Learn the right lessons from the Ennore oil spill, strengthen civil liabilities for environmental damage
The recent collision between two commercial vessels, MT Dawn Kanchipuram and MT BW Maple, has reportedly spilled nearly 20 tonnes of oil off the Kamarajar Port at Ennore, Tamil Nadu. This whole episode has not only revealed the unpreparedness of the state in cases of large scale oil pollution, but also reflected poorly on the liability regime for environmental damage in India.
Since January 28, the day of the actual collision, there has been continuous reporting of faulty cleanup procedures and failure to contain the spillage from spreading. Volunteers with abysmal protective gear were deployed to clear the oil sludge and the Coast Guard used nondegradable chemical dispersants to clear the oil spill.
Although India has been a signatory to some of the prominent international instruments, like the International Convention on Civil Liability for Oil Pollution, 1969, the domestic liability regime for environmental damage has been weak and underdeveloped.The Ennore incident compels us to revisit the need for a comprehensi ve legal mechanism to address issues of fault and no-fault based liability for environmental harms.
There’s an absence of clear definitions of environmental damage. While several jurisdictions in Europe have adopted an expansive definition of environmental damage to include ecological and economic loss, especially after the introduction of `EU Directive’, most others limit themselves to compensating economic harm.Limiting the definition of com pensable harm to economic losses results in side-lining some of the major losses suffered by ecology .Ramifications of such an exclusion are severe as most long-term damage to marine environment, bio-diversity and natural resources can go uncompensated.Actual magnitude of the damage can remain unmeasured.
At present, the National Green Tribunal has no guidance on calculating compensation for environmental damage.Revealingly , there do not appear to be any discernible distinctions between compensation, fines, and punitive damages either.
An example worthy of emulating is the Oil Pollution Act, 1990 in the US. A wide range of categories including natural resource damage, damage to real or personal property , loss of subsistence use of natural resources, loss of revenues, taxes, cost to public services (for instance, cost incurred upon removal of oil by government agencies) have been listed as compensable. Individuals who have suffered economic loss, the fishing industry , the tourism industry and the state or federal trustees acting on behalf of fish and wildlife can also claim compensation from the designated fund, but only after seeking compensation from the responsible parties. The claim for compensation exists concurrently with the power of the regulator to impose civil penalties on the party causing environmental damage.
In the absence of clear recognition of punitive element in compensating environmental harm, the burden of cleanup and restoration primarily falls on the government. In the case of Ennore, there are factual discords in deciding who ought to have undertaken the cleanup operations, what methods and technology ought to have been used and whether the dispersants used were indeed within ecological safety parameters. The petition filed in the Madras High Court, praying for the detention of the colliding vessels till the offending companies have paid the full cost of restoration, was also dismissed as the court stated that the governments were best equipped to deal with the matter. India’s environmental law remains grossly inadequate.
The remediation process may never be effective as the detrimental effect of the damage caused may be disproportionately higher than the restorative efforts undertaken. These recurring concerns have been further highlighted by the failure of legal institutions to recognise culpability of offenders that underlies civil liability for environmental damage. Further, there is an imminent need to streamline compensatory mechanisms and provide the regulators and NGT reasonable parameters to follow while deciding the nature of compensable damage and quantum of compensation.
The offhand treatment of the Ennore episode is a clarion call to act on the longstanding demand to introduce civil penalties for environmental harms. Government must use this occasion to overhaul India’s languishing environmental jurisprudence.