In April 2024, in M.K. Ranjitsinh and Others vs Union of India, the Supreme Court of India recognised a human right against the adverse impacts of climate change. The decision has attracted significant discourse, riddled with mixed reactions. For some, it has been a win for climate action. For others, it has failed to protect endangered biodiversity. Taking a relatively pragmatic position, in an earlier opinion page article in this daily, “The Great Indian Bustard and climate action verdict” (April 17, 2024), this writer mapped a course for the Court to adopt in its final decision — which is, framing the core issue in the case using the concept of just transition.
Since the final decision of the Court is due soon, this article delves deeper into the advantages of a just transition framing, arguing that first, it will facilitate equitable and inclusive climate action. Second, it will break new ground by introducing ‘Nature’ or the non-human environment as an entity in the concept of just transition. Third, it will bolster research on just transition litigation in India by foregrounding existing cases.
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Just transition is not a new concept. However, its introduction to climate change is recent. Put simply, it aims to make mitigative climate action inclusive and fair. That is, it seeks to ensure that the burdens and benefits of decarbonisation are distributed equitably.
The concept emerged in the 1970s as a tool to protect workers whose jobs were being threatened by increasing environmental regulation. Later, it was brought into the debates on climate change by the international trade union movement. In that, a direct impact of decarbonisation was on workers employed in carbon-intensive economies. In 2015, it was included in the international treaty on climate change, the Paris Agreement.
A salient report by the United States-based Sabin Center for Climate Change Law notes that in addition to workers, just transition encompasses other persons in vulnerable situations. This includes indigenous communities, women, children, and minorities. Due to their pre-existing vulnerability, they are at a higher risk of being adversely affected by decarbonisation. Accordingly, thus far, the concept only includes affected human beings. Notably, despite its vulnerability to climate change, the non-human environment has not been recognised as a subject of just transition.
Advantages of a just transition framing
The core issue in M.K. Ranjitsinh is the protection of an endangered bird, the Great Indian Bustard, from the adverse impacts of solar and wind energy projects. This is an opportune moment for the Court to frame the issue using just transition and further its conceptual boundaries. Three advantages flow from taking this approach.
First, a just transition framing will allow the Court to facilitate equitable and inclusive climate action. A repeated critique of the judgment has been its framing of the core issue — the Court’s decision to juxtapose decarbonisation and biodiversity protection. Interestingly, it recognises that the two ‘do not exist in disjunctive silos’, and that one cannot be prioritised at the cost of the other. Yet, it proceeds to frame them as adversarial choices — pitching the conversation of the Great Indian Bustard against conservation of the ‘environment as a whole’ (through decarbonisation). Effectively, it presents biodiversity protection as a smaller public interest in comparison to the larger public interest of decarbonising the economy.
This type of framing echoes the judiciary’s existing approach in renewable energy cases. Previously, various courts have labelled decarbonisation as being the larger public benefit, while the affected plaintiff’s interest being the smaller public benefit. In such cases, a just transition framing will preclude such inequitable and exclusionary climate action. It will allow courts to strengthen decarbonisation efforts, while accounting for and protecting interests of affected communities and entities. In other words, it will facilitate responsive mitigation action, which ensures that the burdens of decarbonisation are not disproportionately distributed.
Thus, given the nature of the core issue, the present case is a wonderful opportunity for the Court to import and apply the just transition concept. This will pave the way for taking a more holistic approach — while determining the feasibility of undergrounding power transmission lines, the Court can treat protection of the Great Indian Bustard as a guiding factor. In other words, protection of the Great Indian Bustard need not to be treated as adversarial to decarbonisation. Arguably, this will set the tone for equitable and inclusive climate action.
Lastly, it must be noted that the consequence of adopting this approach may not necessarily be ‘anti-energy transition’ or ‘anti-climate’. That is, it will not translate into decommissioning renewable energy projects. In that the question before the Court is limited to determining the feasibility of placing power transmission lines underground.
A just transition framing will enable the responsible and informed operation of renewable energy projects, and not decommission them. Thus, instead of being anti-climate, this case will belong to the new category of climate litigation emerging globally, i.e., litigation which is pro-just climate action.
A second advantage is that this case provides an opportunity for the Court to expand the concept of just transition by introducing the non-human environment as an affected entity. As mentioned earlier, theoretically, Nature does not feature as a subject in the concept, just transition. By and large, the notion of ‘affected communities’ is limited to human beings. Globally, existing just transition litigation only seeks to protect the interests of human beings.
This case presents an opportunity for the Court to develop jurisprudence on just transition and expand its scope. By applying the concept to protect an endangered bird, the non-human environment can be introduced as a separate entity in just transition. In doing so, the Court may draw on its own decadal eco-centric jurisprudence on the rights of nature; most recently in 2023, it suggested the recognition of the rights of sentient animals by the legislature. This is in addition to the copious jurisprudence from subordinate courts where constitutional rights of entire ecosystems have been recognised.
A final advantage of using the concept is that it will foreground existing just transition litigation in the country. A general consensus among climate law scholars is that just transition remains an understudied and under-researched area, both in climate law and litigation. This does not mean that just transition litigation does not exist. Rather, it has been overseen. Increasingly, climate law research is focusing on mapping just transition litigation in different regions of the world.
Given the significant number of renewable energy cases in India, a mapping exercise of just transition litigation is overdue. If the concept is introduced in the present case, it could act as a catalyst for this much-needed research. In fact, a few of these cases have already been identified as climate litigation, however, not as just transition litigation specifically. For example, they do not appear in the list of just transition cases available at the Sabin Center for Climate Change Law’s Global Climate Litigation Database. Thus, if the Court uses this concept, it could facilitate relevant research geared towards filling the gap in our collective knowledge about just transition litigation.
A beacon for the future
With an increasing number of countries attempting to move towards net-zero, just transition litigation is bound to rise. As of today, Land Conflict Watch has reported 20 ongoing disputes with respect to renewable energy projects in India. Equitable sharing of burdens and benefits arising from decarbonisation is central to most of these disputes. Thus, this is a watershed moment for introducing the concept of just transition in India. Should the Court choose to do so now, it will pave the way for equitable climate action, whether taken through law or litigation.
Kanika Jamwal is a doctoral candidate at the Faculty of Law, National University of Singapore
Published - August 09, 2024 12:16 am IST
