Climate Change Legislation in Pakistan – A Road to Nowhere

Climate Change Legislation in Pakistan – A Road to Nowhere

Pakistan’s romancing of climate change action spans over two decades from the first time it ratified the United Nations Framework Convention on Climate Change (UNFCCC) back in 1994 and became an official partner in the international commitment to bring down green house gas (GHG) emissions in the atmosphere. From subsequent endorsements of the goals of Kyoto Protocol 1997 and Paris Agreement 2015 to passing a National Climate Change Policy (NCCP) in 2012, followed by a Framework for Implementation of Climate Change Policy (2014-2030) and most recently, the Climate Change Act of 2017, which after a long wait provided the regulatory framework for Pakistan’s climate change strategy, this confused relationship continued to develop sluggishly. However, during the same period, the implications of climate change for Pakistan changed drastically; from being a tiny voluntary partner in the developed world’s wake-up to rectify its collective damage to the atmosphere, we are known today as the world’s 7th most impacted country by climate change. The tragedy is that despite all of these developments, Pakistan’s climate change strategy remains elusive and without any direction.

International Agreements

Pakistan ratified the Kyoto Protocol (KP) in 2004 and the Paris Agreement in 2016, both containing mandatory goals for the signatories. KP mandated industrialized countries to cut down their GHG emissions (during 2008-2012) by 5% below their levels in the 1990s and gave developing countries the option to comply voluntarily. Subsequently and according to the latest and most ambitious commitment under the Paris Agreement of 2015, all member countries are required to implement their nationally determined contributions (NDCs) to reduce GHG emissions and bring down the rise in global temperatures from 2°C to 1.5°C by 2020. This entails introducing new laws catering to climate change or revising existing laws and/or policies to keep pace with the new global commitments, as well as developing a monitoring mechanism to ensure implementation of the Paris Agreement. In Pakistan, the Climate Change Act of 2017 came as the first primary legislation dealing with climate change and is especially relevant in the context of the above international agreements as it empowers the federal government to make rules to give effect to the the international commitments.

Climate Change Act 2017

The 2017 Act establishes the Pakistan Climate Change Council (PCCC) to approve, oversee and monitor the implementation of adaptation and mitigation policies by federal and provincial ministries, divisions, departments and agencies across all sectors of the economy. To complement the PCCC, the Act establishes a separate body called the Pakistan Climate Change Authority (PCCA) tasked with researching, preparing and advising the government regarding legislative, policy and implementation measures related to climate change. This includes formulating comprehensive adaptation and mitigation policies and measures designed to primarily do the following:

i) address the effects of climate change,
ii) meet Pakistan’s obligations under international conventions and agreements relating to climate change, and
iii) give effect to the national climate change policy.

The problem with the Act is that while it establishes federal bodies with the specific task of implementing climate change action, it falls embarrassingly short of introducing effective measures to enable these bodies to make a difference. For example, one of the functions of the PCCA is to formulate and – after the approval of PCCC – coordinate implementation of low carbon and green growth strategies. In the absence of an express reference to set out carbon plans (emissions reduction targets), this may be taken as the closest alternative accounting for it. Assuming that is true, this provision is rendered ineffective as there is no response time given for the adaption of these strategies which allows the government to delay their implementation.

In contrast, UK’s Climate Change Act 2008 sets a great example of a responsive legislation designed to achieve real, tangible results and is more likely to achieve targets of the Paris Agreement despite the fact that it pre-dates the Agreement as opposed to Pakistan’s Climate Change Act which was made in response to the Agreement to “meet Pakistan’s obligations under international conventions relating to climate change”.

A recent study by Frankhauser et al. notes how UK’s Climate Change Act has been instrumental in advancing the country’s climate change policy over the last ten years since its promulgation. It does so by introducing carbon budgeting to monitor and restrict carbon emissions, setting long term emissions targets and putting in place a robust mechanism to ensure the country’s sustained commitment to the cause through continual adaptation planning based on 5 year long cycles that begin with a risk assessment and are followed by an adaptation plan to address the risks. The Act also introduces strategic measures such as establishing an independent body called the Committee on Climate Change for evidence-based, non-political decision making and framing the mandatory requirement of annual statements of carbon emissions to be laid out before the Parliament to prioritize climate policy on the political agenda. In short, the Act is dynamic, effectual and pragmatic in nature. While the Pakistan’s 2017 Act only establishes federal bodies to deal with climate change and defines the scope of their duties, its UK counterpart gives a comprehensive framework for climate action with economy-wide statutory targets that give a coherent yet dynamic roadmap to achieve long-term climate goals, thus making it a more purposeful legislation.

It follows from the above comparison that Pakistan needs to step up its approach to climate change. A key takeaway from the UK’s Act is that a good climate law sets science based targets and gives a coherent yet flexible plan to see it through. No real climate action can be guaranteed in the absence of set standards, however, these standards must be followed by prudent monitoring and enforcement. Incidentally, in terms of policy, environmental standards including emission standards and the National Environmental Quality Standards (NEQs) are a central theme in the Pakistan Environmental Protection Act 1997, which to date serves as the primary legislation on environmental protection in Pakistan. The Act prohibits the discharge or emission of any effluent, waste, air pollutant or noise in any amount, concentration or level exceeding the NEQs or any other standards put in place by the federal or provincial environmental protection agencies (EPAs). Even more interestingly, the Act authorizes the federal government to levy a “pollution charge” on any person who fails to comply with the NEQs. Following this, the federal government promulgated the Pollution Charge for Industry (Calculation and Collection) Rules, 2001 which set out separate NEQ parameters for liquid effluents and gaseous emissions for the application of the charge.

Similarly, the National Environmental Quality Standards (Self-Monitoring and Reporting by Industry) Rules, 2001 introduced a new system for industries to routinely monitor their environmental impact and report that data to the relevant environmental protection agencies (EPAs). These Rules classify industrial units into categories A, B and C for liquid effluents and gaseous emissions each and define the specified reporting standards applicable to them. On paper all of this seems to be a comprehensive monitoring framework, however, in practice this is as ineffective as it gets. Almost none of the industries are reporting according to the standards applicable to them and even in the case of those that are doing so, there is no mechanism to check for violation of these rules. In the absence of efficacious action for enforcement, the gap between the targets set in law and the policies put in place to deliver them keeps getting wider.

National Climate Change Policy 2012

Over the last 15 years, the most comprehensive approach to climate change has been presented in the National Climate Change Policy, 2012 (NCCP). The objectives of the NCCP include mainstreaming of climate change in all sectors of the economy and minimising of risks associated with foreseeable events of climate change, such as floods and drought. While the NCCP fails to set any clear targets for national measures, it does in other respects set out a decent framework for future action plans and practice. It has been six years since its promulgation, but except for a few measures (such as the Billion Tree Campaign in Khyber Pakhtunkhwa that restored 350,000 hectares of forest land) the federal and provincial governments have remained largely inactive to implement the policy objectives.

Overall, the NCCP is successful in setting forth a road map for identifying the national factors and causes adding to the adversity of climate related problems and offering possible adaptation and mitigation solutions to address them. It makes some key recommendations which if taken seriously can prove extremely consequential to counter climate change.

However, the NCCP itself is a “soft low” and its non-binding nature means that it does not provide efficacious tools/mechanism for enforcement.

Secondly, to have any effect, the NCCP requires integration into existing policies of different sectors such energy, agriculture and forestry.

Additionally and most importantly, the NCCP lacks urgency and is in some ways incompatible with international agreements. For instance, the policy for the energy sector, which primarily focuses on exploiting untapped coal reserves, is wholly at odds not only with the Paris Agreement but also with Pakistan’s nationally determined contributions (NDCs – which promised developmental strategy aiming at minimum possible carbon footprints) and the Climate Change Act of 2017 (which talks about reduction of GHG and implementation of low carbon and green growth strategies). While the rest of the world is working on phasing out the highly polluting fossil fuel (coal), Pakistan’s climate change policy in contrast talks about plans for increased reliance on it.

Nonetheless, despite this incongruity, the NCCP goes on to propose mitigation actions to reduce GHG emissions from such power generation through measures such as designing new coal-fired power stations in a way that they can be easily retro-fitted to capture and store carbon dioxide and introducing carbon tax on the use of environmentally detrimental energy generation from fossil fuels. Regulating emissions in the energy sector is even more relevant in the context of the last five years which saw an exponential increase in the reliance on coal for power generation in Pakistan. This shift to coal from the depleting local reserves of natural gas may be a big factor in the increased diminution of air quality in and around urban centers and perhaps also the cause of the thick haze occupying our skies.

Transport is another major contributor to the increased carbon emissions in Pakistan. The NCCP dictates the setting up of mass transit facilities in urban centers to curtail emissions, but this will achieve nothing if it is not integrated with the policy for urban planning. The routes of public transportation need to be carefully planned to cater to the growing urban sprawl. The public transport system in Pakistan has been more focused on the city center rather than aimed at connecting suburbs, therefore mass transit has failed to reduce the number of vehicles on the road. The NCCP also talks about enforcing strict vehicle emission standards. Incidentally, we do have National Environmental Quality Standards (NEQs) for motor vehicle exhaust (the maximum permissible limit for smoke is 40% or 2 on the Ringlemann Scale during engine acceleration mode and for carbon dioxide it is 6%), but are these standards ever monitored? Black exhaust smoke is a common sight across the country, but has anyone ever heard of the authorities requiring necessary repairs for such vehicles?

Framework for Implementation of Climate Change Policy (2014-2030)

As a follow-up to the NCCP, the government introduced the Framework for Implementation of Climate Change Policy (2014-2030) in order to mainstream climate change concerns into decision-making and promote climate compatible development (an extremely important point that does not appear to have made its way to implementation). Meant to serve as a go-to document for preparing detailed provincial and local adaptation action plans, the Framework discusses adaptation plans for each sector separately and proposes actions along with an implementation timeframe for each action, which is divided into the following categories:

  • Priority Actions (PA) : within 2-years;
  • Short-term Actions (SA): within 5-years;
  • Medium-term Actions (MA): within 10 years; and
  • Long-term Actions (LA): within 20-years.

Considering the lapse of time since the Framework has been introduced, the period for PA has already expired while that for SA is close to expire very soon. What is the point of such long winded documents on “implementation” if the timelines are openly disregarded?

Take adaptation plans for the water sector for instance, wherein the development of regulatory frameworks and water licencing to control groundwater depletion and degradation and ensuring its rational exploitation is listed as a priority action. On the contrary, the exploitation of groundwater has continued, with the Supreme Court of Pakistan only recently having proposed the EPAs to increase tariffs for groundwater usage by factories. Similarly, the installation of waste water treatment plants at all urban sewerage systems is listed as a short term action. With only one year left until the expiry of the time period for SA, how many water treatment plants have been installed anywhere in Pakistan? Until last year, less than 8% of urban waste water was being treated.

Legal Issues

Following the Eighteenth Amendment to the Constitution, environment has become the exclusive subject of the provinces to legislate on (and so has climate change being a component of the former). However, the power to execute and ratify international treaties, conventions and agreements remains with the federal government. This creates a gap in the implementation of the global climate change goals in Pakistan for two reasons:

(i) The federal government’s ratifying of international treaties on climate change is eventually dependent on provinces for implementation; and

(ii) While we do have a federal Act incorporating international treaties into Pakistan’s climate change strategy, there is no statutory mechanism to translate these international treaties into enforcement in the provinces. The provincial environmental protection Acts that were passed after the Eighteenth Amendment and which for the most part have been along the same lines as the federal law i.e. the PEPA 1997, do not cater to climate change. This gap could have been partly covered had the following recommendations of the NCCP been implemented:

  • Establishing Climate Change Cells in sectoral federal and provincial ministries;
  • Taking necessary measures to redesign administrative structures and procedures of federal and provincial EPAs and Planning and Development Division to integrate climate change concerns into Initial Environmental Assessment processes.

However, even after 6 years of the NCCP being inked (since 2012), the provincial laws/bodies have not been updated/restructured to cater to climate change. This essentially renders the NCCP useless.

The Role of Courts

A key component for translating existing policies, rights and legislation on climate change into enforcement is the role of superior courts in holding accountable the government and all industries adding to GHG emissions. Over the last few years, several petitions have been brought before the courts (particularly the Green Benches of High Courts) and the Environmental Tribunals established under the provincial environmental protection Acts, relating to the discharge of liquid effluents and GHG emissions by industrial units. However, only recently has climate change been used as a part of the main arguments in these petitions. Nonetheless, the number of cases dealing with climate change is minimal, with only one reported judgment on the matter. In the last two years, there has also been an increase in public interest litigation concerning the state of forests in Pakistan in the context of climate change but these cases are still pending. The good thing is that these cases have acquainted judges with climate change arguments and there is hope that the courts will be more proactive in ensuring implementation of the law and policies.

The case of Asghar Leghari vs. Federation of Pakistan [2018] dealt specifically with the lack of action on the NCCP and Framework. The petitioner, an agriculturist by profession, argued that he could not sustain his livelihood in the wake of inaction by the government to conserve water or move to heat resilient crops and that it was a breach of his fundamental rights (in particular Articles 9 and 14) guaranteed by the Constitution of Pakistan.

The inference to Article 9, the right to life and liberty, and Article 14, the right to dignity and privacy of home, is not new for public interest litigation for environmental protection in the absence of an express and justiciable right in law, thanks to the extremely helpful precedent set by the Supreme Court of Pakistan in the case of Shehla Zia vs. WAPDA [1994]. However, this was arguably the first time that it was used in the context of climate change.

As a result, the then Chief Justice of Lahore High Court, Syed Mansoor Ali Shah, constituted a Standing Committee on Climate Change to make proposals to assist the federal and provincial governments and the Council of Common Interests (Ministry of Inter-Provincial Coordination) to implement the NCCP and Framework. In this way the Standing Committee assumes the role of an advisory body (similar to the UK’s CCC), however, unlike the UK’s CCC which comprises a Chair and eight independent members, the Standing Committee has 50% representation from the executive which raises concerns over the transparency of its recommendations and subsequent monitoring to ensure implementation.

Way Forward

While all of the laws, policies and rules discussed above indicate to an appreciable degree the legislators’ intent to counter climate change, we cannot and should not hide from the fact that the combined response has been highly ineffective for the most part.

To begin with, the recent trends in energy consumption call for a revision of Pakistan’s carbon footprint narrative. We are emitting a lot of GHG and that is physically evident from the condition of our skies, the air quality indices of our urban centers and the levels of contaminants in our waters. All of this calls for a change in our approach to climate change accompanied by an urgent and proportional response.

Climate change is a matter of national security for Pakistan and our law needs to set clear milestones for climate change action and hold the government responsible if it fails to fulfill its obligations. The government needs to come up with a clear plan on how climate change laws, policies, practices will be adapted in the provinces and the provinces need to integrate the government’s climate change action plan into their own detailed mitigation and adaptation plans. To ensure effective response, both the federal and provincial governments need to work in collaboration and here the PCCC established under the Climate Change Act of 2017 can play a key role.

Lastly, the case of Asghar Leghari has structured a new line of judicial process to supervise the government’s response to climate change, thereby, positioning domestic courts as a pivot in implementing international goals for climate change action. Collective effort by all of these stakeholders will give Pakistan a strong and meaningful legal basis to address climate change.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which she might be associated.

Ayda Hassan

The writer is a lawyer based in Lahore and currently serving as in-house counsel at a public sector company.



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