change.” Article 3.1, March 21, 1994.

[11] “The United National Framework Convention on Climate Change.” Article 4.2, March 21, 1994.

[12] Many Senators in the U.S. felt that the developing countries were not being asked to do their fair share in reducing GHGs, which may be why Congress did not ratify the Kyoto Protocol.

[13] David Hunter, James Salzman, and Durwood Zaelke, “Kyoto Protocol.” International Environmental Law, Treat Supplement 127-28 (2007).

[14] “Kyoto Protocol.” last visited on 10th March, 2014 at 12:05.

[15] Michael A. Toman, Ujjayant Chakravorty and Shreekant Gupta, eds., India And Global Climate Change – Perspectives On Economics And Policy From A Developing Country, P.G. Babu, K.S. Kavi Kumar, and Bibhas Saha, “The Clean Development Mechanism: Issues and Options.” 301 (2003).

[16] last visited on 9th March, 2014 at 16:32.

[17] Ibid.

[18] Carbon Management, A Practical Guide for Supplier, University of Cambridge Programme for Sustainability Leadership.

[19] Carbon Reduction Target and Strategy for England, HEFCE, January 2010.

[20] Deepa Badrinarayana, “The Emerging Constitutional Challenge of Climate Change: India in Perspective.”

FORDHAM ENVTL. L. REV. 1, 2 (Spring 2009).

[21] Carbon Management Plan, University of Greenwich, Sustainable Development Owner, 2011.

[22] IPCC. 2007. Climate Change 2007: Impacts, Adaptation and Vulnerability (Fourth Assessment Report).

[23] H.A.C. Prasad, J.S. Kochher, Climate Change and India – Some Major Issues and Policy Implications March 2009, Department of Economic Affairs, Ministry of Finance, Government of India.

[24] last visited on 11th March, 2014 at 20:21.

[25] India, Ministry of Finance, Economic Survey, 2012-13, Page No. 256-57.

[26]H.A.C. Prasad, J.S. Kochher, Climate Change and India – Some Major Issues and Policy Implications

March 2009, Department of Economic Affairs, Ministry of Finance, Government of India. Page No. 21 – 22

[27] P.M.Bakshi, The Constitution of India, Universal Law Publishing Co., New Delhi, 10th Edition (2010), Page No. 90.

[28] Ibid, Page No. 92

[29] Prof. Satish C. Shastri, Environmental Law, Eastern Book Company, 4th Edition (2012), Page No. 487.

[30] National Environment Policy 2006, Approved by the Union Cabinet, 2006; Government of India Ministry of Environment & Forests.

[31] last visited on 10th March, 2014 at 18:23.

[32] INDIAN CONSTITUTION. Article 48A: amended by the Constitution (Forty-Second Amendment) Act, 1976 (amending Part IVA of the Indian Constitution to include environmental concerns and improvements).

[33] Deepa Badrinarayana, “The Emerging Constitutional Challenge of Climate Change: India in Perspective.”  FORDHAM ENVTL. L. REV. 1, 2 (Spring 2009).

[34] Prof. Satish C. Shastri, Environmental Law, Eastern Book Company, 4th Edition (2012), Page No. 37-38.

[35] Ibid.

[36] P.M.Bakshi, The Constitution of India, Universal Law Publishing Co., New Delhi, 10th Edition (2010), Page No. 92.

[37] Jonathan Remy Nash, “Standing and the Precautionary Principle.” 108 COLUM. L. REV. 494 (March 2008) (arguing for the use of standing based on the precautionary principle, such as in cases such as Mass. v. EPA, 549

U.S. 497 (2007), where there was a dispute about the certainty of scientific evidence establishing climate change but the potential harms were widely considered large and irreversible).

[38] 1985 AIR 652, 1985 SCR (3) 169; (finding illegal mining operations interfered with ecology and the environment as well as caused a hazard to individuals, cattle, and agricultural lands).

[39] Union Carbide Corp. Gas Plant Disaster at Bhopal, India in December, 1984, 634 F.Supp. 842 (S.D.N.Y 1986) (holding that the better ability of the Indian forum required adjudication of toxic torts cases resulting from the result of a gas leak at a chemical plant in Bhopal, India to take place in India).

[40] David Mossop, “Citizen Suits-Tools for Improving Compliance with Environmental Laws.” Last visited on 12th March, 2014 at 22:30.

[41] Ibid.

[42] (1997) 1 SCC 388.

[43] Prof. Satish C. Shastri, Environmental Law, Eastern Book Company, 4th Edition (2012), Page No. 456-457.

[44] Indian environmental regulations have become stronger in the last 25 years since the Bhopal disaster, enforcement is still a challenge.

[45] “India’s surprising economic miracle.” THE ECONOMIST, Oct. 2, 2010, Page No. 11.


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