The Madras High Court has refused to order the reopening of the controversial Sterlite copper smelter plant at Thoothukudi in Tamil Nadu after dismissing a batch of petitions filed by Vedanta Limited, which owns the plant. People in Thoothukudi welcomed the verdict with sweets and bursting of crackers.
The two-member bench of Justices T.S. Sivagnanam and V. Bhavani Subbaroyan, on August 18, dismissed all 10 petitions filed by Vedanta Limited challenging the closure order of the Tamil Nadu Pollution Control Board (TNPCB) as “illegal and unconstitutional”. The bench also refused to order status quo on the closure until Vedanta went on appeal to the Supreme Court.
The bench also dismissed the challenge, in the petitions, to the orders passed by the PCB directing the closure of the plant under the Air and Water Acts and rejected the petitioner’s application for renewal of consent under the Air and Water Acts. It endorsed the PCB’s orders that disconnected power supply to the plant, besides upholding the sealing of the petitioner's unit permanently.
The plant has remained shut since April 9 following the PCB’s refusal of consent to operate (CTO) the plant as it had failed to adhere to environmental norms. The plant was closed permanently following the death of 13 people in police firing in the anti-Sterlite rally at Thoothukudi on May 22, 2018. Although the Green Tribunal had favoured the reopening of the plant, the Supreme Court, on appeal, stayed it and asked Vedanta to approach the Madras High Court.
Subsequently the case was posted before the two-member bench of the Madras High Court, which has heard it since March 2018. The company argued that the PCB had blindly and without independent application of mind passed the closure order. The order, it claimed, was illegal, unconstitutional ultra vires the Air and Water Acts. After concluding the final hearings in January this year, it reserved the judgment. The Bench explained that the delay in delivering the judgment was due to the COVID-19 pandemic. The judges thanked all those connected with the case and its hearings for their cooperation during the health crisis.
The bench, in its 815-page verdict dealt with in detail the various developments and concerns that led to the plant’s closure. The judges said that they had “no hesitation to hold that the respondent-State and the Regulator would be well justified in invoking the “precautionary principle” bearing in mind the aspect of sustainable development”.
The bench further noted that in the 2013 judgment of the Supreme Court, the copper smelter plant, (the petitioner here) “has been held to be a polluter, and applying the “polluter pays principle”, a sum of Rs.100 crores was directed to be paid”. Hence “the Doctrine of Sustainable Development, Precautionary Principle and the Polluter Pays Principle needs to be applied to the case on hand”, it said. The judges said: “If applied, facts speak for themselves, petitioner needs to be closed and permanently sealed.”
Dismissing the argument that the closure of the plant was a “knee-jerk reaction” because of political and public demand, the bench pointed out that the public could not be shut out. It pointed out that the “Amendment Act 47 of 1981 has emphasised the role of the public and recognised public participation. We have also noted that for a substantial period of time, the petitioner had been operating without a valid consent and on the strength of the stay orders granted by the Court/Tribunal. In the 2013 judgment, the Hon'ble Supreme Court had appreciated the efforts of the public interest litigants and NGOs in taking up the cause of environment, especially against an organisation like the petitioner, which is undoubtedly a very large organisation with sufficient resources.”
The judges also found fault with the plant, which they felt was solely responsible for all the happenings that had led to its closure. It observed that the orders rejecting the application for grant of consent, directing closure, permanent sealing of the petitioner industry could not be treated as a “knee-jerk reaction pursuant to the unfortunate shooting incident, but it is a culmination of various issues solely attributable to the petitioner”.
Pursuing the materials placed before it, the bench was of the view that the State and the PCB had taken a categorical stand that all was not well with the petitioner unit. “We had noted that in September 2004 the committee appointed by the Hon'ble Supreme Court visited the petitioner unit as well as other red category industries in the country. The committee makes a specific observation to the effect that the petitioner has not provided adequate infrastructure and facilities for management of the waste generated.”
It, the bench noted, was particularly concerned with the issues relating to disposal of arsenic containing slag which was found dumped in the factory premises in the range of several thousands of tonnes. “It was pointed out that if phosphogypsum is not contained properly it occasionally becomes airborne and may cause severe respiratory disorders in the surrounding vulnerable population. Further the petitioner reported to the committee during their visit that they are also emitting sulphur di oxide far in excess of the permissible standards particularly when the sulphuric acid plant is not operating. The committee directed the concerned authority of the Government of Tamil Nadu to conduct a detailed environmental audit of the unit and to assess the efficacy of its environmental management practices by an independent agency. “
Besides the State and its agencies, the respondents included K.S. Arjunan, Thoothukudi district secretary of the CPI (M), Vaiko of the Marumalarchi Dravida Mummetra Kazhagam, Makkal Athigaram, and the social activist Fatima who sought the immediate dismantling of the plant from Thoothukudi. The bench directed the Registry to post Fatima’s petition to its Madurai Bench, where a similar issue was pending, after seeking instructions from the Chief Justice.
Various political leaders, including the DMK leader M.K. Stalin, Thoothukudi MP M.K. Kanimozhi, CPI(M) secretary K. Balakrishnan, TMMK leader M.H. Jawaharullah, and Vaiko and others welcomed the judgment. Deputy Chief MinisterO. Panneerselvam and Fisheries Minister D. Jayakumar from the AIADMK too welcomed the verdict. Meanwhile, the CEO of Sterlite Copper, Pankaj Kumar, speaking to the media at Thoothukudi, said that the verdict had come as “an utter shock” and that they would be “pursuing all available legal remedies”.
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