Nepal’s Supreme Court has sought a written response from the government on a case registered on contempt of court for not making laws as per the mandamus order given by the apex court on making laws relating to climate change.
A single bench of Justice Bal Krishna Dhakal of the Nepal Supreme Court has sought written response from the government within 15 days on why the climate change related laws were not drafted. Advocate Padam Bahadur Shrestha had lodged contempt of court case two weeks ago stating that the government is yet to make laws on climate change as per the SC’s mandamus order given five years ago.
In the mandamus order, the Supreme Court of Nepal had asked the government to immediately formulate integrated laws on climate change since a separate law was needed to address the problems caused from the climate change, and for resilience and mitigation.
On 23 August 2017, Advocate Shrestha had filed an application to compel the government of Nepal to enact a new climate change law. When the authorities failed to respond, Shrestha petitioned the Supreme Court of Nepal to issue a writ of mandamus or other appropriate order to enact such a law. According to the petition, the Environmental Protection Act of 1997 was inadequate because it did not address climate change. Shrestha contended that Nepal’s Climate Change Policy of 2011 had not been implemented, and as a result, the humans and ecosystems of Nepal had experienced grave climate impacts.
Shrestha had alleged that the government’s failure to adequately address climate had violated the rights to a dignified life and a healthy environment guaranteed in the Constitution of Nepal, and violated Nepal’s commitments under the UNFCCC and the Paris Agreement. He claimed that the existential threat created by climate change impaired his constitutional rights to (i) live with dignity, (ii) live in a healthy and clean environment, (iii) access basic healthcare services, and (iv) food and protection from starvation. He further argued that a specific climate change law was needed as the Environment Protection Act made no provision for climate change mitigation and adaptation. He contended that the gap must be rectified immediately.
Writ of mandamus
In a decision issued on December 25, 2018, the Supreme Court found that action was needed to ensure climate justice, sustainable development, and intragenerational and intergenerational justice. Nepal’s commitments under multilateral climate change treaties and the operation of the 2015 constitution required action. Nepal’s Constitution obligates the government to protect the environment, and thus, the court concluded, climate change impaired the petitioner’s constitutional right to a dignified life and a clean and healthy environment.
The Court ordered the government of Nepal to enact a new climate change law to (i) mitigate and adapt to the effects of climate change, (ii) reduce the consumption of fossil fuels and promote low carbon technologies, and (iii) develop scientific and legal instruments to compensate those harmed by pollution and environmental degradation, among other provisions.
The Supreme Court of Nepal issued a writ of mandamus and ordered the government to pass and implement a new climate law to effectuate Nepal’s commitments under the Paris Agreement and obligations under the Constitution. The Supreme Court of Nepal further reasoned that the Environmental Protection Act of 1997 was inadequate to address needed climate change mitigation and adaptation, and ordered the government to implement existing national climate policy until the new law would be enacted.
Further, pending passage of the climate change law, the court directed the government to implement its climate change policy, National Adaptation Programme of Action 2010, and National Framework on Local Adaptation Plans for Action 2011.
Subsequent to the Supreme Court decision, the government of Nepal passed the Environment Protection Act of 2019 and the Forests Act of 2019.
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