Remove oil storage facility in ecologically sensitive coastal area, says green tribunal

The National Green Tribunal has ordered the removal of an oil storage facility in Chennai, highlighting that environmental laws were wrongly interpreted. The oil storage facility, which was violating coastal zone rules, was given clearance by the central government’s environment ministry.

The project had got post-facto clearance from the Union Ministry of Environment, Forest and Climate Change (MoEFCC) which means it had started without a valid clearance from the authorities.

In 2016, KTV Oil Mills & KTV Health Foods (a joint venture with the Adani group’s Adani Wilmar Limited) constructed an oil storage facility and pipeline in Chennai without the Coastal Regulation Zone (CRZ) clearance from the environment ministry. Following this, a local fishing community opposed the project in the southern bench of the National Green Tribunal (NGT).

The main point of contention in the case was that according to the Coastal Regulation Zone 2011, storage facilities for non-hazardous cargo such as edible oil can be only within a “notified port” area, but in this case, both the facilities in Chennai were set up on the coast at a distance of more than seven kilometres away from the notified port area – which is a clear violation of the coastal norms. Moreover, the facilities were built even before it received the clearance.

According to the NGT judgement, the MoEFCC’s expert panel considered the project for clearance in 2016 but did not give clearance. The company, however, still built the facility and the pipeline. When the green tribunal was informed about it, it ordered an immediate halt to the operations of the facility in January 2017. It asked the company to not start work until CRZ clearance is taken.

After this, the expert panel of the environment ministry again considered the project and noted that there are no specific provisions in the CRZ Notification 2011 for considering a proposal for post-facto CRZ clearance. Despite that, in 2017, the expert panel recommended (clearance) to project under the Environmental Impact Assessment (EIA) Notification, 2006. Subsequently, despite the expert panel’s recommendation, the MoEFCC didn’t issue clearance to the project.

In 2018, the ministry amended the CRZ notification 2011 allowing post-facto clearances with the provision that the activity getting the clearance is permissible under the notification and that the post-facto approval is sought before June 2018.

Soon after the amendment, the union environment ministry asked the project proponent to get a recommendation from the Tamil Nadu Coastal Zone Management Authority for post-facto clearance. The ministry even sent a reminder to the Tamil Nadu CZMA about it.

In 2019, the Tamil Nadu CZMA recommended the KTV Oil Mills & KTV Health Foods project after which the ministry in March 2019 issued the CRZ clearance to it. It was then challenged in NGT whose southern bench heard the case and reserved judgement in July 2020.

Environment ministry was not justified in clearing the project
Finally, the NGT announced its judgement on September 30, 2020. In its judgement, NGT’s bench of Justice K. Ramakrishnan and expert member Saibal Dasgupta set aside the CRZ clearance for the KTV project and noted that “authorities were not justified” in considering the project and granting post-facto CRZ clearance to an activity “which is not permissible”.

The tribunal also cited its 2015 judgement wherein it had held that no post-facto clearance can be granted and thus said that expert panel should not have recommended the project.

NGT in its judgement said that CRZ notification restricts certain activities within the coastal regulation zone and if such activities are to be done within the port area or in the notified port then, it can be done in those areas alone and “not beyond that area.”

The green tribunal also directed the company to submit compensation of Rs. 25 lakhs (Rs 2.5 million) within two months and asked the company to remove structures constructed by them in the coastal regulation zone within three months.

It also directed the Tamil Nadu CZMA to remove the structures if the company fails to remove the structures within three months.

Ritwick Dutta, the environmental advocate who represented the fishermen community, said the case reflects how every agency of the government including the State Coastal Zone Management Authority, the expert appraisal committee and the MoEFCC went out of its way to help the KTV Foods and KTV Oil bypass the regulations.

“The fact that the activity of oil storage in CRZ-II was not permitted was known to the EAC and the MoEFCC, yet it allowed the illegal activity on the ground that the violators have tendered an apology. This is a total subversion of the rule of law. The fact that the environment ministry went out of its way to ‘request’ KTV to apply for post-facto approval goes on to show how far the MoEFCC is willing to act as a facilitator for those who have violated the law,” Dutta told Mongabay-India.

He emphasised that this case reflects the sorry state of affairs of the manner in which we are protecting coasts.

“The EAC absolved itself of its statutory duty and went out of its way to legalise the illegality. The manner in which the approval was granted shows that the CRZ Notification is not taken seriously by the very ministry that has issued it,” Dutta said.

K.R. Selvaraj Kumar, who had approached the tribunal against the clearance to the project, told Mongabay-India that they are happy with the NGT’s order. “In future, we will take all measures to eradicate the illegal acts in the coastal regulation zone to preserve the coastal ecology which in turn uplift the rights of fishermen community.”

The tribunal in its order for this case noted that whenever the environmental issues are there, the procedure will have to be followed “strictly as it was intended for a particular purpose of protecting the environment and that should not be interpreted in a different way so as to defeat the purpose itself.” Because then, the NGT said, “it is likely to be misused by the authorities and such facilities will be permitted in such zone indiscriminately throughout the foreshore area of the coastal zone which will have a great adverse impact on coastal environment and also it will affect the interest of the traditional fishermen community as such.”

Saravana Kumar, who represented the project proponent in NGT, told Mongabay-India that they are going to soon approach a higher court against the NGT order. He said that the NGT has interpreted that CRZ notification requires establishment of a transit storage terminal “only inside the port”. In this case, the storage facility is located within CRZ-II only and “should not be objected.”