Crisis management tools are no substitute for prepared preventive action, which has been found wanting in the case of several off-shore oil rigs in Indian waters.
In April this year, a BP oil rig in the Gulf of Mexico exploded, caught fire and collapsed, killing eleven people and triggering an oil spill on a scale not experienced since the Exxon Valdez spill in1989. The full impact of the Deepwater Horizon disaster, including its catastrophic effect on the marine environment, the fishing industry and regional tourism will only be fully evident in the years to come but it would be reasonable to believe that in its wake, governments across the world would be carefully re-examining the drilling operations off their own shores.
In the post-catastrophe examination of Deepwater Horizon from a regulatory perspective, the blame has fallen squarely on the weakness of the Environmental Impact Assessment (EIA) process in the United States in that it did not require a “worst case scenario” analysis. Any major project in India requires an EIA; that is, a focused and extensive examination of the possible environmental effects of any activity in the terms of the EIA Notification issued by the Ministry of Environment and Forests in 2006. All offshore oil and gas activities which were set up after the notification automatically fall into Category A set out in the Notification; that is, they require an environmental clearance from the Ministry of Environment and Forests based on the recommendations of a Central Environmental Appraisal Committee. A series of Right to Information applications filed by this writer to determine how closely the environmental impact of India's offshore petroleum installations have been examined revealed disturbing results, including on the manner in which these responses are given.
Ironically, the Ministry of Environment and Forests, whom one would have expected to be most concerned, responded to an RTI query regarding the possibility of oil and gas pollution in Indian waters with a bland statement that the matter had been disposed of in the Ministry and that the relevant authority was the Directorate General of Hydrocarbons, falling under the Ministry of Petroleum and Natural Gas.
The response to an appropriate RTI query from the Directorate General of Hydrocarbons was more revealing. It indicated that there are 36 offshore installations falling within India's Exclusive Economic Zone that have been installed in or prior to 2006. Of the 36 installations, 25 fall in the richer oilfields in our western waters. ONGC is the joint venture partner in most of these blocks, and the major international commercial players include RIL, Niko Resources, Cairn and Hardy. The oldest of these is in the Panna Mukta field off the western coast, set up in 1986.
Logically speaking, the older an installation, the more likely it is to use outdated technology or to suffer from the wear, tear and strain inflicted by ocean waves and currents. However, since the EIA Notification only came into effect on September 14, 2006, only the six most modern installations are covered in its ambit. The other 30 offshore installations have not been subjected to the same environmental scrutiny. This fact raises the serious question — if these installations are not covered by the EIA Notification, then has a thorough environmental examination been done by any authority at all?
The Ministry of Petroleum has issued the Petroleum (Safety in Offshore Operations) Rules, 2008. However, these Rules are broadly worded injunctions to conduct operations in a safe manner and to immediately notify the government in case of an accident or “release of hydrocarbon or other noxious substances whereby safety of…marine environment is likely to be endangered.” The rules impose no specific environmental conditions at all and their effect is largely to close the stable door after the horse has bolted.
The Oil Industry Safety Directorate (OISD) is the authority for all offshore drilling operations. Before an installation may commence operations, the OISD must give its consent to operate and also conduct safety audits on installations. When queried through an RTI application about the lack of environmental assessments for installations prior to 2006, the OISD denied responsibility, implicitly kicking the ball back at the Ministry of Environment and Forests.
Most critically, even where these rules and procedures exist, their objective is confined to the safety of people and installations, and not the environment. While the limited objective is honourable in itself, it does not substitute for the elaborate and holistic environmental survey that a complete EIA provides for.
The problem is exacerbated by the attitude of some of the parties involved. A query directed at ONGC as to the number, nature and location of their installations was answered with the cryptic “Confidential and cannot be shared”. The Directorate General of Hydrocarbons was happy to provide the same information in detail, which leads one to wonder how confidential it was in the first place and on what basis the determination is made that a citizen of India may be denied information which another arm of the government freely provides.
The most important rule in environmental law and jurisprudence is the precautionary principle, which may be stated broadly to say that one need not wait for definite proof of a danger to justify guarding against the risk. The genesis of the EIA mechanism is this understanding that an audit of the environmental risk associated with each project needs to take place before any danger is given an opportunity to arise. The reason that the approach espoused by environmental law is so cautious and forward looking is that, while environmental disasters are unlikely, they are also catastrophic in scale when they do take place. While ONGC and the OISD have their own oil spill units and the Coast Guard is mandated to tackle any danger that may arise, these are crisis management tools and no substitute for prepared preventive action by the government.
Moreover, India is also a party, since 1995, to the Law of the Seas Convention of 1982. Articles 204, 206 and 208 of this Convention cast a duty on the state-party to prevent pollution and assess the risk of any potentially polluting activities, and provide that such rules, practices and procedures may be no less stringent than international standards. Besides our own interest, there remains upon us an international obligation to prevent and monitor any threat to our marine environment.
What emerges from this RTI investigation is a worrying pattern of abdication of responsibility and duty. If the Directorate of Hydrocarbons, the Oil Industrial Safety Directorate, the Ministry of Petroleum and Natural Gas or the Ministry of Environment and Forests are not, collectively or individually, responsible for the environmental assessment and compliance of 30 oil and gas installations, then who is? Surely the presence of a possible danger is justification for a full investigation and audit by the most qualified Ministry. This lacuna in regulation and preparedness in an exceedingly sensitive area calls for urgent redress. A good first step would be for the Ministry of Environment and Forests to frame a set of rules providing for a comprehensive survey and audit of the offshore installations that predate the 2006 EIA Notification. Preventive action should be the mantra. Ex-post facto legalistic justifications sound abysmally weak in the face of ecological disasters and their devastating impact, as is evident from the happenings in the Gulf of Mexico.
(Satyajit Sarna is a lawyer at the Delhi High Court. He may be contacted at firstname.lastname@example.org)