Pendency Of Policy Framework Does Not Justify Not Enforcing The Existing Pollution Norms: NGT [Read Order]

A review application was pursued by the Ministry of Environment, Forest and Climate Change (MoEF&CC) against an order of National Green Tribunal, prohibiting industrial activity or expansion of 'red' or 'orange' category industrial units until prescribed pollution limits were achieved in Critically Polluted Areas (CPAs) and Severely Polluted Areas (SPAs).

Tribunal's Order

On 13.12.2018, the Tribunal had directed all State Pollution Control Boards /Committees to finalize time bound action plans within three months and bring all polluted industrial clusters within safe parameters.

Later, on 10.07.2019, it opined that "right of statutory authorities is coupled with duty. Such right does not carry any unlimited discretion of not taking action when pollution norms are violated." In this light, the Tribunal directed that "No further industrial activities or expansion be allowed with regard to 'red' and 'orange' category units till the CPAs and SPAs are brought within the prescribed parameters or till carrying capacity of area is assessed and new units or expansion is found viable having regard to the carrying capacity of the area and environmental norms."

It also directed the Central Pollution Control Board, to compile information regarding polluted industrial areas based on water pollution norms, air pollution norms and other pollution norms, separately and to take appropriate action against individual polluters at the scale adopted by the Tribunal in the case of Vapi Industrial area.

MoEF&CC's Stand

The MoEF&CC sought review of the aforementioned order dated 10.07.2019 through Advocates Attin Shankar Rastogi and Suman Kharb, on the following grounds:

1. That it was yet to take a final view in the matter of protocol to be followed by the States/UTs for implementation of the action plan for environmental improvement of CPAs;
2. That it will require 6 months for policy framework and 1 year for its implementation and till then ban on expansion/setting up new industries should be kept in abeyance;
3. That the order was an extreme measure in as much as there may be 'red' or 'orange' category units which do not, in any manner, add to the pollution.

Findings

The bench comprised by Justice Adarsh Kumar Goel, Justice S.P. Wangdi, Justice K. Ramakrishnan and Dr. Nagin Nanda disposed of the review application titled "Union of India v. News item published in "The Asian Age" Authored by Sanjay Kaw Titled "CPCB to rank industrial units on pollution levels"". It held that "pendency of such steps [action plan and policy framework] can be no justification for not enforcing the existing pollution norms and applying the 'Sustainable' 'Precautionary' and 'Polluter Pays' principles on the basis of data available".

They explained that 'red' and 'orange' category industries have higher potential of causing pollution and thus it was necessary to determine their operational viability on the touchstone of Precautionary principle. "New legitimate activity or expansion can take place after due precautions are taken in the areas in question by 'red' and 'orange' category of units", they said.

It was also clarified that the order would not obstruct any legitimate industrial activity as there was no bar to such units being set up if they were found to be viable. 

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