Opinion | Right Against Climate Change And The Need To Go Beyond 'Greenwashing'

Last week, the Supreme Court of India passed its final judgment on the matter concerning the undergrounding of high-tension power lines in Rajasthan and Gujarat. While doing so, the court acknowledged that the 'right to be free from the adverse effects of climate change' is an essential aspect of the right to equality under Article 14 and the right to life under Article 21 of the Constitution. This observation marks a positive development and will have a huge impact on environmental jurisprudence in the country.

However, the rest of the judgment appears problematic as it backtracks on its previous order. It also brings into focus a flawed understanding of the interplay between climate change, biodiversity and development issues. 

What The Previous Order Said

In the previous order in April 2021, the court had instructed the states of Rajasthan and Gujarat to prioritise the undergrounding of high-tension cables in Great Indian Bustard (GIB) habitats, wherever feasible. The order included the undergrounding of 36 transmission lines totalling 245 km in Kutch (Gujarat) and four transmission lines of 104 km in Rajasthan. It also mandated that diverters be installed until a decision on undergrounding was taken. Notably, the court did not impose a moratorium on solar or wind power in the region but rather called for adequate measures to address threats to natural ecosystems in these sensitive areas. It further stipulated that in cases where undergrounding was not feasible, the matter should be referred to a court-constituted expert committee.

This direction was passed against the backdrop of several scientific studies that have raised alarm in recent years, including one conducted by the state-backed Wildlife Institute of India (WII) in 2018. It revealed that in and around the Desert National Park in Rajasthan alone, approximately 1 lakh birds from at least 30 different species die every year due to collisions with power lines. Specifically, the report indicated three bird mortalities per kilometre per month from low-tension lines and six bird mortalities per kilometre per month from high-tension lines in just the Thar region.

Why The Bustard Is Dying

The GIB, locally known as 'Godavan', is the State Bird of Rajasthan. Unfortunately, it's on the brink of extinction today. The open natural ecosystems in the state are the last remaining habitat for the species in the wild, sustaining nearly 100 individuals out of a global population of roughly 120. The species has become extinct in over 90% of its former range, including in protected areas of Madhya Pradesh, Karnataka and Maharashtra.

The primary reason for the alarming mortality rate of the GIB, along with other critically endangered bustard species like the Lesser Florican, is the loss of their natural habitats: open scrub forests and semi-arid grasslands. Hazards such as power lines directly impact their survival. The GIB, being the heaviest flying bird in India, faces challenges in manoeuvrability, and poor frontal vision compounds that problem, increasing the likelihood of collisions during flight. These collisions, as well as electrocution, are also common in raptors with large wingspans, such as eagles, vultures and kites, especially during perch and prey activities involving electric poles and wires.

Vague Observations

The latest Supreme Court order overlooks the ecology of desert ecosystems and the adaptability of these species. It also fails to discuss the technological advancements and cost-benefit analysis of such measures. A straightforward reading of the judgment indicates a one-sided perspective and unclear assertions. 

For example, the court noted that undergrounding transmission lines 'is not likely to benefit the conservation of the species' as factors like fecundity, fragmentation, habitat loss, predators, and loss of prey affect the GIB more. This when the WII, which reported at least six GIB deaths in the Thar region alone from 2017 to 2020, has been for years calling for the mitigation of the power line threat. The latest judgment does not provide any rational explanation to counter this scientific evidence, which was in fact used by the previous Bench. Furthermore, seeing the threat from transmission lines as separate from fragmentation and habitat loss reflects a poor understanding of the ecology.

On Undergrounding Cables

There are a few more ambiguous observations. The court has stated that underground cables pose a greater safety risk, cause downtime in power plants, and that 400 KV lines can be laid for only a maximum of 5-8 km. It also said these cables do not transmit AC power efficiently, transmission losses are five times higher, and that delays in repairing faulty cables could lead to forest fires, endangering both GIBs and the local population. 

If the court's concerns are valid, there should be no undergrounding of power cables anywhere in the country. But government policies contradict this. The Central Electricity Authority's 2018 guidelines specifically recommend that it is mandatory to lay transmission lines underground in highly populated areas. Governments across states are already undergrounding their overhead power cables. For example, in Delhi alone, approximately 8,000 km of high-tension lines are underground, while in Bengaluru, about 6,600 km of high-tension power lines are underground. In several instances, the government has also undergrounded high-tension wires to reduce bird mortality. This was seen in Kutch, where a 10-km, 60 KV transmission line was rendered underground in a wetland landscape after 400 flamingoes were reported to have died in 10 days. In such a scenario, the statements by the top court seem disconnected from reality.

The judgment further asserts that the cost of undergrounding cables would be four to five times higher, which could make harnessing renewable energy prohibitive. It's unclear whether the cost is purely monetary or includes a comprehensive cost-benefit analysis. Most safeguards and hedging instruments have associated costs, but what matters is whether they lead to greater benefits and welfare. According to some experts, the cost of undergrounding might be higher, but still, they would amount to just around 3-5% of the annual earnings from the power generated. That doesn't sound very prohibitive. One could also argue that new technologies initially cost more, but the price reduces upon scaling up. 

A Flawed View 

At the heart of the judgment is a deeply problematic factor: the forced contention between development, safeguarding biodiversity, and mitigating the impact of climate change. The judgment states, "If this Court were to direct that the power transmission lines be undergrounded in the entire area delineated above, many other parts of the environment would be adversely impacted. Other endangered species may suffer due to the emission of harmful gases from fossil fuels." The order cites that the undergrounding in the current case would have to be done in a massive area of 80,688 sq. km. But the court loses sight of the fact that the measures were supposed to be implemented only on the transmission lines that are installed linearly and are thus just 300-400 km in length. As discussed in previous paragraphs, that's a very small section compared to the length of power lines being converted underground in some cities. 

There is a dichotomy within the court's own observations. For instance, in Paragraph 61, the court acknowledges that the issue is more of an environmental policy matter, stating that it must consult domain experts and limit itself to judicial review, avoiding sweeping directives without evidence. At the same time, the court goes on to make the assertions discussed above. The judgment creates the false impression that the dispute is over choosing between solar power and GIB, when, in fact, what is being sought is only better technological intervention to minimise the impact of transmission lines.

Ignoring Nuances

While the court mentioned India's commitment to international climate change treaties on several occasions, it remained silent on India's obligations under the Convention on Biological Diversity adopted in December 2022 as part of the Kunming-Montreal Global Biodiversity Framework, as well as the UN Convention on the Conservation of Migratory Species, which in 2020 added the GIB to its list of migratory species that should be given greater protection.  

The Supreme Court's latest judgment is a significant departure from its traditional approach to environmental matters. It presents a one-sided narrative on climate change without looking into the nuances of the arguments presented to the court. Moreover, the manner in which academic arguments about the right to mitigate the effects of climate change ended up overshadowing the actual issue at hand indicates an attempt by the judiciary to 'greenwash' its own actions. 

(Debadityo Sinha is a conservationist and leads the Climate & Ecosystems team at Vidhi Centre for Legal Policy)

Disclaimer: These are the personal opinions of the author