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In the background of the police shooting that killed eleven protesters at Thoothukudi, the Madurai Bench of the Madras High Court has granted an interim stay on the construction of a copper smelting unit being constructed by Vedanta (formerly Sterlite).
The Division Bench of Justices M Sundar and Anita Sumanth was hearing a writ petition challenging Environmental Clearance (EC) granted to Vedanta for the unit. The EC was first granted in January 2009, and subsequently renewed twice, in August 2015, and March 2016.
The petitioner had claimed that the initial EC was issued to Vedanta on the basis of a representation made to the authorities claiming that the unit was located within the State Industries Promotion Corporation of Tamil Nadu (SIPCOT) Industrial Park , Phase II.
It was argued that Vedanta, which is building a metallurgical unit for which a public consultation was mandatory, circumvented the same by claiming that the construction was taking place in the Park, which had already received clearances.
The Environmental Impact Assessment (EIA) notification of 1994 mandates an EC for industries of this nature, and the same are to be issued after a public hearing. The necessity for a public hearing can be waived if the industry in question is located within a notified industrial zone that has been granted approval.
B Poongkhulali, appearing for the petitioner, argued that Phase II of the SIPCOT park had not received approval. She submitted,
“Vedanta has, in its application for grant of EC stated that the location of the project was in a notified area as per which no public hearing was necessary and this statement, according to the petitioner, is incorrect, to its knowledge.”
In this light, it was prayed that the EC granted to Vedanta in January 2009 be quashed as being violative of the Environmental Protection Act, 1986.
The Bench made reference to a previous order by the Principal Bench of the Madras High Court on April 28, 2016, in which a writ petition challenging the legality of the EC granted to Vedanta in 2009 was dismissed.
The Court also took into account a Office Memorandum (OM) issued by the Ministry of Environment and Forests (MoEF) dated April 4, 2016, which clarified that a certain category of projects (including the current one) would receive clearances only after a public hearing, irrespective of their location. The OM states,
“It is accordingly clarified that the category of projects and activities mentioned in the Annexure of this O.M will require Public consultation in the process of Environment Impact Assessment and environmental clearance irrespective of its location in or outside a notified industrial area/estate/region.”
Raghuvaran Gopalan, appearing for Vedanta, refuted claims of suppression of information and pointed out that a review against the 2016 order of the Principal Bench, was the logical step to take.
He also pointed out that the OM passed in April 2016 would only have prospective effect, and that Vedanta would in any case have to subject themselves to a public hearing before their current EC expires on December 31 of this year.
Gopalan also submitted that the company should be allowed to go ahead with the construction, as that in itself was not causing pollution. He also undertook to ensure that the status quo as it exists would be brought back should an EC not be granted before December.
The Court observed that this was akin to putting the cart before the horse, and that they may have been inclined to grant the request if the current EC was to stay in operation for an extended period of time. It therefore held,
“Admittedly, the process of scrutiny of Vedanta’s renewal application as well as the public consultative process has already commenced. In such circumstances, we see no reason to permit Vedanta to continue with construction activities investing substantial resources by way of effort, money and materials. We cannot, under any circumstances, be party to what might well be a national waste of precious resources.”
Given that it was set to lapse and had to be renewed within seven months, an interim stay on construction was granted by the Court. The Bench directed the authorities to decide on Vedanta’s application within four months after conducting the mandatory public hearing.
The Court ended its order with an observation on sustainable development.
“While, on the one hand, the economic benefits of encouraging industries cannot be ignored, the toll extracted on available resources, water and soil regimes by such industries, cannot also be lost sight of. There is thus yet another stakeholder before us, one that is invisible in the array of parties, the environment in itself. In balancing the interests of all parties to this Public Interest Litigation, we believe that the interests of this hapless party be treated on par, if not paramount.”
Read the order