Kathmandu: The impacts of climate change are posing unprecedented challenges to Nepal’s environment, economy, and society. Nepal is among the nation’s most susceptible to the effects of climate change globally. The Climate Risk Index puts Nepal as the tenth most affected country in the world. In terms of exposure to, sensitivity to, and capacity for adaptation to the adverse effects of climate change, Nepal comes in at number 139 out of 182 nations (ND-GAIN, 2022). Nepal is the world’s fourth-most climate-vulnerable nation, according to a 2013 World Bank assessment. The Oxford Policy Management Report states that about 80% of Nepal’s population is at risk from environmental and climate change-related hazards.
In light of these pressing concerns, the need for a comprehensive climate change law in Nepal has become increasingly urgent. This article critically evaluates Nepal’s current initiatives in addressing climate change while highlighting the imperative for the enactment of dedicated climate change legislation.
Constitutional Recognition and Environmental Protection
While Nepal’s Constitution doesn’t explicitly address climate change, it lays the groundwork for environmental protection and acknowledges the right to a clean environment as a fundamental right of citizens. The Constitution recognizes the importance of balancing environmental preservation with development and empowers the government to enact laws and policies to address environmental challenges, including climate change. As per 51(g) of the Constitution, the state pursues environmentally sustainable development such as the polluter’s pay, precautions in environmental protection, and prior informed consent.
Environment Protection Act and Forest Act
On July 19, 2019, the Environment Protection Act of 2076 was passed by the parliament, granting the Nepalese government the power to regulate and reduce emissions, hazardous waste, and pollution. Chapter 4 was devoted entirely to climate change. It speaks about informing the general public.
Making adaptation plans to avoid the adverse impacts and risks of climate change. Power to carry out an act of mitigation. The government of Nepal has the power to execute sectoral policies, strategies, and action plans. The government of Nepal has the power to determine and enforce technical standards for the setting of priorities for matters to be implemented in urban and rural areas as to the mitigation of adverse impacts and risks of climate change. The government of Nepal also has the right to participate in carbon trade under the mechanisms established by the international treaty.
The Forest Act addresses climate change by recognizing the role of forests in carbon sequestration and mitigation, even though the main focus might be on managing the economic benefits of the service.
Government Initiatives
The NAP aims to strengthen institutional capacity and promote multisectoral, medium-, and long-term adaptation planning. The National Adaptation Plan (NAP) Project, “Building Capacity to Advance the NAP Process in Nepal,” was introduced on September 23, 2018, by the Government of Nepal and the UN Environment Programme (UNEP) to strengthen institutional capacity to address the negative effects of climate change. The National Adaptation Plan seeks to guide the development, execution, and coordination of adaptation measures required across society, ecosystems, and all governmental levels. Advise on how to include adaptation factors in programs, policies, and initiatives.
Similarly, Nepal’s Climate Change Policy aims to build a climate-resilient society and address emerging challenges. It outlines 12 sectoral policies, strategies, and working policies. The policy emphasizes the establishment of institutional mechanisms for its strong implementation, including the creation of a council, an inter-ministerial coordination committee, and a climate change research center. It also calls for the provision of a climate change section, unit, or focal point at the local level and in relevant thematic ministries of the federation and provinces.
A landmark court case
In the landmark case, Shrestha vs. Office of the Prime Minister, it was all brought by Padam Bahadur Shrestha, who challenged the government’s inaction on climate change, citing violations of fundamental rights and international commitments. The Supreme Court recognized the urgency of climate change and ordered the government to enact the new climate change law addressing mitigation, adaptation, and compensation for impacted communities. The court recognized the inadequacy of existing environmental law in dealing with climate change. The Nepali government enacted the Forest Act, 2076, and the Environmental Act, 2076, in response to the ruling of the Supreme Court. Sadly, after the government was reluctant to abide by the court decision, the petitioner again filed a contempt of court case in the Supreme Court, asserting that the government failed to comply with the Supreme Court mandamus on December 25, 2018.
Why the Climate Law?
Despite the effort mentioned above, many initiatives lack the legal backing of a dedicated law. They are more like policy guidelines, making enforcement challenging. Our current plans often lack SMART (specific, measurable, achievable, relevant, and time-bound) targets, hindering accountability. Fragmentation across different agencies could hamper effective implementation, while limited public participation in decision-making processes reduces a sense of ownership.
Nepal needs a dedicated climate change law to combat climate change effectively. The law should provide a clear legal framework with enforceable provisions and binding targets while defining smart goals for reducing emissions and implementing adaptation measures. It should ensure public access and participation in decision-making processes, attract green investments, and encourage innovation in climate solutions. A draft bill has been prepared by the law commission, proposing the creation of a National Climate Council and a National Climate Authority to manage and regulate climate change-related activities. This proposed law is praiseworthy and will undoubtedly help Nepal tackle climate change effectively.
Successful climate change laws like the EU Climate Change Law and the UK Climate Change Act offer valuable lessons. These laws set binding targets, ensuring clear accountability. It mentions robust frameworks that track progress and hold relevant actors accountable. It provides avenues for public participation in decision-making.
The National Green Tribunal Act of India, established in 2010, created a special body to handle environmental issues. This tribunal can address environmental protection, conservation of forests and natural resources, and enforcement of environmental rights. It aims to provide fast and effective solutions to these issues.
The Indian Supreme Court acknowledged the right against the negative effects of climate change on April 5, 2024, stating that it is linked to the rights to equality and life ingrained in the Indian constitution.[6] The European Court of Human Rights recently ruled that Switzerland violated the European Convention on Human Rights by not doing enough to lessen the effect of climate change, potentially affecting 46 EU countries.
Conclusion
Nepal is actively participating in CoP and various other platforms to raise concerns about the country’s situation and how it is impacted, but the government seems hesitant to make the law even after many years of court decisions that are worrisome, so it seems Nepal is not so serious. Nepal’s existing initiatives are a positive step, but a strong climate change law is a missing piece. By learning from global examples and addressing the limitations of current approaches, Nepal can craft a law that empowers its people to confront the challenges of climate change head-on. Also, Nepal should include climate change in the constitution. The provision relating to the right to live in a clean environment, the right to equality, and the right to live with dignity alone cannot adequately address climate change in the future.
( Author is currently studying at the National Law College )
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