Climate adaptation, vulnerability and rights-based litigation: broadening the scope of climate litigation using political ecology and insights from India

by Birsha Ohdedar

In its latest report, the IPCC urges the need for more action on climate adaptation. Adaptation is critical in the Global South, which experiences the worst effects of climate change, despite contributing the least to the problem.

While climate litigation has grown in recent years, adaptation specific litigation has been underrepresented in research and practice. Peel and Lin argue that adaptation cases are difficult to identify and go unnoticed. Adaptation cases are often not directly argued on climate grounds – issues are embedded in land use, water access, and local development cases. Accordingly, engaging with adaptation litigation means engaging with cases that may not mention ‘climate change’.

However, to do so, we need an analytical framework that enables the identification of these less visible cases. In my article, as part of a new special issue of the Journal of Human Rights and the Environment, I argue that political ecology provides such a framework for climate lawyers to understand the nature of adaptation. Such an understanding would help strategically identify issues and cases that could further rights-based adaptation. In my article, I use these frameworks to analyse litigation in India that are relevant from a climate vulnerability and human rights perspective.

The article contributes to a growing interest in rights-based climate (adaptation) litigation in Global South countries. Indeed, other contributors to the special issue discuss adaptation in relation to Africa and Latin America. In this blog post, I summarise some of the main points from my article.

Framing climate vulnerability and why it matters

As adaptation is primarily about reducing climate vulnerability, I argue that we need to understand ‘how’ and ‘why’ people become vulnerable to climate change. There are two broad framings of climate vulnerability from the literature: (i) the hazards framing; and (ii) the social vulnerability framing.

Under the hazards framing, the aim of climate adaptation is to protect people from the ‘external threat’ of physical climate impacts (e.g. more or less rain, excessive heat, cyclones). A hazard framing leads to technical or managerial policy fixes, such as building sea walls, cyclone shelters, or promoting drought-resistant seeds for farmers.

However, a purely hazard-based framing of climate vulnerability can overlook how vulnerability is tied to social and political processes. Factors such as access to food, land ownership democratic governance have a crucial and decisive role in how badly people are affected by a flood or a drought. On the other hand, a social vulnerability framing of climate change foregrounds social, economic, and political drivers of climate vulnerability. It pivots adaptation responses towards transforming these processes.

Social vulnerability framings can be further divided into ‘human security’ and ‘relational’ approaches. Human security approaches focus on policy responses that seek to enhance social wellbeing and the ability of people to adapt—for instance, improving public healthcare infrastructure or social welfare provisions. These measures can improve the ability of people to cope with and adapt to events like droughts or floods. 

Relational approaches delve deeper into the role of unequal structural relations that drive vulnerability and prevent adaptation. Power relations between different groups – such as between citizen and state, landless and landowning, worker and employer – is often central to why people are vulnerable.

For instance, studies have shown how during droughts, those with greater access to credit, land, and technology (such as landlords and merchants) can adapt more quickly and exploit poorer households who become dependent on the rich for essential resources. In these situations, the poor are driven into debt and marginalisation, attempting to seek out a living. Climate change can thus empower some – particularly the rich – by opening new strategies of consolidating wealth and influence – while pushing others into greater levels of dependency and vulnerability.

Relational approaches aim to reveal and overturn these exploitative power structures responsible for why people become vulnerable to climate change. Measures that seek to overturn power relations – such as recasting land rights, strengthening labour rights, and reforming debt relations –  could be seen as transformative adaptation measures based upon such a framing.

Understanding these different framings of climate vulnerability is crucial because they influence adaptation strategies and policies. Recent literature has highlighted how adaptation actions have often failed and even reproduced existing vulnerabilities in many places. Central to adaptation strategies should be understanding why people are vulnerable in a given context and working with communities to change these conditions. Similarly, for litigation as a climate adaptation strategy, its objective is to seek ways to ensure communities are less vulnerable and adaptation is transformative. 

Vulnerability and Adaptation through Litigation in India

In my article, I analyse examples from three areas of litigation in India (i) litigation around drought responses, (ii) renewable energy-related land disputes, and (iii) litigation concerning agricultural debt. In this blog post, I briefly expand on the case of Swaraj Abhiyan v Union of India, which is related to drought responses.

In Swaraj Abhiyan, the Supreme Court of India made a series of orders relating to how state governments administered droughts. The case arose from concerns around government inaction in declaring droughts (thus triggering relief) and inadequate relief measures. The Court used its powers to push the state into action, grounding the decisions upon a rights-based framework.

The judgement demonstrates an understanding of climate vulnerability as a human security issue. The orders push the state into moving away from monitoring drought only through ‘rainfall deficits’. The measures outlined – such as expanding social welfare schemes and revising the method of declaring droughts – also centred upon adaptation through enhancing human security via the state.

However, gaps in the human security approach are also visible in this case. For instance, the top-down governance system for declaring a drought was left intact, despite the orders to change the methodology of assessing a drought. After a few years, there have not been substantive shifts through the new methods. This highlights one of the critiques from a relational perspective: the importance of transforming power structures to tackle climate vulnerability.

Other aspects of the judgment show potential for more transformative adaptation from a relational perspective. For instance, the court issued several directions concerning the Mahatma Gandhi National Rural Employment Guarantee Act (NREGA), India’s flagship rural employment scheme (based upon a ‘right to work’) that provides 100 days of guaranteed work annually for every rural household. Research has shown NREGA has partly shifted power to marginalised rural working classes, including women and oppressed lower castes, where it has been implemented well. In this instance, the orders only touch upon a small, though important, part of NREGA (delays to payments). Nevertheless, by drawing upon a relational understanding of vulnerability, I argue that targeting schemes such as NREGA in the context of climate adaptation litigation offer a way to help individuals and communities adapt and break the structures of vulnerablisation.

Contribution of the Article

A greater understanding of climate vulnerability can inform strategic decisions in identifying opportunities for adaptation litigation. For instance, through understanding the root causes of climate vulnerability, such as through a relational framework discussed above, litigation can focus on interventions on issues like debt, land, and drought relief that persist in creating vulnerability in drought-prone regions in India. Different contexts and regions will have different issues, so a context-specific understanding of vulnerability is essential. The article also highlights the need to incorporate smaller, more discrete cases at the domestic level that may not necessarily be argued expressly on climate grounds. This is because of the inherent links between adaptation and vulnerability to social and developmental issues. Ultimately, the article hopes to open up new research questions, agendas, and litigation strategies, to drive transformative change in addressing vulnerability and realising human rights. 

Astrid Milena Bernal

By Astrid Milena Bernal

Astrid Milena Bernal Rubio is a Colombian LL.M student at Pennsylvania State University (concentrations in International Law and Energy and Environmental Law). She is a lawyer from the Universidad Católica de Colombia, Magister in Environmental Law from the Complutense University of Madrid and Specialist in human rights and critical legal studies from the Latin American Council of Social Sciences (CLACSO) Latin American School of Public Policy- ELAP.

As part of the technical team of GFLAC (climate finance group for Latin America and the Caribbean), she supported the creation of the MRV system (monitoring, reporting and verification) for climate finance in Colombia. In addition, she has been a consultant for the WRI (World Resources Institute) and The Access Initiative (TAI), working as the National researcher for the Environmental Democracy Index (EDI). Also, she has worked as a consultant for AVINA Foundation, The Bogotá’s drainage and sewerage company (EAAB). She has worked as a lawyer and researcher on issues associated with public participation, access to information, forests, carbon markets, rights of indigenous peoples and rural communities in Colombia.

Astrid was a volunteer for the Network for Environmental Justice in Colombia and promoted the creation and growth of the climate justice division at the Environment and Society Association (AAS) of Colombia. She worked as the Climate Justice division coordinator for five years. Astrid was a senior research coordinator in a joint research project with UNICEF to contribute to the fulfilment of the SDGs (6), focusing its work on guaranteeing the rights of access to sanitation for rural, indigenous and Afro-descendant populations in Colombia. She is also part of the founders of the Colombian NGO- CAMBIUM (Climate, Environment and Research-Action Uniting Worlds). This organization aims to, directly and indirectly, influence processes carried out by civil society and decision-makers related to climate change.

Currently, she works at the Global Forest Coalition as an associate for the Unsustainable Livestock Campaign. Astrid also supports the work of Pivot Point and the CLARA group (Climate, Land, Ambition and Rights Alliance), promoting the understanding and participation of CSOs to ensure higher ambition of NDC (Nationally Determined Contributions) in Spanish speakers countries.

Astrid is a research assistant at Penn State University identifying how different kinds of transboundary river basin organizations have written and used dispute resolution mechanisms in both the bilateral agreements between the US, Mexico and Canada (NAFTA-USMCA) and the Autonomous Binational Authority of the Basin of Lake Titicaca (Bolivia, Peru).

Astrid is member of the core team in the Global Network for Human Rights and the Environment (GNHRE), she is part of the global network of environmental lawyers (ELAW) and collaborates as a volunteer for The Capital Area Immigrants’ Rights Coalition- CAIR coalition.