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People United Respecting the Environment (PURE) et al v. Environmental Management Authority et al

Two public spirited organizations applied for judicial review of the decision of the Environmental Management Authority to grant a certificate of environmental clearance (CEC) for the construction of an Aluminium Smelter plant at Union Village, La Brea. Among the main grounds of the application were a breach of the precautionary principle, flawed public consultation and omissions in the Environmental Impact Assessment rendering the decision illegal or irrational and deferral of omitted matters to be dealt with via conditions imposed in the CEC and failure to consider cumulative effects. According to the claimants, the authority had acted ultra vires in that it failed to include within the administrative record certain key documents and acted unfairly in allowing insufficient time for any meaningful consultation, permitting only a selection of invitees to participate in the consultation and failing to supervise the interested party’s purported consultation with the public. 

Destacados

[1] The Claims before me have raised issues which are duo-dimensional. The first dimension is comprised of the principles of administrative law. In this regard, the Court is reminded that its function is not appellate and that it is not concerned with the merits of the decision, but is urged to focus on the decision-making process, and to strike down the decision only if the Claimant has established the presence of one of the grounds listed at s. 5 of the Judicial Review Act(d). Accordingly, it does not fall on this Court to decide whether there should be a Smelter in Trinidad and Tobago. The Court is concerned only with examining the decision of the EMA to grant Environmental Clearance and with considering whether the decision is flawed according to any grounds specified in the Judicial Review Act.

[26] Thus, s. 28(a) requires as the first wave of public exposure, that the Authority publishes a notice of the proposed action in the Gazette and in one daily newspaper of general circulation. No issue arises as to the first wave.

[27] The Second wave of public exposure is prescribed by s. 28(b), which required the establishment and maintenance of the Administrative Record by the Authority. The administrative record is required to be made available to the public at more than one location.

[31] The operative words in this section are “which the authority believes….” The legislation, therefore, confers discretionary power on the EMA. The very clear consequence of this is that the Authority’s selection of documents to be placed on the Administrative Record, cannot be reviewed on the ground of illegality and is reviewable only in so far as the Claimant can show that the Authority’s decision would be flawed on Wednesbury grounds.

[32] The third wave of public exposure as prescribed by s. 28(3) requires the EMA to receive written comments for at least thirty (30) days. In respect of this requirement, the Claimant complains about the brevity of the public comment period. Once again the decision of the EMA to receive written comments for any given number of days is reviewable on Wednesbury grounds as long as it is equal to or more than thirty (30) days.

[33] The fourth wave empowers the EMA to hold a public hearing to receive verbal comments. This falls with the discretion of the EMA and is reviewable only on Wednesbury grounds. The EMA in fact held its own public meeting on the 27th May 2006.

[34] The requirement of public exposure of the proposed development is entrenched by the requirement of s. 36, which empowers the EMA to issue the CEC. The decision to issue the CEC ought only to be made after the EMA has considered all relevant matters, including comments or representations made during the public comment period.

[48] The leading authority on the elements of fair consultation in administrative law is R v North and East Devon Health Authority Coughlan119, where Lord Woolf cited R v Brent LBC Ex p Gunning120. The very clear principles, known as the Gunning Principles, are in other words: as long as consultations are embarked upon, they must be carried out properly; this is unaffected by whether or not the requirement for consultation is statutory; proper consultations must be undertaken when proposals are at a formative stage; the persons who are being consulted must be provided with adequate reasons so as to facilitate intelligent consideration on their part and an intelligent response; The persons who are being consulted must be given adequate time.

[51] This Court is however not only to be guided, but is indeed bound by the pronouncement of their Lordships in FFOS v EMA (P.C). Pace Learned Senior Mrs. Peake, the words of Lord Walker in FFOS v EMA (P.C.), have had the effect of importing the Berkley Principle directly into our local jurisprudence. Notwithstanding the differences in the respective Legislative regimes, following FFOS v EMA (P.C.), this Court is bound to regard an inclusive democratic procedure, conferring on the public an opportunity to express its opinion on environmental issues as a “directly enforceable right”.

[58] In my view, the stipulation in the TOR for public consultation prior to the preparation of the EIA is reminiscent of the Sedly principle that consultations must be taken when the project is at a formative stage. Moreover, it is no answer to contend that this was not a requirement of statute but of the TOR which is merely a guide. According to the Sedly principles consultation, as long as it is undertaken, must be carried out properly. On the face of the facts therefore this aspect of the consultation process was flawed.

[63] The compound effect of the developer’s failure to hold the meeting at the start of the EIA process and the proximity of the two meetings in my view would have operated to escape and therefore to frustrate the provisions of the TOR, which required the first meeting at an early stage to “sensitize stakeholders to the project and gather stakeholders concerns, ideas and perceptions….” Having done so, time must be allotted to allow stakeholder concerns to inform the data collection phase, after which the developer is required to return to the stakeholders to provide information on its findings and proposed management plans. The time was not allowed. It may very well be the case that strict compliance would have yielded no different result. However, in this regard the TOR places the stakeholder centre stage. The stakeholder must be sensitized; the developer must take into account stakeholder concerns and then return, reporting on its findings and proposed management plans. In my view, this was no minor flaw. The omission to comply with this aspect of the TOR deprived the developer of the time envisaged to take stakeholder views into account. This was a flaw which diminished the quality of public consultation.

[87] The EIA is an information-gathering process. See Bell and Mc Gillivray Environmental Law (6th edition). It is a means to decision making and is not a decision-making end in itself. (Prineas). Its objective is to alert the decision-maker and members of the public to the effect of the activity on the environment.

Decisión

The Court decided that the decision of the defendant was procedurally irregular, irrational and made without regard to a relevant consideration of the cumulative impact of the three related projects (the Power Plant, the Aluminium Complex and the Port Facility). The decision was quashed and remitted for the consideration of the defendant. 

Fecha de la sentencia

16/06/2009

Órgano resolutor

High Court of Trinidad and Tobago