A decade-long legal struggle by Whitefield residents against Graphite India Limited has taken a significant step forward after the National Green Tribunal (NGT) restored a 2012 pollution control board order to close the 50-year-old plant for violations.
While NGT’s Principal Bench in Delhi delivered the verdict through video conferencing on January 28, the detailed order came to light on Thursday. Apart from clearing the way for closure of the plant, the NGT has also ordered a multi-agency survey of the pollution emanating from Graphite India, a Red Category industry that manufactures graphite anodes, electrodes and paste.
The green tribunal was hearing four appeals against the June 2013 order of Karnataka State Appellate Authority, which had overturned the closure notice of Karnataka State Pollution Control Board (KSPCB). In 2012, KSPCB had refused to grant consent for operation to Graphite India, and subsequently sent a closure notice. This had followed years of complaints from residents about the pollution from the plant.
Bony Verghese K. Oommen, Vijay Raghav Reddy and other residents took the appellate order, given on a 2:1 majority, to NGT’s Southern Bench in Chennai. With little progress in the past few years, the petitioners got the case transferred to the Principal Bench in Delhi in 2018.
“Referring to the evidence available on record, more particularly the reports of inspections of the factory carried out by the Authority, it was held that the respondent no. 1 (Graphite India) was grossly non-compliant of the requirement of environment mitigation measures,” states the NGT order.
Consequently, the majority judgment of the Appellate Authority was quashed, and KSPCB’s closure order was restored.
Furthermore, the NGT has directed constitution of a joint committee comprising representatives of the Central Pollution Control Board, KSPCB and National Environmental Engineering Research Institute (NEERI) to monitor pollution from the industry’s stacks, ambient air monitoring of the area by setting up at least 10 monitoring stations, and to carry out a study on source apportionment of pollution sources.
The entire exercise is to be completed within two months, and the report would be taken up by the NGT on April 8.
KSPCB Member Secretary Manoj Kumar said they would seek legal opinion on the order. “The committee will be set up, and based on the legal opinion, we will take action,” he said.
Residents elated
For residents, the judgment has come as a shot in the arm, particularly after the Supreme Court in October 2018 had deemed Graphite India a polluter.
Through the decade, the original petitioners were supported by residents of nearby apartments and later by the citizens’ collective, Whitefield Rising, in the legal fight against the industry.
“It is a huge step for us towards closure of the polluting industry. The Supreme Court had categorically stated that Graphite India was polluting, something the industry had denied for years. The NGT verdict now is a validation of the efforts of citizens who have compiled data and evidence against the appellate order,” says Ziby Jamal, a member of Whitefield Rising.
Nivedita Gouda from the group said the judgement was an assertion that citizens’ voices are being heard. Despite the appellate order overturning KSPCB’s 2012 closure notice, residents did not lose hope, she says. “KSPCB should now implement the order,” says Ms. Gouda.
NGT calls 2013 dissent note reasonable
The Principal Bench of NGT has called the majority opinion of the appellate court ‘presumptuous’, and instead accepted a dissenting judgment, which pinned pollution on Graphite India Limited, as ‘reasonable’.
The appellate court had overturned KSPCB’s closure order in 2013, with the chairman and one member calling the KSPCB order unscientific and lacking data. The majority judgement had claimed that black soot or dust could not be attributed to Graphite India as the area has heavy vehicular traffic and cement industries. The judgment also said that residents complaining of the pollution were settled in an industrial area ‘fully aware of the pollution that would be caused’.
However, member Lawrence Surendra had passed a dissenting judgment that supported KSPCB’s view of pollution emanating from Graphite India.
“Upon examination of the impugned judgment and other materials available on record, we find the dissenting judgment to be more reasonable and is accordingly accepted,” states the NGT order.
Mr. Surendra said while action in the case has been delayed, the judgment has come as a validation of his opinion. “They situation in Whitefield was pathetic, with soot covering floors in nearby houses. I had stated that KSPCB should take the matter to the High Court in my dissent note. If they had done so, the issue could have been solved earlier,” he said.
The dissenting judgment, which relies on global studies on graphite dust pollution, also recalls that the industry had done little to lower emissions in Bengaluru while they had complied with all laws in their factories abroad.
“There is a lot of talk of reducing air pollution in India. But there is no strategy at all. We still allow Red Category industries to function in highly dense urban areas,” he said.
NGT’s order also highlights the importance of dissenting judgments and the faults in the formation of appellate bodies.
“These bodies, which have been set up based on a Supreme Court order, have extraordinary powers, but are often reduced in intent through political appointees or by having members without technical background to deliberate on issues,” said Mr. Surendra.
