SC verdict on NGT Judgement. Fallout

In a somewhat surprising judgement to many, the Supreme Court yesterday set aside the NGT order allowing the re-opening of the Vedanta-Sterlite plant at Tuticorin. The SC bench comprising Justice Rohinton Fali Nariman and Justice Navin Sinha, was responding to appeals  filed by the Tamil Nadu Pollution Control Board. The order, in effect, also defined the jurisdiction of NGT in matters arising out of  provisions of the Air Act and Water Act.

After protests and firing around the plant led to multiple fatalities, the Tamil Nadu government had ordered the permanent closure of the plant on May 28 last year. This order had been challenged by Sterlite, primarily on the premise that no due process had been followed. Subsequently, the NGT, had , in an order on December 15, allowed the reopening of he plant. The plant of course is still not open,  as Sterlite was presumably going through the conditions placed by NGT, and closure of the case in the SC too.

This action of TN Government was set aside by NGT in December 15, directing the Tamil Nadu Pollution Control Board to pass fresh order of renewal of consent and authorization .

Interestingly, the court also observed that  the NGT order was passed while an appeal was still pending before the appellate authority. It said that the NGT took  up the matter directly against the original order which was challenged before the appellate authority even before the appellate authority could decide the same. That, in the courts langiage, was wrong.

For environmentalists, this redrawing of the NGT’s powers will come as a little surprising, as the NGT was increasingly being allowed to dictate on key issues regarding air, water and other related issues. A number of those judgements could potentially come under scrutiny or appeal again, notably its various directions to manage the air pollution in Delhi. It is no secret that the auto sector has been unhappy about the action on diesel vehicles, and would dearly love to make their case to another court.  Whether they would be accused of forum shopping, as Sterlite has been in this case, is moot.

We believe a tribunal like the NGT is critical, with specified powers. While as always, laws have been enacted for every possible eventuality in India, it is the implementation that needs to be enforced, and that is perhaps an area that the NGT can be nudged towards. The tendency to take on the role of judge, expert and monitor, all the same time, can frequently lead to poor outcomes, especially in areas like pollution where laying blame, measuring damage to health, and finding ways to pay for ficing issues, all require a nuanced approach with key stakeholders taken along. Sometimes willingly, sometimes with the majesty of the law helping them along.

For Sterlite-Vedanta, the judgement is a big blow, as it possibly delays any further chances of reopening by at least 6 months or more. During this time, every possible reason has been given for making a stronger case, be it India’s ‘copper shortage’ and forex outflow, the unfortunate case of the town expanding to get near the plant and increasing exposure to pollution risk, and even the possibility of protestors being outsiders.