Dakshin Foundation 2011 Aarthi Sridhar · Aarthi Sridhar Dakshin Foundation Email: [email protected] Website: Disclaimer: Opinions expressed in this publication are solely the author’s

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Citation: Sridhar, A. 2011. Precaution in coastal regulation: From principle to practice. Dakshin Foundation,Bangalore, p 30.

Aarthi SridharDakshin FoundationEmail: [email protected]: www.dakshin.org

Disclaimer: Opinions expressed in this publication are solely the author’s and not necessarily that ofeither Dakshin Foundation or its donors.

Acknowledgements

I am grateful to Manju Menon and Kanchi Kolhi of Kalpavriksh Delhi for sharing the large volumes ofclearance letters they obtained from the MoEF which I utilised to understand how elements of precautionwere used in environmental decision-making. I would like to acknowledge the research assistanceprovided by Rekha Warrier for this project.

The publication of this report was made possible by a grant from the Environmental Equity and JusticePartnership managed by the Just Environment Charitable Trust and a supporting grant from the UnitedArtists Association and the Global Greengrants Project which provided assistance for field based datacollection and analysis.

Research and production support:

precaution in coastal regulation1

Addressing a gathering of scientists at the 11th ISRO-JNCASR1 Satish Dhawan Memorial Lecture inSeptember 2010, Jairam Ramesh, the Minister ofState, heading the Indian Ministry of Forests andEnvironment (MoEF) outlined how the process ofenvironmental clearances for proposed projectsshould culminate in a choice among three decisions- ‘Yes’, ‘Yes, but’ and ‘No’ (Ramesh 2010). In thelecture the minister portrayed the difficulty ofreconciling between what he termed ‘two cultures’– one promoting economic growth and the otherenvironment protection, often at loggerheads witheach other. While admitting that ‘Yes, but’ decisionsmake up the majority of the environmentalclearances today, he promoted this choice as asuccessful means to effecting ‘inevitable trade-offs’between the two cultural factions.

Whether on account of the scientific communityhe addressed, or the occasion being the memoriallecture of India’s renowned space scientist, theminister repeatedly emphasised the importance ofusing scientific knowledge in arriving at the abovedecisions. Particularly in the case of projects thatreceive ‘yes, but’ clearances (those cleared withspecific conditions) the minister reiterated the needto improvise on the conditions making them more‘scientific, measurable, consistent and objective’. For‘yes’ and ‘no’ decisions, he stated the need to arriveat these choices in the most ‘transparent andconsultative manner’. He also suggested that inmany cases, the final decision on a project is merelya matter of checking the rule books – India’snumerous environment related laws, which tell youif something is permissible or not.

While deciding on a project, do regulators knoweverything about its impacts on the environmentor on human health? What actions or decisionscan be taken in the event of simply not knowingenough about the impacts of proposed actions?What do regulators do in the face of uncertaintieswhere all that science can tell us is that potentialharm is likely? Are all environmental clearancedecisions based on scientific knowledge? What ifthe requisite scientific knowledge simply did notexist? What are the forms of knowledge that are

‘Yes’, ‘Yes, but’ or ‘No’taken into account while making decisions in suchan event?

Notwithstanding its simplistic narrative, the lecturehas been widely circulated and read purely becauseofficial statements on why and how environmentrelated decisions are made are rarely available forpublic consumption. In addition to the MoEF, severalgovernment boards, authorities and departmentshave been set up since Independence to decide onprojects that have some environmental implication.However, little was and continues to be knownabout the drivers of final clearance decisions (theYes, No and Yes, buts). Even lesser still is understoodabout what proportion of these decisions arescientific, legal, economic or political. Similarly,research on clearance procedures show that mostdecisions are not taken in a consultative ortransparent manner even in its narrowest form,through the mandated public hearings for instance.

The decision to act or not act, and further how toact in the face of unknowns or uncertainties is thesubject matter of the precautionary principle (PP).It is against this historical backdrop of unknownsin environmental governance that the present studyon the precautionary principle was conducted. Theminister’s framework for environmental governanceprovides a number of areas where precaution canand must be applied. In addition to these areas, thepresent report is the outcome of a descriptive studythat shows the extent to which key elements ofthe precautionary principle are embedded in thespecific case of two environmental laws related tocoasts. It is hoped that through this study, not onlycan the gaps between such legal principles andpractice be identified, but that various problemsareas in environmental governance are identifiedfor further examination and reform.

from principle to practice

1 Jawaharlal Nehru Centre for Advanced Scientific Research (JNCASR)

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Acting on a principle

The fall-out of evolving human societies is that anumber of actions, technologies, policies, productsand indeed ideas are generated which hold thepotential to cause harm to either the environmentor human health, although both the nature of suchharm and the actual type of response that shouldbe taken itself maybe unknown. An examination ofthe evolution of jurisprudence related toenvironmental laws point to the evolution of keyprinciples such as the precautionary principle inaiding decision-making to regulate actions ofsocieties. However, questions on decision-makingin the face of uncertainty invite opinions that arenot just philosophical and practical at once, but areoften deeply polarised. Although the precautionaryprinciple itself is widely promoted in internationaland national policy platforms, its application toenvironmental and public health decisions is fraughtwith controversy. Some believe that the principleis simply not practical, is paralyzing and unscientific(Sunstein 2005) whereas others believe thatignoring its value in decision-making will end incatastrophic results. Indeed it has also been pointedby critics of the precautionary principle that itsapplication by governments often goesunaccompanied by economic, social and evenenvironmental assessments of such precautionaryactions and thereby taking so-called precautionaryactions need not always be beneficial to society(Cross 1996; Morris 2000; Goklany 2007;). Goklany(2007) even states that the principle itself providesno guidance on how it needs to be applied andcompares it to Yogi Berra’s admonition “when youcome to a fork in the road, take it.”

Recognising the merit in these arguments, yetothers such as Alessandra Arcuri make a case for a‘mild interpretation’ of the principle using bothsubstantive and procedural norms, and activelypromoting its use to guide rule-making (Arcuri2007).

It may not be unfair to suggest that the debates onthe precautionary principle are fractured on thefault line of the determinants of scientific knowledgeand its application. Therefore those who reposefaith in scientific advancements and technologicalsolutions to risk management view theprecautionary principle as being conservative andunreasonable. Whereas, those who subscribe to ahealthy dose of scepticism on technologicalsolutions and the limits of knowledge call for theexercise of precaution. The important role ofscience in the application of this principle needs tobe emphasised. However, despite Jairam Ramesh’sendorsement of science-based decisions, there is acentral paradox in this aphorism particularly in theapplication of science using a precautionaryapproach. Precaution by inference is meant to beexercised in the face of scientific uncertainty but inresponse to a (unknown) probability of harm. Anexamination of the operation of this principleinevitably calls attention to the general process of‘science-based’ environmental decision-making(whether precautionary or not), examining whatconstitutes scientific evidence (of impacts), the limitsof scientific knowledge (about whether we knowenough or not to take a decision), and the adequacyof scientific conditions (‘measurable, fair andconsistent’) issued while saying ‘Yes’, ‘No’ or ‘Yes,but’ as satisfying the condition of precaution.

3precaution in coastal regulation

from principle to practice

The precautionary principle:Origin and meaningIn complex societies it is necessary for laws to bebacked by legal principles since it is impossible forthe text of law (considered absolute) to cover allpossible situations. However the precautionaryprinciple is more of a guideline (as are mostprinciples) and has been interpreted in a variety ofways. There are several papers that analyse thedifferent interpretations and application of thisprinciple though international and nationalconventions, policies or treaties. The various viewpoints on the principle are on account of themultiplicity of definitions and interpretations of theprecautionary principle. The idea of caution hasprobably been exercised by humans since timeimmemorial and is found in various proverbs ormaxims such as ‘looking before leaping’. However,most accounts that seek a legal origin of theprecautionary principle in environmental law traceit to the ‘Vorsorgepr inzip ’ or the Germanenvironmental law principle that advocates‘forecaring and foreseeing’, developed in the early1970s (COMEST 2005). The most popularreference to a detailed articulation of the principlehas been the Rio Declaration on Environment andDevelopment. Principle 15 of this declaration reads,‘In order to protect the environment, theprecautionary approach shall be widely applied byStates according to their capabilities. Where thereare threats of serious or irreversible damage, lackof full scientific certainty shall not be used as areason for postponing cost-effective measures toprevent environmental degradation.’

The Rio Declaration highlights the following aspectsof the principle:

a) the appreciation of harm (serious orirreversible damage)b) the lack of full scientific certainty regarding thenature of the harm or the manner to respondc) the necessity of acting in the face of uncertaintyd) the importance of cost-effective measures

Another popular interpretation of theprecautionary principle was penned in January 1998,at Wisconsin, USA by a group of scientists in adocument known as the Wingspread Statement onthe precautionary principle. It states ‘when anactivity raises threats of harm to human health orthe environment, precautionary measures shouldbe taken even if some cause and effect relationshipsare not fully established scientifically. In this contextthe proponent of an activity, rather than the public,should bear the burden of proof. The process ofapplying the precautionary principle must be open,informed and democratic and must includepotentially affected parties. It must also involve anexamination of the full range of alternatives,including no action.’

The Wingspread Declaration note on the PP,considered to a strong version of the principlehighlights the following aspects:a) potential harm to human health in addition tothe environmentb) the need to place the burden of proof (of thenature of harm) on the proponentc) an open and democratic process of applying theprinciple including potentially affected partiesd) examination of alternatives including taking noaction

Precautionary principle and precautionary approach

Various documents make references to either the term ‘precautionary principle’ or a ‘precautionaryapproach’ and much is made of the difference between both terms. Some refer to the term ‘precautionaryprinciple’ when emphasising the philosophical basis of precaution and others believe that the term‘precautionary approach’ refers to its practical application. In most discussions, the terms are usedinterchangeably where it is believed that the end result is action. The Rio Declaration, uses the word‘approach’ in its English version, and the word ‘principio’ in its Spanish version (COMEST 2005). However,although the distinction between terms appears indistinct, legal experts emphasise that the term‘precautionary principle’ is more authoritative than the ‘precautionary approach’ since the former impliesthat it is derived from a legal principle or a source of law. This accords it greater weightage in internationaldocuments and legal text than the latter. However, this is not to state that ‘precautionary approaches’cannot be made legally binding.

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A conceptual framework to identify elementsof PP in lawAlong with forest and grassland ecosystems, coastalareas in India are biodiversity rich social ecologicalecosystems which have seen an increased presenceof ‘non-coastal’ development projects. Recognisingthe increasing pollution of coastal stretches, theLate Prime Minister, Mrs. Indira Gandhi’s directionsto keep coastal stretches ‘pollution free’ led to theformation of the Coastal Regulation ZoneNotification, 1991 (Chainani 2009). While thiscentral subordinate legislation introduced under theoverarching Environment (Protection) Act, 1986,was a law dedicated only to coastal areas, thereare a range of other laws that also pertain to thesecoastal stretches and which offer some safeguardsagainst harm to the environmental and health. Ofthese, the Water (Prevention and Control ofPollution) Act, 1974, was one of the earliestlegislations that vested state governments withpowers to protect all forms of water sources,including in coastal areas.

Along with climate change related uncertainties,there are varying levels of unknowns related tothe impacts of water pollution and the preciseimpacts of coastal development on ecosystems andhuman populations that draw attention to the PPas a means of acting in the face of unknowns. Aspart of this study, I undertook to examine thesetwo laws (the CRZ Notification, 1991 and theWater Act, 1974) to assess the extent to whichthese laws and decision-making under their ambitfacilitated or incorporated the precautionaryprinciple.

Much has been written about whether theprecautionary principle provides any guidance ordirection for decision-making itself. However it isalso regarded that the broad idea of precaution isat the very heart of many of our environmentalregulations. In several cases, the PP has been quotedin court cases that deal with environmentalproblems. In Vellore Citizens’ Welfare Forum vs.Union of India and Others [1996 (5) SCC 647], athree Judge Bench of this Court referred to the‘precautionary principle’ and the new concept of‘burden of proof’ in environmental matters. TheSupreme Court observed that the PrecautionaryPrinciple and the Polluter Pays Principle have beenaccepted as part of the law of the land. The Court

in the said judgment, on the basis of the provisionsof Articles 47, 48-A ‘and 51-A(g) of the Constitution,observed ‘we have no hesitation in holding that thePrecautionary Principle and the Polluter PaysPrinciple are part of the environmental laws of thecountry.’ Some of the other cases where the PPmakes a prominent appearance and elements ofthe principle appear in the judgement of the courtare seen in the case of A.P. Pollution Control Boardvs. Prof.M.V.Nayadu (Retd.) & Others (1999)(reminding the regulator – the appellate authorityof its responsibility to assess risks and makeprecautionary decisions in the case of specificpolluting industry), the Karnataka Industrial AreasDevelopment Board versus v. Sri C. Kenchappa &Ors. [Case No Appeal (civil) 7405 of 2000, judgmentin 2006] (asking that permission has to be soughtby the promoter from the regulator to undertakean activity) and M.C. Mehta v. Union of India (11October 1996) (ordering the government to limitconstruction in order to protect Badkhal Lake andSurajkund) and S. Jagannath v. Union of India (11December 1996) (requiring environmentalassessment before permitting the setting up ofcommercial aquaculture).

However, there is an immediate concern identifiedearlier in the international context of the PP, whichposes its problems in the Indian context of law aswell. A perusal of various Indian environment relatedlaws shows that the actual words ‘precautionaryprinciple’ or ‘precautionary approach’ are not usedin any of the laws dealing with the environment.Perhaps this is why there is also no working legaldefinition of the same in any of these laws. Themain environmental policies of the country suchas the 1991 Policy on the Abatement of Pollution,and the National Conservation and Strategy PolicyStatement on Environment and Development, 1991and even the National Environment Policy (NEP)of 2005 provide no explicit idea of how approachesto environmental decisions can be based on thisprinciple. The NEP of 2005, merely states that thepolicy itself is based on several principles, one ofwhich is that of the precautionary approach. Tojudge the extent to which the provisions of theselaws or their implementation are precautionary ornot involves evolving certain criteria of whatconstitutes precautionary action.

precaution in coastal regulation

6from principle to practice

Elements of precaution from key literature

From the range of definitions and critiques of thePP, one can identify a few criteria to apply to decisionto test the text to which they are precautionary innature or what elements of precaution they contain.I draw mainly from the approaches advocated bylegal scholar Alessandra Arcuri (2006), the Scienceand Environmental Health Network(www.sehn.org) - a US based group advocating PPas the basis for environmental and health policiesand the work of the Precautionary Principle Project(www.pprinciple.net), particularly from their Asiaand Pacific workshop recommendations onoperationalising the principle.

As critics point out, one can either have a scenarioof absolutely no precaution in the event that thereis any uncertainty regarding the impacts of anactivity or there can be a scenario that Arcuri (2006)elaborates on called Radical PP, wherein any activitythat has the slightest hint of posing a risk or hazardneeds to be banned irrespective of its magnitude,social benefits or the costs of regulation. Both theseextreme versions of the principle would inviteconsiderable conflict and perhaps undesirableimpacts. Therefore an in-between version of theprinciple is suggested by her. In recognition of thediverse view points, and the implications of anextreme interpretation and application of theprinciple, while yet bearing in mind the variouscontributions that disciplines like economics andlaw have made to the precautionary principle, Arcuriproposes a mixed version of the principle, theadoption of which will characterise environmentaldecision-making in the following manner:1. The decision-making process under conditionsof uncertainty will be both iterative and informative.By this, it is implied that the procedures involved inenvironmental clearances for example will containample scope to allow new information to flow inat various stages of a project.2. Regarding the requirement of demonstratingevidence of harm or the distribution of the burdenof proof, Arcuri suggests that the regulator shoulduse scientific evidence available to demonstrate theexistence of triggering factors, thereby placing a‘minimal’ burden of proof to show harm. She alsosuggests that the initiator of a project provide someinformation regarding the potential impacts of his/her activity, using the best available scientific

information.3. Environmental decisions should (a) be informedby science, (b) be open to public participation andscrutiny and (c) should err on the side ofpreservation.

The Science Environment and Health Network(SEHN) (founded in 1994 by a group ofenvironmental organisations in the North America)is a strong advocate of the Wingspread Declaration’sinterpretation of the PP and their literature on thesubject characterises and advocates differentelements of precautionary action. SEHN providesa range of interpretations on how one can applythe PP. For instance they state that ‘any action thatcontributes to preventing harm to humans and theenvironment, learning more about the consequences ofactions, and acting appropriately is precautionary.’ Theystate that an action need not be precautionary innature only if it is They provide a range of criteriato judge whether environmental decisions oractions are precautionary. They also state thatprecaution does not work if it is only a last resortand results only in bans or moratoriums. They linkprecautionary actions to the followingimplementation methods:

1. Exploring alternatives to possibly harmful actions,especially “clean” technologies that eliminate wasteand toxic substances;

2. Placing the burden of proof on proponents of anactivity rather than on victims or potential victimsof the activity;

3. Setting and working toward goals that protecthealth and the environment; and

4. Bringing democracy and transparency to decisionsaffecting health and the environment.

The workshop on the precautionary principle innatural resource management and biodiversityconservation held as part of the fourth regionalsession for Asia of the Global Biodiversity Forum,South-East Asia Manila, the Philippines, on the June20th-23rd 2004 deliberated on how the PP couldbe applied. The report states ‘It is helpful to adopt anadaptive management approach, which includes

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monitoring and periodic review to provide feedback,and amendment of decisions in the light of newinformation. The involvement and consultation ofstakeholders is an important element of this process.The precautionary principle should be implemented andunderstood in a manner consistent with this approach.’

The concepts suggested in the above critiques andapproaches to the PP’s operation are used in thisreport to formulate a framework to examine theextent to which this principle drives our laws.Therefore the elements of precaution that can beidentified for exploration of the operational aspectsof the precautionary principle in a law can comprisethe following questions:

Q. What circumstances trigger the application ofthe principle within the law?Q. Timing: when can and should a regulation beadopted?Q. How are regulations presently formulated? (Dothey follow the preservation error or thetechnology error)Q. What are the monitoring procedures andinstitutional arrangements for the same as providedby the laws?Q. Are there periodic reviews in planningdocuments or management plans or in the

environmental standards or thresholds outlined inthese laws?Q. What is the extent and nature of consultationswith stakeholders and over all kinds of issues?Q. How is the burden of proof distributed betweenregulator and proponent of an activity?Q. What are the documents or the evidencesubmitted by the proponent which forms evidenceof the impacts of his or her proposed actions?Q. Does the regulator show scientific evidence oftriggering factors of harm? To what extent doesscience inform this?Q. Is the decision-making process iterative?Q. Is there scope within the law or itsimplementation for new information to flow inperiodically?Q. Are environmental decisions open to all forpublic scrutiny?Q. Are environmental decisions based on science?Q. Do environmental decisions err on the side ofpreservation?

Attempts were made to assess the functioning ofthe Water Act and the CRZ Notification from theseabove mentioned questions. The methodologyeventually adopted in researching this subject underthis project is mentioned below.



Methodology

The study examines key areas of the clearancecontinuum (law-making, clearance and monitoring)through a single broad question:Q. To what extent is the approach of precautionembedded in decision-making under the CRZNotification 1991 and the Water Act, 1974? Iattempted to examine this question on a continuumthat examines a) the text of the law, b) theconditions under which projects are cleared orrejected and c) issues related to the monitoring ofthese conditions.

a) Elements of precaution in the legal text: Withinthe select pollution related laws (the Water Act,1974 and the Coastal Regulation Zone Notification,1991 under the Environment Protection Act, 1986),the study identified various expressions of specificconcepts related to the precautionary principlewhich are its more well-established elements. Theseinclude studying aspects such as:1. Specific precautionary actions2. Articulation of the possibility of harm/ threats3. Burden of proof / responsibility for precautionand safety4. Assessments of alternatives5. Addressing scientific uncertainty6. Proportionality (process for assessing benefitsfrom precaution or the converse)7. Transparency and participation (as facilitatingprecaution)

In addition, I also contacted 4 pollution controlboards - namely from Orissa, Tamil Nadu, Keralaand Karnataka and held meetings with some of theconcerned officers and also filed Right toInformation Applications to obtain informationabout the functioning of these boards and theoperation of various legal clauses that pertain todifferent precautionary elements.

b) Analysing clearance related decision-making:Nearly all projects have a combination ofenvironmental, economic, social and politicalrepercussions, often with conflicting objectives andvalues. Environmental decision-making over suchprojects by regulatory bodies therefore is never a

purely scientific exercise, but an intensely politicalone, aided by calculations of social-political costsand benefits and value-laden judgements. Many ofthese decisions find resonance in scientific and legalprinciples and still others do not. Jairam Rameshstrongly advocated for a science-based decisionmaking process, but it is important to assess theviability of this and also identify the extent to whichdecisions rely on science or adhere to legalprinciples such as the precautionary principle. Iattempted to examine the decisions made by thePollution Control Boards while issuing NOCs, butinformation was not forthcoming and I was onlyable to obtain information at the very last monthof the project from only one Pollution ControlBoard (Orissa). Therefore, in order to examinedecision making, I decided to examine the finalletters of rejection or clearance issued by theMinistry of Environment and Forests for projectsthat are cleared under the CRZ Notification

For this purpose, I obtained copies of clearanceletters from Kalpavriksh an environment NGOwhich had filed a Right to Information applicationin the year 2009 to obtain copies of all CRZclearance letters issued by the MoEF. Kalpavriskhwas given letters from 1999 to 2004. These yearsare significant years in the implementation of theCRZ Notification as they were the years that sawa number of amendments to the law and theseyears also marked the most active citizen actionon this legislation. The last amendment to the CRZnotification was also made in the year 2004 afterwhich the MoEF went into its controversial reformprocess (Sridhar et al 2008). Wherever possiblequantifiable trends from this information have beenanalysed from these data sets to show overall trendsand patterns within project decision-makingprocesses that are related to precautionaryprinciple elements.

c) Monitoring compliance: While it was attemptedat the outset of this project that one would obtainearly information on projects so that some amountof ground verification could take place on the actualcompliance to the various conditions laid out by

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the industry, the absence of this information fromthe PCBs made this aspect difficult to monitor. Theclearance letters issued by the MoEF under theCRZ Notification were not considered since thesewere older projects and obtaining the latestclearance conditions would necessitate at least oneround of Right to Information applications. Thiswould be outside the time and resource constraintsof the present project. However, should thisinformation arrive eventually from the PollutionControl Boards, I intend to follow up on thecompliance aspects with various NGO partners inthe different coastal states. I did however analysethe monitoring related information contained inthe conditional clearance letters issued by the MoEFto ascertain observable trends and patterns therein.

Limitations of the study

The Asia and Pacific Workshop Report of thePrecautionary Principle Project declared that thereare both explicit and implicit uses of theprecautionary principle. It states that there aresome instances where the PP’s application is explicitand unambiguous whereas in other decisions thePP is implicit. They also raise an important pointthat to actually determine whether a decision wasindeed precautionary or not (where it is not

explicit) requires an examination of the contextand motivations for decisions and managementinterventions. The report also states that it is notalways easy to determine whether decisions ormanagement interventions have been implicitlyprecautionary, especially as many decisions inbiodiversity conservation/NRM, take place in theface of some uncertainty. These observations setthe limitations of my study in which I rely on thetext of the law and final project related decisionsas my data sets.An important admission to highlight at the outsetof this study is that my examination of the operationof elements of the precautionary principle in theselaws ranges from a conscious application to aninadvertent application. I do so recognising that alldecision-making over environmental projects in thecountry takes place under constraints such aslimited scientific data or understanding, limited timeand resources and under certain proceduralrequirements. Therefore assessing to what extentthese laws and their decision, and decisions takenunder these provisions are grounded in science andto what extent they already incorporate andoperationalise elements of precaution gives us anidea of their performance under a full fledged andfully conscious precautionary regime.



Introduction to the Coastal Regulation ZoneNotification, 1991The CRZ Notification was issued in the year 1991using the provisions of the Environment(Protection) Act, 1986 and the Environment(Protection) Rules, 1986. The EP Act empowers theCentral Government to delineate areas whereanthropogenic activities can be regulated andrestricted. The CRZ Notification is therefore aspecialised legislation, which was introduced withthe intention of protecting the coastal environmentof India at the behest of Mrs Indira Gandhi whoexpressed concern over the degradation of beachesand coastal areas.

The coastal stretches of India’s mainland and hernumerous islands including the Andaman & NicobarIslands and Lakshadweep, are governed by theCoastal Regulation Zone Notification, 1991. Forthe purpose of effectively legislating on coastalprotection, the law sets limits to the area under itspurview. The Coastal Regulation Zone or the zoneunder the purview of the CRZ Notification wasdeclared comprising the coastal stretches of seas,bays, estuaries, creeks, rivers and backwaters whichare influenced by tidal action (in the landward side)up to 500 metres from the High Tide Line (HTL)

and the land between the Low Tide Line (LTL) andthe HTL. The 500-metre CRZ boundary is drawnat a radial distance (as the crow flies) uniformlyfrom the HTL, and runs parallel to the coast. Themeasurement of the 500-metre boundary of theCRZ does not take into account the height ofelevations of land on the coast, such as the heightof hillocks, promontories or cliffs. The MoEF hasrecognised this while conditionally approving theCoastal Zone Management Plans (CZMPs)prepared by the coastal states, wherein high cliffsand hillocks are included in the CRZ and the CRZcontinues several metres beyond these structures(which measure more than 500 metres in height).

In the case of rivers, creeks and backwaters, thenotification states that the CRZ would apply toboth banks of the water body, but the distance ofthe CRZ from the HTL may be reduced from 500metres on a case-by-case basis, with the reasonsfor the reduction to be recorded in the CZMP ofthat State. However, this distance was not to beless than 100 metres or the width of the river,whichever was less. Therefore, lands in these areasare also subject to the regulations of the notification.

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Introduction to the Water (Prevention andControl of Pollution) Act of 1974This was one of the first important environmentallegislations in India. Before the enactment of theAct, there were few initiatives to legislate pollutioncontrol at the national level. A Committee thatreviewed existing laws found that a comprehensivelegislation to address the issue of water pollutionin the country was inadequate. On the promptingof various states, a bill introduced in the RajyaSabha in 1962 and was examined by the Select andJoint Committees of Parliament. The bill sought toprovide for the establishment of agencies at theCentral and State levels to provide for theprevention, abatement and control of pollution ofrivers and streams, for maintaining and restoringthe wholesomeness of such water and forcontrolling existing and new discharges of domesticand industrial wastes. Water is a subject in the StateList of the Constitution. The Act was enacted as acentral law in pursuance of Article 252(1) of theConstitution which empowers the UnionGovernment to legislate in a field reserved for thestates, where two or more State Legislatures pass aresolution consenting to a central law. All Stateshave adopted the implementation of the Act asenacted in 1974. The Act provided for theestablishment of administrative boards under theexecutive branch of the Central and Stategovernments. The powers and functions assignedto the boards broadly include the setting ofstandards (for effluent and sewage disposal) andadvising the government on measures to combatpollution. The State Boards have the authority togrant consent to the use of new or existing disposalsystems, and may impose certain conditions on thegrant of such consent. The law provides forpenalties for the contravention of the provisions ofthe Act, which includes the failure to comply withthe directives of the State Board. It also providesfor the establishment of Central and State watertesting laboratories whose primary functions areto aid in the setting of standards, and for testing ofwater samples collected and analysed under theprovisions of the Act, to ensure compliance withthe standards enforced or to establish contraventionof the same.

The law defines pollution as “such contaminationof water or such alteration of the physical, chemicalor biological properties of water or such dischargeof any sewage or trade effluent or of any otherliquid, gaseous or solid substance into water(whether directly or indirectly), as may, or is likelyto, create a nuisance or render such water harmfulor injurious to public health or safety, or todomestic, commercial, industrial, agricultural orother legitimate uses, or to the life and health ofanimals or plants or of aquatic organisms”. Theapplication of the Act can therefore covers streams,inland waters, subterranean waters, and sea or tidalwaters.

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An assessment of elements of precaution in the CRZNotification, 1991Specific precautionary actions

The act of delineating a 500 meter stretch as aregulated zone by itself merits description as aprecautionary action, since this was a decision takenwithout great scientific certainty or a statedscientific rationale (Chainani 2006; Menon & Sridhar2007)

Prohibiting a set of industries which areconsidered non-coastal or not really requiring theforeshore or waterfront within the CRZ area. Ofcourse this approach changed over time as eachamendment brought in newer activities which werenon-coastal (such as the IT and service sectorindustries or SEZs)

Declaration of certain areas as CRZ - I areas,thereby declaring that such areas are no-development areas

Declaration of a No-Development Zone withinthe CRZ - III areas (considered to be rural or non-developed areas).

Instituting a set of authorities for the purposeof implementation of the law, such as the CoastalZone Management Authorities can be interpretedas a precautionary action from procedural point ofview. Of course, their functioning and operationreflect how far they facilitate precautionary actions.In the case of the CZMAs, under the CRZNotification, these authorities have been for themost part, non-functional and not proactive onaccount of a variety of reasons (Menon & Sridhar2007).

Articulation of the possibility of harm/threats

The notification does not contain a preamble oran introduction outlining why it was introduced orthe sensitivity of the coast. However this can onlybe inferred from the history of its introduction -mainly traceable to Mrs. Gandhi’s letter in 1981calling caution to the harm to coastal stretches fromunregulated development and pollution.

By placing certain ecosystems on the CRZ -I list,the notification calls attention to their vulnerabilityto harm from human activity.

Burden of proof / responsibility forprecaution and safety

A number of activities are required to obtainenvironmental clearances or apply for permissionsto the various authorities, providing informationthat will prove either the safety or the potential toharm of the said activity.

Project authorities are required to submit EIAreports under the EIA notification but also requiredto submit applications for clearance under thisnotification. However the 1991 notification did notcontain any specific format or the nature ofinformation that should be shared by the proponent.

The regulator was required to make decisionsthrough various expert committees and assess theimpacts of a proposed activity based on theinformation provided by a proponent.

In some cases, such as for the construction ofjetties and wharves in the Lakshadweep, scientificstudies are mandated but not to enable a decisionregarding whether or not such activities maybepermitted, but only to ensure that such activitieshave minimal damage to corals and otherbiodiversity. This implies that scientific informationis used to minimize possible harm but scientificinformation in these instances is not sought toprove harm or necessitate precautionary action.

The proponent has the responsibility of provingharm or benefit from his or her actions in themonitoring phase. There is no responsibility on theregulator at the monitoring phase, to review theearlier conditions of either precaution or otherwise.The regulator’s responsibilities seem to be limitedto merely checking if conditions are met and notto assess their benefits.

15

Assessments of alternatives

No process was outlined for this. However it isonly assumed that the project proponent wasrequired to show why a particular site was selectedfor the project. This by itself does not form anyoptions assessment.

The assessment of a proposal was to take placewithin 90 days of receipt of the application andrequisite documents and data on the project. Theregulatory authorities were to decide on theproject after this.

Separate procedures were assigned for someactivities such as classified operational componentsof defense projects ([are 3(2)(i)]. However whilethis offered the potential to assess alternatives forsuch activities, rather than on coastal stretches, notmuch is publicly available information on how thesedecisions are taken. Thus, procedural options toexercise this element of the PP - assessingalternatives - does exist in the text, but appears tobe arbitrary in actual practice.

Through amendments, the notification did permitconstruction for tourism development in theAndaman and Nicobar Islands and in theLakshadweep Islands but this was to be based onan integrated coastal zone management study.Rather than offer assessments options explicity, itappears that the notification provides someopprtunity to explore alternatives. However, sincethis is not a publicly shared document or was notplanned with public participation, it is not knownwhether alternatives were indeed identified or whatcriteria or science they were based on.

Addressing scientific uncertainty

The operation of the CRZ Notification hingeson the identification of various areas as CRZ -I, II,III or IV. The text of the law provides some indicationas to how these areas can be declared, but there isa vast amount of scientific uncertainty regardingsome of these criteria such as ‘areas of inundationon account of sea level rise’ . There is muchspeculation regarding what are significant thresholds

for declaring certain biodiversity rich areas as beingsensitive and thereby setting these apart from otherareas also have similar characteristics - for e.g. -the identification of fish breeding areas or turtlenesting beaches. The CZMPs however appear tohave utilised some scientific information to identifyareas that meet such criteria, but for the most part,the categorisation of the coast as done in theCZMPs is still a matter of debate and disagreement.

The information available to either reject orclear a project is usually submitted by a proponent.Final decisions on this are taken by expertcommittees at the central government level. Thestate level CZMAs also decide whether a projectcan be permitted or not, but largely on criteriathat are procedural or legal. Regarding scientificuncertainty, it appears that expert committees makethe final decision on whether adequate scientificinformation has been provided for them to decideon a Yes, No or a Yes but kind of decision.

When the various amendments to the CRZNotification were made, this was not accompaniedwith an explanation about the scientific implicationsof permitting these activities on the coast. Thereforeit seems that even certain scientific informationabout impacts were not considered while reversingthe precautionary aspect of prohibiting theseactivities on the coast in the first place.

Proportionality (process for assessingbenefits from precaution or theconverse)

On the whole it can be said that the variousamendments to the CRZ Notification were indeedan exercise of the political decision of exercisingprecaution. All those amendments that wereaccompanied with any sort of explanation statedthat they were introduced since hardships wereexperienced by local communities due torestrictions on activities.

The notification by itself does not mention aprocess or procedure for incorporatingproportionality - but since all such decisions canbe interpreted as exercising some amount of cost-benefit or cost-effectiveness arguments whilemaking restrictions, so too, in a general sense, does



the CRZ Notification. However, since this processis not open to scrutiny, it does not be understoodas a conscious precautionary element.

The clearance granted is valid for a period of 5years after which an application for renewal ofclearance is made. The notification itself does notprovide details about the nature of informationrequired to be made available at this time of renewal.Therefore although this clause in the notificationhas the potential for addressing the nature of harmor re-evaluating the precautionary action, theopportunity does not seem to have been properlyexercised.

The monitoring process as outlined by the lawmerely states whose responsibility monitoring shallbe. However no information is contained in thetext of the law regarding the nature of suchmonitoring, whether any assessments should takeplace pot-clearance, and post-project operation,about the benefits of such clearance, negativeimpacts or the need for certain precautionaryaction.

Transparency and participation (asfacilitating precaution)

No option of public hearings for any of theprojects was mandated by the CRZ Notification1991.

The notification itself did not explicitly statethat the Coastal Zone Management Plans (CZMPs)were to be shared with the public. The planningprocess or the identification of various CRZcategories was not open to the public either.

The public is not provided information on howa final decision has been taken regarding a project.This is of course available through the Right toInformation Act, but only clearance letters aregenerally made available not minutes of decisionstaken by expert committees which finally decideon these projects.

There also appears to be no substantial efforttowards transparency or community participationas outlined in the text of the law as far as monitoringof clearance conditions is concerned. Therefore the

exercise of any of the precautionary elementsthrough monitoring and periodic review excludesthe larger public denying such precautionary action(if any) a shared value.

17

The table below show the number of projects that were cleared between the years 1999 and 2005.These were significant years in the implementation of the CRZ Notification since these were the yearsthat saw the most amendments to the law. After 2005 began the process of the revision of the CRZNotification as mentioned earlier..

Table 1 showing number of projects that were either cleared rejected or pending clearance between the years1999 and 2005 (inlcuding revised clearances for earlier projects)

Implementation of precautionary elements in theCRZ Notification

Agr

icul

ture

Com

mun

icat

ion

Eros

ion

cont

rol

Fish

erie

s

Hot

el /

Reso

rts

/ Tou

rism

Hou

sing

/ se

ttle

men

ts

Hou

sing

/ Bui

ldin

g co

nstr

ucti

on

Indu

stri

al In

fras

truc

ture

Min

ing

Oil

and

Gas

Pollu

tion

con

trol

Port

/ Sh

ippi

ng

Pow

er

Road

s / H

ighw

ays

/ Air

stri

ps

Soci

al In

fras

truc

ture

Gra

nd T

otal

A&N Islands 1 2 1 1 1 11 1 1 1 20

Andhra Pradesh 4 1 2 1 1 8 1 18

Daman & Diu 1 1

Goa 22 6 28

Gujarat 3 1 9 3 3 19 38

Karnataka 3 5 1 9

Kerala 2 7 6 1 16

Lakshadweep Islands 2 2 1 1 6

Maharashtra 1 1 1 2 1 7 3 18 1 4 39

Maharashtra 1 1

Not given 1 1 2

Orissa 7 3 10

Pondicherry 3 2 1 6

Tamil Nadu 1 1 6 3 4 1 4 2 22

Thiruvananthapuram 1 1

Tuticorin 1 1

West Bengal 2 2

Grand Total 1 1 3 20 52 1 9 20 5 4 4 84 4 11 1 220


18from

principle to practice

11 1 12 3 21 7

3 21

4

22

13

7

2

2

1

2 6

1

1 29

3

1

3

1

1

4

31

118

6

19

5

6

2

18

1

3

1

41

1

1

1

11

1

1

1

4

21

0

5

10

15

20

25

30

35

40

45

A&N Island

s

Andhra

Prades

hDaman &

DiuGoa

Gujarat

Karnata

kaKera

la

Laks

hadw

eep I

slands

Maharas

htra

Maharas

htra

Not give

n Oris

saPon

diche

rryTam

il Nad

u

Thiruva

nantha

puram

Tutico

rinWest

Bengal

Social Infrastructure

Roads / Highways / Airstrips

Power

Port / Shipping

Pollution control

Oil and Gas

Mining

Industrial Infrastructure

Housing/ BuildingconstructionHousing / settlements

Hotel / Resorts / Tourism

Fisheries

Erosion control

Graph 1 showing the categories of projects cleared, rejected or pending clearance under the CRZ Notification, 1991between 1999-2005 (inlcuding revised clearances for

19

Table 2 and Graph 2 (below) showing the number of projects cleared, rejected or pending clearance under theCRZ Notification, 1991

1999 2000 2001 2002 2003 2004 2005 Cleared 10 27 21 13 29 22 49 Pending 8 9 6 1 1 0 0 Rejected 9 3 1 7 1 0 0

10

2721

13

2922

49

8

9

6

1

1

0

0

9

3

1

7

1

0

0

0

10

20

30

40

50

60

19999 2000 2001 2002 2003 2004 2005

Rejected

Pending

Cleared

Graph 3 showing number of projects requiring general conditions

1 1 314

40

1 920

4 3 1 4

61

3 9

174

1 1 314

39

1 718

3 3 1 3

52

3 5

154

020406080

100120140160180200

Agricu

lture

Communicati

on

Erosion

contr

ol

Fisheri

es

Hotel / Res

orts / T

ouris

m

Housing /

settle

ments

Housing/

Buildin

g cons

tructi

on

Indus

trial In

frastr

ucture

Mining

Oil and

Gas

Oil and

Gas

Polluti

on con

trol

Port / S

hipping

Power

Roads /

High

ways /

Airstrip

s

Grand Tota

l

Total Projects Cleared

Cleared projects with General Conditions



No of cleared projects which mentioned monitoring

0 0 1 0

29

0 2 1 0 1 1 1

14

0 205

101520253035

Agricu

lture

Communicati

on

Erosion

contr

ol

Fisheri

es

Hotel / Res

orts / T

o...

Housing /

settle

ments

Housing/

Buildin

g c...

Indus

trial In

frastr

ucture

Mining

Oil and

Gas

Oil and

Gas

Polluti

on con

trol

Port / S

hipping

Power

Roads /

High

ways /

...

No of cleared projects whichmentioned monitoring

Cleared projects that have to submit compliance reports

17

2 105

101520

Hotel / Resorts /Tourism

Housing/ Buildingconstruction

Port / Shipping

Cleared projects that haveto submit compliancereports

Graph 4 showing number of projects which mentioned monitoring conditions

Graph 5 showing number of projects that were required to submit compliance reports

21

Graph 6 showing the agencies responsible for monitoring of CRZ cleared projects between 1999-2005

1

26

2 1 21

1

1

1 1

10

1

1

1

110

5

10

15

20

25

30

35

Erosion

contr

ol

Hotel / Res

orts / T

ouris

m

Housing/

Buildin

g cons

tructi

on

Indus

trial In

frastr

ucture

Oil and

Gas

Oil and

Gas

Polluti

on con

trol

Port / S

hipping

Roads /

High

ways /

Airstrip

s

State government appointedagency

State government

State coastal zonemanaement

Proponent and stategovernment

Proponent

National Institute ofOceanography

MoEF Regional Office

Lakshadweep PollutionControl Committee



Graph 7 showing the extent of reliance on various precautionary elements by the MoEF in their final decision oneither according a pending clearance or rejected status to projects (shown in percentage terms)

0

5

10

15

20

25

30

35

40

45

50

0-25 26-50 51-75 76-100

% reliance on elements

No of projects

Element of specific action

Element of articulation of harm \threat

Element of burrden of proof

Element of assessment ofalternatives

Element related to scientificuncertainty

Proportionality

Transparency &Participation

Graph 8 showing the extent of reliance on various precautionary elements by the MoEF in their final decision oneither according cleared status to projects (shown in percentage terms)

0

20

40

60

80

100

120

140

160

180

200

0-25 26-50 51-75 76-100

% reliance

No of projects

Precautionary element -Specificaction

Precautionary element-Articulationof harm \threat

Precautionary element – Burden ofproof

Precautionary element –Assessment of Alternatives

Precautionary element -Scientificuncertainty

Precautionary element -proportionality

Precautionary element –Transparency &Participation

23

The clearance of projects proposed on the coastwithin the CRZ area requires clearance from theMoEF in a number of cases. This study incorporatedan assessment of the clearance letter examinedfrom the years 1999 till 2005 which was obtainedby Kalpavriksh, Delhi using the Right to Information.

A total of 220 projects were examined. A numberof basic analyses were generated from the datacontained in the letters. The data revealed thenumber of projects belonging to various categoriesof projects. In addition to the self explanatory tables

An assessment of the clearance conditions under the CRZNotification, 1991

presented above, the conditions laid out in eachletter (for pending, rejected and cleared projects)was examined and was categorised into variouselements of precaution such as those that requiredspecific action, those that contained somearticulation of harm or threat, conditions thatimposed a burden of proof, conditions that requiredan assessment of alternatives, conditions thatelaborated on scientific uncertainty, conditions thatwas related to the idea of proportionality and finallythose conditions that were related to the elementof transparency and participation.

Table 3 showing % of reliance on various elements for decision and conditions in cleared projects

Precautionary element 0-25 % 26-50 % 51-75 % 76-100 % Specific action 30 12 13 122 Articulation of harm \threat 174 3 0 0 Burden of proof 161 16 0 0 Assessment of Alternatives 175 2 0 0 Scientific uncertainty 177 0 0 0 Proportionality 177 0 0 0 Transparency &Participation 177 0 0 0

Table 4 showing % of reliance on various elements for decision and conditions in pending and rejected projects

Precautionary element 0-25 % 26-50 % 51-75 % 76-100 % Specific action 35 5 0 5 Articulation of harm \threat 43 2 0 0 Burden of proof 7 4 0 34 Assessment of Alternatives 45 0 0 0 Scientific uncertainty 45 0 0 0 Proportionality 45 0 0 0 Transparency & Participation 45 0 0 0

In order to carry out a more comprehensiveanalysis of the precautionary element in theseconditions, it is necessary to obtain othersupporting documents. However it is seen thatthere is greater reliance in the idea of burden ofproof on specific actions however minor these are.

It has to be noted however that the letters ofclearance do not explicate the reasons for theseconditions which would enrich an analysis of theuse of this principle in decision making.



An assessment of elements of precaution in the Water Act, 1974

Specific precautionary actions

The introduction of this law itself can beconstrued as an action of precaution since itattempts to deal with ‘the prevention’ of pollutionof water bodies. The Act also sets up boards who are empowered

to take actions and interpret the various clauses ofthe Act which substantially place the onus ofdecision making in situations of uncertainty or datadeficits on these authorities. The Act is replete with language that is subjective

and empowers the PCBs with many subjectivepowers to take actions where they think ‘it is likely’that some harm to water sources has occurred oris imminent.

Articulation of the possibility of harm/threats

Standards for pollution levels and water qualityare laid out in the Water Act. However, it is notclear what the basis for these standards are. Neitherhave these standards ever been revised in anyinstances. A number of clauses state that further

articulation of harm can be decided by theauthorities mentioned in the Act from time to time.

Burden of proof / responsibility forprecaution and safety

The Water Act requires a proponent of an activityto submit an application to receive the Consentfor Establishment and subsequently a Consent toOperate certificates. Both these documentsmandate that certain information (as laid out inForm XIII of the Water Rules, 1975. The information as provided under Form XIII,

requires the proponent to provide informationregarding the list of chemicals and raw material tobe used, information on the amount of water to beused, the quality of effluent and effluent reports(on a daily basis). Details on the nature of effluent treatment plants,

quality and quantity of solid wastes and methodsof disposal for the above is requested prior to

providing the Consent For Establishment and theConsent to Operate.

Assessments of alternatives

There is no mention about alternative sites withinthe Forms for Consent For Establishment underthe Water Act. State Government are empowered under the

Act to make or modify the formats for obtaininginformation related to a proposed activity. Howeverthis power has not been exercised to modify theConsent Forms radically to incorporateprecautionary actions or scientific uncertaintiesthus far. While many discretionary powers are provided

to the PCBs, the element of using science to aid inarriving at precautionary decisions is absent in thearticulation.

Addressing scientific uncertainty

The law itself doesn’t not mention how to goabout taking certain actions in the face ofuncertainties or the exact process whereby theregulators can take action in event of possible harm. Assuming a high degree of uncertainty exists

across landscapes and regions, the Act permits thevarious Boards to set their own standards for waterquality. The subjective-ness of many clauses empowering

PCBs to take action suggests that the Act does notplace great emphasis on 100% certainty beforeprohibiting substances or actions.

Proportionality (process for assessingbenefits from precaution or theconverse)

There is no process for the same outlined. Theonly place where it can be interpreted that the Actcontains an element for assessing benefits fromprecaution, is that the proponent needs to renewhis consent to operate and would have to applyafresh in cases where the discharge of effluentsincreases or the nature of effluents changes.

25

Transparency and participation (asfacilitating precaution)

There are some instances where the Actempowers the Board to constitute localcommittees either for monitoring or to discharge

its general duties. Responses from the 4 PCBsquestioned about this is provided in the comingpages. The Form XIII requires the proponent to share

what monitoring arrangements are made on his/her behalf for monitoring purposes.

Implementation of precautionary clauses of the Water ActIn order to empirically investigate the actualapplication of the elements of precaution that areavailable within the text of the Act as shown above,I filed a number of Right to Information applicationswith 4 State Pollution Control Boards (Orissa, TamilNadu, Karnataka and Kerala) asking a range ofquestions on the topics mentioned below. Thesequestions were all selected because I believed thatthey contained clauses that allowed for theoperation of the element of precaution in them. Ireceived responses from the central offices of theState Pollution Control Boards and also received afew responses from the district level offices or theregional offices of the respective PCBs for somestates. I have collated the responses from theseregions to arrive at an assessment of the functioningof these ‘precautionary clauses’ within the Act.

1. Limits of coastal offshore waters of the state underthe jurisdiction of the PCB.

I requested information on this subject and alsorequested copies of notifications or documents thatwill provide an insight into the extent of the marinespace that the state governments sought it fit tocover. The Orissa PCB and the Tamil Nadu PCBstated that they were not empowered to declaresuch areas under their jurisdiction and nonotification has been issued under Section 19(1)of the Act pertaining to this subject. The KeralaPCB stated that sea tidal waters extending upto 5km from the shoreline in that state come underthe purview of the Act, although no separatenotification was declared outlining this or therationale for the same. The Karnataka PCB statedthat the marine area three nautical miles from thecoastal line was under its jurisdiction whereas itsregional office in Karwar stated that the entire statewas declared as the water and air pollution controlarea. Once again for Karnataka no separatenotification seems to have been issued explainingwhat area or why it has been brought under thepurview of the Act.

2. Establishment of special committees or localcommittees to look into applications and projects relatedto coastal issues or their monitoring, representation offisherfolk or departments of fisheries.

The Water Act contains provisions for setting upspecial committees or local committees at thediscretion of the PCB for any purposes related toits objectives. This is an opportunity to exercisethe precautionary element of participation andtransparency and also to bring in special scientificbodies to address scientific uncertainty. Hence anumber of questions were posed in the RTIapplication to the above-mentioned PCBs on thissubject.Orissa PCB referred this question to the OrissaDepartment of Forests and Environment whichstated that the only committee ever formed wasthe Orissa State Coastal Zone ManagementAuthority and the District level CZMAs.The Kerala PCB was unable to provide informationon the members of the PCB since its establishment.It appears to have constituted just two committees.One of these was a Local Area EnvironmentCommittee on 15.10.2004 for the Eloor-Edayar areafor the purpose of monitoring \ advising on mattersrelated to pollution and environmental issues inthe said area. The other committee was constitutedto study pollution due to Mc Dowell Distillery,Cherthala, Allapuzha was constituted by the Board.The Pattanamthitta office however reported thatit constituted a committee in the case of AmityRock Industries in Kottangal Gram Panchayat butfails to mention for what purpose.Both Tamil Nadu PCB and the Karnataka PCB statedthat they never constituted any special or localcommittees and provided only the list of PCBmembers since its establishment which reveals thatthe representative of fisheries was a representativeof the Fisheries Department. There has never beena local NGO or any other communityrepresentative as a member of the PCB from thedata obtained in the RTIs from these PCBs. The



regional offices of the Tamil Nadu PCB (atNagapattinam Nagercoil, Tirunelveli and Thanjavur)responded that the District CZMAs set up underthe CRZ Notification were the only localcommittees that have been set up. The Cuddaloreregional office stated that no local committee wasever set up.

3. Evolving specific methods of disposal of sewage andtrade effluents for coastal areas and for coastal offshorewaters

None of the PCBs responded stating that they hadevolved their own methods for disposal of sewageor trade effluences in coastal lands and offshorewaters. The Karnataka PCB instead clarified thatthe method of disposal and standards stipulatedby the Board are as per the Environment ProtectionRules, 1986 and that the consent conditionsimposed by the Board are followed.

4. Extent of industries, activities, projects or activitieslocated within the areas covered by the CRZ Notification,1991 (coastal stretches).

This question was asked to ascertain whether thePCB stored information related to projects basedon a landscape criteria or ecosystem criteria forthe purpose of monitoring or enforcementaccording to overlapping laws such as the CRZwhich envisage some duties for the PCBs. It is alsoassumed that storing information regardingpollution based on landscapes or eco-regions wouldenable the Board to retrieve cumulative impact orharm related information which would be criticalin future precautionary decision-making.The Orissa PCB did not appear to have informationstored according to the CRZ criteria and insteadsent information pertaining to Consent to Operatefor entire coastal districts. The Orissa PCB referredall matters related to the CRZ to the StateDepartment for Forests and Environment althoughthe former has an explicit role in theimplementation of the CRZ Notification as well.Similarly, the Kerala PCB referred this question oflocation of polluting industries within the CRZ areato the State Coastal Zone Management Authority.The Karnataka PCB referred the question to itsregional office who either didn’t respond or whofurther passed the buck to ‘CRZ authorities’. TheNagapattinam regional office of the Tamil Nadu PCBstated that 14 industries were operating in the CRZarea and provided a list of the same. 17 industries

are operating in the CRZ according to theCuddalore regional office and the Tirunelveli officeonly mentioned the Koodankulam Nuclear PowerPlant as being located in the CRZ. Thanjavurmentioned 2 projects located in the CRZ (a lighthouse and a fish landing centre). HoweverNagapattinam did not mention its fish landingcentres or harbours in its list of industries whereasThanjavur did. There appears to be someinconsistency in what is considered an industry oran activity requiring PCB clearance or a problemin the responses to the RTIs.

5. Exemptions of person from the operation of Section23(1) related to the power to entry and inspect of theBoard and its officers.

None of the PCBs have ever exempted any personfrom their power to entry and inspect premises orlocation. No reasons were given for the same eitherin personal interviews or in the RTI responses fornot exempting any class of industry or persons fromthis clause.

6. Procedures under section 64 (2) regarding thecarrying on the business of the board or its committeesand also matters related to the inquiries by the Boardin the matter of granting consent to operate. .

The rules under section 64 (2) contain provisionsthat permit the Boards to decide what kind ofinformation to collect or require from a proponentbefore making a decision to grant consent. Thisincludes the kinds of information required in theapplication Form before granting clearance, andcould include elements of precaution such as theassessment of alternatives or dealing with issuesor monitoring, transparency or proportionality. Thesection empowers the state government but therules have to be made in consultation with theBoard. However, the Orissa PCB interprets thisclause as not really empowering the Board to makeany such rules. The Kerala, Tamil Nadu and KarnatakaPCBs all state that various rules have been madeby them under the section, particularly section64(2)(b) related to the transaction of business.TNSPCB has also made rules related to the processof inquiry for giving consent under the TN Water(P&CP) Rules, 1983. However, copies were notfurnished by any of the PCBs.

7. Guidelines for siting of industries in the state’s coastaldistricts.

27

This question was posed to determine if any areaswere declared as no-go areas within coastal areas,specifically determined by the Board (aside fromother legislations). This would not only be aprecautionary action, depending on the role ofscience in this decision but could also serve topromote the idea of alternatives. However, noneof the PCBs responded to this query.

8. Number of persons/ operations/ industries/ activitiesoperating with consent to operate, in the coastal districtsas per the current date on PCB record from 2005-2010.

The Orissa PCB reported that 18 industries wereoperating with Consent to Operate (CTO) inKendrapara and 24 industries are operating withCTO in Jagatsinghpur. A list of these industries wasprovided. While the main office of the Kerala PCBdid not provide any information, the regional officeat Thirssur stated that 730 industries are operatingin Thrissur district with CTO as per their currentrecord (not sure if this is the period requested, i.e2005-2010). Only Karwar regional office respondedto an enquiry on this matter stating that 544industries are operating with consent to operatein the coastal district of Uttara Kannada.

No complete figures are available from the TamilNadu PCB for the entire coastal districts, but theNagapatinam office states that 7 industries areoperating with CTO; in Nagercoil district theregional office reports that 869 industries areoperating with ‘Consent to Operate’ where 244industries have been issued with Consent toOperate from 2005-2010 under the Water Act and243 have been issued the same under the Air Act.The Cuddalore regional office states that out of 18projects or industries covered under the CRZnotification, only one unit is operating with aConsent to Operate – the Chemplast, SanmarLimited (Marine Terminal Facility). It is not clear ifthis means that none of the other industries areoperating without a CTO or whether no otherindustry comes under the purview of the WaterAct.9. Number of industries / operations, processes whichwere refused Consent for Establishment (CFE) for theeach of the coastal districts of the state between 2005and 2010.The Orissa PCB has provided no information on

the number of industries which were refused CFE.The Kerala PCB stated that 11 persons wererefused CFEs. Information from Karwar regionaloffice in Karnataka states that no one was refuseda CFE. For Tamil Nadu, in both Nagapatinam andCuddalore, no applications for CFE were refused.However, 3 applications were refused in this termas per the Nagercoil regional office.Despite requests by RTI, no copies of the lettersrefusing CFE were provided to the researcher.Appeals are being filed to obtain more informationon this. Judging by the high number of CTOs incomparison to the low number of CFEs refused, itappears that few industries were really turned awayor that the regulators did not find any need toexercise precaution based on the information theywere provided with by the proponent.

10. Number of inspections undertaken (in connectionwith grant of consent) for the main ports in the stateand port-specific standards for water pollution levelswithin port areas.

There are more than 200 ports dotting the coastlineof the country. Many of these are large operationalports dealing with polluting cargo. Shipping by itselfis a polluting activity and there are many reasonswhy this sector in particular should receive thespecial attention of the PCB.Karnataka has at least 10 notified ports. The Karwarregional office of the Karnataka PCB reported thatonly 2 inspections have been undertaken by theBoard in its entire duration for Karwar and Belikereports. Tamil Nadu has 20 ports. For the TN PCB,the Nagapatinam office reported that theNagapattinam port was not inspected in connectionwith the issue of consent. The Cuddalore officestated that the Cuddalore port had not applied tothe PCB for Consent till date. Kerala PCB statedthat for its 17 ports, only 4 reports wereundertaken. Orissa offered no response to thenumber of inspections taken on its 13 notified ports.Kerala, Tamil Nadu and Karnataka PCBs stated thatthey had not evolved specific standards for waterquality or pollution levels within port areas. TheKarwar regional office in Karnataka stated thatdifferent limits are specified for coastal marinedischarge. This information was not providedthough. The Orissa PCB did not respond to thisquery.



11. Serving of notice under section 30 (to carry outcertain works) of the Water Act to the industries between2000-2010.

When granting consent to a proponent, the Boardcan place conditions requiring such persons toundertake certain works. Should these conditionsnot be complied with, then section 30 of the WaterAct empowers the Board to serve notices toexecute such works. None of the PCBs respondedthat they had ever issued such notices in ten yearsof their operation.

12. Receipt of information under section 31 (1) and(2) in the years 2005 and 2010 for the coastal districtsof the state.

Section 31 (1) and (2) relates to the responsibilityof a person operating an industry or undertakingany activity to report to the Board instances ofaccidental discharge of noxious effluents, poisonousor polluting matter into water. All of the PCBs statedthat they had never received any such informationin the last 5 years for any activities undertaken inthe coastal districts.

13. Action taken by the Board under section 32 (1) (a),(b) and (c) respectively for cases related to the coastaldistricts between 2000 and 2010.

Section 32 (1) states that in event of an accidentwhereby there has been a release of noxiouseffluents or poisonous and polluting material intowater boards and water sources, the Board cantake corrective actions for removing such matter,for mitigating such pollution or restraining a personfrom exacerbating the situation. Orissa reportedthat it had taken action in one case in the past tenyears but didn’t mention any further information.None of the other PCBs stated that they had takenany action under these sections in the past ten years.

14. Issuing of directions by the Board for issuing ordersunder Section 33 (1) where it has referred matters toa district or high court for cases related to the coastaldistricts.

All of the PCBs questioned reported that they hadnever issued directions under Section 33 (1)wherein they had requested a court to interveneand prevent a person from polluting a water source.

15. Directions from the Board to industries, operations,processes or activities or persons, (under section 33 A)for a) the closure, prohibition or regulation of anyindustry, operation or process; or b) the stoppage orregulation of supply of electricity, water or any otherservice between the years 2000 and 2010 for coastaldistricts.

The Orissa PCB provided a list of 28 industrieswhich were issued directions for closure between2009 and 2010. None of these pertain to industrieson the coast. Of these most seem to be stonecrushing units and brick industries. The Kerala PCBcentral office stated that it has issued 2 directionsin this period but failed to provide any reliablefigures or estimates of the same, showing eitherclosure or stoppage of essential services for theentire ten year duration. The Thrissur office claimedalso to have issued directions but without disclosingany detail. No information on this subject wasforthcoming from the Karnataka PCB. The TamilNadu PCB stated that it has not issued anydirections for either closure of the unit or forstoppage of services in the past ten years.

16. Action taken for failure to comply with directions byindustries operating in the coastal districts for the period2000-2010 and number of offences booked.

This perhaps demonstrates the seriousness withwhich PCBs can and are allowed to act. For theentire ten year duration, the Kerala PCB had issuedclosure notice only to one industry. Karnataka PCBstated that criminal cases were filed but refusedfurther information. In Tamil Nadu, the Nagercoiloffice stated that such units had been issued withclosure direction and direction for disconnectionof power supply, whereas the Cuddalore regionaloffice stated that all their industries were complyingwith the orders.The Orissa PCB stated that 1 offence was bookedunder the Water Act in Balasore district, 0 offenceswere booked in Bhadrak, Kendrapara and Ganjamdistricts and 2 offences were booked inJagatsinghpur and Puri districts. The Karwar regionaloffice stated that 30 criminal and ‘criminalmiscellaneous’ cases were filed under section 33(1)against the companies. No copies of any of thedocuments requested were provided makingfurther analysis into the reasons for the sameimpossible.

29

An often repeated notion related to theprecautionary principle is that it should contain bothsubstantive and procedural elements; thesubstantive element suggests that, in circumstanceswhere uncertainties and risks of irreversible harmsare present, decisions should err on the side ofenvironmental preservation; the proceduralelement suggests that the principle should favourdecision-making processes that are iterative andinformative over time and that integrate experts’assessments of the risks to be governed andpeople’s preferences and values.

In India, the entire environmental clearance processfollows a system of prior approval where a numberof authorisations must be obtained before initiatingan activity. Most laws also specify to some extentthe nature of the information that the initiator of aproject should provide. Since this is already providedin the text of the law it makes it more feasible forthe initiator of any activity to shoulder this burdenof proof. The text of laws such as the Water Act,1974 and the CRZ Notification allow ampleopportunity and discretionary power for theregulator to exercise caution. However the analysisof the procedures and the decision-making underthe Water Act in particular reveals that precautionas it is understood by its various elements is simplyabsent from the implementation of the law.

This is not on account of a lack of a definition oron account of poor understandings of the principle.The spirit of the Water act is precautionary innature and the regulators appear not to fulfil eventhis function. There is on the whole very little pro-active action taken towards establishingprecautionary actions (either in terms ofjurisdiction, or rule making or in the establishmentof committees to avail of the best available scientificinputs and information. The very fact that gettingeven this much data on the functioning of the PCBshas taken about 7 months and that too though theRight to Information Act, shows that PCBs are stillloathe to sharing information proactively andpublicly such as on their websites.

The maintenance of information specific to coastalareas and stretches is also inadequate, and will have

its implications for responsibilities such as settingstandards based on cumulative impacts. No PCBappears to have utilised its expertise, powers orresources to have even revised or assessed theimpact of its current standards.

It has been argued by scholars of the precautionaryprinciple that since the subject matter of theprinciple itself deals with uncertainties, it is notalways possible to find solutions in optimaloutcomes, and therefore it becomes important tolook for procedural rules aimed at the reductionof uncertainty (Arcuri 2006). There are severalclauses within the Water Act that allow forprocedures which will help reduce uncertainty, suchas the powers of the state government and theBoard to make rules (on inquiry before issuingconsent, on the nature of application forms andinformation that a proponent should provide, onthe nature of committees that can be constitutedand their functioning) However, it cannot be claimedby any of the PCBs that they have exercisedprocedural norms towards making errors in favourof the environment

The minister Jairam Ramesh stated in his lecturethat in cases where there are complex ecologicaland social issues, a consultative and transparentapproach should be made while making harddecisions. The PCBs thus far seem to have takenvery few hard decisions. The poor rate of refusal ofCFEs and the rare cases where industries have beenissued orders for closure are instances of this. Thepoor involvement of the public in setting standardsor in monitoring them is also telling of how muchmore effort is necessary before these capriciousappearing decisions can be termed precautionary.

Before we can attempt to call for a proper definitionof the precautionary principle and greaterapplication of the same in decision, we need toexamine why the procedural provisions that existfor the application of this principle have been under-utilized. It has been suggested already by variousscholars that the debate on the meaning of theprecautionary principle is perhaps an endless one.Therefore, paying more attention to how regulators,

Conclusion



proponents and citizens understand the principle,whether the regulatory system is geared towardsutilising it in a fair and consistent manner, and whois involved in the various decisions related to theprinciple will provide answers into how values likethe PP are given importance in decision-making.This calls for a greater democratisation of not just

the scientific processes but also the entiregovernance process (recognizing that the two canbe mutually exclusive events). Rather than promotea regime of ‘expertocracy’, the appeal of theprecautionary principle should ultimately be theprimacy it places on the interactive political dialoguebetween state regulators and the public.

Arcuri A. 2004. The Case for a Procedural Versionof the Precautionary Principle Erring on the Sideof Environmental Preservation. Global Law WorkingPapers No. 09.

Arcuri, A. 2006. The Case for a Procedural Versionof the Precautionary Principle Erring on the Sideof Environmental Preservation. In Boyer, M., Hiriart,Y. and D. Mortimor (eds.) Frontiers in the Economicsof Environmental Regulation and Liability Ashgate. pp.19-63.

Arcuri, A. 2007. Reconstructing Precaution,Deconstructing Misconceptions. Ethics &International Affairs Volume 21, Issue 3, Fall 2007,Pages: 359–379.

Arcuri, A. 2007. Reconstructing precaution:deconstructing misconception. Ethics andInternational Affairs, 21(3) 2007, pp. 359-79.

Chainani, S. 2007. Heritage & Environment, An IndianDiary. The Urban Design Research Institute.November 2007.

COMEST. 2005. The Precautionary Principle. WorldCommission on the Ethics of Scientific Knowledgeand Technology (COMEST) United NationsEducational, Scientiûc and Cultural Organization,Paris, France.

Cross FB. 1996. Paradoxical perils of theprecautionary principle. Washington Lee Law Rev53:851-925.

Goklany, M.I. 2007. The Precautionary Principle: ACritical Appraisal. Cato Institute, Washington D.C.

Menon, M. and A. Sridhar. 2007. An appraisal ofcoastal regulation law in tsunami-affected mainlandIndia. In: Post-Tsunami Ecological and Social ImpactAssessments in Mainland India. UNDP, NCF, AREE,CAG. 105-149 p.

Menon, M., S. Shenoy, D. Desikan, A. Shankar, and A.Sridhar. 2008. Beyond the Tsunami: Environmental LawGuide - An Analytical Guide for Deciphering Content ofLaws in India. UNDP/UNTRS, Chennai and ATREE,Bangalore, India. p 122.

Morris J. 2000. Defining the precautionary principle.In: Rethinking Risk and the Precautionary Principle(Morris J, ed). Oxford:Butterworth-Heinemann, 1-21.

Ramesh, J. 2010. The Two Cultures Revisited: SomeReflections on the Environment-Development Debatein India. Text of 11th ISRO-JNCASR Satish DhawanMemorial Lecture delivered at Jawaharlal NehruCentre for Advanced Scientific Research, BangaloreSeptember 28th, 2010.

Sridhar, A., M. Menon, S. Rodriguez and S., Shenoy.2008. Coastal Management Zone Notification ‘08– The Last Nail in the Coffin. ATREE, Bangalore. pp81.

Sunstein, Cass R. 2005. Laws of Fear: Beyond thePrecautionary Principle. Cass Sunstein, Laws of Fear,Beyond the Precautionary Principle, CambridgeUniversity Press.

References

Dakshin Foundation is a non-profit, non-governmental organisation registered as a charitable trust. Ourmission is to inform and advocate conservation and natural resource management, while promoting andsupporting sustainable livelihoods, social development and environmental justice. We adopt interdisciplinaryand transdisciplinary approaches in our research and conservation interventions, drawing from thefields of ecology, conservation biology, sociology, economics, and law. Our work aims at building communitycapacities for conservation and enhancing community stakes and rights in environmental decision-making,towards strengthening networks and supporting advocacy campaigns. Our goal is to promote ecologicallyand socially appropriate approaches to conservation and management in coastal, marine and mountainecosystems in India.

www.dakshin.org

While deciding on a project, do regulators knoweverything about its impacts on the environmentor on human health? What actions or decisionscan be taken in the event of simply not knowingenough about the impacts of proposed actions? Thedecision to act or not act, and further how to actin the face of unknowns or uncertainties is thesubject matter of the precautionary principle. Thepresent study on the precautionary principle wasconducted to identify gaps between this importantlegal principle and practice and to examine relatedproblems that arise in environmental governancefor further examination.

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Dakshin Foundation 2011 Aarthi Sridhar · Aarthi Sridhar Dakshin Foundation Email: [email protected] Website: Disclaimer: Opinions expressed in this publication are solely the author’s