“My
dear countrymen, India has shown that the march towards development is possible
by balancing the environment”. Yes, among others, this is what Prime Minister
Narendra Modi said in his address to the nation on the occasion of our
Independence Day this year from the ramparts of the Red Fort.
Exactly
3 days later on 18 August this year the Madras High Court in its 815 page
judgment ordered the shutdown of Sterlite Industries.
The
unit had begun its operations in Tamil Nadu’s industrial hub of Thoothukudi in
1997 after Goa, Gujarat and Maharashtra declined to permit its manufacturing
activity in their respective states due to public opposition.
Ever
since the foundation stone for the Rs 1300 crore copper smelter was laid in
October 1994, Sterlite has been involved in one legal battle or the
other.
No
sooner the plant received operating licences, the National Trust for Clean
Environment challenged such clearances before the Madras High Court.
However
barely six months after the plant began operations in January 1997, producing
391 about tonnes of copper anode per day, there were reports of street vendors
near the manufacturing facility falling sick besides complaints of headaches
and coughing.
In
November 1998, a Madras High Court commissioned study by the National
Environmental Engineering Research Institute concluded that the location of the
Sterlite plant which was within 14 km of the Gulf of Mannar, flouted the
government’s stipulation as it was located in an ecologically sensitive
area.
NEERI
also reported that gas leaks from Sterlite made nearby workers sick. The
groundwater water was also found contaminated with arsenic, lead, and selenium,
among other chemicals.
Anti-Sterlite
activists seem to allege that although NEERI report was highly critical of the
environmental norms flouted by Sterlite, just a few months later in February,
1999, NEERI gave it a clean chit even though it had found more than permissible
amounts of groundwater and air pollutants in and around the factory site.
In
a nut shell, Sterlite’s legal issues include its location (proximity to the
ecologically sensitive region of the Gulf of Mannar) its failure to create a
sufficient green belt around the factory; that without public hearings, the
plant was given permission to begin operations and there were no checks and
measures for the pollutants from the manufacturing unit which were seeping into
the ground water.
In
October 2008, a study by researchers from the Government-owned Tirunelveli
Medical College found a high prevalence of respiratory tract infections among
residents living within a 5 km radius which was attributed to air pollution
from a mix of gases and particulate matter.
The
Madras High Court orders shutting down the Sterlite plant in September 2010 on
the grounds that the continuing air pollution being caused by the noxious
effluents discharged into the air by the copper unit had a more devastating
effect on the people living in the surroundings.
The
Supreme Court in April 2013 stayed the 2010 Madras High Court order to shut
down Sterlite but slapped it with Rs 100 crore fine for flouting environmental
norms.
In
June 2013 after a three month closure, Sterlite reopened after the National
Green Tribunal allowed the unit to commence operations on the grounds that
there was no scientific data, analysis, etc, to show emission from the plant
was in excess of prescribed parameters.
On
23 March 2018, Tuticorin residents woke up to itchy eyes including burning
throat and experienced difficulty in breathing trouble. The plant had been shut
on the night of March 21 for routine maintenance for two days. It is said that
while maintenance activities were on, some people in the neighbourhood began to
complain of breathing trouble and nausea. With reports of queues at
doctors' clinics growing longer causing panic, the Tamil Nadu Pollution Control
Board swung into action only to find that sulphur-di-oxide levels had gone off
the charts on the night of March 23 and was found exceeding the prescribed
limit. The copper unit is immediately shut down.
As
people marched to the Thoothukudi District Collector’s office on the
100th day of protest on 22 May 2018, violence reportedly
erupted and 13 people lost their lives in police firing. The State Government
shut the plant on 28 May 2018 and Sterlite filed an appeal before the National
Green Tribunal (NGT) against the closure order. NGT constituted a Committee
under a retired High Court Judge to examine the matter which had
representatives from the Ministry of Environment Forest and Climate Change and
Central Pollution Control Board. Based on the Committee’s report, on 15
December 2018, NGT ordered for allowing operation of the plant revoking closure
order. However, the order of NGT was stayed by the Supreme Court on 18 February
2019 on the grounds that the matter lay outside Tribunal’s jurisdiction, as the
matter was pending in Madras High Court.
Ever
since the Bhopal Gas tragedy killed hundreds of people in 1984, environmental
awareness has grown in leaps and bound. The Ministry of Environment and Forests
was established in 1985 (now rechristened Ministry of Environment, Forest and
Climate Change) is the apex administrative body in the country for regulating
and ensuring environmental protection. The Environment Protection Act enacted
in 1986, an umbrella legislation designed to provide a framework for the
coordination of central and state authorities established under the Water Act,
1974 and the Air Act, provides for the protection and improvement of
environment.
The
Judiciary has lent a helping hand in protecting the environment and the three
principal maxims governing the arena of environment are the sustainable
development, the polluter pays and the precautionary principles. In Vellore
Citizens' Welfare Forum vs. Union of India and Others, the Supreme Court in
1996 laid down the salient principles of sustainable development consisting of
the Precautionary Principle and the Polluter Pays Principle being its essential
features stating: "The "Precautionary Principle" in the context
of the municipal law means:
(i)
Environmental measures by the State Government and the statutory authorities
must anticipate, prevent and attack the causes of environmental degradation.
(ii) Where there are threats of serious and irreversible damage, lack of
scientific certainty should not be used as a reason for postponing measures to
prevent environmental degradation. (iii) The "onus of proof" is on
the actor or the developer/industrialist to show that his action is
environmentally benign.
In
so far as the “The Polluter Pays Principle" is concerned the Apex Court in
2006 in
Bombay
Dyeing & Mfg. Co. Ltd vs Bombay Environmental Action rightly observed that
once the activity carried on is hazardous or inherently dangerous, the person
carrying on such activity is liable to make good the loss caused to any other
person by his activity irrespective of the fact whether he took reasonable care
while carrying on his activity. The rule is premised upon the very nature of
the activity carried on". Consequently the polluting industries are
"absolutely liable to compensate for the harm caused by them to villagers
in the affected area, to the soil and to the underground water and hence, they
are bound to take all necessary measures to remove sludge and other pollutants
lying in the affected areas". In M C Mehta vs. Union of India, the Supreme
Court maintained in 2002 that the balance between environmental protection and
developmental activities could only be maintained by strictly following the
principle of' sustainable development. This is a development strategy that
caters the needs of the present without negotiating the ability of upcoming
generations to satisfy their needs. The strict observance of sustainable
development will put us on a path that ensures development while protecting the
environment, a path that works for all peoples and for all generations.
In
all probability, Mr Anil Agarwal, a tiny scrap dealer-turned multi
billionaire Chairman of Vedanta Resources headquartered in London and ranked 38th richest
Indian on the Forbes rich list in 2019 may use all his available resources to
reopen the Sterlite plant at Thoothukudi. That Sterlite was the single-largest
private company handling a consistent annualised volume of about 38 lakh metric
tonnes of cargo and closure of the plant has affected the livelihood of
thousands of people in related industries is a cause for concern. There are
reports that copper prices have shot up. But for now the people of the port
city seem to be overjoyed at the closure of the copper smelting unit.
So,
in balancing the environment, has public pressure finally won?
(Published
on 24th August 2020, Volume XXXII, Issue 35)
