NGT Relies On Supreme Court And Its Own Rulings To Quash Tamil Nadu Government’s Order To Close Sterlite

On Saturday (15 December 2018), the National Green Tribunal (NGT) set aside the Tamil Nadu government’s 28 May 2018 order to shut UK-based Vedanta Resources’ Sterlite Copper plant in Thoothukudi. The NGT, in its ruling, has also found untenable the Tamil Nadu Pollution Control Board (TNPCB) orders against Sterlite on 9 April, 12 April and 23 April this year that were aimed at the plant’s closure.

The NGT principal bench, headed by Justice Adarsh Kumar Goel with Justices Raghuvendra S Rathore and K Ramakrishnan as other members, has relied primarily on rulings of the Supreme Court on Sterlite in 2013 and its own bench in 2013 to quash the Tamil Nadu government order and demolish various allegations made against Sterlite.

Then, both struck down orders asking Sterlite to shut for alleged violation of pollution norms. The Supreme Court was passing its order on a Madras High Court ruling quashing the environmental clearance given to the copper plant on petitions filed by the Marumalarchi Dravida Munnetra Kazhagam and the Centre of Indian Trade Unions.

The Tribunal gave its ruling on a 2013 state order in March that year asking the plant to close after a gas leak.

The bench, which also had Dr Satyawan Singh and Dr Nagin Nanda as expert members, said the grounds on which the Tamil Nadu government based all its orders can hardly be sustainable. The Thoothukudi copper plant was charged with not furnishing ground water analysis report; not removing copper slag; lack of authorisation to generate and remove hazardous waste; not analysing parameters of heavy metals in ambient air quality; and failure to construct gypsum pond.

One of the major reasons for the Tamil Nadu government’s closure order to be struck down was that it was against “principles of natural justice”. The NGT was of the view that Sterlite was not given any notice or an opportunity to be heard by TNPCB.

The tribunal found that the grounds stated in the closure orders against Sterlite by TNPCB and the Tamil Nadu government were not “grievous” to justify the closure of the copper plant. Other issues raised against the copper plant were also unjustified even if the Vedanta unit was found to be violating norms or conditions.

While dismissing the Tamil Nadu government’s and TNPCB’s arguments on these, the principal bench found the pollution control, in particular, lacking professional approach in discharging its functions. The tribunal seems to be clear that protests had put pressure on the Tamil Nadu government and the allegations against Sterlite were without any basis.

Describing the closure as “civil death” - a term used in the August 2013 ruling, the bench said evidence of pollution and not mere suspicion was the condition precedent to closure. The judges said that the closure order was a reaction to motivated protests that began on 24 March, resulting in the April orders. The order on 25 May was following the death of 13 persons in police firing when the protests turned violent on 22 May.

Referring to the five grounds on which the copper plant was ordered shut, the NGT ruled: “Even if there is a technical breach as contended on behalf of the respondents, the breach is trivial in nature causing no prejudice to anyone,” the principal bench observed.

In one of the charges against Sterlite - expiry of authorisation for generating and disposing hazardous waste - the NGT said that the TNPCB was sitting on an application submitted by Sterlite for months.

The NGT said that there was nothing to show that Sterlite caused any violation of air quality norms too and the copper plant need not carry out analysis at any other laboratory, apart from the one where it had already done, when TNPCB did not have its own lab.

The judges found fault with the TNPCB for adopting a hyper-technical approach, unmindful of the object of law - to prevent and control water and air pollution. The TNPCB could not arbitrarily close such establishments on hyper technicalities, the judges said, adding: “we expect TNPCB to have more focused and professional approach in performing its regulatory functions.

The NGT pointed to the Supreme Court’s 2013 ruling referring to a report by the National Environmental Engineering Research Institute (NEERI). Then, the apex court said that a NEERI report, as a whole, did not warrant a conclusion that Sterlite could not take remedial steps to improve environment.

The judges, also referred to the NGT ruling on Sterlite in August 2013, to reiterate that cogent evidence is required against mere suspicion for ordering closure of the unit. Then, the NGT had said that ordering closure of an industrial unit not only results in stoppage of production but also has far reaching economic, social and labour implications.

The judges disagreed with Tamil Nadu government and TNPCB arguments on Sterlite causing pollution and said there was no scientific evidence to support their claims.

Observing some of their arguments based on articles in factories constructed during 1950s, the principal bench said that technology has changed, and the reduction of the impact of by products on environment could be reduced to a larger extent on account of the new scientific methods.

One of the most contentious arguments before the NGT was on total dissolved solids (TDS) in the effluent discharge. Stating that the TDS level in and around Thoothukudi was far higher than prescribed standards, the judges said documents show it is generally high in the region and the central and state pollution control boards should work together to find remedy for it.

In drawing this conclusion, the judges were clear that Sterlite’s copper slag and gypsum waste are non-leachable and non-hazardous and they cannot be causing higher TDS in effluents.

The NGT justified appointing a three-member expert panel headed by retired justice Tarun Agarwal to examine the closure order and the allegations against Sterlite. It rejected arguments by the Tamil Nadu government that the panel appointment amounted to delegation of judicial functions.

The judges said even without the expert panel’s report, Sterlite had a case in its favour against the closure. On Vedanta’s offer to spend Rs 100 crore for welfare activities in the area, they said the amount could be spent on projects like water supply, hospital, health services and skill development.

The Tamil Nadu government seems to have not reconciled itself to the NGT ruling and has said it would appeal to the Supreme Court. But the issue here is that the judges at NGT have relied heavily on the Supreme Court’s ruling in 2013, ordering reopening of the copper plant, to quash the Tamil Nadu government closure orders.

Moreover, the Tamil Nadu government has been found to have simply acted on the TNPCB orders rather than do its own fact-finding or review the pollution control board orders. With both TNPCB and Tamil Nadu government not offering Vedanta an opportunity to respond to the charges, it is likely that the Tamil Nadu government’s appeal in the Supreme Court will not pass muster.