Coastal Regulation Zone Management and The Grant of Post Facto Clearances: The Case of Vanashakti & Anr. V. UOI & Ors.
– Lianne D’Souza, Research Fellow, CEERA
– Jayanti Jaya, 3rd year Law Student, NLU Odisha
The Coastal Regulation Zone (“CRZ”) Notification, 1991 represents the first comprehensive legislative document that categorically deals with the management and conservation of India’s vast coastline. The Notification, together with successive amendments, has been hailed as a progressive law that espouses coastal protection measures and guards against unregulated development. However, over the past few years, the regulatory structure under the Notification has faced certain constraints, leading to the dilution of its rigour. One such constraint has been particularly evident in the handling of illegalities arising from the commencement of project activities without the prior approval of the Coastal Zone Management Authority (“CZMA”). Recent trends point towards a rising tendency where project proponents who have commenced industry activity in violation of the Notification have sought to regularise their violations by seeking post facto clearances. As per the mandate of the Notification, all project activities attracting the provisions of the Notification must necessarily obtain prior CRZ clearance from the concerned CZMA prior to their commencement. However, in many an instance, project proponents who have commenced activities in violation of the due process of law have cured the default by obtaining requisite clearance post the commencement of the activity. This trend raises many concerns as it effectively creates a back door for other environmentally harmful activities to be regularised within the legal framework.
The grant of post facto clearances in matters having an ecological bearing is not a new phenomenon. In fact, granting post facto environmental clearances is firmly vouched by the highly debated Environment Impact Assessment Notification, 2020, making it the new wrinkle. In the context of the CRZ regulatory regime as well, this trend is surfacing at an alarming rate. To make things worse, the Ministry of Environment, Forest and Climate Change (“MoEFCC) recently issued a notification, which statutorily recognizes and permits the grant of CRZ clearances through the retrospective route. While the move of the government is laudable to an extent for attempting to give possible violators a window of opportunity in regularising their activities, on the contrary, the Notification also paints a picture of legal condonation. It Recognizing the drastic consequences of such a move, the Bombay High Court has offered some respite in this regard by delving into the legal validity of the impugned notification in the case of Vanashakti & Anr. v Union of India & Ors.
Background of the Case
The factual matrix of the case is such that the Petitioners, vide a public interest litigation, challenged the validity of an Office Memorandum issued by the MoEFCC. The Office Memorandum lays down the procedure for dealing with violations arising from not obtaining prior clearance under the CRZ Notification by project proponents. As per the terms of Office Memorandum, all permissible activities which had commenced work in a coastal regulation zone without obtaining prior clearance would be permitted to be brought under compliance based on the recommendations of the Coastal Zone Management Authority (“CZMA”). To this effect, as a conditional requirement of making reparations for the damage caused, violators would be required to undertake certain activities under the Compensatory Conservation Plan and the Community Resource Augmentation Plan. The Petitioners challenged this Office Memorandum on the ground that it paves way for ex-post facto grant of clearances, enabling regularization of otherwise illegal projects. The main thrust of the Petitioners’ arguments was that the creation of such a window of compliance dilutes fundamental principles of environmental jurisprudence and hits at the core objectives of the Environment (Protection) Act, 1986.
Drawing reference to precedents clarifying the position of post facto environmental clearance, the Bombay Court noted the contents of the Office Memorandum have the effect of diluting rigours of the provisions of the Environment (Protection) Act and other related legislations. Further, the Court observed that despite being bound by the ratio decidendi laid down in the case of Alembic Pharmaceutical Limited v Rohit Prajapati the government elected to follow the contrary. Expressing disapproval for the manner in which illegalities are being regularised, the Court vide its order restrained the Ministry from granting any clearances or permission on the basis of the impugned office memorandum.
Environmental and Legal Dimensions of Post-Facto Approvals
The concept of ex post facto environmental clearances is one which is not sustainable in law. It is an anathema to the objectives of the Environmental (Protection) Act, 1986 and reflects a system of weak environmental governance. As the Apex Court observed in the Alembic Pharmaceuticals case, “environment law cannot countenance the notion of an ex post facto clearance as it goes against the basic principles underlying environmental law and policy”.
Subversion of the Precautionary Principle
On the first count, the grant of post facto clearances is a blatant subversion of the precautionary principle, as it creates a window for throwing caution to the wind. The precautionary principle postulates sound decision making in the face of scientific uncertainty. It advocates forethought in strategic human activity, in part to assess the true nature and consequences of a particular activity and in part, to cope with ambiguous risks. As for environmental decision making, the precautionary principle ensures that the effects of activities on the environment receive adequate consideration before actions are taken in connection with them. Thereby, it helps to deter grave or irreversible harm to the environment or human health in the absence of scientific certainty.
The process of granting environment clearances encapsulates this principle of treading with caution as it lays down a clear-cut procedure to assess the risks associated with a particular industrial activity. This principle facilitates a prior merit review comprising of factual, technical and legal aspects of any developmental projects. It ensures (a) that the state and statutory authorities anticipate, deter and stifle the cause of environmental degradation, (b) that scientific uncertainty shall not act as a ground to put off measures preventing environmental degradation and (c) that the industrialist or developer bears the burden of proving that that the proposed activity is environmental sound. Thus, in effect, the precautionary principle serves as a normative commitment that will help narrow uncertainty between the cause and effect of environmental damage.
The grant of ex-post facto clearance undermines the very essence of the precautionary principle. Post facto clearance means doing away with the due diligence or reasonable care that must necessarily be taken while approving any industrial or development initiative at the very inception. It thus hinders the possibility of conducting an exhaustive assessment of environmental risks associated with a certain activity. This approach overlooks the damage already caused to the environment by the industries, downgrades the importance of the assessment made prior to granting clearances and reduces the entire process to merely a mechanical exercise. Particularly, when the assessment relates to highly fragile eco-system such as the coastal zone, post facto clearances will only blur the actual environmental harm and in turn reduces the entire process to a mere bureaucratic nod for a particular project.
Dilution of the Polluter Pays Principle
The Polluter Pays Principle evolved in the wake of rapid industrial development, as a means of holding polluters accountable for their actions and to internalize the environmental costs of damage ensued. However, though the polluter pays principle was devised as a preventive mechanism to deter activities having drastic environmental consequences, it has served as a most sought-after ticket for industrialists who can pay their way out of violations. The grant of ex-post facto clearance stands in favor of this modus operandi, as it implies that violations -which should have been prevented in the first place – can be condoned by simply paying a price; a price which in many cases is affordable. It gives a clean chit to industries despite the possibly irreversible damage that might have occurred by their activities. Thus, it dilutes the polluters pay principle to that of a ‘pollute and ‘pay’ principle as affluent industries which recklessly undertake industrial activities are simply absolved by paying for the damage.
Over the past few years, this trend of resorting to ex post facto CRZ clearances by compensating for violations has been very evident. For instance, in the case of Jalbiradari and Ors. v. Ministry of Environment & Forests and Ors., the Court ordered the project proponent to pay 25 Lakhs as environment compensation and suspended the project for four months to until further recommendations from MoEFCC, SEIAA and the CZMA could be sought. However, as almost ninety-nine percent of the project was completed by the time the matter was brought to the notice of the Court, there was no other viable alternative but to allow the continuation of the project subject to conditions in the post facto clearance. This depicts how in most cases, the hands of the Courts as well are tied, as projects would have already progressed to a substantial extent. On the contrary in very rare cases such as that of Hazira Macchimar Samiti and Ors. v. Union of India and Ors., the Court adopted a different approach by recognising the fact that no amount of compensation would be adequate enough to warrant the continuation of the industrial activity. The Court, in this case, was called on to deliberate on the legality of post facto clearance for the expansion of port activities in the inter-tidal zone of Hajira District, Surat. Interestingly, the Court stayed the impugned EC and imposed a heavy penalty of 25 crores on the respondents as cost for restoring the damage caused.
The impugned Office Memorandum further enfeebles the polluter pays principle as it follows a compensatory route for condoning the illegality of the projects functioning without clearances and fails to acknowledge the inverse relationship between these unchecked projects and deteriorating environment. It fails to acknowledge situations where no amount of compensation or penalty can undo irreparable ecological damage. Specifically, in terms of coastal eco-systems, which feature a higher level of vulnerability owing to the topographical features, the Memorandum is paving way for unheeded disaster in the making.
Implication of the Order
The order of the Bombay High Court bears much significance for the environmental legal framework and regulatory system. On the regulatory front, it is laudable for creating accountability on the regulatory authorities. It cannot be denied that illegalities under the CRZ Notification have persisted in part due to the lackadaisical approach of the concerned authorities. If activities have commenced unchecked and without requisite clearances, it implies the lack of due diligence on part of the concerned authorities. Through its disapprobation of bureaucratic entanglements typically involved in allowing illegal activities going unchecked, the Court has raised a clarion call for stringent vigilance under the CRZ Notification.
Secondly, through its order, the Court reassures the principles of environmental law. It has positive implication in the way in which post facto allowances will be granted in future. Through its affirmation for placing environmental principles on the highest pedestal, the Court re-affirms that environmental protection can longer be compromised in the name of industrial development. Particularly in dealing with ecologically fragile zones such as the coastal zone, environmental protection cannot be jeopardised through a mere compensatory scheme.
In the persistent debate between trade and environment, the baton is most often handed to the cause of economic development. As in most cases deliberated upon in the past, the option of stifling such development is not viewed as a viable one since the projects so commenced have beneficial implications in generating labour, human resources and the economy as a whole. Furthermore, since most projects present a situation of ‘fait accompli’, where there is no going back to the preliminary environmental harm caused, the Courts are helpless but to recommend grant of approvals, permissions or clearances subject to certain conditions, fines or penalties. However, in situations where violations have caused irreversible damage, a stern precedent must be laid down. A relevant example in this regard is the stringent approach undertaken by the court in the case of Kerala State Coastal Zone Management Authority v. State of Kerala, Maradu Municipality & Ors. In the said case, the Court ordered for the demolition apartment complexes constructed in violation of the CRZ Notification. In doing so, the court indirectly issued a warning that judiciary means business while upholding the norm of sustainable development. Similarly, in the present case, by placing strict reliance on contours of the environmental laws in place, the Court has highlighted that environmental clearances are not merely a mechanical exercise but must be viewed with utmost diligence and reasonable care.
 Coastal Regulation Zone Notification, 2019, Notification No. G.S.R. 37(E) ¶ 7.
 See S.P. Muthuraman and Ors v. Union of India and Ors., MANU/GT/0116/2015, Goa State Coastal Zone Management Authority and Ors. 2001 (2) ALLMR 224.
 Public Interest Litigation No. 8540 of 2021
 (2020) SCC 347
 Sands, P. & Peel, J. Principles Of International Environmental Law, 3rd. ed., (Cambridge University Press (2012).
 Vellore Citizen Welfare Forum v Union of India, (1996) 5 SCC 647 at 658.
 Gitanjali Nain Gill, The Precautionary Principle, Its Interpretation and Application by The Indian Judiciary: ‘When I Use A Word It Means Just What I Choose It to Mean-Neither More nor Less’ Humpty Dumpty, Volume 21(4), 292-308.
 Common Cause v. Union of India, (2017) 9 SCC 499.
 Satish C. Shastri, The Polluter Pays Principle’ And The Supreme Court of India, p.108, Journal of the Indian Law Institute , January-March 2000, Vol. 42, No. 1 (January-March 2000).
 See, Lafarge Umiam Mining Private Limited v Union of India, (2017) 7 SCC 338