To

Shri R P Gupta

Secretary

Ministry of Environment, Forests & Climate Change (MEFCC)

Govt of India

 

Dear Shri Gupta,

I have just come across a disturbing news report that your Ministry has issued orders permitting industrial projects to obtain post-facto CRZ clearances (https://www.newindianexpress.com/nation/2021/mar/18/centre-allows-projects-to-obtain-post-facto-coastal-regulation-zone-clearance-2278359.html). If this report is factually correct, I am afraid that, by issuing such a regressive order, your Ministry is not only committing a breach of the Constitutional obligation imposed on it by Article 48A but also continuing to dismantle the elaborate system of environmental regulation built over the past several decades. Last year, when your Ministry issued a modified EIA notification, there were voices of dissent from all those concerned with the need to protect the environment and the matter has since come up for judicial scrutiny.

Any post-facto regularisation of a statutory violation is bad in law, as it gives room for a moral hazard that incentivises further violations and literally gives a license to errant units who are fully aware of the existence of the statute but have wilfully chosen to violate it, knowing well that a compliant government will eventually condone it.

This matter has come up again and again before the Hon’ble Supreme Court. The apex court discussed this in some detail in their judgement dated 1-4-2020 in CA No.1526/2016 (Alembic Pharmaceuticals Ltd. Vs Rohit Prajapati & Ors.). I have extracted below the apex court’s observation:

The concept of an ex post facto EC is in derogation of the fundamental principles of environmental jurisprudence and is an anathema to the EIA notification dated 27 January 1994. It is, as the judgment in Common Cause holds, detrimental to the environment and could lead to irreparable degradation. The reason why a retrospective EC or an ex post facto clearance is alien to environmental jurisprudence is that before the issuance of an EC, the statutory notification warrants a careful application of mind, besides a study into the likely consequences of a proposed activity on the environment. An EC can be issued only after various stages of the decision-making process have been completed.

Requirements such as conducting a public hearing, screening, scoping and appraisal are components of the decision-making process which ensure that the likely impacts of the industrial activity or the expansion of an existing industrial activity are considered in the decision-making calculus. Allowing for an ex post facto clearance would essentially condone the operation of industrial activities without the grant of an EC. In the absence of an EC, there would be no conditions that would safeguard the environment. Moreover, if the EC was to be ultimately refused, irreparable harm would have been caused to the environment. In either view of the matter, environment law cannot countenance the notion of an ex post facto clearance. This would be contrary to both the precautionary principle as well as the need for sustainable development.

These observations are valid in the case of ex-post facto CRZ violations as much as in the case of ex-post facto ECs as the principles enunciated are one and the same.

Whether it is a process of Environmental Impact Assessment or a CRZ clearance, there is an elaborate process of MEFCC’s Expert Appraisal Committee (EAC) laying down the Terms of Reference (TOR) for an EIA study, a process of an impact assessment study on scientific lines, a public consultation process and finally the EAC appraising the project proposal in the light of its likely impact on the environment and the concerns expressed by the different stakeholders, specially the affected communities. Once MEFCC sends a signal belittling this process, it amounts to giving an undue license to the industrial units to take the authorities for granted and play havoc with the environment in a manner that hurts the public interest.

What distresses me is that there have been several scientific studies on global warming and the likely rise in the sea levels across the world that point towards the need to tighten coastal regulation. Several countries have already responded to this emerging problem and started introducing more and more rigorous norms of coastal regulation. To introduce CRZ relaxations of the kind cited above would amount to ignoring what prudence calls for and adopting a myopic point of view.

I have personally dealt with the CRZ violations along the AP coast and I can say with some confidence that most CRZ violations have occurred as a result of outright collusion between the regulatory authorities and the errant project promoters who are prepared to pay a price to corrupt officials for consciously ignoring the violations. There is already a feeling among such project promoters that they could pressurise the political leaders and pliant officers to present their case for post-facto CRZ approvals. Many of them have been openly saying that they have done enough lobbying with the State government and MEFCC to be able to secure relaxations. It looks as though they have had the last laugh in the matter!

What do such post-facto approvals imply?

For example, mechanical pumping of ground water within the CRZ results in the salinity of the sea contaminating the ground water aquifers. Most projects within the CRZ have drilled bore wells as a result of which the local ground water aquifers have already turned saline. Who should be penalised for this? Once contaminated, it may not be easy to restore the the ground water aquifers to their pristine condition. Similarly, projects set up in CRZ III release their waste water directly into the sea without any treatment, which in turn has caused an enormous damage to the marine resources. There has been a decline in the tonnage of fish harvesting along the coast as a result of pollution from industrial units. Such violations have long-term adverse economic implications. If there is a well laid down regulatory procedure, it will be possible for the different regulatory authorities to study the environmental implications of a given project, elicit the concerns of the stakeholders and take a well considered view on it.

There are well established principles of environmental jurisprudence that should govern regulation through CRZ and EC processes.

For example, the Precautionary Principle places a burden on the State to take measures tp prevent risk, even if there is no sufficient scientific evidence to establish that risk. This principle owes its genesis to the Rio declaration on environment. Similarly, the “Polluter Pays” principle envisages the cost of containing the pollution being born by the polluter.

There are international treaties on these to which India is a signatory. Instead of adopting a leadership role among the nations in this respect, by issuing such regressive orders, MEFCC seems to be consciously denying itself such a role, merely to cave in to errant project promoters at home. No wonder that several polluting industries are willing to move to India in view of the lax regulation we seem to be favouring!

One large community that will get directly affected by the latest MEFCC decision is that of the fisherfolk pursuing traditional fishing activity for their livelihoods. Their population is in excess of 14 million. Your decision to grant post-facto CRZ approvals literally bypasses them and deprives them from having a say in decision making on coastal projects. It looks as though MEFCC has subordinated their interests to those of promoters of projects. MEFCC’s decision thus runs counter to a democratic, participative decision making process that should lie at the core of the governance system in India.

I therefore request MEFCC to review the order urgently and revoke it forthwith.

Regards,

Yours sincerely,

E A S Sarma,Former Secretary to GOI, Visakhapatnam


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