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Laws of the sea

By Aakash Mehrotra and Bhomik Shah

Three recent oil spills off the Mumbai coast have drawn attention to the fact that India, which has 11 major and 20 minor ports, still does not have the response systems to handle oil spills that were mandated by a 1993 law

Oil spills Ecological disaster

Mumbai has witnessed three oil spills in just one year. Sadly, the full impact of the spills was not fully reported in the mainstream media, and the spills have not provoked any revision of policy. This is something we have come to associate with almost every environmental issue in the country.

Oil spills are among the biggest ecological disasters resulting from anthropogenic activity. The scale of the disaster is enormous and is often ignored as ecological evaluation is an arduous task. While the observed impact is recorded, the latent impact usually goes unnoticed. Even with meticulous effort, we can only superficially evaluate the estimated loss of biodiversity from a spill. To qualify what impact the spill will have on the entire foodchain and to project its impact, say, ‘x’ years from now is near impossible.

The recent oil spills have come as a test of India’s preparedness and ability to handle shipping disasters. Having a strong response system and disaster management plan is vital.

India started with a strong framework -- the National Oil Spill Disaster Contingency Plan (NOSDCP) -- in place to meet such events in 1993. The Ministry of Defence was made the nodal authority for implementation of this contingency plan. According to the plan, every Indian port should by now have had a response system in place. The reality, however, is that not a single port in the country can say it has a response system. The issue has been discussed and repeatedly brought forward, but moves to set up the necessary infrastructure have never kept pace. India has 11 major and 20 minor ports that are yet to be equipped with this facility. The contingency plan stipulates that all major ports and oil-handling destinations are to have Tier 1 facilities which, by definition, should be able to handle 700 tonnes of spilled oil.

Recently, the cargo vessel M V Rak carrying around 290 tonnes of furnace oil (much worse than crude oil), 50 tonnes of fuel oil, and 60,000 tonnes of coal, sank about 25 nautical miles from the Mumbai coast. Earlier, in another accident when an Indian Oil and ONGC oil pipeline burst, about 30,000 barrels of crude spilled into the Arabian Sea. It amounted to a total of around 4,170 tonnes of oil spillage -- much more than any response system in India can handle.

The NOSDCP agrees to abide by the ‘polluter pays’ principle for the cost of recovery, clean-up and restoration of the environment. While recovery and clean-up costs are easy to compute, the costs associated with restoration of the environment are likely to be compromised because it’s hard to quantify the visible and invisible impacts of an oil spill, the direct and indirect impacts, and temporary and permanent changes to the environment. It also attempts to define and map ‘high-risk areas’: areas with high traffic and narrow sea room.

The most striking feature of any policy to address the problem of oil spills has been the huge gap between official words and action. Several national and international conventions address the issue. The Oil Pollution Preparedness, Response and Cooperation (OPRC) Convention, drafted  in 1990 and adopted internationally in 1995, aimed to put in place measures to deal with pollution incidents, either nationally or in cooperation with other countries. The convention added a protocol on Hazardous and Noxious Substances (HNS) in 2000, which came into effect in 2007. The OPRC-HNS protocol provides a diplomatic and legal framework for international cooperation in combating major incidents and the threat of marine pollution. Apart from this, India and other South Asian countries like Bangladesh, Sri Lanka and the Maldives are bound to the South Asia chemical pollution contingency plans funded by the United Nations Environment Programme and the International Maritime Organisation. Both conventions call for strong risk assessment and mitigation capabilities at major and intermediate ports. Ironically, all of this is missing in the Indian context.

It doesn’t take much to arrive at the conclusion that policies relating to marine pollution have either not been drafted or not been implemented, in India. We have still to put the required infrastructure in place. The stated laws and conventions not only cover the threat of marine pollution but also the issue of occupational safety while dealing with toxic substances. The story of Alang illustrates how easily and plausibly the rules and regulations concerning occupational safety are sidestepped in India.

A brief look at the statistics reveals the scale of the problem. India has a coastline of 7,500 km, and an annual demand of 190 million metric tonnes (MMT) of oil. Of this, 157 MMT of oil is imported via the sea route and pipelines. With such a lot of oil (not counting other hazardous wastes) being imported, the gravity of the issue cannot be stressed enough. And yet, such serious issues as oil spills, land-based pollution and coastal activities, continental shelf drilling, potential seabed mining, ocean dumping, and vessel source pollution are rarely discussed.

Every time an oil spill occurs, the world’s pulse quickens in fear of a major catastrophe unfolding. The National Atmospheric and Oceanic Administration (NOAA-USA) recently concluded (on the Gulf oil spill) that for every dolphin death counted there could be 50 more not counted. No projection model can accurately assess the severity of damage caused to the foodchain from such an accident. The environmental costs are colossal, and the huge amounts of toxic chemicals draining into the oceans are a strain on their recuperative capacity.

It is hard to even put into words the horror that is an oil spill. NDTV showed footage of a snake coated in oil, on the coast. The snake could neither escape into the sea nor remain alive in the baking sun. Sea birds, fish and mammals all share the same fate. Meanwhile, the agencies dealing with such issues pass the buck to each other.

An important issue here is the involvement of the flag country -- the country where the ship or tanker is registered. As in the Mumbai oil spill, the Indian government could not even approach the flag country, Panama, as India is not a signatory to the International Convention on Civil Liability!

Appropriate and timely action is of paramount importance to help reduce the scale of the tragedy. India lacks both the technology and the capacity to handle events like these. And similar accidents across the world show that the international laws on oil spills are, at best, thin. The fact that environmental laws across countries have for so long been flouted in the name of sustained economics, and justified as necessary evils, testifies to this. The BP oil spill is a telling example.

Then again, most laws address only ships carrying toxic waste and oil tankers, not oil platforms and deep water horizon spills. There are no binding international rules or standards for oil platforms, which pose an even greater risk. At present they are represented by an obligation that serves only as a guide to nations. An international framework for cooperation and technology transfer must be galvanised to address this important issue, and a common procedure globally adopted. As yet, no international convention deals with the issue of placing liability. India does not have any major policy or law regarding oil platform safety.

Thirty-six offshore drilling installations fall within India’s exclusive economic zone. Of these, only six were installed after 2006. That year is important as it was the year when an improved procedural document on environment impact assessment (EIA) was prepared. It became mandatory for any industrial activity of this scale to get an EIA done before operations began. The Ministry of Environment and Forests (MoEF) places oil drilling operations in Category 1 of the EIA and calls for absolute preparedness in terms of environment security and risk assessment. Sadly, these laws and studies often prove useless in the Indian context. Of the 36 oil drilling installations, only six are under the ambit of the EIA. Most of these are located in India’s western waters, with companies like ONGC, RIL and CAIRN being the major commercial giants controlling these waters. The fact that so many installations have not gone through a thorough environmental examination is surprising.

With limited expertise on the government’s side and a nexus among companies to evade the law and get a procedural decree in their favour, it is difficult in a country like India to get a true picture of what is actually happening. Indeed, internal oil spills must be occurring regularly in old installations as a result of wear-and-tear of machinery, but might usually go unnoticed.

The most important principle in any environmental law is risk assessment, that is, the precautionary principle. EIA procedures are based on this principle -- to audit and assess the risks associated with any project, and to devise methods to nullify or at least minimise the risks. The MoEF must frame strong procedures for installations predating 2006 to get EIAs done according to the new EIA notification. Stricter rules have to be framed to place liability and properly evaluate environmental damage.

Indian laws concerning Indian waters are themselves very shallow. The laws of the sea in our country are victims of political dyslexia and blamegames that have become synonymous with our governing authorities. This must stop. The Directorate of Hydrocarbons, the Oil Industrial Safety Directorate, the Ministry of Petroleum and Natural Gas, and the Ministry of Environment and Forests all exercise some control over procedural safety, risk assessment and mitigation, and impact assessment in any such accident. The onus is a collective one. Common property is not no one’s property!

It is a sorry state of affairs that we have still not been able to fix responsibility for the oil spill along the Mumbai coast this August. The MoEF has yet to come out with an assertive statement.

Nations across the world have taken a cue from the BP oil spill and have invested in preparing themselves for such accidents. India too must invest reasonable resources to ensure that its oil infrastructure is sound and that safety standards are adhered to.

(Aakash Mehrotra is a social researcher working at Sambodhi Research and Communications. He has a Masters in forestry management from the Indian Institute of Forest Management. 
Bhomik Shah works with WWF-India as senior programme coordinator. Shah is a graduate of the Indian Institute of Forest Management. He has also been a journalist)

Infochange News & Features, September 2011