Arbitrary act

The Tamil Nadu government’s order to close the Sterlite plant permanently, without issuing notice to the company, possibly a knee-jerk response to the public outrage, is vulnerable to being set aside by an appellate forum.

Published : Jun 06, 2018 12:30 IST

Sterlite Copper plant with its waste dumping site nearby. A 2013 picture.

Sterlite Copper plant with its waste dumping site nearby. A 2013 picture.

On May 28, the Tamil Nadu government endorsed the direction of the Tamil Nadu Pollution Control Board (TNPCB) to close the Copper Smelter Plant run by M/s Vedanta Limited at the SIPCOT Industrial Complex, Thoothukudi, and directed it to seal the unit and close it permanently.

The brief order, issued by the Environment and Forests Department, took note of the fact that the TNPCB had not renewed the consent to operate to Vedanta Limited in its order dated April 9 and that subsequently, on April 23, it had issued directions for closure and disconnection of power supply to the unit. The power supply, the order noted, was disconnected on May 24.

The order then merely cites, without explanation, Article 48-A of the Constitution, and quotes it verbatim: “The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.” It is not clear how the closure order is necessitated because of the State’s duty to protect and improve the environment. Paragraph 3 of the order then relies on Section 18(1)(b) of the Water (Prevention and Control of Pollution) Act, 1974, “in the larger public interest”, to endorse the TNPCB’s closure direction, and to justify the plant’s sealing and permanent closure.

Section 18(1)(b), which deals with the power to give directions to the Central and State Pollution Control Boards, says: “Every State Board shall be bound by such directions in writing as the Central Board or the State government may give to it. Provided that where a direction given by the State government is inconsistent with the direction given by the Central Board, the matter shall be referred to the Central government for its decision.” The May 28 order of the Tamil Nadu government is silent on whether it is inconsistent with any direction given by the Central Board, which would require it to be referred to the Centre for its decision.

In a similar order dated March 29, 2013, the TNPCB, in exercise of its powers under Section 31-A of the Air (Prevention and Control of Pollution) Act, 1981 (also known as the “Air Act”), had directed the closure of the plant with immediate effect and the disconnection of power supply. Sterlite Industries (India) Limited, which runs the Thoothukudi plant, challenged the order before the National Green Tribunal (NGT) on the grounds that it was arbitrary and discriminatory and had been passed in undue haste, without proper application of mind and the grant of appropriate opportunity, and by taking into consideration irrelevant material while ignoring substantive and relevant considerations. The company also alleged that the order was not based on scientific study or data.

The Tamil Nadu government contended that the company’s appeal before the NGT was not maintainable as its first appeal would lie before the appellate authority constituted by the State government on May 8, 2013. The company, however, justified its approaching the NGT directly because the appellate authority, constituted by the State government, lacked quorum.

The NGT, in a reasoned order on August 8, 2013, found that the company had been operating the plant since 1996 with requisite approvals and consents issued by the regulatory authorities during all this period.

The NGT took note of the 2005 report of the National Environmental Engineering Research Institute (NEERI), which showed that the emission levels of the plant were within the stipulated limits while some emissions did not conform to the standards prescribed, and the fact that it had made some recommendations. The NGT also noted that the Central Pollution Control Board (CPCB) had, in its communication to the TNPCB on November 17, 2003, recorded that the solid waste released out of slag in the plant site was non-hazardous.

In March 2013, however, the State government issued notice to the company alleging that it had contravened Section 21 of the Air Act, following complaints of irritation in the eye and suffocation from residents living in areas adjoining the plant. Curiously, the notice also claimed that the gas emitted from the plant was being examined. The NGT observed in its order: “If that be so, then the question of holding the appellant company responsible for alleged complaints of throat irritation etc. did not arise. Moreover, not a single case was reported in any of the hospitals and that is the best proof of the fact that the allegations lacked verisimilitude.”

The NGT also noted that the CPCB had stated that as per the performance report, the ambient air quality inside the plant and outside its premises met the national ambient air quality standards. The NEERI’s 2011 report, which confirmed that the plant was meeting the environmental standards, was also noted.

The NGT held that the order of closure of the plant, following the alleged leak from the plant, was founded on a mere suspicion and not supported by any cogent evidence. The TNPCB had not placed any study in consonance with the scientific methodologies for the period from March 23 to March 29, 2013, to substantiate its plea of excessive emission released by the plant resulting in serious health hazards to the residents, the NGT added.

The NGT took note of the Supreme Court’s April 2, 2013, judgment in the Sterlite case, directing the company to pay a compensation of Rs.100 crore for having polluted the environment in the vicinity of the plant, with a rider that its judgment would not stand in the way of the TNPCB issuing any direction to the company, including a direction to close the plant, in the interest of protection of the environment, in accordance with law. The NGT held, however, that the order of closure of the plant issued by the Chairman of the TNPCB on March 29, 2013, suffered from the vice of arbitrariness, and thus could not be sustained.

The NGT also dealt with the onus of proof in matters relating to the environment. It noted that in environmental cases the damage to the environment or public health is evident by itself ( res ipsa loquitur ). The NGT held that the cases of environmental degradation, damage and health hazards were obvious as a result of some industrial activity or development.

The NGT held in Paragraph 140 of its judgment: “Shutting down an industry amounts to ‘civil death’ of the company. A direction of closure in relation to a running unit not only results in stoppage of production but has far-reaching economic, social and labour consequences. Before directing the civil death of a company, the decision-making authority is expected to have before it, some reliable and cogent evidence. An inquiry into the incident or accident of breach by the industrial company should be relatable to some reasonable scientific data. There should be a direct nexus between the leakage of gas, the source of leakage and its effect/impact on ambient air quality and public health. These are the sine qua non and not conditions to be satisfied post-order.”

The NGT concluded that the TNPCB did not even bring its case with reasonable probability, and held that there was no direct or even indirect evidence to show that there was no possibility of leakage of gas or excessive emission from any other industry except the company running the Sterlite plant. The NGT noted that there were a large number of industries in State Industries Promotion Corporation of Tamilnadu Limited (SIPCOT), Thoothukudi, out of which quite a few were in the “red” category of hazardous industries, causing pollution and discharging gases.

Preventive vs punitive measures

Distinguishing actions based on the precautionary principle from purely punitive actions, the NGT agreed that a punitive action could form a valid basis for passing a preventive order in relation to the future. In the case of punitive action, it should be tested on the touchstone of validly proved action, while in a preventive order it could be done as per a reasonable apprehension of a prudent person, the NGT reasoned. “Stringent proof and specific scientific data are the very crux of passing such direction and absence thereof would vitiate the action taken,” the NGT concluded. The NGT made it clear that a punitive action in the garb of a preventive measure could not be sustained. In the Sterlite case, the Supreme Court had directed the company to pay Rs.100 crore, on the basis of the “polluter pays” principle, because it had operated without the consent of the TNPCB for some period. The NGT held that the precautionary principle should be invoked when reasonable scientific data suggested that without taking appropriate preventive measures, there was a plausible indication of some environmental injury or health hazard.

In the light of the NGT’s reasoned judgment in 2013, the latest order of closure of the plant by the Tamil Nadu government smacks of a knee-jerk response in the light of the outrage following the death of 11 persons in the police firing, and an opportunistic move to absolve its own responsibility to monitor activities prejudicial to the environment. While in 2013, the State government invoked the Air Act, this time it has invoked the Water Act, again without backing it with sufficient scientific data to warrant closure of the plant. This and the non-issue of notice to the company to give it an opportunity to be heard before taking the punitive action of closure of the plant militate against the principle of natural justice. This also raises the question whether the State government is really sincere in taking this drastic action, knowing fully well that its order is legally and procedurally vulnerable to being set aside by an appellate forum and, therefore, self-defeating.

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