Great Indian Bustard Conservation vs. Renewable Energy: Supreme Court Modifies Order on Power Lines (21 March 2024)

Date of the Judgment: 21 March 2024
Citation: 2024 INSC 280
Judges: Dr Dhananjaya Y Chandrachud, CJI, J B Pardiwala, J, Manoj Misra, J
Can the urgent need to protect critically endangered species like the Great Indian Bustard (GIB) coexist with India’s commitment to renewable energy? The Supreme Court of India recently addressed this critical question, modifying its earlier order that imposed restrictions on overhead power lines in areas inhabited by the GIB. The Court balanced the need to protect the GIB with India’s international commitments to combat climate change through renewable energy. The judgment was authored by Chief Justice of India, Dr. Dhananjaya Y Chandrachud, with Justices J B Pardiwala and Manoj Misra on the bench.

Case Background

The case originated from a writ petition filed to protect the Great Indian Bustard and the Lesser Florican, both critically endangered species. The GIB, native to southern and western India, particularly Rajasthan, has seen a rapid population decline due to habitat loss, hunting, and disturbance. The petitioners sought urgent measures, including installing bird diverters, halting new projects, and dismantling power lines in critical habitats.

The petitioners also sought directions to protect grasslands, prevent their classification as wastelands, and involve the Ministry of Defence in conservation efforts. Additionally, they requested the appointment of an Empowered Committee to oversee the implementation of the Court’s directions.

Timeline

Course of Proceedings

Initially, the Supreme Court, on 19 April 2021, imposed restrictions on setting up overhead transmission lines in a large area of about 99,000 square kilometers to protect the GIB. The Court also appointed a committee to assess the feasibility of laying high voltage underground power lines. However, the Union Government sought modification of this order, citing adverse implications for the power sector, India’s international commitments to renewable energy, and the technical impracticality of undergrounding high voltage power lines.

Legal Framework

The judgment references several key legal provisions and international agreements:

• Article 32 of the Constitution of India: This article grants the Supreme Court the power to issue directions or orders for the enforcement of fundamental rights.
• Article 48A of the Constitution of India: Directs the State to protect and improve the environment and safeguard forests and wildlife.
• Article 51A(g) of the Constitution of India: Stipulates the duty of every citizen to protect and improve the natural environment.
• Article 21 of the Constitution of India: Guarantees the right to life and personal liberty, which has been interpreted to include the right to a clean environment.
• Wild Life (Protection) Act 1972: Provides legal protection to wildlife species, including the GIB, which is listed in Schedule I.
• United Nations Framework Convention on Climate Change (UNFCCC): An international treaty aimed at stabilizing greenhouse gas concentrations.
• Kyoto Protocol: An international agreement linked to the UNFCCC, obligating parties to establish binding emission reduction targets.
• Paris Agreement: An agreement under the UNFCCC, mandating that each party communicate a nationally determined contribution every five years.
• Energy Conservation Act 2001, Section 14(w): Empowers the Central Government to provide for a carbon credit trading scheme.

The Court emphasized that while there isn’t a single law for climate change, the right to a clean environment and against the adverse effects of climate change is derived from Articles 14 and 21 of the Constitution.

Arguments

The arguments presented before the Supreme Court were multifaceted, addressing both the conservation of the Great Indian Bustard and the development of renewable energy.

• Petitioners’ Submissions:
  • The petitioners emphasized the critical need to protect the GIB from extinction, citing habitat loss and the dangers posed by overhead power lines.
  • They argued for the implementation of an emergency response plan, including the installation of bird diverters, a ban on new projects, and the dismantling of existing power lines near critical habitats.
  • They also sought the protection of grasslands and the appointment of an Empowered Committee to oversee conservation efforts.
• Union of India’s Submissions:
  • The Union Government argued that the reduction in the GIB population began before electrification and transmission lines, attributing it to factors like low birth rates, poaching, and habitat destruction.
  • They contended that laying high voltage power lines underground is practically impossible and that the blanket ban on overhead lines would severely impact India’s renewable energy targets and international commitments.
  • The Union Government highlighted India’s commitment to reducing its carbon footprint and transitioning to renewable energy sources, including solar installations.
  • They also detailed the steps taken for GIB conservation, including captive breeding programs and habitat improvement initiatives.
  • The government argued that a blanket ban on overhead transmission lines would not be feasible and would not achieve the stated purpose of GIB conservation.

The innovativeness of the arguments can be seen in the Union of India’s submission that a blanket ban on overhead lines would hinder India’s international commitments to renewable energy and that undergrounding high voltage lines is not technically feasible. This argument brought a new perspective to the issue, highlighting the conflict between conservation and development.

Submissions Table

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section but the main issue before the court was:

1. How to balance the conservation of the Great Indian Bustard with India’s commitment to promoting renewable energy, particularly solar power?
2. Whether the earlier directions of the Court for undergrounding all power lines in the priority and potential habitats of GIB requires modification?

Additionally, the court also considered the technical feasibility of undergrounding power lines and the impact of such measures on India’s renewable energy goals.

Treatment of the Issue by the Court

Authorities

The Supreme Court relied on several authorities, including international conventions, previous judgments, and reports, to arrive at its decision.

Judgment

The Court considered the following authorities in its reasoning:

• M.C. Mehta v. Kamal Nath (2000) 6 SCC 213*: The Court used this case to highlight the importance of interpreting environmental provisions in light of Article 21, which protects the right to life.
• Virender Gaur v. State of Haryana (1995) 2 SCC 577*: This case was cited to emphasize that the right to life includes the right to a clean environment.
• Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd. (2008) 13 SCC 30*: This was used to support the idea that international conventions should be considered when domestic laws are interpreted.
• Apparel Export Promotion Council v. A.K. Chopra (1999) 1 SCC 759*: This case was used to reinforce the idea that international instruments should be given effect by the courts.

What weighed in the mind of the Court?

The Supreme Court’s decision was influenced by several factors, including the need to balance environmental conservation with sustainable development, the technical impracticality of undergrounding high voltage power lines, and India’s international commitments to renewable energy. The Court emphasized that the conservation of the GIB and the promotion of renewable energy are not mutually exclusive goals but rather interconnected objectives that must be pursued simultaneously.

The Court was also concerned about the potential adverse impacts of a blanket ban on overhead power lines on India’s renewable energy targets and the health of the local population.

The Court also considered the importance of India’s commitment to international environmental agreements, such as the Paris Agreement, and the need to reduce its carbon footprint.

The Court also took into consideration the various factors that led to the reduction in the population of the GIB, such as low fecundity, fragmentation, habitat loss, predators, and loss of prey.

The Court also considered the technical difficulties and high costs associated with undergrounding high voltage power lines.

The Court also noted that the area in which undergrounding was directed to be implemented is larger than many states in India, and that undergrounding of cables in such a large area has not been attempted globally.

The Court also noted that the same area contains the lion’s share of the potential areas from which wind and solar energy may be harnessed, and that if the remaining potential remains untapped, an additional 93,000 MW of coal would be required in the future.

The Court also considered the reports prepared by the Wild Life Institute of India, identifying priority, potential, and additional important areas for the GIB.

The Court also considered the fact that the decision on whether to convert the overhead power transmission lines into underground lines is a matter of environmental policy.

The Court also noted that it must conduct judicial review while relying on domain experts.

The Court also considered the fact that the installation of sub-standard bird diverters would give the impression that conservation efforts are underway even as such efforts are destined for failure.

Logical Reasoning

The Court considered alternative interpretations, such as maintaining the blanket ban on overhead power lines. However, this was rejected due to the technical challenges, high costs, and the potential negative impact on India’s renewable energy goals. The Court also considered the fact that the decision on whether to convert the overhead power transmission lines into underground lines is a matter of environmental policy and that the Court must conduct judicial review while relying on domain experts.

The final decision was reached by appointing an expert committee to assess the situation and recommend appropriate measures. This approach allows for a more nuanced and balanced outcome.

The Court’s decision was based on the following reasons:

• The need to balance the conservation of the GIB with India’s commitment to renewable energy.
• The technical impracticality and high costs of undergrounding high voltage power lines.
• The potential negative impact of a blanket ban on overhead lines on India’s renewable energy targets.
• The importance of India’s international commitments to climate change.
• The need for a holistic approach that considers all aspects of the issue.
• The need for expert opinion in environmental policy.

The Court quoted the following from the judgment:

“The delicate balance between the two aims must not be disturbed. Rather, care must be taken by all actors including the state and the courts to ensure that both goals are met without compromising on either.”

“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 decision on whether to convert the overhead power transmission lines into underground lines is a matter of environmental policy. While adjudicating writ petitions which seek reliefs which are of the nature sought in the present case, this Court must conduct judicial review while relying on domain experts.”

There were no dissenting opinions in this case. All three judges on the bench concurred with the final decision.

The Court’s reasoning involved a careful consideration of the competing interests of environmental protection and sustainable development. It recognized that a blanket ban on overhead power lines was not a feasible solution and that a more nuanced approach was needed. The Court’s decision to appoint an expert committee reflects a commitment to evidence-based policymaking and a desire to find a solution that balances the needs of all stakeholders.

The potential implications for future cases are significant. The judgment sets a precedent for balancing environmental conservation with sustainable development. It also highlights the importance of expert opinions in environmental policy and the need for a holistic approach that considers all aspects of the issue.

The Court did not introduce any new doctrines or legal principles but rather applied existing constitutional principles and international obligations to the specific facts of the case.

Key Takeaways

• The Supreme Court has emphasized the need to balance the conservation of endangered species with the promotion of renewable energy.
• A blanket ban on overhead power lines is not a feasible solution and a more nuanced approach is needed.
• Expert opinions are crucial in environmental policy decisions.
• India’s international commitments to climate change must be considered.
• The Court has appointed an expert committee to assess the situation and recommend appropriate measures.

Directions

The Supreme Court issued the following directions:

• An Expert Committee was constituted to determine the scope, feasibility, and extent of overhead and underground electric lines in priority areas.
• The Committee will identify measures for the long-term survival of the GIB, including habitat restoration and anti-poaching initiatives.
• The Committee will evaluate the impact of climate change on GIB habitats and develop adaptive management strategies.
• The Committee will identify suitable options for laying power lines in the future, balancing conservation with renewable energy goals.
• The Committee was directed to engage with relevant stakeholders, including government agencies, environmental organizations, and local communities.
• The Committee was directed to review conservation efforts in similar contexts globally.
• The Committee was directed to implement a monitoring and research program to track GIB populations and habitat dynamics.
• The Committee was directed to assess the efficacy of bird diverters and lay down specifications for them.
• The injunction imposed in the order dated 19 April 2021 was recalled.
• The Union of India and the concerned ministries were directed to implement the measures detailed in the judgment.

Development of Law

The ratio decidendi of this case is that the conservation of endangered species and the promotion of renewable energy are not mutually exclusive goals and that a balanced approach is required. The Court also held that a blanket ban on overhead power lines is not feasible and that expert opinion is crucial in environmental policy decisions. This case modifies the previous position of law, which imposed a blanket ban on overhead power lines, by recalling the same.

Conclusion

The Supreme Court’s judgment in this case demonstrates a balanced approach to environmental conservation and sustainable development. By modifying its earlier order and appointing an expert committee, the Court has sought to find a solution that protects the critically endangered Great Indian Bustard while also promoting India’s renewable energy goals. This decision underscores the importance of evidence-based policymaking and the need to consider all aspects of an issue before making a decision.