Environment Protection Act

JUDGMENT :

S. RAVINDRA BHAT, J.

1. These appeals were heard finally, with the consent of the parties. The appellants are aggrieved by a common judgment¹[Judgment dated 11.07.2019 in WP No. 3984/2019.] of the Madras High Court, by which their writ petitions challenging a government order²[G.O.Ms No. 84 dated 25.06.2018 w.e.f. 01.01.2019 (hereafter referred to as ‘Government Order’).] banning manufacture, storage, supply, transport, sale, distribution, and use of ‘one time use and throwaway plastics’, was dismissed. The appellants before this court are an association representing manufacturing units involved in the manufacture of ‘reinforced’ paper cups, and a manufacturer of non-woven plastic bags, respectively.

Facts

2. The Environment and Forest Department of the Government of Tamil Nadu issued the Government Order in question, in exercise of its power under Section 5 of the Environment Protection Act, 1986 (‘EPA’) on 25.06.2018 and it was to take effect from 01.01.2019. The Government Order included directions, banning manufacture, storage, supply, transport, sale, distribution, or use of “use and throwaway plastics” – which as per Explanation 2, included plastic carry bags, plastic flags, plastic sheets used for food wrapping, spreading on dining table, etc. plastic plates, “plastic coated teacups” and plastic tumbler, water pouches and packets, and plastic straws, regardless of thickness. Pertinently, non-woven bags were not expressly mentioned until a clarification dated 08.12.2018 issued by the state government, brought them within the scope of the ban.

3. The directions also contained exemptions for plastic carry bags produced exclusively for export purposes by an industry in an SEZ or EOU; plastic bags which constitute or form an integral part of packaging in which goods are sealed prior to use at manufacturing/processing units; plastic bags and sheets used in forestry and horticulture nurseries against the orders from the government departments; plastic used for packing dairy products, oil, medicine, and medical equipment; and carry bags made of “compostable plastics” ³[See Explanation 5 for definition.] (as per regulations). ⁴[During the pendency of litigation, there have been further amendments to the Government Order; by Notification dated 05.06.2020, the State removed the exemption for plastic bags used for packaging goods sealed prior to use at processing units, and added a further direction to the effect that alternatives to the use and throw plastics (other than compostable plastics) shall be examined and tested by the Central Institute of Plastic Engineering and Technology (CIPET) and necessary approval to be obtained from the Tamil Nadu Pollution Control Board (TNPCB).] Pursuant to the Government Order, a Steering Committee headed by the Chief Secretary of the Government of Tamil Nadu, was constituted to monitor and implement the Notification.

4. The appellant paper cup association made a representation on 05.09.2018 to the Government to reconsider and exclude them from the ban. Pursuant to this, an Expert Committee was constituted on 25.09.2018 to study and furnish a report on the compostable properties of paper cups and compostable plastics. The Expert Committee discussed the properties of LDPE coated paper cups, and alternative bioplastics which were biodegradable. It concluded that the LDPE made such cups non-biodegradable, but recyclable. However, due to insufficient collection mechanism or failure on the part of extended producer responsibility - they are not being recycled.

5. The petitioner association was also invited for a personal hearing on 14.11.2018, during which they contended that the use of reinforced papercups had not been banned in other states (such as Maharashtra, Karnataka and Orissa) which had also implemented a ‘plastic ban’. The association’s representation was rejected on 08.12.2018 by the TNPCB on two grounds: firstly, that this policy to ban one time use and throwaway plastics was to safe