AKA, THE GREAT INDIAN BUSTARD CASE
FACTS:
- The Great Indian Bustard, a large bird species, inhabits the arid regions of India, particularly Rajasthan.
- This species is critically endangered due to several factors including climate change, a low reproduction rate, the presence of mobile towers in the Thar Desert, and overhead transmission lines.
- The bird’s poor vision and considerable size lead to fatal collisions with these transmission lines.
- The Lesser Florican is another bird facing similar threats.
- A writ petition was submitted to the Hon’ble Supreme Court, requesting urgent measures for the protection and recovery of these two endangered bird species. The petition sought the implementation of an emergency response plan, installation of new bird diverters, a halt on new project sanctions and renewals, and the dismantling of existing power lines.
- The Court’s order on 19/4/21 imposed restrictions on setting up overhead transmission lines over an extensive area of approximately 99,000 sq. km.
- It set some mandates for the same as follows-
- Future low voltage power lines in areas populated by these birds are to be installed underground.
- Existing low and high voltage power lines in potential and priority areas must be converted to underground lines.
- Bird diverters are to be installed to prevent bird collisions.
- The Court’s decision underscored a commitment to protecting endangered species, even if it meant limiting the facilitation of solar power generation.
ISSUES RAISED:
- Whether the collision with high-tension power lines posed a significant threat to the survival of the two birds.
- Whether current existing measures to protect the habitat of the two birds were adequate and effective in preventing further decline in their population.
- Whether implementation of underground power lines and the installation of bird diverters were feasible and necessary measures to mitigate the risks posed to the two birds.
- Whether the state governments of Rajasthan and Gujarat, along with power companies, were fulfilling their legal obligations to protect the two critically endangered birds.
CONTENTION:
Plaintiff’s Arguments:
- The plaintiffs argued that high-tension power lines posed an immediate and significant threat to the Great Indian Bustard, causing frequent collisions due to the bird’s poor frontal vision.
- They contended that many birds had already died from such collisions, exacerbating the decline of an already critically endangered species.
- The existing measures to protect and restore the GIB’s habitat were insufficient, leading to continued habitat degradation and fragmentation.
- The plaintiffs emphasized the need for stronger habitat protection laws and more effective implementation of conservation measures.
- The plaintiffs advocated for the urgent installation of underground power lines in priority areas and bird diverters on existing lines to prevent further collisions.
- They argued that these measures were technically feasible and essential for the survival of the GIB.
- The plaintiffs argued that the state governments of Rajasthan and Gujarat, along with power companies, were not fulfilling their legal and moral obligations to protect the GIB.
- They sought immediate judicial intervention to ensure compliance with wildlife protection laws and the implementation of necessary conservation measures.
- Defendant’s Arguments:
- The defendants acknowledged the threat posed by power lines but contended that making power lines underground presented significant technical and financial challenges.
- They argued that such measures required substantial investment and time for implementation.
- The state governments and power companies highlighted the ongoing efforts and measures already in place to protect the GIB, including habitat restoration projects and existing bird diverter installations.
- They argued that these efforts were part of a comprehensive strategy to conserve the GIB and that further measures were being planned.
- The defendants raised concerns about the feasibility of underground power lines in certain terrains and the potential impact on power supply and infrastructure.
- They contended that alternative measures, such as bird diverters, could be effective and more practical in certain areas.
- The defendants advocated for a collaborative approach involving multiple stakeholders, including government agencies, NGOs, and local communities, to develop and implement effective conservation strategies.
- They stressed the importance of a balanced approach that considers both wildlife conservation and the practicalities of power infrastructure management.
RATIONALE:
- The Supreme Court, based its decision on India’s international commitments to combat climate change, as outlined in agreements such as the Kyoto Protocol and the Paris Agreement. India aims to achieve around 50% of its electric power capacity from non-fossil fuel sources by 2030. The Court recognized the importance of promoting renewable energy, which is crucial for ensuring social equity through access to clean and affordable energy.
- The Court emphasized that the right to a clean environment falls under Article 21 of the Constitution, which guarantees the Right to Life. Past decisions in cases like MC Mehta v. Kamal Nath, Karnataka Industrial Areas Development Board v. C Kenchappa, and Bombay Dyeing & Co Ltd v. Bombay Environmental Action Group highlighted this right. The Court also noted that climate change could violate Article 14 (Right to Equality) because it disproportionately affects different groups of people. For the first time, the Court recognized the right to a healthy environment and freedom from the adverse effects of climate change.
- The Court reiterated the importance of solar energy as a key component in the transition to cleaner fuels and the fight against climate change.
- The Court reviewed international cases related to greenhouse gas emissions and concerns about rising sea levels, reflecting a global perspective on the issue.
- The Court acknowledged the conflict between protecting biodiversity and mitigating climate change. It concluded that imposing a blanket ban on transmission lines for solar power distribution over an area of approximately 99,000 sq. km. was not justified. This approach would not effectively conserve the endangered bird species and posed technical challenges in undergrounding the lines.
- To address the conservation concerns, the Court directed the formation of an expert committee. This committee is tasked with assessing the feasibility of undergrounding power lines, the effectiveness of bird diverters, and determining the number of diverters needed. The Court requested the committee to complete its work and submit a report by July 31, 2024.
DEFECTS OF LAW:
- Existing wildlife protection laws did not address the threat posed by high-tension power lines to bird species.
- There was an absence of clear guidelines for power companies to implement bird-friendly measures, such as underground cabling or bird diverters, in critical habitats. Enforcement of existing conservation laws and policies were weak, with insufficient monitoring and accountability mechanisms.
- Penalties for non-compliance were either lacking or not stringent enough to deter harmful activities impacting the habitat and survival of the two birds. The responsibility for wildlife conservation was uneven across various government departments and agencies, leading to poor coordination and implementation of conservation measures.
- There was a lack of a united and clear strategy involving all stakeholders, including state governments, central authorities, and private entities.
- Existing laws did not broadly address habitat protection and restoration for critically endangered species like the two birds.
- Legal provisions for designating and managing protected areas were inadequate to prevent habitat degradation and fragmentation.
- Laws and policies did not sufficiently involve local communities in conservation efforts, despite their crucial role in the protection and sustainable management of wildlife habitats.
- There were inadequate incentives and support mechanisms to engage communities in active conservation practices.
- Legal and administrative responses to conservation issues were often slow, failing to keep pace with the urgency required to address the rapid decline of critically endangered species.
- Delays in judicial proceedings and the implementation of court orders further aggravated the threats to the two birds and other endangered species. The legal framework lacked provisions for adaptive management, which is essential for responding to new threats and changing environmental conditions. Rigid legal structures delayed the ability to implement innovative and context-specific conservation solutions promptly.
INFERENCE:
- The provided information highlights significant developments in climate change jurisprudence and their implications for conservation efforts and sustainable development goals.
- The Supreme Court’s acknowledgment of the right to be protected from the negative impacts of climate change represents a pivotal moment in Indian jurisprudence.
- By integrating concerns about climate impacts into domestic legal frameworks, the Court acknowledges the urgent need for urgent measures to mitigate these effects.
- The Court’s decision to recall interim orders, which would not significantly impact the conservation of the two endangered birds, demonstrates a judicious approach focused on effective conservation strategies. This reflects a balance between immediate conservation needs and broader environmental considerations.
- The endangered status of the two birds is attributed to various factors such as habitat fragmentation, reproductive challenges, and predation.
- The Court’s endorsement of remedies like establishing breeding centres and predator-proof enclosures underscores the need for comprehensive conservation approaches tailored to specific species’ needs.
- The Court’s balanced approach between species conservation and climate change mitigation acknowledges the complexities of transitioning to clean energy alternatives while safeguarding biodiversity.
- This approach reflects a commitment to both environmental stewardship and sustainable development goals.
- International agreements like the Paris Agreement and decisions such as Milieudefensie v. Royal Dutch Shell illustrate a growing global consensus on the need for corporate accountability and robust climate action.
- The evolution of climate change litigation towards nuanced jurisprudence offers hope for future legal frameworks that integrate sustainable development goals.
- By holding both state and non-state actors accountable, courts can contribute significantly to achieving environmental justice and global sustainability targets.
- The judiciary’s stance on climate change in domestic law, coupled with international precedents and progressive litigation, sets a precedent for comprehensive environmental governance.
- These developments not only aim to protect endangered species like the Great Indian Bustard but also promote a holistic approach to addressing climate challenges in alignment with global sustainability agendas.
Anirudh VG
MIT WPU