Environment

Why the NGT Okhla Order Sets a Bad Precedent for Indian Environmental Jurisprudence

The NGT’s views in the Okhla case also underscore a trend towards technocratic decision-making that sees technology as a panacea to all policy challenges.

The Okhla waste-to-energy incinerator. Credit: Flickr/IndiaWaterPortal, CC BY 2.0

The Okhla waste-to-energy incinerator. Credit: Flickr/IndiaWaterPortal, CC BY 2.0

After four long years, the National Green Tribunal (NGT) sealed the fate of more than half a million people living around the controversial waste-to-energy (WTE) incinerator in the Okhla region of southern Delhi. The highly polluting plant had been a bone of contention between the residents of Sukhdev Vihar and the Jindals who own and operate the facility.

In a 142-page order dated February 2, 2017, the bench – headed by Justice Swatanter Kumar – observed that “the Principle of Sustainable Development leads to some inconvenience and thus causes some impacts on environment. Unless such impact and effect is irretrievable within the limit of Sustainable Development, the Tribunal would be inclined to permit such plants to operate.”

This and other such observations in the final order point to a judicial overreach by the tribunal. It also raises several questions about the legitimacy of the institution that has been entrusted with the task of protecting our shared environmental fate. Can such an entity tasked with the duty to uphold the law be allowed to justify violations by applying utilitarian logic?

The NGT has been hearing the Okhla WTE case since February 2013. During its course, the bench had made several observations regarding the risks the plant poses to public health, environment and the violations in the environmental clearance terms and conditions. However, contrary to its own observations made earlier regarding such violations, the tribunal ruled in favour of the project’s proponent.

 

Before the case was moved to the NGT, it had 28 hearings at the Delhi High Court between 2009 and 2013. After it was moved to the NGT, it seems the tribunal had been lenient towards the plant. Unmindful of the demands of environmental groups and residents seeking the plant’s closure, the NGT, along with the Delhi Pollution Control Committee and the chief secretary, only paid lip service about making efforts to “improve emission standards”. This is apparent from the proceedings of the case: despite strong evidence of non-compliance by the plant, the operator was favoured over the communities every time.

The process of allowing the plant to operate with ‘provisional’ consent following the withdrawal of consent to operate is highly questionable. The case timeline (below) is the testimony to the collective neglect of evidence by the NGT and the regulatory agencies.

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The decision to allow the plant to operate is premised on the joint inspection team’s report, which found the plant “consistently non-polluting and compliant”. Three labs were engaged for environmental monitoring and reporting during the course of the hearing: the Delhi Pollution Control Committee lab, the Central Pollution Control Board (CPCB) lab and a lab at the Shriram Institute for Industrial Research. However, excluding CPCB, the other two labs have no recognition under the Environmental Protection Act, 1986 – a fact that the bench chose to ignore.

No waste segregation at source

One of the primary contentions of the petitioners was the emission of dioxins and furans. They were found to be in excess of the standards on several occasions. Inspections carried out on March 28-31, 2013, had found them to be present in amounts 120-times above levels considered safe.

Burning chlorine-based chemical compounds with hydrocarbons forms dioxin and furans, both heterocyclic organic compounds. Their major source in the environment is waste-burning incinerators of various sorts. This is the reason that the Indian Solid Waste Rules 2000 and 2016 strictly prohibit the incineration of chlorinated plastics like polyvinyl chloride. Dioxins and furans are a class of chemicals so deadly that 128 countries ratified a convention in 2004 to eliminate their sources. India ratified it in January 2006.

Moreover, over 85% of Delhi does not have a formal door-to-door garbage pick-up system, which means that source separation is nearly non-existent. Further, the city generates around 670 tons of plastic waste every day, hence to rely merely on a few thousand rag pickers to sort out and isolate PVC plastics is an impractical proposition. However, the bench seems to have bought the argument that polychlorinated plastics are removed through “source segregation and manual separation by rag pickers”.

Modern waste-to-energy incinerators are known to produce a range of toxic residues, yet another pertinent problem that the NGT chosen to ignore. Approximately 25% of the waste fed into the furnace ends up as bottom ash or slag. Another 5% ends up as fly ash. There are three major sources of pollution in a waste-to-energy plant: the stack, bottom ash and fly ash. A plant operator aims to control emissions from the stack. To this end, bag-house filters and electrostatic precipitators are commonly installed. As a result, such pollution control barriers also store a concentrated cocktail of toxic elements.  

This concentration is high in the bottom ash and highest in the fly ash. This is perhaps the reason that incinerator ash is considered hazardous in several countries worldwide. However, in its order, the NGT has proposed the idea of ash-brick-making and which the project proponent has chosen to adopt. Despite an overwhelming body of literature warning about the toxicities of bottom and fly ash, the judgment dismisses the apprehensions of the petitioner as “unscientific” even its own endorsement of this practice is not based on any scientific study.

Standards for waste incineration

The NGT’s views in this case also underscore a very concerning trend towards technocratic and centralised decision-making that sees technology as a panacea to all policy challenges. Delhi seeks to liberate itself from its waste woes by burning its way through it – a dangerous option especially at a juncture where the city is reeling under unprecedented levels of air pollution. This also comes at a time when the developed world is phasing out of its dependence on incineration and moving to low-tech options that optimise recovery of organics and recyclables.

The European Union recently advised its member states to “phase out public subsidy for the recovery of energy from waste”. Besides, waste-to-energy does not make economic sense either. According to the International Solid Waste Association, a global association of waste management companies including incineration giants like Covanta, has observed: “MSW incineration is only considered suitable in ‘mature’ waste management systems, where the waste collection is working properly, where the calorific value has a certain minimum level and where the required tipping fees are affordable.” India fails on all counts.

Given these ground realities, the NGT order is rather myopic as it fails to anticipate the long-term repercussions of a waste-management system heavily dependent on incineration. Delhi needs to embrace the virtues of a people-centric and inclusive approach that engages communities instead of alienating them.  

Dharmesh Shah is a policy researcher interested in waste, circular economy and climate change. Pratibha Sharma coordinates the Global Alliance for Incinerator Alternatives (GAIA), India.

  • Amit Gupta

    Truly an impressive article. I feel cheated as a resident of Delhi by politicians, bureaucrats and disappointed with judiciary.. Where will you go to get justice?? Thanks The wire.. Your journalism is fearless..