Introduction
Civilizations across the globe have thrived and continue to do so along coastlines measuring nearly 6.2 lakh km, and it is believed that over 1/3rd of the global population which amounts nearly to 2.4 billion people, resides within 100 km of the coastlines.[i] Human lives and livelihoods have for centuries been intertwined with the coastal ecosystem and evolved around it for reasons of necessity and convenience such as food supply, transportation, defensible position and coastal climate. One example, amidst numerous, of ancient coastal cities across India is the city of Lothal which was first inhabited in 3700 BC of the ancient Indus Valley civilization.[ii] Lothal was particularly known for its massive dockyard which was not only amongst the earliest in the world of its kind, but also an exemplary display of maritime engineering and hydrography since it was built on the oft- shifting course of the Sabarmati River . Unfortunately, numerous natural catastrophes such as storms and floods caused the downfall of Lothal.[iii] About 60% of the world population resides by coasts in modern cities and is faced with risks of this very nature, however at a much higher frequency and intensity.[iv]
The most recent Cyclone Nisarga in Maharashtra (June, 2020), Cyclone Amphan in West Bengal (May 2020), and Cyclone Fani in Odisha (April 2019), got the country and especially the state administrations on edge due to the concern of evacuation of lakhs of citizens residing along the vulnerable coastline of these states. It has been seen globally that natural disasters with devastating impacts on coasts and coastal lives and livelihoods have become a more frequent phenomenon in the last decade or two. While these episodes have so far been tackled as instances in isolation, in terms of disaster management, evacuation and rehabilitation of affected families; the anthropogenic linkages of such disasters have also been recognized and acknowledged worldwide, however, in variable degrees. The degree of recognition across various countries is reflected in the legislations enacted by the governments, the government schemes and initiatives, the budgetary allocation for preventing or tackling such catastrophes, the participation of all stakeholders in the decision-making process, among others.
In India, the coastal and marine areas are regulated and conserved by a plethora of laws that classify coastal areas into zones based on the extent of protection the areas demand; laws to regulate activities to be carried out in these areas; laws that govern the creation of ports, their conservation and the movement and safety of ships; laws that classify zones in the marine environment such as oceans and seas, and whereby the exploration, exploitation, conservation and management of marine resources is regulated; laws that aim to prevent pollution of the marine environment and also conserve the habitats of marine flora and fauna, among others. These laws are namely, the Environment Protection Act, 1986; the Coastal Regulation Zone Notification, 2011 and 2019; the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976 (MZA); the Coastguard Act, 1978, Merchant Shipping Act, 1958, Indian Ports Act, 1908, Major Ports Trust Act, 1963, Public Liability Insurance Act, 1991, Wildlife Protection Act, 1972, the Marine Products Export Development Authority Act, 1972, the Indian Fisheries Act, 1897, among others. These laws broadly regulate and govern the entire coastal and marine landscape. Additionally, the Disaster Management Act, 2005 establishes the National Disaster Management Authority, which is responsible for policy making on disaster management and ensuring timely and effective response to disasters.[v] This Act, although not specific to oceans and coasts, incorporates certain post-operative measures in the event of a natural disaster. Therefore, it appears on the legislative front that India has taken ample measures to protect its oceans, coasts, and livelihoods of traditional local communities.
Unregulated Coastal Development
The recent coastal disasters in India have all caused massive devastation to life, livelihoods and property. Although they appear to be isolated incidents triggered due to a variety of reasons, deeper analysis reveals two driving factors. Firstly, increased human interference with nature, and secondly, certain glaring failures in the legal framework including its implementation. With the population growth rate at 1.1%, as per the United Nations, the world has seen a directly proportionate expansion of existing landmass through large-scale land reclamation activities along with unsustainable development of the coastline.[vi] The city of Mumbai is a classic example, where the shape, size and profile of the shoreline have dramatically changed due to the socio-economic and political forces over decades. Several projects in the past have caused reclamation, and the built-up land in Mumbai has expanded by 350% in 40 years from 1972 to 2011.[vii] Geomorphological changes caused by reclamation impact hydrodynamic parameters like tidal levels, waves, sea level, and also impact aquatic life due to changes in coastal water depth, sedimentation, depletion of mangroves, inter-tidal vegetation, mudflats, etc. that serve as breeding grounds for marine biodiversity. Implementation of stringent environmental impact assessment standards for reclamation proposals is crucial since ‘sustainability’ is pivoted on the fragile coastal environment.
Although governed by the doctrines of sustainable development and precautionary principle, coastal cities across India have far over-stepped the point of sustainability. This is a result of collective failure of the citizenry and the legal system. While, on one hand, the infrastructure is planned in violation of coastal regulations supported by city administration blindly issuing permissions in fragile coastal areas[viii] including in ‘No Development Zones’ (NDZ); on the other hand, the Central Government through the Ministry of Environment and Forests has encouraged this process by gradually watering down the coastal regulations themselves. It is the Coastal Regulation Zone Notification, 2011 (earlier CRZ Notification, 1991) that presently governs the zonation of the coastal areas across India and regulates activities. The CRZ Notification was first introduced in 1991 to impose restrictions on industries, operations and processes in the CRZ, and later in 2011 incorporated provisions with a view to ensure livelihood security to fisher communities, conserve coastal stretches, its unique environment and marine area and further to promote sustainable development based on scientific principles. This law which stipulates a mandatory prior CRZ clearance for permissible development activities has been slowly diluted over the years to even allow post-facto CRZ clearance, which simply means regularization of illegal structures along coasts. Following significant protest, the new CRZ Notification, 2019 has been enacted on 18.01.2019, omitting the provision for post-facto clearance, however, allowing tourism activities, reducing NDZs, reducing CRZ area, among other counter-productive provisions. The primary document, as per the CRZ Notification, that governs the coastal zonation is the Coastal Zone Management Plan (CZMP) which is prepared by each State.[ix] This plan, which when overlaid with the plans for proposed projects, reveals the zone in which the project falls and whether such a project is permissible and what restrictions apply to it. These very plans that are fundamental to coastal regulations still remain unprepared after 8 years of enactment of the CRZ Notification, 2011. With the new 2019 Notification, the entire exercise of preparation of CZMPs has once again rebooted, giving states a fresh lease to continue with illegal coastal infrastructure in the meantime, challenges to which languish in courts. It is also pertinent to mention that the most recent Draft Environmental Impact Assessment Notification, 2020, (EIA Notification, 2020) also has a devastating impact on the coastal environment since it eases processes for infrastructure projects (incl. coastal infrastructure) by creating a stand-alone process for obtaining post-facto Environment clearance (thereby legalising violations); lays down social, environmental and spatial extent as criteria for categorisation of different projects, rather than including criteria based on environmental science or potential environmental impact; places only pecuniary and no legal consequences for non-compliance of the EC conditions, among several other serious lapses which are being currently debated across India.
These infractions along the coastline, globally, have led to massive concretization of coasts, most often at the cost of irreversible destruction of ecologically sensitive areas (ESAs) that form an integral part of the coastal ecosystem, such as mangroves, turtle nesting habitats, salt marshes, biologically active mud flats, coral reefs, among others. These ESAs are granted the highest protection in law due to the vital role they play in maintaining the integrity of the coastline.[x] Several coastal cities across the globe that have destroyed these ESAs for coastal development have then chosen to build seawalls, bulkheads, rock revetments etc. for defending the shores from natural disasters. However, with repeated and more frequent high intensity storms, cyclones and hurricanes by the coasts, these ‘armoured’ coastlines have over the years proven to be much less effective at mitigating impacts of disasters than the natural / ‘living shorelines’.[xi] From a study conducted at the University of North Carolina, Chapel Hill of the affected coasts, it emerged that policy and management of coastlines in the USA lacked scientific understanding.[xii] It was found that along the shorelines that were most hard-hit by the Superstorm Sandy, 3/4th of the bulkheads and concrete walls used as defence by house owners were severely damaged.[xiii] However, none of the natural marsh shorelines were severely impaired. The study concluded that oysters, coral reefs, mangroves etc. acted as natural breakwaters and limited the erosion and flood damage, and also raked more than 50% of the energy out of the storm surges in less than 15 meters of territory.[xiv] Further, the presence of wetlands lowered flood damage by 11% on average, i.e. preventing loss of $625 million.[xv] On similar lines, analysis of Cyclone Fani in Odisha suggests that rapid industrialization in the area that has depleted the forest cover, especially mangroves in the Paradip, Kunjang and Erasama Blocks of Jagatsinghpur District have made the coast vulnerable in the absence of natural barriers. Studies show that large Steel companies, Ports and industries have systemically destroyed these areas in violation of coastal norms.
Restitutional Measures and the Challenges Ahead
The above analysis indicates that it is crucial for human survival to retreat from shorelines and restore them. The North Caroline study suggests that, according to researchers and ecologists, it is possible to ecologically restore certain vulnerable coastal areas to pre-development status. However, the science of restoration of these natural barriers like marshes, reefs, mangroves etc. through shoreline stabilization projects is still nascent. There is no doubt that rehabilitation of coastal lives and livelihoods is the first and foremost step for such shore stabilization, notwithstanding that the entire post-facto stabilization is better averted by stricter regulation of human activities at the very outset. Blue Acres, a Government scheme along the coast of New Jersey, is one such unique program started in the aftermath of the Superstorm Sandy, wherein the government aims to buyout the properties of coastal dwellers in highly vulnerable areas, soon to become uninhabitable, demolish the human settlements and ecologically restore these areas to the natural pre-development times.[xvi] This ecological restoration is entirely tailored to the local conditions of the living shorelines. For instance, some coastlines are more conducive to regrowth of mangroves and marshes such as the west coast of India, other areas may support restoration of oyster crusted barriers, for example in the Gulf and Southeast.[xvii]
As ideal as ecological restoration appears to be, it is replete with challenges. These challenges not only include the lack of scientific knowhow of such restoration in certain cases, but also the unwillingness of coastal communities or the State/ Country in rehabilitating and prioritizing safety of coastal lives. The biggest hurdles faced in the Blue Acres program, described earlier included convincing large communities to voluntarily agree to rehabilitate to safer locations. Several socio-economic hurdles contributed to unwillingness of the survivors to relocate.[xviii] Equally challenging is the unwillingness of the States to act in some cases, as seen with gradual dilution of the stringent coastal norms in India that nearly permit violations today. Although a combination of socio-economic and political forces drive decisions, these are best if aligned with forces of the nature.
Conclusion
It is sufficiently evident from frequent natural disasters that certain structural changes in human lifestyle are critical. Although these realizations are established more firmly with each debilitating experience, concrete measures on an individual, community and government front are needed. Only restraint on human interference/wants, coupled with a stronger legal system, rooted in community values that have traditionally supported harmonious co-existence with the oceans and coasts, will prevent ‘coastal retreats’ from graduating from a mere choice to an irreversible necessity.
[i] Lauretta Burke, “Pilot analysis of Global ecosystems: Coastal Ecosystems”, World Resources Institute (2001); See http://pdf.wri.org/page_coastal.pdf
[ii] Mayank Vahia, “Evolution of the Harappan Civilisation”, Tata Institute of Fundamental Research
[iii] S. R. Rao, Lothal, (1985), Archaeological Survey of India. p. 12.
[iv] Eric Wolanski, “Protective functions of coastal forests and trees against natural hazards”, Australian Institute of Marine Science; See http://www.fao.org/forestry/11255-046cec30adc5893d3a6bb162c88bd55b8.pdf
[v] Section 3, DM Act, 2005, regulates the establishment of the National Disaster Management Authority, with its powers and functions given under Section 6 of the DM Act.
[vi] As per the UN World Population Projections, 2019.
[vii] Yogita Rao, “Mumbai Metropolitan Region’s built up area up 350% in 40 years: Study”, The Time of India (2019); See https://timesofindia.indiatimes.com/city/mumbai/mumbai-metropolitan-regions-built-up-area-up-350-in-40-years-study/articleshow/70918285.cms
[viii] The most recent example, among innumerable others, is that of the Mumbai Coastal Road (currently sub-judice) wherein alterations have been brought into the CRZ Notification, 2011 in order to permit the said project.
[ix] CZMPs are prepared under Para 5 of CRZ Notification, 2011 and Para 6 of CRZ Notification, 2019.
[x] ESAs are granted the highest protection status of CRZ-IA within the CRZ Notification, 2011 as well as the CRZ Notification, 2019.
[xi] Rowan Jacobson, “Seawalls: Fortified wetlands can protect shorelines better than hard structures”, (2019), The Scientific American (Edition: April, 2019).
[xii] Jen Schwartz, “Coastal communities struggling to adapt to rising seas are beginning to do what was once unthinkable: retreat”, (2018), The Scientific American (Edition: August, 2018).
[xiii] Ibid
[xiv] Ibid
[xv] Supra note 11.
[xvi] Jen Schwartz, “Coastal communities struggling to adapt to rising seas are beginning to do what was once unthinkable: retreat”, (2018), The Scientific American (Edition: August, 2018).
[xvii] Ibid.
[xviii] Ibid.
Authored by Ms. Saumya Chaudhari, an Advocate at the Supreme Court of India, practicing as a Senior Associate at the Enviro Legal Defence Firm, New Delhi. This blog is a part of the RSRR Excerpts from Experts Blog Series, initiated to bring forth discussion by experts on contemporary legal issues.