The Supreme Court on Thursday dismissed an appeal by Vedanta Sterlite to reopen its Thoothukudi copper plant closed six years ago on grounds of pollution, endorsing the public’s right to health over sheer industry gains.

A three-judge Bench headed by the Chief Justice of India DY Chandrachud upheld a Madras High Court decision of August 2020, which had confirmed the decisions of the Tamil Nadu government and the State Pollution Control Board to permanently shut down the plant in 2018.

The Court said the closure of an industry was never a first choice. But the long and repeated breaches coupled with serious violations by Vedanta had left the High Court and the statutory authorities no other option but to bring the curtain down on the Thoothukudi plant. Anything else would have been sheer obliviousness of their plain duty to the public, the Court said.

“We are conscious of the fact that the unit has contributed to the productive assets of the nation and providing employment and revenue in the area,” the Chief Justice said.

‘Polluter should pay’

But equally relevant, Chief Justice Chandrachud noted, were the principles of sustainable development, public trust, and finally, that a polluter should pay.

“The health and welfare of the residents of the area is a matter of utmost concern. In the ultimate analysis, the State government is responsible for preserving and protecting their concerns,” Chief Justice Chandrachud observed in the order.

Apparently, the Court abandoned its initial proposal to constitute a “non-partisan” committee to objectively evaluate environmental concerns and to suggest additional conditions, if any, for re-opening the copper plant, even terming it a “national asset”. The State government had strongly opposed this suggestion, rebutting that the only “way forward” for Vedanta was to “sell the plant and go elsewhere”. The 2018 closure of the plant was preceded by nearly 30 years of local protests, which had even led to an incident of police firing.

Chief Justice Chandrachud said the Supreme Court had stopped short of shutting down the plant way back in 2013 for non-compliance with environmental norms and operating without consent under the law. It had, instead, ordered Vedanta to pay ₹100 crore in compensation and given it an opportunity for remediation.

“Vedanta was furnished with sufficient opportunity in the judgment rendered in April 2013 to take remedial action… There were indeed at the time environmental violations and suppression of material facts,” the Court observed.

Continued violations

However, the violations had obviously continued. The plant was closed down by the Tamil Nadu Pollution Control Board (TNPCB) and the State government on five grounds, including failure to produce groundwater examination reports; indiscriminate dumping of copper slag in 11 sites and even private lands adjacent to the river; lack of authorisation for disposal of hazardous waste; absence of gypsum ponds; and failure to measure emission in terms of National Air Quality Ambient standards.

The apex court noted that the 2013 judgment had clarified that the TNPCB was well within its powers to order the closure of the plant if need be. The apex court had never “exculpated” Vedanta from its liabilities of its past environmental violations.

Upholding the High Court decision of August 2020, the apex court said it was both legally and factually comprehensive. The High Court had decided the case after hearing it for 42 days.

Chief Justice Chandrachud said the High Court was right to determine the question of renewal of permission for operation of the plant, and not limit its examination to just the circumstances of the closure of the plant in 2018.

The Court refused to expunge the adverse remarks made by the High Court against the TNPCB for allowing the plant to violate environmental norms right under its nose for so many years.

“The High Court was justified in making observations with regard to the lack of alacrity on the part of the TNPCB in the discharge of its duties,” Chief Justice Chandrachud observed.