Condoning illegalities on Kutch coast by responding to legal issues through bureaucratic ‘negotiation’

kutchBy Manju Menon,  Kanchi Kohli and Bharat Patel*

The National Green Tribunal (NGT) imposed a Rs.25-crore fine on the port infrastructure and mining giant, the Adanis, in January. It also quashed the 2013 environmental approval for expansion of the Hazira port in Gujarat, stating that it would impact fishing livelihoods and that expansion had been initiated prior to the necessary approvals. This judgment offers an important lesson for those interested in the place of rule of law in environmental governance.

This lesson is most critical for the Environment Ministry that routinely determines not just project approvals but cases of non-compliance of laws as a trade-off between development and its environmental consequences. By responding to the legal issues in these cases through a bureaucratic ‘negotiation’ rather than legal principles, the Ministry undermines its own protocol of impact assessments, expert appraisal and grant of conditional clearances that is mandated by law. It is no surprise then that environmental laws and court judgments are observed more in the breach.

A recent decision of the Ministry on the long-pending violations by the Adani Port and Special Economic Zone Limited (APSEZ) located on Gujarat’s Kutch coast shows that this government too might be unwilling to take a tough stand on habitual environmental offenders. The Ministry’s file notings are disappointing specifically because this is one of the few cases where there is ample evidence of illegality in the project and official acknowledgment about the same by regulatory agencies. Yet, the Central government’s final orders on APSEZ’s Waterfront Development Project (WFPD) are soft on the project’s environmental abuse and ignore the difficulties caused to the coastal communities of Kutch.

History of abuse

Set up in 2009 in a unique inter-tidal landscape, through multiple clearances to variously named companies, APSEZ was legally challenged soon after because construction activities had been initiated prior to the grant of environmental approval, significantly impacting the pastoralists and the fisher communities.

By December 2010, complaints from the Machimar Adhikar Sangharsh Samiti led the Ministry to undertake a site inspection and issue a show-cause notice to the company. Both documents concluded that the coastal regulation and environment impact assessment notifications under the Environment (Protection) Act had been violated. As complaints continued, including from the Kheti Vikas Seva Trust, a local NGO in Mundra, the Ministry set up a committee under the chairpersonship of Sunita Narain, head of the Centre for Science and Environment. Following the committee’s report in April 2013, another show-cause notice was issued in September that year, highlighting the continuation of violations.

The Adanis responded saying they had not violated any clearance conditions and had taken considerable steps to protect fishing livelihoods and mangrove plantations. It has been quite natural for companies to refuse any role in damaging the environment even when they are engaged in the most extractive operations. They also blur the difference between mandatory obligations towards local communities and the environment and voluntary CSR activities.

Drawing a conclusion based on Adanis’ responses and the committee’s observations, a Ministry official in charge of the case justified action against revocation of clearance. A file note by the then Special Secretary stated in December 2014: “There is large-scale and conclusive evidence of violation of environment conditions. Cancellation of EC will further halt development and economic growth, whereas ecosystem restoration along with carrying out Cumulative Impact Assessment will not only restore damage done to the environment but also appropriately guide future development activities with the boundaries determined by environment parameters”.

In June 2015, Environment Minister Prakash Javadekar sought details of the evidence on mangrove destruction, blocking and bunding of creeks, and dredging. In response, a note by the Ministry’s Joint Secretary in August 2015 read: “The records made available in the committee report and the observations therefrom are based on changes in satellite imagery between… 2005 and 2011. It is not possible to clearly establish whether such changes took place before 2007 when the land came in possession of PP or [the] period thereafter.” This is contrary to official conclusions and testimonials of the affected communities, and also mimics claims made by the project proponent.

A ground truthing study done by the members of Mundra Hitrakshak Manch in 2012-2013 in collaboration with the authors of this article had anticipated this response. This study, which includes the affected communities, correlated all satellite images showing the violations with ground-level events undertaken by the project at those times through photographs, reference to studies, and complaints filed by the affected people. This report was submitted to the government and the Sunita Narain Committee.

Economic growth and unlawfulness

In March 2015, based on complaints filed by people affected by pollution, the Gujarat government issued show-cause notices to 53 polluting units that have discharged effluents into the Kolak and Damanganga river estuaries in Vapi, a chemical industry hub. There are many such examples of judicial and non-judicial efforts where citizens, researchers, pro bono lawyers and affected communities have worked together to generate evidence of non-compliance by projects that result in life-threatening pollution, loss of local economic opportunities, and damage to the environment. In many of these cases, local government officers have acknowledged the need for enforcement of law and remedy of impacts. However, what ensues after explosive show-cause notices are issued are well-rehearsed strategies of scuttle and dodge.

Despite all the evidence of the illegalities of the APSEZ, the final orders dated September 18, 2015 from the Environment Ministry have allowed the project to proceed with an approval process for the north port, which had earlier been restricted due to non-compliance; questioned the legal basis of the payment of Rs.200 crore recommended by the Sunita Narain Committee as a restoration fund; declared the neighbouring Bocha island a conservation zone which will impose restrictions on the fishermen rather than the project; and recommended yet more studies for mitigation.

This order and the show-cause notices of 2010 and 2013 allow us to conclude that non-compliance by big-ticket projects can be condoned.

*With the Centre for Policy Research-Namati Environment Justice Programme. First published in http://www.thehindu.com/

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