SUPREME COURT CONTINUES TO BAN PETCOKE, FURNACE OIL IN UP, RAJASTHAN AND HARYANA DUE TO HIGH TOXIC AIR POLLUTION IN DELHI

New Delhi’s air quality deteriorated on 13^th November 2017 morning, with poor visibility leading to cancellation of eight trains. A thick cloud of toxic smog 10 times the recommended limit enveloped the national capital, as Government officials struggled to tackle a public health crisis that is well into its second week.

Delhi’s air quality index (AQI) on Monday was 468. The national capital saw the season’s worst air quality at 486 on November 9. The air quality improved on Friday and Saturday but deteriorated on Sunday. For the last six days, the air quality has remained in the “severe” zone across the National Capital Region, prompting the Indian Medical Association to declare a health emergency.

The Supreme Court was hearing a plea by small and medium industries for extending deadline to switch from ecologically damaging fuels such as pet coke and furnace oil widely used in Delhi National Capital Region (NCR).

The Supreme Court Bench comprising of Justice Madan B Lokur and Justice Deepak Gupta on 15^th November 2017, declined to allow applications for the recall of its order dated October 24, imposing a ban on the use of petcoke and furnace oil as fuels in any industrial process in the states of Rajasthan, Haryana and Uttar Pradesh w.e.f., November 1. The Bench held, “In view of the deplorable quality of air in Delhi NCR, we do not deem fit to revoke the ban imposed by us on the use of petcoke and furnace oils,”.

The Bench said, “Where are the timelines? It is not enough to have emergency measures which are reactive to a crisis,”. Also, theBench refused to extend any interim relief to the industries, but said it would pass orders as the amicus, assisting the court in tackling the air pollution problem, maintained that they could switch to better fuels that are available in plenty.

The Apex Court had passed the aforesaid order with a view to tackle the increasing menace of air pollution in the National Capital Territory of Delhi. Subsequently, the Ministry of Environment, Forests and Climate Change (MoEFand CC) and the Central Pollution Control Board (CPCB) had issued a notification on 15^th November under Section 5 of the Environment Protection Act of 1986, prohibiting any industry, process or operation in the complete territory of the three states adjoining Delhi and not merely in the NCRfrom using petcoke and furnace oil.

When senior advocate Kapil Sibal, appearing on behalf of Hindalco and other industrial units, contended that if the court refuses to lift the ban, several small and medium enterprises will be compelled to close down, resulting in the unemployment of thousands of persons, the top court reprimanded the senior counsel for making such arguments and retorted, “This court might as well be closed down.”

The Court also declined to entertain the prayers for grant of more time for converting to alternative, cleaner sources of energy, holding, “In view of the notification issued by the Government of India, MoEFand CC on 15th November, 2017, the applications have become infructuous. They are disposed of as such.”

On 17^th November 2017, the Supreme Court Bench had urged all state governments and union territories to issue similar directions prohibiting the use of petcoke and furnace oil by anyindustry, operation or process within their jurisdiction as issued by MoEFand CC and CPCB. Senior advocate Harish Salve, appearing as amicus curiae in the present matter, forwarded a recommendation for imposing a ban on not just the use, but also the sale of the said fuels in the three States surrounding Delhi.

Taruna Verma

Senior Associate