India’s environment ministry has come out with a set of rules which facilitates any industrial project that starts in an ecologically sensitive coastal zone without required permissions, to compensate by paying for a conservation and environmental management plan, and avoid the risk of closure.
On February 19, the Union Ministry of Environment, Forest and Climate Change sent an “office memorandum” to all coastal states detailing the procedure for dealing with violations by industries starting projects without obtaining a valid Coastal Regulation Zone clearance.
The ministry’s order held that for “protecting and improving the quality of the coastal environment and abating the coastal environmental pollution, it is necessary that all entities not complying with Coastal Regulation Zone notification be brought under compliance of the environmental statutes in an expedient manner”.
Under the present laws governing India’s coastal zones, prior clearance is needed from the authorities before any projects such as ports, thermal power plants or storage facilities are started. If a project starts without such clearance, it faces closure, criminal action and fine.
However, over the years, hundreds of cases have been recorded where projects started without a valid clearance and a change in the laws as outlined in the memorandum offers a lifeline for such projects.
The ministry, in its latest order, noted that it has received several requests from the coastal state governments for proposals, under the Coastal Regulation Zone notification 2011, for considering Coastal Regulation Zone clearance in respect of permissible activities that commenced work without a prior clearance due to inadequate knowledge of the regulatory regime and other factors.
“Bringing such projects and activities in compliance with the environmental laws at the earlier point of time is therefore essential, rather than leaving them unregulated and unchecked will be more damaging to the environment,” the ministry noted in the office memorandum.
It even cited a Supreme Court order of April 2020 mentioning that the “closure of the industries are not warranted, however, order for payment of compensation as a facet of preserving the environment in accordance with the precautionary principle has been imposed and proposal for environment clearance must be examined on its merits, independent of any proposed action for alleged violation of the environmental laws”.
The ministry noted that therefore it is “necessary to establish” a process for appraisal of such cases of violation, for prescribing “adequate environmental safeguards on such entities”, for providing and enabling “process to deter” violations of the provisions of the Coastal Regulation Zone notification and ensure that environmental damage is “adequately compensated” for.
It is not the first time that the environment ministry has tried to bring in the option of post-facto approvals. Over the years, successive governments have been trying to bring in this provision for green clearances. In 2020, such attempts were criticised by the Supreme Court of India as well.
Plans for compensation
The ministry in its order noted that all activities, which are otherwise permissible under the provisions of the Coastal Regulation Zone notification but have commenced construction without prior clearance would be considered for prospective clearance only in such cases wherein the project proponent applies for such a clearance to the concerned coastal zone management authorities.
It specified that such industries will need to apply along with required documents including the marine environmental impact assessment report.
It held that the coastal zone management authorities shall “assess the environmental damages” caused by projects starting without CRZ clearance and give specific recommendations for addressing them under Compensatory Conservation Plan and a Community Resource Augmentation Plan.
The activities that the ministry specified can be taken up under these plans are mangrove and seagrass replantation, protection of sand dunes/mudflats, measures for the regeneration of beach sand, measures for controlling coastal erosion, construction and maintenance of cyclone shelters, setting up of solar and other non-conventional energy sources at villages or habitations, restoration of water bodies, setting up of rainwater harvesting systems, beach cleaning and development of beach amenities.
Activities that ministry specified can be included in community resource plans are the adoption of nearby coastal village and providing civic amenities, creation of self-help group and cooperative society for the marketing of local community produce, creation of micro-financing facilities, for the local community, in particular fishermen community, identification and training of unemployed youth in the nearby villages for eventual absorption in the company, sustainable community solid waste management strategy and programme, installation and maintenance of the organic waste collection, disbursement and disposal of fishing nets with financial incentives, renovation and maintenance of village wells.
The ministry said that the Coastal Zone Management Authorities should ensure that the project is in consonance with the approved coastal zone management plans.
Controversial changes
The ministry’s order said that projects (which start before getting clearance) will be appraised for appropriate recommendations by its expert appraisal committee which shall examine the adequacy of the environmental management plan, the conservation plans, and suggest any other suitable remedial measures.
The expert committee shall also decide the percentage of the total project cost required for the implementation of the conservation plans.
The ministry noted that, in addition to obtaining compensation, further action should be taken by the respective state government or state authorities against the industries under the Environment Protection Act 1986 for “not taking prior approval” before starting the projects.
Environmental advocate Ritwick Dutta said that the office memorandum bringing policy changes in laws and regulations is legally untenable and this is something that has been repeatedly made clear.
“The changes that are being pushed under this office memorandum are illegal as an executive order cannot override an established law,” Dutta told Mongabay-India. “In our laws, starting work without consent can lead to violators facing criminal charges which can lead to even imprisonment but this order wants to regularise violations. The government has been trying to do this through various changes over the years.”
“In here, what the government is saying is that we cannot let go a violation unregulated and then is giving provisions to legitimise those violations,” said Dutta. “It will only encourage the violators as they will feel that they can get away by paying fines and proposing conservation plans.”
He emphasised that these changes were also pushed in the amendment of the Environmental Impact Assessment notification 2006 that the central government proposed last year but has not been able to finalise due to stiff resistance from civil society.
Dutta said even the reports of India’s Comptroller and Auditor General has noted that such orders bringing changes in green laws are illegal but despite that, they are still pursued.
In 2020, the National Green Tribunal has directed for removal of an oil storage facility in Chennai which was built in an ecologically sensitive coastal area where such a project is not allowed under the coastal norms. The project had later got post-facto clearance from the environment ministry.
This article first appeared on Mongabay.