To

Shri R P Gupta
Secretary
Ministry of Environment, Forests & Climate Change (MEFCC)
Govt of India

Dear Shri Gupta,

Please read this letter in continuation of my earlier letter dated 19-3-2021 on imprudence on the part of your Ministry allowing ex-post facto approvals for projects coming up in violation of the CRZ notification.

I have had an opportunity to go through MEFCC communication F No. 19-27/2015-IA.III dated 19-2-2021 in which your Ministry has permitted ex-post facto CRZ approvals for projects. The instructions contained in that communication are legally unsustainable and are liable to be contested for the following reasons, in addition to the objections I have already raised.

CRZ notifications are issued by your Ministry in exercise of the power vested in your Ministry under sub-section (1) and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986. Before issuing such notifications, there is an elaborate public consultation process to be followed, as it implies a significant change in the ambit of the earlier statutory notifications. On the other hand, the above cited communication is merely an executive order which cannot override the statutory notifications. It should therefore be deemed to be prima facie illegal.

As pointed out by me in my earlier letter dated 19-3-2021, absence of prior CRZ clearance cannot be regularised through the fiat of an executive order, as CRZ clearance for a given project should be preceded by MEFCC’s expert appraisal committee (EAC) laying down the Terms of Reference (TOR) for an EIA study, a comprehensive EIA study that should follow to evaluate the environmental impact of the project on scientific lines, a public consultation procedure that affords an opportunity to the affected communities to express their objections and an objective appraisal of the project by the EAC on the basis of the views expressed by the stakeholders including the affected communities, before MEFCC can finally issue CRZ clearance on the basis of EAC’s recommendation. Ex-post facto approval does away with the public consultation process based on an EIA study and allows CZMA to exercise its judgement on whether the project is permissible under CRZ or not and whether the project involves CRZ violations or not. In my view, this is unacceptable, as no accurate assessment of the environmental costs is possible without considering the objections of the major stakeholders, namely, the affected communities. The process of environment impact assessment as provided in the relevant statute involves participative decision making, which will get abridged as a result of the latest executive order of your Ministry. It violates the principles of natural justice which lie at the core of our Constitution. From this point of view, the latest MEFCC communication is legally untenable.

The majority of the projects that have come up illegally without prior CRZ clearance violate the CRZ norms. Even assuming that there are a few projects which do not violate the CRZ norms per se except the prior-approval requirement, since they have resulted in bypassing the public consultation process, it is necessary to fix the responsibility for allowing such projects to come up without approval, on the regulatory authorities who are expected to monitor such cases. The concerned regulatory authorities include MEFCC and its Regional Offices, the State Pollution Control Boards, the local authorities dealing with regulation of the use of land, especially the coastal land etc. Considering that MEFCC itself has a possible role in this, it amounts to a clear conflict of interest in MEFCC issuing the latest communication. Such a conflict of interest is self-evident in the contents of the communication which is conveniently silent on taking penal action against the errant officials of the Ministry. In my view, the latest communication is meaningless without holding the officers responsible (MEFCC, PCBs etc.) for allowing projects to come up without prior approval.

There are many projects which have come up without approval, which violate the CRZ norms and have caused environmental damage. What is the penal action proposed against the concerned MEFCC officials, the officials of the PCBs, the officials of the local authorities etc.? As a result of the environmental damage, there are social costs imposed on the local communities. How does MEFCC propose to compensate them appropriately? How does MEFCC expect the errant project promoters to be forced to bear the cost of the environmental damage and a deterrent penalty to discourage repetition of such instances? Are there some units whose continued operation will aggravate the damage to the coastal environment and, hence, should be dismantled forthwith? The latest communication is conveniently silent on these aspects.

MEFCC/ PCBs sometimes take shelter on the ground that they have staff shortages to monitor the projects (as they have done in NGT proceedings in OAs 73 &76 of 2020 in LG Polymers case). Regulatory bodies facing staff shortage are expected to devise their own means to address the staff shortage problem by adopting a system of conducting random, surprise inspections within the limitations of the staff available. How many such random inspections have been conducted by MEFCC and its Regional offices and has MEFCC cared to make a public disclosure of the inspection reports? After all, it is the tax payer that bears the expenses on maintaining such regulatory bodies and the least that MEFCC can do is to remain accountable to the tax-payers.

One standing example of the callousness in monitoring projects lies in non-implementation of the compensatory afforestation concept introduced by the apex court in the well known Godavarman case. C&AG, in their report No 2 of 2013, had analysed this and come to the conclusion that, though large extents of forest land had been diverted for projects, no matching compensatory afforestation had been done in compliance with the apex court’s directions. This represents a clear case of failure to monitor such projects on the part of the regulatory authorities at the Centre and in the States.

Most cases of projects coming up without prior CRZ clearance also represent cases of connivance of the project promoters with corrupt officials. They call for suitable action under the relevant provisions of the IPC and Prevention of Corruption Act. Unless these issues are dealt with frontally, MEFCC’s latest communication will only pave the way for continuing CRZ violations and damage to the environment. The recent studies on the coastal environment show the loss of large extents of mangroves, mudflats and marine resources. Should MEFCC continue to preside over such a widespread process of environmental destruction?

Please ponder over these issues urgently and, keeping in view the legal infirmities pointed out, revoke the latest communication before it wreaks havoc on the environment.

Regards,

Yours sincerely,

E A S sarma
Former Secretary to GOI
Visakhapatnam


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