Constitutional mandates make the Indian state the guardian of the environment. Through various environmental laws and norms, industries are to be strictly regulated to ensure that people can enjoy the basic rights to a clean environment. In an ideal situation, industries would provide for the growth of the economy and generate employment, while the State would oversee the conditions of operation so the environment is not harmed. However, for a long time, both State and industries have colluded to bypass the norms that are meant to protect the environment. The culmination of this has been in the form of extreme degradation of environment, escalated agitation and loss of human lives.
Environment and the Indian State
How far does the State put an emphasis on its duty to pay due consideration to the environment while framing policies? Do citizens enjoy the fundamental right to a clean and healthy environment as the constitution provides? Recent events would suggest otherwise.
On May 22, open firing by the police, intending to dissipate a protest against Sterlite Copper resulted in the loss of 13 lives in the village of Thoothukudi, Tamil Nadu. Protests against the Sterlite plant grew out of long stemming angst against the pollution caused by the copper plant—contaminating the groundwater with arsenic, lead, aluminium and copper and polluting the air in an excess of twice the permitted limit (Jayaraman, 2018). But people’s right to peacefully organise and demand State intervention in Sterlite’s clearly pernicious way of operation was met with gunfire. As the Supreme Court has directed in Subhash Kumar vs State of Bihar, the Right to Life as a fundamental right includes the right to pollution free water and air for full enjoyment of life (Supreme Court, 1991). The right to clean air and water was what all that the citizens of Thoothukudi were unitedly standing for – for years. What is even more alarming is that Sterlite’s polluting activities had been on record much before the first protests had even occurred.
Owned by Vedanta Resources, Sterlite had first pitched the idea of establishing its copper smelter in Ratnagiri, Maharashtra in 1992. However, following a year-long agitation against the harm that the coastal environment was likely to incur, the District Collector asked Sterlite Industries to stop ongoing construction of the smelter. When in 1996 the plant was established in Thoothukudi, the Tamil Nadu Pollution Control Board (TNPCB) had granted Sterlite a licence to operate on the grounds that a greenbelt was to be developed around 25 m of the plant. It was stated that the licence would be cancelled if the factory operations contaminated groundwater or affected the air quality (Jayaraman, 2018).Two years after the establishment of the copper smelter, the National Environmental Engineering Research Institute (NEERI) found that the effluent treatment plant (ETP) set up by Sterlite was inefficient and was unable to meet the standards set by the TNPCB. Sterlite had failed to establish the green belt, was contaminating the groundwater and was producing products it was not meant to (ibid). All these were grounds that necessitated a closure and the Madras High Court rightly directed a shutdown in 1998. Yet, just after a few days, in Bollywood style, Sterlite resumed its operations.
In 2013, the Supreme Court declared that consecutive reports submitted by NEERI in the years 1999, 2003 and 2005 were proof enough to conclude that the Sterlite plant was polluting the environment and it was not conforming to the standards laid down by the TNPCB under the Air Act. Neither did the discharge of effluents by the plant conform to the standards set by the TNPCB under the Water Act (Supreme Court, 2013).In view of this, the Supreme Court imposed a penalty of INR 100 crore with a view to fix the damage that had occurred in surrounding areas, but to date, only 7 crore of the amount was utilised in
an attempt to restore the environment (Thirumurthy, 2018).
In 2014, a sulphur dioxide (SO2) leak was detected in Sterlite. When the issue was brought before the National Green Tribunal (NGT) it gave its judgement in favour of Sterlite where it held that the TNPCB had failed to provide cogent evidence to substantiate that a leak had occurred. The closure of the plant, which the TNPCB had ordered was consequently revoked (Jayaraman, 2018).
The entire course of events marks a clear inability of the authorities to rein Sterlite, leading to the unfortunate events of May 22.
In a recent interview, Anil Agarwal, the founder of Vedanta Industries opined that a shutdown of the plant would lead to loss of livelihoods and an increase in domestic prices of copper, costing India USD 2.8 billion in foreign exchange. The Thoothukudi plant contributes to 36 per cent of India’s annual demand of about 650,000 tons of copper and employs about 3,500 people. Undoubtedly, copper plays an important role in the economy and total shutdown of the plant will have drastic effects on multiple levels. But at the same time, the process of smelting is hazardous for the environment and human health. However, it is possible to keep pollution in check. The State of Arizona, in the United States of America, has been reliant on copper smelting since 1912. To keep pollution in check, Asarco, the parent company running the smelters has invested 180 million USD in cleaning its act. The Environment Protection Agency (EPA), a US governmental body, in collaboration with Asarco has even worked on replacing soil from properties poisoned with arsenic. To ensure that the SO2 emitted during the smelting process do not pollute the air, fumes are captured and converted into sulphuric acid (Randazzo, 2017). Aurubis, Europe’s largest and the world’s second largest copper producer, uses waste heat to supply energy to Hamburg, Germany. Heat is released when noxious SO2 fumes are converted into sulphuric acid. Thus, emissions are kept in check as well as a secondary energy source is created (Aurubis, 2017).
In conversation with G’nY, Nityanand Jayaraman, a noted environmentalist, says, “It could have been possible to mitigate the harm to the environment in the Sterlite case, had it been possible to depend on Sterlite do to the right thing—and also if the plant was established in the correct location. Hazardous units like the Sterlite smelter are required to be set up in specific areas designated for industries in accordance with the Tamil Nadu Country Planning Act, 1971 and the master plan. The Sterlite smelter is set up in an area not designated for industrial use and is as such in violation of the master plan”.
A Complicit Government
Sterlite is not the only example where industries have shown indifference towards the protection of the environment. Not only has the State allowed industries to function in clear cases of pollution—it has also allowed industries to set up projects and expand existing projects without gaining environmental clearances. The procedure for receiving environmental clearance has been provided in the Environment Impact Assessment (EIA) Notification, 2006 that lays down an eight steps to compliance before establishment or expansion of an existing project (Fig. 1).
But these have constantly been bypassed by industries with active support from the government. Industries that exist in industrial parks are exempted from public hearings under the rules, but there is no mention of projects in parks without green clearance. The Sterlite factory does in fact exist within an industrial park, but the park itself does not have a green clearance. This fact was overlooked by consecutive governments and Sterlite was allowed to expand in 2008 and 2013 (Sharma, 2018). Apart from Sterlite, in 2009, an appeal was brought before the National Environment Appellate Authority (NEAA) against the clearance that had been granted to Adani Waterfront Development Project in Mundra, Kutch. The argument raised before the NEAA was that the project had initiated construction prior to the grant of environment clearance. Adani Group was found guilty of violating the conditions of environmental clearance. Despite the instances of violation on record, a high level committee appointed by the Ministry of Environment, Forest and Climate Change (MoEFCC) held that large scale development of the project had already taken place and by the time the matter had come to notice, it would not have been prudent or practical to cease or halt operations (MoEFCC, 2013).
Further, in 2010, the central government granted an environmental clearance for the expansion of a power plant in Raigarh, Chhattisgarh, owned by the Jindal Group. Jindal group had already commenced construction for expansion without an environmental clearance, but the MoEFCC chose to appraise the project as though information of expansion was already available with the ministry in the original terms of reference submitted by the Jindal Group (Kohli, 2011).
Dilution of Environmental Clearance Procedure
On March 14, 2017, Ministry of Environment, Forest and Climate Change issued a notification wherein an industry that had not gained an environmental clearance before commencing activities could be assessed by the ministry’s Expert Appraisal Committee (EAC) and be granted a clearance accordingly. The assessment would first judge whether a project or activity is a permissible activity at the site on which it has come up; only after the EAC has provided approval on the first parameter, it will check whether a project expansion can run sustainably with suitable environmental safeguards (PIB, 2017). An EIA would be required only after the EAC has decided that a project does not need to be closed down. It has been argued that this notification provides a green light to industries that have been setup without gaining environmental clearance. While new industries still cannot be setup without an EIA, the March 14 notification, simply put, provides a backdoor entry to projects opened without the same, as the notification is only meant to collect information regarding planning management, mitigation and compensatory measures. Further, under this notification, a violator has also been given the opportunity to forego a public hearing, which would have been necessary had clearance procedures had been followed in the first place while the project was under proposal (Kohli and Menon, 2017).
The March 14 notification was superseded by a fresh notification issued on March 8, 2018. While assessment under the earlier notification was to be done at the centre, under the new notification, state governments can be brought into the ambit of the assessment procedure, depending upon the size of the project. The earlier notification, while problematic, had only a limited window period for reassessment and some checks at the Centre level. On the other hand the new notification further dilutes environmental safeguard assessment, as the capacity and accountability of the State Environment Appraisal Committee (SEAC) and State Environment Impact Assessment Authority (SEIAA) have always been a matter of concern (Banerjee, 2018).
“In the larger scheme of things,” Jayaraman adds, “the environment is accorded a very low priority by the government and either in their enthusiasm to increase investments, or through active collusion with industries it tends to compromise on environmental regulations. Cases where violations have occurred are not the exception but the norm.”
The harm to the environment and the failure to mitigate the same that has occurred over the years has not resulted not from violation by industries alone, but from the failure of the government to intervene and act to safeguard the environment and the citizens. If the State does not play proactive role to keep a check on polluting activities, then preventing harm to the environment will become an increasingly difficult task.
Aurubis, 2017. Environmental Protection in the Aurubis Group, Available at: https://bit.ly/2kDESAg
Banerjee S., 2018. Environment ministry allows state authorities to deal with EC violation cases, Down to Earth, March 2018.
Jayaraman N., 2018. History of Sterlite in Thoothukudi: A story of betrayal by crony regulators. The Newsminute, March 26.
Kohli K. and Menon M., 2017.
Environment Ministry to Bend Over Backwards to Whitelist Illicit Projects, The Wire, March 22.
Kohli K. 2011, Setting the clock back on clearances, India Together, January 8.
Ministry of Environment, Forest and Climate Change (MoEFCC), 2013. Report of the Committee for Inspection of M/S Adani Port & Sez Ltd. Mundra, Gujarat, Available at: https://bit.ly/29ioeBZ
Press Information Bureau (PIB), 2017. Environment Ministry Issues Notification, Provides Six-Months Window to Get Environmental Clearance, PIB, March 16.
Randazzo R., 2017. Arizona smelters spending millions to reduce air pollution, Arizona Central, April 27.
Sharma N., 2018. UPA and NDA governments allowed Sterlite to skip public hearing for green nod, The Economic Times, March 25.
Supreme Court of India, 1991. Subhash Kumar vs State Of Bihar, 1991 SCR (1) 5, Available at: https://bit.ly/2J9VrSi
_______________, 2013. Sterlite Industries (I) Ltd vs Union Of India, (2013) 4 SCC 575, Available at: https://bit.ly/2IK0SYV
Thirumurthy P., 2018. What was done with the Rs 100 crore fine Vedanta paid for Sterlite violations? The Newsminute, May 29.