Last week, the Central Bureau of Investigation booked a prominent environmental lawyer for alleged Foreign Currency (Regulation) Act violations. Some might construe such government action as going after persons and organisations that it finds inconvenient to deal with. The lawyer in question is known to have consistently backed marginalised communities and the cause of the environment. I, however, see this as an opportunity to objectively determine whether an action is afoul of national interest and to debate whether energy and economic security should have precedence over environmental security.
The CBI stated that the lawyer used funds to “take down India’s existing or proposed coal projects” through his NGO in violation of Section 7 of the FCRA. The Act of 2010 is meant to regulate the acceptance and the utilisation of foreign contribution or foreign hospitality by individuals or associations or companies and to prohibit utilisation of foreign contribution for any activities detrimental to national interest. Section 7 of the Act, amended in 2020, prohibits transfer of foreign contribution to any other person.
The lawyer is alleged to have done the bidding of his foreign donors who wish to put pressure on Indian or state governments or coal-based power project proponents. If this is established, the law is clear and there would be adverse consequences for the lawyer and his NGO.
However, laws with terms such as ‘national interest’ seem problematic. What exactly is national interest? According to Hugh Seton-Watson, a renowned scholar of international relations, national interest is a misnomer since governments, not nation-states, make foreign policy. The term, ‘government interest’, is perhaps more appropriate. National interest, according to Hans Morgenthau, a jurist and political scientist, includes desires on the part of the sovereign State to protect its physical, political, and cultural identities against encroachments by other nation-states. These desires however, differ greatly from state to state and from time to time. National interest also remains problematic because short-term (economic) and long-term (environmental) interests may be at variance. Since national interest varies from time to time, what was tolerated or condoned earlier may not be in current times. This means different consequences at different times for the same action, but such should not be the case. The matter should be settled based on objective metrics, and here is an opportunity to settle the issue of falling foul of national interest.
Environmental degradation due to human population dynamics and consumption levels, overexploitation of natural resources, pollution, and climate change are yet to be reined in despite multiple commitments by countries and efforts in policy and practice. This is because of ‘national interest’ that prioritises energy and economic security of the present population over environmental security of the present and the yet unborn population. Since no economy can thrive on a dead planet, economic interests should be subordinate to environmental interests.
Climate action for limiting global warming to 1.5°C, for example, requires transforming almost all systems; but the transformations are not occurring fast enough. A global assessment of progress across 40 indicators of systems change finds that none is on track to reach the 2030 targets. For 27 indicators, change is heading in the right direction but at an insufficient pace. Change in another five indicators is in the wrong direction. Data are insufficient to evaluate the remaining eight. To achieve quthe 2030 targets, enormous acceleration in effort is required. Coal in electricity generation, for instance, must be phased out six times faster than the recent global rates. It is high time every country takes a hard look at the international commitments made to protect the environment and brings domestic legislation and policy action in line with the respective commitments. Until then, more power to environmental lawyers.
