Lumbini

Karnali

Koshi

Sudurpashchim

Madhesh

Bagmati

Gandaki

Nepal

phase out coal-powered electricty generation by 2030 and by 31 December 2024 for power plants with an electric efficiency of less than 44%

CO2 neutral electricity production by 2050

49% GHG emissions reduction by 2030 compared to 1990 levels

95% GHG emissions reductions by 2050 compared to 1990 levels

700MW hydrocapacity in 2007, then 2035MW in 2017, then 4000 MW by 2027

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Pursuant to Article 119 of the Constitution, the Minister for Finance of the Government of Nepal shall lay before the joint sitting of both Houses of the Federal Parliament an annual estimate setting out, inter alia, an estimate of national revenue and the money required to meet the charges on the Federal Consolidated Fund. Following the coronavirus pandemic and the subsequent lockdown however, Budget Draft for the fiscal year 2021/22 was passed through an Ordinance. The petitioners in this case argued that adoption of the national budget through Ordinance was largely unconstitutional and more minutely, took contention with point no. 199 of the Draft which held that stone, gravel, and sand was to be exported to reduce the country’s trade deficit following an Environmental Impact Assessment (EIA) report. 

The petitioners claimed that excavation of stone, gravel, and sand would reduce the fertile plains of the Terai and Madhesh to barren land. The major geomorphic process in Churia coupled with weak geology, heavy rainfall and tropical weathering also means that region already experiences rapid fluvial erosion. Consequently, if excavation were to go ahead, entire villages would face increased vulnerability to floods and agricultural practices indigenous to the Terai region would be lost. The petitioners argued therefore, that allowing excavation along the Chure Range would be a flagrant violation of Article 30 of the Constitution which stipulates that every citizen has the right to a clean and healthy environment. The petitioners specifically made their claim based on Chure’s increased vulnerability to climate change.

The Constitutional Bench of the Supreme Court, in this case, sided with the petitioners and held that excavation of stone, gravel and sand would be tantamount to “ecocide” and against the norm of environmental justice and inter-generational equity. The Court also acknowledged that although the State exercises permanent sovereignty over natural resources as a constituent right of self-determination, precedent set by the Court prompts that the precautionary principle be applied. The Court iterates that environmental complexity is increasing in Nepal due to climate change and urges the government to be mindful towards the life of and within the Chure and not view it solely from an economic lens. The Court also referenced that as party to several international environmental treaties, the State has a positive obligation to preserve wetlands, protect biodiversity, and curb the illegal trade of endangered species. It also referenced the UN Human Rights Council resolution 48/13 acknowledging the right to a healthy environment as a fundamental human right. In keeping with this, an interim order from the Court stopped the draft budget from going through and the Court also halted the planned excavation of the Chure range with an order of Certiorari. 

The 2017 monsoon in Nepal brought incessant rainfall within a very compressed calendar, resulting in flash floods and landslides across a vast swathe of Terai’s plains. An Initial Rapid Assessment (IRA) by the Ministry of Home Affairs showed that the disaster claimed 141 lives, injured 117 persons, displaced over 460,900 people, and left 24 missing. Damage to houses, infrastructure, and productive resources was severe with 65,000 houses destroyed and over 120,100 partially damaged.

Amarnath Jha, the plaintiff in this case, was from Saptari, the region that was perhaps worst affected by the floods. Days of unrelenting rainfall there led rivers to burst across their banks, inundating houses and blocking critical medical care for inhabitants. Jha, in his initial appeal argued that flooding and the subsequent inefficiency by the Government of Nepal to coordinate humanitarian aid and build appropriate embankments resulted in inhabitants having to drink unsafe rainwater and starve. 

The Court, taking note of this, issued an interim order which held that Article 16 of the Constitution which guarantees the right to live with dignity, Article 35 which ensures the right to basic health and emergency health services, and Article 36 as well as 37 which guarantees the right to food and shelter had been violated as a result of the government’s failure to initiate flood mapping and mitigation measures. 

Moreover, the subsequent full judgement particularly took note of how climate change will impact rainfall, snowmelt, and Glacial Lake Outburst Floods (GLOCFs) in the Himalayas leading to increased risk of flooding in urban and rural areas. As such, the judgement recalled the Government’s obligation under the United Nations Framework Convention on Climate Change of 1992 to address the impacts of climate change on water resources and agriculture, to create a comprehensive and integrated plan for the protection and rehabilitation of areas particularly affected by drought and floods. It also referenced Article 8 of the Paris Agreement, to which Nepal is party, which underscores the importance of emergency preparedness, early warning systems, and comprehensive risk assessment. In keeping with this, it also urged the Government to comply with the Sendai Framework for Disaster Risk Reduction and the Yokohama Guidelines for Natural Disaster Prevention that outlines the sovereign responsibility of each state to protect its citizens from natural disasters. 

Further, in recognizing this to be the first case of its kind and cognizant of how these disputes will likely become more common in the future, the judgement held that pursuant to Section 26 and 28 of the Environmental Protection Act, 2019 all three levels of the federal government are to be held responsible for developing policies, strategies, and action plans to reduce the adverse effects and risks caused by climate change. Finally, it emphasized the increasing interconnectedness between environment, climate change and human rights law and how the Court must exercise its authority to protect public interest and environmental justice.

In the final judgment the bench issued an order of mandamus to ensure not just immediate relief packages but also long term rehabilitation to the victims; and, to reduce the damage caused by flooding of the Khado River by constructing dams and embankments in places where there is risk of flood.

On August 23, 2017 Padam Bahadur Shrestha 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, the 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 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. 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. The petitioner 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. 

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. Article 51(g) of the Constitution of Nepal obligated the government to protect the environment. The court concluded that 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 Court 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 Court 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. Both are linked below. 

Chitwan National Park is a UNESCO World Heritage Site and is one of the last refuges for the one-horned rhinoceros and the Bengal tiger. It is also one of the only surviving natural ecosystems in South Asia and the lakes in the parkland have also been designated as a wetland of international importance under the Ramsar Convention. Owing to this, the Park has been legally protected under the National Parks and Wildlife Conservation Act and the national army has been mobilized for its protection since 1975. 

However, in late 2011, the Government began planning construction for roads through the park. This prompted the petitioner, Advocate Ramchandra Simkhada, to request the court to halt the construction of the 30-kilometer East-West Highway given that it would pass through the habitat of endangered animals and plants in the region. Following this, in 2017, UNESCO issued a formal warning that moving ahead with the project would put the Park on the World Heritage in Danger list and significantly harm the biodiversity in the region. Another letter by UNESCO’s World Heritage Committee in 2018 also detailed the inadequacies of the proposed Environmental Impact Assessment (EIA) report. 

In keeping with this, the Court ruled in 2019 that the proposed road would gravely undermine the protected species in the area and contravene the constitutional right to safe and healthy environment. The Court also specifically observed how Chitwan National Park will be adversely impacted by climate change and road construction in the region would only heighten its vulnerability. The Court utilized the Public Trust Doctrine to highlight the Government’s responsibility to protect public parkland and ruled that it is imperative therefore, that any project be carried out with due consideration for the environment and in line with the UN Framework Convention on Climate Change and the Paris Agreement. The Court also particularly made note of how, even if small, Nepal can make a meaningful contribution to curb the global impacts of climate change and reasoned how the Government must therefore be cognizant before approving catastrophic environmental projects like these for short-term gain.

An order was issued not to carry out any work related to road construction within the Chitwan National Park unless the Environmental Impact Assessment conducted in consultation and agreement with the concerned bodies including UNESCO and the Chitwan National Park Office established by law, grants permission.

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Nepal

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