One morning in January 2016, Custodio D’Souza lost his nylon dragnet spread across the estuarine natural harbour of Mormugao, along with his yield of crab, mackerel and sardine. The net was shredded by a trailing suction hopper dredger deployed to tear up the seabed, so that capesize vessels — the largest kind of dry cargo ships — could enter the harbour. Amid mass outrage, two groups of fishing canoe owners went to the National Green Tribunal (NGT) against the massive scope of the project, and the absence of a proper environmental clearance process.
On September 2, 2016, Justices Dr Jawad Rahim and Dr Ajay Deshpande of the NGT’s Western Zone Bench at Pune recorded the “adverse, severe impacts on environment as a consequence of illegality in process of grant of Environment Clearance” for the port project.
How did the protest against the port project begin?
In January 2016, after having lost their nets and yield, Custodio D’Souza and several other fishermen approached the Mormugao Port, and were informed that the dredging had been launched by Shipping Minister Nitin Gadkari. “We were told he had himself come to flag off the ploughing,” D’Souza said. The intention was to make Mormugao Port the first major port to have a ‘draft’ — measure of the depth of a shipping channel — of 19.5 metres. Currently, only private ports have drafts of 18 m or more, and a deeper draft is the first step towards port expansion.
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Why does Mormugao Port Trust need a deep navigational channel?
Mormugao Port, a major port under the Ministry of Shipping, currently has a 14 m draft, imports 12 million tonnes of coal annually, and aims to raise this figure to 51 million tonnes by 2030. Port records note that even though it is closer to hinterlands in Karnataka, capesize vessels were docking at private ports in Maharashtra, Andhra Pradesh and Karnataka. Ports such as JSW Jaigarh Port in Maharashtra to Mormugao’s north, and Krishnapatnam Port in Andhra Pradesh on the east coast, have deeper drafts. Capesize vessels are wide-bellied hulks of deadweight tonnage (DWT) between 1,50,000 and 1,80,000. Ships that come to Mormugao are of maximum 90,000 DWT.
What kind of dredging was going on at Mormugao Port?
Capital dredging, which is different from maintenance dredging, and is a one time ‘capital’ investment. Essentially, the seabed is torn up, its sediments, rocks and clay extracted, and the channel is pressed down to create depth for bigger vessels to navigate. No extraction is involved in maintenance dredging; only accumulated sediments on the seabed are cleared. At Mormugao, “15 million cubic metres of the Arabian Sea bed” are to be dredged, and an 18 km-long navigational channel is to be deepened to depths of 19.5 m draft (inner harbour) and 19.8 m draft (outer harbour). Some 65% of the work has been completed.
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Who went to the NGT, and when?
As the protests grew louder and more insistent, local fishermen approached Dr Antonio Mascarenhas, a former scientist with the National Institute of Oceanography, Dona Paula, Goa, and former member secretary of the Goa Coastal Zone Management Authority (GCZMA), who had been the first to express “apprehensions” over the port’s expansion plans. “I raised three issues,” Dr Mascarenhas told The Indian Express. “Was a geomorphological study of the shipping channel undertaken to understand if massive ransacking of the seabed has, or will have, an impact?
“Was a scientific study of benthic activity (of organisms in the benthic zone, the ecological zone at the deepest level of a water body) carried out?
“And finally, will there be erosion? If the massive channel is pushed down, what is the proof that sediments from the estuary will not get channelised into it?”
Mascarenhas had voiced these concerns in a report he had prepared as member secretary of the GCZMA, and armed with this report, Custodio D’Souza, who was backed by the Old Cross Fishing Canoe Owners Co-op Society Ltd, and Baina Ramponkar & Fishing Canoe Owners Society, approached the NGT (Western Zone) Bench in Pune in early May — against the Port, the central and state governments, and the GCZMA. They asked the NGT to pass directions to cancel the Environmental Clearance for the project — obtained by Mormugao Port Trust on February 9, 2016, a month after the dredgers had already begun digging — and “take necessary action to restore the seabed to its original condition”.
What did the appellants argue?
Based on when their dragnets were shredded, the fishermen contended that dredging had begun on January 1, 2016, while the Port got environmental clearance, without the mandatory public hearing, only on February 9, 2016.
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They argued “irreversible impacts on the aquatic life, sea bed”, degradation of the ecosystem, and an impact on the environment and livelihoods of fishermen. They alleged “mischief” by the Union Ministry of Environment, Forest and Climate Change (MoEF) in exempting the activity from public hearing. Also, no approval was taken from the Expert Appraisal Committee (EAC), the petitioners said. Red flags raised by the GCZMA were ignored by the MoEF, they said. “Capital dredging activity per se cannot be considered in isolation,” counsel for petitioners Nigel D’Costa argued, citing largescale infrastructure upgrades including road connectivity, parking areas, increased traffic, and storage houses.
How did the Port respond?
Counsel for Mormugao Port Neeraj Kaul argued capital dredging will increase cargo traffic, lead to socio-economic development, and be environment-friendly. Three Environ-ment Impact Assessment (EIA) studies had been carried out by the “reputed government firm” Water and Power Consultancy Services (India) Limited, the counsel told the Bench, and dismissed the GCZMA’s arguments as the “apprehensions” of a former member secretary (Mascarenhas). The MoEF’s exemption of the project from public hearing was “a conscious decision”, and “at the most it could be a possible error of MoEF”. But there was “no mala fide” intent involved, Kaul said.
The counsel also argued the decision was taken “as a policy decision subsequent to the meeting of Group of Infrastructure at the Government of India level”.
And what did the MoEF say?
The MoEF affidavit said the dredging was exempted from public consultation as “per paragraph 7 III Stage (3) (i) (cc) of the EIA Notification, 2006”. The dredging was needed to provide channel approaches to berths 5 and 6 (operated by JSW) and berth 7 (operated by Adani). Since no acquisition was to be made and deepening of channels “shall increase efficiency of the port and result in overall EXIM boost due to better transport economics”, it was exempt from public hearing.
Towards the latter part of the hearings, however, the Additional Solicitor General conceded the error on the part of MoEF in exempting the project from public consultation. But he asked for equity, as a significant amount of Rs 193 crore had already been spent, and significant dredging (65% between January 1 and May 2, 2016) had been undertaken.
What did the Tribunal order?
On May 4, 2016, the Bench passed an interim order to stop work.
In its final order passed on September 2, 2016, the NGT said that commencing the project in January 2016, much before Environmental Clearance was sought, showed the Port’s “disdainful conduct” in “treating mandatory provisions as mere formality”. It refused to accept the Port’s “public interest” argument, saying the “environment is the silent sufferer and (was) not represented in the present litigation”.
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The case involved “adverse, severe impacts on environment as a consequence of illegality in process of grant of Environment Clearance,” the Tribunal said. The “emboldened project proponent” had indulged in an act “which has undoubtedly changed very geomorphology of sea bed”, it said. The MoEF’s decision to bypass public consultation was “without any authority of law, and is arbitrary and devoid of any powers available under EIA notification,” the Bench said.
The Port counsel had told the Bench that the exemption decision was taken in a meeting of the Group of Infrastructure. To this, the Bench said: “The Respondent Number 1 (Port) is not a novice as portrayed. We have recorded the submission of the Port in interim order regarding the decision of exemption taken in Group of Infrastructure meeting. It seems that the MoEF was unduly influenced by such decision, wherein Mormugao Port Trust and its administrative ministry participated.”
It said: “It is a well settled legal position that policy decisions or administrative decisions cannot bypass or subvert statutory provisions of Act.”
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The MoEF, the Tribunal said, needed to be reminded of the importance of transparency and accountability in public administration. It was compelled “to record and issue directions to MoEF that whenever application for grant of EC (Environmental Clearance) is sought, it must keep in mind precautionary principle and examine factual, legal and all aspects of the project before granting any such permissions,” the Bench said. It asked a committee headed by Dr Mascarenhas to monitor maintenance dredging at the port.
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What happens now?
The Port went to the Supreme Court, but got no relief. The Tribunal is now hearing a matter related to the restoration of the seabed. Following the NGT order, the public hearing, too, finally took place in March this year. A new battle is likely to begin once the recommendation comes in.