In January, when the Goa state pollution control board closed down the coal handling terminal run by JSW Group at the Mormugao port, the residents of Vasco da Gama town were elated. For years, they had complained of the coal dust from the facility causing them respiratory illnesses.

The terminal, which had opened in 2004, was subsequently authorised to handle an annual import of 5.5 million tonnes of coal. But the Board found that since 2011, the JSW Group had actually handled up to 10 million tonnes of coal per annum, nearly double the sanctioned quantity. It withdrew the project’s consent to operate on January 9.

What further sealed the Board’s decision in March was its finding that the project’s environmental clearance, which was issued by the Ministry of Surface Transport in 2001, had lapsed.

However, in June, the company produced a letter from the Ministry of Environment, Forests and Climate Change stating that the project’s environmental clearance was still valid.

What explained the discrepancy?

Three outdated legal provisions, as it turns out. A closer look at the environment ministry’s letter shows the project’s clearance is based on a notification issued in 1991, which was later revised; a delegation of powers between central ministries in 1997, which was later revoked; and an exemption given under a 1994 notification, which was later reversed.

Even the Board’s experts could not recall these outdated rules, particularly since India has completely overhauled and strengthened its environmental clearance regime since 2006. But the environment ministry has now invoked them to give a fresh lease of life to JSW Group’s terminal. With the Board relenting and giving the project consent to operate on July 9, the terminal is all set to reopen.

This has sparked anger among the residents of South Goa. A group of citizens and activists have filed a petition in the High Court, questioning the logic behind the Board’s decision.

In response to a detailed set of questions, a spokesperson of JSW Group said: “We have no comments to offer since the matter is subjudice.”

Shipping minister Nitin Gadkari recently argued that major ports should be exempted from seeking environment clearances altogether. Gadkari told reporters on August 3 that the government is considering a representation citing Article 364 of the Constitution, which grants the President, and by implication, the Union Cabinet, the powers to exempt major ports and aerodromes from any central or state law.

But environmental experts believe there is a case for the High Court to strike down clearances to ports based on provisions dating back to the 1990s.

What happened in the 1990s

In February 1991, the central government issued the Coastal Regulation Zone Notification under the Environment Protection Act of 1986. The Notification introduced, for the first time, environmental regulations for all land up to 500 metres from the seashore. In this stretch, called the Coastal Regulation Zone, a range of activities along the seashore, including the establishment and expansion of ports, were made contingent on a clearance from the Ministry of Environment and Forest.

In January 1994, the Environment Impact Assessment Notification was introduced, which made an environmental clearance compulsory for 30 categories of industrial projects. But it exempted waterfront projects at ports that were already covered under the CRZ Notification 1991.

In 1997, a short-lived coalition government at the Centre led by Inder Kumar Gujral gave further concessions to ports by allowing the Ministry of Surface Transport to issue the CRZ clearances on behalf of the environment ministry. The notification did not give any specific reasons other than saying that “some State Governments” had pointed out “difficulties being faced by the local people and also for construction of essential facilities in the coastal zone.”

The unprecedented delegation of powers raised questions over whether the Ministry of Surface Transport had the technical competence to give environmental clearances, besides posing a conflict of interest since the same ministry administered large ports seeking the clearances.

The delegation of powers was challenged before the Delhi High Court by the NGO Wildlife Protection Society of India in 1997. Though the court admitted the petition, it gave no immediate relief and the Ministry of Surface Transport continued issuing clearances.

The Ministry issued at least 21 clearances to large port expansion projects, most of which were under its own administrative control. The clearances were awarded by the Ministry of Shipping after the bifurcation of the Ministry of Surface Transport in November 2000.

The clearance letters give the impression that the ministry treated these as mundane administrative duties instead of objective appraisals. All the letters carry the same 17 conditions, word to word. More than half of these conditions related either to industrial safety or housekeeping, such as ensuring water and sanitation for labour during construction.

The few environment-related conditions were either redundant, reminding the project to adhere to existing environmental regulations, or weak suggestions, such as to provide a green buffer “wherever feasible”.

The only project-specific condition was that the developers were required follow measures recommended in the project’s environment impact assessment report. These reports were prepared by consultants hired by the developers themselves. At the time, there was no accreditation of EIA consultants, and public hearings, where affected communities could point out errors or deficiencies in the report, were not required to be held.

The most controversial clearance accorded by the Ministry of Surface Transport was its approval in January 2000 to the expansion of the Dhamra harbour in Odisha to a multi-cargo port spread over 1,000 acres. The clearance letter overlooked the fact that the proposed port bordered the Bhitarkanika National Park and was 10 km from the Gahirmatha Marine sanctuary, a known habitat of the endangered Olive Ridley turtle. A major campaign led by wildlife activists, particular turtle conservationists from Odisha, brought the Ministry of Surface Transport’s environmental clearances under renewed criticism.

In April 2001, the Ministry of Environment and Forests issued a notification stating that the objections raised by Wildlife Protection Society of India before the Delhi High Court were “duly considered”, and the delegation of powers to the Shipping Ministry was withdrawn with immediate effect. It transferred all pending applications to itself, but said that clearances already granted would continue to be valid.

In November 2007, the Wildlife Protection Society of India unconditionally withdrew its petition before the Delhi High Court. As a result, no judgement was delivered. The arguments made over the decade are not in the public record.

How JSW got its clearance

The clearance for JSW’s coal terminal at Mormugao Port Trust was awarded by the Ministry of Shipping in January 2001, less than three months before the Ministry of Environment and Forests withdrew the delegation of powers. The clearance was awarded to ABG Goa Port Ltd, which was taken over by JSW subsidiary South West Port Ltd in 2002.

The clearance, like the others issued by the Shipping ministry, did not say which commodity would be handled at the berths and in what quantity, referring only to the construction of “two multipurpose cargo berths”. The conditions were identical to the 17 common conditions imposed on all other projects including Dhamra.

The clearance letter by the Ministry of Shipping did not have any project-specific conditions.

The environment impact assessment report was prepared by Tata AIG Risk Management Services was submitted in February 2000. No public hearing was held even though citizens had begun complaining of coal dust pollution from existing terminals operated by the Mormugao Port Trust. In 2001, the Bombay High Court’s Panaji bench initiated a suo motu writ petition after receiving letters complaining about the pollution.

On the basis of the clearance, the pollution control board sanctioned an annual coal handling capacity of three million tonnes to JSW Group in 2004 that was subsequently upgraded to 5.5 million tonnes, making it the largest coal handling facility at the port.

A new regime takes shape

JSW’s clearance narrowly missed the dawn of a stricter regulatory regime.

In 2006, the EIA Notification 1994 was replaced with a more detailed Notification which lifted the exemption enjoyed by foreshore facilities of ports. It mandated that all port projects required an environmental clearance in addition to the Coastal Regulation Zone clearance. Projects with a cargo handling capacity of more than 5 million tonnes had to approach the central government for their environmental clearance.

The CRZ Notification was also updated in 2011. All proposals had to be first approved by state coastal zone management authorities, which had the powers to carry out site inspections and demand clarifications from developers.

The difference introduced by these changes in environment clearance regulations are evident in the clearance awarded in 2013 to a coal terminal adjacent to JSW Group. Constructed under a public private partnership by Adani Mormugao Port Terminal Private Limited, a subsidiary of the Adani Group, the terminal was given a clearance subject to the fulfillment of 20 conditions specific to the project, apart from nine general conditions. Six specific conditions directly related to coal handling, mandating that coal is transported through a closed conveyor belt, that the belt is not washed, dry fogging is used to suppress dust, the coal stockyard is lined to prevent contaminated water from entering the sea. It even specifies the height and fabric type of a dust-protective windscreen around the terminal.

Despite the challenge of enforcing them, such conditions offer two advantages. While the company has specific mitigation measures to follow, the affected population can pinpoint violations for redressal. For instance, in June 2018, Vasco residents complained to the Pollution Control Board that a ship berthed at the Adani terminal was discharging coal directly into a barge using a floating crane. The claim that this caused more pollution than usual was easier to press given that one condition in the environmental clearance, perhaps anticipating such a situation, stipulated that coal could be unloaded only to the stackyard and by a hopper crane.

An aerial view of the Mormugao Port Trust. Photo credit: MPT

The confusion over JSW’s clearance

Legal experts are of the view that clearances given by the Shipping Ministry must be reviewed. “Since several of these projects are now in expansion phase, citizens are looking into the history of how these projects were assessed in the first place and realising that there was very limited scrutiny or due diligence,” said Kanchi Kohli, legal research director at Centre for Policy Research’s Namati Environment Justice Program.

The Goa Pollution Control Board has itself testified to the confusing history of clearances and delegation of powers. At the Board’s meeting on March 27, members found it hard to believe that the 2001 letter even amounted to an environmental clearance and rejected JSW’s application for a renewed consent to operate on this ground. The minutes of the Board’s meetings state:

“M/s SWPL appears to be relying on a letter dated 24/1/2001 from the Ministry of Shipping, Government of India which is stated to be an Environmental Clearance. However this document appears to be an approval for the construction of two multipurpose cargo berths in MPT and does not specify the quantity or nature of commodity to be handled therein.”

The members, many of whom are experts in the field and regularly examine clearances for coastal projects, had no idea about the history of delegation of powers and incorrectly assumed that the environmental clearance was given under the EIA Notification 1994. The Board concluded that the environmental clearance had expired based on a February 2018 judgement of the Supreme Court that held that clearances issued under the 1994 Notification were valid only for five years.

The Board repeated this in an affidavit filed on April 13 before the National Green Tribunal, where JSW had filed an appeal against the above mentioned decision. “The project will require a prior EC from the MoEF and in the absence of which [it] cannot be granted any Consent to Operate,” the Board’s acting member secretary at the time Shivanand Salelkar had stated in the affidavit.

The Board had to relent after the environment ministry stepped in and declared the Ministry of Shipping’s letter to be a valid environmental clearance. The letters were sent by the environment ministry’s director Arvind Nautiyal to JSW on May 8 and May 18, following a written request from the company after the Board’s decision in March.

While the first letter said that the Ministry of Shipping’s clearance was “in consonance with the provisions of CRZ Notification, 1991”, the second letter does not mention the CRZ Notification and said simply that the “environmental clearance” issued by Ministry of Shipping was “valid and subsisting”.

The ministry's letter dated May 8. The second letter dated May 18.

On June 29, on the basis of these letters the Board allowed JSW’s berth restart. The minutes record no reasons for why the position changed, and only refers to the environment ministry’s letters.

The Board’s then member-secretary Levinson Martins declined to answer this reporter’s questions stating only that “the ministry has clarified that the EC is valid, so we have given the consent to operate.”

An official of the Board, on the condition of anonymity, said that the ministry “has to explain why it continues to stand by this clearance. The ministry is the master of this document and hence we cannot directly question its interpretation.”

The official also said that the Board was tied down by its own past decisions. “In the Board meetings, JSW argued that since the MoS clearance had been considered earlier by the Board to permit up to 5.5 million tonnes of coal handling per annum, the same clearance ought to be considered now for up to that much quantity. Not accepting it now means changing the decisions taken in 2004 and we are Estopped from doing that,” said the official, referring to the legal doctrine of Promissory Estoppel, which says a past commitment cannot be undone.

Back to court

For the residents of Goa, the reopening of the terminal has come as a shock. A public interest litigation has filed before the Bombay High Court at Panaji questioning the legality of the environment ministry’s letters in favour of the project, and the consent to operate granted by the pollution control board. The petition has been filed by three citizens, a fishermen cooperative and the Goa Foundation. On July 24, a division bench of the court issued notices to the state government, the central environment ministry, the state pollution control board and JSW and Adani companies to respond by August 20.

Legal experts say the court’s decision in the matter could set a precedent for all clearance granted by the Ministry of Surface Transport under the CRZ Notification of 1991.

Biswajit Mohanty, a wildlife activist and lawyer, said that the court could be persuaded to set a time limit on such clearances on the lines of the Supreme Court’s February judgement that set a five-year deadline for environment clearances issued under the EIA Notification 1994.

Mohanty, who had challenged the Dhamra port’s clearance issued by the Ministry of Surface Transport before the Orissa High Court, said such clearances were of poor quality and ought to be replaced. “At a time when the environment ministry’s clearances itself were terrible, the quality of the MoST’s clearances was worse. It had no expertise and no idea about environmental impacts,” he said.

While his petition had also challenged the delegation of powers made in 1997, this particular plea was withdrawn after the delegation was revoked in 2001. The High Court is yet to deliver a judgement in the case, but it would have little impact on the Dhamra port, which has obtained a new clearance under the EIA Notification, 2006.

For Goa, there may be hope. “There is legal ground to ask for a limitation on clearances under CRZ Notification 1991, similar to the one on EIA Notification 1994,” Mohanty said. “How can the same clearance be valid 17 years down the line? Environmental clearance cannot be unlimited and unfettered.”