Court submission challenges ‘confidential’ report on the Great Nicobar Island plan

A submission by activist Ashish Kothari in the National Green Tribunal (NGT) has challenged the confidential status of a report which clears the way for a trans-shipment port on the biodiverse Great Nicobar Island. The report — which hasn’t been publicly released — abruptly concluded that parts of the planned mega port no longer fell in an ecologically fragile no-development zone. However, the port’s construction could destroy coral reefs and turtle and megapod habitats.

The government envisions building a trans-shipment container port, township, greenfield airport and solar and gas power plant on the Great Nicobar Island. Despite criticism from environmentalists, bureaucrats, opposition party leaders and international conservation groups, the government has pushed for the project citing its strategic location — close to key trade routes along the Malacca strait.

In 2023, The National Green Tribunal ordered the government to constitute a High Powered Committee (HPC) to “revisit” the project’s environmental clearance, based on “certain deficiencies” pointed out in Kothari’s petition. The Union Environment Ministry granted the project clearance in 2022, based on several conditions.

Citing the island’s coastal maps and existing rules under the Island Coastal Regulation Zone notification 2019, Kothari’s petition pointed out that seven square kilometres of the project fell in the CRZ 1-A coastal area, where most development activities are strictly prohibited. Of the seven square kilometres, 0.63 square kilometres fall under the port and port reclamation — the first of the four projects to come up.

 CRZ 1-A areas are those are documented to have coral reefs, mangroves, and nesting grounds for birds and turtles. The Ministry’s clearance was conditional on the project construction abiding by the 2019 notification.

However, court proceedings revealed that the HPC accepted the conclusions of a ground truthing exercise done by the National Centre for Sustainable Coastal Management (NCSCM) sometime in 2023, which was consulted to investigate the alleged coastal violations. According to the proceedings, the NCSCM “concluded” that the areas in question no longer fell in the CRZ 1-A zone, but in the CRZ 1-B zone, where port construction is permitted.

This is contrary to the NCSCMS’s past assessments. Previously, the NCSCM had said that the “proposed port reclamation area falls within the ICRZ category of ICRZ IA (turtle nesting grounds, and protected forest), ICRZ IB (Intertidal Zone) and ICRZ IV (waterbody) and tribal reserve area.”

No details about the NCSCM’s survey methods were revealed, and neither the HPC’s findings nor the NCSCM’s report are publicly available. The government has kept them confidential citing national security. On July 5, the government submitted the HPC’s proceedings to the NGT in a sealed envelope.

Keeping the proceedings confidential is “unfathomable” when the environmental clearance process was itself public, Kothari submitted to the NGT on July 24. “Such secrecy in environmental matters, especially when it concerns a biodiversity hotspot and a repository like the Great Nicobar Island is contrary to all principles of environmental good governance,” says the submission.

Lack of seasonal data

The detailed 39-page submission raises a range of issues with the HPC, including the limited terms of reference given to it and inherent conflicts of interest in the proceedings. The submission was made in response to an affidavit filed by the Union Environment Ministry on  July 5, in which the government said it had abided by the NGT’s orders by constituting the HPC, and all issues had been reviewed and addressed. The government pleaded with the NGT to dismiss the application, “or pass any other appropriate order.”

Kothari’s submission however argues that the government violated the NGT’s order by limiting the HPC’s involvement to the three issues raised by the court as examples of “deficiencies” in the clearance process. In doing so, “the MoEF&CC prevented the HPC from revisiting the EC effectively,” the submission states.

“It is shocking that the HPC has relied only on a report of the NCSCM, the consultant of the project proponent, to come to the conclusion that no part of the project area falls under CRZ IA. Ground truthing for leatherback turtle nesting during June, a non-nesting period, speaks volumes to the rigour and intention of the exercise,” says the submission.

Apart from alleged violations in coastal zone regulations, the NGT had cited an incomplete coral translocation plan and limited seasonal data in the environmental impact assessment (EIA) as aspects the HPC could look into when revisiting the clearance. Of 20,668 coral colonies that risk destruction due to the project, 16,150 are proposed to be translocated, “without any mention of threat to remaining 4,518 coral colonies,” the NGT had said.

In its affidavit, accessed by Mongabay India, the Ministry said the HPC had considered the issue and agreed with the Zoological Survey of India’s suggestion to observe these corals before “any decision on translocation is taken regarding them.” The Ministry alsodenied omitting multi-seasonal data in the EIA, saying that as per the Environmental Impact Assessment Guidance Manual for Ports and Harbours, only one season’s data, apart from monsoon, is needed. The HPC reached the same conclusion, according to the affidavit.

The lack of multi-seasonal data in drafting the environmental impact assessment has been heavily criticised by experts. Multi-seasonal data can provide greater context for species behaviour, reproduction, and movement.

Kothari’s submission, in response, says the HPC failed to consider that data from three seasons are required under the Island Coastal Regulation Zone notification 2019.  The submission also pointed out that the 2019 notification prohibits the destruction of coral reefs. “The HPC has only looked at the Zoological Survey of India’s (ZSI) proposal to translocate coral colonies, and has agreed with the recommendation of ZSI. The mandate of the law, the fact that coral reefs are protected and that their translocation is not permitted by law etc. have not even been considered by the HPC,” says the submission.

The submission also says the EIA was based on rapid assessments done by the Zoological Survey of India and Wildlife Institute of India, with data collected over a period of eight days or less. “Therefore, it is false to claim that the EIA is based on one season, i.e. three months data collection,” the submission goes on to say.

The Wildlife Institute of India has since said that it will require two years of field study to come up with a comprehensive conservation plan for the leatherback sea turtles, saltwater crocodiles, and Nicobar megapodes, all of which are likely to be impacted by the project.

The NGT is likely to deliberate the government’s affidavit and the responding submission. The next hearing is scheduled on August 29.

Banner image: An aerial view of the Andaman archipelago. Representative image by Venkatesh Katta via Flickr (CC BY-NC 2.0).