Cover Story

ApEx Explainer: How are our climate-related laws?

Without a dedicated Act, how is Nepal addressing climate change? Here is an explainer of Nepal’s major climate change-related acts, policies, and regulations | Photo: Ujjwal Upadhyay

Pratik Ghimire

Aug. 10, 2024, 9:26 p.m.

ApEx Explainer: How are our climate-related laws?

Nepal is highly vulnerable to the impacts of climate change, ranking as the 10th most affected country globally according to the Climate Risk Index 2021. The Global Vulnerability Index 2019 also indicates that Nepal ranks fourth globally, experiencing rapid glacier retreat, landslides, and flooding.

Despite this, Nepal contributes minimally to global climate change. As noted in Nepal’s first Nationally Determined Contributions (NDCs) report in 2011, the country’s greenhouse gas (GHG) emissions are only about 0.027 percent of total global emissions.

This highlights the importance of climate justice. The principles of climate justice emphasize that those who contributed the least to climate change should not bear its costs disproportionately, ensuring that climate actions are equitable and just, especially for those most affected yet least responsible for climate change. According to the United Nations Framework Convention on Climate Change (UNFCCC) framework, climate justice involves equity and common but differentiated responsibilities, recognizing the varying capabilities and responsibilities of different countries.

In Nepal, climate justice is a relatively new concept within climate change policy. The focus has mainly been on adaptation and mitigation, with climate justice issues often limited to campaign slogans about compensation from developed nations and the polluter pays principle.

To achieve climate justice and address these challenges, Nepal needs robust legal frameworks. However, Nepal has not even a Climate Change Act yet. Experts suggest that a dedicated climate change act is essential to ensure proper support for vulnerable communities and their representation in policy processes.

Without a dedicated Act, how is Nepal addressing climate change? Here is an explainer of Nepal’s major climate change-related acts, policies, and regulations.

Supreme Court order

On 25 Dec 2018, the Supreme Court directed the government to enact a new climate change law to address the effects of climate change, reduce fossil fuel consumption, and promote low carbon technologies. The court determined that a new law was necessary for Nepal to fulfill its international obligations under the Paris Agreement and its domestic responsibilities. It deemed the Environmental Protection Act of 1997 inadequate for addressing the need for climate change mitigation and adaptation measures. Despite this directive, the government has not yet made an integrated climate change Act. Although the Nepal Law Commission drafted a climate change Act, it has not been enacted.

Nevertheless, after the Court’s order, the government passed the Environment Protection Act of 2019 and the Forests Act of 2019, both aimed at addressing climate mitigation and adaptation measures.

The Environment Protection Act of 2019 includes provisions for Climate Change Adaptation (CCA) and mitigation planning. It stipulates that adaptation plans must prioritize vulnerable groups such as women, persons with disabilities, children, senior citizens, economically disadvantaged communities, and those in vulnerable geographical areas. The Act also establishes an environmental protection fund to manage climate change and other environmental issues.

Meanwhile, the Forest Act of 2019 was formulated to manage and utilize various types of forests in Nepal, including state-managed forests, community forests, collaborative forests, leasehold forests, religious forests, and private forests. Its provisions encompass benefits from carbon sequestration, emission reduction, and climate change adaptation as determined by the government.

Local government and risk reduction

The Local Government Operation Act, 2017 includes provisions for disaster management, environment conservation and protection, land management, and natural resource management as a joint responsibility of the federal and provincial governments. However, the Act overlooks special attention to climate change risks and necessary adaptation measures. Local governments have an environment and disaster management unit, but due to poor capacity, providing timely and effective responses for vulnerable communities (such as the poor, Dalit, marginalized, and indigenous people) during disasters is challenging.

Similarly, the Disaster Risk Reduction and Management Act, 2017 provides a legislative framework for managing disaster risks, including those exacerbated by climate change. It emphasizes preparedness, response, and recovery strategies. The Act establishes the District Disaster Management Committee and the Local Disaster Management Committee, which have functions and powers related to relief, recovery, rehabilitation, and resettlement. However, the Act is silent on issues of tenure security and tenure rights. Additionally, it includes provisions for a disaster and emergency fund to support disaster relief and response activities.

Climate change and environment policy

The National Climate Change Policy, 2019, is Nepal’s primary document on climate change, replacing the National Climate Change Policy, 2011. It aims to incorporate climate change considerations into all government policies, strategies, plans, and programs across various levels and sectors to promote low-carbon development and a green economy. The policy outlines agriculture-based adaptation programs targeting poor, marginalized, landless, indigenous people, vulnerable households, women, and persons with disabilities. However, it does not recognize women and marginalized groups as agents of change. It mandates that at least 80 percent of the climate finance received from international mechanisms should be used for local-level climate change projects.

The National Environment Policy, 2019, focuses primarily on addressing pollution and other environmental issues. It emphasizes environmental justice by applying penalties to environmental polluters (following the principle that polluters must pay) and compensating affected individuals and communities.

Net zero emission strategy

Nepal's Long-term Strategy for Net Zero Emission, 2021, aims for the country to achieve net-zero greenhouse gas emissions by 2045. The strategy emphasizes maximizing clean energy sources such as hydropower, solar energy, and biogas; decarbonizing the transportation sector; promoting sustainable agriculture; increasing and maintaining forest cover; and enhancing international cooperation on climate change mitigation and adaptation. It reaffirms the principles of Gender Equality and Social Inclusion (GESI) and Leave No One Behind (LNOB) during the implementation phase.

NDC and adaptation plan

The Second Nationally Determined Contribution (NDC), 2020, explicitly targets gender sensitivity in both mitigation and adaptation components, identifying Gender Equality and Social Inclusion (GESI) as a crosscutting area. It mandates “equal access to women, children, youth, indigenous people, and marginalized groups during participation, decision-making, and benefit-sharing.” By 2030, it requires all local governments to prepare and implement climate adaptation plans focusing on women, differently-abled individuals, children, senior citizens, youth, and indigenous people.

The National Adaptation Plan 2021-2050 outlines short-term priority actions until 2025, medium-term priority programs until 2030, and long-term adaptation strategic goals until 2050. These aim to help Nepal better integrate actions and strategies to address climate risk and vulnerability. The plan recognizes women, indigenous people, and persons with disabilities as “vulnerable to current and projected climate hazards.”

L&D framework

In response to the Paris Agreement and the increase in extreme events within the country, the government developed the National Framework on Climate Induced Loss and Damage (L&D) in 2021. This framework presents a comprehensive strategy to address the impacts of climate change on the nation. It provides financial support, including insurance and compensation schemes, as well as technical and institutional assistance to communities adversely affected by climate change. The framework demonstrates Nepal’s commitment to tackling climate change challenges and protecting its people and environment from the adverse effects of climate-induced loss and damage.

A research paper published by ActionAid Nepal and conducted by the Environment and Engineering Research Center (EERC) indicates that key elements of climate justice are either missing or not clearly integrated into Nepal’s current climate-related laws and policies. The paper highlights the prevalent belief that poor, vulnerable, and marginalized communities should receive disaster preparedness training and support for rescue, relief, rehabilitation, and resettlement. However, these groups are often seen merely as recipients of support rather than as individuals or communities with rights to protection from climate-induced disasters.

The research paper highlights several challenges in implementing and enforcing climate-related laws and policies. One major issue is the presence of competing legal provisions, with overlapping jurisdictions among federal, provincial, and local governments, especially in areas like disaster management. Additionally, inadequate inter-ministry coordination at both horizontal levels (such as between conservation and development ministries at the federal level) and vertical levels (federal, provincial, and local) hinders progress. The complex nature of carbon emission mitigation and climate adaptation demands synchronized efforts, which are often lacking.

Capacity gaps at subnational levels further complicate the situation, as provincial and local governments frequently lack the necessary understanding and resources to address climate vulnerability and its impacts on agriculture, food security, public health, infrastructure, livelihoods, and forests. The issue is compounded by data deficiency, with Nepal suffering from a lack of updated and aggregated data on climate-induced hazards, loss, and damage. Overlapping jurisdictions can lead to scattered data across different levels of government, impeding comprehensive national-level data collection and analysis.

Inadequate budget allocation and climate finance management also pose significant challenges. Competing national priorities result in insufficient funding for climate initiatives, with a heavy reliance on international sources. The late climate budget tagging exercise and a lack of prioritization based on climate impact evaluation further weaken climate finance management.

Climate finance

Addressing climate change effectively requires legislative frameworks that facilitate adequate financing mechanisms for climate justice, particularly in adaptation and mitigation activities. However, several legislative gaps hinder the mobilization, allocation, and utilization of climate finance. The current legislative framework often lacks clarity on funding priorities and the distribution of climate funds, and it does not clearly define funding for priority areas and vulnerable populations.

Key financial funds and mechanisms established by law include the Environmental Protection Fund, created under the Environment Protection Act, 2019, and the Disaster and Emergency Fund, provisioned by the Disaster Risk Reduction and Management Act, 2017. Additional sources of climate finance come from national budget allocations, international climate finance through UNFCCC mechanisms, and climate-related budgets secured through bilateral relations and multilateral organizations, such as the World Bank and the Asian Development Bank (ADB).

The COP28 UN Climate Change Conference in Dubai concluded with a historic agreement on the operationalization of funding arrangements to address loss and damage. Commitments to address loss and damage started pouring in immediately after the decision was finalized, accumulating over $661m to date. But can Nepal benefit from these funds?

Lawmaker Madhav Sapkota notes that Nepal still lacks about nine essential Acts, which complicates the process of securing loss and damage (L&D) funds. He suggests establishing informal forums such as a ‘Climate Parliament’, an international cross-party network of legislators focused on combating climate change and promoting renewable energy. He points out that neighboring countries like India, Bangladesh, and Bhutan are already part of the Climate Parliament.

Development of climate change legislation in Nepal