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Implementation of Supreme Court order dated 22 February 2017 will be tested in coming days

The so-called success story of the two-digit growth and tall claims of capital investment has masked the reality of multi-digits worth loss of livelihood, damages due to land acquisition, displacement, irreversible damage to environment and permanent loss of natural resources, which are being treated as free goods in this growth model. The investment figures, without any consideration of cost of displacement, destruction and depletion of natural resources and livelihood losses, do not make sense. No wise person would talk about the income without talking about the cost of acquiring that income or wealth.

This capitalist development has never tried to arrive at even a realistic estimate of these figures, but the magnitude of the loss can be guessed from some of the facts emerging from various important research works.

75 Industrial Clusters of India are critically and severely polluted:

Despite the lack of good quality data, some progress has been made with respect to identifying and classifying of critically and severely polluted areas. The consistent follow up by the pollution affected people, people’s organisations and NGOs regarding the increasing pollution levels in the industrial areas of India forced the Central Pollution Control Board (CPCB) and the State Pollution Control Boards (SPCBs) in 1989 to initiate the process of indexing the critically polluted clusters in the country. At that time 24 industrial areas including Vapi, Ankleshwar, Ludhiana etc. were declared ‘critically polluted’.

Thereafter, in several meetings of CPCB and SPCBs serious debates on the pollution status of these areas were undertaken. Even after formulation of ‘action plans’ for the said industrial areas no substantial or qualitative change was observed in these industrial clusters. For this reason, in 2009 the CPCB and IIT-Delhi, in light of the demands of the people’s organisations, decided to adopt a new method of ‘indexing the pollution levels’ of these industrial clusters, which is now known as the ‘Comprehensive Environmental Pollution Index’ (CEPI).

The CEPI includes air, water, land pollution and health risks to the people living in the area. However, the CEPI still has a long way to go in attaining for example our demand to include the health of the workers, productivity of land and quality of food / agriculture produce in the index since the presence of high levels of chemicals and heavy metals in food produce has severe health implications. The latter has effects not only on people living around the industrial area but anyone consuming agricultural products grown in these areas – hence not restricting the impact to the particular industrial area.

As per the agreed upon measures, industrial areas with a CEPI of 70 and above are considered ‘critically polluted’ clusters while those with a CEPI between 60-70 are considered ‘severely polluted’ areas.’ In December 2009 the CEPI of 88 polluted industrial clusters were measured; it was then that the CPCB and then the Ministry of Environment and Forest (MoEF) of Government of India were forced to declare 43 of those as ‘critically polluted areas’ and another 32 industrial areas as ‘severely polluted’ areas.

Supreme Court Order: On 22 February 2017, the bench of the Supreme Court Chief Justice Mr. Jagdish Singh Khehar, Justice Dr. D. Y. Chandrachud, and Justice Mr. Sanjay Kishan Kaul responding to Paryavaran Suraksha Samiti (PSS) and Farmers Action Group's Writ Petitions (Civil) No. 375 of 2012 delivered a significant judgement to combat industrial pollution and untreated sewage waste.

Before we get into the details of this order, we also need to acknowledge the bitter truth of environmental protection in present times. To ensure implementation of environmental laws, one is forced to petition the Supreme Court. Governments, both at the center and in states act to protect environment only if the Supreme Court orders them. This clearly indicates that the governments have deliberately failed in protection of environment, conservation and even the implementation of environment laws. While the recent Supreme Court order might be hailed as historic, it only goes to show that the failing expectations from the present capitalism. Could be there anything worse than these state of affairs? Industries and governments might view this Supreme Court order as stringent, but for those affected people, the activists, air, water, sea, and rivers, the underground aquifers find it inadequate.

Human societies have faced several ecological crises at various phases of “civilization”, but today's reality has raised fundamental questions on the very survival of human beings and life on earth. The ecological crisis is an outcome of the present capitalist society, its developmental model and has reached a point where all life forms are threatened. Destruction of Natural Resources ‘considered essential’ in today’s development model of the capitalist society must be challenged.

Following are the main directions of the Supreme Court.

1) The industry requiring “consent to operate” can be permitted to run, only if its primary effluent treatment plant is functional. The Supreme Court directed the concerned State Pollution Control Boards, to issue notices to all industrial units, which require “consent to operate”, by way of a common advertisement, requiring them to make their primary effluent treatment plants fully operational, within three months from today. That means deadline end at 23 May 2017. On the expiry of the notice period of three months, the concerned State Pollution Control Board(s) are mandated to carry out inspections, to verify, whether or not, each industrial unit requiring “consent to operate”, has a functional primary effluent treatment plant. Such of the industrial units, which have not been able to make their primary effluent treatment plant fully operational, within the notice period, shall be restrained from any further industrial activity. Such an industrial concern, which has been disabled from carrying on its industrial activities, as has been indicated in the foregoing paragraph, is granted liberty to make its primary effluent treatment plant functional to the required capacity, and thereupon, seek a fresh “consent to operate” from the concerned Pollution Control Board. Only after the receipt of such fresh “consent to operate”, the industrial activities of the disabled industry can be permitted to be resumed.

2) Liberty is granted to private individual(s) and organizations, to address complaints to the concerned Pollution Control Board, if any industry is in default. On the receipt of any such complaint, the concerned Pollution Control Board shall be obliged to verify the same, and take such action against the defaulting industry, as may be permissible in law.

3) The setting up of “common effluent treatment plants” should be taken up as an urgent mission. Common effluent treatment plants should be completed within the time lines already postulated. With reference to common effluent treatment plants, which are yet to be set up, the concerned State Governments (including, the concerned Union Territories) are directed to complete the same within a period of three years, from today.

4) The norms for generating funds, for setting up and/or operating the 'common effluent treatment plant' shall be finalized, on or before 31.03.2017, so as to be implemented with effect from the next financial year. In case, such norms are not in place, before the commencement of the next financial year, the concerned State Governments (or the Union Territories), shall cater to the financial requirements, of running the “common effluent treatment plants”, which are presently dysfunctional, from their own financial resources.

5) For the purpose of setting up of “common effluent treatment plants”, the concerned State Governments (including, the concerned Union Territories) will prioritize such cities, towns and villages, which discharge industrial pollutants and sewer, directly into rivers and water bodies.

6) Supreme Court also directs that 'sewage treatment plants' shall also be set up and made functional, within the time lines.

7) The directions pertaining to continuation of industrial activity only when there is in place a functional “primary effluent treatment plants”, and the setting up of functional “common effluent treatment plants” within the time lines, expressed above, shall be of the Member Secretaries of the concerned Pollution Control Boards. The Secretary of the Department of Environment, of the concerned State Government (and the concerned Union Territory), shall be answerable in case of default.

8) The concerned Secretaries to the Government shall be responsible of monitoring the progress, and issuing necessary directions to the concerned Pollution Control Board, as may be required, for the implementation of the above directions. They shall be also responsible for collecting and maintaining records of data, in respect of the directions contained in this order. The said data shall be furnished to the Central Ground Water Authority, which shall evaluate the data, and shall furnish the same to the Bench of the jurisdictional National Green Tribunal.

9) To supervise complaints of non-implementation of the instant directions, the concerned Benches of the National Green Tribunal, will maintain running and numbered case files, by dividing the jurisdictional area into units. The above mentioned case files, will be listed periodically.

10) The concerned Pollution Control Board is also hereby directed, to initiate such civil or criminal action, as may be permissible in law, against all or any of the defaulters.

11) It would be in the interest of implementation of the objective sought to be achieved, to also require each concerned State(and each, concerned Union Territory) to make provision for “online, real time, continuous monitoring system” to display emission levels, in the public domain, on the portal of the concerned State Pollution Control Board. Such measures shall be put in place by all the concerned State Governments (including, the concerned Union Territories), within six months from today.

Implementation of the Order

This order will test how State Pollution Control Boards of various states implement it. It will also be crucial for the affected people and organisations to put their efforts to get this order implemented. It is going to be a very tough fight for the affected people and organisations.

cleardotIf Gujarat State Pollution Control Board agrees in letter and sprit of this order, then it should immediately start it action by cancelling the ‘Consolidated Consent and Authorization’ (CC & A) and issue closure to ‘Narmada Clean Tech (NCT), Ankleshwar as the ‘Final Effluent Treatment Plant’ (FETP) has consistently been unable to meet the prescribed GPCB norms since its inception. It should also declare ‘Chemical Emergency’ for ‘ECP Industrial Cluster’ of Vadodara District and cancel the ‘Consolidated Consent and Authorization’ (CC & A) of ‘Vadodara Enviro Channel Limited’, Cancel the ‘Environment Clearance’ (EC) of all the defaulting polluting industries of the ‘ECP Industrial Cluster’ of Vadodara District. Similar action is also warranted against all such treatment plants across India which are not able to meet the prescribed norms.

Our environmental laws only talk about deterrent punishment to those who endanger human environment, safety and health but they lack any specific provision which mandates that Indian State, Governments and industries conduct studies on an Industrial Cluster vis-a-vis it impacts on environment and health. And that is why one will also not find clear cut provision to provide compensation to the affected people. Even in ‘The National Green Tribunal Act, 2010’ in section 15 dealing with relief, compensation and restitution, the burden to provide the studies and research to ask for the compensation is put on the affected people.

The Bhopal Disaster is a prime example that exposes the fragility of Indian Environmental Law, particularly its lack of any clear cut provision to mandate studies relating impact of Industry / Industrial Clusters and environment and health. This is largely why the affected people of Bhopal are deprived of their rights to fair and just compensation and also to prosecute the culprits.

These glaring violations clearly indicate that all of us should now lobby for application of charges under Sections 307/302 of the Indian Penal Code (attempt to murder/murder) against governments and Industries complicit in endangering earth and environment. The present capitalist, social order is not capable of following its own laws while in pursuit of its growth model.

It is time for all us to compel the governments and its institutions so that they allocate required resources for the studies and research which co-relating impact of Industrial Clusters on environment and health and also conduct such studies and research.

All the organizations, movements and affected persons in industrial areas need to get together their act to ensure that this order just don't remain on paper.


Related Info.

Issues: Right to Environment, Industries and Environment, Environmental Degradation
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Related Bulletin : Jun 2017