Legal Concerns: Why The Chennai Oil Spill May Not Be Fixed

Previous oil spill cases took more than 5 years to assign blame – and even then, payments don’t always come through.

The crew of two ship which caused a massive oil spill in Chennai by colliding off the city’s coast are being interrogated to determine responsibility. (Photo: AP)

Chennai is still reeling from two cargo ships colliding – the damaged ship was carrying almost 33,000 tonnes of oil. The full environmental impact of the spill is still unknown, but all signs point to it being considerable. Dead birds and animals have washed ashore and the dangers posed by such incidences are well documented.

So, what happens now?

(Photo: The News Minute)

What Have the Courts Said?

Indian courts have repeatedly highlighted that the Right to a Healthy Environment is a Fundamental Right under the Indian Constitution and that there exists a positive duty on both the state and citizens to protect and safeguard the environment.

The courts also emphasised the importance of the Polluter Pays principle and has held it to be a fundamental norm in environmental law in the country – in fact, the National Green Tribunal (NGT) is required to apply the principle in its cases.

Reports indicate that the NGT Bench at Chennai has issued notices to the state and central Pollution Control Boards in relation to the spill. While all the facts relevant to the case are still not known, it is important to note a landmark 2016 judgment of the NGT’s Principal Bench at Delhi in the case of Samir Mehta v Union of India and Others.

In 2011, a ship sank off the Mumbai coast, leading to a massive oil spill and consequent ecological damage in the area. The NGT sharply criticised the ship-owners and their failure to ensure that the ship was seaworthy before going on to apply the Polluter Pays Principle to both the ship-owners and the intended recipients of the ship’s cargo. They were charged a total of Rs 105 crore for the damage caused in August 2016, but the status of the payment remains unclear.

(Photo: ANI)

What Now?

Sadly, while all efforts are being made for the immediate clean-up, proper remediation and compensations efforts usually take time.

The Mumbai spill case is a good example of this – while the spill occurred in 2011, the NGT’s judgment was only delivered in 2016 with the possibility of an appeal to the Supreme Court left open. Proving the exact quantum of damage is also difficult – as in the Mumbai oil spill decision, numerous expert reports are likely to be required in order to determine the nature and scope of the damage.

Finally, oil spills of this nature have several impacts that are simply impossible to calculate and compensate and the NGT has specifically noted this fact when it said that:

Pollution related damage could not be “computed in terms of money with exactitude and precision” […] “the damage caused to aquatic life, mangroves, sea-shore and tourism are incapable of being computed exactly in terms of money”;

In the Mumbai case, while the NGT’s decision has attained finality, the division of the compensation amount is being determined by an NGT appointed committee. The committee’s report was submitted just last week and is still before the court.

Riwtck Dutta, Supreme Court advocate and co-founder of Legal Initiative for Forest and Environment, commented that the Ennore oil spill case raises four separate sets of concerns:

The first and immediate concern is for the government to contain the damage. Second, the Court holds all those responsible for this to be liable and therefore it is very important to figure out all those who were involved in the incident. Third, on a larger level, it is important to question the systems which were put in place to deal with such an emergency situation – what sort of preparedness measures were put in place and whether there were any early warning systems which might have mitigated the scale of the damage. Finally, and perhaps most importantly, we need to examine what sorts of mechanisms ports have put in place in such cases to not just cope with situations like these but also to prevent them in the first place.

(Photo Courtesy: The News Minute)

Preparing For The Future

Oil spills are a common occurrence; and given the focus on port led development, the number of ships Indian waters is certainly likely to increase.

In order to tackle the threat of oil spills, it is critical to focus on more than just an episodic response where each such event is followed by a strong attempt to fine the offender.

After all, in cases of environmental damage, it is often impossible to ever “make good” the harm suffered. The way forward should include checks and inspections of ships for sea-worthiness as well as a legal regime that not just punishes offenders but also raises the stakes enough to deter future offenders as well.

(Shalini Iyengar is an environmental lawyer and Faculty, School of Law, Environment and Planning, at Srishti Institute of Art, Design and Technology)