A recent court verdict has put a halt on an arbitrary government decision that condoned grave violations of environmental law. If the judicial order survives the inevitable appeals in the Supreme Court, it may prove to be a setback for the controversial Koodankulam Nuclear Power Plant's Unit 1 and Unit 2, and most of the buildings inside the once-verdant campus of Indian Institute of Technology-Madras, among other offenders.
On July 7, the National Green Tribunal struck down two office memoranda in which the Ministry of Environment & Forests had outlined the procedure for granting “ex-post facto prior environmental clearances”. That phrase makes no sense to a normal person. “Ex-post facto” means “after the act.” In this case, the “act” refers to projects begun or completed without environmental appraisal or clearance. “Prior” refers to the stage at which certain kinds of projects – like large real estate developments, power plants, dams, mines, roads and factories – are required to obtain clearance from the state or central governments. These requirements are mandated under the Environmental Impact Assessment Notification, 2006 and the Coastal Regulation Zone Notification, 2011. Prior clearance means that permission for the project has to be obtained before commencing work on it, not after.
According to these memoranda of 2012 and 2013, projects constructed illegally without requisite clearances can apply for regularisation if the proponent suspends activity on the project pending clearance, apologises, promises to never again violate environmental laws and subjects itself to prosecution by the regulator.
Declaring the two memoranda as contravening the provisions of the Environmental Protection Act, 1986, a bench headed by National Green Tribunal chair Swatanter Kumar said, “They suffer from the infirmity of lack of inherent jurisdiction and authority.” Office Memorandum are administrative instruments used by the executive for clarifying issues and easing administration. In this case, they had been used as instruments to amend a law. Additionally, they had amended the law with a view to weakening its original intent of protecting the environment and had put in place a mechanism for continued violations and regularisations.
The clearance granting process, if followed sincerely, can be quite effective in meeting the objectives of environmental protection laid down in the Environmental Protection Act, 1986. Environmental due diligence requires project proponents to assess the environmental impacts of their activities. Because environmental quality has a direct bearing on livelihoods and health, the environmental impact assessments also need to incorporate social and health impact studies. In theory, the process of considering clearances for projects involves public and expert scrutiny of these assess. In reality, though, wherever the process has hindered a powerful project or influential interest groups, it has either been diluted through insincere application or outright amendments.
The cases of violations of the Environmental Impact Assessment Notification, 2006, by IIT-Madras and Koodankulam Units 1 and 2 of CRZ rules demonstrate how proponents, regulators and even courts attach so little value to environmental law.
City in the forest
In December 2013, the Chennai Solidarity Group released a report titled “City in the Forest: The Birth and Growth of IIT-M.” That report found that between 2001 and 2013, the Institute had constructed over 52 acres, eating into nearly 8% of its forest cover by axing 8,100 trees. Plans to construct over an additional 58 acres at the cost of 10,000 trees are in the offing, the report claimed.
The report formed the basis for a legal challenge in the green tribunal in Chennai. In the course of the trial, IIT-M admitted that as of 2006, it had proposed to construct buildings covering 329,676.12 square metres. Of this, 10 buildings covering 64,880 square metres had already been completed and seven buildings with a built-up area of 82,382 square metres were under construction.
The EIA Notification, 2006, classifies building projects exceeding 150,000 square meters as “Townships and Area Development Projects,” and mandates promoters to obtain prior environmental clearance. IIT-M had not obtained any such clearance. Nor had it obtained statutory clearances for felling trees, or diverting forests for non-forest use.
IIT's environmental offence is particularly grave considering the ecologically sensitive nature of its 625 acre campus. The institute was carved out of the erstwhile Deer Park. Ecologically, it is indistinguishable from the Guindy National Park with which it shares a boundary. The clackbuck – that ranks alongside the tiger as an endangered species – and several threatened fauna like star tortoise, pangolin and monitor lizard are also found here.
One would think that desecration of such a special place would invite the wrath of regulators and the court. But to the contrary, those attempting to restore legal order by pointing to IIT-M's violations were accused of hindering the educational aspirations of the country's most deserving students. Meanwhile, the offender was rewarded by the state government and the green tribunal's Southern Zone with a way to regularise its illegalities, at least for two of the illegal buildings that were said to be close to completion.
Where the law required the proponent to obtain “prior” environmental clearance, the green tribunal instructed the State EIA Authority to make an exception for IIT's application regarding the two illegal buildings as per a memorandum on December 12, 2012. Curiously, the green tribunal even lifted a temporary injunction it had issued against the operation of the Memorandum a few months earlier.
Only for IIT
The Authority asked IIT-M to tender an official apology and an undertaking that it would not repeat such offences. IIT-M did so. The Authority then notified the government of Tamil Nadu that IIT-M's application cannot be processed unless the government initiated “credible action” – namely, prosecution – against the offenders. If this had been complied with, IIT-M and members of its senior administration – like the Registrar and Director – would be the subjects of a criminal case involving multi-year jail sentences and penalties. Predictably, the government wrote to the Authority saying it had condoned the crime owing to the eminent status of the offenders.
The Authority too unquestioningly accepted this as sufficient proof of credible action. It went ahead and granted post-facto prior clearance to IIT's buildings justifying its action by stating that “credible action taken against the project proponent was received”.
The green tribunal's July 7 order takes things back to square one. IIT-M's construction is illegal and cannot be accorded environmental clearance retroactively. Its directors and administrators are liable to be prosecuted.
Koodankulam critical
In November 2012, arguing a case in the Supreme Court challenging Koodankulam Nuclear Power Plant units 1 and 2, advocate Prashant Bhushan pointed out that Nuclear Power Corporation of India had gone ahead and constructed structures without the statutory prior clearance required under Coastal Regulation Zone Notifications 1991 and 2011. Specifically, a desalination plant had been constructed levelling sand dunes. Boulders had been dumped to form a seawall. A bridge, dyke and seawater intake pipelines had been constructed in the sea. An open discharge channel had been constructed for dumping hot and salt-laden wastewater from the plants onto the beach.
The Nuclear Power Corporation contended that as a project of the Department of Atomic Energy, the complex had been given a blanket exemption to be set up within 500 metres in 1989 by Rajiv Gandhi, who was prime minster at the time. In 1991, the Government of India issued the Coastal Regulation Zone Notification to regulate development activity within 500 metres of the coastline. The rules had a list of permissible activities and one for prohibited activities. Activities such as projects of the Department of Atomic Energy were permissible as long as they applied for and obtained permission from the Ministry of Environment and Forests.
By 1991, though, neither Rajiv Gandhi nor the Union of Soviet Socialist Republics – which was partner to the agreement to set up Koodankulam – survived. It was only in 1998 that the project was recast, this time through an agreement with the Russian Federation. At that time, construction had not begun.
In 2011, the 1991 Notification was superseded by a new set of rules. These rules, among other things, required projects to be cleared based on detailed village-level Coastal Zone Management Plans that incorporated the customary and livelihood uses of the coast and the sea by the fishing community. Both the 1991 and 2011 rules require proponents to apply for coastal regulation zone clearance even for permissible projects. The Nuclear Power Corporation is aware of that, and had applied for prior permission for the desalination plants attached to Units 3 to 6.
However, when confronted with the absence of coastal regulation zone clearance for Units 1 and 2, the proponent and its regulator – the Ministry of Environment and Forests – offered to set right the wrong. “MoEF will appropriately again take into account the establishment of desalination plant from the CRZ point of view and ensure that it will continue to function on further satisfaction of MoEF," it said.
Unmindful of the supersession of the 1991 CRZ Notification by the 2011 Notification, the Nuclear Power Corporation applied post-facto for a prior clearance under the defunct 1991 rules. The application is legally untenable on many counts, not the least of is the issue of invoking a dead law to issue a clearance. The Tamil Nadu Coastal Zone Management Authority, which is considering the application, echoed a sense of Kafkaesque despondency while placing NPCIL's application for consideration:
The absence of coastal regulation zone clearance is not merely a technical or legal formality. India's east coast is marked by massive seasonal movement of sediment up and down the shoreline. A September 2005 study for the Nuclear Power Corporation estimates that there is a net transport of 420,000 cubic metres of sediment towards east at the project site. It is this sediment drift that nourishes beaches and maintains the coastline. Hard structures like the sea wall, bridge and dyke can block the movement of sand and cause severe erosion of the shoreline to their east.
“It had to happen,” Idinthakarai fisherman UP Rayappan said. "The bridge and seawall have eaten into our beach. Soon our houses will also be swallowed by the sea."
Even though the plant only operates once in a while, plagued as it is by frequent breakdowns, it discharges large volumes of hot waste water onto the beach. At full capacity, each unit can discharge 6.3 billion litres of scalding hot water per day. Idinthakarai fisherman S Paul says the hot water flows as a southbound stream into the sea to a distance of 3 km south. Hot water reduces the life-sustaining capacity of seawater by decreasing its dissolved oxygen content. The biomass rich waters of the Gulf of Mannar are already showing signs of thermal stress, according to local fishers. “We have seen a significant decline in commercially valuable fish like pomfret, white prawn and lobsters,” said Paul.
Curiously, the CRZ clearance granted to Units 3 to 6 acknowledge the dangers of discharging such large volumes of hot waste water at the beach. That is why the clearance recommends deep sea discharge through a pipeline as opposed to the open channel discharge at Units 1 & 2.
The Nuclear Power Corporation obtained its post-facto prior clearance under CRZ in May 2013. The legal validity of this clearance, and hence the project as a whole is now under question, given that the NGT has ruled the granting of post-facto clearance ultra vires.
Nityanand Jayaraman is a Chennai-based writer and social activist. He is part of the Chennai Solidarity Group for Koodankulam Struggle, and author of the report City in the Forest: The Birth and Growth of IIT-M mentioned in the article.
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On July 7, the National Green Tribunal struck down two office memoranda in which the Ministry of Environment & Forests had outlined the procedure for granting “ex-post facto prior environmental clearances”. That phrase makes no sense to a normal person. “Ex-post facto” means “after the act.” In this case, the “act” refers to projects begun or completed without environmental appraisal or clearance. “Prior” refers to the stage at which certain kinds of projects – like large real estate developments, power plants, dams, mines, roads and factories – are required to obtain clearance from the state or central governments. These requirements are mandated under the Environmental Impact Assessment Notification, 2006 and the Coastal Regulation Zone Notification, 2011. Prior clearance means that permission for the project has to be obtained before commencing work on it, not after.
According to these memoranda of 2012 and 2013, projects constructed illegally without requisite clearances can apply for regularisation if the proponent suspends activity on the project pending clearance, apologises, promises to never again violate environmental laws and subjects itself to prosecution by the regulator.
Declaring the two memoranda as contravening the provisions of the Environmental Protection Act, 1986, a bench headed by National Green Tribunal chair Swatanter Kumar said, “They suffer from the infirmity of lack of inherent jurisdiction and authority.” Office Memorandum are administrative instruments used by the executive for clarifying issues and easing administration. In this case, they had been used as instruments to amend a law. Additionally, they had amended the law with a view to weakening its original intent of protecting the environment and had put in place a mechanism for continued violations and regularisations.
The clearance granting process, if followed sincerely, can be quite effective in meeting the objectives of environmental protection laid down in the Environmental Protection Act, 1986. Environmental due diligence requires project proponents to assess the environmental impacts of their activities. Because environmental quality has a direct bearing on livelihoods and health, the environmental impact assessments also need to incorporate social and health impact studies. In theory, the process of considering clearances for projects involves public and expert scrutiny of these assess. In reality, though, wherever the process has hindered a powerful project or influential interest groups, it has either been diluted through insincere application or outright amendments.
The cases of violations of the Environmental Impact Assessment Notification, 2006, by IIT-Madras and Koodankulam Units 1 and 2 of CRZ rules demonstrate how proponents, regulators and even courts attach so little value to environmental law.
City in the forest
In December 2013, the Chennai Solidarity Group released a report titled “City in the Forest: The Birth and Growth of IIT-M.” That report found that between 2001 and 2013, the Institute had constructed over 52 acres, eating into nearly 8% of its forest cover by axing 8,100 trees. Plans to construct over an additional 58 acres at the cost of 10,000 trees are in the offing, the report claimed.
The report formed the basis for a legal challenge in the green tribunal in Chennai. In the course of the trial, IIT-M admitted that as of 2006, it had proposed to construct buildings covering 329,676.12 square metres. Of this, 10 buildings covering 64,880 square metres had already been completed and seven buildings with a built-up area of 82,382 square metres were under construction.
The EIA Notification, 2006, classifies building projects exceeding 150,000 square meters as “Townships and Area Development Projects,” and mandates promoters to obtain prior environmental clearance. IIT-M had not obtained any such clearance. Nor had it obtained statutory clearances for felling trees, or diverting forests for non-forest use.
IIT's environmental offence is particularly grave considering the ecologically sensitive nature of its 625 acre campus. The institute was carved out of the erstwhile Deer Park. Ecologically, it is indistinguishable from the Guindy National Park with which it shares a boundary. The clackbuck – that ranks alongside the tiger as an endangered species – and several threatened fauna like star tortoise, pangolin and monitor lizard are also found here.
One would think that desecration of such a special place would invite the wrath of regulators and the court. But to the contrary, those attempting to restore legal order by pointing to IIT-M's violations were accused of hindering the educational aspirations of the country's most deserving students. Meanwhile, the offender was rewarded by the state government and the green tribunal's Southern Zone with a way to regularise its illegalities, at least for two of the illegal buildings that were said to be close to completion.
Where the law required the proponent to obtain “prior” environmental clearance, the green tribunal instructed the State EIA Authority to make an exception for IIT's application regarding the two illegal buildings as per a memorandum on December 12, 2012. Curiously, the green tribunal even lifted a temporary injunction it had issued against the operation of the Memorandum a few months earlier.
Only for IIT
The Authority asked IIT-M to tender an official apology and an undertaking that it would not repeat such offences. IIT-M did so. The Authority then notified the government of Tamil Nadu that IIT-M's application cannot be processed unless the government initiated “credible action” – namely, prosecution – against the offenders. If this had been complied with, IIT-M and members of its senior administration – like the Registrar and Director – would be the subjects of a criminal case involving multi-year jail sentences and penalties. Predictably, the government wrote to the Authority saying it had condoned the crime owing to the eminent status of the offenders.
The Authority too unquestioningly accepted this as sufficient proof of credible action. It went ahead and granted post-facto prior clearance to IIT's buildings justifying its action by stating that “credible action taken against the project proponent was received”.
The green tribunal's July 7 order takes things back to square one. IIT-M's construction is illegal and cannot be accorded environmental clearance retroactively. Its directors and administrators are liable to be prosecuted.
Koodankulam critical
In November 2012, arguing a case in the Supreme Court challenging Koodankulam Nuclear Power Plant units 1 and 2, advocate Prashant Bhushan pointed out that Nuclear Power Corporation of India had gone ahead and constructed structures without the statutory prior clearance required under Coastal Regulation Zone Notifications 1991 and 2011. Specifically, a desalination plant had been constructed levelling sand dunes. Boulders had been dumped to form a seawall. A bridge, dyke and seawater intake pipelines had been constructed in the sea. An open discharge channel had been constructed for dumping hot and salt-laden wastewater from the plants onto the beach.
The Nuclear Power Corporation contended that as a project of the Department of Atomic Energy, the complex had been given a blanket exemption to be set up within 500 metres in 1989 by Rajiv Gandhi, who was prime minster at the time. In 1991, the Government of India issued the Coastal Regulation Zone Notification to regulate development activity within 500 metres of the coastline. The rules had a list of permissible activities and one for prohibited activities. Activities such as projects of the Department of Atomic Energy were permissible as long as they applied for and obtained permission from the Ministry of Environment and Forests.
By 1991, though, neither Rajiv Gandhi nor the Union of Soviet Socialist Republics – which was partner to the agreement to set up Koodankulam – survived. It was only in 1998 that the project was recast, this time through an agreement with the Russian Federation. At that time, construction had not begun.
In 2011, the 1991 Notification was superseded by a new set of rules. These rules, among other things, required projects to be cleared based on detailed village-level Coastal Zone Management Plans that incorporated the customary and livelihood uses of the coast and the sea by the fishing community. Both the 1991 and 2011 rules require proponents to apply for coastal regulation zone clearance even for permissible projects. The Nuclear Power Corporation is aware of that, and had applied for prior permission for the desalination plants attached to Units 3 to 6.
However, when confronted with the absence of coastal regulation zone clearance for Units 1 and 2, the proponent and its regulator – the Ministry of Environment and Forests – offered to set right the wrong. “MoEF will appropriately again take into account the establishment of desalination plant from the CRZ point of view and ensure that it will continue to function on further satisfaction of MoEF," it said.
Unmindful of the supersession of the 1991 CRZ Notification by the 2011 Notification, the Nuclear Power Corporation applied post-facto for a prior clearance under the defunct 1991 rules. The application is legally untenable on many counts, not the least of is the issue of invoking a dead law to issue a clearance. The Tamil Nadu Coastal Zone Management Authority, which is considering the application, echoed a sense of Kafkaesque despondency while placing NPCIL's application for consideration:
“The applicant has already completed constructions and no provision is available in the CRZ Notification 2011 for the ratification. However, the unit has established the installations for the above proposals based on exemptions obtained … during the year 1989 … The Authority may consider.”
The absence of coastal regulation zone clearance is not merely a technical or legal formality. India's east coast is marked by massive seasonal movement of sediment up and down the shoreline. A September 2005 study for the Nuclear Power Corporation estimates that there is a net transport of 420,000 cubic metres of sediment towards east at the project site. It is this sediment drift that nourishes beaches and maintains the coastline. Hard structures like the sea wall, bridge and dyke can block the movement of sand and cause severe erosion of the shoreline to their east.
“It had to happen,” Idinthakarai fisherman UP Rayappan said. "The bridge and seawall have eaten into our beach. Soon our houses will also be swallowed by the sea."
Even though the plant only operates once in a while, plagued as it is by frequent breakdowns, it discharges large volumes of hot waste water onto the beach. At full capacity, each unit can discharge 6.3 billion litres of scalding hot water per day. Idinthakarai fisherman S Paul says the hot water flows as a southbound stream into the sea to a distance of 3 km south. Hot water reduces the life-sustaining capacity of seawater by decreasing its dissolved oxygen content. The biomass rich waters of the Gulf of Mannar are already showing signs of thermal stress, according to local fishers. “We have seen a significant decline in commercially valuable fish like pomfret, white prawn and lobsters,” said Paul.
Curiously, the CRZ clearance granted to Units 3 to 6 acknowledge the dangers of discharging such large volumes of hot waste water at the beach. That is why the clearance recommends deep sea discharge through a pipeline as opposed to the open channel discharge at Units 1 & 2.
The Nuclear Power Corporation obtained its post-facto prior clearance under CRZ in May 2013. The legal validity of this clearance, and hence the project as a whole is now under question, given that the NGT has ruled the granting of post-facto clearance ultra vires.
Nityanand Jayaraman is a Chennai-based writer and social activist. He is part of the Chennai Solidarity Group for Koodankulam Struggle, and author of the report City in the Forest: The Birth and Growth of IIT-M mentioned in the article.
