Precaution in Coastal Regulation: From Principle to ... · Precaution in coastal regulation: From principle to practice. Dakshin Foundation, Bangalore, p 30. Aarthi Sridhar Dakshin

Aarthi Sridhar, 2011

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Precaution in Coastal Regulation: From Principle to Practice

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 attributed solely to the author and not toDakshin Foundation or its donors.

Acknowledgements

I am grateful to Manju Menon and Kanchi Kolhi of Kalpavriksh Delhi for sharing the large volumes ofenvironment clearance letters they obtained from the Ministry of Environment and Forests which formedthe base documents examined in this study on environmental decision-making. I would also like toacknowledge the research assistance provided by Rekha Warrier on this project and am grateful for herassiduousness and temerity.

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 a scientific audience hewas addressing, 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. Through this study, gaps in one of the mostpopular legal principles and its practical applicationare highlighted.

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.

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Origins of the precautionary principle

In 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 be 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 that oftaking no action

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 environment 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, evenin 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(October 11, 1996) (ordering the government tolimit construction in order to protect Badkhal Lakeand Surajkund) and S. Jagannath v. Union of India(December 11, 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.

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Elements of precaution from key literature

From the range of definitions and critiques of thePP, one can identify a few criteria to test the xtentto which enviornmental decisions are precautionaryin nature or what elements of precaution theycontain. I draw mainly from the approachesadvocated by legal scholar Alessandra Arcuri (2006),the Science and 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 North America) isa 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 prohibits something. They providea range of criteria to judge whether environmentaldecisions or actions are precautionary. They alsostate that precaution does not work if it is only alast resort and results only in bans or moratoria.They link precautionary 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.

Between June 20-23, 2004, a workshop was heldby the Global Biodiverstiy Forum for Asia on theprecautionary principle in natural resourcemanagement and biodiversity conservation todeliberte on how the PP could be applied. Thiswas the fourth regional session for Asia and washeld in Manila, the Philippines. The report from thisworkshop states ‘It is helpful to adopt an adaptive

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management approach, which includes monitoring andperiodic review to provide feedback, and amendmentof decisions in the light of new information. Theinvolvement and consultation of stakeholders is animportant element of this process. The precautionaryprinciple should be implemented and understood in amanner 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 theenvironmental standards or thresholds outlined inthese laws?Q. What is the extent and nature of consultationswith stakeholders? What aspects are discussed withthe public?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 constitutesevidence of the impacts of his or her proposedactions?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?

Attempts were made to assess the functioning ofthe Water Act, 1974 and the CRZ Notification, 1991from these above mentioned questions.



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 ofspecific concepts related to the precautionaryprinciple which are its more well-establishedelements. These include 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 (MoEF) forprojects that are cleared under the CRZNotification.

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 possiblequantitative analysis was conducted on the data toshow overall trends and patterns withinenvironmental decision-making processes that arerelated to precautionary principle elements [seepoint a)].

c) Monitoring compliance: At the outset of thisproject attempts were made to obtain clearanceinformation on projects at an early stage, so that abroad level of ground verification of compliance to

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clearance conditions could be attempted. Theclearance letters issued by the MoEF under theCRZ Notification were not considered formonitoring compliance since these were olderprojects and obtaining the latest clearanceconditions would necessitate at least one round ofRight to Information applications. This would exceedthe time and resource constraints of the presentproject. The monitoring related informationcontained in the conditional clearance letters issuedby the MoEF was analysed to ascertain observabletrends 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 notexplicit) requires an examination of the contextand motivations for decisions and management

interventions. 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 includes its conscious application as well as itsinadvertent 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 decisions taken under legalprovisions are grounded in science and to whatextent they inadvertently incorporate andoperationalise precautionary concepts gives us anidea of environmental governance under a fullfledged and deliberately 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, were governed by theCoastal Regulation Zone Notification, 1991. Forthe purpose of effectively legislating on coastalprotection, the law set 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) and

the 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.This notification has recently been replaced by theCRZ Notification 2011.

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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 thelaw, 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 was 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 passa resolution 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 for penaltiesfor the contravention of the provisions of the Act,which includes the failure to comply with thedirectives of the State Board. It also provides forthe establishment of Central and State water testinglaboratories whose primary functions are to aid inthe setting of standards, and for testing of watersamples collected and analysed under the provisionsof the Act, to ensure compliance with the standardsenforced or to establish contravention of the same.

The law defines pollution as “such contamination

of 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 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)

The law prohibited a set of industries within theCRZ area which were non-coastal or which didnot require the foreshore or waterfront foroperation. Of course this approach changed overtime as each amendment brought in newer activitieswhich were non-coastal (such as the IT and servicesector industries 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 the procedural pointof view. 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 orany rationale for labelling the coast as ‘sensitive’.However this can only be inferred from the historyof its introduction - mainly traceable to Mrs.Gandhi’s letter in 1981 calling caution to the harmto coastal stretches from unregulated developmentand 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

Under the CRZ Notification, 1991 a number ofactivities needed to obtain environmentalclearances or apply for permissions to variousauthorities, providing information that will provewhether the activity is potentially safe or can causeharm.

Project authorities are required to submit EIAreports under the EIA Notification and arerequired to submit applications for clearance underthe CRZ Notification. However the 1991notification did not specify a format or the natureof information to be shared by the proponent inthe application.

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. The results do not decidewhether such an activity will be permitted orprohibitted. They are conducted to only ensurethat such activities have minimal damage to coralsand other biodiversity. This implies that scientificinformation is used to minimise possible harm butnot limits are placed on the nature of theseprecautionary actions.

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.

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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 constitutean options 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, being located on coastal stretches,no information is publicly available on how thesedecisions were 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 provided someopprtunity to explore alternatives. However, sincethis was not a publicly shared document and wasnot planned with public participation, it is notknown whether alternatives were indeed identifiedor what criteria 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 thresholdsfor declaring certain areas as ecologically sensitive

and thereby setting them apart from other areaswith similar characteristics. For example, thenotification declares fish breeding areas or turtlenesting beaches as CRZ -I (ecologically sensitvezones). However, vast stretches of the coast meetthis description since sea turtles (such as oliveridleys) nest in virtully all beaches. The notificationdid not provide the means to prioritise in suchsituations. The CZMPs appear to have utilised somescientific information to identify areas that meetsuch criteria, but for the most part, thecategorisation of the coast as done in the CZMPsis still a matter of debate and disagreement.

The information available to either reject orclear a project is usually generated and submittedby a proponent. Final decisions on each projectproposal are taken by expert committees at thecentral government level. The state level CZMAsalso decide whether a project can be permitted ornot, but largely on criteria that are procedural orlegal. Regarding scientific uncertainty, it appears thatexpert committees make the final decision onwhether adequate scientific information has beenprovided for them to decide on a Yes, No or a Yesbut 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 scientific information about impactswere not considered while reversing theprecautionary action of prohibiting activities on thecoast.

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 clearance granted under the CRZ is validfor a period of 5 years after which an applicationfor renewal of clearance is made. The notificationitself does not provide details about the nature ofinformation required to be made available at thetime of renewal. Therefore although this clause inthe notification has the potential for addressing thenature of harm or re-evaluating the precautionaryaction, the opportunity was not utilised.

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 post-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 ntification.

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 and officials involvedin making the final decisions.

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

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, doesthe CRZ Notification. However, since this processis not open to scrutiny, it cannot be labelled as aconscious precautionary element.

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 (including revised clearances for earlier projects)

Implementation of precautionary elements in the CRZNotification, 1991

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


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 cleared with general conditions (common to all projects within a category)

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



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 cleared projects which required monitoring related conditions

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

21

Gra

ph 6

sho

win

g th

e ag

encie

s re

spon

sible

for m

onito

ring

of C

RZ c

lear

ed p

roje

cts

betw

een

1999

-200

5

126

21

211

1

11

10

1

1

1

11

05101520253035

Erosion

contr

ol

Hotel / Res

orts / T

ouris

m

Housing/

Buildin

g cons

tructi

on

Indus

trial In

frastr

ucture Oil a

nd G

as Oil and

Gas

Polluti

on con

trol

Port / S

hipping

Roads /

High

ways /

Airstrip

s

Sta

te g

over

nmen

t app

oint

edag

ency

Sta

te g

over

nmen

t

Sta

te c

oast

al z

one

man

aem

ent

Pro

pone

nt a

nd s

tate

gove

rnm

ent

Pro

pone

nt

Nat

iona

l Ins

titut

e of

Oce

anog

raph

y

MoE

F R

egio

nal O

ffice

Laks

hadw

eep

Pol

lutio

nC

ontro

l Com

mitt

ee



Graph 7 showing the extent of reliance on various precautionary elements by the MoEF in their final decision onaccording 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 onaccording a ‘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 letters examinedfrom the years 1999 till 2005.

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 tablespresented, the conditions laid out in each letter

An assessment of the clearance conditions under the CRZNotification, 1991

(for pending, rejected and cleared projects) wasexamined and categorised into various elementsof precaution such as those requiring specific action,conditions containing an articulation of harm orthreat, conditions that imposed a burden of proof,conditions that required an assessment ofalternatives, conditions that elaborated on scientificuncertainty, conditions that was related to the ideaof proportionality and finally those conditions thatwas related to the element of transparency andparticipation.

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 these

conditions which would enrich an analysis of theuse of this principle in decision making.The data in the clearance letters do not allow anfor assesment of the actual value of theprecautionary element present in a condition. Thisbecomes a severe drawback in this framework ofassessing decisions only through proceeduralprovisions and the analysing content.



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 which are

empowered to take actions and interpret thevarious clauses of the Act which substantially placethe onus of decision-making in situations ofuncertainty or data deficits 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 anyinstance. 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 (CFE) and later a Consent toOperate (CTO). In order to obtain these, theproponent needs to provide the Board certaininformation (as laid out in Form XIII of the WaterRules, 1975). The information as provided under Form XIII,

includes information on the list of chemicals andraw material to be used, the amount of water tobe used, 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 governments 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 theCFE and CTO 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 does not mention how to go abouttaking certain actions in the face of uncertaintiesor the exact process whereby the regulators cantake action in the 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 subjectiveness 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 assessing thecosts and benefits from precaution)

There is no process outlined in the law to assessproportionality. The only place where it can beinterpreted that the Act contains an element forassessing costs and benefits from precaution, is thatthe proponent needs to renew his consent tooperate and would have to apply afresh in caseswhere the discharge of effluents increases or thenature 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 dischargeits general duties. Responses from the 4 PCBs

questioned about this is provided in the comingpages.

The Form XIII requires the proponent to sharewhat monitoring arrangements are made on his/her behalf for monitoring purposes. No emphasisis laid on public participation even at this stage

Implementation of precautionary clauses of the Water Act, 1974

In order to empirically investigate the actualapplication of the elements of precaution that areavailable within the text of the Act as shown above,a number of Right to Information applications werefiled with 4 State Pollution Control Boards (Orissa,Tamil Nadu, Karnataka and Kerala) asking a rangeof questions on the Water Act’s clauses. Responseswere received from the central offices of the StatePollution Control Boards and from a few districtlevel offices or regional offices of the respectivePCBs in some states. I have collated the responsesfrom these regions to arrive at an assessment ofthe functioning of these ‘precautionary clauses’within the Act.

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

Information on this subject and copies ofnotifications or documents were requested usingthe RTI process to gain insights into the extent ofthe marine space that the state governmentsincluded in their jurisdiction. The Orissa PCB andthe Tamil Nadu PCB stated that they were notempowered to declare offshore waters under theirjurisdiction and no notification has been issuedunder Section 19(1) of the Act pertaining to thissubject. The Kerala PCB stated that sea tidal watersextending upto 5 km from the shoreline in thatstate come under the purview of the Act, althoughno separate notification was declared stating thisor the rationale for the same. The Karnataka PCBstated that the marine area three nautical milesfrom the coastline was under its jurisdictionwhereas its regional office in Karwar stated thatthe entire state was declared as the water and airpollution control area. Once again for Karnatakano separate notification seems to have been issuedexplaining what area or why it has been broughtunder the purview of the Act.

2. Establishment of special committees or local

committees 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.The 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 its members since its establishment. It appearsto have constituted just two committees. One ofthese was a Local Area Environment Committeeon 15.10.2004 for the Eloor-Edayar area for thepurpose of monitoring \ advising on matters relatedto pollution and environmental issues in the saidarea. The other committee was constituted to studypollution due to the Mc. Dowell Distillery,Cherthala, Allapuzha. The Pattanamthitta officehowever reported that it constituted a committeein the case of Amity Rock Industries in KottangalGram Panchayat but fails to mention for whatpurpose.The Tamil Nadu PCB and the Karnataka PCB statedthat they never constituted any special or localcommittees and provided only the list of PCB members since its establishment which reveals that therepresentative on the subject of fisheries was arepresentative of the Fisheries Department. Therehas never been a local NGO or any othercommunity representative as a member of the PCBfrom the data 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 the disposal ofsewage or trade effluents in coastal lands andoffshore waters. The Karnataka PCB instead clarifiedthat the method of disposal and standards stipulatedby the Board are as per the Environment(Protection) Rules, 1986 and that the consentconditions imposed 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 on landscape orecosystem based pollution would enable the Boardto retrieve cumulative impact or harm relatedinformation which would be critical in futureprecautionary 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 according tothe RTI responses.

5. Exemptions of person from the operation of Section23(1) related to the Board and its officers’ power toenter and inspect.

None of the PCBs have ever exempted any personfrom their power to enter and inspect premisesor location. No reasons were given for the sameeither in personal interviews or in the RTIresponses for not exempting any class of industryor persons from this clause.

6. Procedures under section 64 (2) regarding ‘carryingon the business of the board or its committees andalso matters related to the inquiries by the Board inthe 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 coastalstretches, specifically determined by the Board(aside from other legislations). This would not onlybe a precautionary action, depending on the roleof science 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 were 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 the Karwar regional officeresponded to an enquiry on this matter stating that544 industries were operating with consent tooperate in the coastal district of Uttara Kannada.

No complete figures were available from the TamilNadu PCB for the entire coastal districts, but theNagapatinam office states that 7 industries wereoperating with CTO; in Nagercoil district theregional office reports that 869 industries wereoperating 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 currently operatingwith a Consent to Operate – the Chemplast,Sanmar Limited (Marine Terminal Facility). It is notclear if this means that none of the other industriesare operating 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 eachof the coastal districts of the state between 2005 and2010.

The Orissa PCB has provided no information onthe number of industries which were refused CFE.The Kerala PCB stated that 11 persons wererefused CFEs. Information from the 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 and marinedischarge. This information was however notprovided. The Orissa PCB provided no response.



11. Serving of notice under section 30 (to carry outcertain works) of the Water Act to 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 a notice 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 the event of an accidentwhereby there has been a release of noxiouseffluents or poisonous and polluting material intowater bodies and water sources, the Board cantake corrective actions for removing such matter,for mitigating such pollution or restraining a personfrom exacerbating the situation. The Orissa PCB’sRTI response was that it had taken action in onecase in the past ten years but didn’t provide anyfurther information. None of the other PCBs statedthat they had taken any action under these sectionsin the past ten years.

14. Issuing of directions by the Board of orders underSection 33 (1) where it has referred (water pollution)matters to a district or high court for cases related tothe coastal districts.

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 one offence wasbooked under the Water Act in Balasore district,no offences were booked in Bhadrak, Kendraparaand Ganjam districts and 2 offences were bookedin Jagatsinghpur and Puri districts. The Karwarregional office of the Karnataka PCB stated that30 criminal and ‘criminal miscellaneous’ cases werefiled under section 33(1) against the companies.No copies of any of the documents requested wereprovided halting further analyses on this subject.

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 harmare 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 risks and people’s preferences andvalues.

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 proving the safety of the proposed activity. Thetext of laws such as the Water Act, 1974 and theCRZ Notification, 1991 allow ample opportunityand discretionary power for the regulator toexercise caution. However, the analysis of theprocedures and decision-making under the WaterAct, 1974 in particular reveals that precaution as itis 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, 1974 is precautionaryin nature and the regulators appear not to fulfileven this function. There is on the whole very littlepro-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 throughthe Right to Information Act, shows that PCBs arestill loathe to sharing information proactively andpublicly such as on their websites.

The maintenance of information specific to coastal

areas and stretches is also inadequate, and will haveits 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 enquiry 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 capriciousseeming decisions can be termed precautionary.

Before we can attempt to call for a proper definitionof the precautionary principle and greaterapplication of the same in environmental decisions,we need to examine why the procedural provisionsthat exist for the application of this principle havebeen under-utilised. It has been suggested alreadyby various scholars that the debate on the meaningof the precautionary principle is perhaps an endlessone. Therefore, paying more attention to how

Conclusion



regulators, proponents and citizens understand theprinciple, whether the regulatory system is gearedtowards utilising it in a fair and consistent manner,and who is involved in the various decisions relatedto the principle will provide answers into howvalues like the PP are given importance in decision-making. This calls for a greater democratisation ofnot just scientific processes but also the entire

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. pp 81.

Sunstein, Cass R. 2005. Laws of Fear: Beyond thePrecautionary Principle., Cambridge University Press.

References

governance process (recognising that the two canbe mutually exclusive events).

Rather than promote a regime of ‘expertocracy’,the appeal of the precautionary principle shouldultimately be the primacy it places on the interactivepolitical dialogue between state regulators and thepublic.

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. Our goal is to promoteecologically and socially appropriate approaches to conservation and management in coastal, marineand mountain ecosystems in India. We adopt interdisciplinary and transdisciplinary approaches in ourresearch and conservation interventions, drawing from the fields of ecology, conservation biology, sociology,economics, and law. Our work aims at building community capacities for conservation and enhancingcommunity stakes and rights in environmental decision-making.

www.dakshin.org

While deciding on a project, do regulators knoweverything about its impact on the environment oron human health? What actions or decisions aretaken when impacts of a proposed activity areunknown? The decision to act or not act, and thequestion of how to act in the face of unknowns oruncertainties, form the subject matter of theprecautionary principle. The present study on theprecautionary principle was conducted to identifygaps between this important legal principle and theuse of law.

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Precaution in Coastal Regulation: From Principle to ... · Precaution in coastal regulation: From principle to practice. Dakshin Foundation, Bangalore, p 30. Aarthi Sridhar Dakshin