India

In re Court on its own motion v. State of Himachal Pradesh & Others

Jurisdiction: India


Side A: Court of its Own Motions (Government)


Side A: Abhimanyu Rathor (Individual)


Side B: State of H.P. & Ors (Government)


Core objectives:

Challenge to approval given by Minister for Planning for construction proposal on grounds that procedure did not follow Environmental Planning and Assessment Act


Summary
India's National Green Tribunal (NGT) was granted jurisdiction by a 2010 statute "over all civil cases where a substantial question relating to environment ... is involved and such question arises out of [one or more of seven environmental protection statutes enacted between 1974 and 2002]." The 2010 NGT Act empowers the NGT to initiate cases as well as order various remedies in those cases. In this case, the NGT did both: no party brought the case and the NGT ordered authorities in Himachal Pradesh to undertake several measures to remediate various environmental harms identified by consulting experts engaged by the NGT. The fundamental legal basis for the NGT's decision is India's constitution, and article 21 in particular, which, the NGT explained, has been interpreted by statutes and judicial decisions as providing for a fundamental right to what the NGT calls a "wholesome, clean, decent environment." The NGT concluded that the government of Himachal Pradesh had violated its obligations under article 21 (as well as articles 48A and 51A) by failing to restrict development and road and pedestrian traffic in and around the increasingly touristed area accessible via the Rohatang Pass. Melting of regional glaciers and deforestation led the list of environmental impacts noted by the NGT, which identified the emission of black carbon from vehicle traffic as a chief cause of the melting. The NGT drew two linkages between these findings and global warming: first, that global warming heightens the need to take protective measures of a region sensitive to emissions and deforestation; and second, that "there is a need to tackle global warming" in order to avert the sort of environmental degradation at issue in the case. Although the NGT described how greenhouse gas emissions cause global warming, and affirmed the applicability of the "polluter pays" principle to the respondents in this case, the NGT did not assign Himachal Pradesh responsibility for mitigating global warming per se. It did, however, order the government of Himachal Pradesh to impose a host of restrictions on traffic and to undertake a program of reforestation, both of which would be overseen by a Monitoring Committee that would make quarterly reports to the NGT.
Case documents

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