(Dr EAS Sarma)
A ghastly gas leak accident took place at LG Polymers unit near Visakhapatnam in the early hours of 7-5-2020.
Several persons in the vicinity of the accident site could not escape to safe places and got asphyxiated to death. Several others had to be hospitalized for serious health problems associated with their lungs, eyes, nose, skin etc.
The impact of the toxic gases that got released from the accident site extended up to 5-10km from it. The disease burden caused by the accident will stay on for decades to come.
In short, irrespective of the laws, the rules, and the procedures in force, such an accident should shake the conscience of the nation and prompt those in authority to introspect and self-correct.
Initial reports suggest that the gases released in the accident predominantly comprise Styrene.
According to a study conducted by IIT, Mumbai (“Vizag gas leak: Styrene levels 2,500 times more on May 8: CSE Analysis” reported at Down To Earth ), Styrene levels in the air at several locations around the accident site shot up by more than 2,500 times compared to the safety threshold.
If this were to be taken as an accurate estimate, exposure to this of the population residing within 5-10km of the site would have resulted in both short-term and long-term disease burdens. It would result in ailments associated with the lungs, the kidneys, the eyes, and so on. Styrene is known to cause cancer. Considering the known toxicity of Styrene, it would also result in stunting the affected children’s mental abilities. All these social costs far outweigh the perceived benefits of giving a red carpet treatment such industrial activity.
Your (C K Mishra, Secretary, Ministry of Environment, Forests & Climate Change (MEFCC, Govt of India) Ministry cannot afford to assume the role of a passive onlooker in the case of the accident at LG Polymers or any other similar accident. You may have unwittingly or otherwise breached the Constitutional obligation of the State to protect the human rights of the citizens by facilitating ex post facto approvals for such potentially dangerous industrial units to operate.
Article 48A of the Constitution requires your Ministry as well as the State to protect the environment. Article 21 obligates the government to protect the citizen’s right to life. Article 39 directs the government to ensure a citizen’s good health.
In pursuance of Article 48A, your Ministry had brought in the Environment (Protection) Act [EPA] and issued several rules and notifications from time to time. The central theme of this statutory framework is to ensure that no industrial project is undertaken without understanding its adverse impact on the environment, without understanding its implications for the people’s health and without taking into confidence those likely to be affected. That is the rationale underlying the concept of prior Environment Clearance (EC) being obtained by a project proponent. If an industrial project gets implemented without an environmental impact appraisal and without public consultation and if your Ministry becomes a rubber stamp to “regularise” such projects, it will defeat the purpose of Article 48A and EPA.
Over the years, in the absence of a firm commitment to the letter and the spirit of Article 48A, I am afraid that your Ministry has gradually transformed itself from an independent regulatory authority into an agency that provides a regulatory garb to thousands of hazardous industries and polluting industries that endanger the people’s lives, damage the environment and affect the people’s health.
The LG Polymers accident represents the tip of the iceberg of what is going happen in the case of several thousands of industrial units handling hazardous chemicals, not subject to any worthwhile regulatory scrutiny, beyond public accountability, and operating without any meaningful oversight and monitoring.
The notifications issued by your Ministry such as SO 804(E) dated 14-3-2017 and SO 1030(E) dated 8-3-2018 that granted the largesse of ex post facto approvals “condoned” many errant units that preempted stringent technical scrutiny, avoided a strict environment impact appraisal procedure and escaped a public consultation process. Had your Ministry respected the letter and the spirit of Article 48A of the Constitution and respected the Precautionary Principle in environmental jurisprudence, ghastly accidents such as the one that disrupted the lives of lakhs of people around the industrial unit of LG Polymers would not take place.
We seem to have learned very little from the Bhopal gas tragedy and I doubt whether we will draw any lessons from the latest Visakhapatnam disaster. In the ultimate analysis, it is the people who are forced to pay the price for the extra-ordinary affection displayed by the rules towards the larger businesses.
A time has come when your Ministry can no longer pretend that the changes being made in the environmental impact assessment procedures would subserve the public interest.
I refer to the Draft Notification issued by your Ministry in March 2020 proposing far-reaching “simplifications” and paving the way for ex post facto approvals.
In this connection, I have extracted below an observation made by the Hon’ble Supreme Court on 1-4-2020 in Civil Appeal No. 1526 of 2016
“The concept of an ex post facto EC is in derogation of the fundamental principles of environmental jurisprudence and is an anathema to the EIA notification dated 27 January 1994. It is, as the judgment in Common Cause holds, detrimental to the environment and could lead to irreparable degradation. The reason why a retrospective EC or an ex post facto clearance is alien to environmental jurisprudence is that before the issuance of an EC, the statutory notification warrants a careful application of mind, besides a study into the likely consequences of a proposed activity on the environment. An EC can be issued only after various stages of the decision-making process have been completed.
Requirements such as conducting a public hearing, screening, scoping and appraisal are components of the decision-making process which ensure that the likely impacts of the industrial activity or the expansion of an existing industrial activity are considered in the decision-making calculus. Allowing for an ex post facto clearance would essentially condone the operation of industrial activities without the grant of an EC. In the absence of an EC, there would be no conditions that would safeguard the environment. Moreover, if the EC was to be ultimately refused, irreparable harm would have been caused to the environment. In either view of the matter, environment law cannot countenance the notion of an ex post facto clearance. This would be contrary to both the precautionary principle as well as the need for sustainable development “
While an ex post facto approval may enhance the “ease of doing business” as it is fashionable to describe it these days, it is simultaneously encouraging industrial units that are unsafe, which pollute and which damages the people’s health. I would therefore earnestly request you to revisit the need for issuing the Draft Notification of March 2020. instead of diluting the environment laws and procedures, in the public interest, it is necessary to strengthen them and introduce a greater sense of public accountability in environmental regulation.
I understand that there are thousands of industrial units which have escaped environmental scrutiny and are awaiting the munificence of your Ministry to “regularise” their dangerous existence. If you grant ex post facto approval for such units, you will only be paving the way for more and more such units to come up, defying any kind of scrutiny and monitoring. Please move away from the repugnant idea of such approvals and introduce professional systems of prior environmental scrutiny.
I would also request your Ministry to identify all such units that handle hazardous substances and all such units that cause heavy pollution and close them down if they have failed to be in strict compliance with the environmental norms. If you take the public into confidence, it will become easy for you in the process of identifying those units because it is the local communities that bear the brunt of pollution and risk.
(Text of the letter Dr Sarma, former secretary, GOI wrote to C K Mishra, Secretary, Ministry of Environment, Forests & Climate Change (MEFCC), Govt of India)