Nepal

After the establishment of democracy in 1990, Nepal has seen an increase in public interest litigation in the judiciary of Nepal. The Supreme Court of Nepal has played a significant role in the protection of the environment. The present law on climate change and environment protection was passed after the order from the Supreme Court of Nepal. Individuals from the legal fraternity have used climate litigation as a medium to protect the right to the environment of the citizens and halt the actions of the government which promotes environmental degradation. ‘Nepal’s greenhouse gas emission is only around 0.027 percent of total global emissions’. Still, Nepal is facing various forms of environmental problems due to climate change and is ranked the fourth most vulnerable country in the world to climate change.

Cases
The climate litigation cases in Nepal have been brought against business corporations as well as against the government. However, the majority of the cases are against the government. The Constitution of Nepal in article 30 guarantees every citizen of Nepal to live in a clean and healthy environment as a fundamental right. This provision is the primary basis for climate litigants to bring the cases to the courts.

LIST OF CASES

Advocate Padam Bahadur Shrestha vs Prime Minister and Office of Council of Ministers and Others

Advocate Padam Bahadur Shrestha in his petition argued that climate change was an existential threat, jeopardizing humankind, biodiversity, and ecology. The government’s delayed response in enacting pertinent climate legislation and implementing its Climate Change Policy of 2011 was acting as an impetus to this existential threat. The petitioner argued that the threat created by climate change had negatively impacted the constitutional rights to:
 * 1) live with dignity,
 * 2) live in a healthy and clean environment,
 * 3) access basic healthcare services, and
 * 4) food and protection from starvation.

The petitioner further submitted that a specific and stringent climate change law was need of the hour as the contemporary Environment Protection Act made no provision for climate change mitigation and adaptation depending upon the contemporary needs. Advocate Shrestha then contended that the gap must be rectified instantaneously.

Ruling in favor of the petitioner, the Supreme Court of Nepal concluded 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 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 issued a writ of mandamus, ordering the government to immediately pass and implement a climate change law. Further, pending the passage of the climate change law, the court directed the government to implement its Climate Change Policy, National Adaptation Programs of Action 2010, and National Framework on Local Adaptation Plans for Action 2011.

Advocate Raju Prashad Chapagain vs Government of Nepal, Ministry of Agriculture and Cooperatives and Others.

The case mainly deals with the disposal of 50 tons of precarious chemical pesticide which was stockpiled in Amlekhgunj of Bara district in Nepal by numerous foreign manufacturers under an umbrella organization named Crop Life International. The Supreme Court presided by Justice Min Bahadur Rayamajhi accentuated on the light that there was an overarching constitutional right to live in a clean environment, with a corresponding state responsibility to restrict adverse effects on the environment. The court also ordered the Nepal Government including the Office of the Prime Minister to conduct a separate study and to prepare a comprehensive profile of the overall pesticides stored in different parts of the country including Amalekhgunj, encompassing questions as for what purpose, from where, how it was obtained, how it was spent or disposed of, and identify organizations importing such detrimental chemical substance. The judgment also commanded the authority to dispose of all the harmful pesticides within a year based on environment-friendly modalities.

Advocate Prakash Mani Sharma vs Godavari Marble Industries Pvt. Ltd and Others, 2015

The case was about an industry Godavari Marble Industries Pvt. Ltd which was situated in Fulchowki, Godawari of Nepal. The place is known for its rich biodiversity, climate conditions, and natural beauty. An organization named PRO Public along with Advocate Prakash Mani Sharma issued a writ petition to shut down activities being conducted by the industry which involved the exorbitant amount of extraction of raw materials surrounding the Godawari Region which was constantly hindering the natural beauty of the area and affecting its biodiversity. The Supreme Court of Nepal presided by a joint bench of Justice Sushila Karki, Justice Govinda Kumar Upadhyaya and Justice Jagadish Sharma Poudel held that Nepal’s constitutional right to life included all rights necessary for living a dignified life. It also clarified that a clean environment was essential to protecting the capacity of people to live with dignity. The legal provisions invoked by the court were Rule 43 d(1) of Mining and Minerals Rules, 2056, Section 27(1) of the Mines and Minerals Act, 2042, and Article 12 (1) of the Constitution of the Kingdom of Nepal. The court also highlighted the detrimental threat which can occur to the climate, biodiversity, natural beauty, geographical and geological conditions, ecosystem, and historical, religious, and cultural significance of the Godavari region due to the operation of mines and minerals in the region. The court issued a writ of mandamus ordering to shut down all the mining activities in the area precluding no further organization to acquire permission to open similar infrastructure in the region in the future.

Shatrugan Pd. Gupta vs. Everest Paper Mills Pvt. Ltd. and Others

This case mainly deals with pollution of the Aurahi (Bagle) River by operating the Industries and mixing the effluents released in that river contrary to the prescribed standards, which was mentioned in the report submitted by the expert committee to the court. Therefore, the court held an instructive order, in the name of the respondents to operate the industry only after making arrangements for necessary reforms. It has ordered not to violate the standards prescribed in the gazette and granting time for the inspection of the industry at the end of the current fiscal year by the expert committee. The court also issued the additional order to undertake inspection of the respondent industry including the pollution control machine installed by the industry and to send compulsorily one copy of the inspection report given by the expert committee to this Court and another copy to Pro Public.

Advocate Santosh Kumar Mahato vs. Cabinet Secretariat and Others

This case basically prescribes the need of conducting extensive study and research regarding the impacts caused on the environment by the use of plastic bags and arriving at an appropriate decision based on the scientific conclusion so received. Hence, an order of mandamus along with an explanatory order was issued in the name of the Government of Nepal and the Ministry of Population and Environment to constitute a technical committee comprising RONAST, a plastic expert and an environmentalist, a Chemist of Tribhuvan University, Government of Nepal, Ministry of Population and Environment, all Municipalities within Kathmandu valley and a representative of Nepal Plastic Producers Association and to give a Term of Reference (TOR) to that committee to undertake study and research about all the questions and to submit a report along with its opinion within the very fiscal year and also to submit one copy of that report in this related Court. Moreover, the writ of mandamus was issued in the name of the respondent Municipalities to make a decision on the sale and purchase of consumption of plastic bags in Kathmandu valley based on the report given by the aforesaid technical committee and the concerned residents.

Yogi Narhari Nath Vs. HMG Ministry of Education and Others, 2053

The case mainly deals with leased property that lies north of Narayanghat Durbar surrounded by Devghat Dham, Narayani River, Rajdurbar Rastrya Nikunja, and dense forest. The property is of very religious significance, rich in floral and fauna as well as ancient monuments. The property is located near Bageshwori temple and the religious forest around it with numerous plants and animals. The construction of such a college would hamper the environment of the forest along with the wildlife thereby hampering the biodiversity which is in contravention to the constitution. Therefore, the court held the contract to lease the land surrounded by the jungle at the Devghat region as arbitrary and hence issued certiorari voiding the contract.

Rajendra Parajuli Vs, Shree distillery Pvt.Ltd, 2054

In this case, the writ petitioner claimed that Shree distillery has produced hazards without managing. The distillery cannot be permitted for operating its work at the cost of endangering the environment to pollution. The court pronounced that having a license or operation of an industry does not alleviate the industry from its duty towards control of pollution and protection of the environment. An industry cannot be permitted for its operation at the cost of endangering the environment. Industries must adopt the measures by which the environment can be preserved and protected. Every industry has an obligation to sustainable development.

Organizations

 * Friends of the Earths Nepal / Pro Public