Representative photo: PTI
- In a recent judgement of the National Green Tribunal (south) made several observations that underscored the crisis of environmental governance in India.
- The crux of the case was an ongoing violation of the 2006 EIA notification by Sun Pharmaceutical at its drug-manufacturing facility in Kancheepuram.
- During the hearings, the NGT found substantial cause to investigate the concerns of pollution and damage to the eco-sensitive Vedanthangal bird sanctuary.
- The bench also observed that the clearance exemption granted to Sun was illegal, rejected an Anna University study and dismissed the ministry’s logic of defence.
We are all aware of the phrase “rules are meant to be broken”. When thinkers first envisaged it, it was meant to convey the fact that sometimes a rule may not ensure a good or fair outcome and could thus be broken. But we are witnessing quite the opposite in Indian environmental governance, where good laws designed to protect the environment and human health are being broken with impunity. Worse still, the watchdog agencies tasked to implement these laws are often found creating an enabling environment for the violators.
In a recent judgement of the National Green Tribunal (NGT) (south), in the matter of Meenava Thanthai K.R Selvaraj Kumar, Meenavar Nala Sangam v. Union of India and Others, a bench headed by Justice K. Ramakrishnan made several observations that underscored the crisis of environmental governance in India.
The crux of the case was an ongoing violation of the 2006 Environmental Impact Assessment (EIA) notification by Sun Pharmaceutical Industries Ltd., which is manufacturing “synthetic organic chemicals, bulk drugs and intermediates” at its factory in Kancheepuram, Tamil Nadu.
The petitioner’s second concern was the facility’s location – within the Vedanthangal Bird Sanctuary, a notified wildlife sanctuary and a designated Ramsar wetland site as of April 2022.
Violations of EIA Notification 2006
Before dwelling on the nature of violations and the role of regulatory agencies, it’s important to break down the specific laws in question.
The EIA notification 2006 categorises industrial activity based on the potential harm they can cause to environment and human health. Bulk drugs and chemicals fall in the ‘red category’, invoking the highest level of regulatory oversight and compliance by the project operator.
A key compliance feature of the EIA 2006 in this regard is the prior environment clearance (EC). The typical EC process has the following stages:
- Scoping: Meant for Category A projects, where project proposals are sent to an Expert Appraisal Committee (EAC) that advises the Union environment ministry. At this stage, the project’s terms of reference are set out pursuant to the EIA.
- Public hearing: This is the most important component of the EIA process. It ensures public participation in decision-making; at these forums, the proponent seeks public comments, suggestions and objections to the draft EIA.
- Appraisal: Finally, the EAC scrutinises the final version of the EIA, reviews objections to the project and presents it to the ministry for an EC.
The formalities of a public hearing are often challenging for project developers, so it’s not uncommon for them to find ways to skip this stage. This is also what transpired in the case of Sun Pharmaceutical.
The tribunal’s judgement recorded that Sun Pharma began its operations in 2000 without acquiring the mandatory EC under the 1994 version of the EIA notification. The government subsequently amended the EIA notification in 2006. Under this version, bulk-drug-manufacturing attracted the aforementioned EC process. However, the company once again failed to acquire the clearance. Acknowledging these lapses, the bench of Justice Ramakrishnan and expert member Satyagopal observed:
“The 4th respondent (Sun Pharma) is expected to obtain environmental clearance for their expansion done between 1994 and 2006 by virtue of the provisions of EIA Notification 1994 and as such without environmental clearance their continuance of the activity is illegal…”
The tribunal’s proceedings also offer an opportunity to examine the defaulting regulatory agencies’ creative and often misleading interpretation of the laws. In this case, the Tamil Nadu Pollution Control Board (TNPCB) and the environment ministry argued that Sun Pharma acquired the plant from its erstwhile owner, Pradeep Drug Company, which had commenced operations in 1992-1993. And that since Pradeep Drug was established before 1994, the 1994 EIA 1994 didn’t apply. The bench rejected this claim, however:
“So there is some force in the submissions made by the counsel appearing for the applicant that from (the time) M/s. Sun Pharmaceutical Industries Limited took over M/s. Pradeep Drug Company, there is increase in the pollution load and there was an expansion as envisaged under the EIA Notification, 1994 and they ought to have obtained prior environmental clearance and without obtaining prior environmental clearance the operation of the 4th respondent unit is illegal.”
As it happens, the TNPCB granted ‘consents to operate’ to Sun Pharma based on the findings of a company-sponsored study undertaken by Chennai-based Anna University. This study said that waste generation hadn’t increased despite a change in the product mix at the facility. The bench responded thus:
“Anna University, Chennai while considering the feasibility of expansion, they have only considered the waste generated of solid waste etc., only and they have not considered the emission raised from each point so as to ascertain the pollution load that is likely to be caused on account of the modernisation or expansion made. In this case admittedly, after they (Sun Pharma) took over the industry from M/s. Pradeep Drug Company by virtue of the orders of the Court, they had made lot of improvements by changing the machine, upgrading the machines and adding more boilers for the purpose of meeting their needs and also they had abandoned the existing products, namely 3 products and they had added 10 new products.”
The procedure for a fresh EC for a change in product mix or changes in manufacturing processes is important under the law because regulatory agencies need to be aware of the potential hazards of new chemicals in storage/use, their handling, emergency procedures in the event of accidents, and changes in the nature of hazardous waste generated.
The failure to declare such chemicals could have catastrophic consequences – we India witnessed with the Bhopal gas disaster of 1984. The Indian government also began mulling stricter environmental controls like the EIA after this disaster.
The tribunal also made two other important observations on major regulatory lapses: the company continued operations without the consent of the TNPCB for two years, between 2018 and 2020, and that the company only applied for the mandatory authorisation under the Hazardous Waste Rules only in 2016. As a result, there was no way to track the fate of thousands of tonnes of highly hazardous waste generated by the company for over six years.
“There was no evidence to show that the 4th respondent or their predecessor had obtained any authorisation under the existing Hazardous Waste Management Rules, Admittedly the 4th respondent had obtained authorisation under the present rules namely in 2016 will go to show that they were handling hazardous waste earlier but they have not obtained any authorisation.”
In its final reply to the NGT, the TNPCB admitted to the fact that Sun Pharma was required to have an EC.
Committee findings – a conflict of interest
During the hearings, the NGT found substantial cause to investigate the concerns of pollution and damage to the eco-sensitive Vedanthangal sanctuary. A joint committee, comprising senior government officials from the environment ministry and the TNPCB, was appointed to investigate the issues related to clearance and relevant permissions required, pollution control mechanisms, unauthorised discharges and related environmental impact to the surroundings, and violations of the Hazardous Waste Rules.
The committee in its final report maintained the arguments for EC exemption that had been made by the ministry and TNPCB, in their affidavits to the NGT. On the issue of pollution and water/soil contamination, the committee found that “there is no specific impact from the industrial effluent” and that there was no illegal discharge from the plant since the facility was zero liquid discharge compliant. The committee also claimed that “so far, no casualty of Vedanthangal birds is noted due to any consumption of water or feed from surrounding water bodies or field area”.
However, volatile chemicals were found in the industry monitoring wells inside the factory premises due to old effluent discharge ponds that leaked into the ground water. There is no scientific analysis of how these chemicals have not migrated or spread in the ground water aquifers that may not necessarily be limited to the physical boundaries of the company.
The bench emphatically observed that the EC exemption granted to Sun Pharma was illegal and rejected the basis of the Anna University study. The tribunal also rejected the committee’s and the ministry’s logic to exempt Sun Pharma from the EC formalities.
The tribunal however, shied away from ordering the plant’s closure, adhering to the “doctrine of proportionality”. Instead, it imposed an ‘environmental compensation’ of Rs 10 crore.
“Applying the doctrine of proportionality, instead of directing closure of the unit, we feel that directing them to pay an Environmental Compensation of Rs. 10 Crores Only/- an interim compensation of both these amounts will have to be paid by them.”
To address the potential threat of contamination to groundwater, the bench accepted a recommendation for interim compensation calculated by the committee to be Rs 58.2 lakh – to be used to maintain the Vedanthangal sanctuary.
The tribunal also directed the Indian government and TNPCB to “initiate enquiry and actions against the concerned erring officials” for permitting Sun Pharma to be run and operated illegally without an EC.
The poor state of environmental governance in India is not new to those engaging with regulatory agencies and administrators operating in this space. The Sun Pharma case does offer yet another glimpse into the deterioration of institutional processes and regulatory frameworks. To make matters worse, there are no processes to address the blatant misuse of institutions or to remedy obvious conflicts of interest in the appointment of members in state pollution control boards.
In fact, the Water Act 1974, which governs the appointment of officers to the pollution control board, doesn’t have to appoint community representatives, social scientists or civil society actors. In addition to officials of the state government and local authorities, there is a provision to appoint three non-officials – only to represent the interests of agriculture, fishery or industry/trade, and two persons to represent the companies or corporations owned by the state government.
As a result, the current TNPCB board comprises eight government officials, one representative of the State Industrial Promotion Corporation of Tamil Nadu, one industry representative heading a private company, and two farmers’ association representatives.
The Sun Pharma case is a tip of the proverbial iceberg. Public scrutiny and vigilance can’t be the only check in place to address the crisis of environmental misgovernance in India. This isn’t to say that the vision behind the regulatory governance framework is flawed – but that its execution has deteriorated. There is a serious need to take stock of the gaps in capacity and policies to correct the course of environmental governance in India.
Until then, the word “control” in ‘pollution control board’ will have no meaning.
Dharmesh Shah is a Kerala-based environmental policy researcher and writer.