False Dichotomy in Green Justice: Assessing Climate Action and Ecological Integrity

Introduction

The Indian government’s efforts to combat climate change are complemented by the efforts of the judiciary. MK Ranjitsinh v. Union of India (“Ranjitsinh”) particularly draws applause [see here and here] for its declaration of ‘the right to be free from the adverse effects of climate change’  under Article 21 of the Constitution [Para 27]. This progressive stance exists in tension with another judicial trend of the asymmetric application of environmental scrutiny, where renewable energy (“RE”) infrastructure is markedly more lenient with the Supreme Court (“SC”) turning a blind-eye to RE projects’ externalities and its effect on local ecology.

This blog argues that the judiciary's ‘green exceptionalism,’ risks institutionalising a false dichotomy between global climate objectives and local ecological protection [previously used: here and here; also see: ORF 2015 for prior discussion on India’s possible paths and perspectives post Paris Agreement].  This blog proceeds in three parts: first, identifying the unpriced externalities of RE projects ignored by the SC; second, by demonstrating that the Court’s non-neutral approach to RE constitutes an institutionalised allocative preference; and third, by assessing the judgment’s impact on regulatory incentives and distributive justice.

The Unintended Consequences of RE

Renewable energy, despite its climate benefits, is not free of negative externalities. The public and judicial perception of RE as an unqualified environmental good is a category error which conflates the global benefit of reduced carbon emissions with the local costs of land use, habitat disruption, and displacement due to the RE infrastructures [see: Irwanto & Nampira; Dejonghe et al.  Wilderness Society etc. for in-depth discussion of RE Project impacts]. The misperception is exemplified under the 2006 Environment Impact Assessment Notification, under which several categories of RE projects are not listed in the Schedule, and therefore fall outside the mandatory EIA clearance requirement entirely. Notably, large hydroelectric projects above certain thresholds retain some coverage under Item 1(c) of the Schedule; the regulatory gap is therefore most pronounced for solar and wind projects.

The externalities of these projects are concrete and documentable. Solar energy projects often require large land areas for set up, often leading to encroachment of land from tribals, or land required in sustaining wildlife or biodiversity, which has large consequences on environment and tribal rights, giving rise to the phenomenon of green colonialism [See: Torres 2025; Fleming 2025]. Wind turbines present analogous issues, including bird and bat mortality, noise pollution, and the transformation of ecologically sensitive ridgelines [See: Teff-Seker et al. 2022; Harvard Gazette 2018]. The real cost of these projects are being externalised onto local communities and ecosystems, while the gains, primarily, reduced carbon, accrue globally.

The judicial approach, despite the recognized positive intent of exemptions and subsidies to encourage RE projects, demonstrates how the harms of such projects are often overlooked. The broader doctrinal consequence is the creation of a lighter regulatory regime for RE projects that paradoxically undermines the environmental rationale for preferring them in the first place. If RE projects are permitted to impose unchecked biodiversity costs, their net environmental benefit over fossil fuel projects narrows considerably.

SC’s Non-Neutral Stance on RE

The ignorance of the above mentioned facets is reflected in Ranjitsinh, where the SC, despite being aware of the harm caused to the biodiversity and the Great Indian Bustard (“GIB”) by the overhead transmission lines, declined to enforce its own 2021 undergrounding order across the fully affected area, and ordered only due care [immediate necessary steps] in priority areas, which were only about ~13-14% of the total area affected by the solar project. The majority of the affected habitat was effectively left to standard care. The harm to the GIB, which in this situation was an irreversible ecological cost, given the species’ critical conservation status, was therefore externalised, acknowledged, but not priced.

Kennedy argues that judicial neutrality is a myth and the judgements reflect a subconscious ideological preference which finds pointed illustration in the SC’s treatment of RE. What is notable about the Court’s RE jurisprudence is not merely that it favours climate goals, but it does so selectively, wherein the statutory protections seem relaxed if a project carries a green label.

This asymmetry is traceable across energy jurisprudence. In Hindustan Zinc Ltd. v. Rajasthan Electricity Regulatory Commission, the Court observed that the promotion of policies for the generation and consumption of green energy sub-serves the mandate of Article 21 read with Article 48A and Article 51A(g). Further in Bombay Dyeing & Mfg. Ltd. v. Bombay Environmental Action Group, the Court while articulating the importance of balancing environment and development, permitted a 600-acre development project in urban ecological context. In contrast to this, the aspect of distributive justice was evaluated by the court in the case of Orissa Mining Corporation Ltd. v. Ministry Of Environment & Forest and Ors wherein the consent of the tribal population was required for the procurement of mining rights, an aspect ignored in the Bombay Dyeing case. The distributional logic of Orissa Mining, that those who bear the localised costs of resource extraction must have a say in whether it proceeds, was conspicuously absent from the Court’s reasoning in Ranjitsinh, despite the factual parallels.

This piece takes the position that the Court’s asymmetry is constitutionally indefensible and economically counterproductive. It is constitutionally indefensible because Article 21, as the Court itself held in Ranjitsinh, protects both the right to be free from climate change and the right to a healthy local environment. These rights exist in the same constitutional register; there is no textual or doctrinal basis for systematically subordinating one to the other. When the Court privileges climate-scale RE expansion over species-level biodiversity protection, it is making an allocative judgment and merely not a constitutional one. It is economically counterproductive because, as established in Part I, the externalisation of RE’s ecological costs are merely shifted to communities and species that lack the institutional voice to resist.

This bias can be apprehended with two main reasons - 1. India’s commitment to its climate goals and 2. The public perception of renewable energy as a net good. India’s push towards fulfilment of its goals under the Paris Agreement and the green halo around renewable energy has influenced judicial thinking. Ranjitsinh highlights this bias of green exceptionalism. While the court recognised the right to be free from climate change, it also significantly relaxed the underground mandate. The rationale for the modification of judgement from its 2021 order heavily leaned on the impracticality and adverse implications of strict undergrounding for India's ambitious renewable energy targets and its international climate commitments. The court explicitly weighed the serious impact on the development of renewable energy in the country against the survival of the GIB, effectively privileging the former.

The recalibration in Ranjitsinh is a microcosm of this larger distortion. The Court weighed the survival of the GIB against the pace of RE expansion and found the latter weightier. This is, at its core, an allocative decision. And it is one that misapplies the logic of cost-benefit analysis: irreversible harms to non-substitutable natural assets ought to attract a precaution, not a relaxed standard.

Potential Impact and Suggestions

The judgment’s most consequential legacy may be the precedent it sets for regulatory design. By prioritizing solar expansion over the GIB survival, the Court signals that climate goals may override species protection. This creates a precedent emboldening future RE projects to circumvent rigorous review by invoking “climate necessity.” While it is important to acknowledge the ongoing transition of energy sources from fossil fuels to renewable, it is also important to keep the externalities of such projects in check to ensure justice for all the parties involved.

The corrective mechanism that this piece proposes is rooted in the principle of “polluter pays,” with its application operating by a logical extension to the negative externalities of the RE projects. Operationally, this could be achieved through two mechanisms – firstly, drawing from Pigouvian taxations, energy taxes in energy markets could be imposed on RE generated electricity where the underlying project has demonstrably displaced ecological or community assets. Secondly, biodiversity offset levy for RE projects outside EIA, that could be assessed by a statutory body (say, SPCB or CPCB), and calibrated to the ecological footprint of the installation. Both mechanisms preserve the state’s interest in RE expansion while correcting the market failure of unpriced externalities. Crucially, they do not require the Court to choose between climate goals and ecological protection. The phasing out of fossil fuel dependence remains a legitimate and urgent policy goal; the question this piece addresses is not whether to pursue RE, but how to do so without systematically misallocating the costs of that transition onto the ecologically and socially marginalised.

Conclusion

The core argument of this piece is that the tension between climate action and ecological integrity is a false dichotomy, one produced by a failure to require RE projects to internalise the costs they impose. Correcting this through PPP-based instruments, site-specific EIA requirements, and judicially enforced distributional safeguards would not slow India’s energy transition; it would make that transition more economically rational, constitutionally defensible, and socially just. Judicial enthusiasm for green development must not come at the cost of the very constitutional and ecological foundations it seeks to protect.