Supreme Court Sets Aside NGT Orders on Fly Ash Disposal: Aravali Power Co. vs. Vedprakash (2022)

Introduction

Date of the Judgment: 10 May 2022

Citation: 2022 INSC 436

Judges: Dr. Dhananjaya Y Chandrachud, J and Pamidighantam Sri Narasimha, J.

Can thermal power plants be penalized for not fully utilizing fly ash? The Supreme Court of India recently addressed this question, setting aside orders of the National Green Tribunal (NGT) that imposed penalties on thermal power plants for not meeting deadlines for fly ash utilization. This decision came in light of a new notification issued by the Ministry of Environment, Forest and Climate Change (MoEF&CC), which introduced revised timelines for fly ash management.

The Supreme Court bench, comprising Justices Dr. Dhananjaya Y Chandrachud and Pamidighantam Sri Narasimha, delivered the judgment. The court’s decision focused on the implications of a new notification by the MoEF&CC, which altered the existing regulatory framework regarding fly ash utilization.

Case Background

This case involves a series of appeals against orders passed by the National Green Tribunal (NGT) concerning the management and disposal of fly ash by thermal power plants. The NGT had directed various power plants to ensure 100% utilization of fly ash by a stipulated date and imposed environmental compensation on those who failed to comply. The primary issue before the NGT was whether thermal power plants had taken adequate steps for the scientific disposal of fly ash as per the notifications issued by the MoEF&CC under the Environment Protection Act, 1986.

The appeals were filed by several thermal power plants, including M/s Aravali Power Co. Pvt. Ltd., challenging the NGT’s orders. The respondents included environmental activists and the Central Pollution Control Board (CPCB). The power plants sought to set aside the NGT’s orders, particularly those imposing environmental compensation for non-compliance with fly ash utilization norms.

Timeline:

Legal Framework

The case is primarily governed by the Environment (Protection) Act 1986, which empowers the MoEF&CC to issue notifications and guidelines for environmental protection. Several notifications issued by the MoEF&CC are central to this case:

• Notification dated 14 October 1999: This notification mandated that manufacturers of clay bricks, tiles, blocks, or construction activities mix at least 25% of ash.
• Notification dated 27 August 2003: This amended the 1999 notification, requiring construction agencies to use 100% of fly ash in a phased manner by 3 August 2007.
• Notification dated 27 January 2016: This extended the deadline for achieving 100% fly ash utilization to 31 December 2017.
• Notification dated 31 December 2021: This notification superseded the previous notifications and introduced new parameters for ash utilization, including timelines for utilizing ‘legacy ash’ (unutilized accumulated ash). Paragraph A(5) of this notification specifies that legacy ash must be utilized progressively within ten years from the date of publication of the notification.

The Environment (Protection) Act 1986 provides the legal basis for these notifications, allowing the government to set standards and guidelines for environmental protection. The Hazardous and Other Wastes (Management and Transboundary Movement) Rules 2016 also play a role, particularly concerning the environmentally sound management of fly ash.

Arguments

The arguments presented before the Supreme Court can be categorized as follows:

• Appellants (Thermal Power Plants):
  • The thermal power plants argued that the NGT’s orders were based on the notification dated 27 January 2016, which set a deadline of 31 December 2017, for 100% fly ash utilization.
  • They contended that the subsequent notification dated 31 December 2021, introduced new timelines and modalities for fly ash utilization, rendering the NGT’s orders outdated.
  • They highlighted that the new notification provided a ten-year period for the full utilization of legacy ash, which was a significant change from the previous deadlines.
  • They also pointed out that the new notification had subsumed the earlier notifications, thus altering the legal basis of the NGT’s orders.
• Respondents (Environmental Bodies and CPCB):
  • The respondents emphasized the importance of adhering to environmental norms and the need for thermal power plants to manage fly ash responsibly.
  • They argued that the NGT’s orders were necessary to ensure compliance with the environmental regulations and to penalize non-compliant power plants.
  • They also raised concerns about the potential environmental hazards caused by improper handling, storage, and transportation of fly ash.
  • They highlighted the need for proper enforcement, monitoring, and auditing mechanisms to ensure that fly ash is managed in an environmentally sound manner.

The counsel for some of the parties also pointed out deficiencies in the notification dated 31 December 2021, particularly concerning the environmentally sound loading, unloading, transport, storage, and disposal of fly ash to prevent air and water pollution. Reliance was placed on a previous order of the Supreme Court in SLP(C) No 30381 of 2011, which had directed the use of mechanized steel-covered container trucks for the transportation of fly ash to prevent environmental hazards. It was also argued that the Union Government is duty-bound to formulate rules to ensure that the loading, unloading, utilization, and transportation of fly ash take place in a manner that prevents environmental hazards, referencing the Hazardous and Other Wastes (Management and Transboundary Movement) Rules 2016.

Submissions of the Parties

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the primary issues that the court addressed were:

1. Whether the NGT’s orders, which were based on the notification dated 27 January 2016, could be sustained in light of the new notification dated 31 December 2021.
2. Whether the new notification dated 31 December 2021, adequately addressed the environmental concerns related to the handling, transportation, and disposal of fly ash.
3. Whether the MoEF&CC needed to revisit the parameters prescribed by the notification dated 31 December 2021, to align with the Hazardous and Other Wastes (Management and Transboundary Movement) Rules 2016 and other relevant legislation.

Treatment of the Issue by the Court:

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court considered the following authorities:

Judgment

The Supreme Court’s judgment primarily focused on the impact of the new notification dated 31 December 2021, on the existing orders of the NGT. The court’s treatment of the submissions and authorities is summarized below:

How each authority was viewed by the Court?

• The Court acknowledged that the earlier notifications by the MoEF&CC were superseded by the Notification dated 31 December 2021.
• The Court noted that the Environment (Protection) Act 1986 provided the legal basis for the MoEF&CC to issue notifications regarding environmental protection.
• The Court emphasized the importance of the Hazardous and Other Wastes (Management and Transboundary Movement) Rules 2016 in ensuring the environmentally sound management of fly ash.
• The Court referred to its previous order in SLP(C) No 30381 of 2011 to highlight the need for proper transportation methods for fly ash to prevent environmental hazards.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• The court recognized that the new notification dated 31 December 2021, had fundamentally altered the regulatory framework for fly ash utilization.
• The court acknowledged the need for thermal power plants to comply with environmental norms but also recognized the need for a practical and updated approach to fly ash management.
• The court was concerned about the potential environmental hazards from improper handling of fly ash and emphasized the need for environmentally sound practices.
• The court directed the MoEF&CC to revisit the notification to ensure it aligned with the Hazardous and Other Wastes (Management and Transboundary Movement) Rules 2016 and other relevant legislation.

Fact:Law Ratio

The Supreme Court’s reasoning was primarily based on the legal implications of the new notification and the need for alignment with existing environmental laws. The factual aspects of the case, such as the specific actions of the thermal power plants, were secondary to the legal analysis.

Logical Reasoning

Issue 1: Whether the NGT’s orders could be sustained in light of the new notification dated 31 December 2021.

Issue 2: Whether the new notification adequately addressed environmental concerns.

Issue 3: Whether MoEF&CC needed to revisit the parameters of the notification.

Key Takeaways

• The Supreme Court set aside the orders of the National Green Tribunal (NGT) concerning the disposal and utilization of fly ash by thermal power plants.
• The decision was based on a new notification issued by the Ministry of Environment, Forest and Climate Change (MoEF&CC) on 31 December 2021, which superseded the earlier notifications.
• The court directed the MoEF&CC to revisit the parameters prescribed by the new notification to ensure that the loading, unloading, transport, storage, and disposal of fly ash are done in an environmentally sound manner.
• The court emphasized the need for proper enforcement, monitoring, audit, and reporting mechanisms to ensure compliance with environmental regulations.
• The judgment highlights the importance of aligning environmental regulations with practical realities and the need for continuous review and updating of such regulations.
• The judgment clarifies that thermal power plants are required to utilize legacy ash within ten years from the date of the new notification, as per the timelines prescribed in the notification.

Directions

The Supreme Court gave the following directions:

• The MoEF&CC was directed to revisit the parameters of the notification dated 31 December 2021, taking into account the provisions of the Hazardous and Other Wastes (Management and Transboundary Movement) Rules 2016.
• The MoEF&CC was directed to ensure that the enforcement, monitoring, audit, and reporting mechanism as envisaged in the notification dated 31 December 2021 is duly put in place and enforced scrupulously.
• The MoEF&CC was directed to determine upon due analysis whether any further modification of the notification is necessary to comply with the provisions of the Rules of 2016 and other cognate legislation.
• The MoEF&CC was directed to take steps to enforce the precautionary steps envisaged in the notification within three months from the date of the judgment.

Development of Law

The ratio decidendi of this case is that when a new notification or law supersedes an existing one, any orders based on the previous law must be re-evaluated. The Supreme Court clarified that the new notification dated 31 December 2021, introduced significant changes in the regulatory framework for fly ash management, which necessitated setting aside the NGT’s orders. The Court also emphasized the need for continuous review and updating of environmental regulations to ensure they are practical and effective.

There was no change in the previous position of law, but the court clarified that any orders passed based on the previous law will not be sustainable if the law is changed.

Conclusion

In summary, the Supreme Court’s judgment in the case of M/s Aravali Power Co Pvt Ltd vs. Vedprakash and Another set aside the orders of the National Green Tribunal (NGT) concerning the disposal and utilization of fly ash by thermal power plants. The court’s decision was based on a new notification issued by the MoEF&CC on 31 December 2021, which introduced new timelines and modalities for fly ash utilization. The court directed the MoEF&CC to revisit the notification to ensure it aligns with the Hazardous and Other Wastes (Management and Transboundary Movement) Rules 2016 and other relevant legislation. This judgment underscores the importance of adapting to changes in environmental regulations and ensuring that environmental practices are both effective and practical.