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STRIVING FOR A MORE LEGALLY ENERGETIC INDIA

An article on Renewable Energy & the Laws governing it in India

Introduction

Energy and Infrastructure law in India is a nascent and growing field. With the increasing awareness towards global warming and the country’s aim to adhere to the Sustainable Development Goals set by the United Nations we see a transition from the conventional sources of energy (oil/coal) to renewable sources of energy, although at a pace where the transition is with and comfort to the country.

In this essay we will look at the regulations around Renewable Energy in India. Are the rules and regulations adequate to start this transforming journey? Or do we require a stronger boost from the government. The applicability of energy legislation in the Indian judiciary.

 Regulations Governing Energy Law

The electrical sector in India is primarily governed by the Electricity Act, 2003 and Energy Conservation Act, 2001. The Electricity Act consolidates the legislation regarding the production, transmission, distribution, trading, and utilization of electricity, as well as measures aimed at promoting the development of the electrical industry. The Energy Conservation Act, 2001 establishes the regulatory structure for the effective utilization and preservation of energy.

The Ministry of Power is responsible for developing electrical energy, while the Ministry of New and Renewable Energy is responsible for promoting renewable energy resources in the country to support environmentally sustainable growth. To develop inter-ministerial coordination and to ensure expert assistance, the Ministry of New and Renewable Energy released the draft Renewable Energy Act in 2015. The draft proposes the establishment of the National Renewable Energy Committee and National Renewable Energy Advisory Group to that effect.

 Energy regulation framework, sufficient or not?

For a developing nation, it is crucial to have a robust and up-to-date legal framework that regulates energy and infrastructure development in the country. In recent years, the Indian government has been advocating for reforms in the Energy and Infrastructure sector. Significant advancements in the energy and infrastructure industry are expected in the coming years. These innovations will be driven not just by government policies but also by the needs and expectations of the general public. The focus on renewables sharpened again in the backdrop of COP28 and the sector also witnessed a revival in M&A as a consequence of the increasing economic activity. However, legislative and regulatory developments in the renewable energy sector proved to be a mixed bag – while the state of Punjab’s proposed law allowing redetermination of tariffs under long-term power purchase agreements[1] was concerning from an investor and lender perspective, the Ministry of Power’s rules on the must-run status of renewable power plants and change in law provided welcome clarity.

 

Judicial Applicability

In the Glasgow Climate Summit of 2021, India announced moving 40% of its power generation to renewable energy sources by the year 2030, whereas 60% of such generation of power was to be via solar energy[2]. However, the government neglected to take into consideration and plan for the technological trash that such a move to solar energy would entail. The transition to power generation through solar energy sources at the expense of rising technological waste renders worthless the purpose of environmental conservation.

Recognizing the gravity of the situation, vide order dated February 14, 2022, the National Green Tribunal directed for the constitution of a Joint Committee, which is to comprise of Secretary of the Ministry of Environment, Forest & Climate Change (MoEF & CC), and the Ministry of New & Renewable Energy (MNRE) to suggest an action plan for sound management of electronic waste generated by discarded solar panels.

In the Great Indian Bustard judgment in 2021[3], the Supreme Court of India has recognised the existence of a fundamental right to be free from the adverse impacts of climate change.

The central issue at stake was limiting the adverse impacts of renewable energy projects on the bustard. As rightly noted by conservationist Debadityo Sinha, the judgment approaches the central issue as presenting two competing choices, i.e., either protecting biodiversity or allowing mitigative climate action. Furthermore, the recognition of the right is also contextualised in this approach, which juxtaposes biodiversity protection and mitigative climate action. Accordingly, the right so recognised only relates to protecting humans’ interests against climate change. As we advance, adopting an alternative approach could preclude this conundrum. This approach is: utilising the just transition framework.

In this case, the Supreme Court has not only recognized the need for transitioning from conventional sources of energy to better and environmentally protective sources but also is looking at a holistic approach towards the transition.

Conclusion

In conclusion, the trajectory of energy and infrastructure law in India reflects a nation poised at the cusp of transformative change. As the world grapples with the imperative of sustainable development, India’s commitment to renewable energy sources underscores its determination to align with global goals. The regulatory landscape, anchored by statutes like the Electricity Act, 2001, Energy Conservation Act, 2003 & The Renewable Energy Act, 2015 sets the framework for progress. However, the journey towards a greener future is not without its challenges. While governmental initiatives signal a promising shift, the need for robust legislation and regulatory mechanisms remains paramount. Moreover, the intersection of energy law and environmental protection underscores the complexity of the task at hand. Judicial interventions, as evidenced by recent landmark judgments, highlight the judiciary’s pivotal role in navigating these complexities and ensuring a balanced approach. As India charts its course towards a future powered by renewables, it must continue to leverage legal frameworks, judicial oversight, and stakeholder engagement to realize its vision of sustainable development

[1] Joshi, Arjun. “Punjab Passes Bill in Legislative Assembly to Renegotiate Renewable Energy Tariffs.” Mercomindia.com, 12 Nov. 2021, www.mercomindia.com/punjab-renewable-energy-tariffs-renegotiation-bill.

[2] High Time to formulate a sound solar waste management policy: NGT takes suo motu cognizance, SCC ONLINE BLOG, July 25, 2022, https://www.scconline.com/blog/post/2022/07/25/high-time-to-formulate-a-sound-solar-waste-management-policy-ngt-takes-suo-motu-cognizance/.

[3] M.K. Ranjitsinh v. Union of India, 2021 SCC OnLine SC 326