Tamil Nadu government’s order directing ‘permanent closure’ of Vedanta Limited’s Sterlite Industries in Thoothukudi (also known as Tuticorin) has more to it than what meets the eye. One, it states nothing new or important. Two, the orders of the Tamil Nadu Pollution Control Board that it relies on are bound to receive a setback in front of an appellate authority. This will mean that the troupe of corporate lawyers with whom Vedanta Limited is presently putting together a recourse plan will get the GO (government order) revoked in no time.
The strongest weapons that Vedanta Limited has had in its history of battling allegations of environmental crimes in India have been regulatory authorities, be it the TNPCB or the Ministry of Environment and Forests (MoEF). Why then would the Tamil Nadu government make it so easy for Vedanta Limited to get away yet again, especially in the aftermath of 22 May?
The case against Vedanta
The allegations made by residents of Thoothukudi against Sterlite are twofold. One is that it is a pollutant. A health status study by Tirunelveli Medical College in 2008, under direction from Tamil Nadu's Department of Public Health and Preventive Medicine, established a high prevalence of respiratory, ENT (ear, nose and throat) and menstrual disorders in the area and high iron content in water. There have been various reports from villages surrounding Sterlite of increased occurrence of various forms of cancer. There haven’t been follow up studies from the government or measures to address these findings for more than a decade, in spite of the Supreme Court acknowledging that Vedanta is a polluter.
On multiple occasions, the TNPCB has noted that Sterlite is in violation of statutory environmental norms and then has itself set right the violation by issuing correctional licenses retrospectively. In 2013, TNPCB issued a similar closure order to Sterlite after a massive gas leak was reported. Sterlite denied that it had any role in this though air pollution measuring equipment from Sterlite pointed that the sulphuric dioxide levels had exceeded the limit by 300 percent. The closure order was set aside soon and Sterlite went back to business.
The second allegation is about the environmental clearance issued by the MoEF in 2009 and license to commence construction issued by TNPCB in 2016 for further expansion of Sterlite’s Copper Smelter (Unit II). The Environmental Impact Assessment Notification, 2006 states that these clearances are subject to a mandatory public hearing. When the MoEF clearance was issued without a public hearing, a writ petition was filed in the Madras High Court challenging this. Vedanta’s counsel argued that the grounds on which they obtained clearance from MoEF was that they are exempted from conducting a public hearing as the expansion will happen within the limits of SIPCOT (State Industrial Promotion Corporation of TN) Industrial Complex, one which already has an environmental clearance.
MoEF, SIPCOT and TNPCB were parties to this writ and all of them were in agreement to this submission. Turns out, Vedanta lied. SIPCOT Industrial Complex was established in 1985 spread across 1,083 acres. In 1996, a GO was issued to set up ‘Tuticorin Industrial Park’ (Phase II of Sipcot Industrial Park) over an area of 1,616 acres. Out of this, 324 acres of land allotted to Sterlite for expansion was located in this new industrial park. The process of land acquisition for this only started in 2013, let alone environmental clearances. All the involved statutory authorities had failed to bring this information to the notice of the high court. Whether it was intentional or not is a different question altogether. But what is clear is that Sterlite was given an illegal go-ahead by almost everybody, including the Madras High Court. This was acknowledged by the high court on 23 May, where it stayed expansion activities at Sterlite plant stating that:
"On the basis of materials furnished and noticed by us above, we are of the prima facie view that Phase II of SIPCOT Industrial Park awaits approval … Undisputedly, all survey numbers comprising Unit II of Vedanta’s Copper Smelter Plant are also seen to comprise part of Phase II of Sipcots Industrial Park."
A public hearing would've meant an avenue for the people of Thoothukudi to voice their opposition to the plant, one which has built into a strong force over the years but that is probably why all those involved evaded this requirement.
Legal recourse – history repeats itself
In 2010, the Madras High Court of ordered closure of Sterlite Industries on grounds that the plant is a polluter and is a violator of statutory processes namely that it has been illegally built in an eco-sensitive area in contravention of TNPCB’s consent order, the company has evaded environmental clearance procedures and has failed to maintain a green belt. This order was set aside by the Supreme Court in 2013. The apex court stated that it did not find Sterlite guilty of violating statutory processes but fined Sterlite Rs 100 crore for pollution. The SC, during the process of the hearing, had passed orders for a joint inspection by Central and State Pollution Control Board along with NEERI. The three bodies collectively submitted that 30 deficiencies were found and proposed remedial measures. They filed a joint inspection report within a period of eight months stating that Sterlite had rectified 29 deficiencies. The SC stated in its final order that since the deficiencies had been removed, the HC order is liable to be set aside.
The reason one needs to go over the SC judgment is that the scenario is pretty much the same now and in all likelihood, people see a repeat of what is mentioned above. The TNPCB’s order dated 9 April revokes consent to operate on the basis of non-compliance of environmental norms has failed to set right environmental violations like non-submission of pollution monitoring data, non-treatment of industrial effluents released on a river bank and failure to adhere to design requirements required from a copper smelter.
Sterlite Industries immediately preferred an appeal with the Appellate Authority of the Tamil Nadu Pollution Control Board. In the first hearing, Sterlite’s counsel took the stand they’ve taken since 1997 which is that TNPCB’s revocation had no base and that it had the requisite environmental data that shows that it isn’t violating any norms. The next hearing on 6 June.
One day after 22 May, TNPCB cuts off electricity to the plant, noting that in spite of its 9 April order, the plant was still functional.
The GO issued by the Tamil Nadu government endorses both these orders and issues a direction for ‘permanent closure’, under Section 18(1)(b) of the Water Act of 1974. The term ‘permanent closure’ finds no mention in the Act. This usage seems to be mere politicking. The state government doesn’t have the authority of ordering anything ‘permanent’, the authority which does have the mandate to do this is the TNPCB. But the TNPCB’s orders are nothing else but old wine in a new bottle.
The same orders have been passed before, only to be set aside or set right by retrospective licenses issued by the TNPCB itself. Just like how TNPCB turned out to be quite the pal for Vedanta Limited at the SC in 2013, the strength (or the lack of it) of its orders seem to suggest that TNPCB is once again doing Vedanta a favour. When Vedanta goes to court to set aside this GO, it’s the strongest defence would be to just point to TNPCB’s behaviour towards it over the years.
SIPCOT cancelling the Unit II lease agreement now after willingly colluding with Sterlite for close to a decade reeks of irony. "SIPCOT says that the land allotment for Phase II expansion is being cancelled in larger public interest and pollution concerns caused by the existing plant of Vedanta Limited. If that is the grounds for cancellation, then the ideal thing that SIPCOT should’ve done is revoked the original lease where the Copper Smelter is situated. That is where all the pollution is coming from, what is the point of revoking a lease where there isn’t a functional plant yet," asks retired IAS officer R Christodas Gandhi, who has previously served as the additional chief secretary and as the managing director of the Tamil Nadu Energy Development Agency.
Tamil Nadu government needs to answer this question. SIPCOT is a state-owned institution, one which is in addition to being a corporation is nevertheless a public entity. It has been a silent spectator to Vedanta Limited’s misrepresentations. If the Tamil Nadu government is actually gunning for a ‘permanent closure’, instead of endorsing redundant TNPCB orders, pushing SIPCOT to act would be a step in the right direction.
Updated Date: Jun 01, 2018 23:18 PM