The Supreme Court on Wednesday said Vedanta Ltd could refurbish its Thoothukudi copper smelting plant, closed six years ago on the grounds of environmental pollution, provided that it follows expert advice on environmental safeguards and made an upfront deposit in an escrow account.

“We can allow you to refurbish, six years have gone by… We can direct you to put some money upfront, say in an escrow, as a bonafide measure that you will comply with all the environmental safeguards framed by an expert panel of which the Tamil Nadu Pollution Control Board (TNPCB) will be a part. After all, it is the State’s land. They have the remit,” Chief Justice of India DY Chandrachud, heading a three-judge Bench, addressed senior advocate Shyam Divan, appearing for Vedanta.

The Court said it had “an obligation to protect the welfare of the local community in Thoothukudi. They are a voiceless people”.

Divan suggested that the “way forward” would be to appoint an expert committee with representatives from the Environment Ministry, NEERI, Central Pollution Control Board, IIT, Vedanta, three independent members along with officers of the TNPCB. It proposed that the committee, chaired by a retired apex court judge, may recommend conditions for re-opening of the plant, including additional environmental safeguards within a month.

TNPCB’s counter

TNPCB, however, countered that the plant had been closed due to extensive pollution in the area. Referring to the Court’s remarks that the copper plant was a “national asset” which the country cannot afford to lose, senior advocate C.S. Vaidyanathan said balancing national interests did not mean re-opening the plant at the cost of the lives of the local people.

“But it is not nobody’s case that copper smelters are barred in India. It is within the industrial policy,” the Chief Justice intervened.

Vaidyanathan and advocate MF Philip, for TNPCB, said there was “no right to set up a polluting industry, that too, in a heavily populated place”.

“Then why did you give them permission in the first place?” Chief Justice Chandrachud queried.

The senior lawyer responded that the plant had operated on the basis of the interim orders of the Court. He submitted that 9,09,766 mt of gypsum was suppressed to obtain a consent to operate “by any means possible” in 2018. Vedanta had indiscriminately dumped 5.37 lakh mt slag at 11 sites around the district. Vaidyanathan said Vedanta had tried to mislead the apex court during the pandemic, claiming it could produce 1,050 mt of oxygen a day at the plant in a bid to restart partial operations. “The promise was never achieved and Vedanta produced a maximum of 45 tonnes of oxygen per day including liquid and gaseous oxygen,” Vaidyanathan contended.

“There is an absolute and non-delegable duty to the community that no harm results to anyone on account of hazardous and inherently dangerous activity. The onus is on them (Vedanta),” Vaidyanathan said.

The copper smelting plant was permanently shut down on the orders of the Tamil Nadu government six years ago on grounds of pollution. 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.