CMA 1684 of 2024 In pursuance to the order dated 25.01.2024 passed on the administrative side, learned counsel for the petitioner has amended the memo of parties through this application which is allowed, subject to all just and legal exceptions. Office shall ensure that correct memo of parties is placed on the main file.
Main case
2. Learned counsel submits that climate change [1] is a serious existential threat to Pakistan.
Considering its critical importance the Pakistan Climate Change Act, 2017 ("Act") was promulgated on 31.03.2017 with the objective of providing comprehensive adaptation and mitigation policies, plans, programmes, projects and other measures required to address the effects of climate change and for matters connected therewith and ancillary thereto. The grievance of the petitioner is that the Act envisages the establishment of the Pakistan Climate Change Authority (under Section 5 of the Act) which, inter alia, has the following important functions under Section 8 of the Act:
8. Functions of the Authority.--(1) Functions of the Authority shall be to -
(a) formulate, comprehensive adaptation and mitigation policies, plans, programmes, projects and measures designed to address the effects of climate change and meet Pakistan's obligations under international conventions and agreements relating to climate change and within the framework of a national climate change policy as may be approved by the Federal Government from time to time;
(b) establish institutional and policy mechanisms for implementation of Federal and provincial adaptation and mitigation policies, plans, programmes, projects and measures, including plans for renewable energy and clean technology measures for energy efficiency and energy conservation and awareness-raising and capacity-building programmes;
(c) prepare suitable adaptation and mitigation projects for submission to international and local institutions for finding, including the Clean Development Mechanism, Global Environmental Facility, Green Climate Fund and Adaptation Fund;
(d) prepare the National Adaptation Plan and its constituent provincial and local adaptation action plans, the Nationally Appropriate Mitigation Action Framework and the Intended Nationally Determined Contributions, Nationally Determined Contributions and National Communication to be submitted to the concerned Secretariat of the United Nations Framework Convention on Climate Change' and monitor implementation thereof;
(e) carry out Technology Needs Assessment and prepare Climate Change Technology Action Plan in accordance with international best practices for seeking technical and financial support, amongst others, through the Technology Mechanism; Therefore, it is the Authority the in effect operationalizes the Act and in the absence of such Authority, the entire Act has been rendered ineffective. It is also submitted that Pakistan Climate Change Fund under Section 12 of the Act has also not been set up. Further, unless the Authority is established the said Fund cannot be managed under section 13.
3. According to the Global Climate Risk Index, Pakistan is currently the fifth most climate-vulnerable country in the world. At the same time, Pakistan also faces some of the highest disaster risk levels in the world, ranking 23th out of 194 countries as per the 2024 Inform Risk Index.[2] This risk is driven particularly by the nation's exposure to flooding, earthquakes, tropical cyclones and their associated hazards. It is these alarming statistics which underscore the need to address climate change and mitigate its effect on people and their livelihoods. While developing countries like Pakistan may not be the primary contributors to climate change, acknowledging and confronting its fallout is indispensable, especially for combatting the high risks posed by climate change.[3] As Pakistan and other nations come to terms with the impacts of climate change, they will confront questions of adaptation, a process of adjustment to actual or expected climate and its effects. As a country which has a very low technical and financial capacity to adapt to its adverse impacts, the critical importance of adaptation and its role in reducing vulnerability, promoting equity and safeguarding economic and social stability, particularly for vulnerable populations and the marginalized communities must be underscored.[4] This not only aligns with Pakistan's international commitments such as the Paris Agreement but also contributes to the advancement of the United Nations' Sustainable Development Goals.
4. As Pakistan moves towards adaptation, it must be supported by greater accessibility of and access to finance. According to the United Nations Convention on Climate Change ("UNFCCC")
Standing Committee on Finance, "Climate finance aims at reducing emissions and enhancing sinks of greenhouse gases and aims at reducing vulnerability of, and maintaining and increasing the resilience of, human and ecological systems to negative climate change impacts." The primary goal of climate finance is to facilitate the transition to a low-carbon and climate-resilient global economy. In the context of Pakistan, the economic cost of climate change is substantial and affects all sectors, including agriculture, infrastructure, trade and tourism. Developing countries like Pakistan struggle with high levels of debt, which potentially hinder their ability to invest in climate mitigation and adaptation measures.[5] Therefore, access to existing climate funds needs to be simplified and the issue of debt needs to be looked upon. Another way to curb this issue is the usage of loss and damage fund which could play a pivotal role in building resilience, supporting adaptation efforts, and aiding in the recovery from climate-induced losses. Loss and damage arising from the adverse effects of climate change can include those related to extreme weather events but also slow onset events, such as sea level rise, increasing temperatures, ocean acidification, glacial retreat and related impacts, salinization, land and forest degradation, loss of biodiversity and desertification. Article 8 of the Paris Agreement enshrines the importance of averting, minimizing and addressing loss and damage and the role of sustainable development in reducing the risk of loss and damage.[6] The establishment of a loss and damage fund for highly climate-vulnerable countries like Pakistan would be a vital step towards realizing climate justice.
Acknowledging that developing countries like Pakistan often contribute the least to climate change but suffer the most severe consequences, the fund underscores the moral responsibility of historically high-emitting countries. Moreover, by facilitating the implementation of climate- resilient infrastructure and community-based adaptation strategies, the fund could empower the marginalized communities to better cope with the impacts of climate change, fostering international cooperation and financial commitments essential for a sustainable and just future.
5. Pakistan's commitment to equitable and effective global climate governance is also evident in its multifaceted approach at COP-28. The nation not only emphasized the financial aspects, calling for simplified access procedures to climate finance and expressing a preference for grant-based financing, but also actively reached a historic agreement on the operationalization of the loss and damage fund and funding arrangements.[7] The agreement, as agreed upon by all parties at COP-28 urges developed nations to lead in financial contributions to make up for the irreversible climate change induced damages they have contributed to. This holistic commitment underscores Pakistan's leadership in navigating the complexities of climate change and its dedication to fostering a fair and transparent global response to the urgent challenges posed by a changing climate. Similarly, the implications of this fund's operationalization and dynamics can be profound for climate vulnerable countries like Pakistan which suffer from extreme weather events. The devastation caused by the catastrophic floods in 2022 is distressing proof of the same which caused a total damage of PKR 3.2 trillion (US$14.9 billion), a total loss at PKR 3.3 trillion (US$15.2 billion) and total needs for recovery and reconstruction at PKR 3.5 trillion (US$16.3 million).[8] Against these alarming figures and background, the need for climate finance as new and additional and sustained financial resources with a transparent mechanism, that meets the needs to developing and vulnerable countries like Pakistan, with the speed and scale is direly needed.
6. Let notice be issued to the respondents for 21.03.2024. Notice shall also be issued to the Attorney General for Pakistan, as well as, to the Advocate Generals of all Provinces for the aforesaid date.
Who will submit a detailed report regarding climate change challenges faced by them and the initiatives taken by their respective governments. We also wish to seek the opinion of independent experts in the area namely: (i) Hammad Naqi Khan, Director General/CEO, World Wildlife Fund (WWF), WWF-Pakistan office, inside Ali Institute of Education, Ferozepur Road, Lahore, and (ii) Mr. Abid Qaiyum Suleri, Executive Director, Sustainable Development Policy Institute (SDPI), Plot # 10 Taimur Chambers, Fazl-ul-Haq Road, G 6/2 Blue Area, Islamabad. Let notices be issued to them. To come up on 21.3.2024.
On the last date of hearing i.e., 21.03.2024, learned Attorney General assured the Court that the meeting of the Council will be held within a month from today to address the question regarding the establishment of the Authority, as well as, the Fund. Today, it is pointed out that meeting of the Council was held on 26.04.2024 and a summary has been put up by the Minister Incharge, Ministry of Climate Change for the establishment of the Authority but the Authority has not yet been established. We understand that the climate change is the most serious existential threat to the people of Pakistan and considering that the Climate Act, 2017 was promulgated seven years ago neither the Authority nor the Fund has been established so far. Considering that failure to establish the Authority has serious implication on the fundamental rights of the people of Pakistan, we direct the Federal Government to establish the Authority within a fortnight and thereafter complete the establishment of the Fund.
2. Vide our last order dated 21.03.2024, the Provincial Governments were also directed to place on the record strategies adopted by them regarding climate change. In pursuance to above, learned Additional Advocate General representing the KPK, Sindh and Punjab submit that they have submitted their strategies regarding the climate change. As far as, Balochistan is concerned, the Director Climate Change submits that summary has been put up before the Cabinet and report to this effect has been placed on the record. We will take up these matters next time.
3. Let this case be posted for 03.06.2024.
Climate Change have tendered appearance alongwith Additional Attorney General and submit that five posts for Members of the Authority established under Section 5 of the Pakistan Climate Change Act, 2017 ("Act") have been advertised and as a result 752 applications have been received, which are under process and soon the said five posts will be filled. Let the said exercise be completed within a fortnight from today without fail. The Notification of a duly constituted Authority be placed on the record on or before the next date of hearing.
2. When inquired, if the Ministry of Climate Change has any climate change policy in place and the effective steps taken in order to address the challenges of climate change, nothing concrete was placed before us. It was mentioned that NDMA & PDMA are looking into the matter. Our understanding is that NDMA and PDMA are disaster management institutions, while the Ministry of Climate Change has to come up with preventive policies addressing the challenges of climate change head-on. It appears that no such policy is in place and no action on the ground has been taken. Still we provide opportunity to the Secretary Climate Change to place the relevant policy on the record and apprise the Court on the next date as to what are the key challenges of climate change and what strategies and plans have been put in place by the Ministry and what action has so far been taken.
3. We have also heard the Chief Secretaries of Punjab, Sindh, KPK and Balochistan. We are not satisfied with their submissions and notice with concern that no material steps have been taken by the said Provinces to deal with the challenges of climate change as there is no clear strategy(ies), action plans or any adequate steps taken on the ground. The Chief Secretaries undertake that they will submit relevant strategy/action plans to deal with the issue of climate change in their respective Provinces before the next date. Let the said strategies clearly identifying the threats/challenges of climate change in their respective Provinces and steps taken to address the said challenges.
4. All the Chief Secretaries were asked whether the special budget has been allocated for the climate change in the recent provincial budgets, their reply to this question was in the negative, however, as far as, Punjab is concerned, it has been pointed out that a loan of $ 50 million through Asian Development Bank has been obtained and parked as Climate Change Fund, however, no document in this regard has been placed on the record.
5. It is observed that climate change is a serious existential threat to the people of Pakistan and directly affects the fundamental rights, still the recent provincial budgets have not allocated any Climate Fund for climate change or come up with any effective strategies. This becomes doubly worrying as Monsoon rains are round the corner and the country has still not recovered from the devastating floods of the year 2022.
6. All the Chief Secretaries, as well as, Ms. Roomina Khursheed Alam, Coordinator to the Prime Minister on Climate Change, Ministry of Climate Change and Secretary Climate Change, and, all the concerned officers will appear before the Court on the next date of hearing and apprise the Court of their strategies and steps taken. To come up on 15.07.2024. Ms Ayesha Khan, Regional Managing Director Acumen, 609, 6th Floor, ISE Tower, F-7/1 Blue Area, Islamabad is also appointed as amicus curiae to assist the Court on the aforesaid date. Office will inform amici curiae to be present on the next date of hearing.
7. Considering the critical importance of the issue, let a copy of this order be dispatched to the Prime Minister Secretariat so that the same be placed before the Prime Minister for his perusal.
APPOINTMENT OF THE AUTHORITY UNDER THE PAKISTAN CLIMATE CHANGE ACT, 2017 Vide order dated 01.07.2024 (last order) it was directed that the Authority under the Pakistan Climate Change Act, 2017 ("Act") be constituted within a fortnight from the said date without fail and the Notification of a duly constituted Authority be placed on the record before the next date of hearing, however, today the Secretary Climate Change has pointed out that interviews have not yet been completed and the Authority has not yet been constituted and they require another month to do the needful. It is noticed with concern that the Act was promulgated seven years ago, but the Authority has not yet been established under Section 5 of the Act. The last order was passed on 01.7.2024 giving a fortnight to constitute the Authority. Today it is 30.7.2024 - almost a month has passed and yet there is no progress in the matter. The Ministry seems to take the issue of climate change rather casually. The urgency expressed in the matter by the Court is because of the upcoming monsoon rains. The Authority needs to be in place to deal with all climate related challenges but the Ministry does not appear to understand or appreciate the urgency. As a last opportunity, we direct the concerned Ministry to ensure that the Authority stands constituted and the notification thereof is placed on the record not later than 15.08.2024. In case this is not done the Secretary, Ministry of Climate Change will appear in person to answer why contempt proceedings should not be initiated against him.
2. The Chairman, National Disaster Management Authority ("NDMA") gave a detailed presentation to the Court, a copy of which has been placed on the record as "Mark-A" clearly showing the disaster management and disaster prevention preparation especially in the context of floods.
3. The Secretary, Climate Change was asked to place on the record the Climate Change Policy of the Federal Government, as well as, the steps taken thereunder. He referred to the Climate Change Policy 2012 (updated in 2022), as well as, the Project of "Living Indus", but could not point out the substantial challenges faced by the country regarding climate change and the concrete steps taken on the ground to address those issues. With no concrete input from the Secretary, learned Attorney General was asked to look into the matter himself and assist the Court tomorrow in this regard.
4. The Chief Secretary, Punjab submitted that there is no notified Climate Change Policy in Punjab; however, the same is under preparation. He points out that the Provincial Government has engaged Dr. Kausar Abdullah, as well as, Mr. Asghar Leghari, Advocate to assist them in the preparation of the said Provincial Climate Change Policy, which will be presented before the Court within a month from today. Let the needful be done.
5. The Chief Secretary, Sindh while referring to his report filed through CMA No.7375 of 2024 highlighted several areas where the Government of Sindh has made meaningful interventions regarding climate change. He referred to the scheme of "Afforestation and De-carbonization"; he pointed out that Sindh is the only Province which successfully availed carbon credits and traded them in the International Market, earning US $ 22 million; that the mangrove forest cover has been expanded against the 2022 baseline to 1,500,000 acres; the forests have been restored on vacated lands through regeneration and planting and tree cover is to be enhanced by at least 300,000 acres; EV buses and Bio CNG Buses have been introduced by the transport department in collaboration with the Asian Development Bank; efforts have been made to move to alternative energy resources and a capital investment of $ 4.225 billion has been made as renewable energy; construction of 1.137 million flood/climate resilient houses for flood affectees of 2022 have been undertaken; there has been a concrete lining of irrigation channels; spanning over 3675 miles; 180 small storage/recharge/retention dams have been constructed; sewerage treatment plant (TP-IV) and West Karachi Recycling Project has been introduced; development of climate-friendly crop production techniques have been adopted which include alternate wetting and drying (AWD) method; aerobic rice cultivation technology; rice drilling in dry prepared land; biological control of harmful insects; bio pesticides; zero-tillage method; Sindh Climate Change Policy 2022 has also been attached with the said report. It appears that the Government of Sindh has been actively working to address the issues of climate change faced by the Province.
6. The court time is over. Let this case now come up on 31.07.2024 for submissions of the Attorney General, as well as, Chief Secretary, Balochistan and Khyber Pakhtunkhwa.
1. Under Section 2(d) of the Act, climate change means a change in the climate system which is caused by significant changes in the concentration of greenhouse gases as a direct or indirect consequence of human activities and which is in addition to natural climate change that has been observed during a considerable period.
2. European Commission, Inform Risk Index, 2024.
3. Juan D. Baron & Saher Asad, 'Turning Concern into Action: Understanding Climate Change Attitudes in Pakistan' World Bank.
4. Alice Kaswa n, 'Adaptation Justice' University of San Francisco Law Research Paper 2016-06 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2703631 last accessed 11 March 2024.
5. Ministry of Climate Change, National Adaptation Plan, 2023.
6. Article 8, The Paris Agreement, 2015.
7. Kiara Worth, "COP-28 Agreement Signals "Beginning of the End" of the Fossil Fuel Era", COP-28, United Nations Climate Change.
8. Province of Sindh v. Sartaj Haider, 2023 SCMR 459.