Nityanand Jayaraman

‘Ex-post facto prior environmental clearances’: How a nonsensical phrase was used to flout the law. The National Green Tribunal’s recent order exposes the illegalities of elite offenders, including IIT-Madras and Koodankulam Nuclear Power Plant.

Koodankulam critical

In November 2012, arguing a case in the Supreme Court challenging Koodankulam Nuclear Power Plant units 1 and 2, advocate Prashant Bhushan pointed out that Nuclear Power Corporation of India had gone ahead and constructed structures without the statutory prior clearance required under Coastal Regulation Zone Notifications 1991 and 2011. Specifically, a desalination plant had been constructed levelling sand dunes. Boulders had been dumped to form a seawall. A bridge, dyke and seawater intake pipelines had been constructed in the sea. An open discharge channel had been constructed for dumping hot and salt-laden wastewater from the plants onto the beach.

The Nuclear Power Corporation contended that as a project of the Department of Atomic Energy, the complex had been given a blanket exemption to be set up within 500 metres in 1989 by Rajiv Gandhi, who was prime minster at the time. In 1991, the Government of India issued the Coastal Regulation Zone Notification to regulate development activity within 500 metres of the coastline. The rules had a list of permissible activities and one for prohibited activities. Activities such as projects of the Department of Atomic Energy were permissible as long as they applied for and obtained permission from the Ministry of Environment and Forests.

By 1991, though, neither Rajiv Gandhi nor the Union of Soviet Socialist Republics – which was partner to the agreement to set up Koodankulam – survived. It was only in 1998 that the project was recast, this time through an agreement with the Russian Federation. At that time, construction had not begun.

In 2011, the 1991 Notification was superseded by a new set of rules. These rules, among other things, required projects to be cleared based on detailed village-level Coastal Zone Management Plans that incorporated the customary and livelihood uses of the coast and the sea by the fishing community. Both the 1991 and 2011 rules require proponents to apply for coastal regulation zone clearance even for permissible projects. The Nuclear Power Corporation is aware of that, and had applied for prior permission for the desalination plants attached to Units 3 to 6.

However, when confronted with the absence of coastal regulation zone clearance for Units 1 and 2, the proponent and its regulator – the Ministry of Environment and Forests – offered to set right the wrong. “MoEF will appropriately again take into account the establishment of desalination plant from the CRZ point of view and ensure that it will continue to function on further satisfaction of MoEF,” it said.

Unmindful of the supersession of the 1991 CRZ Notification by the 2011 Notification, the Nuclear Power Corporation applied post-facto for a prior clearance under the defunct 1991 rules. The application is legally untenable on many counts, not the least of is the issue of invoking a dead law to issue a clearance. The Tamil Nadu Coastal Zone Management Authority, which is considering the application, echoed a sense of Kafkaesque despondency while placing NPCIL’s application for consideration:

“The applicant has already completed constructions and no provision is available in the CRZ Notification 2011 for the ratification. However, the unit has established the installations for the above proposals based on exemptions obtained … during the year 1989 … The Authority may consider.”

The absence of coastal regulation zone clearance is not merely a technical or legal formality. India’s east coast is marked by massive seasonal movement of sediment up and down the shoreline. A September 2005 study for the Nuclear Power Corporation estimates that there is a net transport of 420,000 cubic metres of sediment towards east at the project site. It is this sediment drift that nourishes beaches and maintains the coastline. Hard structures like the sea wall, bridge and dyke can block the movement of sand and cause severe erosion of the shoreline to their east.

“It had to happen,” Idinthakarai fisherman UP Rayappan said. “The bridge and seawall have eaten into our beach. Soon our houses will also be swallowed by the sea.”

Even though the plant only operates once in a while, plagued as it is by frequent breakdowns, it discharges large volumes of hot waste water onto the beach. At full capacity, each unit can discharge 6.3 billion litres of scalding hot water per day. Idinthakarai fisherman S Paul says the hot water flows as a southbound stream into the sea to a distance of 3 km south. Hot water reduces the life-sustaining capacity of seawater by decreasing its dissolved oxygen content. The biomass rich waters of the Gulf of Mannar are already showing signs of thermal stress, according to local fishers. “We have seen a significant decline in commercially valuable fish like pomfret, white prawn and lobsters,” said Paul.

Curiously, the CRZ clearance granted to Units 3 to 6 acknowledge the dangers of discharging such large volumes of hot waste water at the beach. That is why the clearance recommends deep sea discharge through a pipeline as opposed to the open channel discharge at Units 1 & 2.

The Nuclear Power Corporation obtained its post-facto prior clearance under CRZ in May 2013. The legal validity of this clearance, and hence the project as a whole is now under question, given that the NGT has ruled the granting of post-facto clearance ultra vires.

Nityanand Jayaraman is a Chennai-based writer and social activist. He is part of the Chennai Solidarity Group for Koodankulam Struggle, and author of the report City in the Forest: The Birth and Growth of IIT-M mentioned in the article. This article was first published on Scroll.in