By Utkarsh Jain*
In the recent past, the Supreme Court has lent color of greater depth than perhaps ever before, to the jurisprudence surrounding the National Green Tribunal. It is a serious concern that across the spectrum of strict interpretation of environmental laws on the one hand and liberal on the other, the Supreme Court, in these judgments has decided against reposing faith in the NGT as an institution. The displeasure expressed by the Highest Court of this land should be taken as a warning on various levels.
First of all, as a warning that nothing but the stringent-most application of reasoning will suffice when it comes to deciding issues involving destruction of the planet. And secondly, as a warning that environmental law is no more to be treated as a juvenile field of law, and the words as well as principles of environmental law must not be treated casually under any circumstance.
On the stricter end of the interpretation spectrum is the judgment by a Supreme Court bench of Justices R.F Nariman and Naveen Sinha in the case of Tamil Nadu Pollution Control Board versus Sterlite Industries (I) Ltd. & Others dated the 18th of February, 2019. The subject matter of this batch of Appeals before the Court was the operation of a copper smelter plant at the State Industries Promotion Corporation of Tamil Nadu Ltd. (SIPCOT) Industrial Complex at Thoothukudi, Tamil Nadu, by Vedanta Limited. This is the same plant which was the subject matter of great social unrest and upsurge last year.
These appeals principally arose from two judgments passed by the NGT, in both of which it allowed Vedanta to operate its plant, deciding against the petitioners who raised serious concerns with respect to the seemingly perpetual pollution caused by the plant since it began operations in 1997. Of particular concern is the judgment of the NGT dated 15th of December, 2018, passed by the NGT in the case of Vedanta Limited versus State of Tamil Nadu & Others.
In this judgment, the NGT was hearing an appeal filed by Vedanta against a group of orders issued by the Government of Tamil Nadu directing closure of its Copper Plant. The NGT, in its wisdom, decided to refer the entire dispute to a Committee consisting of a retired Judge and two technical members for hearing and recommendations. On receiving the report of the committee which suggested, among various measures to mitigate the pollution caused by Vedanta, that the closure orders issued by the Government of Tamil Nadu were not valid, the NGT was swift to pass judgment, accepting almost all recommendations made by the committee. The result was the judgment dated 15th December, 2018, where the NGT allowed the operation of Vedanta’s Copper Plant at Thoothukudi.
Almost immediately thereafter, the Government of Tamil Nadu decided to go in Appeal against this judgment before the Supreme Court. The judgment, penned by Justice Nariman, is a fine example of plain or in other words, black & white interpretation of the law. The judgment did not go into the merits of whether the copper plant caused pollution to attract closure or not. However, the judgment shed considerable amount of light on the limitations of the NGT as a Tribunal exercising its appellate powers over decisions made by Government Authorities. The court repeatedly stressed on the fact that the NGT did not have jurisdiction to even hear the appeal because of the availability of another subordinate dispute resolution forum, the Appellate Authority of the Tamil Nadu Pollution Control Board. As per the law, it is this Appellate Authority which is to be approached before the NGT, when any decision of the Pollution Control Board is to be challenged. The orders to shut down operations which were issued by the Board must have been therefore challenged before this Authority. However, as the Court noted, the NGT passed judgment in the case before the Authority could even decide the issue. In doing so, according to the Supreme Court, the NGT overstepped its jurisdiction as laid out under the NGT Act of 2010.
The judgment clearly states that no jurisdiction could have been exercised by the NGT where none was provided for under the law of the land, irrespective of the failure of the Appellate Authority to decide the matter in a time bound manner. The Supreme Court therefore set aside the judgment of the NGT and gave all the parties before it the liberty to approach the Madras High Court to seek and obtain relief.
The signal sent by the Supreme Court in the Vedanta case is clear. The NGT may be an expert institution having a mandate to decide on questions of what is sustainable and what isn’t, but in the end, it is a statutory Tribunal which could not possibly have reviewed and set aside orders passed by the Government under in its capacity as an appellate tribunal. This was especially when the law never allowed the NGT to take up such a case in the first place.
As a side note, one would also wonder why the NGT, being an expert institution, felt the pressing need to refer the entire case brought before it to a committee having the same kind of constitution as the Appellate Authority of the Tamil Nadu Pollution Control Board. The level of concern compounds when one notes that this committee constituted by the NGT operated from the Southern Zonal Bench of the NGT at Chennai, which has been shut for more than a year, due to lack of appointment of Judicial and Technical members to the Southern Bench. Does the new NGT under Chaiperson Justice Adarsh Goel wish to replace its zonal benches with committees lacking the institutional independence of the NGT? How long can this top down approach sustain?
Moving on to the more liberal end of the interpretation spectrum is the judgment by a Supreme Court bench comprising of Justices Dr. D.Y Chandrachud and Hemant Gupta, in the case of Hanuman Laxman Aroskar versus Union of India & Ors. dated 29th of March, 2019.
As background, the case was initially filed by a batch of petitioners against an Environmental Clearance dated 28th of October, 2015, granted for the construction of an Airport at the village of Mopa located at Pernem Taluka in North Goa, bordering Maharashtra before the NGT.
The petitioners painstakingly argued that the said Airport was given Environmental Clearance from the Central Government despite serious illegalities in the decision making process leading up to the Clearance as well as large scale concealment of information relating to forests, biological diversity, ecological sensitivity and integrity of the Airport site and surrounding areas. In other words, the Central Government failed to take note of blatant lies spoken by the Government of Goa in its application for grant of Environmental Clearance and disregarded the red flags regarding the project raised by the public as well as by various experts in the field.
About three years of fighting before the NGT lead up to the judgment of 21st August, 2018, wherein the NGT refused to set aside the Environmental Clearance and instead stipulated certain additional conditions to be followed by the Government of Goa in the process of construction and operation of the Airport.
Aggrieved, the petitioners moved in appeal against this judgment before the Supreme Court. The Court, in its judgment dated 29th of March, 2019 effectively set aside the judgment of the NGT and suspended the Environmental Clearance and directed that the project be considered afresh by the expert panel of the Central Government taking into duly taking into consideration the environmental impact of the project.
It is important to note that the Supreme Court chose not to remand the case back to the NGT but instead itself went through the entire process leading up to an Environmental Clearance under the Environmental Impact Assessment Notification, 2006, with detailed commentary on why complete and honest disclosure of information pertaining to environmental impact of a project is necessary in order to achieve the laudable Sustainable Development Goals in addition to the need for highest scrutiny by the expert panel of the Central Government taking into consideration all views raised by public and information provided by the Government of Goa. The Supreme Court directed that after the project is considered afresh by the Central Government, the case is to be referred back to it for final consideration.
If one were to read the judgment of the Supreme Court, penned by Justice Dr. Chandrachud, it would naturally seem like the work that the NGT ought to have put in, in its own judgment dated 21st of August, 2018. The Court clearly stated that absence of any consideration by the NGT with respect to the various flaws in the process leading up to the Environmental Clearance only compounded the already existing problem of lack of consideration by the Central Government. What could be more clear than the Supreme Court of India telling the NGT that it should have been more thorough, citing two past judgments of the NGT itself. The ire of the Supreme Court is clear from the following extract of its judgment:
‘121. The failure to consider materials on a vital issue and indeed the non-consideration of vital issues raises a substantial question of law leading to the invoking of the jurisdiction of this Court under Section 22 of the NGT Act 2010. The failure of process in the present case has been compounded by the absence of a merits review by the NGT.’
The court clearly stated that the NGT was mandated to duly consider the case before it as per the three principles of Sustainable Development, Precautionary and Polluter Pays and in failing to do so, it has failed to exercise its jurisdiction under the NGT Act, 2010.
Therefore, in a way, the Court strictly interprets the provisions regarding Appeal under the NGT Act, 2010 while engaging in the liberal most interpretation of what the Tribunal ought to have done once such jurisdiction was supposed to be exercised by it.
There was a time when the Supreme Court was not taking the liberty of telling the NGT what to do and what not to. The reason was simple, the NGT, being an expert institution, was equipped to arrive at a rounded resolution of an environmental dispute from a legal as well as scientific paradigm and in fact, it was passing judgments of high quality and fearless in their nature. There have been cases before the NGT in the early part of the decade, where the NGT has asked billionaire industries and massive governmental projects to shut shop. The judgments of Jeet Singh Kanwar versus MoEF & Others dated 16th of April, 2013 and Prafulla Samantrey & Another versus Union of India & Others dated 30th of March, 2012 come to mind. In the former, the NGT quashed the Environmental Clearance granted by the Central Government to M/s Dheeru Powergen Private Limited for construction of a 700 MW Coal Fired Thermal Power Plant at Korba, Chhattisgarh for reasons including that of failure of the expert panel of the Central Government to properly consider the environmental impact of the project.
In the latter, the NGT effectively suspended the Environmental Clearance granted by the Central Government to M/s POSCO India and directed for fresh consideration of the project by the Central Government for reasons including failure to duly conduct Public Hearing and carrying out Appraisal of the project by the Government.
The NGT back in 2011-13 can very well be characterized as an institution which was fearless and uncompromising in meeting its mandate of providing expert environmental justice to common Indians. Those were the days when a bench of just two or three members of the NGT did not hesitate to show the door to massive scale projects for their failure to comply with environmental norms. Today’s NGT is far more reluctant in passing judgments, let alone considered judgments and instead seems keen on disposing off cases and forming committees to deal with environmental issues.
However, the NGT, with the recent warnings issued by the Highest Court of the land may be well advised to look back into its own past and begin continuing the trend of fearlessness established at a time when a lot of people of my generation were taking their Board Examinations.
*Graduate of Jindal Law School’s 2016 batch, has been practicing advocate at the National Green Tribunal, Delhi; is heading to the Cornell Law School to pursue masters’