The Supreme Court on Thursday said the Tamil Nadu Pollution Control Board (TNPCB) and the Thoothukudi district administration were “equally responsible” for the piling up of toxins in connection with the functioning of the now-shutdown Vedanta’s copper smelting plant, saying pollution regulators in the country are singularly “slack” in using their powers under the law.

“The problem in this area (anti-pollution statutes) in our country is not the absence of law, but the absence of implementation. Pollution control boards do not have the staff, the motivation and then there are other things… The problem is you people do not exercise your powers under these specific laws,” Chief Justice of India DY Chandrachud addressed senior advocate CS Vaidyanathan, appearing for the TNPCB.

Justice JB Pardiwala, an Associate Judge on the three-judge Bench with Justice Manoj Misra, said the TNPCB and the district administration were “equally responsible for creating the situation” in Thoothukudi.

Justice Pardiwala read out from a Court order, which said “TNPCB nor the district administration took effective steps to abate the nuisance. Rather, the slackness in the approach of the State Pollution Control Board and the district administration led to the flooding of Thoothukudi town… the district administration could not have pleaded ignorance because the quantity of slag dumped was a small pillock and visible to any passer-by”.

Renewal of licence

The Court was hearing Vedanta’s appeal to re-open the plant, which was closed down in 2018 after the State Pollution Control Board and authorities refused to renew their consent to operate citing grounds of pollution.

Vaidyanathan agreed with Justice Pardiwala that his client, TNPCB, may have been “remiss or slack”.

“But my action (refusal to renew Vedanta’s licence to operate the plant in 2018) cannot be faulted on the basis that my actions three or four years before that were remiss. Today, I have woken up,” Vaidyanathan argued.

The senior lawyer, assisted by advocates Purnima Krishna and MF Philip, contended that the plant had operated for a substantial period on the basis of interim orders from the Madras High Court, the Supreme Court and the National Green Tribunal.

“The regulator was constrained because of the pending cases — it was never free from court proceedings,” Vaidyanathan submitted.

The Chief Justice questioned the TNPCB on the closure of the plant on the ground of “undefined violations”.

“Industry is bound to comply with the law. Industry cannot say ‘I will only address such objections which you (TNPCB) happen to spot and raise’. But at the same time, you (TNPCB) cannot close an industry on unspecified violations… Closure affects investment,” Chief Justice Chandrachud pointed out.

Vaidyanathan said his client had not revoked a valid consent. The consent had expired at the time. “Their consent to operate had come to an end. It was their application for renewal of consent that was declined by me,” he argued.

The Chief Justice, however, responded that an established industry, though there was no vested right to renewal, could entertain a “legitimate expectation” that its application for consent would be renewed subject to compliance with the law.

“You (TNPCB) cannot say ‘I will deny renewal on unspecified grounds’. That is not done,” the Chief Justice addressed Vaidyanathan.

The Court had earlier termed the plant a “national asset” and proposed an expert committee to be formed to study whether the plant could be refurbished to resume operations, subject to any additional environmental safeguards and even deposit of an amount in an escrow as proof of its bonafide to the local community.

The TNPCB and State government have strongly objected to the suggestion, saying “nobody had a right to set up a polluting industry”.