Construction on the Parakkani check dam, Kanyakumari. Photo: Satheesh Lakshmanan
Chennai: Tamil Nadu, which has the second largest coastline in India of 1,076 km, has been experiencing severe erosion in recent years both due to natural and anthropogenic causes. But the biggest challenge is unplanned and illegal coastal infrastructure projects mushrooming along the coast.
Thanks to well-defined Coastal Regulation Zone (CRZ) rules, local environmental activists have managed to halt most illegal projects that lacked prior approvals and violated norms, by challenging them in the National Green Tribunal and the Madras high court.
But on February 19 this year, the Union environment ministry issued an office memorandum (OM) that allows projects that violated CRZ Notification 2011 to get post facto clearance. Before that, there was no provision to obtain such clearances: the projects that started without getting prior CRZ clearance were deemed to be illegal and couldn’t proceed further.
The OM has been sent to the environment secretaries of all coastal states and union territories.
The ministry had apparently “received several requests from the coastal state governments for proposals, under CRZ Notification 2011, to consider CRZ clearance [for] permissible activities that have commenced work without a prior CRZ clearance due to inadequate knowledge of the regulatory regime and other factors,” Sujit Kumar Bajpayee, joint secretary of the CRZ division at the ministry, said in the OM. “Bringing such projects and activities in compliance with the environmental laws at the earliest point of time is therefore essential, rather than leaving them unregulated and unchecked, which will be more damaging to the environment.”
The OM says that to regularise projects that commenced construction and/or operations without a prior clearance, the respective Coastal Zone Management Authority should assess the environmental damage caused and provide specific recommendations. The project proponent should then implement them within three years from the date of clearance, under a Compensatory Conservation Plan or a Community Resource Augmentation Plan.
Through the OM, the government has opened the backdoor to many violations. For instance, the controversial storm water drain project on Chennai’s East Coast Road had been halted in March this year after an order from Tamil Nadu State Coastal Zone Management Authority (TNSCZMA), but it is now likely to get a breather.
An expert committee constituted by the southern bench of the National Green Tribunal confirmed that the Chennai Corporation, which was executing the storm water drain project, didn’t obtain prior CRZ clearance before commencing work. The tribunal bench had asked the corporation to comply with the TNSCZMA’s “stop work” order.
But after the ministry issued the OM, a senior corporation official told New Indian Express, “We are waiting for [the tribunal’s] directions. If the tribunal directs us to get CRZ clearance, then we will apply for post facto clearance under the new provision.”
Similarly, the Parakkani check dam on the Thamirabharani river, whose construction the Public Works Department (PWD) began in 2018 near Iraiyumanthurai, in Kanyakumari district, to stop seawater intrusion was halted after a local fishers’ group filed a petition with the National Green Tribunal saying the PWD had started work before obtaining a CRZ clearance.
An expert committee of the tribunal confirmed that the check dam’s construction was in a CRZ area and attracted the provisions of the CRZ Notification. It also found that the construction activity had affected the river’s natural flow, and requested the tribunal to collect Rs 80 lakh as compensation from the PWD.
When contacted, PWD superintending engineer N. Gnanasekar said that the project doesn’t violate any environmental laws and that it doesn’t damage the river bed or any parts of the surrounding area. “If the tribunal finds the construction is illegal, we will appeal against the order,” he said.
In a recent judgement, the southern bench of the tribunal ordered the Radisson Blu Hotel located at Mamallapuram beach, in Chengalpattu district, to remove structures constructed within 200 metres from the sea, after finding that all structures within 500 metres of the shore had been built in violation. But for the buildings lying between 200 and 500 metres from the shore, the tribunal gave the company the liberty to approach the environment and ‘regularise’ them via the recent OM.
Another project proponent who stands to benefit from the OM is KTV Oil Mills Pvt. Ltd. and KTV Health Food Pvt. Ltd. Another fishers’ group has been able to obtain a demolition order against KTV, which has built tanks to store edible oil and a storage transit terminal in Tondiarpet and Tiruvottiyur, towards Chennai’s north, in violation of CRZ rules. The tribunal also set aside the CRZ clearance the project had received. The petitioners’ principal concern was that KTV had commenced operations without first obtaining the CRZ clearance. This is was not permissible under CRZ Notification 2011 – but is under the new OM.
Former secretary to the Government of India E.A.S. Sarma had written a letter criticising the OM addressed to the environment department secretary in March. In his letter, he said:
MoEFCC’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 MoEF 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.
Towards explaining the need for the OM, the Centre quotes the Supreme Court judgment in Alembic Pharmaceuticals v. Rohit Pranapati and Ors. (2016), which states: “Even if this court were to hold that the closure of the industries should not be ordered, compensation should be directed to be paid by them for restoration of the environment. These industries have brazenly operated for years without environmental clearances.”
But the same judgment also states that the grant of an ex post facto environmental clearance would be detrimental to the environment and could irreparably degrade the environment. The concept of a retrospective clearance is in fact alien to environmental jurisprudence, and experts say the Centre has misinterpreted the judgment, or at least cherry-picked from it, to favour its agenda.
According to Stanly Hebzon, an environmental lawyer, the Centre’s OM goes against the Supreme Court’s judgment in the Maradu Flats case (2019). Here, the apex court says that the “CRZ notification issued under the Environment (Protection) Act is meant to protect the environment and bring about sustainable development,” according to Hebzon. “Any construction in violation of the CRZ regulations is not to be viewed lightly. Statutory provisions cannot be amended or overridden by executive order or official memorandum.”
Hebzon added that according to Section 3 of the Act, the Centre has the power to amend the notification but not without
consulting with the people and stakeholders first. “The impugned OM will definitely affect the livelihood of the fishers community and other communities that depends on coastal areas.”
Satheesh Lakshmanan is an independent journalist covering environmental issues in Tamil Nadu.