Permanent shutdown of Sterlite plant: Tamil Nadu's order on a weak wicket?

Police personnel baton charge at a protestor demanding the closure of Vedanta's Sterlite Copper unit, in Tuticorin. Photo: PTI
The Tamil Nadu government on May 28 instructed its state pollution control board to ‘permanently’ shut down the existing 1,200-tonne-per-day Sterlite copper smelter in Thoothukudi. The plant had already been shut down four days earlier after police action to quell protests, going on for months, left as many as 13 people dead.

 

However, there seem to be doubts around the state government’s order with respect to legality and possible procedural fault. The state’s previous attempt to shut down the copper plant in 2013 had been shot down by the National Green Tribunal (NGT) for procedural lapses.

 

The Tamil Nadu government’s short three-paragraph order is only with reference to the Air Act and does not provide any reason for the closure, except citing ‘public interest’.

 

Ritwik Dutta, a Supreme Court lawyers looking into environment-related matters, says: “The closure order should be a watertight one, detailing the violation of the provisions of the Air Act, Water Act and the Environment (Protection) Act, etc. Unless that is done, the order will meet the same fate as earlier – it will get overturned by courts for lack of proper reasons.”

 

A senior official in the Union environment ministry who does not wish to be named concurs: “Such instructions are given with detailed explanations and reasoning in the manner of a speaking order.”

 

“Legally speaking, under the law (Water Act), there is no such term as a ‘permanent’ closure that the Tamil Nadu government has evoked. If the company can prove it has rectified any illegality that it might have committed under the Act, it would stand to regain its permits and resume functioning.”

 

On its part, the pollution control board had on May 24 shut down the factory, claiming it found that the company was preparing to run operations without a ‘consent to operate’, which the board had suspended. A ‘consent to operate’ is required under the Water Act.

 

On Monday, May 28, the Tamil Nadu government used the powers under section 18(1)(a) of the Water Act to merely endorse the state pollution board’s May 24 order, and additionally instructed the Tamil Nadu Pollution Control Board “to seal the unit and close the plant permanently”.

 

The Tamil Nadu pollution control board had once ordered a shutdown of the same plant earlier as well, in 2013. But its order cut no ice with the judiciary. While setting aside the pollution control board order, the NGT had stated: “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 the stoppage of production but also 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.”

 

The NGT concluded that the pollution control board had neither reliable nor cogent evidence to prove the industry had indeed been the reason for pollution and the consequent public health hazard in the area.

 

Dutta notes: “Both the consent under Air Act and the environment clearance should be revoked. Importantly, the state pollution control board should direct a restoration of the ecology, as well as the payment of damages in accordance with the polluter-pay principle. It is important to hold the company liable for the damages.”

 

State or central governments usually invoke the much stricter provisions of the Environment Protection Act, 1986, to stop projects or order the closure of polluting industries. And, that is done in two steps. First, a showcause notice is served on the project proponent, providing a chance to defend itself. And second, based on the response from the project proponent and other evidence gathered during the process, the government is required to write a clearly explained reason for continuing to believe that the plant should be shut down.

 

Under the NGT Act, a state government is also empowered to go to the tribunal and seek from the polluter a compensation for any damage done to public health and to restore the environment. Madhya Pradesh is ostensibly the only state government to have used these provisions.