INTRODUCTION
Climate geoengineering has come to the juncture of imminent worldwide action against climate change and scientific innovation, posing dark legal and ethical challenges. As India faces the emergent threats of climate change, the question becomes increasingly urgent day by day: Should India establish regulatory frameworks for technologies like Solar Radiation Management (SRM)? This blog critically analyses the legal implications of climate geoengineering, specifically SRM, from an international and Indian law perspective, with emphasis on the need for a solid legal framework grounded on precaution, justice, and international cooperation.
UNDERSTANDING CLIMATE GEOENGINEERING AND SRM
Climate geoengineering entails deliberate, large-scale changes to the Earth’s climate system aimed at reversing global warming. It consists of two general categories:
- Solar Radiation Management (SRM): Techniques that reflect some of the incoming solar radiation to space (stratospheric aerosol injection, marine cloud brightening).
- Carbon Dioxide Removal (CDR): Techniques that remove carbon dioxide from the atmosphere (afforestation, direct air capture).
SRM is special insofar as it can cause a very rapid global cooling effect and raises fundamental legal and policy concerns. As opposed to CDR, which acts on the cause (greenhouse gas buildup), SRM’s fundamental action is to affect the global climate system, raising serious transboundary, environmental justice, and governance concerns.
LEGAL RISKS OF SOLAR RADIATION MANAGEMENT
- Transboundary Harm
SRM technologies would have cross-border indirect impacts that would affect weather, precipitation, and even the Indian monsoon. The environmental law of international law, in the form of the no harm rule[1], mandates that states cause activities within their territories not to result in significant environmental damage to other states. This is enunciated in:
- The 1972 Stockholm Declaration (Principle 21)
- The 1992 Rio Declaration (Principle 2)[2]
However, how these principles are to be interpreted in SRM is unclear, especially since the environmental impacts would be indirect, delayed, or scientifically uncertain.
- Environmental Justice and Equity
Employment of SRM will disproportionately affect poor and disadvantaged communities, both within India as well as internationally, disrupting concepts of environmental justice. Issues on hand are:
- Unwilling risk exposure, including speculative climate change
- Risk that benefits and costs are not distributed fairly, but instead are distributed in favour of large powers or blocs
- Lack of direct participation by affected populations in the decision-making process
- Moral Hazard
Legal analysts warn that the likelihood of SRM can encourage governments and corporations to delay effective greenhouse gas reduction, resorting instead to untested technological patchwork.[3] It underscores the need for strong legal guarantees for ensuring actual emission reduction over geoengineering risk.
INTERNATIONAL LEGAL FRAMEWORK: A PATCHWORK OF FRAGMENTS
Whereas SRM has worldwide implications, there is no worldwide treaty regulating climate geoengineering. Law is instead a patchwork network of documents, treaties, and customary law, which operate partly, each with an enormous loophole.
Key International Instruments
- ENMOD Convention: The ENMOD Convention was intended to forestall the utilisation of environmental or hostile military modification. According to Article I, it bans using environmental modification methods for hostile purposes[4]. But the Convention does not control peaceful climate interventions to counteract global warming.
- CBD Moratorium: CBD Decision X/33 (2010) proposes a moratorium on experiments of geoengineering with potential impacts on biodiversity until scientific and regulatory action is undertaken[5]. The moratorium, though, is non-binding and does not take low-scale research into account, pointing out regulatory uncertainties.
- UNFCCC: United Nations Framework Convention on Climate Change supports global cooperation in climate protection[6]. However, it does not contain some provisions or terms of geoengineering, such as Solar Radiation Management (SRM), so its application is uncertain in this regard.
- London Protocol: The London Protocol to the London Convention regulates marine pollution, including geoengineering measures. It relates to SRM in that it regulates ocean-based interventions[7]. Its application is still limited in that it merely regulates ocean-based means of SRM and not atmospheric or land-based approaches.
CUSTOMARY INTERNATIONAL LAW AND THE PRECAUTIONARY PRINCIPLE
Customary principles such as no harm and the precautionary principle[8] require states to avoid causing significant harm to others while managing uncertain risks with care. For SRM, these principles support stringent prior assessment, public consultation, and international notification.
Indian Law and Regulatory Gap
India continues to be considerably vulnerable to climate change, but has yet to institute specific legislation or regulations on geoengineering or SRM. Main observations:
- Environmental Protection Act, 1986: The principal Indian law on the environment empowers the government to regulate activities harmful to the environment[9] but lacks provisions for transboundary large-scale interventions like SRM.
- Biological Diversity Act, 2002: The legislation touches on access to biological resources and maintenance of biodiversity, but not climate geoengineering or its cross-border impacts.[10]
- Policy Vacuum: Since there are no legal definitions, risk assessment practices, or public participation frameworks for geoengineering research or deployment in India, the country is left with ambiguity and vulnerability to unintended local experimentation as well as foreign interferences impacting Indian soil.
WHY INDIA NEEDS SRM REGULATION
- National Vulnerability and Risk
India’s monsoon-based climate is such that any interference by domestic or foreign SRM activity can have doomsday consequences on agriculture, water, and food security. Legal certainty is required to address:
- Liability for harms from foreign SRM activities[11]
- Regulation of SRM experiments on Indian land
- Vulnerable individuals and areas protection
- Global Leadership and Sovereignty
Framing a domestic regulatory framework can position India as an international leader in the regulation of geoengineering. Effective lawmaking allows India to:
- Defend its sovereign rights and legal rights in natural resources
- Influence the formation of international norms and treaties regarding geoengineering
- Ensure that its special interests, monsoon stability, food security, and environmental justice are given priority in international agreements.
- Regulating Research and Innovation Responsibly
Though research into SRM is required for informed choices, it has to be performed within strict legal regimes ensuring public interest, transparency, and the availability of independent scrutiny. An Indian regime needs to ensure:
- Detailed analysis of environmental impacts
- Consultation and agreement with the public and Indigenous peoples
- Notification to the global community for any project that may have cross-border implications
PATHWAYS TO REGULATION: DOMESTIC AND INTERNATIONAL OPTIONS
Domestic Legal Pathways
- Enforce amendments in the Environmental Protection Act and related legislation to include geoengineering by name, with clear provisions for risk assessment, liability, and public hearings.
- Enact a standalone Geoengineering Law with clear conditions for research, field experiments, and deployment.
- Interim directives by the Ministry of Environment, Forest and Climate Change to regulate academic and commercial geoengineering research.
International Lobbying
India needs to be an active player on global forums (UNFCCC, CBD meetings, G20, etc.) towards:
- Raising greater demand for a global treaty or protocol on geoengineering based on prior informed consent to all the states potentially affecting them
- Establishing open science platforms and shared risk management
- Ensuring legal agreements are based on justice, equity, and poor countries
Balancing Research Freedom and Precaution: Legal Insights
The legal solution is to allow scientific research without permitting careless or rash application of SRM.
- Research Freedom: Indian law must delineate that scientific research, such as modelling and lab experiments, is still included, but field experiments must be under strict preapproval.
- Precautionary Oversight: The precautionary principle must guide policy: no absolute scientific certitude is a basis for disregarding the potential of SRM for irreparable or catastrophic damage.
CONCLUSION
India stands at a regulatory crossroads. Its vulnerability to international climate change, rate of scientific progress, and lack of geoengineering law present risk and promise. Law, as a social architecture of caution, justice, and responsibility, can spearhead. India has to create solid domestic regulation simultaneously and guide the world toward an international, binding agreement dedicated to the regulation of geoengineering, pursuing innovation, equity, and earth stewardship. Only then would the country be able to see to it that the promise of Solar Radiation Management would not be a Pandora’s box for its people and the world.
Author(s) Name: Abinesh M (Vinayaka Mission’s Law School)
References:
[1] United Nations Conference on the Human Environment (Stockholm Declaration) (1972), Principle 21.
[2] United Nations Conference on Environment and Development (Rio Declaration) (1992), Principle 2.
[3] Alan Robock, ‘20 Reasons Why Geoengineering May Be a Bad Idea’ (2008) 64(2) Bulletin of the Atomic Scientists 14.
[4] Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD) (adopted 10 December 1976, entered into force 5 October 1978) 1108 UNTS 151, art I.
[5] Conference of the Parties to the Convention on Biological Diversity, ‘Decision X/33: Biodiversity and Climate Change’ (29 October 2010) UN Doc UNEP/CBD/COP/DEC/X/33.
[6] United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107.
[7] 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Protocol) (adopted 7 November 1996, entered into force 24 March 2006).
[8] Vellore Citizens Welfare Forum v Union of India (1996) 5 SCC 647 (SC).
[9] The Environment (Protection) Act 1986, ss 3, 6.
[10] The Biological Diversity Act 2002
[11] Indian Council for Enviro-Legal Action v Union of India (1996) 3 SCC 212 (SC).
